BASAPPA S/O SANGANABASAPPA BAHVIKATTIversusT. RAMESH S/O TANGAVELU AND ANR.

                        [2014] 12 S.C.R. 1132


A        BASAPPA S/O SANGANABASAPPA BAHVIKATTI
                                   v.
             T. RAMESH S/O TANGAVELU AND ANR.
                  (Civil Appeal No. 9393 of 2014)

                        OCTOBER 10, 2014
B
            [J. CHELAMESWAR AND A.K. SIKRI, JJ.]

         Motor Vehicle Act, 1988 - Accident claim - Permanent
    disability - Loss of earning capacity - Assessment of -
C   Appellant sustained serious injuries due to rash and negligent
    driving of respondent No. 1 driver - Tribunal awarded
    compensation of Rs. 93, 800 with 6% interest - High Court
    enhanced compensation to Rs. 2,59,000 - On appeal, held:
    Appellant was working as Goundi i.e. at the building
D   construction sites - Such work required good health and
    extreme fitness as it was a strenuous task which involved lot
    of physical activities - Appellant suffered permanent disability
    of 58% to the whole body and was not capable of doing heavy
    work - He was even unable to walk and stand for a long time
E   - Hence, his functional disability to be taken at 85% -
    Applying formula contained in Note (5) of the Second
    Schedule to the Act, loss of future income would work out to
    Rs.5,35,5001- - Similarly, for pain and suffering, amount of
    Rs.25,0001- awarded by High Court increased to Rs.60,0001-
F   - Appellant to get interest @ 9% per annum from the date
    of claim petition till payment - Total compensation payable
    to appellant coming to Rs. 6, 72, 0001- as against
    Rs.2,59,5001-, awarded by High Court.

      Raj Kumar v. Ajay Kumar & Another (2011) 1 SCC 343:
G 2010 (13) SCR 179; Syed Sadiq and others v. Divisional
  Manager, United India Insurance Company Limited (2014) 2
  SCC 735; Municipal Corporation of Delhi, Delhi v. Uphaar
  Tragedy Victims Association and others, (2011) 14 SCC 481:
  2011 (16) SCR 1 - relied on.
H                            1132
BASAPPA S/O SANGANABASAPPA BAHVIKATTI v. 1133
        T. RAMESH S/O TANGAVELU
                      Case Law Reference:                           A
    2010 (13) SCR 179          relied on              Para 12
    (2014) 2 sec 735           relied on              Para 13
    2011 (16) SCR 1            relied on              Para 17
                                                                    B
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9393 of 2014.

    From the Judgment and Order dated 11-03-2013 of the
High Court of Karnataka Circuit Bench at Dharwad in M.F.A.          c
No. 21150 of 2011.                 ·

    Sharannagouda Patil, Supreeta Patil (for S. Legal
Associates) for the Appellant.

    Abhinav Mukerji for the Respondents.                            D

    The following Order of the Court was delivered

                          ORDER

     1. Leave granted.                                              E

     2. Unwrapping the events, which have led to the filing of
the instant appeal, depict the following scenario:

     On 23.09.2007, the .appellant after completion of his
Goundi (working at building construction sites) work, was           F
returning from Navanagar, Karnataka on his Motorcycle bearing
Reg. No. KA 29/J - 731. He was driving slowly and cautiously
on the left side of the road. At that time a bus bearing Reg. No.
KA 29/6967 came from opposite direction in a high speed and
in rash and negligent manner as to endanger human life,             G
dashed into the Motorcycle of the appellant. This happened near
the Simikeri Bypass Cross on Gaddanakeri Hubli Road at
about 20:30 hours. Due to the said accident, the appellant
sustained grievous injuries on his head and all over his body.
He was immediately admitted to District Government Hospital,        H
    1134    SUPREME COURT REPORTS               [2014] 12 S.C.R.


A Bagalkot where he got preliminary treatment, whereafter he was
  shifted to the S.H.K. Hospital, Bagalkot for further treatment.
  After getting some treatment in the said hospital, the appellant
  had to be shifted again to Dr. Kerudi Hospital, Bagalkot
  because of grievous head injuries and there he was treated by
B Dr. Mohan Wamaske, Neurologist. He underwent a surgical
  operation in the said hospital where he remained as indoor
  patient for 10 days. Notwithstanding this treatment, the
  appellant could not be completely cured and has suffered
  permanent disability of 58% to the whole body.
c      3. We may record ·at this stage that the aforesaid facts
  pertaining to accident caused due to rash and negligent driving
  of the bus and the nature and extent of injuries suffered by the
  appellant stand established before the Motor Accident Claims
  Tribunal (for short 'MACT'). It would also be worthwhile to
D mention that against the Driver of the Bus, a case under·
  Sections 279 and 334 of the Indian Penal Code was also
  registered at the Kaladgi Police Station. After completing the
  investigation, even the chargesheet has been· filed against the
  Driver, though the outcome of the said case is not known from
E the records.

        4. Being a victim of the said accident resulting into
  aforesaid serious injuries and incapacitation of his body, the
  appellant filed the claim petition under Section 166 of Motor
F Vehicle Act claiming compensation of Rs.15,00,000/-. This
  petition filed before the MACT at Bagalkot was registered as
  M.V.C. No.296/2002. In this petition, the appellant had
  impleade.d responqent No.1 herein, who was the driver of the
  vehicle and respondent No.2, Manager, Reliance General
G Insurance Co. Ltd., which had insured the offending vehicle. The
  appellant examined himself as PW-1 and narrated the details
  of the incident. Another significant and material witness
  produced by him was Dr. Sanjeev S Kalasoor (PW-3), who
  deposed about the injuries suffered by the appellant and
H produced copy of Disability Certificate dated 11.02.2009 and
BASAPPA S/O SANGANABASAPPA BAHVIKATII v. 1135
        T. RAMESH S/O TANGAVELU
other medical records. The respondents also led their evidence. A
Arguments were heard. The said case culminated in the
decision dated 25.11.2010 that was rendered by the MACT
recording a categorical and definite finding to the effect that the
accident in question was caused due to the rash and negligent
act of the driver. The Tribunal, thus, allowed the petition but B
awarded a compensation of Rs.93,800/- with interest at the
rate of 6% p.a. from the date of accident till the date of
realisation. Different heads under which the said compensation
was awarded, thereby arriving at a aforesaid figure of
Rs.93,800/- are as under:                                           c
                                                  Amount (Rs.)
     1.       Pain and sufferings                  10,000/-

    2.        Medical expenses                     35,000/-        D
    3.        Loss of future income                46,800/-
    4.        Loss of amenities, diet,             2,000/-
              nutrition and attendant
              charges                                              E

                              Total                93,800/-

    5. The appellant was not satisfied with the poor amount of
compensation and, thus, approached the High Court of
Karnataka, Dharwad Bench by filing appeal i.e. MFA No.             F
21150/2011 (MV). The High Court has enhanced the
compensation to Rs.2,59,500/- vide judgment dated
11.03.2013. The breakup of compensation awarded by the
High Court under different heads is as follows:
                                                                   G
                                                  Amount (Rs.)
    1.        Pain and suffering                   25,000/-
    2.        Incidental expenses                  10,000/-
                                                                   H
    1136     SUPREME COURT REPORTS               (2014] 12 S.C.R.


A       3.        Medical expenses                     35,000/-
        4.        Loss of income during                12,000/-
                  laid up period

        5.        Loss of amenities                    20,000/-
B
        6.        Loss of future income                1,57,500/~

                                  Total                2,59,500/-

       6. Still not satisfied, the present appeal has been preferred
C by the appellant in this Court for enhancement of compensation.

        7. From the perusal of the judgment of the High Court, it
  gets revealed that the Tribunal as well as the High Court has
  accepted the injuries certificate produced by the doctor. On
D going through this Certificate along with Disability Certificate,
  CT Scan Reports, Medical Bills and Case-Sheets etc., which
  were produced by the appellant on record, the High Court has
  recorded that the appellant has sustained grievous injuries in
  his head and all over the face. As per the testimony of the
E doctor (PW-3), CT Brain reveals acute subdural left front
  temporal hemorrhagic with midline shift and mass effect. The
  doctor examined the appellant as late as on 11.02.2009 and
  found that the appellant's medical condition of on and off
  headache, giddiness and vertigo impaired memory, altered
F speed and imbalance while walking continuous to persist. He
  had operative scar left side of scalp (head) motor aphasia and
  positive Romberg's. The Courts below have also accepted the
  fact that the appellant is suffering from permanent disability of
  58% to the whole body.

G        8. Having regard to the aforesaid injuries suffered by the
    appellant in the said accident and the number of days for which
    the appellant was treated and underwent physical and mental
    pain and suffering, the High Court enhanced the compensation
    under this head from Rs.10,000/-, as awarded by the Tribunal,
H
   BASAPPA S/O SANGANABASAPPA BAHVIKATII v. 1137
           T. RAMESH S/O TANGAVELU
  to Rs.25,000/-. In so far as reimbursement of medical expenses      A
  is concerned, it is maintained at Rs.35,000/- inasmuch as that
  is the actual amount spent by the appellant, which is evident
  from the medical bills produced by him. However, considering
  that the appellant was indoor patient in a private hospital for
  more than 10 days, Rs.10,000/- is awarded for incidental            8
  expenses such as conveyance, nourishment and attendant
  charges. As regards loss of income during laid up period, the
  amount of Rs.12,000/- has been awarded on the ground that
  the appellant had been earning Rs.125/- per day i.e. Rs.3, 750/
  - per month and as he was under treatment and rest for about        C
  three months, loss of income was to the tune of Rs.12,000/-.

       9. In so far as compensation in respect of loss of amenities
  is concerned, the High Court has enhanced the compensation
  from Rs.2,000/- to Rs.20,000/- considering the disability
  reflected in the evidence produced by the appellant, as             D
  according to the High Court, the appellant will have to undergo
  discomfort and unhappiness in his future life because of the said
  accident.

       10. Major head of compensation is loss of future income.       E
- Here, the High Court has observed that though the doctor has
  assessed permanent disability at 58% to the whole body, it may
  be an exaggeration and justice would be met if functional
  disability is taken at 25%. On this basis, multiplier of 14 is
  applied, keeping in view of. the age of the appellant, and loss
                                                                      F
  of future income is assessed at Rs.1,57,500/- and this figure
  is worked out by applying the following formula:

       Rs.3,750/- x 25% x 12 x 14

       11. The learned counsel for the appellant made grievance       G
  only on three counts. In the first instance, he pleaded for
  increasing the amount of physical and mental pain and suffering.
  His vehement submission was that loss of future income is not
  assessed appropriately by the High Court.· He pointed out that
  when the permanent disability was 58%, for the purposes of          H
    1138     SUPREME COURT REPORTS                [2014] 12 S.C.R.


A calculating the loss of future income, it had to be taken at 100%.
  Another plea of the appellant was that interest should have been
  granted at the rate of 9% instead of 6%. We find force in the
  submissions of the learned counsel on all these aspects.
        12. We are of the opinion that once the High Court had
8 itself accepted the evidence of PW-3 the doctor who had
  treated the appellant and issued the Disability Certificate as
  credible and reliable, there was no reason to treat the
  'functional disability' at 25%. The High Court should have acted
  upon the said Disability Certificate taking the permanent
C disability at 58% which is to the whole body. It is to be borne
  in mind that before the incident. the appellant was hail and
  healthy who enjoyed robust health as it has emerged from the
  record that he was working as Goundi i.e. at the building
  construction sites. Because of the permanent disability of the
D nature described above, PW-3 has very categorically stated in
  his testimony that the appellant is unable to walk and stand for
  a long time and is not capable of doing heavy work. It is also
  testified that he is suffering generc:1I weakness as well. This
  would lead us to the conciusion that the appellant suffers 85%
E functional disability. On arriving at this conclusion, we are
  bolstered by the judgment of this Court in the case of Raj
  Kumarv. Ajay Kumar& Another, (2011) 1SCC343 wherein
  this aspect is lucidly explained with impeccable erudition, as
  is discerned from the following passages of the said judgment,
F reading whereof would amply demonstrate that the nuances are
  so exhaustively dealt with, leaving nc1 scope for restating, much
  less refuting or refining:
        8. Disability refers to any restriction or lack of ability to
        perform an activity in the manrn!r considered normal for a
G       human being. Permanent disability refers to the residuary
        incapacity or loss of use of some part of the body, found
        existing at the end of the period of treatment and
        recuperation, after a'chieving the maximum bodily
        improvement or recovery which is likely to remain for the
H
BASAPPA. S/O SANGANABASAPPA BAHVIKATTI v. 1139
         T. RAMESH S/O TANGAVELU

   remainder life of the injured. Temporary disability refers to      A
 · the incapacity or loss of use of some part of the body on
   account of the injury, which will cease to exist at the end
   of the period of treatment and recuperation. Permanent
   disability can be either partial or total. Partial permanent
   disability refers to a person's inability to perform all the       s
   duties and bodily functions that he could perform before
   the accident. though he is able to perform some of th~m
   and is stilt able to engage in some gainful activity. Total
   permanent disability refers to a person's inability to
   perform any avocation or employment related activities as          c
   a result of the accident. The permanent disabilities that
   may arise from motor accident injuries, are of a much wider
   range when compared to the physical disabilities which are
   enumerated in the Persons with Disabilities (Equal
   Opportunities, Protection .of Rights and Full Participation)       D
   Act, 1995 ("the Disabilitie$ Act", for short). But if any of the
   disabilities enumerated in Section 2(1) of the Disabilities
   Act are the result of injuries sustained in a motor accident,
   they can be permanent disabilities for the purpose of
   claiming compensation.
                                                                      E
                            xxx
  10. Where the claimant suffers a permanent disability as
  a result of injuries, the assessment of compensation under
  the head of loss of future earnings would depend upon the           F
  effect and impact of such permanent disability on his
  earning capacity. The Tribunal should not mechanically
  apply the percentage of permanent disability as the
  percentage of economic loss or loss of earning capacity.
  In most of the cases, the percentage of economic loss, that         G
  is, the percentage of loss of earning capacity, arising from
  a permanent disability will be different from the percentage
  of permanent disability. Some Tribunals wrongly assume
  that in all cases, a particular extent (percentage) of
  permanent disability would result in a corresponding loss
                                                                      H
    1140   SUPREME COURT REPORTS                  [2014) 12 S.C.R.


A      of earning capacity, and consequently, if the evidence
       produced show 45% as the permanent disability, will hold
       that there is 45% loss ·of future earning capacity. In most
       of the cases, equating the E!xtent (percentage) of loss of
       earning capacity to the extent (percentage) of permanent
B      disability will result in award of either too low or too high a
       compensation.

       11. What requires to be assessed by the Tribunal is the
       effect of the permanent disability on the earning capacity
       of the injured; and after assessing the loss of earning
c      capacity in terms of a percentage of the income, it has to
       be quantified in terms of money, to arrive at the future loss
       of earnings (by applying the .standard multiplier method
       used to determine loss of dependency). We may however
       note that in some cases, on appreciation of evidence and
D      assessment, the Tribunal may find that the percentage of
       loss of earning capacity as a result of the permanent
       disability, is approximately th1~ same as the percentage of
       permanent disability in which case, of course, the Tribunal
       will adopt the said percentage for determination of
E      compensation. (See for example, the decisions of this
       Court in Arvind Kumar Mishra v. New India Assurance Co.
       Ltd., (2010) 10 SCC 254 ancl Yadava Kumar v. National
       Insurance Co. Ltd., (2010) 1D SCC 341)                    .

       12. Therefore, the Tribunal ha8 to first decide whether there
F
       is any permanent disability a11d, if so, the extent of such
       permanent disability. This means that the Tribunal should
       consider and decide· with refelrence to the evidence:

       (1) whether the disablement is. permanent or temporary;
G
       (i1) if the disablement is permanent, whether it is permanent
       total disablement or permanent partial disablement;

       (iii) if the disablement'percentage is expressed with
       reference to any specific limb, then the effect of such
H
BASAPPA S/O SANGANABASAPPA BAHVIKATTI v. 1141
        T. RAMESH S/O TANGAVELU
  disablement of the limb on the functioning of the entire          A
  body, that is, the permanent disability suffered by the
  person.

  If the Tribunal concludes that there is no permanent
  disability then there is no question of proceeding further
                                                                     8
  and determining the loss of future earning capacity. But if
  the Tribunal concludes that there is permanent disability
  then it will proceed to ascertain its extent. After the Tribunal ·
  ascertains the actual extent of permanent disability of the
  claimant based on the medical evidence, it has to
  determine whether such permanent disability has affected          c
  or will affect his earning capacity.

  13. Ascertainment of the effect of the permanent disability
  on t~e actual earning capacity involves three steps. The
  Tribunal has to first ascertain what activities the claimant      D
  could carry on in spite of the permanent disability and what
  he could not do as a result of the permanent disability (this
  is also relevant for awarding compensation under the head
  of loss of amenities of life). The second step is to ascertain
  his avocation, profession and nature of work before the           E
  accident, as also his age. The third step is to find out
  whether (1) the claimant is totally disabled from earning any
  kind of livelihood, or (it) whether in spite of the permanent
  disability, the claimant could still effectively carry on the
  activities and functions, which he was earlier carrying on,       F
  or (iii) whether he was prevented or restricted from
  discharging his previous activities and functions, but could
  carry on some other or lesser scale of activities and
  functions so that he continues to earn or can continue to
  earn his livelihood.
                                                                    G
   14. For example, if the left hand of a claimant is amputated,
   the permanent physical or functional disablement may be
   assessed around 60%. If the claimant was a driver or a
 · carpenter, the actual loss of earning capacity may virtually
   be hundred per cent, if he is neither able to drive or do        H
    1142   SUPREME COURT REPO'RTS                  [2014) 12 S.C.R.


A       carpentry. On the other hand, if the claimant-was a clerk
        in government service, the loss of his left hand may not
        result in loss of employment and he may still be continued
        as a clerk as he could perform his clerical functions; and
       in that event the loss of earning capacity will not be 100%
B       as in the case of a driver or carpenter, nor 60% which is
       the actual physical disability, but far less. In fact, there may
       not be any need to award any compensation under the
       head of "loss of future earnings', if the claimant continues
       in government service, though he may be awarded
       compensation under the head of loss of amenities as a
c      consequence of losing his hand. Sometimes the injured
       claimant may be continued in service, but may not be found
       suitable for discharging the duties attached to the post or
       job which he was earlier holding, on account of his
       disability, and m.ay therefore be shifted to some other
D
       suitable but lesser post with le::;ser emoluments, in which
       case there should be a limited award under the head of
       loss of future earning capacity, taking note of the reduced
       earning capacity.

E      19. We may now summarise the principles discussed
       above:

       (1) All injuries (or permanent disabilities arising from
       injuries), do not result in loss of earning capacity.
F      (ii) The percentage of permam~nt disability with reference
       to the whole body of a person, cannot be assumed to be
       the percentage of loss of earning capacity. To put it
       differently, the percentage of loss of earning capacity is not
       the same as the percentage of permanent disability
G      (except in a few cases, where the Tribunal on the basis of
       evidence, concludes that the percentage of loss of earning
       capacity is the same as the percentage of permanent
       disability).

H      (iii) The doctor who treated an injured claimant or who
BASAPPA S/O SANGANABASAPPA BAHVIKATII v. 1143
        T. RAMESH S/O TANGAVELU
     examined him subsequently to assess the extent of his          A
     permanent disability can give evidence only in regard to
     the extent of permanent disability. The loss of earning
     capacity is something that will have to be assessed by the
     Tribunal with reference to the evidence in entirety.
                                                                    B
     (iv) The same permanent disability may result in different
     percentages of loss of earning capacity in different
     persons, depending upon the nature of profession,
     occupation or job, age, education and other factors.

     13. The principle laid down in the aforesaid judgment is       c
recently followed in Syed Sadiq and others v. Divisional
Manager, United India Insurance Company Limited, (2014)
                                                                        /
2 SCC 735. After quoting paras 11 and 13 from Raj Kumar
(supra), the Court worked out the compensation treating the
disability at 85%, whereas the High Court had determined the        D
disability at 65%. Following discussion ensued in this behalf:

     "7. Further, the appellant claims that he was working as a
     vegetable vendor. It is true that a.vegetable vendor might
     not require mobility to the extent that he sells vegetables
                                                                    E
     at one place. However, the occupation of vegetable
     vending is not confined to selling vegetables from a
     particular location. It rather involves procuring vegetables
     from the wholesale market or the farmers and then selling
     it off in the retail market. This often involves selling
                                                                    F
     vegetables in the cart which requires 100% mobility. But
     even by conservative approach, if we presume that the
..   vegetable vending by the appellant claimant involved
     selling vegetables from one place, the claimant would
     require assistance with his mobility in bringing vegetables
     to the marketplace which otherwise would be extremely          G
     difficult for him with an amputated leg. We are required to
     be sensitive while dealing with manual labour cases where
     loss of limb is often equivalent to loss of livelihood. Yet,
     considering that the appellant claimant is still capable to
     fend for his livelihood once he is broug~t in the              H
    1144     SUPREME COURT REPORTS                [2014] 12 S.C.R.


A        marketplace, we determine the disability at 85% to
         determine the loss of income"

         14. Applying the aforesaid test to the facts of the present
  · case, as already pointed out above, the appellant was working
    as Goundi i.e. at the building construction sites. Such a work
8
    requires good health and extreme fitness as it is a strenuous
    task which involves lot of physical activities. The appellant has
    suffered permanent disability of :58% to the whole body. It has
    also come on record he suffers from general weakness and is
    not capable of doing heavy work. He is even unable to walk
C and stand for a long time. For this reason, we have already
    mentioned that his functional disability is to be taken at 85%
    as was done in Syed Sadiq and others (supra).

        15. For the purposes of calGulating the compensation, the
o formula contained in Note (5) c1f the Second Schedule to the
    Motor Vehicle Act, 1988 is to be applied which is as under:

        "5. Disability in non-fatal accidents. - The following
        compensation shall be payable in case of disability to the
        victim arising out of non-fatal accidents:
E
        Loss of income, if any, for actual period of disablement not
        exceeding fifty-two weeks.

        Plus either of the followin~1:
F       (a) In case of permanent total disablement the amount
        payable shall be arrived a.t by multiplying the annual loss
        of income by the multiplil3r applicable to the age on the
        date of determining the compensation, or

G       (b) In case of perman1:int partial disablement such
        percentage of compensation which would have been
        payable in the case of permanent total disablement as
        specified under Item (a) above.

        Injuries deemed to result in permanent total disablement/
H
BASAPPA S/O SANGANABASAPPA BAHVIKATTI                  v. 1145
        T. RAMESH S/O TANGAVELU
    permanent partial disablement and percentage of loss of A
   .earning capacity shall be as per Schedule I under the
    Workmen's Compensation Act, 1923."

     16. Applying the aforesaid formula, loss of future income
would work out to Rs.5,35,500/- (Rs.3,750/- x 85% x 12 x 14).
                                                               8
Similarly, for pain and suffering, the amount of Rs.25,000/-
awarded by the High Court appears to be on lower side. We
increase this amount to Rs.60,000/-.

      17. We are also of the view that the appellant should get
interest at the rate of 9% per annum from the d.ate of claim C
petition till the payment having regard to the ratio of the
judgment in the case of Municipal Corporation of Delhi, Delhi
v. Uphaar Tragedy Victims Association and others, (2011)
 14 sec 481.
                                                                  D
      18. In this manner, the total compensation which would be
 payable· to the appellant comes to Rs.6,72,000/- as against
 Rs.2,59,500/-, awarded by the High Court. We enhance the
 compensation accordingly with the direction that the appellant
 shall also be entitled to intere~t at the rate of 9% per annum E
 on the aforesaid amount from the date of claim petition till the
 date of paym~nt.

    19. Appeal is allowed in the aforesaid manner with cost
of Rs.25,000/-.
                                                                    F
Bibhuti Bhushan Bose                              Appeal allowed.