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REPORTABLE      

     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2377 OF 2015 (Arising out of SLP (Civil) No.7213/2014)

S. PERUMAL                               … Appellant

Versus

K. AMBIKA & ANR.                          … Respondents    

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. The appellant in the instant appeal is seeking enhancement  

of compensation awarded to him in M.C.O.P. No.597/2009 by the Motor  

Accident Claims Tribunal,  Namakkal.

3. The brief  facts  of  the  case  are:-  On 18.11.2009,   a  lorry  

bearing Registration No. TN 27 0907 owned by Respondent No.1, while  

driven by his driver in a rash and negligent manner dashed TVS 50  

(bearing Registration No. TN 28 X 4892) driven by the appellant from  

behind, due to which appellant sustained in the eye-brow, chest and  

multiple injuries all over the body.  The second respondent herein is an  

insurance company with which the vehicle involved in the accident  

was insured.  

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4. Appellant  filed  an  application  before  the  Motor  Accident  

Claims  Tribunal,  claiming  compensation  of  Rs.5,00,000/-  for  the  

injuries sustained by him in the alleged accident. The tribunal upon  

consideration of  the rival  contentions,   vide order  dated 9.09.2011  

awarded compensation of Rs.25,300/- alongwith interest at the rate of  

7.5% per annum.  The appellant being dissatisfied with the amount of  

compensation, approached the High Court of Judicature at Madras in  

C.M.A.  No.554/2013,  wherein  vide  impugned  judgment  dated  

27.2.2013, the High Court refused to interfere with the findings of the  

tribunal  on the ground that  the appellant  has  suffered only  simple  

injuries.

5. Contention  of  the  appellant  is  that  at  the  time  of  the  

accident  he was working  as  a  labourer  in  a  Poultry  Farm and was  

earning Rs.6,000/- per month. The accident has caused multiple rib  

fractures  to  the  appellant  which  has  severely  affected  appellant’s  

ability to work in the Poultry Farm or to do any physical work. Thus,  

appellant has contended that he has sustained permanent disabling  

injury  and  therefore  the  learned  tribunal  erred  in  relying  on  self-

contradictory testimony of        Dr. Balaji (RW-1) of Vinayaga Mission  

Hospital,  Salem, who has prepared the wound certificate (Ex. X4) on  

the basis of case sheet (Ex. X3) to the effect that the appellant has  

suffered only two simple injuries.

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6. Per contra, the learned counsel for the insurance company  

has, by and large, supported the impugned judgment.

7. We  have  considered  the  rival  contentions  of  both  the  

parties.    

8. Appellant in his claim petition has pleaded that immediately  

after  the  incident,  the  injured  appellant  was  admitted  in  Aravinth  

Hospital, Namakkal where he had taken his first aid and then he was  

admitted in Vinayaga Mission Hospital, Salem for treatment, and after  

taking  treatment,  appellant  has  taken further  treatment  in  Maruthi  

Hospital.

9. In  his  evidence,  claimant  stated  that  he  had  sustained  

multiple  fractures  and  had  taken  treatment  at  Vinayaga  Mission  

Kripananda  Variyar  Medical  (VMKVM)  College  and  Hospital.   To  

substantiate his evidence, Dr. Govindasamy (PW-2), Medical Officer of  

VMKVM was examined on the side of the claimant.  He deposed that  

the appellant was admitted as an inpatient on 18.11.2009 and medical  

treatment was given to him and he was discharged on 24.11.2009.  

PW-2 further  stated that  X-ray was taken of  the chest  portion and  

found fractures in right ribs 5th to 8th and Report of the same is marked  

as Ex.X1.  Further in the primary records maintained in the hospital, it  

is stated in column of final diagnosis that there are multiple right rib  

fractures 5, 6, 7, 8 and the copy of the same was marked as Ex.X2

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which  is  prepared  after  comparing  with  the  original.  During  cross-  

examination of PW-2, suggestion was put to him that the appellant did  

not sustain fractures of right ribs 5th to 8th and the same was denied by  

PW-2.

10. The tribunal discarded radiologist report of VMKVM College  

and Hospital on the ground that the claimant had not pleaded in his  

claim petition about the treatment in VMKVM College.  Thus, appellant  

did not specifically plead that he was treated in VMKVM College and  

Hospital. However, in our considered view,  it can not be taken as a  

ground  to  discard  the  radiologist  report  of  VMKVM  College  and  

Hospital.  Rather, this seems to be the inadvertence while drafting the  

claim petition, as confusion is likely to happen, when admittedly both  

the hospitals are under the same management i.e. Vinayaga Mission.  

The appellant was brought for admission in Vinayaga Mission Hospital,  

Salem at 9.30 p.m. but refused to admit himself as an in-patient. But  

immediately, the next morning he got his X-ray from VMKVM College  

and Hospital, which is admittedly a free hospital.   

11. Relying  upon the  evidence of  RW-1-Dr.  Balaji  attached to  

Vinayaga Mission Hospital, the tribunal did not accept the version of  

PWs  1  and  2.   RW-1  stated  that  as  per  the  case  sheet  (Ex.  X3),  

appellant  sustained  (1)  4cm  x  2cm  abrasion  on  the  right  jaw  (2)  

abrasions also found on both the knees,  there was no other  injury

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except the above two.  RW-1 further stated that he advised claimant  

to admit as an inpatient but he was not so admitted.   In Vinayaga  

Mission Hospital, Salem there was no free treatment. The Discharge  

Summary  duly  recorded  on  examination,  appellant  had  swelling,  

tenderness and crepitus right side of chest and had rib fractures.  The  

Radiology report notes that appellant suffered fractures in 5th to 8th  

ribs.   Appellant further required Rib Belt Support and Analgesics to  

relieve himself from pain.  It appears that appellant discharged himself  

from VMKVM College and Hospital on 24.11.2009 and on the same day  

admitted  himself  in  Maruthi  Hospital,  Namakkal  and  got  himself  

discharged  on  27.11.2009.  The  claimant/appellant  who  is  mere  

labourer  was  perhaps  reluctant  to  get  himself  admitted  in  a  paid  

hospital.   

12. The primary evidence of PWs 1 and 2 and Radiology report  

ought  not  to  have  been  discarded  in  the  absence  of  any  cogent  

evidence led by the respondent stating that they are false.  Thus, the  

appellant duly discharged his initial burden of proof and after that it  

was upon the respondents to lead further evidence. Dr. Balaji (RW-1)  

himself admitted in his                    re-examination that he did not  

check whether there was any injury on the right ribs.   

13. Dr.  M.  Sivakumar  (PW-3)  has  examined  the  claimant  and  

also perused the case history, wound certificate and Radiologist report

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of the claimant issued disability certificate (Ex.P11) opining that the  

permanent disability is 25%.              Dr.  Sivakumar opined that  

“…..fracture is malunited.  He has pain and swelling (rt.) right chest  

wall. He has difficulty in breathing.  He often gets respiratory infection.  

He can not do any hard work.   He can not bend or lift  any heavy  

weight.   His  daily  activity  is  affected…”.  Dr.  Sivakumar  (PW-3)  

assessed the disability at 25%,  for which he has not only relied upon  

the  case  history  and  wound  certificate  but  had  also  clinically  and  

radiologically examined the claimant.  In our view, tribunal and the  

High Court were not right in brushing aside the evidence of PW-3 and  

Ex.P6 (disability certificate).  Tribunal and High Court have committed  

an  error  in  holding  that  the  claimant  has  sustained  only  simple  

injuries.   In  exercise  of  jurisdiction  under  Article  136  of  the  

Constitution, though this Court would not normally re-appreciate the  

facts and evidence, however, when the courts below erred in ignoring  

material evidence, this Court can always re-appreciate the evidence in  

order to render justice to the parties.

14. The  injured  claimant  is  to  be  compensated  for  his  

permanent disability and also for loss of earning due to his inability,  

the whole idea is to put claimant in the same position as he was prior  

to the accident.  In 2011 ACJ 1 (SC) (Raj Kumar v. Ajay Kumar), this  

Court considered the principles for awarding compensation in injury

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cases, and held as under:

“The provision of the Motor Vehicles Act, 1988 (‘the Act’, for  short)  makes  it  clear  that  the  award  must  be  just,  which  means that compensation should, to the extent possible, fully  and adequately restore the claimant to the position prior to  the accident.  The object of awarding damages is to make  good the loss suffered as a result of wrong done as far as  money can do so, in a fair, reasonable and equitable manner.  The  court  or  tribunal  shall  have  to  assess  the  damages  objectively and exclude from consideration any speculation  or  fancy,  though  some  conjecture  with  reference  to  the  nature  of  disability  and  its  consequences  is  inevitable.   A  person is not only to be compensated for the physical injury,  but also for the loss which he suffered as a result of such  injury.   This  means  that  he  is  to  be  compensated  for  his  inability to lead a full life, his inability to enjoy those normal  amenities which he would have enjoyed but for the injuries  and his inability to earn as much as he used to earn or could  have earned…

(5) The  heads  under  which  compensation  is  awarded  in  personal injury cases are the following:

Pecuniary damages (Special damages) (i) Expenses  relating  to  treatment,  hospitalization,  

medicines,  transportation,  nourishing  food  and  miscellaneous expenditure.

(ii) Loss  of  earnings  (and other  gains)  which  the injured  would have made had he not been injured, comprising :

(a) Loss of earnings during the period of treatment; (b) Loss  of  future  earnings  on  account  of  permanent  

disability. (iii) Future medical expenses.

Non-pecuniary damages (General damages) (iv) Damages  for  pain,  suffering  and  trauma  as  a  

consequence of the injuries. (v) Loss  of  amenities  (and/or  loss  of  prospects  of  

marriage). (vi) Loss  of  expectation  of  life  (shortening  of  normal  

longevity.) In  routine  personal  injury  cases,  compensation  will  be  awarded only under heads. (i), (ii) (a) and (iv).  It is only in serious cases of injury, where  there is specific medical evidence corroborating the evidence  of the claimant, that compensation will be granted under any  of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future  earnings on account of permanent disability, future medical  expenses,  loss  of  amenities  (and/or  loss  of  prospects  of  marriage) and loss of expectation of life.”

18. In  2012  ACJ  28  (Govind  Yadav  v.  New  India  Assurance

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Company Limited), this Court held as under:-

“15. In our view, the principles laid down in  Arvind Kumar  Mishra v. New India Assurance Co. Ltd., 2010 ACJ 2867 (SC)  and  Raj  Kumar  v.  Ajay  Kumar,  2011  ACJ  1  (SC),  must  be  followed  by  all  the  tribunal  and  the  High  Courts  in  determining  the  quantum of  compensation  payable  to  the  victims of accident, who are disabled either permanently or  temporarily.  If the victim of the accident suffers permanent  disability,  then  efforts  should  always  be  made  to  award  adequate compensation not only for the physical injury and  treatment, but also for the loss of earnings and his inability to  lead a normal life and enjoy amenities, which he would have  enjoyed but for the disability caused due to the accident.”

15. We shall now consider the question as to what is just and  

reasonable  compensation  to  be  awarded  to  the  claimant.   The  

claimant was a poultry labourer, he would have earned not less than  

Rs.4,500/-  per month.   Considering the nature of occupation of the  

claimant  and  the  25% disability,  in  our  considered  view,  lumpsum  

compensation  of  Rs.2,00,000/-  towards  loss  of  future  earnings,  on  

account of permanent disability,  Rs.13,500/- (Rs.4,500 x 3) is awarded  

for the loss of earning during the period of treatment.   Considering  

the nature of treatment and the medical bills (Exp.5),  for which an  

amount  of  Rs.1,00,000/-  is  awarded  towards  medical  expenses;  

Rs.50,000/-  is  awarded  towards  pain  and  sufferings;  Rs.10,000/-  is  

awarded  for  transport  charges  and  Rs.10,000/-  is  awarded  for  

attendant  charges;   Rs.10,000/-  is   awarded  towards  extra  

nourishment and Rs.50,000/- is awarded towards loss of amenities.   

16. The compensation of Rs.25,300/- awarded to the claimant is  

enhanced to Rs.4,43,500/-  payable with interest at the rate of 9%

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from the date of the claim petition.  The first respondent-insurance  

company is directed to deposit balance compensation of Rs.4,18,200/-  

with interest within a period of four weeks from the receipt of the copy  

of this judgment.  On such deposit, the same shall be disbursed to the  

claimant.

17. In the result, appeal is allowed in terms of the above directions.  

Parties are directed to bear their own costs.

 ...……......................J.                                                       (V. GOPALA GOWDA)   

 ……........................J.                                                    (R. BANUMATHI)

New Delhi; February 24, 2015