JUDGMENT
1. These two appeals arise out of the awards passed in O.P.No.99
of 1990 dated 20-12-1991 and O.P.No.98 of 1990 dated 20-12-1991 respectively by the Motor Accidents Claims Tribunal (Addl. District Judge), Mahabubnagar. C.M.A No.305 of 1992 arising out of the order in O.P.No.99 of 1990 relates to the injury claim case whereas C.M.A.No.267 of 1992 arising out of O.P.No.98 of 1990 relates to death case. Although different awards were passed by separate orders in each of the cases, since both the appeals arise out of the same motor vehicle accident occurred on 6-11-1989 involving consideration of common questions of facts and law, they were heard together and being disposed of by this common Judgment.
2. C.M.A.No.305 of 1992: The appellant in this case aged 15 years and a student who suffered injuries during the motor vehicle accident on 6-11-1989 which is found to be due to the negligence of the driver of the Maruthi Car bearing No.CRL.2727, laid a claim for compensation of Rs. l,50,000/-from the Respondent No. 1, the owner of the vehicle and Respondent No.2, the insurer under Section 166 of the Motor Vehicles Act, 1988 (in short ‘the Act’). During the inquiry, it was found that the claimant had sustained head injury, injury to his left eye, fracture of the mandible bone and suffered permanent disability to his left eye, he took treatment for a long time, spent certain amounts for medical expenses and the Tribunal awarded a global compensation of Rs.50,000/- without break up for different counts of items of compensation. The appellant has questioned the adequacy of the compensation.
3. Smt. Saraswathi, the learned advocate for the appellant-claimant has contended that with the clear evidence of injuries as above and permanent disability to the left eye and the evidence for medical expenses etc., the Motor Accidents Claims Tribunal, Mahabubnagar in O.P.No.99 of 1990 has awarded inadequate compensation of only Rs.50,000/- as against Rs.1,50,000/- and it requires enhancement. In support of her contentions, she has replied upon several precedents, namely P. Raju v. Managing
Director, Chittoor Co-op. Sugars Ltd, , G. Jyoti v. APSRTC, 1997 (1) ALD 211, Depot Manager, APSRTC v. Rama Ramulu, 1997 (2) ALD 535, Pareshbhai v. Maharashtra State Road Transport Corpn., 1994 ACJ 1233 and Deepak Sangha v. Himachal Pradesh State Road Transport Corpn., 1993 ACJ 299. She has contended that in whatever manner the materials on record are judged in the proper perspective, the just and reasonable compensation cannot be Rs.50,000/- and it must be much more. Mr. Srinivasa Rao, the learned advocate for the Insurance Company – Respondent No.2, has contended that with the materials, the amount of compensation awarded is adequate and, however, this Court may reassess the matter and find out if there is any scope to review the quantum of compensation already awarded.
4. In the first place, the Tribunal has dealt with the matter in a most arbitrary manner. No fundamentals or the basis to award the compensation in an injury claim case are adverted to. A global compensation of Rs.50,000/- which is awarded is totally arbitrary. Except discussing the evidence and drawing inferences, there is no assessment of compensation at all. In Joyti v. APSRTC, (supra) this Court impressed on the Tribunals that the quantum of compensation should be more in a injury claim case than the death case as there would be suffering by the victim or the injured person physically, economically and socially with depravity of the fundamental pleasures partially, totally or permanently and that the items of compensation to be awarded in a injury claim case will give a proper basis to assess the compensation and will lead to passing of a judicious award and not an arbitrary one. In Rama Ramulu’s case 1997(2) ALD 535 supra, it was pointed out that the compensation should not be niggardly and at the same time it should not be wind fall and, however, in relying upon the precedents dealing with the same question of assessing the compensation, the one which has adopted a liberal approach should be adopted than the one which has adopted the
conservative approach. Judged in that settled law on the question, the award of the Tribunal cannot stand to scrutiny and, therefore, this Court should take the task of reassessing the materials afresh to find out as what should be the just and reasonable compensation to be awarded to the claimant – Appellant.
5. It is a clear case where in the appellant – Claimant sustained serious injuries due to the accident. There is both oral and documentary evidence in proof of the same. PW3 is the doctor who saw and examined the claimant on the date of the accident. He deposed that the claimant was having a bleeding head injury, fracture of mandible bone, his tooth had been loosened and there was an injury to the left eye. He could not give the details of the treatment as he has not brought the case-sheet. The Out Patient Card bearing O.P.No. 168074 dated 6-11-1989 of Nizam’s Institute of Medical Sciences (NIMS), Hyderabad, marked and Ex.A8, show that the claimant had head injury and multiple injuries when seen on 7-11-1989. Initially, three injuries were noted, one injury on the head, fracture of the mandible bone and also maxilla and black eye. He was diagnosed and as disclosed in Ex. A9, the discharge record issued by the NIMS, it was found that the claimant had such injuries with pupil dilated, without fixed vision in the left eye and the following injuries were detailed:
1. Fracture of left temporal bone with intracranial air.
2. Small left frontal injury with small membrane haematoma.
3. No mass effect.
4. Cistemes well seen.
5. Fracture of maxilla bone.
He was referred to the L.V. Prasad Eye Institute, Hyderabad on 21-11 -1989 and it was recorded therein that there was left optic nerve contusion and left III nerve palsy. He was treated by a dentist Dr. B.K. Reddy on the basis of the reference of Mr. Diwkar, Neuro Surgeon, NIMS, with the Exs.Al 1 and A12 respectively. L.V. Prasad’s Eye Institute,
Hyderabad gave the following certificate as per Ex.A14 dated 18-4-1991:
“This is to certify that Mr. Vikas Baheti was initially seen at our Institute on 21st November, 1991 and was diagnosed to have third nerve palsy with retrobulbar optic neuritis in the left eye. He has a visual acuity of 20/20 in the right eye and the left eye is completely blind.”
6. It is in the evidence that he was treated in NIMS for long as disclosed in Exs.A15 to A19. PW3 the doctor has stated that the claimant has lost complete vision of the left eye and disfigurement of the face is there and the disability is 100%. In so far as the fracture to the mandible bone and the fracture to maxilla bone and fracture to the frontal bone, there is no material either regarding the disability or non-curability. However, PW1, the mother of the claimant has stated that the injuries could not be healed up and it took lot of time, the claimant has lost his left eye vision fully etc. Therefore, barring the complete loss of left eye vision as a permanent disability, there is no evidence regarding the disability due to any other fracture and it must be presumed that all of them have been healed. In so far as the disability due to the injury to the left eye, there is no doubt that it is 100%.
7. Undisputably, the claimant must have suffered pain, shock and loss of amenities of life. The manner in which the accident had occurred wherein two vehicles dented against each other with lot of impact and the consequence leading to the injuries to the claimant was sufficient to put him under shock. Ex.A8 itself shows that the appellant was in shock and therefore fluid etc. was given. The pain which he has undergone due to such injuries to the head, to the face and the eye need not be specially emphasised. The treatment for the fracture of the mandible bone and maxilla bone should naturally put him into inconvenience and uncomfort in using the movement etc. and there was also loosening of the tooth. It must have continued at least 3 to 4 months. In so far as the head injury is concerned, the anguish and suffering
of the victim need not be specially explained. The injury to the head always affects him in the sense that the feeling seeps down from the head to the heart about the displeasure, discomfort and dis-orientation. In so far as the eye is concerned, being a very sensitive organ and an important organ too, not only it affects the vision due to the injury but also affects the whole existence of an individual. The loss of eye sight may almost amount to loss of life. In so far as the eye is concerned, no doubt the injury might have been cured but not the original sight was brought back regarding the vision. The claimant ought to suffer the mental pain and social disability apart from the physical disability. Therefore, Rs.20,000/- deserves to be awarded for shock, pain and loss of amenities of life.
8. Normally, for head injury leading to fracture without any disability or with temporary disability Rs.10,000/- to Rs.20,000/ – should be awarded. In this case the injury having further consequence, Rs.20,000/-deserves to be awarded.
9. Regarding the fracture to the mandible and maxilla bones without leaving any permanent disability but with temporary disability, Rs. 10,000/- each should be awarded. Accordingly, a total sum of Rs.20,000/-deserves to be awarded.
10. As regards the injury to the left eye leading to permanent disability which is estimated at 100%, the learned advocate for the appellant is well armed with many identical precedents. In Ramaramulu ‘s case (supra) for the loss of complete vision of one eye resulting in its blindness, Rs.35,000/- was awarded towards the general damages or non-pecuniary compensation in relation to an accident occurred on 5-12-1988 which is almost nearer to the date of the present accident. In Deepak Sanga ‘s case (supra) for loss of vision to the right eye, Rs.37,500/-was awarded (which must be equated to general damages for the injury and the disability). In Pareshbhai v. Maharastra State Road Transport Corporation (supra) for an eye injury with 50% permanent
disability, Rs.5,000/- was awarded for pain and agony and as a whole Rs. 1,05,000/- was awarded towards the general damages. Therefore, the general damages for the loss of an eye or permanent loss of vision of eye should be between Rs.30,000/- to Rs.50,000/-. On assessment of the totality of the circumstances, Rs.35,000/- deserves to be awarded for the injury and the permanent disability to the left eye.
11. The mother of the claimant PW1 did not speak as to how she spent for medical expenses of her son. However, the appellant-claimant has depended upon Exs. A15 to A24, the receipts showing the medical expenses, totalling to Rs.17,042/- (Rounded off to Rs.17,000/-). For such treatment so much of expenses cannot be exaggerated or be excessive. The amount of Rs.17,000/- should be awarded.
12. The claimant who was a student at the time of accident was aged 15 years. We are to assess the loss of earning capacity and loss of earnings. The loss of earning capacity has become part of permanent disability and the amount awarded as above might take care of it. Future loss of earning is a hypothetical calculation in the absence of Ihe claimant having an income at that age. His potential income can also be considered. He was a student in 8th Standard. We have no detailed materials to know his capacity or future prospects. But a young boy with good opportunity in education and life was bound to come up. He is the son of a doctor. It can be judicially noticed that in India the children are persuaded normally to continue the family profession. As having ready establishment, support, back ground and the atmosphere, his becoming a doctor in his life may not be strange. The income of a doctor is difficult to assess. It may be anything. His potential income cannot be less than Rs.2,000/-to Rs.3,000/- per mensem in any manner calculated. Even at the worst, taking the future uncertainties into consideration, atleast Rs. 1,500/- per month would be the net income or contribution to his asset which shall be Rs.18,000/- per annum and adopting the
multiplier method, adopting the multiplier 16, the amount would come to Rs.2,88,000/-. The loss of one eye is 100% in so far as the vision of one eye is concerned. But, it cannot be the loss of the whole system. There are many faculties in human being which can function in the absence of any of them. The mitigating circumstances are the supplementing of the function of other organs including one good eye. The vision for a student and a person persuing intellectual process is so important as that it may impair the whole life. Therefore, loss of one eye is the loss of 50% of the human existence for such a person. There is no medical evidence to show that the claimant would be crippled for the loss of one eye. Therefore, the loss of future income as above should be reduced to Rs. 1,44,0007-in the normal sense. But the faculties of a human being will not rest with the eye only. It is popularly stated that there is inner eye also and the brain is the best eye for any faculty to enforce. There are many functions in the human body which can be performed without an eye. The functional employment of an eye is for the vision and not always for actual function. The income of an individual need not always be depended on eye only as many persons with both the eyes is tact may not be able to do anything. Fortunately, the brain of the claimant is still in tact and alright. Therefore, taking the system as a whole and the eyes as one third and one eye as one sixth, the total loss can be further computed down to one sixth of Rs.2,88,000/-instead of 50% which comes to Rs.48,000/-. If we reduce it by 50% for the loss of one eye, it will come to Rs.24,000/-. Therefore, as a whole Rs.30,000/- should be awarded towards the future loss of earnings.
13. A young boy having the future life both pleasures and pains, is bound to face social disability due to loss of vision in one eye which may also make him disfigure in the true sense he will suffer loss of prospects of marriage which is also one of the items of compensatioa Rs.10,000/- should be awarded under this item. No other item of compensation can be awarded.
14. Thus, the appellant-claimant would be entitled to the following amounts of compensation :
Sl. No.
Item
Amount awarded
Rs.
1.
Shock, pain and loss of amenities of life
20,00000
2.
For head injury leading to fracture without any disability or with temporary disability.
20,00000
3.
For fracture to the mandible and
and maxilla bones without leaving
any permanent disability but with
temporary disability.
20,00000
(Rs.10,000 for each injury i.e.. Rs. 10,000 x 2 = Rs.20,000/-)
4.
For injury to the left eye leading
to permanent disability
35,00000
5.
Medical expenses
17,000-00
6.
Future loss of earnings by applying multiplier method
30,00000
7.
For disfigurement due to loss of
one eye, loss of prospects of marriage
10,000-00
Total amount of compensation awarded :
1,52,00000
15. The appellant-claimant therefore entitled to Rs. 1,52,000/- which is very nearer to the claim and that must be allowed.
CMA.nO. 267 of 1992:
16. This is a fatal accident case. The claimants are the wife and children and parents of the deceased Dr. Bhagwatdas Baheti who died in the accident. He was aged 45 years. He was a qualified doctor with additional qualification in Ayurvedic Medicine, faculty member and a fellow of certain institutes and highly acclaimed in society. Plenty of documentary evidence is produced supporting the case. The claimants except the parents of the deceased, the other claimants are obviously younger than the deceased. The rule is to take the age of the deceased and the youngest among the claimants to maintain the balance ultimately
to be adjusted by apportionment. The father of the deceased as PW1 testified that the deceased was able to contribute Rs.5,000/-per month towards The family expenses. The total claim is thus made at Rs.6,65,000/-. The Tribunal took Rs.1,000/- per month as contribution of the deceased to the family, adopted a multiplier of 10 and fixed Rs. 1,20,000/- towards the loss of dependency or loss of contribution, added Rs.15,000/-towards non-pecuniary damages and Rs. 5,000/ – towards loss of consortium and thus totalled it to Rs. 1,40,000/-.
17. Smt. Saraswathi, learned Counsel for the appellant has contended that the deceased who was an acclaimed doctor having very good practice and income, his contribution fairly stated by his father PW1 at Rs.5,000/- per mensem was a minimal loss to the family on the death of the deceased and that should have been taken into consideration by the Tribunal for fixing the loss of dependency to the claimants. Regarding the multiplier also, it is her contention that 10 adopted by the Tribunal is not correct and it should be more than that. Mr. Srinivasarao, the learned Counsel for the Insurance Company has pointed out that the Tribunal has correctly assessed the compensation by fixing appropriate contribution to the family based on the evidence and adopting a correct multiplier.
18. Notwithstanding the learning and the advancement in his career as a doctor, the declared gross income of the deceased for the purpose of income tax as per the return filed by him on 24-8-1989 for the year ending 31-8-1989 which must be for the period of 1988-89, is Rs.38,210/-and that is the only basis on which the loss of dependency or contribution of the deceased to his family can be arrived at. If that is taken into consideration, Rs.3,184/- should be his monthly income, deducting one third i.e. Rs.1,061/- towards his personal expenses, his contribution to the family would beRs.2,123/- which is rounded off to Rs-2,000/- per month or Rs.24,000/- per
annum. Therefore, the Tribunal was not correct in fixing Rs. 1,000/- per month as the contribution of the deceased to the family. Therefore, the multiplicand is Rs.24,000/-. For the age of 45 years, the multiplier should be 11 and not 10. Therefore, with the multiplicand Rs.24,000/- and with the multiplier 11, the loss of dependency of the family comes to Rs.2,64,000/-, adding a conventional sum of Rs.15,000/- towards loss of expectation of life or future loss of happiness and Rs.15,000/- towards consortium to the claimant No. 1, the wife of the deceased and Rs.5,000/- towards the incidental expenses to cover the funeral expenses and other incidental expenses, the total amount should be Rs.2,99,000/-which is rounded of Rs. 3,00,000/-. Thus, the amount awarded by the Tribunal is not adequate which requires enhancement and modification.
19. In the result, both the appeals are allowed. The awards of the Tribunal are modified as fellow’s:
C.M.A.No.305 of 1992 ; The appellant-claimant in this appeal is entitled to recover a sum of Rs. 1,52,000/- with costs and simple interest at the rate of 12% per annum from the date of the petition till the date of the payment.
C.M.A.NO. 267 of 1992: The appellants-claimants in this appeal shall be entitled to recover a sum of Rs.3,00,000/- with costs and simple interest at the rate of 12% per annum from the date of the petition till payment.
20. If any amount is paid in the above cases, that amounts shall be deducted. The deposit of the amounts by the respondents shall be subject to the guidelines issued by the Hon’ble Supreme Court in Susamma Thomas case.