Kumari Savita Trivedi vs United India Insurance Company ...
2013 Latest Caselaw 1914 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.24						                    Reserved
 

 
Case :- FIRST APPEAL FROM ORDER No. - 287 of 2007
 

 
Petitioner :- Kumari Savita Trivedi
 
Respondent :- United India Insurance Company Ltd.Thr.Manager
 
Petitioner Counsel :- K.S.Rastogi,Mohd.Arif
 
Respondent Counsel :- Ramesh Chandra Sharma
 

 
Hon'ble Rajiv Sharma,J.

Hon'ble Arvind Kumar Tripathi (II),J.

1. Instant F.A.F.O has been filed by Kumari Savita Trivedi aged about 27 years, Daughter of Sri Ravindra Prasad Trivedi, Resident of Mohalla-Islamabad, Kasba and Police Station Mohammadi, District Kheri for enhancement of the compensation awarded by the Tribunal in Motor Accident Claim Petition No.1 of 2004 by which learned Tribunal has awarded Rs. 2,62,650/- (two lacs sixty two thousand six hundred fifty only) on different counts.

2. A Claim Petition No.1 of 2004 was filed by Kumari Savita Trivedi against Sayeed Ahmad Son of Sri Bashir Ahmad resident of Mohalla Shuklapur, Kasba and P.S. Mohammadi, District Kheri and Ram Sharan Son of Sri Ram, resident of Village Rampur Hira, Banda, Police Station Banda, District Shahajahanpur and United India Insurance Company stating that on 10.1.2003 at about 5:30 P.M. she was coming back from Mohammadi Market to her Mohalla at Islamabad on a scooter which was being driven by her brother Yogesh Kumar and she was pillion rider. As soon as the the scooter reached near crossing of Ramlila Gate within the limits of town Mohamdi, Mahendra Jeep No. U.P.D/8878 which was being driven rashly and negligently dashed scooter from behind in which she sustained grievous injuries and her brother also sustained some injuries. She sustained grievous injuries of fracture of both the legs and Kulha and further a report was lodged on 12.1.2003 as Crime No. 36/03 under Sections 279, 337, 338, 427 I.P.C. against unknown driver of the said jeep. Further she was taken to P.H.C. Mohamdi and after giving her first aid she was referred to District Hospital Shahjahanpur where she was X-rayed and plastered and further being serious she was further referred to Lucknow where she got her treatment for about six months at Lucknow and three operations were done on her. She also got treatment from private hospital Lucknow by Dr. Acharya and she was admitted in Nirala Medical Centre Lucknow. Steel rod were planted in her leg and one leg was chopped off in which her right leg became short in length. Further treatment is still going on and almost Rs. 10 lacs has been spent on her treatment. As the claimant Savita Devi became handicapped, she has claimed Rs. 20 lacs as compensation.

Owner of the jeep O.P. No. 1 Sayeed Ahmad and driver of the Jeep Ram Saran O.P. No.2 have been arrayed as party and summons were served upon them, but they have not come to contest the claim petition.

O.P. No.3, in its W.S., has generally denied from accident and has further stated that details of Insurance or Policy particular has not been filed. Further the amount claimed has not been supported with Bills and Vouchers and claimant has not come with clean hands. It is also averred that false, vaxatious and concocted claim petition has been filed. Further it has been pleaded that vehicle was being driven against the terms and conditions of policy which will amount to breach of the policy and Insurance Company is not liable to pay the amount of compensation; that accident was caused due to rash and negligent driving of the alleged scooterist.

Out of the pleadings, the following issues were framed :-

(1) Whether driver of Jeep No. U.P.31D/8878 by rash and negligent driving caused the accident on 10.1.2003 at 5:30 P.M. in area of Mohalla Ram Lila Gate Crossing Mohamadi and Km. Savita received grievous injuries in the accident, as alleged in the petition?

(2) Whether the jeep was insured with O.P. No.3 at the time of the accident?

(3) Whether the accident occurred due to contributory negligence of the appellant, as alleged in W.S.?

(4) To what amount of compensation and from whom of the O.Ps. The appellant is entitled to get ?

3. Learned Tribunal below after going through the evidence on record has allowed the claim petition and directed Opposite Party No.3 United India Insurance Company to make the payment of compensation of Rs. 2,62,650/- (two lacs sixty two thousand six hundred fifty only) to claimant along with interest at the rate of 6% per annum. The appellant feeling aggrieved by inadequacy of this amount has filed this F.A.F.O.

4. We have heard Sri K.S. Rastogi, learned counsel for the appellant and Sri R.S.Mishra, learned counsel for the United India Insurance Company.

5. As only the quantum of compensation has been challenged hence, we are confining ourselves to that aspect only. It was argued by learned counsel for the appellant that while deciding the claim petition, the Tribunal has awarded (1) Towards pain and suffering Rs. 25,000/-, (2)towards loss of income of Rs. 1,02,000/-, (3) towards medical of Rs. 1,02,615/- and towards journey of Rs. 33,000/-. It was also argued that learned Tribunal has not given any amount towards the loss of amenities and discomfort on account of disability as well as loss of prospect of marriage. It was further submitted that the amount granted by the Tribunal under various heads is inadequate and it also needs to be enhanced.

6. Learned counsel for the appellant relied upon a decision reported in (2011) 12 SCC 488 Kumaresh Vs. Divisional Manager National Insurance Company and Another. Learned counsel for the Insurance Company has also relied upon the case of Raj Kumar Vs. Ajay Kumar and Another reported in 2011 (1) TAC 758 (SC) and PriyaVasant Kalgutkar Vs. Muradshaikh and Ors. reported in 2009(4) T.A.C.760 (S.C.) and argued that the amount granted by Tribunal is adequate as compensation can be determined either on the basis of actual damages suffered or upon application of structure formula.

7. In the case of PriyaVasant Kalgutkar Vs. Muradshaikh and Ors. (supra) , the victim was aged 9 years and she has suffered 10% permanent disability. On appeal the High Court enhanced the quantum. The Apex Court has held that victim was a child having no earning. Hence, the amount should not have been determined on the basis of notional income and after he lost all earning could not have been determined on the basis of any legal principle and the Apex Court has held that amount of compensation granted by the High Court appeared to be adequate in absence of any evidence having been brought on record regarding actual damages. In the case of Raj Kumar Vs. Ajay Kumar (supra), the Apex Court while relying upon the case of C.K.Subromoniya Iyer Vs. T.Kunhikuttan Nair 1970 ACJ 110 (SC), R.D.Hattangadi Vs. Pest Control (India)Ltd. 1995(1) ACJ 366 : 1995(1) T.A.C.557(SC) and Baker Vs. Willoughby 1970 ACJ 259 (H.L. England) laid down the categories under which compensation is to be awarded in personal injuries cases, which are as follows :

"Pecuniary damages (Special Damages)

(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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve 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 (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. Decision of this Court and High Courts contain necessary guidelines for 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)."

8. The Apex Court has further held that :

"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 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 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 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 accidents 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, 1995 (`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.

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 same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) 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 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%.

Where the claimant suffers a permanent disability as a 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 loss of earning capacity. In most of the cases, the percentage of economic loss, that is, 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 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 disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns 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 find that 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 India Assurance Co.Ltd. - 2010 A.C.J. 2867 :2010 (4) T.A.C.385 (s.C.) and Yadava Kumar v. Divisional Manager, National Insurance Co. Ltd., 2010 A.C.J. 2713 : 2010 (4) T.A.C. 10 (S.C.).

9. Therefore, the Tribunal has to first decide whether there 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; (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, 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 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. The Apex Court has in the case of Raj Kumar (supra) further held that :

Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has 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 ability (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 work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any 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 activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."

10. In the case of Kumaresh Vs. Divisional Manager (supra) , the High Court has enhanced a compensation on account of pain and suffering loss of income during treatment, medical expenses for whole life, loss of future earnings, loss of amenities and enjoyment of life including loss of marital prospects, conveyance charges and food and nourishment. Apex Court has enhanced the amount awarded under head of loss of amenities and enjoyment of life including loss of marital prospects from Rs. 75,000/- to Rs. 3,00,000/-. Apex Court also enhanced the amount awarded for medical expenses for whole life to Rs. 1,00,000/- convenience charges to Rs. 250,000/- and for food and nourishment Rs. 50,000/- and thus enhanced the compensation from Rs. 5,48,000/- to Rs. 10,00000/- (ten lacs).

11. It is evident from the decision relied upon by learned counsel for the United India Insurance Company that compensation on account of injuries would be ascertained as has been mentioned above.

12. In view of the above guidelines we have to examine as to what should be the adequate compensation.

13. The Tribunal has held that the appellant has sustained grievous injuries by fractures, she has become handicapped and certificate to the effect has been filed that she became handicapped to 40%. It has also been held that she remained under treatment for several months and paper of treatments has been filed by the appellant. Tribunal has held that so far as loss of future income is concerned, injured was not in a job and she was studying. The Tribunal has applied the notional income to assess the loss of income and thus considered Rs. 15,000/- as her notional income. The accident took place in the year 2003 and the victim was at the time of accident was 24 years. In the case of Laxmi Devi and anohter Vs. Md. Tabbar and another reported in 2008 A.C.J. 1488, the Apex Court has held that the figure arrived by the High Court at Rs. 100/- per day should be the income where income is not proved appears to be correct. In view of this, the present victim though, she was student yet it cannot be ruled out that she might not have contributed in household work. In view of this the notional income is treated to be 3,000/- per month. In view of this, the loss of income comes to Rs. 3000 x 40% = 1200/- per month. Hence, annual loss of income comes to Rs. 1200 x 12. Applying the multiplier of 17 comes to Rs. 1200 x 12 x 17 = 2,44,800/-(two lacs forty four thousand eight hundred only). Thus this is the figure which the appellant is entitled on account of loss of future income. Finding of the Tribunal is modified accordingly.

14. From the perusal of the award given by the Tribunal, we find that no amount has been awarded under the head loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life and shortening of normal longevity.

15. It is to be noted that the victim is a young girl who has met the accident at the age of 24 years in the year 2003 and now she has become 34 years of age and it was argued by the learned counsel for the appellant that she has not been able to get married due to permanent disability. Learned counsel for the Insurance Company was not able to refute this argument. In view of this we are of the view that on the above two grounds the appellant is entitled to a compensation of Rs. 3,00,000/-(three lacs only).

16. Thus the compensation awarded by the Tribunal is modified and the compensation awarded is as follows :-

(i) Towards pain and suffering, Rs. 25,000/-

(ii) Towards loss of income, Rs. 2,44,800/-

(iii) Towards medical bill, Rs. 1,02,615/-

(iv) Towards journey, Rs. 33,000/-

       (v) Loss of amenities (and/or loss of prospects and marriage) and loss      	of expectation of life, Rs. 3,00,000/-
 
17.	Thus the F.A.F.O. is liable to be allowed and is hereby allowed.
 

18. The award of the tribunal is modified to the extent that appellant is entitled for compensation of Rs.7,05,415/-(seven lacs five thousand four hundred fifteen only). The United India Insurance Company is directed to pay the above awarded amount within three months. The Insurance Company is also liable to pay interest at the rate of 6%on the enhanced amount from the date of filing of the petition till the date of actual payment. Failure of payment of this awarded amount and interest will enable the appellant to get the award executed after filing proper application before the Tribunal.

19. The amount of Rs.3,00,000/- (three lacs) be deposited in Monthly Income Scheme in the nearest post office for six years and she will be entitled for the monthly interest accrued.

[Justice Rajiv Sharma]

[Justice Arvind Kumar Tripathi (II)]

Order date :10th May, 2013

Ashish pd.