S. PERUMALversusK. AMBIKA & ANR.

                        [2015] 2 S.C.R. 264


A                           S. PERUMAL
                                  v.
                          K.AMBIKA&ANR.
                   (Civil Appeal No.2377 of 2015)
                         FEBRAURY 24, 2015
B
         [V. GOPALA GOWDA AND R. BANUMATHI, JJ.]
       Motor Vehicles Act, 1988 - s. 168 - Compensation -
  Enhancement of- Claimant-poultry labourer suffered injuries
  in a motor accident -Award of compensation of Rs. 25, 3001-
C with interest of 7. 5% per annum - Upheld by the High Court
  - On appeal held: Injured claimant is to be compensated for
  his permanent disability and also for loss of earning due to
  his inability - Courts below erred in brushing aside the
  evidence of the doctor who examined the claimant and the
0
  disability certificate - Tribunal erred in discarding radiologist
  report of the hospital on the ground that the claimant did not
  plead about his treatment in the hospital - Considering the
  nature of occupation and 25% disability, compensation
E enhanced to Rs. 4, 43, 5001- with 9% interest from the date of
  claim petition.

        Allowing the appeal, the Court

      HELD: 1.1 The tribunal and the High Court were not
F right in brushing aside the evidence of doctor who
  examined the claimant and the (disability certificate).
  Tribunal and High Court committed an error in holding
  that the claimant has sustained only simple injuries. In
  exercise of jurisdiction under Article 136 of the
G Constitution, though this Court would not normally re-
  appreciate the facts and evidence, however, when the
  courts below erred in ignoring material evidence, this
  Court can always re-appreciate the evidence in order to
  render justice to the parties. [Para 13) [269-C-D]
H                                264
                 S. PERU MAL v. K. AMBIKA                   265



      1.2 The injured claimant is to be compensated for A
  his permanent disability and also for loss of earning due
  to his inability, the whole idea is to put claimant in the
  same position as he was prior to the accident. The
  claimant was a poultry labourer, he would have earned
  not less than Rs.4,500/- per month. Considering the B
  nature of occupation of the claimant and the 25%
  disability, the compensation of Rs.25,300/- awarded to
  the claimant is enhanced to Rs.4,43,500/- payable with
  interest at the rate of 9% from the date of the claim
. petition. [Paras 14, 15, 16) (269-E-F; 272-A-B, D-E]       C

      Raj Kumar v. Ajay Kumar 2011 ACJ 1 (SC) - referred
to.

                    Case Law Reference
                                                              D
      2011ACJ1 (SC)           Referred to.       Para 14.

    CIVIL APPELLATE JURISDICTION: Civil Appeal No.
 2377 of 2015

     From the Judgment and Order dated 27 .02.2013 of the     E
 High Court of Judicature at Madras in C. M. A. No. 554 of
 2013

      P. Sharath, Abhishek Atrey for the Appellant.
    S. L. Gupta, Varinder Kumar Sharma, Ram Ash ray for the   F
 Respondents.

      The Judgment of the Court was delivered by

      R. BANUMATHI, J. 1. Leave granted.                      G
    2. The appellant in the instant appeal is seeking
 enhancement of compensation awarded to him in M.C.O.P.
 No.597/2009 by the Motor Accident Claims Tribunal,
 Namakkal.
                                                              H
266        SUPREME COURT REPORTS                  [2015] 2 S.C.R.


A       3. The brieffacts of the case are:- On 18.11.2009, a lorry
   bearing Registration No. TN 27 0907 owned by Respondent
   No.1, while driven by his driver in a rash and negligent manner
   dashed TVS 50 (bearing Registration No. TN 28 X 4892)
   driven by the appellant from behind, due to which appellant
 8 sustained in the eye-brow, chest and multiple injuries all over
   the body. The second respondent herein is an insurance
   company with which the vehicle involved in the accident was
   insured.
c       4. Appellant filed an application before the Motor Accident
   Claims Tribunal, claiming compensation of Rs.5,00,000/-for
   the injuries sustained by him in the alleged accident. The
   tribunal upon consideration of the rival contentions, vide order
   dated 9.09.2011 awarded compensation of Rs.25,300/-
 D alongwith interest at the rate of 7.5% per annum. The appellant
   being dissatisfied with the amount of compensation,
   approached the High Court of Judicature at Madras in C.M.A.
   No.554/2013, wherein vide impugned judgment dated
   27.2.2013, the High Court refused to interfere with the findings
 E of the tribunal on the ground that the appellant has suffered
   only simple injuries.
        5. Contention of the appellant is that at the time of the
   accident he was working as a labourer in a Poultry Farm and
 F was earning Rs.6,000/- per month. The accident has caused
   multiple rib fractures to the appellant which has severely
   affected appellant's ability to work in the Poultry Farm or to do
   any physical work. Thus, appellant has contended that he has
   sustained permanent disabling injury and therefore the learned
 G tribunal erred in relying on self-contradictory testimony of Dr.
   Balaji (RW-1) ofVinayaga Mission Hospital, Salem, who has
   prepared the wound certificate (Ex. X4) on the basis of case
   sheet (Ex. X3) to the effect that the appellant has suffered only
   two simple injuries.
 H       6. Per contra, the learned counsel for the insurance
               S. PERUMAL v. K. AMBIKA                          267
                   [R. BANUMATHI, J.]

company has, by and large, supported the impugned judgment. A
     7. VVe have considered the rival contentions of both the
parties.
     8. Appellant in his claim petition has pleaded that
immediately after the incident, the injured appellant was B
admitted inAravint~ Hospital, Namakkal where he had taken
his first aid and then he was admitted in Vinayaga Mission
Hospital, Salem for treatment, and after taking treatment,
appellant has taken further treatment in Maruthi Hospital.
                                                                 c
     9. In his evidence, claimant stated that he had sustained
multiple fractures and had taken treatment at Vinayaga Mission
Kripananda Variyar Medical (VMKVM) College and Hospital.
To substantiate his evidence, Dr. Govindasamy (PW-2),
Medical Officer of VMKVM was examined on the side of the D
claimant. He deposed that the appellant was admitted as an
inpatient on 18.11.2009 and medical treatment was given to
him and he was discharged on 24.11.2009. PW-2 further stated
that X-ray was taken of the chest portion and found fractures
in right ribs 5th to 8th and Report of the same is marked as E
Ex.X1. Further in the primary records maintained in the
hospital, it is stated in column of final diagnosis that there are
multiple right rib fractures 5, 6, 7, 8 and the copy of the same
was marked as Ex.X2 which is prepared after comparing with
the original. During cross- examination of PW-2, suggestion F
was put to him that the appellant did not sustain fractures of
right ribs 5th to 8th and the same was denied by PW-2.
     10. The tribunal discarded radiologist report ofVMKVM
College and Hospital on the ground that the claimant had not G
pleaded in his claim petition about the treatment in VMKVM
College. Thus, appellant did not specifically plead that he was
treated in VMKVM College and Hospital. However, in our
considered view, it can not be taken as a ground to discard
the radiologist report ofVMKVM College and Hospital. Rather, H
268       SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A this seems to be the inadvertence while drafting the claim
  petition, as confusion is likely to happen, when admittedly both
  the hospitals are under the same management i.e. Vinayaga
  Mission. The appellant was brought for admission in Vinayaga
  Mission Hospital, Salem at 9.30 p.m. but refused to admit
B himself as an in-patient. But immediately, the next morning he
  got his X-ray from VMKVM College and Hospital, which is
  admittedly a free hospital.
        11. Relying upon the evidence of RW-1-Dr. Balaji attached
C to Vinayaga Mission Hospital, the tribunal did not accept the
   version of PWs 1 and 2. RW-1 stated that as per the case
   sheet (Ex. X3), appellant sustained (1) 4cm x 2cm abrasion
   on the right jaw (2) abrasions also found on both the knees,
   there was no other injury except the above two. RW-1 further
D stated that he advised claimant to admit as an inpatient but he
   was not so admitted. In Vinayaga Mission Hospital, Salem
   there was no free treatment. The Discharge Summary duly
   recorded on examination, appellant had swelling, tenderness
   and crepitus right side of chest and had rib fractures. The
E Radiology report notes that appellant suffered fractures in 5th
   to 8th ribs: Appellant further required Rib Belt Support and
   Analgesics to relieve himself from pain. It appears that appellant
   discharged himself from VMKVM College and Hospital on
   24.11.2009 and on the same day admitt~d himself in Maruthi
   Hospital, Namakkal and got himself discharged on 27 .11.2009.
F. The claimant/appellant who is mere labourer was perhaps
   reluctant to get himself admitted in a paid hospital.
       12. The primary evidence of PWs 1 and 2 and Radiology
  report ought not to have been discarded in the absence of any
G cogent evidence led by the respondent stating that they are
  false. Thus, the appellant duly discharged his initial burden of
  proof and after that it was upon the respondents to lead further
  evidence. Dr. Balaji (RW-1) himself admitted in his re-
  examination that he did not check whether there was any injury
H on the right ribs.
                 S. PERU MAL v. K. AM Bl KA                        269
                     [R. BANUMATHI, J.]

      13. Dr. M. Sivakumar (PW-3) has examined the claimant            A
and also perused the case history, wound certificate and
Radiologist report of the claimant issued disability certificate
(Ex.P11) opining that the permanent disability is 25%. Dr.
Sivakumar opined that" ..... fracture is malunited. He has pain
and swelling (rt.) right chest wall. He has difficulty in breathing.   B
He often gets respiratory infection. He can not do any hard
work. He can not bend or lift any heavy weight. His daily activity
is affected ../. _D~~Sivakumar (PW-3) assessed the disability
at 25%, for which he has not only relied upon the case history
and wound certificate but had alsocli!Jically and radiologically       C
examined the claimant. In our view, tribunal and the High Court
were not right in brushing aside the evidence of PW-3 and
Ex.P6 (disability certificate). Tribunal and High Court have
committed an error in holding that the claimant has sustained
only simple injuries. In exercise of jurisdiction under Article 136    D
of the Constitution, though this Court would not normally re-
appreciate the facts and evidence, however, when the courts
below erred in ignoring material evidence, this Court can
always re-appreciate the evidence in order to render justice
to the parties.                                                        E
     14. The injured claimant is to be compensated for his
permanent disability and also for loss of earning due to his
inability, the whole idea is to put claimant in the same position
as he was prior to the accident. In 2011 ACJ 1 (SC) (Raj Kumar F
v. Ajay Kumar), this Court considered the principles for
awarding compensation in injury cases, and held as under:
     "The provision of the Motor Vehicles Act, 1988 ('the
     Act', for short) makes it clear that the award must be
                                                                       G
     just, which means that compensation should, to the
     extent possible, fully and adequately restore the
     claimant to the position prior to the accident. The
      object of awarding damages is to make good the loss
      suffered as a result of wrong done as far as money               H
270     SUPREME COURT REPORTS                      [2015] 2 S.C.R.


A     can do so, in a fair, reasonable and equitable manner.
      The court or tribunal shall have to assess the
      damages objectively and exclude from consideration
      any speculation or fancy, though some conjecture with
      reference to the nature of disability and its
B     consequences is inevitable. A person is not only to
      be compensated for the physical injury, but also for
      the loss which he suffered as a result of such injury.
      This means that he is to be compensated for his
      inability to lead a full life, his inability to enjoy those
c     normal amenities which he would have enjoyed but
      for the injuries and his inability to earn as much as he
      used to earn or could have earned ...
      (5) The heads under which compensation is awarded
D         in personal injury cases are the following:
           Pecuniary damages (Special damages)
           (i)   Expenses relating to treatment,
                 hospitalization, medicines, transportation,
E                nourishing food and miscellaneous
                 expenditure.
           (ii) Loss of earnings (and other gains) which the
                injured would have made had he not been
                injured, comprising:
F
                 (a) Loss of earnings during the period of
                     treatment;
                 (b) Loss of future earnings on account of
                     permanent disability.
G
          (iii) Future medical expenses.
                 Non-pecuniary damages (General damages)
          (iv) Damages for pain, suffering and trauma as
H              a consequence of the injuries.
            S. PERUMAL v. K. AMBIKA                           271
                [R. BANUMATHI, J.]

    (v) Loss of amenities (and/or loss of prospects            A
        of marriage).
    (vi) Loss of expectation of life (shortening of
         normal longevity.)
    In routine personal injury cases, compensation             B
    will be awarded only under heads.
    (i), (ii) (a) and (iv). It is only in serious cases of
    injury, where there is specific medical evidence
    corroborating the evidence of the claimant, that           c
    compensation will be granted under any of the
    heads (ii) (b), (iii), (v) and (vi) relating to loss of
    future earnings on account of permanent
    disability, future medical expenses, loss of
    amenities (and/or loss of prospects of marriage)            D
    and loss of expectation of life."
18. In 2012 ACJ 28 (Govind Yadav v. New India
Assurance Company Limited), this Court held as under:-
" 15. In our view, the principles laid down in Arvind           E
Kumar Mishra v. New India Assurance Co. Ltd.,
2010 ACJ 2867 (SC) and Raj Kumar v. Ajay Kumar,
2011 ACJ 1 (SC), must be followed by all the tribunal
and the High Courts in determining the quantum of
compensation payable to the victims of accident,                F
who are disabled either permanently or temporarily.
If the victim of the accident suffers permanent
disability, then efforts should always be made to
award adequate compensation not only for the
physical injury and treatment, but also for the loss of         G
earnings and his inability to lead a normal life and
enjoy amenities, which he would have enjoyed but
for the disability caused due to the accident."
 15. We shall now consider the question as to what is just H
272          SUPREME COURT REPORTS               [2015] 2 S.C.R.


A and reasonable compensation to be awarded to the claimant.
  The claimant was a poultry labourer, he would have earned
  not less than Rs.4,500/- per month. Considering the nature of
  occupation of the claimant and the 25% disability, in our
  considered view, lumpsum compensation of Rs.2,00,000/-
B towards loss of future earnings, on account of permanent
  disability, Rs.13,500/- (Rs.4,500 x 3) is awarded for the loss
  of earning during the period of treatment. Considering the
  nature of treatment and the medical bills (Exp.5}, for which an
  amount of Rs.1,00,000/- is awarded towards medical
C expenses; Rs.50,000/- is awarded towards pain and
  sufferings; Rs.10,000/- is awarded for transport charges and
  Rs.10,000/- is awarded for attendant charges; Rs.10,000/- is
  awarded towards extra nourishment and Rs.50,000/- is
  awarded towards loss of amenities.
D
       16. The compensation of Rs.25,300/- awarded to the
  claimant is enhanced to Rs.4,43,500/- payable with interest at
  the rate of 9% from the date of the claim petition. The first
  respondent-insurance company is directed to deposit balance
E compensation of Rs.4, 18,200/- with interest within a period of
  four weeks from the receipt of the copy of this judgment. On
  such deposit, the same shall be disbursed to the claimant.
        17. In the result, appeal is allowed in terms of the above
 F directions. Parties are directed to bear their own costs.

      Nidhi Jain                                    Appeal allowed