T. J. PARAMESHWARAPPA@PARAMESHWARAPPA@J. T. PARAMESHWARAPPA@TALALKENA GOWDRA PARAMESHWARAPPAversusTHE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD. & ORS.

136                      [2022]REPORTS
               SUPREME COURT   10 S.C.R. 136            [2022] 10 S.C.R.


A      T. J. PARAMESHWARAPPA@PARAMESHWARAPPA@J. T.
             PARAMESHWARAPPA@TALALKENA GOWDRA
                     PARAMESHWARAPPA
                                       v.
        THE BRANCH MANAGER, NEW INDIA ASSURANCE CO.
B                      LTD. & ORS.
                     (Civil Appeal Nos. 8598-8599 of 2022)
                            NOVEMBER 18, 2022
              [B. R. GAVAI AND B. V. NAGARATHNA, JJ.]
C
             Motor Accident Claim – Compensation – Assessment of –
      Permanent Physical Disability – Appellant sustained injuries in a
      road accident – He therefore, filed the claim petition seeking
      compensation of Rs.20 lakhs – Motor Accident Claims Tribunal
      (MACT) assessed the permanent physical disability to an extent of
D     40% and awarded a sum of Rs.21,08,400/- together with interest
      at 8% p.a. – Aggrieved, both the insurer as well as insured claimant
      filed appeal before the High Court against the award passed by the
      MACT – The High Court reduced the disability assessment at
      20% and noted that the award of compensation was on the higher
E     side and hence, reduced the compensation to Rs.7,37,604/- – On
      appeal, held: Appellant sustained comminuted bone fracture of tibia
      on both legs, the whole-body disability is assessed as 30% – He
      was operated upon twice and was hospitalized for thirty-six days
      cumulatively, therefore, the compensation under the heads of pain
      and suffering is enhanced – Also towards loss of future amenities
F     and towards loss of income during laid up period for a period of
      twelve months compensation is enhanced – The judgment passed
      by the High Court is modified by enhancing the award of
      compensation to Rs.11,67,405/-.
            Raj Kumar v. Ajay Kumar and Another (2011) 1 SCC
G           343 : [2010] 13 SCR 179 – relied on.
                            Case Law Reference
      [2010] 13 SCR 179              relied on               Para 8

H
                                      136
  T. J. PARAMESHWARAPPA v. BRANCH MANAGER, NEW                                    137
              INDIA ASSURANCE CO. LTD.

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8598-                       A
8599 of 2022.
     From the Judgment and Order dated 16.10.2020 of the High Court
of Karnataka at Bengaluru in M.F.A. No.48 of 2017 c/w & M.F.A.
No.7972 of 2016(MV).
      Shekhar G. Devasa, Manish Tiwari, Prashanth Dixit,                          B
Ms. Thashmitha K. M., Shashi Bhushan Nagar for M/s. Devasa & Co.,
Advs. for the Appellant.
      Dr. Sudhir Bisla, Ms. Sumitra Bisla, Satyendra Kumar, Advs. for
the Respondents.
                                                                                  C
       The Judgment of the Court was delivered by
       NAGARATHNA J.
       Leave granted.
       2. These appeals assail the correctness of the judgment and award
                                                                                  D
passed by the High Court of Karnataka at Bengaluru in M.F.A. No.48
of 2017 connected with M.F.A. No.7972 of 2016 (MV) dated
16.10.2020. M.F.A. No.48 of 2017 was filed by the insurer – New India
Assurance Co. Ltd., while M.F.A. No.7972 of 2016 (MV) was filed by
the insured claimant, both being aggrieved by the judgment and award
dated 16.09.2016 passed by the Ist Addl. Senior Civil Judge & IVth                E
MACT at Chitradurga in MVC No.1091 of 2015. By the said judgment
and award, the Motor Accidents Claims Tribunal (hereinafter referred
to as “the Tribunal”, for the sake of convenience) awarded a sum of
Rs.21,08,400/- (Rupees Twenty-one lakhs eight thousand and four
hundred only) with interest at 8% p.a. from the date of filing of the claim
                                                                                  F
petition till date of deposit. This was in respect of an accident that occurred
on 15.05.2015 in which the appellant- claimant was injured. Being
aggrieved by the reduction in the total compensation by the High Court
from Rs.21,08,400/- to Rs.7,37,604/- with interest at the rate of 6% p.a.
from the date of petition till its realization, the injured- claimant has filed
these appeals.                                                                    G
       3. It is no longer in dispute that on 15.05.2015 at about 03:35 p.m.
appellant- claimant was travelling in the Tanker Lorry bearing No.KA-
01-AG-2266 as a cleaner from Kidlike to Hassan along with driver
P. Jagadeesh. Near the RTO Office, Chitradurga, on NH-4 flyover, the
driver of the tanker lorry drove the same in a rash and negligent manner          H
138              SUPREME COURT REPORTS                         [2022] 10 S.C.R.


A     and with high speed and dashed into the hind portion of another lorry
      bearing No.KA-16-B-6247, as a result of which, appellant-claimant
      sustained comminuted fracture of tibia bones of both legs and other
      injuries on his body. He was shifted to B.M.C. Hospital and Research
      Centre, Chitradurga where he took treatment as an inpatient from
      15.05.2015 to 13.06.2015 and thereafter took follow-up treatment as an
B
      outpatient. During treatment, he underwent surgery of both legs and rod
      and screws were inserted.
              4. It is contended by the appellant that as a result of the accident
      he became permanently disabled and due to fracture of tibia bones of
      both legs and other injuries, he is unable to discharge his duties as a
C     cleaner in the tanker lorry and hence, he has suffered both financially
      and physically. That he is also unable to perform his daily routine activity
      as he has sustained permanent disability. That he was working as a
      cleaner in a tanker lorry and was earning Rs.18,000/- per month and due
      to the disability, he is unable to earn any income. He therefore, filed the
D     claim petition seeking compensation of Rs.20 lakhs on account of the
      injuries sustained by him in the road traffic accident. On contest, the
      Tribunal by its judgment and award dated 16.09.2016, awarded a sum of
      Rs.21,08,400/- together with interest at 8% p.a. from the date of petition
      till date of deposit, under the following heads:
E           “Sl. No. Description                              Amount in Rs.
            1.         Pain and suffering                     5,00,000/-
            2.         Medical and incidental Expenses        4,00,000/-
            3.         Permanent disability
F                      (40% of Rs.6,500 x 12 x 17)            5,30,400/-
            4.         Future Medical Expenses                2,00,000/-
            5.         Conveyance and attendant               2,00,000/-
                       Charges
G           6.          Future Prospects                      78,000/-
                       (12 Months x 6,500)
            7.         Marriage prospects                     2,00,000/-
                                                    Total     21,08,400/-”
H
  T. J. PARAMESHWARAPPA v. BRANCH MANAGER, NEW                                 139
   INDIA ASSURANCE CO. LTD. [B. V. NAGARATHNA, J.]

       In fact, the compensation awarded by the Tribunal was over and          A
above what was sought by the appellant – claimant in the claim petition
i.e. Rs.20,00,000/-.
       5. Being aggrieved by the said award, both the insurer as well as
insured claimant filed the aforementioned appeals before the High Court.
The High Court noted that the claimant had suffered lacerated wound            B
over his forehead and fracture of mid 1/3rd tibia of right and left legs, as
per Exhibit-P6. The High Court also noted that the award of compensation
was on the higher side and hence, High Court reduced the compensation
to Rs.7,37,604/- under the following heads: -
      Sl. No.    Description                            Amount in Rs.          C
      1.         Permanent disability
                 (20% of Rs.9,000 x 12 x 17)             3,67,200/-
      2.         Pain and suffering                        50,000/-
      3.         Medical and incidental Expenses         1,20,404/-            D
      4.         Future Medical Expenses                   50,000/-
      5.         Conveyance charges                        30,000/-
      6.         Income during laid up period              45,000/-
      7.         Loss of amenities                         75,000/-            E

                                          Total          7,37,604/-
      No compensation was awarded towards loss of marriage
prospects and loss of future prospects. Consequently, the appeals were
disposed of in the above terms by the High Court.                              F
      6. We have heard the learned counsel for the appellant- claimant
and respondent – insurer and perused the material on record.
       7. The sum and substance of the contention of learned counsel
for the appellant is that the assessment of permanent physical disability
should be at 54% but the High Court had erroneously reduced it at 20%          G
which was 34% less and therefore, these appeals have been preferred.
It was further contended that the appellant was earning Rs.18,000/- per
month as a cleaner of the tanker lorry but the High Court has assessed
his notional income as Rs.9,000/- per month only, which is on the lower
side. It was further contended that owing to the fracture of both legs,
                                                                               H
140            SUPREME COURT REPORTS                          [2022] 10 S.C.R.


A     the appellant is unable to carry out his duties as a cleaner of the tanker
      lorry and the percentage of disability has been erroneously assessed at
      20% while the doctor had assessed the permanent disability of 54%.
      Hence, the appellant has sought enhancement of compensation.
            8. Per contra, learned counsel for the respondent – insurer
B     supported the judgment of the High Court and submitted that these appeals
      ought to be dismissed as being devoid of merit.
             Before proceeding to consider the appeals on merits, it would be
      useful to refer to the judgment of this Court in Raj Kumar vs. Ajay
      Kumar and Another (2011) 1 SCC 343, authored by Raveendran, J.
C     wherein the general principles relating to compensation in injury cases;
      assessment of loss of future earnings on account of permanent disability;
      assessment of compensation in injury cases, have been discussed at
      length. The relevant paragraphs of the said judgment are extracted as
      under:

D           “5. The provision of the Motor Vehicles Act, 1988 (“the Act”, for
            short) makes it clear that the award must be 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 can do so, in a fair,
E           reasonable and equitable manner. The court or the 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 consequences, is
            inevitable. A person is not only to be compensated for the physical
F           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 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. [See C.K.
            Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 :
G           AIR 1970 SC 376] , R.D. Hattangadi v. Pest Control (India)
            (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250]
            and Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50 :
            (1969) 3 All ER 1528 (HL)].
            6. The heads under which compensation is awarded in personal
H           injury cases are the following:
T. J. PARAMESHWARAPPA v. BRANCH MANAGER, NEW                                141
 INDIA ASSURANCE CO. LTD. [B. V. NAGARATHNA, J.]

  Pecuniary damages (Special damages)                                       A
     (i) Expenses relating to treatment, hospitalisation, medicines,
     transportation, nourishing food, and miscellaneous expenditure.
     (ii) Loss of earnings (and other gains) which the injured would
     have made had he not been injured, comprising:
                                                                            B
        (a) Loss of earning during the period of treatment;
        (b) Loss of future earnings on account of permanent
        disability.
     (iii) Future medical expenses.
                                                                            C
     Non-pecuniary damages (General damages)
     (iv) Damages for pain, suffering and trauma as a consequence
     of the injuries.
     (v) Loss of amenities (and/or loss of prospects of marriage).
     (vi) Loss of expectation of life (shortening of normal longevity).     D

     In routine personal injury cases, compensation 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 compensation will be granted
     under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss   E
     of future earnings on account of permanent disability, future
     medical expenses, loss of amenities (and/or loss of prospects
     of marriage) and loss of expectation of life.
     7. Assessment of pecuniary damages under Item (i) and under
     Item (ii)(a) do not pose much difficulty as they involve               F
     reimbursement of actuals and are easily ascertainable from
     the evidence. Award under the head of future medical
     expenses—Item (iii)—depends upon specific medical evidence
     regarding need for further treatment and cost thereof.
     Assessment of non-pecuniary damages—Items (iv), (v) and                G
     (vi)—involves determination of lump sum amounts with
     reference to circumstances such as age, nature of injury/
     deprivation/disability suffered by the claimant and the effect
     thereof on the future life of the claimant. Decisions of this
     Court and the High Courts contain necessary guidelines for
                                                                            H
142   SUPREME COURT REPORTS                           [2022] 10 S.C.R.


A     award under these heads, if necessary. What usually poses
      some difficulty is the assessment of the loss of future earnings
      on account of permanent disability—Item (ii)(a). We are
      concerned with that assessment in this case.
      Assessment of future loss of earnings due to permanent
B     disability
      8. Disability refers to any restriction or lack of ability to perform
      an activity in the manner considered normal for a 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
C     the period of treatment and recuperation, after achieving the
      maximum bodily improvement or recovery which is likely to
      remain for the remainder life of the injured. Temporary disability
      refers to 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
D     can be either partial or total. Partial permanent disability refers
      to a person’s inability to perform all the duties and bodily
      functions that he could perform before the accident, though he
      is able to perform some of them and is still able to engage in
      some gainful activity. Total permanent disability refers to a
E     person’s inability to perform any avocation or employment
      related activities as 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) Act,
F     1995 (“the Disabilities Act”, for short). But if any of the
      disabilities enumerated in Section 2(i) 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.
G     9. The percentage of permanent disability is expressed by the
      doctors with reference to the whole body, or more often than
      not, with reference to a particular limb. When a disability
      certificate states that the injured has suffered permanent
      disability to an extent of 45% of the left lower limb, it is not the
H     same as 45% permanent disability with reference to the whole
T. J. PARAMESHWARAPPA v. BRANCH MANAGER, NEW                              143
 INDIA ASSURANCE CO. LTD. [B. V. NAGARATHNA, J.]

     body. The extent of disability of a limb (or part of the body)       A
     expressed in terms of a percentage of the total functions of
     that limb, obviously cannot be assumed to be the extent of
     disability of the whole body. If there is 60% permanent disability
     of the right hand and 80% permanent disability of left leg, it
     does not mean that the extent of permanent disability with
                                                                          B
     reference to the whole body is 140% (that is 80% plus 60%).
     If different parts of the body have suffered different
     percentages of disabilities, the sum total thereof expressed in
     terms of the permanent disability with reference to the whole
     body cannot obviously exceed 100%.
     10. Where the claimant suffers a permanent disability as a           C
     result of injuries, the assessment of compensation under the
     head of loss of future earnings would depend upon the 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           D
     loss of earning capacity. In most of the cases, the percentage
     of economic loss, that 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               E
     corresponding loss 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 extent (percentage) of loss of
     earning capacity to the extent (percentage) of permanent             F
     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 capacity in terms   G
     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 assessment, the Tribunal may
                                                                          H
144      SUPREME COURT REPORTS                          [2022] 10 S.C.R.


A        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. (See for example, the
         decisions of this Court in Arvind Kumar Mishra v. New
B
         India Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010) 3
         SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava
         Kumar v. National Insurance Co.Ltd. [(2010) 10 SCC
         341:(2010) 3 SCC (Cri) 1285: (2010) 8 Scale 567])
         12. Therefore, the Tribunal has to first decide whether there
C        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;

D            (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,
E            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
F     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
G
      to first ascertain what activities the claimant 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
H     work before the accident, as also his age. The third step is to find
  T. J. PARAMESHWARAPPA v. BRANCH MANAGER, NEW                                    145
   INDIA ASSURANCE CO. LTD. [B. V. NAGARATHNA, J.]

      out whether (i) the claimant is totally disabled from earning any           A
      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
                                                                                  B
      activities and functions so that he continues to earn or can continue
      to earn his livelihood.
                                    xxx
      19. We may now summarise the principles discussed above:
          (i) All injuries (or permanent disabilities arising from injuries),     C
          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           D
          percentage of permanent disability (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).
          (iii) The doctor who treated an injured claimant or who                 E
          examined him subsequently to assess the extent of his
          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.                                  F
          (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.
       9. Applying the aforesaid principles to the instant case, it is noted      G
that the appellant herein let in his evidence as PW-1 and his doctor
(Dr. M.S. Rajesh) was examined as PW-2. He produced documents at
Exhibit-P1 to Exhibit-P126 in support of their evidence. On the other
hand, the respondents did not lead any evidence. However, a copy of
the Exhibit -R1, i.e., Insurance Policy was exhibited by consent.
                                                                                  H
146              SUPREME COURT REPORTS                       [2022] 10 S.C.R.


A            10. It is noted that the appellant herein sustained comminuted
      bone fracture of tibia on both legs. He was operated upon twice and
      was hospitalized for thirty-six days cumulatively. As per PW-2 (the doctor
      who treated him), there was 54% disability despite the treatment given
      to the appellant herein. The appellant was treated as an inpatient from
      15.05.2015 to 13.06.2015. He underwent wound debridement OR & IF
B
      with interlocking nail and on 26.05.2015 secondary suturing of right leg
      was done. Later in the year 2016 the claimant was hospitalized from
      02.03.2016 to 07.03.2016 and treated with freshening of the ends of
      fractured fragments and cotico-cancellous bone grafting from the contra
      lateral iliac crest with partial fibulectomy done on 03.03.2016. He also
C     took treatment as an outpatient on 30.06.2015 and 30.12.2015.
             11. PW-2- doctor, who treated the appellant- claimant has assessed
      permanent disability of 54% which we find is on the higher side. As the
      claimant sustained comminuted fracture of tibia bones of both legs, we
      assess the whole-body disability at 30%. We also propose to enhance
D     the compensation under the heads of pain and suffering due to two
      surgeries undergone and future surgeries to be undergone. Also towards
      loss of future amenities and towards loss of income during laid up period
      for a period of twelve months compensation is enhanced.
            12. In view of the aforesaid evidence let in by the claimant, we
E     propose to reassess the compensation as under:
            Sl. No.    Description                           Amount in Rs.
            1.         Pain and suffering                    1,00,000/-
            2.         Medical Expenses                      1,20,405/-
F           3.         Incidental hospital Expenses           35,000/-
            4.         Loss of future earning capacity
                       (30% of Rs.10,000 x 12 x 17)          6,12,000/-
            5.         Loss of income during laid up
G                      period (Rs.10,000 x 12)               1,20,000/-
            6.         Loss of Future amenities              1,00,000/-
            7.         Conveyance and attendant Charges 30,000/-
            8.         Future medical expenses                50,000/-
H                                                Total   Rs.11,67,405/-
   T. J. PARAMESHWARAPPA v. BRANCH MANAGER, NEW                                   147
    INDIA ASSURANCE CO. LTD. [B. V. NAGARATHNA, J.]

      The aforesaid compensation shall carry interest at the rate of 6%           A
per annum from the date of filing of the claim petition till realization.
       13. In the result, the judgment and award passed by the High
Court is modified by enhancing the award of compensation to the appellant
herein from Rs.7,37,604/- to Rs.11,67,405/-which shall carry interest at
the rate of 6% per annum from the date of filing of claim petition till           B
realization. The amount shall be deposited within a period of six weeks
from the date of receipt of certified copy of this judgment. On deposit of
the said amount, the Tribunal shall deposit a sum of Rs.3,00,000/- in any
nationalized bank for a period of five years. The appellant shall be entitled
to draw periodical interest on the said deposit. The balance amount shall
be paid to the appellant herein.                                                  C

       14. The appeals are allowed in part in the aforesaid terms.
       Parties to bear their respective costs.

Ankit Gyan                                              Appeals partly allowed.   D
(Assisted by : Rahul Rathi, LCRA)




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