G. DHANASEKAR Vs M.D.,METROPOLITAN TRANSPORT CORPN.LTD.
Bench: SUDHANSU JYOTI MUKHOPADHAYA,KURIAN JOSEPH
Case number: C.A. No.-002008-002009 / 2014
Diary number: 36247 / 2011
Advocates: Vs
R. AYYAM PERUMAL
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 2008-09/2014 [Arising out of S.L.P.(Civil) Nos. 35565-35566/2011]
G. DHANASEKAR … APPELLANT (S)
VERSUS
M.D., METROPOLITAN TRANSPORT CORPORATION LIMITED … RESPONDENT (S)
J U D G M E N T
KURIAN, J.:
Leave granted.
2. Whether an accident victim is entitled to get
compensation for functional disability? If so, what is
the method for computation of compensation? These
are the two issues arising for considerations in this
case.
3. Computation of just and reasonable compensation is
the bounden duty of the Motor Accident Claims
Tribunal. In view of the plethora of judgments
rendered by this Court regarding the approach to be
made in the award of compensation, we do not find it 1
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necessary to start with the first principles. In Rajesh
and Others v. Rajbir Singh and Others1, Master
Mallikarjun v. Divisional Manager, The National
Insurance Company Limited2 and in Rekha Jain
v. National Insurance Company Limited and
Others3, this Court recently has extensively dealt
with the principles governing the fixation of
compensation and the approach to be made by the
courts in that regard.
4. In Rekha Jain’s case (supra), this Court following the
case of National Insurance Company Limited v.
Mubasir Ahmed and Another4, developed a very
important principle on functional disability while
fixing the compensation. Rekha Jain, a cine artist
suffered an injury in a motor accident at the age of
24 years on account of which she suffered 30%
permanent partial disability which included
disfigurement of her face, change in the physical
appearance, etc. It was found that on account of such
development, she could no more continue her
avocation as an actress and, hence, it was held that
1 (2013) 9 SCC 54 2 2013 (10) SCALE 668 3 (2013) 8 SCC 389 4 (2007) 2 SCC 349
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she had suffered 100% functional disability. Hence,
this Court awarded compensation following the
principles laid down in Sarla Verma (Smt.) and
Others v. Delhi Transport Corporation and
Another5.
5. As far as compensation for functional disability is
concerned, it has to be borne in mind that the
principle cannot be uniformly applied. It would
depend on the impact caused by the injury on the
victim’s profession/career. To what extent the career
of the victim has been affected, thereby his regular
income is reduced or dried up will depend on the
facts and circumstances of each case. There may be
even situations where the physical disability does not
involve any functional disability at all.
6. Now, we shall refer to the factual matrix. The
appellant, driver by profession and operating a
tourist taxi himself, met with a motor accident on
05.09.2008. While driving the Tata Sumo car, a bus
operated by the respondent, came from the opposite
direction and dashed against the car. The appellant
suffered fracture on right leg and right arm.
5 (2009) 6 SCC 121 3
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According to the doctor, on account of the injuries
suffered by the appellant and the operations
undergone by him to fix a thick plate in the tibia bone
with five screws, the appellant will not be in a
position to bend his right knee beyond 90 degrees.
There is shortening of the leg by one centimeter on
account of nerve injury. He would be limping while
walking. He cannot lift weight over 3 kilograms. His
right hand movement is restricted to 25 degrees. He
will not be able to drive two wheelers and he can
drive four wheelers with difficulty. To quote
PW1(appellant):
“After the incident, I cannot bend my right knee beyond 90 deg. I cannot use my right hand for lifting any weighty objects. The movements in my right hand elbow and wrist has almost been restricted. I am not in a position to drive the vehicles as before. I cannot use Indian toilet or squat or carry weight. I am walking with limping. Walking and standing for some time is a painful one. Because of the dislocation of bone in the lower jaw, I am not able to open my mouth fully and speak coherently. I find it very difficult to eat hard objects. I am suffering from intermittent head ache and giddiness. I have completely lost my earning capacity. I am having severe pain and suffering.”
7. The Tribunal awarded a total compensation of
Rs.4,50,000/-. The Tribunal found that the appellant
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has contributed to the accident and, hence, the
liability of the respondent was fixed at 50%. In appeal
before the High Court, it was held that the
contributory negligence on the part of the appellant
is only 30%. The compensation was also refixed to an
amount of Rs.3,20,000/-. Thus, the appellant was
held entitled to Rs.2,24,000/- with interest @ 7.5%
per annum.
8. Thus, aggrieved, the claimant has filed these
appeals. There is no appeal by the respondent.
9. It is mainly contended by the learned counsel for the
appellant that the Tribunal and the High Court erred
in not taking into consideration the factor of his
functional disability. Since, it is in evidence that the
appellant cannot continue his avocation of driver as
earlier, he should be reasonably compensated in that
regard, it is submitted. Yet another strong submission
is with regard to the finding on contributory
negligence. It is contended that only the driver of the
offending vehicle is negligent, he is wholly negligent
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and that there is no negligence on the part of the
appellant.
10. We shall first deal with the aspect of contributory
negligence. There is no dispute that the vehicles
were coming in opposite direction. It has also come in
evidence that the driver of the bus has filed a
complaint before the police and the police has
registered an FIR. Except the driver of both the
vehicles and the doctor who treated the appellant,
there is no other oral evidence. The FIR, disability
certificate, medical bills, driving licence, RC book and
permit were also marked. The Tribunal, having
referred to the entire evidence, held as follows:
“On perusal of Ex.R.1. FIR and from the evidence of the Petitioner and RW.1. driver of the bus, it is clear that both the vehicles came in a rash and negligent manner and with high speed and dashed against each other. In the above accident, the driver of the Tata Sumo was injured. Taking advantage of the situation, the driver of the bus gave complaint to Police. Hence the driver of the bus gave complaint accusing the driver of the Tata Sumo car. No other independent witnesses were examined.
Hence this Court comes to the conclusion that the bus came in a rash and negligent manner and dashed against the deceased ( sic : car). Hence it is concluded that negligence on the part of the
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driver of the bus is the root cause of the accident. The evidence of RW.1 driver shows that he simply throws the blame on the injured.”
(Emphasis supplied)
11. It is strange that having arrived at such finding
regarding negligence on the part of the driver of the
bus, the Tribunal proceeded further in holding that:
“The manner of the accident shows that both the vehicles came in an uncontrollable speed and dashed against each other. Hence the impact of the accident was very heavy and both the vehicles damaged heavily. Hence this court comes to the conclusion that both the vehicles came in a rash and negligent manner with high speed and dashed against each other. Hence it is concluded that contributory negligence is fixed on the driver of both vehicles and negligence on the part of the drivers of both vehicles is the root cause of the accident and they are equally responsible for the accident.”
(Emphasis supplied)
12. It needs no elaborate discussion to hold that the
findings are intra contradictory. Unfortunately,
despite specific ground taken before the High Court,
this aspect of the matter was not considered
properly. It was, however, held that:
“… Considering the fact that no other eye witness has been examined and the respective drivers alone have been examined, we have to consider their evidence in the light of surrounding circumstances. If so considered, then it cannot be
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precisely decided that one of them was solely responsible for the accident. Considering the aforesaid facts, we fix 30% negligence on the part of the claimant and 70% negligence on the part of the driver of the bus. …”
13. PW1 has stated that a passenger in the bus was
thrown out of the bus through the front windscreen
and that the car took a u-turn on account of the
impact of the accident. Apparently, it was this
evidence which lead to the first finding by the
Tribunal that the negligence on the part of the driver
of the bus was the root cause of the accident and it
was the bus which dashed against the car. Having
entered such a finding, another finding on
contributory negligence is unsustainable.
Unfortunately, without proper appreciation of the
evidence, the High Court has fixed 30% negligence
on the part of the appellant, which we find it difficult
to sustain. Therefore, in the light of evidence
available in this case, we restore the first finding of
the Tribunal that the negligence on the part of the
bus driver is the root cause of the accident.
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14. As noted above, appellant is a driver operating a
tourist taxi. On account of the physical disability
referred to above, it needs no elaborate discussion to
hold that he would not be in a position to continue his
avocation at the same rate, or in the same manner
as before. He was aged 46 years at the time of
accident. Therefore, we are of the view that it is a
case where the appellant should be given just and
reasonable compensation for his functional disability
as his income has been affected. The court has to
make a fair assessment on the impact of disability on
the professional functions of the victim. In this case,
the victim is not totally disabled to engage in driving.
At the same time, it has to be seen that he cannot
continue his career as earlier. In such circumstances,
the percentage of physical disability can be safely
taken as the extent of functional disability. In the
assessment of the doctor, it is 35%. Since the
appellant is compensated for functional disablement,
he will not be entitled to any other compensation on
account of physical disability or loss of earning
capacity, etc. However, he is entitled to
reimbursement towards medical expenses, etc. The
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Tribunal has fixed income of Rs.10,000/-. There is no
serious dispute on this aspect. Therefore, applying
the principle laid down by this Court in Rajesh’s and
Others case (supra), the appellant is entitled to
compensation as computed below:
Sl. No.
HEADS CALCULATIO N
(i) Annual Income = Rs.10,000 x 12 = Rs.1,20,000/- (ii) After deducting 1/3rd of the total income for
personal expenses, the balance will be = [Rs.1,20,000/- - Rs.40,000/-] =
Rs.80,000/-
(iii) Add 30% towards increase in future income, as per Sarla Verma and Rajesh and Others cases (supra) =
Rs.1,04,000/-
(iv) Compensation after multiplier of 13 is applied = [Rs.1,04,000/- x 13] =
Rs.13,52,000/ -
(v) Applying the 35% functional disability, the appellant will be entitled to the compensation of 35% of Rs.13,52,000/- =
Rs.4,73,200/-
(vi) Reimbursement towards medical expenses = Rs.60,000/- (vii) Amount towards extra nourishment, etc.
Rs.10,000/-
(viii )
Damages to the vehicle (as awarded by the High Court) =
Rs.10,000/-
(ix) Amount towards actual loss of earning during the period of hospitalization and thereafter during the period of rest =
Rs.40,000/-
(x) Amount towards pain and sufferings = Rs.10,000/-
(xi) Amount towards expenses on attendant = Rs.10,000/- TOTAL COMPENSATION AWARDED [(v)+(vi)+(vii)+(viii)+(ix)+(x)+(xi)] Rs.6,13,200/-
15. The amount of total compensation awarded shall
carry interest @ 7% per annum from the date of filing
the petition before the Motor Accident Claims
Tribunal till realization.
16. The appeals are allowed as above. There is no order
as to costs. 1
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………..…………………….….. …………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………….. …………………………J.
(KURIAN JOSEPH) New Delhi; February 12, 2014.
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