Friday, May 20, 2011

B. Kothandapani V/s Tamil Nadu State Transport Corporation Ltd.MAY 12, 2011


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4330-4331 OF 2011
(Arising out of S.L.P. (C) Nos.15569-15570 of 2007)

B. Kothandapani .... Appellant (s)
Versus
Tamil Nadu State Transport Corporation Ltd. .... Respondent(s)


J U D G M E N T

P. Sathasivam, J.
1) Leave granted.
2) These appeals are directed against the judgment and
final order dated 13.12.2006 passed by the High Court of
Judicature at Madras in C.M.A. Nos. 103 and 122 of 2001
in and by which the High Court modified the award of the
Tribunal, i.e., from Rs. 5,05,053.45/- to Rs.4,05,053.45/-
as compensation payable to the appellant-claimant.
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3) Brief facts:
(a) The appellant-claimant sustained grievous injuries in
a motor vehicle accident, which occurred on 21.05.1998
for which he made a claim before the Motor Accident
Claims Tribunal, Chennai (hereinafter referred to as “the
Tribunal”) in O.P. No. 3868 of 1998 for a sum of Rs. 12
lakhs as compensation. The Tribunal, after finding that
the accident was caused due to the negligence of the
driver of the Tamil Nadu State Transport Corporation
(Villupuram Division-III), Kancheepuram (hereinafter
referred to as “the Corporation”), by order dated
20.12.2000, quantified the compensation and passed an
award for Rs.5,05,053.45.
(b) Aggrieved by the award of the Tribunal, the
Corporation filed C.M.A. No. 103 of 2001 before the High
Court of Madras challenging the quantum of
compensation. The appellant-claimant also filed C.M.A.
No. 122 of 2001 before the High Court for the
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enhancement of the compensation amount. Inasmuch as
both the appeals arose from the same award of the
Tribunal, the High Court heard and decided the appeals
together and passed a common order on 13.12.2006
reducing the compensation to the extent of Rs.1,00,000/-.
In other words, by the said order, the High Court allowed
the appeal of the Corporation to the extent of
Rs.1,00,000/- and dismissed the appeal of the claimant
for enhancement of the compensation.
(c) Questioning the judgment and final order of the High
Court, the claimant has filed the above appeals by way of
special leave petitions before this Court praying for
enhancement of compensation to the extent awarded by
the Tribunal.
4) Heard Mr. Vipin Nair, learned counsel for the
appellant-claimant and Mr. T. Harish Kumar, learned
counsel for the respondent-Corporation.
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5) The only point for consideration in these appeals is
whether the appellant is entitled to a sum of
Rs. 1,00,000/- towards “permanent disability” in addition
to the amount awarded under the head “loss of earning
capacity”? Inasmuch as the issue is confined only to the
quantum of compensation, it is not necessary to traverse
the factual details relating to the accident. Even
otherwise, the claimant alone has filed the present appeals
and the Corporation has not challenged the findings
relating to negligence, it is not necessary to go into the
conclusion arrived at on the negligence aspect holding
that the driver alone was responsible for the accident.
Even, with regard to the quantum of compensation, except
reduction of Rs. 1,00,000/- which was awarded by the
Tribunal for permanent disability, it is not necessary to go
into the quantum of compensation under various heads
and the ultimate order of the Tribunal and the High Court.
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6) The appellant-claimant, in his evidence as PW-1,
deposed that he had sustained injury on the center finger
of the right hand, his knee joint on the right leg had been
dislocated, injury on the right cheek and eyes, that he
cannot see with his left eye, his right foot had been injured
and his right ankle joint dislocated. He further explained
that after the accident, he was immediately taken to the
Government Hospital at Chengalpet and received the First
Aid and later he had been admitted in the Govt. Stanley
Hospital and was under treatment for 25 days as
inpatient. The Discharge Summary issued therein has
been marked as Ex. P-1. He further narrated that he had
undergone Physiotherapy after 25 days which is evident
from Ex. P-2. He had also undergone skin surgery at the
Stanley Hospital and the certificate relating to the same
has been marked as Ex.P-3. Even after discharge from
the Stanley Hospital, he was not fully recovered and he
had been admitted in Malar Hospital at Adayar and
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received treatment for two days. The Discharge Summary
has been marked as Ex.P-4. According to the appellantclaimant,
the middle finger of his right hand had been
amputated at the Malar Hospital, Adayar. The
prescription issued at the Malar Hospital has been
marked as Ex. P-5. From his evidence, it is seen that
during the time of the accident, he was working as a
Foreman in M/s Armstrong Hydraulics Limited and after
the accident he is unable to do any work as he cannot
bend the fingers of his right hand and using his left hand
for eating and there is pain in his right leg and he cannot
travel in a two wheeler or in a transport bus.
7) Dr. R. Rajappa was examined as PW-2. In his
evidence, he deposed that the appellant-claimant was
injured in the accident said to have been occurred on
21.05.1998 and he had received treatment as an inpatient
at the hospital at Chengalpet, later he had been admitted
as an inpatient at the Govt. Stanley Hospital. He had seen
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a lengthy scar on his right eye and his right eyebrow had
been found to be fallen and the retina of the eye was
found to be large and that it had lost the shrinking
capacity and the nerves of the eye had been affected and
there was no circulation of blood and he lost his eye sight
by about 3 meters. On examination and perusing the
medical documents about his treatment, he concluded
30% of the disability had been caused due to the injury on
the right eye and issued a Disability Certificate which has
been marked as Ex. P-9.
8) Dr. J.R.R. Thiagarajan was also examined as PW-3.
In his evidence, he deposed that the right hand of the
appellant had been injured due to the said accident and
his middle finger on the right hand had been amputated
and a plate had been placed on the fore finger towards the
dislocation of the bone. He also explained that he had
undergone treatment towards the injury on the right
forehand and on the right cheek and that the plate is still
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there on the right fore finger due to which he cannot bend
the fore finger and other fingers properly and it is difficult
for him to eat and there was swelling on the palm of his
right hand and issued a Disability Certificate which has
been marked as Ex. P-10. The Certificate issued by the
employer Ex. P-8 shows that at the time of the accident,
the appellant was working as a Grade-III worker in the
firm M/s Armstrong Hydraulics Ltd. and he was getting a
salary of Rs.3,295.28/- after deductions.
9) The Disability Certificates, Exs.P-9 & P-10, issued by
the two doctors, show that the appellant had disability to
the extent of 90%. The Tribunal, after considering the fact
that the assessment of disability may vary to the extent of
5%, concluded that the appellant had sustained
permanent disability to the extent of 85% and taking note
of his age and avocation, awarded compensation of Rs.
1,50,000/- for the same.
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10) The High Court, relying on its own Full Bench
decision in Cholan Roadways Corporation Ltd. vs.
Ahmed Thambi and Others, 2006 (4) CTC 433, after
finding that since the claimant had been awarded a sum
of Rs. 3 lakhs towards the loss of earning capacity set
aside the award of Rs. 1,50,000/- granted under the head
“permanent disability” and awarded a further sum of
Rs.50,000/- in addition to the amount awarded by the
Tribunal.
11) In Ramesh Chandra vs. Randhir Singh & Ors.
(1990) 3 SCC 723 while considering award of
compensation for permanent disability (right foot
amputated) caused by the accident under Section 110B of
the Motor Vehicles Act, 1939 which is similar to Section
168(1) of the Motor Vehicles Act, 1988, this Court upheld
the award of compensation under separate head of pain,
suffering and loss of enjoyment of life, apart from the head
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of loss of earnings. The discussion and ultimate
conclusion are relevant which reads as under:-
“7. With regard to ground XIX covering the question that the
sum awarded for pain, suffering and loss of enjoyment of life
etc. termed as general damages should be taken to be
covered by damages granted for loss of earnings is concerned
that too is misplaced and without any basis. The pain and
suffering and loss of enjoyment of life which is a resultant
and permanent fact occasioned by the nature of injuries
received by the claimant and the ordeal he had to undergo. If
money be any solace, the grant of Rs 20,000 to the claimant
represents that solace. Money solace is the answer
discovered by the Law of Torts. No substitute has yet been
found to replace the element of money. This, on the face of it
appeals to us as a distinct head, quite apart from the
inability to earn livelihood on the basis of incapacity or
disability which is quite different. The incapacity or disability
to earn a 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 head being totally different cannot in our view overlap
the grant of compensation under the head of pain, suffering
and loss of enjoyment of life. One head relates to the
impairment of person’s capacity to earn, the other relates to
the pain and suffering and loss of enjoyment of life by the
person himself. For these reasons, we are of the considered
view that the contentions raised by the truck owner
appellant in that behalf must be negatived and we hereby
negative them.”
12) It is true that the compensation for loss of earning
power/capacity has to be determined based on various
aspects including permanent injury/disability. At the
same time, it cannot be construed that compensation
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cannot be granted for permanent disability of any nature.
For example, take the case of a non-earning member of a
family who has been injured in an accident and sustained
permanent disability due to amputation of leg or hand, it
cannot be construed that no amount needs to be granted
for permanent disability. It cannot be disputed that apart
from the fact that the permanent disability affects the
earning capacity of the person concerned, undoubtedly,
one has to forego other personal comforts and even for
normal avocation they have to depend on others. In the
case on hand, two doctors had explained the nature of
injuries, treatment received and the disability suffered due
to partial loss of eye-sight and amputation of middle finger
in the right hand and we have already adverted to the
avocation, namely, at the time of accident, he was working
as Foreman in M/s Armstrong Hydraulics Ltd. Taking
note of his nature of work, partial loss in the eye sight,
loss of middle finger of the right hand, it not only affects
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his earning capacity but also affects normal avocation and
day-to-day work. In such circumstance, we are of the
view that the Tribunal was fully justified in granting a
sum of Rs.1,50,000/- towards permanent disability.
13) Considering the evidence of injured-claimant as PW-1
and two doctors as PWs. 2 & 3 coupled with the Disability
Certificates and medical documents, we conclude that the
High Court was not justified in disallowing a sum of
Rs.1,00,000/- from the total compensation of
Rs.5,05,053.45 awarded by the Tribunal. We agree with
the contention raised by the learned counsel for the
appellant-claimant and restore the award of the Tribunal.
In other words, the Corporation is liable to pay Rs.
5,05,053.45 with interest as awarded by the Tribunal. If
the said amount has not been deposited so far, the
Corporation is directed to deposit the same in the Tribunal
within two months from the date of the receipt of this
order and if any amount had already been deposited/paid
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to the claimant, the same shall be adjusted. On such a
deposit being made, the appellant-claimant is permitted to
withdraw the same. The appeals are allowed to the extent
mentioned above. There shall be no order as to costs.
...…………………………………J.
(P. SATHASIVAM)
...…………………………………J.
(DR. B.S. CHAUHAN)
NEW DELHI;
MAY 12, 2011.
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