Punjab-Haryana High Court
Kamlesh Kumar vs Anand Sharma And Anr on 5 April, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
2024:PHHC:051929
FAO-4139-2007 (O&M)
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206
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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FAO-4139-2007 (O&M)
Date of Decision : 05.04.2024
Kamlesh Kumar ....Appellant
VERSUS
Anand Sharma and others ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. J.P.Sharma, Advocate for the appellant.
Ms. Simran, Advocate for
Mr. Pardeep Goyal, Advocate for respondent No.2 - Insurance Co.
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SUDEEPTI SHARMA, J. (Oral)
1. The present appeal has been preferred against the award dated 21.12.2005 passed by the learned Motor Accident Claims Tribunal, Narnaul, whereby the appellant has been awarded compensation to the tune of Rs.80,000/-.
2. The brief facts of the case as mentioned in the claim petition are that the appellant was a pillion rider on motor cycle No.HR-35B-0331. On 14.10.2004, he was coming from Nangal Chaudhary to Narnaul. The said motor cycle was being driven by respondent No.1 at normal speed. At about 9.30 AM, when the motor-cycle reached near Jal Mahal Crossing, Narnaul, suddenly a blue bull appeared on the road and in a bid to save the said bull, respondent No.1 (driver of motor-cycle) lost control of the motor-cycle and had fallen down. The appellant and respondent No.1 had received multiple injuries. The appellant was shifted to TRIPTI SAINI 2024.04.19 09:26 I attest to the accuracy and integrity of this document 2024:PHHC:051929 FAO-4139-2007 (O&M) -2- M/s Raj Hospital, Singhana, where he remained under treatment. Claiming that the appellant was earning Rs.3,600/- per month, compensation of Rs.5 lacs was sought against the respondents, which after moving an application by the claimant under Order XXIII Rule 1 CPC for reducing the amount of compensation and income, was reduced to Rs.2 lacs and Rs.3000/-, respectively.
3. Upon notice, respondent No.1denied, the contentions made by the claimant.
4. From the pleading of the parties, the Tribunal has framed the following issues:-
1. Whether the petitioner Kamlesh Kumar sustained injuries in a vehicular accident on 14.10.2004 at Narnaul-Nangal Chaudhary Road near the turning of Jal Mahal on account of use of motor-cycle No. HR-35B-0331 being driven by Anand Sharma, respondent No.1?OPP
2. Whether the petitioner is entitled to any compensation, if so to what amount and from whom?OPP
3. Whether respondent No.2 is not liable to make payment of compensation in view of the preliminary objections in the written statement?OPR-2
4. Relief.
5. Learned counsel for the appellant submits that the appellant was taken to hospital immediately after accident and he remained admitted there for few days, therefore, the FIR could not be lodged immediately and the reason given by the Tribunal while passing the order is that there is a delay of 6 days in lodging of FIR and treated it to be an extra-ordinary delay. He further submits that the Tribunal has wrongly observed that there is no explanation from the claimant as to TRIPTI SAINI 2024.04.19 09:26 I attest to the accuracy and integrity of this document 2024:PHHC:051929 FAO-4139-2007 (O&M) -3- why the claimant had not rushed for his treatment to the Civil Hospital, Narnaul or to any other doctor nearby since the accident had allegedly taken place near Jal Mahal crossing on Narnaul-Nangal Chaudhary Road. And why even when he required immediate medical treatment, he rushed to Dr. Ranbir Singh (PW-3) practicing medicine privately at Singhana. He further submits that the Tribunal has wrongly observed that Joginder Singh (PW-5) is shown to be an eye-witness of the accident whereas his name does not appear in the DDR (Ex.P2). He further submits that the Tribunal had wrongly observed after perusing affidavit (Ex.PW5/A) of Joginder Singh (PW-5) as to, that Jogender Singh mentioned in his affidavit that after the accident the claimant had made telephonic message to his brother and his brother had taken the claimant to M/s Raj Hospital, Singhana, but claimant (Kamlesh) has not mentioned in his affidavit about arrival of his brother and only mentioned that after the accident he was admitted in M/s Raj Hospital Singhana. He further submits that the compensation awarded to the tune of Rs.80,000/- is on the lower side even after assessing the disability of the appellant as 15%.
6. Per contra, learned counsel for respondent No.2 vehemently argued on the lines of the award and submitted that after taking into consideration the disability, compensation has rightly been awarded and no enhancement is required in the present case and appeal is liable to be dismissed.
7. I have heard learned counsel for the parties and thoroughly gone through the record.
8. Hon'ble Supreme Court has settled the law regarding grant of compensation with respect to the disability. The Apex Court in the case of Raj TRIPTI SAINI 2024.04.19 09:26 I attest to the accuracy and integrity of this document 2024:PHHC:051929 FAO-4139-2007 (O&M) -4- Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343, has held as under:-
General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ('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, 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 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 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. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467).
6. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages) TRIPTI SAINI 2024.04.19 09:26 I attest to the accuracy and integrity of this document 2024:PHHC:051929 FAO-4139-2007 (O&M) -5-
(i) Expenses relating to treatment, hospitalization, 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 :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. 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).
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 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.
xxx xxx xxx xxx
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.
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2024:PHHC:051929 FAO-4139-2007 (O&M) -6-
(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 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.
20. The assessment of loss of future earnings is explained below with reference to the following Illustration 'A' : The injured, a workman, was aged 30 years and earning Rs. 3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, TRIPTI SAINI 2024.04.19 09:26 I attest to the accuracy and integrity of this document 2024:PHHC:051929 FAO-4139-2007 (O&M) -7- because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs. 36,000/-.
b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration 'B' : The injured was a driver aged 30 years, earning Rs. 3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows :
a) Annual income prior to the accident : Rs. 36,000/- .
b) Loss of future earning per annum (75% of the prior annual income) : Rs. 27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-
Illustration 'C' : The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning TRIPTI SAINI 2024.04.19 09:26 I attest to the accuracy and integrity of this document 2024:PHHC:051929 FAO-4139-2007 (O&M) -8- capacity was also assessed as 70%. The calculation of compensation will be as follows :
a) Minimum annual income he would have got if had been employed as an Engineer : Rs. 60,000/-
b) Loss of future earning per annum (70% of the expected annual income) : Rs. 42000/-
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)].
09. Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following aspects:-
(A) Deduction of personal and living expenses to determine multiplicand;
(B) Selection of multiplier depending on age of deceased; (C) Age of deceased on basis for applying multiplier; (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation; (E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed or fixed salary.
The relevant portion of the judgment is reproduced as under:- TRIPTI SAINI 2024.04.19 09:26 I attest to the accuracy and integrity of this document
2024:PHHC:051929 FAO-4139-2007 (O&M) -9- " Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum- centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."
10. Hon'ble Supreme Court in the case of Erudhaya Priya Vs. State Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:-
" 7. There are three aspects which are required to be examined by us:
(a) the application of multiplier of '17' instead of '18';
The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ 2700 (SC). In para 46 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age group of 15-25 years, the multiplier has to be '18' along with TRIPTI SAINI factoring in the extent of disability.
2024.04.19 09:26I attest to the accuracy and integrity of this document
2024:PHHC:051929 FAO-4139-2007 (O&M) -10- The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be '18' and not '17'.
(b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract below the principle set out in the Jagdish (supra) in para 8:
"8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal life together with its amenities;
(iv) Medical expenses including those that the victim may be
required to undertake in future; and
(v) Loss of expectation of life."
[emphasis supplied]
TRIPTI SAINI
2024.04.19 09:26
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integrity of this document
2024:PHHC:051929
FAO-4139-2007 (O&M)
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The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident.
In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 1½ years from August 2011 to January 2013. The nature of injuries had been set out as under:
"Nature of injury:
(i) compound fracture shaft left humerus
(ii) fracture both bones left forearm
(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft femur
(vii) fracture both bones left leg We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court.
Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has TRIPTI SAINI been opined in para 13 of Sandeep Khanuja case (supra) that 2024.04.19 09:26 I attest to the accuracy and integrity of this document 2024:PHHC:051929 FAO-4139-2007 (O&M) -12- while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration.
We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 61(iii), considering the age of the appellant, would be 50% of the actual salary in the present case.
(c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish's case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court.
CONCLUSION
8. The result of the aforesaid is that relying on the settled principles, the calculation of compensation by the appellant, as set out in para 5 of the synopsis, would have to be adopted as TRIPTI SAINI follows:
2024.04.19 09:26I attest to the accuracy and integrity of this document
2024:PHHC:051929 FAO-4139-2007 (O&M) -13- Heads Awarded Loss of earning power Rs. 9,81,978/-
(Rs.14,648 x 12 x 31.1/100 Future prospects (50 per Rs.4,90,989/-
cent addition) Medical expenses including Rs.18,46,864/-
transport charges,
nourishment, etc.
Loss of matrimonial Rs.5,00,000/-
prospects
Loss of comfort, loss of Rs.1,50,000/-
amenities and mental
agony
Pain and suffering Rs.2,00,000/-
Total Rs.41,69,831/-
The appellant would, thus, be entitled to the compensation of Rs. 41,69,831/- as claimed along with simple interest at the rate of 9% per annum from the date of application till the date of payment.
11. The result of the aforesaid is that relying on the settled principles, the award dated 21.12.2005 is modified and the calculation of enhanced compensation would be as follows:-
Sr. Heads Compensation Awarded
No.
1. Income Rs.3,000/-
2. Future Prospects 50% Rs.1500/-
3. Annual Income Rs.54,000/- (3000+1500 x 12)
4. Loss of future earning per Rs.8,100/- (54,000 x 15%) annum
5. Multiplier Rs.1,29,600 (8,100 x 16) 6 Attendant Charges Rs.30,000/-
7 Pain and sufferings Rs.40,000/-
8 Nutrition & Special Diet Rs.20,000/-TRIPTI SAINI
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2024:PHHC:051929 FAO-4139-2007 (O&M) -14- 4 Total Compensation Rs.2,19,000/-
5. Compensation awarded by Rs.80,000/-
the Tribunal Enhanced Compensation 1,39,000/- (2,19,000 - 80,000)
12. So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5 Supreme Court Cases 107, the amount so calculated shall carry an interest @9% per annum from the date of filing of claim petition till the date of realization.
13. In view of the above, the appeal is allowed. Pending applications, if any, also stand disposed off.
April 05, 2024 (SUDEEPTI SHARMA)
tripti JUDGE
Whether speaking/non-speaking : Speaking Whether reportable : Yes/No TRIPTI SAINI 2024.04.19 09:26 I attest to the accuracy and integrity of this document