Sanjay Singh Chauhan vs Oriental Insrucane Company ...
2013 Latest Caselaw 2058 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 24							   Reserved         									
 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 284 of 2009
 

 
Petitioner :- Sanjay Singh Chauhan
 
Respondent :- Oriental Insrucane Company Limited Through Branch Manager
 
Petitioner Counsel :- Srees Kumar Srivastava,Anoop Srivastava Ii
 
Respondent Counsel :- Ashok Mehrotra,Maneesh Nigam
 

 
Hon'ble Rajiv Sharma,J.

Hon'ble Arvind Kumar Tripathi II,J.

1. The instant First Appeal From Order has been filed by Sanjay Singh Chauhan son of Sri Bharat Singh, reisdient of 703, Bandhuhaar Civil Lines, Police Station Kotwali Unnao, District Unnao for enhancement of the compensation awarded vide award dated 4.8.2008 passed by MACT/Additional District Judge Court No. 1, District Unnao by which appellant has been awarded Rs. 55,400/- (fifty five thousand four hundred) for the injuries received in an accident.

2. In short, the case of the appellant is that on 29.11.2003 at about 10:30 A.M. he was coming to Unnao along with Amar Nath on a motorcycle No. UP 35 C 9394. The motorcycle was being driven slowly and on the left side of the road. When they reached near Village Bhadni, a bus bearing no. UP 35 B 001 which was coming from Unnao being driven rashly and negligently hit the motorcycle due to which the appellant received serious injuries and he received two fractures in his left leg. Motorcycle was also damaged. He was brought to District Hospital Unnao but due to serious injuries he was referred to Halet Hospital, Kanpur. From next day he was sent to the Base Hospital. He received treatment up to 10.1.2004 for about 42 days. A claim petition was filed for seeking compensation of Rs. 42,53,400/-.

3. Opposite Party No.1 the owner of the vehicle has, while filing the written statement stated that she is the registered owner of the vehicle bus bearing no. UP 35 B 001 and at the time of alleged accident, the bus was being driven by an experienced and able driver. The appellant and Amar Nath were injured while they fell from the motorcycle and in order to claim, compensation they have lodged a wrong F.I.R. Her bus was insured from the Oriental Insurance Company Ltd. Unnao and the insurance was valid from 14.7.2003 to 13.7.2004. Opposite Party No. 2 the Insurance Company filed the written statement to the effect that due to lack of complete details of insurance, the insurance is denied. It is denied that Opposite Party No.1 is the registered owner of the vehicle in question. There was no negligence on the part of the bus driver. The accident occurred due to sole negligence of motorcycle driver. They fell from the motorcycle aft er they lost the balance due to rash and negligent driving. The vehicle driver was not having valid and effective driving licence at the time of accident and the vehicle was also not registered as per the provisions of Motor Vehicle Act. The bus was being driven without permit and proper registration.

4. Learned Tribunal framed following issues :

(i) Whether on 29.11.2003 at about 10:30 A.M. near Bhadni village on Unnao- Hardoi Road, an accident took place by rash and negligent driving by the vehicle driver of vehicle no. UP 35 B 001 due to which Sanjay Singh received serious injuries ?

(ii) Whether the bus was insured with Oriental Insurance Company at the time of accident and whether the vehicle was being plied in consonance with the insurance agreement ?

(iii) Whether the vehicle driver was having a valid and effective driving licence at the time of accident and whether the bus was plied according to provisions of Motor Vehicle Act ?

(iv) Whether the accident was result of contributory negligence of the claimant ?

(v) Whether owner and insurer of the motorcycle are necessary parties in this case?

(vi) Whether the motorcycle driver was having valid and effective driving licence at the time of accident ?

(vii) Relief .

5. In order to prove his case claimant has examined himself as P.W. 1, Pappu Mishra as P.W.2 and has also filed filed several paper which will be dealt at the appropriate place. The opposite parties have examined Kamlesh D.W.1 and have also filed several papers which shall be discussed at appropriate stage.

6. Learned Tribunal after going through the evidence and papers on record held that there was no contributory negligence on the part of motorcycle driver, the accident took place due to rash and negligent driving of the bus bearing no. UP 35 B 001 and motorcycle owner and the insurers are not necessary parties. The Tribunal has also held that at the time of accident, bus was insured with the Oriental Insurance Company Ltd. It was also held by the Tribunal that Kamlesh, the bus driver was having effective and valid driving licence at the time of accident and the bus was being plied in consonance with Motor Vehicles Act and its rules. It was also held that motorcycle driver was having valid and effective driving licence at the time of accident. The appellant was allowed for a claim of compensation of Rs.Rs. 55,400/- (fifty five thousand four hundred) along with 6 per cent interest. Feeling aggrieved this F.A.F.O has been filed for enhancement of the compensation amount.

7. No F.A.F.O has been filed by either the owner or the insurance company hence, the only thing which has to be decided is that whether the compensation is inadequate? If yes, then what should be the proper compensation ?

8. We have heard learned counsel for the parties.

9. Learned counsel for the appellant has relied upon the case of R.D. Hattangadi Vs. M/s.Pest Control(India) Pvt. Ltd. and ors. reported in 1995 Supreme Court 755 wherein the Apex Court has held that:

"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment frustration and mental stress in life.

10. It cannot be disputed that because of the accident the appellant who was an active practicing lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.

In the case Ward v. James it was said :

Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worth-while. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the change in the value of money.

11. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards."

10. In the case of Raj Kumar Vs. Ajay Kumar reported in 2011 (1)TAC 758 (SC), the Apex Court while relying upon the cases 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 guidelines under which compensation is to be awarded in personal injuries cases, which are as follows :

"Pecuniary damages (Special Damages)

Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

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 actual 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).

11. 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.).

12. A perusal of the record reveals that appellant has filed paper no. 44 C, 45C, 46C and 47 C regarding his status in service. The paper no. 44C mentions that :

(i) He has been placed in low medical category A-2

(ii) He will be exempted from the following benefits :

(a) He cannot be promoted to the higher rank

(b) He cannot be posted FD/HAA hence, cannot draw field and HAA allowances

(c) He may be discharged from Army service if shelter appointment is not given the interest of Army.

Paper no. 45 C is a certificate granted by his Unit Officer that on 29th November 2003 which reveals that :

(i) he was on leave and met with an accident as because of which he has permanent category A-2.

(ii) He will loose out of many type of allowances which were authorized to him due to this category such as high altitude allowance, F.D.Area allowance and alive allowances etc.

(iii) Had he been fit and medical category SHAPE-1 he could have served till 32 years but now on account of being a medical category A-2 he will only be able to serve for 15 years as per the existing rules.

(iv) After being relieved from service on medical grounds, he cannot serve in any type of government service.

13. A perusal of the record also reveals that he has been issued permanent disability certificate to the tune of 50%. All the above papers clearly goes to show that he has become disable due to the accident which occurred on 29.11.2003 at 10:30 A.M. Above papers also reveals that he will remain in service for 15 years of service hence, he will loose the earning minus pension for next 17 years and he will not get service anywhere else after retirement. This clearly goes within the category of loss of earning.

14. The Tribunal has not granted any amount on the count of loss of earning and given a curious reasoning. It has been said that claimant's date of birth is 2nd April, 1978 and at the time of award i.e. in 2008 he is still in service, while he should be in service till 2010, after completing 32 years of srvice. The Tribunal has not considered that year 2010 is product of adding year of birth and 32. It is on record that claimant joined the service on 26th October, 1996, so the length of service will be calculated from the date, when he entered in the service. So after adding 15 years of service, he would have retired in the month of October 2011. If he would not have met with the accident, he might have continued till October 2028. From the perusal of paper no 45 C it is clear that he will not be able to get another government job after year 2011.

15. Learned counsel of Insurance Company was not able to assert that at the time of hearing of this F.A.F.O., claimant was still in service. Hence, we can safely assume that he has lost 17 years of active service and income.

16. Claimant's income has been stated to be Rs. 7,700/- per month. Paper no. 46 C is certificate regarding pay and pension. The pay mentioned in this certificate is shown without merger of 50% of D.A.

17. The claimant was in a government job and at the time of accident he was about 26 years of age as is evident from the injury report 41 C and also from the age mentioned before the Tribunal at the time of accident. In the case of Sarla Verma and others Vs. Delhi Transport Corporation and Another reported in 2009(6) SCC 121, it has been held that :

" 24....In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as" actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary(without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

18. Though this principle is applicable on matters of death but as the claimant was not able to work after 2011, we find it appropriate that while computing the loss of income this principle be adopted and 50% of the actual salary should be added. So after his retirement the total salary which could be considered for ascertaining loss of income will be Rs. 10,000/-. The disability certificate shows that he has suffered 50% disability, so his earning capacity shall be down by Rs. 5,000/- per month after 2011. In the year 2011 we can safely assume his age would have been 33 years and after retirement he must be getting 50% of his salary as pension. So the loss of earning capacity should be Rs. 5000 x 50% = 2500/- per month and multiplying by 12 it will come to Rs. 30,000/- per annum.

19. In the case of Sarla Verma (supra) the Apex Court has prepared a chart of the multiplier of the same to be adopted by the the Tribunals which was approved by Full Bench of the Apex Court in case of Reshma Kumar Vs. Madan Mohan & other, C.A.46 of 2009, decided on April 2, 2013.. This table reveals that multiplier of 16 will be applicable in the case of a person whose age is between 31 to 35 years. So the entire loss of income will come to Rs. 30,000 x 16= 4,80,000/-(four lacs eighty thousand only).

20. After arriving at this figure we are of the opinion that this will cover every aspect which has to be considered as per decision of Raj Kumar Vs. Ajay Kumar (supra). This will not include Rs. 55,400/- which the Tribunal has awarded.

21. So in our opinion the claimant is entitled to total compensation of Rs. 4,80,000+55,400=5,35,400/- (five lacs thirty five thousand four hundred only).

22. In view of the above discussion the F.A.F.O is partly allowed. Appellant is entitled to total compensation of Rs. 5,35,400/- (five lacs thirty five thousand four hundred only). A perusal of the record reveals that he has received Rs. 62,325/- which was deposited by the Insurance Company before the Tribunal below. Needless to say that he will be entitled to interest on the enhanced amount at the rate of 6% from the date of filing the petition till the actual date of payment. The liability to pay this amount will be on Oriental Insurance Company Limited which shall deposit the enhanced amount along with the interest before the Tribunal within a period of two months failing which the claimant will have every right to get this amount recovered by moving appropriate application before the Tribunal.

[Justice Rajiv Sharma]

[Justice Arvind Kumar Tripathi (II)]

Order date :14th May,2013

Ashish Prasad