Punjab-Haryana High Court
Om Parkash vs Sandeep And Ors on 22 October, 2024
Neutral Citation No:=2024:PHHC:140283
1
FAO No.7105 of 2017 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.
No.7105 of 2017 (O&M)
Date of Reserve: 22.07.2024
Date of Decision: 22.10.2024
OM PARKASH ......
......Appellant(s)
Vs
SANDEEP AND OTHERS ....Respondent
....Respondent(s)
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJ
MANUJA
Present: Mr. Kulvir Narwal, Advocate
for the appellant.
Mr. Pankaj Mehta, Advocate
for
or respondent No.3/Insurance
No. /Insurance Company.
****
HARKESH MANUJA, J.
[1]. By way of present appeal, challenge has been laid to an award dated 22.12.2016 passed by the learned Motor Accident Claims Tribunal, Jhajjar (hereinafter hereinafter to be referred as "the Tribunal"), whereby an amount of Rs.76,440 76,440/-
was awarded as compensation to the appellant/claimant /claimant along with interest @ 7.5% 7.5 per annum on account of injuries suffered by him in a vehicular accident. Brief Facts [2]. The appellant, Om Parkash, being injured filed claim petition before learned Tribunal praying for grant of compensation compensation on account of injuries suffered by him in a motor vehicular accident which took place on 12.02.2015 while alleging rash and negligent driving by respondent No.1/driver. [3]. After going through the claim petition and evaluating the evidence led by both the parties, learned Tribunal arrived at a conclusion that the accident occurred on account of rash and negligent driving of respondent No.1/driver and awarded compensation in the following manner:
manner:-
1 of 8 ::: Downloaded on - 11-11-2024 05:13:44 ::: Neutral Citation No:=2024:PHHC:140283 2 FAO No.7105 of 2017 (O&M) S.No Heads of Claim Amount (in Rs)
1. Expenses relating to treatment and Rs.1,440/-
medical bills
2. 20% Permanent Disability Rs.40,000/-
3. Pain and Suffering Rs.20,000/-
4. Transportation, Attendant and Special Rs.15,000/-
Diet (Lump-sum) TOTAL: Rs.76,440/-
Liability to pay the amount of compensation to the petitioner was fastened upon all the respondents jointly and severally. [4]. Being aggrieved against the award dated 22.12.2016, the present appeal has been preferred by the appellant for enhancement of compensation. Facts as specified in the claim petition and the issue regarding negligence of the driver as held by the Tribunal are not being assailed, therefore, for the sake of brevity, those are not being repeated here.
Arguments [5]. Learned counsel for the appellant submitted that no compensation has been awarded by the learned Tribunal on account of loss of income during hospitalization period; loss of future earning capacity due to disability and disfigurement of body while taking into consideration the in injuries juries and the permanent disability suffered by the appellant. He also submitted that the compensation granted for transportation, attendant charges and special diet was on the lower side and even the compensation awarded under non non-pecuniary pecuniary heads is also required to be enhanced.
[6]. On the other hand, learned learned counsel representing respondent No.3/Insurance nsurance Company ompany submitted that appellant had been adequately 2 of 8 ::: Downloaded on - 11-11-2024 05:13:45 ::: Neutral Citation No:=2024:PHHC:140283 3 FAO No.7105 of 2017 (O&M) compensated and as such the impugned award warrants no interference and the present appeal is, thus, th liable to be dismissed.
Discussion [7]. I have heard learned counsel for the parties and perused the paper book of the case. I find force in the arguments arguments advanced by the learning counsel for the appellant/claimant.
appellant/claimant On the aspect of enhancement of compensation Assessment under "loss of income and future income"
[8]. To prove his case, appellant tendered in the evidence his affidavit as Ex.PW1/A; copy of FIR as Ex.P2; copy of discharge summaries as Ex.P3and Ex.P4; copy of OPD card as Ex.P5; medical bill as Ex.P6 and the disability certificate as Ex.P11.
[8.1]. In the present case appellant being an Ex Ex-serviceman serviceman was receiving pension and pleaded in his affidavit (Ex.PW1/A) that he was running a dairy farm and doing agricultural work. Learned Tribun Tribunal al erred while not awarding any compensation for loss of income during hospitalization, merely on account of absence of any documentary proof regarding proof of income of the injured. Reliance in this regard can be placed upon the decision rendered by the Hon'ble Supreme Court in case of "Kubrabibi "Kubrabibi v. Oriental Insurance Co. Ltd.", reported as 23, whereby it was held that in the absence (2023) 3 Apex Court Judgments (SC) 23, of definite proof of the income, the social status of the deceased was to be kept in perspective where such persons were employed in unorganized sector. Relevant para from thereof is reproduced here-under:
here -
"7. In a matter of the present nature where the compensation is sought and even in the absence of definite proof of tthe he income, the
3 of 8 ::: Downloaded on - 11-11-2024 05:13:45 ::: Neutral Citation No:=2024:PHHC:140283 4 FAO No.7105 of 2017 (O&M) social status of the deceased is to be kept in perspective where such persons are employed in unorganized sector and the notional income in any event is required to be taken into consideration. The fact that the deceased had three dependents to be cared for and had claimed that he was working as a mechanic, the amount payable to an unskilled labour, cannot be the basis and in that circumstance when he was a skilled person, the daily income at Rs.200/ Rs.200/- per day in any event could have been taken taken even if the income from jeep transport business was discarded for want of documents. More so in a circumstance, where the MACT had referred to the evidence available on record and then arrived at its conclusion, the re re-appreciation appreciation of evidence by the High High Court is without being sensitive to nature of lis before it."
Further, learned Tribunal also failed to appreciate the fact that Motor Vehicles Act, 1988 being a beneficial piece of legislation, strict rules of evidence as applicable in a criminal trial, trial, were not applicable in motor accident compensation cases. Reliance in this regard regard can be placed upon the judg judgment ment of the Hon'ble Apex Court in "Rajwati @ Rajjo v. United India Insurance Company Ltd.", reported as 2023(3) Apex Court Judgments (SC) 684 684, relevant paras from which are reproduced hereunder:-
hereunder:
"18. Similarly, in the case of Kusum Lata & Ors. v. Satbir & Ors. (2011) 3 SCC 646, this Court observed that it is well known that in a case relating to motor accident claims, the claimants are not requ required ired to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.
19. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair
4 of 8 ::: Downloaded on - 11-11-2024 05:13:45 ::: Neutral Citation No:=2024:PHHC:140283 5 FAO No.7105 of 2017 (O&M) compensation. As held by this Court in Sunita (Supra) and KusumLata (Supra), strict rules of evidence as applicable in a criminal tr trial, ial, are not applicable in motor accident compensation cases, i.e., to say, "the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal ca cases".
Undisputedly, as per notification dated 21.10.2015 issued by the Labour department, Haryana revised rates of minimum wages for an unskilled labourer from 01.11.2015 onwards were Rs.7,600/ Rs.7,600/- per month and, thus, the income of appellant at the time of motor vehicular accident needs to be assessed as Rs.7,200/- per month (Rs.240/-
(Rs.240/ per day).
[8.2]. A perusal of copy of discharge summary (Ex.P3 and Ex.P4) showed that appellant remained in Park Hospital, Gurugram from 12.02.2015 to 23.02.2015 (12 days) and again from 07.03.2015 to 12.03.2015 (6 days). Therefore, loss of income during hospitalization of appellant is assessed @ Rs.4,320/- (Rs.240 x 18).
[8.3]. Upon perusal of disability certificate of the appellant (Ex.P11), it is evident that he suffered 20% permanent disability due to injuries suffered by him on right proximal tibia. Appellant being a dairy farmer and agriculturist would definitely be said to face difficulty in doing arduous task involving significant manual labour, thus, functional disability faced by him needs to be assessed @ 20%. Now, even though there is no birth certificate or any other document to prove the accurate age on record but on cumulative reading of disability certificate (public record), discharge summary and affidavit tendered by the appellant, it can be safely presumed that he was more than 60 years of age at the relevant time. In 5 of 8 ::: Downloaded on - 11-11-2024 05:13:45 ::: Neutral Citation No:=2024:PHHC:140283 6 FAO No.7105 of 2017 (O&M) such circumstances, this Court in its humble opinion, opinion, conservatively by applying multiplier of 7, assesses loss of future income as Rs.1,20,960/ Rs.1,20,960/- (7,200 x 20/100 = 1,440 x 12 x 7).
Assessment under "other pecuniary heads"
[8.4]. Upon perusal of copy of FIR (Ex.P2) and copy of discharge summaries (Ex.P3 and Ex.P4) as well as the averments made in affidavit of the appellant, it is evident that he was first taken from the place of accident to Government Hospital, Charkhi Dadri, then to PGIMS, Rohtak and later shifted to Army Base Hospital, Delhi and finally received treatment from Park Hospital, Gurugram. In such circumstances, it can be noticed that the appellant must have incurred some expenses on transportation, thus, compensation on this count is assessed @ Rs.20,000/-.
Rs.20,000/ . Further, appellant remaine remained d in hospital for 18 days and would have definitely required attendant and nutritious diet during such period. It is also evident from the discharge summaries (Ex.P3 and Ex.P4) that the appellant was advised to undergo physiotherapy during post operation rrehabilitation ehabilitation period, thus, compensation under these heads including future medical treatment is conservatively assessed as Rs.70,000/-
Rs.70,000/ while placing reliance on the judgment of the Hon'ble Supreme Court in case of "Jagdish vs Mohan and others"
others",, reported as (2018) 4 SCC 571, whereby it was held that in cases where post operative care has to be undertaken by the injured, compensation towards future medical expenses could be awarded.
[8.5]. In the present case, appellant being an ex ex-serviceman serviceman received some treatment from Army Base Hospital, Delhi and from the cross examination of Mr. Satbir, who appeared as PW-3, PW 3, it is evident that he did not incur any expense towards the treatment there. But on the other hand, upon bare perusal of discharge 6 of 8 ::: Downloaded on - 11-11-2024 05:13:45 ::: Neutral Citation No:=2024:PHHC:140283 7 FAO No.7105 of 2017 (O&M) summaries (Ex.P3 and Ex.P4), it can be seen that the appellant received treatment in a private hospital and even remained as indoor patient for 18 days in total. Even though no medical bills other than X-ray X ray bill (Ex.P6) were proved by the appellant before the learned Tribunal Tribunal or even presented before this Court, however, considering the fact that the Motor Vehicle Act, 1988 happens to be a beneficial legislation and irrefutable evidence of appellant being hospitalized, he needs to be suitably compensated against this.
Therefore, compensation towards medical expenses is conservatively assessed as Rs.50,000/-.
Rs.50,000/
Assessment
ment under "non-pecuniary
"non heads"
[9]. In motor accident cases, determining the value of pain and suffering is
a complex process that involves considering var various ious factors and subjective assessments. Unlike economic damages such as medical expenses or lost wages, which can be calculated based on objective evidence, pain and suffering damages are more intangible and subjective. While considering the fact that no amount of compensation can alleviate the mental trauma and agony caused to the injured and loss to the future enjoyment of amenities of life, but societal balance could be maintained if he could be awarded some lumpsum amount on account of permanent disability.
disability. Therefore, in the present case, appellant is held entitled for compensation on account of permanent disability to the extent of 20% as well as pain and sufferings suffered by him to the tune of Rs.1,00,000/ Rs.1,00,000/-.
Conclusion [10]. In view of what has been discussed hereinabove, the appellant/claimant /claimant shall be entitled for the grant of compensation in the following manner:-
7 of 8 ::: Downloaded on - 11-11-2024 05:13:45 ::: Neutral Citation No:=2024:PHHC:140283 8 FAO No.7105 of 2017 (O&M) Sr.No. Nature Amount in Rupees
1. Loss of Income and Loss of future Income Rs.1,25,280/-
(4,320+1,20,960)
2. Medical Expenses/Hospitalization Rs.50,000/-
3. Pain & Suffering and Disability Rs.1,00,000/-
4. Attendant charges, Special Diet and Future Rs.50,000/-
Medical Treatment
5. Transportation Rs.20,000/-
Total Compensation Rs.3,45,280/-
Amount Awarded by the Tribunal Rs.76,440/-
Enhanced Amount Rs.2,68,840/-
[11]. The grant of interest @ 7.5%
% per annum is not just in view of the facts and circumstances of the present case and as per the observations made by the Hon'ble Supreme Court in Smt. Supe Dei and others Vs. National Insurance Company Limited and other, (2009) (4) SCC 513 approved in a subsequent judgment titled as Puttamma and others Vs. K.L. Narayana Reddy and another, 2014 (1) RCR (Civil) 443 the interest is enhanced to 9% per annum on the amount of compensation awarded to the claimant from the date of institution of claim petition till its realization but excluding the period of delay in filing of the present appeal. Needless to mention here that the amount of compens compensation ation already paid to the claimant shall be deducted from the enhanced compensation. [12]. In view of aforesaid modification, the present appeal stands disposed of. Pending miscellaneous application(s) if any, shall also stand disposed of.
(HARKESH MANUJA)
October 22, 2024
202 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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