Icici Lombard Motor Insurnace ... vs Santosh Verma Alias Santosh Soni ...
2013 Latest Caselaw 6600 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 17.9.2013
 
Delivered on 25.10.2013
 
Court No. - 3
 
Case :- FIRST APPEAL FROM ORDER No. - 3700 of 2011
 
Appellant :- Icici Lombard Motor Insurance Company Ltd.
 
Respondent :- Santosh Verma Alias Santosh Soni And Another
 
Counsel for Appellant :- Amit Manohar
 
Counsel for Respondent :- I.B.Singh,R.K.Shukla
 
                                  Connected with
 
Case :- FIRST APPEAL FROM ORDER No. - 4336 of 2011
 
Appellant :- Santosh Verma Alias Santosh Soni
 
Respondent :- Rajinder Singh Tewar And Another
 
Counsel for Appellant :- Smt. Luxmi Singh,Indra Bahadur Singh,R.K. Shukla,Sangam Singh
 
Counsel for Respondent :- Amit Manohar
 

 
Hon'ble Devendra Pratap Singh,J.

Hon'ble Mushaffey Ahmad,J.

1. Heard learned counsel for the parties and perused the record and with their consent, both the Appeals are being finally decided.

2. These two First Appeal From Orders have questioned the award dated 30.8.2011 passed by the Motor Accident Claim Tribunal, Etawah in Claim Petition No. 698 of 2008.

3. The appeal no. 3700 of 2011 has been filed by the Insurance Company (here-in-after referred to as 'Company') challenging the award on various grounds including its liability and quantum.

4. The appeal no. 4336 of 2011 has been filed by the claimant seeking enhancement on various grounds including for the disability caused and future prospects.

5. Since the facts and law involved in these two appeals are common both have been heard together and are being decided by a common judgment.

6. The claimant Santosh Verma, a resident of Etawah in U.P., filed the aforesaid claim petition under Section 166 of the Motor Vehicle Act, !988 ( hereinafter referred to as the Act.) through his wife as next friend with the allegation that he had gone to Delhi in his chauffer driven Wagon R car and on 3.4.2008, as soon as the driver Saurabh Misra, got green signal on the traffic lights at the Delhi Gate intersection, he started moving but at the same time, a truck Dumper no. HR-38/ N-4733 being driven recklessly and negligently jumped its red light and crashed into his car at 4.30 A.M. resulting in multiple grievous injury to him and he fainted while the driver escaped with minor injuries. A P.C.R. Van whereupon admitted him in Lok Nayak Jai Prakash Narain Hospital at Delhi where he remained for about 4-5 hours and thereafter was shifted to Apollo Indraprashth Hospital also in Delhi where he remained hospitalized for about two months. During treatment, he was operated upon several times and a rod was implanted in his leg and a plate was fixed on his hip, his ribs were fractured. Spinal cord was damaged which led to damaging the nerves. He became paralytic and feeble. He lost his memory, the power of rational thinking and reason and was kept in a ventilator for 25 days. The report of the accident was lodged at P.S. Dariyaganj as case crime no.102 of 2008 under section 279, 337 I.P.C. on the same day at 4.45 A.M. It was also stated that at the time of accident, he was 32 years old healthy young man and he used to manufacture and sell gold ornaments and earned Rs.17000/- a month and supported his wife and minor children and that the accident had led to 80% permanent disability and therefore claimed Rs.68,30,000/- as total compensation under section 166 of the Act.

7. The appellant Insurance Company which had insured the offending Dumper denied the allegations including the income, age etc. and that the offending vehicle was not insured and did not have necessary legal papers and the driver did not have a valid driving license.

8. Though the service was sufficient upon the owner, neither written statement was filed nor he appeared before the Court but submitted a list of documents and therefore the proceedings were held exparte against him.

9. After the parties had exchanged their pleadings, the Tribunal framed as many as four issues including with regard to insurance coverage, driving license and quantum. The claimant filed large number of documents and examined himself, his wife, Doctor etc. to prove his case. However, the Insurance Company did not lead any oral or documentary evidence.

10. The Tribunal on the issue of negligence held that the offending Dumper was being driven negligently and rashly and held it responsible for causing the accident. It further went on to hold that the offending driver held a valid driving license on the date of the accident and that the vehicle was insured with the appellant Insurance Company and possessed all papers. On the question of quantum, it found that the claimant had spent Rs.7,41,173/- on medical treatment, it granted Rs. 5,000/- for mental and physical pain, Rs.10,000/- for nutritional diet and Rs.7800/- for transportation. Against disability certificate of 80% and 75%, it found 50% permanent disability and held the income to be Rs.10,000/- a month whereupon in total, it granted Rs.16,73,007/- as compensation.

11. It is urged on behalf of the Company that the Tribunal did not frame any issue with regard to contributory negligence and whether the offending vehicle had a valid permit and therefore it could not assert its right of recovery from the owner. Contradicting the argument, it is contended on behalf of claimant that it was open to the Company to have led evidence with respect to contributory negligence under issue no.1, but it lead no evidence at all and did not even argue it before the Tribunal on any of the points. It is also argued that the Company did not lay any stress for framing any other issue.

12. Initially, the Company denied the very factum of the accident and alternatively stated that if the accident is proved then it was a case of contributory negligence without specifically denying the story as set up in the claim petition that the offending vehicle had jumped the red signal and dashed against the car of the claimant when it was crossing over on green light. A perusal of the record shows that the company had baldly denied all allegations in its written statement, including that the offending vehicle was even insured though the policy number and its validity were mentioned in the claim petition. Even in regard to permit there is a bald denial that the offending vehicle did not have any valid papers but there is no specific denial that it did not possess any valid permit. Non-framing of even an important issue would not be fatal if the parties are aware as to what they have to face in the trial and accordingly could lead their evidence. It would also have to show what prejudice has been caused. If a party feels that an issue does arise, it can ask the court to amend an issue or frame any additional issue under Order XIV Rule 5 of the Code Of Civil Procedure and the Court has further power even to compel the production of documents if the issue cannot be properly framed, under Rule 4. In the present case, the issues were framed on 20.11.2009 but the counsel for the company did not seek framing of any other issue. In fact, it is recorded in the order sheet that none of the parties pressed for any other issues. This fact is neither contested nor denied. In fact, the company stepped into the shoes of the owner when its application was allowed under section 170 of the Act. Again, it did not lead any evidence despite opportunity to prove its case and did not even file the investigators report. Further, no prejudice is pleaded or proved. Therefore, the argument of the learned counsel for the appellant appears to be an empty rhetoric without any substance and foundation and as such is rejected.

13. The counsel for the Company then contends that the disability certificate could not be relied upon in view of the endorsement thereon. However, to the contrary, the contention of the claimant is that though the disability certificate was only for 80% permanent disability, but the injuries and the evidence of the doctor shows that the claimant has become a vegetable and thus loss of earning ought to have been adjudged at 100%.

14. The claimant had filed two certificates, first disability certificate showing 80% dated 5.11.2009 and second dated 16.9.2010 showing 75% disability. Both these certificates were given by a Medical Board and countersigned by the Chief Medical Officer and both were proved by Dr. T.K. Jha, who was one of the three members of the Board.

15. Before the court considers the two certificates and rival submissions, it would be appropriate to take note of the nature of the vocation of the injured and his injuries, diagnosis, the treatment, status at discharge and his condition thereafter.

16. As already found above, the injured claimant had to file the claim petition through his wife as next friend due to his mental and physical condition. Though the claimant has been examined as PW 1, he has not said anything about his vocation or earning and says he does not remember anything even with regard to the accident. The wife has been examined as PW2, she has stated that her husband was a goldsmith and used to make jewellery at his house and sell it and used to earn about 1.5 to 1.75 lac a year, but he had no shop and after the accident, he cannot work and has become paralytic. She also disclosed that he used to file his Income Tax Returns. There is absolutely no evidence to the contrary to even suggest that the claimant was engaged in some other vocation, therefore, it can safely be held that he worked as a goldsmith and used to make and repair jewelery at his residence and thereby used to earn his livelihood by selling it. There is also nothing to show that he was a trader or a salesman because he used to sell his self made wares. The work of a goldsmith requires lot of precision apart from concentration and involves perfect coordination of the mind and hand. In this background let us examine the injuries and his condition at the hospital and after discharge.

17. The accident occurred on 3.4.2008 and he was deposited the same day in LNJP Hospital in an unconscious state and later shifted to Apollo Hospital where he remained in coma for about 25 days and discharged after about 2 months. There he was diagnosed as head injury case with Diffuse Axonal injury; Fracture Odontoid-Undisplaced; Fracture Shaft and Neck-Right Femur. He was intubated in triage. NCCT head was done revealing thin extra-axial collection in right temporal region with right temporal contusion with intraventricular bleed. CT of Cervical spine revealed fracture odontoid involving base and body, fracture spinous process C6, C7 and traverse process C7. X-ray revealed fracture right femur. He was admitted in ICU and electively ventilated. Thomas splint was applied for femur fracture. MRI of Cervical spine revealed disc herniation C5 C6 with focal mild indentation of thecal sac and cord. He was gradually weaned off the ventilator, but in view of slow recovery PEG insertion was done and tracheostomy was also performed to assist in breathing. The pressure sore in occipital region was treated and NCCT head was repeated which revealed gradual regression in contusion and regression in intra-ventricular bleed.

18. The condition of the injured at the time of discharge was as follows : A Febrile. CSC-E4M6V5, occasionally speaks irrelevantly. Ambulant on wheel chair. PEG, tracheostomy and condom catheter in situ. Philadelphia collar in situ. He was given the following advice on discharge :- Diet- PEG feeds with oral supplementation. Activity:- Wheel chair mobilization. He was further advised for physiotherapy and wheel chair mobilization and use of Philadelphia collar and to take care of PEG, tracheostomy and condom catheter., and was asked to return after a month with fresh NCCT head and cervical spine.

19. After return to Etawah, he again visited Appollo, SGPGI, Lucknow and SGPGI, Safai for follow up treatment. He was examined by a Medical Board of three members for disability on 5.11.2009 which assessed it as 80% and on advice he was re-examined by the same Board for fresh assessment on 16.9.2010 and found 75% disabled. Both these certificates were duly countersigned by the CMO. Dr. T.K.Jha, an orthopaedic and one of the members of the Medical Board, proved the two certificates and deposed that the medical history, treatment and other papers were examined. He further deposed that when the injured was examined on the first occasion, it was found that neither he felt anything during urination or defecation nor he had any control over it but thereafter he began to feel it. He further opined that the injured could not carry on his daily routine without another's help. He went on to state that though the disability had been reduced to 75%, but there was no improvement in the muscle power and there is no chance of any improvement in it, and he cannot even walk without any help or support. He went on to opine that disability was result of the damaged spinal cord and head injury. During cross examination, he says in clear terms that the injured is not capable to perform the work of a goldsmith and he has lost his power to think or understand and experiences difficulty while standing or sitting down. He has finally said that there is no possibility of improvement even by stem physiotherapy. This statement of the doctor was recorded on 29.10.2010 i.e. more than two and a half years after the accident.

20. A perusal of the injury report, diagnosis, treatment and advice on discharge when read together with the deposition of the doctors, would show that the injured is incapable of performing the job of a goldsmith or for that matter any other work as he has reduced muscle power, loss of comprehension, no movement without help and no chance of improvement. It is apparent that spinal cord was damaged due to injuries to cervical spine leading to loss of coordinated movement of the upper limb. Total movement is hampered by the hip injury which resulted in fracture of right femur. No expert opinion is necessary to conclude that as far as spinal and brain injuries are concerned, physiotherapy would be of no help in recovery of upper limbs and hand, though to some extend there may be some improvement in the lower limbs. There is also loss of bladder and bowel control. This is his state even after 2 ½ years of regular treatment, so it is apparent that doctor's opinion is sound that there is no scope of any improvement. If he cannot be called a real vegetable in that sense of the word, he is surely a virtual 'vegetable'.

21. In this background, let us examine the contrary arguments of the parties.

22. Two disability certificates have been filed, one is dated 5.11.2009 showing 80% and the other dated 16.9.2010 showing 75% permanent disability. No doubt, the counsel for the Company is correct in submitting that the latter certificate cannot be relied upon in cases for compensation because it has been endorsed thereon that it cannot be used for the purpose of compensation. But there is no such endorsement on the former certificate dated 5.11.2009 which reveals 80% permanent disability. The counsel for the claimant is also correct in contending that the Tribunal has given no reasons for ignoring the first certificate showing 80% permanent disability, but the Tribunal did consider the latter certificate, however, it did not rely upon it for reasons other than those given by the counsel for the Company. It held that though the doctor proved the certificate but he had not given any opinion with regard to loss of earning power. In the opinion of the Court, the Tribunal did not closely examine the statement of the doctor. This Court has already examined his statement in detail and would have had no hesitation in holding that it is a case of 100% loss of earning, but for two reasons. Firstly, theoretically speaking, a living person cannot be said to be incapable of no earning as that would place him in the category of a dead man. Secondly, though in such cases there is always some guess work involved, but even such guess work should lean upon some substantial fact as it has to done in the realm of realistic approximation. This substantial fact in the present case is the first certificate of 80% permanent disability. Thus, on the facts of this case, especially in the background provided by the statement of the doctor coupled with medical condition and vocation of the claimant, we hold the loss of earning at 80%.

23. Learned counsel for the Company has also contended that while considering the Income Tax returns, the Tribunal ought to have ignored the gross income and should have relied upon the net income. To the contrary, it is contended by the claimant, it was a case of nil tax and the Tribunal ought to have taken the last return to fix the earnings.

24. The claimants had filed and proved the Income Tax returns for the Assessment Years 2005-2006; 2006-2007 and 2007-2008 disclosing gross total income as Rs.1,09,350/-; Rs.1,86,880/-; and Rs.1,38,377/- respectively. All three assessments are for nil tax after making deduction with respect to insurance premium and National Saving Certificates. Therefore, for our purpose the gross income can be considered for fixing the earnings. The Tribunal, though has taken note of the returns but without assigning any reason has fixed monthly income at Rs.10,000/- and yearly at Rs.1,20,000/-. As already observed above, though some guess work is involved, but it is always better to lean on substantive facts. There is perceptible change in income of the three years, therefore, it would be better to take the average of the three years instead of relying upon the last income. The total of three years income would be Rs.4,34,607/- and the average yearly income would be Rs.1,44,869/- or Rs.12000/- per month.

25. Learned counsel for the claimant has further contended that the Tribunal fell in error in ascertaining the age at between 40-45 despite the fact that in accordance to the date of birth in the Income Tax return it is 32 years while according to the two certificates his age at the time of accident was less than 40 years and therefore, at the worst the multiplier of 16 should have been applied instead of 15.

26. No doubt, the only documentary evidence which was on record with regard to age was the Income Tax return, according to which his date of birth was 1.11.1976 and thus he was about 32 years on the date of the accident, but in the petition and the statement of the wife it is mentioned as 35. In her cross-examination, she has stated that her husband was about 3 or 4 months older to her and she was married at the age of 17 and one year after marriage, she gave birth to a girl child whose age at the time of her statement was about 18 years. Her statement was recorded on 16.4.2010 i.e. 2 years after the accident, thus according to it the age of the claimant would be about 34 years. Considering the statement, the Income Tax return and the certificates, it can safely be said that the age at the time of the accident could not have been 40 years but between 35 and 40 years. Therefore, the argument appears to be correct that the multiplier of 16 should have been applied, and so it is held.

27. It is then urged on behalf of the claimant that the Tribunal ought to have awarded 50% for future prospects, however, the counsel for the company contends that neither any amount was claimed under that head nor the claimant had a regular job, therefore, in view of Sarla Verma's case [2009 ACJ 1298 (SC)] no amount could have been paid under this head.

28. A perusal of the claim petition would show that though claim for future prospect was raised but it was not quantified. Assuming that no claim under this head was raised, but that could not prevent the Tribunal from awarding any amount under that head, especially when there was evidence to show that there has been increase in income over the years. The Apex Court, taking note of section 168 (1) of the Act, held in Nagappa Vs. Gurudayal Singh [2003 ACJ 12] that there was no limitation in awarding compensation except that it should be just on the facts of the case. A three judge bench of the Apex Court, relying upon it went a step further and held in Rajesh and others Vs. Rajbir Singh [2013 ACJ 1403] that court should award proper compensation irrespective of the claim and if required, even in excess of the claim. Further it has went ahead holding that future prospect could also be granted to self employed and to persons on fixed wages despite considering the decision in Sarla Verma's case (Supra) in the following words:

" Since the court in Santoshi Devi's case, 2012 ACJ 1428 (SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298 (SC) and to make it applicable also to self employed and salaried persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 per cent always: it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 per cent in case the deceased was in the age group of 40 to 50 years."

29. The contention, though feebly made, that the principle of future prospect would apply only in death cases, has to be rejected. Both in Sarla Verma's and Rajesh's cases, no such distinction was drawn or could have been drawn. The Apex Court in the case of K. Suresh vs New India Assurance Company (2012 [12] SCC 274), which was a case of injury, affirmed the principle after noticing its earlier decision in Jai Bhagwan vs Laxman Singh ( 1994 [5] SCC 5).

30. Therefore, the argument is bound to be accepted and it is held that the claimant is entitled to 50% increase for future prospect.

31. Lastly it is urged that the Tribunal had ignored the fact that the claimant cannot perform his daily routine without any help and pittance has been awarded for physical and mental pain and trauma which would continue for his life depriving him from amenities of life.

32. No doubt, considering the nature of serious injuries, his disability coupled with the doctor's statement that the claimant cannot perform even his daily chores without any help and there is no chance of any improvement and that he has lost even his comprehension, he was entitled to a just amount under this head for life. Though these days no help is available for less than Rs.100 per day on the basis of 8 hour working, but taking a pragmatic approach, Rs.1500 a month for his life span would be just on the facts of this case. Therefore, he would be entitled to 1500 x 12 x 16 = Rs.2,88,000/- under this head. The contention of the counsel for the claimant that considering the nature of the injuries, the suffering, pain etc. the amount awarded by the Tribunal to the tune of Rs.5000/- is a pittance, appears to be correct. Considering the nature of the injuries, the pain, suffering, trauma, he had to undergo, Rs. One lac in total appears to be just.

33. In view of the discussion above, the Appeal No 3700 of 2011 filed by the Insurance Company is hereby dismissed while the Appeal No 4336 of 2011 filed by the Claimant is partly allowed. Accordingly the claimant would be entitled to the following amounts:

 

 
Medical treatment, investigation
 
Hospitalization etc.
 
: - Rs. 7,43,367/- (As awarded by the                                    Tribunal but wrongly calculated as 7,41,173/-) 
 

 
Transport                                  : - Rs 7,800/- (As awarded by the 
 
                                                     Tribunal.                                                 
 

 
Lodging at Delhi                         : - Rs  9,034/- ( - Do- )
 

 
Nutrition and Diet                        : - Rs  10,000 ( - Do- )
 

 

 
Physical, Mental pain and              : - Rs.1.00 lac ( Instead of Rs 5000 
 
Trauma                                           Awarded by the Tribunal.)            
 

 
Loss of future earning 
 
(12000x12x80x16/100)                 :- Rs.18,43,200/- (Instead of 
 
                                                       Rs.9,00,000/-awarded by Tribunal                                 
 

 
Loss of future prospect at 50%       : - Rs 9,21,600/-
 

 
Attendant charges (1500x12x16)    : - Rs 2,88,000/-
 

 
Total
 
 :-Rs.39,13,001/- (Instead of 16,75,200/- as awarded by the Tribunal, (but wrongly calculated as Rs 1673007] ).
 

 

34. Accordingly, the Award of the Tribunal is set aside to the extent noted above and the claimant i.e. entitled to a sum of Rs. Thirty nine lacs, thirteen thousand and one with interest at the rate of 6.5 per cent per annum from the date of filing of the claim petition till the date of actual payment. The Company shall pay the amount within a period of thirty days from today failing which the claimant shall be entitled to enhanced interest at the rate of 8.5 percent as aforesaid. The amounts already received by the claimant shall be adjusted. The amounts deposited with the Tribunal in pursuance of the interim order of this court shall forthwith be released in his favour together with accrued interest thereupon. All the amounts are to be paid through Account Payee drafts.

35. In the circumstances of the case, no order as to costs.

Date: 25.10.2013