B.T.Krishnappa vs D.M.,United Insurace Co.Ltd.& Anr

3.This Court finds that the High Court did not

properly consider the case for enhancement. Thus

after condonation of delay, this Court passed an

order dated 05.02.2010 as follows:

"....Heard learned counsel for the petitioner and perused the records.

We are prima facie of the view that the impugned judgment of the High Court deserves to be set aside and the matter remitted to it for fresh disposal of the Miscellaneous First Appeal filed by the petitioner because the High Court has failed to consider the issues relevant for deciding the cases involving claim for compensation.

Issue Notice to the Respondents........"

4.Pursuant thereto show cause notices were issued to

the respondents on 17.2.2010 and service was

complete.

5.The material facts are that appellant was working

as a mason and was aged 50 years at the time of

accident. On the fateful day of 08.01.2006, at

about 4.30 pm, the appellant was crossing the road

2 near Deepa Nursing Home, K.R. Puram, when a

motorcycle, with the registered number plate KA-05-

EW-1108 hit him. The motorcycle was being driven by

the second respondent (to be known as `R2'

hereinafter) at the time of the accident. As a

result of the accident, the appellant sustained

bone fractures as well as head and other injuries

all over the body. He was taken to the Deepa

Nursing Home, Bangalore where he received first

aid. He was then shifted to Bowring and Lady Curzon

Hospital, Bangalore (to be known as `Hospital'

hereinafter) the same day where he was admitted and

received treatment as an inpatient till 21.01.2006.

He continued with the follow up treatments for

about six months after his discharge.

6.The first Respondent Insurance Company, (to be

known as `R1' hereinafter) was also impleaded as a

party as the motorcycle was insured with it.

7.By the award of the Motor Accident Claims Tribunal

(to be known as `Tribunal' hereinafter), the

3 appellant was awarded a compensation of

Rs.1,55,000/- with interest @ 7.5%. R1 was made

liable to pay the compensation to the appellant.

8.On appeal, the High Court however enhanced the

compensation by only Rs.34,000/- awarding a total

of Rs.1,89,000/- with interest @ 6% per annum.

9.On a reading of the High Court order, it is clear

that High Court did no consider the appellant's

case properly. It accepted the Tribunal's

assessment of the body disability at 20% and

observed that the Tribunal has paid compensation

under the heads "loss of amenities and enjoyment of

life and loss of earnings during laid up period" on

the lower side. However, it awarded an additional

compensation only for future medical expenditures

and did not deal with the aspect of future loss of

earnings at all, which we feel was not a correct

approach.

4

10.This Court finds that "incapacity or disability to

earn livelihood would have to be viewed not only in

praesenti but in futuro on reasonable expectancies

and taking into account deprival of earnings of a

conceivable period." This was laid down by this

Court in Ramesh Chandra vs. Randhir Singh and

others, (1990) 3 SCC 723. In page 726, para 7,

those above quoted observations were made.

11.The Tribunal examined the doctor who supervised

the appellant's injuries and administered treatment

in the Hospital, Dr. S. Rajanna, as PW2.

12.As per the evidence of PW2, it was proved that the

appellant sustained compound fractures in the tibia

and fibula bone of the right leg. He also suffered

bruises and cuts on his face and some parts of the

body. He had to be operated upon and the operation

was done on 09.01.2006. Even after his discharge,

he was advised follow up treatments and

physiotherapy and also exercise for better movement

of his leg.

5

13.In his affidavit dated 23.05.2007 before the

Tribunal, the PW2 states that he examined the

appellant for assessment of the percentage of

disability on 17.04,2007. He recorded that the

appellant's right leg was shortened as a result of

which he had to walk with a limp. Thus the

appellant was advised to use footwear with a raised

sole and continue with the exercises. The Tribunal

later noted that the shortening of the leg was by

3.5 cms. The High Court should have considered

that appellant, being a mason, these injuries would

cause considerable problem in moving his knee and

ankle. PW2, in the disability certificate clearly

stated:

"Due to the above mentioned disabilities, he cannot walk like a normal person, cannot sit crossed leg, cannot squat, cannot lift any weight, cannot climb the stairs without support.

...I am of the opinion that the...disability is 48% of the (right) lower limb and 48% disability to the whole body. In view of this disability, the petitioner cannot do mason work and cannot do any other manual work also"

6 14.The Tribunal however, in accepting the disability

of the appellant at 48%, refused to accept the

assessment of the doctor that the future loss of

earning will also be at 48%. It opined that

construction work involves many people and the

doctor is not right in concluding that due to the

disability on the right leg, the appellant would

not be able to do construction work. Therefore, the

future loss of earning was assessed at a much

lesser 20%. Since there was no specific evidence

regarding his income, the multiplier method was

used for assessing the compensation.

15.Although the Tribunal concluded by holding that the

assessment of future loss of earnings should be

made only at 20%, we feel that the High Court,

while making the observation that the Tribunal's

compensation under the heads "loss of amenities and

enjoyment of life and loss of earnings during laid

up period" was on the lower side, should have given

reasons and made its own assessment under these

heads, since High Court, as the first appellate

7 authority, is an authority both on facts and law.

The High Court's orders starkly lack in any details

on assessment of compensation under these heads.

These areas need proper introspection and a more

sensitive approach as the appellant being a mason

and a workman represents the weaker section of the

community. The appellant had suffered an

irreversible damage to his right leg which will

pose difficulties for him in carrying out his

avocation as a mason. This Court in M/s. Concord of

India Insurance Co. Ltd. vs. Smt. Nirmala Devi &

others, (1979) 4 SCC 365, has observed that:

"...Thejurisprudence of compensation for motor accidents must develop in the direction of no-fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales..." [at page 366, para 2 ]

16. In the case of Divisional Controller, KSRTC vs.

Mahadeva Shetty & another, (2003) 7 SCC 197, where

the claimant was also a mason, this Court held

that:

".......It has to be borne in mind that compensation for loss of limbs or life can

8 hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired...." [at page 204, Para 15.]

17.Long expectation of life is connected with earning

capacity. If earning capacity is reduced, which is

the case in the present situation, that impacts

life expectancy as well.

18.Therefore, while fixing compensation in cases of

injury affecting earning capacity the Court must

remember:

"....Noamount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame." [See R.D. Hattangadi vs. Pest Control (India) (P) Ltd. & others, (1995) 1 SCC 551, at page 556, para 10] 9

19.Further, the Court in the same case also held

that:

"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. [at page 557, para 12]

20.Thus, we feel that the appeal needs to be remanded

to the High Court so that it can consider the

matter afresh. The High Court, we expect, will

consider the case of enhancement of compensation to

the appellant in its proper perspective and keeping

in mind the factual aspects of the case and in the

light of the views expressed by this Court in

several judgments, discussed above.

21.The High Court is requested to deal with the

matter with utmost expedition since it concerns

compensating an injured workman. The appeal is

allowed. No costs.

1 .....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

New Delhi April 30, 2010

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