Punjab-Haryana High Court
Jagdish Kumar vs Arvind And Ors on 19 October, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:143064
FAO-1944-2007
2007 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO
FAO-1944-2007 (O&M)
Date of Decision : 19.10.2024
Jagdish Kumar ....Appellant
Versus
Arvind @ Ravinder and others ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr.Ajay Jain, Advocate
Mr
for the appellant.
Mr. Ravinder Arora, Advocate for the respondent
respondent-Ins. Co.
-.-
SUDEEPTI SHARMA,
SHARMA J.
1. The instant appeal has been preferred by the claimant/appellant for
enhancement of compensation awarded by the learned Motor Accident Claims
Tribunal, Hisar (for short, 'the Tribunal') vide award dated 01.03.2007 under
Section 166 of the Motor Vehicles Act, 1988,, whereby the claimant/appellant was
awarded compensation of Rs.1,09,000/-
Rs. along with interest @ 6% per annum.
FACTS NOT IN DISPUTE
2. Brief facts of the case are that on 23.11.2001, petitioner Jagdish Kumar alongwith one Purshotam Dass was going for walk from his residence to City Hansi. They were on foot. When they were on B.T. Road, a Tata Tata-709 709 truck bearing registration No.HR 38-C/2182 38 C/2182 came from the opposite side. The said truck was being driven by the respondent No.1 in a rash and negligent manner and struck against the petitioner from front side, as a result of which, the petitioner fell down and received serious and grievous injuries on various parts of his body. His left leg below w knee joint was crushed by the said truck. After the accident, the injured was 1 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -2- taken to General Hospital, Hansi by Purshotam Dass where first aid was given to him. Since injuries of the petitioner were serious, therefore, he was referred to Chawla Nursing Home, Hisar. The petitioner was got admitted in the Chawla Nursing Home, Hisar for treatment and he was operated upon there. The petitioner also took treatment from Dental Care Centre, Pushpa Complex, Hisar for fracture of mandible. FIR No.617 dated 17.12.2001 17.12.2001 under Section 279 and 338 IPC was registered about this accident at Police Station City Hansi. The petitioner claims to have spent Rs.1,00,000/-
Rs.1,00,000/ on his treatment and pleaded that Rs.50,000/ Rs.50,000/- more are required for further treatment and that due to the accident, he suffered pecuniary loss, pain and agony, permanent disability, loss of earnings etc. The petitioner also claimed that he used to earn Rs.8,000/-
Rs.8,000/ per month from his business. On these premises, the petitioner sought sum of Rs.5,00,000/ Rs.5,00,000/- as compensation pensation together with interest @ 18% per annum and costs of the proceedings from the driver, owner and insurer of the offending truck.
3. Upon notice of the claim petition, respondents appeared and denied Upon the factum of compensation.
4. From the pleading of the parties, the Tribunal framed the following issues:-
"1. Whether Jagdish Kumar petitioner received injuries in an accident which occurred on 23.11.2001 due to rash and negligent driving of Tata-709 709 being registration No.HR 38- 38 C/2182 by Arvind Kumar Ravinder respondent No.1? OPP
2. Whether the issue No.1 is proved, the claimant is entitled to claim compensation, if so to what amount and from whom? OPP 2 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -3-
3. Whether this petition is filed by the petitioner in collusion collusi with respondent No.1 and 2 to claim compensation? OPR OPR-3
4. Whether the vehicle was not driven by a person holding valid and effective driving licence at the time of accident? OPR-3
5. Whether the vehicle was driven in contravention of terms and conditions of insurance policy? OPR OPR-3
6. Relief ""
5. After taking into consideration the pleadings and the evidence on record, the learned Tribunal awarded compensation of Rs.
Rs.1,09,000/- alongwith interest @ 6% per annum.
annum Hence the claimant/appellant filed the present appeal for enhancement of compensation awarded by the Tribunal. SUBMISSIONS OF THE COUNSEL FOR THE PARTIES
6. The learned counsel counsel for the claimant claimant-appellant contends that the amount assessed by the learned Tribunal is on the lower side.
He further contends that the appellant suffered permanent disability to the extent of 30% 30 as result of post traumatic deformity of left ankle and the disability certificate is produced on record as Ex.P Ex.P-26.
He further contends that the learned Tribunal has granted only Rs.39000/- for medical expenses which is also on the lower side.
He further contends that the Tribunal has awarded Rs.
Rs.10000/- for transportation and special diet; Rs.10,000/- for pain and suffering and Rs.50,000/ 000/-
for permanent disability, which is also on the lower side.
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7. Per contra, learned for the respondent respondent-Insurance Company argues that the learned Tribunal vide award dated 01.03.2007 has rightly assessed the amount amou of compensation.
8. I have heard learned counsel for the parties and perused the whole record of this case.
case
9. A perusal of the award shows that the claimant was stated to be businessman earning Rs.8000/- per month. However, no documentary evidence was adduced by the claimant in this regard.. Therefore, tthe income of the claimant is to be assessed as Rs.2050/-
Rs.2050/ per month in accordance with the minimum wages prescribed for unskilled workers in the State of Haryana. Further thee amount awarded by the Tribunal for transportation charge charges,, special diet, pain and suffering and permanent disability are on the lower side. Therefore, the award requires interference of this Court.
SETTLED LAW ON COMPENSATION
10. 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 343,, has Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343 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 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 4 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -5-
equitable manner. The court or tribunal shall have to assess the damages objectively 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 uused sed 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)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gain gains)
s) 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 Non-pecuniary pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
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(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shorteni (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 expectat 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.
(ii) The percentage of permanent disability with refe reference rence 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, whe where re 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 injured-claimant claimant or who examined him subsequently to assess the extent of hhis is permanent disability can give evidence only in regard the extent of permanent disability. The loss of 6 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -7-
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 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/-
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, 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/ 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 3000/-
is assessed at 60%. He was terminated from his job as he ccould ould 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 7 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -8- 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/ 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 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 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)].
11. 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 8 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -9- Sections 166, 163-A 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 self employed or fixed salary.
The relevant portion of the judgment is reproduced as under:
under:-
" Therefore, we think it se
seemly
emly 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 head headss is an acceptable principle. But the revisit should not be fact fact-centric centric or quantum-
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 bbee 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."
12. Hon'ble Supreme Court in the case of Erudhaya Priya Vs. State Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:-
9 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -10- " 7. There are three aspects which are required to be examined by us:
(a) the application of multiplier of '17' instead of '18' '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 Ver Verma ma (Smt) and Others v. Delhi Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age group of 15-25 15 25 years, the multiplier has to be '18' along with factoring in the extent of disability.
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 low 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 10 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -11- 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] 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 perman 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 11 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -12-
(v) subtrochanteric fracture
ture 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 been opined in para 13 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and nd 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 appellantt 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 12 of 15 ::: Downloaded on - 10-11-2024 23:55:28 ::: Neutral Citation No:=2024:PHHC:143064 FAO-1944-2007 2007 (O&M) -13- view of the judicial pronouncements including in th thee 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 resaid 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 follows:
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/-
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.
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13. In view of the above, the present appeal is allowed and award dated 01.03.2007 is modified.
14. Accordingly, as per the settled principles of law as laid down by Hon'ble Supreme Court as mentioned above, above, the appellant - claimant is held entitled to the enhanced compensation amount as calculated below below:
Sr. Heads Compensation Awarded
No.
1 Income Rs.
Rs.2050/-
2 Future Prospects 25% Rs.
Rs.512/- (25% of 2050)
3 Annual Income Rs.
Rs.30744/- (2050+512 x 12)
4 Loss of future earning per Rs.
Rs.9223/- (30744/-x 30%)
annum @ 30%
5 Multiplier (13) Rs.
Rs.1,19,899/- (9223 x 13)
5. Medical Rs.
Rs.39000/-
6 Attendant Charges Rs.
Rs.20,000/-
7 Transportation Rs.
Rs.15,000/-
8 Pain and Sufferings Rs.
Rs.30,000/-
9 Special diet Rs.
Rs.30,000/-
11 Loss of amenities of life Rs.
Rs.50,000/-
Total Compensation Rs.
Rs.3,03,899 /-
Amount Awarded by the Rs.
Rs.1,09,000/-
Tribunal
Enhanced amount Rs.
Rs.1,94,899/-
15. 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 appellant-claimant claimant is granted the interest @ 9% per annum on the enhanced amount from the the date of filing of claim petition till the date of its realization.
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16. The Insurance Company is directed to deposit the enhanced amount of compensation along with interest with the Tribunal within a period of two months from today. The Tribunal is further directed to disburse the enhanced amount of compensation along with interest in the account of the claimant/ claimant/appellant.. The claimant/appellant /appellant is directed to furnish his bank account details to the Tribunal. Stayed amount by this Court, if any, shall shall also be released to the appellant.
17. Pending applications, if any, also stand disposed of.
19.10.2024 (SUDEEPTI SHARMA)
A.Kaundal JUDGE
Whether speaking/non-speaking
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