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Accident claim – M.V.Act – how to determine Functional Disability – Driver who lost his leg and hand with fractures and who is not able to driver even a two wheeler and in the absence of contributory negligence – functional disability was fixed at 35% by doctor – should be calculated on the net income per annum x multiplier along with medical reimbursement , extra nourishment and vehicle damage etc., he will not be entitled to any other compensation on account of physical disability or loss of earning capacity, etc. = G. DHANASEKAR … APPELLANT (S) VERSUS M.D., METROPOLITAN TRANSPORT CORPORATION LIMITED … RESPONDENT (S) = 2014 (Feb. Part) judis.nic.in/supremecourt/filename=41219

Accident claim – M.V.Act – how to determine Functional Disability – Driver who lost his leg and hand with fractures and who is not able to driver even a two wheeler and in the absence of contributory negligence – functional disability was fixed at 35% by doctor –  should be calculated on the net income per annum x multiplier along with medical reimbursement , extra nourishment and vehicle damage etc., he will not be entitled to any other compensation on  account  of  physical  disability  or  loss  of earning capacity,  etc.   = 

 

Whether an  accident  victim  is  entitled  to  get  compensation  for

      functional disability?

No contributory Negligence =

    “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 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.

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.

functional disability

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  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. |HEADS                                       |CALCULATION   |

|No. |                                            |              |

|(i) |Annual Income = Rs.10,000 x 12 =            |Rs.1,20,000/- |

|(ii)|After deducting 1/3rd of the total income   |Rs.80,000/-   |

|    |for personal expenses, the balance will be =|              |

|    |[Rs.1,20,000/- – Rs.40,000/-] =             |              |

|(iii|Add 30% towards increase in future income,  |Rs.1,04,000/- |

|)   |as per Sarla Verma and Rajesh and Others    |              |

|    |cases (supra) =                             |              |

|(iv)|Compensation after multiplier of 13 is      |Rs.13,52,000/-|

|    |applied = [Rs.1,04,000/- x 13] =            |              |

|(v) |Applying the 35% functional disability, the |Rs.4,73,200/- |

|    |appellant will be entitled to the           |              |

|    |compensation of 35% of Rs.13,52,000/- =     |              |

|(vi)|Reimbursement towards medical expenses =    |Rs.60,000/-   |

|(vii|Amount towards extra nourishment, etc.      |Rs.10,000/-   |

|)   |                                            |              |

|(vii|Damages to the vehicle (as awarded by the   |Rs.10,000/-   |

|i)  |High Court) =                               |              |

|(ix)|Amount towards actual loss of earning during|Rs.40,000/-   |

|    |the period of hospitalization and thereafter|              |

|    |during the period of rest =                 |              |

|(x) |Amount towards pain and sufferings =        |Rs.10,000/-   |

|(xi)|Amount towards expenses on attendant =      |Rs.10,000/-   |

|TOTAL COMPENSATION AWARDED                       |Rs.6,13,200/- |

|[(v)+(vi)+(vii)+(viii)+(ix)+(x)+(xi)]            |              |

 

 

  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.

 

2014 (Feb. Part) judis.nic.in/supremecourt/filename=41219

SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH

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 necessary to start with
the first principles. In Rajesh and Others v. Rajbir Singh and
Others[1], Master Mallikarjun v. Divisional Manager, The National
Insurance Company Limited[2] and in Rekha Jain v. National Insurance
Company Limited and Others[3], 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 Another[4],
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 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 Another[5].

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. 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 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 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 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 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.

 

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 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. |HEADS |CALCULATION |
|No. | | |
|(i) |Annual Income = Rs.10,000 x 12 = |Rs.1,20,000/- |
|(ii)|After deducting 1/3rd of the total income |Rs.80,000/- |
| |for personal expenses, the balance will be =| |
| |[Rs.1,20,000/- – Rs.40,000/-] = | |
|(iii|Add 30% towards increase in future income, |Rs.1,04,000/- |
|) |as per Sarla Verma and Rajesh and Others | |
| |cases (supra) = | |
|(iv)|Compensation after multiplier of 13 is |Rs.13,52,000/-|
| |applied = [Rs.1,04,000/- x 13] = | |
|(v) |Applying the 35% functional disability, the |Rs.4,73,200/- |
| |appellant will be entitled to the | |
| |compensation of 35% of Rs.13,52,000/- = | |
|(vi)|Reimbursement towards medical expenses = |Rs.60,000/- |
|(vii|Amount towards extra nourishment, etc. |Rs.10,000/- |
|) | | |
|(vii|Damages to the vehicle (as awarded by the |Rs.10,000/- |
|i) |High Court) = | |
|(ix)|Amount towards actual loss of earning during|Rs.40,000/- |
| |the period of hospitalization and thereafter| |
| |during the period of rest = | |
|(x) |Amount towards pain and sufferings = |Rs.10,000/- |
|(xi)|Amount towards expenses on attendant = |Rs.10,000/- |
|TOTAL COMPENSATION AWARDED |Rs.6,13,200/- |
|[(v)+(vi)+(vii)+(viii)+(ix)+(x)+(xi)] | |
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.

 

………..…………………….…..…………J.
(SUDHANSU JYOTI MUKHOPADHAYA)

…………………..…………………………J.
(KURIAN JOSEPH)
New Delhi;
February 12, 2014.
———————–
[1] (2013) 9 SCC 54
[2] 2013 (10) SCALE 668
[3] (2013) 8 SCC 389
[4] (2007) 2 SCC 349
[5] (2009) 6 SCC 121

———————–
9

 

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