G. DHANASEKARversusM.D. METROPOLITAN TRANSPORT CORPN. LTD.

                    [2014] 1 S.C.R. 1021


                     G. DHANASEKAR                               A
                              v.
    M.D., METROPOLITAN TRANSPORT CORPN. LTD.
          (Civil Appeal Nos. 2008-2009 of 2014)

                    FEBRUARY 12, 2014
                                                                 B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
               KURIAN JOSEPH, JJ.]

     MOTOR VEHICLES ACT, 1988: s.166 - Compensation
- Functional disability - Accident of victim's car with a bus C
resulting in fracture of victim's right arm and leg - Victim driver
by profession - Tribunal held that negligence on part of driver
of bus was root cause of accident, however, it further held that ·
manner of accident showed that both the vehicles came in
uncontrollable speed and dashed against each other and, D
therefore, drivers of both the vehicles were equally responsible
- Tribunal fixed liability of appellant at 50% while High Court
reduced the liability to 30% - On appeal, held: The findings
of tribunal were intra contradictory - This aspect was not
considered by the High Court also - Therefore, first finding of E
Tribunal that negligence on part of bus driver was root cause
of accident is restored - Appellant was a driver operating a
tourist taxi - On account of the physical disability suffered by
him, he could not continue his avocation in the same manner
as before - He was aged 46 years at the time of accident - F
Therefore, he ought to be given just and reasonable
compensation for his functional disability as his income has
been affected - Doctor assessed functional disability at 35%
- Since the appellant is compensated for functional
disablement, he will not be entitled to any other compensation G
on account of physical disability or loss of earning capacity,
etc - Appellant awarded compensation of Rs. 6, 13, 2001-.

    The appellant-claimant was driver by profession and

                             1021                                H
    1022   SUPREME COURT REPORTS              [2014] 1 S.C.R.


A operating a tourist taxi himself. While the appellant was
  driving Tata Sumo car a bus operated by the respondent
  came from opposite direction and dashed against his car.
  The appellant suffered fracture on right leg and right arm.
  He filed claim for compensation before the MACT.
B
       The Tribunal awarded a total compensation of
  Rs.4,50,0001-. The Tribunal found that the appellant has
  contributed to the accident and, hence, the liability of the
  respondent was fixed at 50%. On appeal, the High Court
C held that the contributory negligence on the part of the
  appellant was only 30% and the compensation was also
  refixed to an amount of Rs.3,20,0001- and the appellant
  was held entitled to Rs.2,24,0001-with interest@ 7.5% per
  annum. The instant appeals were filed challenging the
  order of the High Court.
D
        Allowing the appeals, the Court

       HELD: 1. There is no dispute that the vehicles were
  coming in opposite direction. Also, the driver of the bus
E had filed a complaint before the police and the police had
  registered an FIR. Except the driver of both the vehicles
  and the doctor who treated the appellant, there was no
  other oral evidence. The FIR, disability certificate, medical
  bills, driving licence, RC book and permit were also
F marked. The Tribunal, having referred to the entire
  evidence, held that the bus came in a rash and negligent
  manner and dashed against the car driven by the
  appellant and, therefore negligence on the part of the
  driver of the bus was the root cause of the accident.
  Having arrived at such finding regarding negligence on
G 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 and the impact of the
  accident was very heavy and both the vehicles damaged
H
     G. DHANASEKAR v. M.D., METROPOLITAN                 1023
           TRANSPORT CORPN. LTD.
heavily. It held that negligence on the part of the drivers       A
of both vehicles was the root cause of the accident and
they were equally responsible for the accident and fixed
contributory negligence on the driver of both vehicles.
These findings were intra contradictory. Unfortunately,
despite specific ground taken before the High Court, this         B
aspect of the matter was not considered properly.
[Paras10, 11, 12] [1028-A-B, D-H; 1029-A-B]

      2. 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        C
accident. Apparently, it was this evidence which led 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           D
negligence was unsustainable. Unfortunately, without
proper appreciation of the evidence, the High Court fixed
30% negligence on the part of the appellant. Therefore,
in the light of evidence available in this case, first finding
of the Tribunal that the negligence on the part of the bus        E
driver is the root cause of the accident is restored .. [para
13] [1029-E-G]

     3. The appellant is a dri.ver operating a tourist taxi. On
account of the physical disability suffered by him, he            F
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, it is a
case where the appellant should be given just and
reasonable compensation for his functional disability as          G
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
                                                                  H
    1024     SUPREME COURT REPORTS           [2014] 1 S.C.R.


A career as earlier. In such circumstances, the percentage
  of physical disability can be safely taken as the extent of
  functional disability. The doctor assessed it at 35%. Since
  the appellant is compensated for functional disablement,
  he will not be entitled to any other compensation on
8 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, the appellant is entitled to compensation of
C Rs.6,13,200/-. [Para 14] [1029-H; 1030-A-E; 1031-F]

       Rajesh and others v. Rajbir Singh and Others (2013) 9
  SCC 54; Rekha Jain v. National Insurance Company Limited
  and Others (2013) 8 SCC 389; National Insurance Company
  Limited v. Mubasir Ahmed and Another (2007) 2 SCC 349 =
D 2007 (2) SCR 117; Sar/a Verma (Smt.) and Others v. Delhi
  Transporl Corporation and Another (2009) 6 SCC 121 = 2009
  (5) SCR 1098- relied on.

       Master Mallikarjun v. Divisional Manager, The National
E Insurance Company Limited 2013 (10) SCALE 668- referred
    to.
                        Case Law Reference:
          (2013) 9 sec 54      Relied on           Para 3
F         2013 (10) SCALE 668 Referred to          Para 3
          (2013) a sec 389     Relied on           Para 3
          2007 (2) SCR 117     Relied on           Para 4

G         2009 (5) SCR 1098    Relied on           Para 4
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2008-2009 of 2014.


H
        G. DHANASEKAR v. M.D., METROPOLITAN                      1025
                  TRANSPORT CORPN. LTD.
     From the judgment and order dated 08.07.2011 of the                  A
 High Court of Madras in CMA Nos. 1382 and 1420 of 2010.

        Vipin Nair, Temple Law Firm for .the Appellant.

        R. Ayyam Perumal for the Respondent.
                                                                          B
        The Judgment of the Court was delivered by

       . KURIAN, J. 1. Leave granted.

      2. Whether an accident victim is entitled to get
 compensation for functional disability? If so, what is the method        C
 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 A~cident Claims Tribunal. In view          D
 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 Mal/ikarjun
 v. Divisional Manager, The National Insurance Company                    E
 Limited2 and in Rekha Jain v. National Insurance Company
 Limited and Others3, 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           F
 case of National Insurance Company Limited v. Mubasir
 Ahmed and Another4, 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                  G
  1.   (2013) 9 sec 54.
 2.    2013 (10) SCALE 668.
· 3.   (2013) 8 sec 389.
 4.    (2007) 2 sec 349.                                                  H
   1026     SUPREME COURT REPORTS                [2014] 1 S.C.R.


A 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
B compensation following the principles laid down in Sar/a
  Verma (Smt.) and Others v. Delhi Transport Corporation and
  Another6.

       5. As far as compensation for functional disability is
C 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
D 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
E 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
F 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.
G 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

H 5. (2009)6SCC121.
     G. DHANASEKAR v. M.D., METROPOLITAN                    1027
      TRANSPORT CORPN. LTD. [KURIAN, J.]

     deg. I cannot use my right hand for lifting any weighty         A
     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         B
     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."               c
      7. The Tribunal awarded a total compensation of
Rs.4,50,000/-. The Tribunal found that th·e 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      0
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.        E
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
                                                                     F
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    G
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         H
    1028     SUPREME COURT REPORTS                  (2014] 1 S.C.R.


A 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
B 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
c       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.
D
               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
E        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
F   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
G        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
         9ashed against each other. Hence it is concluded that
         contributory negligence is fixed on the driver of both
H
      G. DHANASEKAR v. M.D., METROPOLITAN                    1029
       TRANSPORT CORPN. LTD. [KURIAN, J.]
     vehicles and negligence on the part of the drivers of both       A
     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            8
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    C
     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          o
     facts, we fix 30% negligence on the part of the claimant
     and 70% negligence on the part of the driver of the bus.
       II




      13. PW1 has stated that a passenger in the bus was
thrown out of the bus through the front windscreen and that the       E
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,          F
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        G
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
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    1030    SUPREME COURT REPORTS                 [2014] 1 S.C.R.


A 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
s 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
c 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.
0
  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
E case (supra), the appellant is entitled to compensation as
  computed below:

    SI.    HEADS                                   CALCULATION

    (i)    Annual Income= Rs.10,000x12 =            Rs.1,20,000/-
F
    (ii)   After deducting 1/3rd of the total       Rs.80,000/-
           income for personal expenses, the
           balance will be = [Rs.1,20,000/- -
           Rs.40,000/-] =
G (iii)    Add 30% towards increase in              Rs.1,04,000/-
           future income, as per Sarla Verma
           and Rajesh and Others cases
           (supra)=

H
        G. DHANASEKAR v. M.D., METROPOLITAN                1031
         TRANSPORT CORPN. LTD. [KURIAN, J.]

(iv)    Compensation after multiplier of       Rs.13,52,000/·      A
        13 is applied = [Rs.1,04,000/- x 13] =

(v)     Applying the 35% functional disability, Rs.4,73,200/-
        the appellant will be entitled to the
        compensation of 35% of Rs.                                 B
        13,52,000/- =

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

(vii)   Amounttowards extra nourishment,          Rs.10,000/-
                                                                   c
        etc.

(viii) Damages to the vehicle (as awarded Rs.10,000/-
       by the High Court) =
                                                                   D
(ix)    Amount towards actual loss of             Rs.40,000/-
        earning during the period of
        hospitalization and thereafter during
        the period of rest =
                                                                   E
(x)     Amount towards pain and sufferings =       Rs.10,000/-

(xi)    Amount towards expenses on =               Rs.40,000/-
                         attendant
                                                                   F
        TOTAL COMPENSATION AWARDED
        [(v)+(vi)+(vii)+(viii)+(ix)+(x)+(xi)] Rs.6, 13,200/-

     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.        G

     16. The appeals are allowed as above. There is no order
as to costs.
D.G.                                            Appeals allowed.