PR. COMMISSIONER OF vs. M/S NOVO NORDISK INDIA

3 AND

S/o Sri, Shivarudrappa H.S.,

R/at No.252, F-3, Sri. Rama Road,

Khille Mohalla, Agrahara,

Mysore-570 004.

(By Sri. A.N.Krishnaswamy, Adv.for R2: Vide order dated: 21.10.2019 Notice to R1 is dispensed with)

This MFA Crob. is filed under Order 41 Rule 22 of CPC, against the judgment and award dated:29.01.2018 passed on MVC No.446/2015 on the file of the Principal Judge, Court of Small Causes, Senior Civil Judge, MACT, Mysuru, partly allowing the claim petition for compensation and seeking enhancement of compensation.

This MFA & MFA Crob. Coming on for admission, through video conference, this day, H.T. Narendra Prasad J., delivered the following:

4 JUDGMENT MFA 4149/2018 is filed by the Insurance Company and MFA CROB 133/2018 is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) being aggrieved by the judgment dated 29.1.2018 passed by the Motor Accident Claims Tribunal.

5 accident, the claimant sustained grievous injuries and was hospitalized.

6 accident was not due to negligent driving of the car by its driver. The driver had valid driving licence at the time of the accident. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent No.2 Insurance Company has pleaded that the driver of the car was not having valid driving licence as on the date of the accident. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, sought for dismissal of the petition.

7 2 and got exhibited documents namely Ex.P1 to Ex.P30. On behalf of the respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.24,08,500/- along with interest at the rate of 8% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the appeal and cross appeal have been filed.

8 record. There is no loss of income caused to the claimant due to the disability sustained by him in the accident. It is very clear from the evidence of PW-2, Dr.Nagabhushana that the claimant was recovering well from the injuries and can do his work as Chartered Accountant. Hence, there is no loss of income and the claimant is not entitled for compensation under the said head. But the Tribunal is erred in granting compensation of Rs.17,01,000/- under the said head and the same is unsustainable. In support of his contention, he has relied upon the decisions of the Hon’ble Apex Court in the case of Rajkumar –v- Ajay Kumar and another reported in (2011) 1 SCC 343 and in the case of Sandeep Khanuja –v- Atul Dande & Another reported in (2017) 3 SCC 351. Secondly, as per the evidence of the doctor, the claimant has suffered permanent disability of 16% to

9 each limb and 20% permanent physical impairment of spine. The Tribunal is not justified in taking the whole body disability at 35%, which is on the higher side. Thirdly, the compensation awarded by the Tribunal under other heads are on the higher side. Hence, he sought for allowing the appeal filed by the Insurance Company and dismiss the cross appeal filed by the claimant.

10 remuneration of Rs.1,44,000/- p.a. As per wound certificate Ex.P-4, the claimant has sustained comminuted fracture of both bones of left leg, fracture patella right, compression fracture spine D9 vertebra and left temporal bone. Due to the disability suffered by the claimant in the accident, he cannot do his regular work and also continue working as Chartered Accountant, he cannot move freely so as to appear before the concerned authorities or visit his clients as and when required without the help of the assistants. Hence, the monthly income assessed by the Tribunal and compensation awarded under the head of 'loss of future income' is on the lower side. Secondly, PW-2, doctor has stated in his evidence that the claimant has suffered permanent disability of 16% to each limb and 20% permanent physical impairment of spine. But the Tribunal has erred in taking the whole body disability at only 35%.

11 Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 35 days and thereafter has taken bed rest for three months. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment and he has to suffer with said disability throughout his life. Considering the same, the compensation granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings', 'loss of income during laid-up period' and other heads are on the lower side. Hence, he sought for allowing the cross appeal filed by the claimant and dismiss the appeal filed by the Insurance Company.

12 9. It is not in dispute that the accident has occurred due to rash and negligent driving of the offending vehicle by its driver. As per wound certificate Ex.P-4, the claimant has sustained comminuted fracture of both bones of left leg, fracture patella right, compression fracture spine D9 vertebra and left temporal bone. PW.2, Orthopedic Surgeon who treated the petitioner in Kamakshi Hospital, Mysuru states that when he examined the claimant on 27.06.2017 for the purpose of assessment of physical disability he find that claimant has recovered well, able to walk with a cane without brace but he has limitations of movements of both knee joint from 0-90 degree. Further states that loss of movement of knee-normal are 0-125 degree, patient- 0-19 degree, loss of arc-35degree, loss of percentage- 28%, loss for the lower limb movements components- 9.9% degree and pain moderately with function 6.9%,

13 accordingly he has opined that claimant has got permanent disability of 16% of each limb and permanent physical impairment of spine at 20%. In order to support his assessment he got marked Ex.19 to 27 case sheets, OP records, X-ray films, CT-Scan and MRI films. In his cross-examination though denied the suggestion that Neurosurgeon has to assess disability pertaining to Spinal Card, but admits that the assessment of lower limb has been wrongly determined excess at 0.9% instead of 0.6% and claimant being a Chartered Accountant, can do his work by sitting on a chair, without braces. Again denied the suggestion that he is not competent person to assess the disability towards Spinal Card shown in Ex.P19 as compression of D-9 vertebra. The claimant in his evidence has stated that he is a self employee working as Chartered Accountant but due to the accident, he is unable to continue his

14 work and attend to his regular clients during the year end and as a result of which, he has suffered immense financial losses. The Hon’ble Apex Court in the case of Rajkumar (supra), in paragraphs 11, 12, 13, 14 and 19 has observed as follows and the same is extracted hereunder: “11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns 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 assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. -

15 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) 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 disablement of the limb on the functioning of the entire 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 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 or will affect his earning capacity. 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the

16 permanent disability and what he could not do as a result of the permanent ability (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 accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, 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. 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 percent, if he is neither able to drive or do 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% as in the case of a driver or

17 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 consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser 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. XXXXXX 19. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent 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 (except in a few cases, where the Tribunal on the

18 basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured- claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard 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. (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.” Further, the Hon’ble Apex Court in the case of Sandeep Khanuja (supra) in paragraph 11 has observed as follows and same is extracted hereunder: “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 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

19 multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.” The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, the MACT approached the issue in right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of the MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is not impaired. Such a conclusion was justified if the appellant was in the employment where job requirement could be to do sitting/table work and receive monthly salary for the said work. An important feature and aspect which is ignored by the MACT is that the appellant is a professional Chartered Accountant. To do

20 this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is not only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did not go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of compensation with the adoption of multiplier method, as held by this Court in Yadava Kumar v. Divisional Manager, National Insurance Company Limited & Anr.[6]: “9. We do not intend to review in

21 detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.”

Therefore, considering the evidences of PW-1, claimant and PW-2, Dr.Nagabhushana and considering the wound certificate, case sheets, X-rays, discharge summary and the decisions of the Hon’ble Apex Court refereed by the learned counsel for the Insurance Company, the whole disability of the claimant can be assessed at 25% instead of 35% assessed by the Tribunal.

22 particularly the Income Tax Returns filed by the claimant, has rightly assessed the monthly income of the claimant at Rs.45,000/-. The claimant is aged about 59 years at the time of the accident and multiplier applicable to his age group is ‘9’. Thus, the claimant is entitled to Rs.12,15,000/- (Rs.45,000*12*9*25%) on account of 'loss of future income' as against Rs.17,01,000/- awarded by the Tribunal. The claimant was treated as inpatient for more than 35 days in the hospital and thereafter, has received further treatment. Hence, we are inclined to enhance the sum awarded under the head of ‘conveyance charges’ from Rs.20,000/- to Rs.40,000/-. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to

23 suffer with the disability stated by the doctor throughout his life. Considering the same, we are inclined to award a sum of Rs.50,000/- under the head of 'loss of amenities'. Further, we are inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.30,000/- to Rs.60,000/-. The compensation awarded by the Tribunal under other heads remains unaltered.

Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Pain and sufferings 30,000 60,000 Medical expenses 4,25,000 4,25,000 Conveyance charges 20,000 40,000 Loss of income during laid up period 1,87,500 1,87,500 Loss of amenities 0 50,000 Loss of future income 17,01,000 12,15,000 Future medical expenses 25,000 25,000 Towards damages 20,000 20,000 Total 24,08,500 20,22,500

24 The claimant is entitled to a total compensation of Rs.20,22,500/-. The Insurance Company is directed to deposit the compensation amount along with interest at the rate of 8% p.a. from the date of petition till payment is made within a period of four weeks from the date of receipt of copy of this judgment. To the aforesaid extent, the judgment of the Claims Tribunal is modified. The amount in deposit is ordered to be transferred to the Tribunal. Accordingly, the appeal and cross objection are disposed of.

Sd/- JUDGE

Sd/- JUDGE DM/-