SUJITH Vs. ORIENTAL INSURANCE CO. LTD.

JUDGEMENT

(1.) These appeals arise from an award of the Motor Accidents Claims Tribunal. One is by the claimant and the other by the insurer. Claimant lost one of his kidneys as a result of the accident. He also suffered three fractures. The Medical Board, to which the case was referred by the Tribunal, determined the disability, noting the nephrology related disability as 25% and orthopaedic disability as 5%; the total disability being, thus, 30%.

(2.) The insurer appeals on the plea, and it is argued on its behalf, that it has to be accepted as a principle of law, that loss of a kidney ought not to be treated as resulting in any disability, because kidney donation and transplant has become an acceptable mode and it is the matter of scientific impression that no loss would be caused to the donor if one loses a kidney. We are unable; to countenance this. For one thing, there is a wide difference between one person making a voluntary donation of one of his organs during his life time, permitting it to be harvested from his body, on his volition, while he is alive, vis-a-vis, the loss that is suffered without his consent. Such suffering depriving one of his organs, that too, as a result of a road traffic accident or other incident for which some other person is held to be negligent or culpable can never be treated at par with a voluntary organ donation by a human being. Voluntary donation of an organ by a living human being is a conscious and consentual self deprivation of the highest order and a salutary sacrifice of pre-eminence. Deprivation of an organ as a result of negligence, by way of an actionable wrong, or as a result of the commission of an offence punishable in law is, not merely disablement, but also deprivation of the systemic efficacy of the human body and, consequently, of the mind as well. This notwithstanding, the deprivation of an organ, limb or life is an affront to the unsurrenderable and inexcusable constitutional right to life of every citizen in terms of Article 21 of the Constitution of India. Any infraction in that regard will also be violative of the doctrines relating to human rights recognized in the domain of civilized societies. Apart from that, the nephrologist who was in the team of the Medical Board of the Kottayam Medical College Hospital, deposing as P.W. 1, denied the suggestion in cross examination that if one kidney is removed the remaining kidney can carry out the entire renal function. She specifically says that the total functioning disability is 75% and though the patient does not have any problem now, in future problems will be developed. She denied the suggestion that the claimant has no disability. We are also of the view that the insurer appears to be not aware of the scientific materials and data in the relevant domain regarding the multifarious risks of an organ donor. With the evidence on record, we do not find any justification to interfere with the impugned award at the instance of the insurer, even on the question of percentage of disability fixed. The insurer's appeal is hence repelled as wholly unfounded. Onto the claimant's appeal, at the outset we may say that on the basis of the different materials evidencing the injuries and treatments, the compensation granted for pain and suffering needs to be enhanced. We grant him an additional compensation of 20,000/- over and above the amount of 30,000/- awarded by the Tribunal on that count. He is entitled to an amount of 10,000/- more towards loss of amenities. We grant it. Towards bystander's expenses, he was granted only 1,200/-. We grant him an additional amount of 3,000/- under this head. Coming to the question of loss of earnings and loss of earning power, we determine his loss of earnings to be at the rate of 3,500/- per month at the time of the accident instead of 3,000/- as done by the Tribunal. This means that the claimant is entitled to an amount of 500 x 6 = 3,000/- more towards loss of earnings during the period of six months for which he was found entitled to such relief by the Tribunal. The claimant was 28 years old at the time of the accident and his projected income to determine the loss of earning power can be taken as 5,500/-. He is entitled to an amount of 5,500 x 12 x 17 x 30/100, i.e., equal to 3,36,600/- as compensation for loss of earning power. It is so held and awarded accordingly. We do not find any ground to interfere with the compensation awarded by the Tribunal under any other heads.