Varun Singh @ Vipul Singh vs Arvind Kumar Singh
2014 Latest Caselaw 2160 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 
Court No. - 27
 

 
Case :- FIRST APPEAL FROM ORDER No. - 142 of 1999
 
Appellant :- Varun Singh @ Vipul Singh
 
Respondent :- Arvind Kumar Singh
 
Counsel for Appellant :- H.G.S.Parihar,J.K.Shukla
 
Counsel for Respondent :- S.C.Gultai,Vinay Srivastava
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Ashwani Kumar Mishra,J.

(Per Hon. Ashwani Kumar Mishra, J.)

1. The question involved for consideration in the present appeal under section 173 of the Motor Vehicle Act, is as to how much amount would construe "just compensation" for the injuries suffered by the 16 years old school boy, who was hit by a tanker causing him 60% permanent disability to his right leg?

2. The facts emerging from the record are that on 17.11.1994 at about 4.00 PM appellant-claimant Varun Singh, a student of class 9th in Government Intermediate College, Pratapgarh, while was returning house from school on bicycle, was hit from behind on account of rash and negligent driving of tanker bearing registration no. UP44-3277. It is claimed that people present on the spot forced the driver of the tanker to stop immediately. The driver left the tanker at the spot and ran away, and the tanker was taken in police custody. In the accident, appellant-claimant's right leg came in between tyre of the tanker, causing multiple fracture between hip bone and knees, and also between knees and toes, apart from severely rapturing muscles etc. Appellant-claimant suffered severe pain and discomfort due to the injury caused. He was taken to the hospital at Pratapgarh, where he was attended by the doctors available on emergency, who found injuries to be serious and referred him to SRN Hospital and Medical College, at Allahabad. The appellant-claimant was hospitalized and various operations were performed. However, as the treatment offered was not successful, he was referred to SGPGI Lucknow and thereafter to Bombay, where he was examined by Dr. Jhunjunwala, Dr. Pradhan, Dr. Patel, Dr. Dholakiya and doctors of All India Physical Injury and Rehabilitation Centre of the Government of India, where also he remained admitted for treatment and operations were performed again. The period of intensive care by the doctors including hospitalization stretched to about 7 months, which was followed with treatment as outdoor patient for about a year and half. Appellant-claimant's right leg was shortened, he could move only on clutches and thus suffered permanent disability of 60% to his right leg.

3. In the claim instituted for compensation, before the tribunal, the owner of the vehicle and the insurance company disputed the involvement of the vehicle itself. The tribunal considered the respective pleas of the parties and after considering the evidence brought on record came to the conclusion that accident was caused by the vehicle. Relevant circumstances/facts were noticed i.e. the vehicle itself at the spot was seized and taken in custody by the police; in the criminal proceedings involvement of the vehicle was found proved apart from oral evidence categorically giving details of vehicle in question. Tribunal, therefore, returned finding that the accident was caused by the vehicle in question, which was insured with National Insurance Company Ltd. The findings of the tribunal returned on this count have not been questioned by the owner or the insurance company and, therefore, the involvement of the vehicle in question in the accident has attained finality and requires no further consideration on this aspect.

4. The tribunal then proceeded to consider the claim for compensation. Medical bills produced before the tribunal from Pratapgarh, Allahabad, Bombay amounting to Rs.66,573/- was accepted and relied upon. The train tickets amounting to Rs.4,127/- was also accepted and by rounding up the figures, a sum of Rs.71,000/- under the head of expenses regarding, hospitalization, treatment, transportation etc. was quantified. Further, a sum of Rs.15,000/- towards physical and mental pain was allowed. The tribunal also accepted evidence to the effect that permanent disability of 60% to the right leg had been caused in the accident. The tribunal, however, went on to observe that the future of the student was not entirely ruined and he can still live a normal life with the help of clutches and considering 60% disability in the right leg, a sum of Rs.30,000/- was allowed under the head of disability. Further, a sum of Rs.5,000/- towards hospital's employee and Rs.1,000/- towards loss of bicycle was added, thereby allowing claim for compensation of Rs.1,23,000/- together with 12% interest from the date of filing claim petition, against the insurance company.

5. In the present appeal, appellant-claimant has sought enhancement of compensation under different heads, amounting to Rs.12,12,500/- with interest, as was claimed before the tribunal.

6. We have heard Sri J.K. Shukla, learned counsel for the claimant-appellant and Ms. Pooja Arora, holding brief of Sri S.C. Gulati, learned counsel for the insurance company and have perused the records.

7. In a claim for compensation under section 166 of the M.V. Act, on account of injury caused, it is the duty of the tribunal to award just compensation. Normally, in a case of personal injury compensation is allowed under two broad heads i.e. pecuniary damages (special damages) and non-pecuniary (general damages). The pecuniary damages consists of cost of treatment, medicine, hospitalization, transportation, food and other similar expenses including loss of earnings due to injuries sustained, whereas non-pecuniary damages consists of damages for pain, suffering and trauma as a consequence of injuries and loss of amenities and loss of expectations of life etc.

8. In Master Mallikarjun v. Divisional Manager, the National Insurance Company Ltd. And & another reported in 2013 (4) TAC 1 (SC), the Apex Court while dealing with the injuries caused to a 12 year old, in a claim for enhancement of compensation, considered the issue and observed as under in para 8 to 12:-

"8. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and Others1, while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non-earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.

9. Sapna vs. United Indian Insurance Company Limited and Another2 is the case of a 12 year old girl who suffered 90% disability in her left leg. This Court granted a lump sum amount of Rs.2,00,000/- on these heads.

10. In Iranna vs. Mohammadali Khadarsab Mulla and Another, a Division Bench of the Karnataka High Court granted an amount of Rs.4,00,000/- on these heads to the child who suffered 80% permanent disability.

11. In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another4, this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts.

12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. -------" (Emphasis supplied by us)

The court ultimately awarded a sum of Rs.3,75,000/- in the case.

9. Similarly, in a claim of compensation for the injuries sustained by 8 year old child, causing permanent disability of 16% to the whole body, Hon'ble Supreme Court in Kum. Michael v. Regional Manager, Oriental Insurance Company Ltd. and another reported in 2013 (2) TAC 737 (SC) awarded compensation of Rs.2,80,000/- towards pain and suffering and permanent disability. Further a sum of Rs.20,000/- towards medical expenses, conveyance, nourishing food and attendant charges, and a sum of Rs.1,00,000/- towards loss of amenities were awarded.

10. In the present case, the permanent disability of 60% in the right leg of the claimant-appellant has been found proved by the tribunal and the same has not been challenged by the insurance company and owner. It has been noticed that appellant-claimant had sustained multiple fracture leading to shortening of his right leg and he was made dependent on clutches. The evidence on record suggests that appellant-claimant apart from being a class 9th student, was also a good sportsman, which is not controverted. The opportunities which life may have bestowed on him in future have been severely curtailed on account of the injury suffered in the accident. He can no longer be a sportsman and the avenues of joining defence services, which requires a perfect physical shape has been eclipsed. For almost a period of two years, he has undergone tremendous pain and sufferings, which has left a mark on the life to come. The tribunal, therefore, was not justified in holding that 60% permanent disability could be overcome with the help of clutches and that award of Rs.30,000/- towards disability, in addition to Rs.15,000/- for physical and mental pain would be a just compensation.

11. Claim for disability of 60% in the right leg has been accepted by the tribunal. No evidence is on record to prove the disability for the whole body. Considering the nature of injury sustained and implications which carries for the future of 16 year old boy, we are of the view that total disability be treated as falling between 10 to 30% and, therefore, in light of the observations made in para 12 of Master Mallikarjun (supra), appellant-claimant is entitled to payment of a sum of Rs.3,00,000/- towards non-pecuniary damages. The medical bills of Rs.66,573/- and travelling expenses of Rs.4,127/-, in round figure amounting to Rs.71,000/- approximately has been brought on record and accepted by the tribunal. The evidence brought on record establishes that appellant-claimant remained under intensive medical care for about 7 months, whereafter he received medical attention as an outdoor patient for about a year and half. He was attended by doctors at Pratapgarh, Allahabad, Lucknow and Bombay. We are, therefore, of the view that total amount spent towards medical expenses, travelling and providing nourishment etc. and loss to parents would not be less than Rs.1,00,000/-. The compensation for Rs.1,000/- towards loss of bicycle in the accident is maintained. We accordingly modify the award of the tribunal dated 5.12.1998 and hold that the appellant-claimant is entitled to compensation of Rs.4,01,000/- under the aforesaid heads. Tribunal has also awarded payment of interest at the rate of 12% p.a. This court in 'United India Insurance Company Ltd. v. Rajendra Pratap Singh and others: in F.A.F.O. No.236 of 2010' after noticing various decisions of the Apex Court, has held that payment of interest at the rate of 9% p.a. would be the appropriate interest to be awarded in such matters. The award of payment of interest at the rate of 12% p.a. is accordingly modified as 9% p.a.

12. The present appeal according is allowed in part. The amount of compensation payable is enhanced to Rs.4,01,000/-, together with interest at the rate of 9% p.a. from the date of filing claim petition till its actual payment. The respondent-insurance company is directed to deposit the entire amount of compensation along with interest, after adjusting the amount already deposited, before the tribunal within a period of two months. Since the appellant-claimant was 16 years of age in 1994, therefore, he has attained majority by now, as such the entire amount of compensation along with interest shall be released in favour of the appellant-claimant by the tribunal within a month of its deposit by the respondent-insurance company.

13. Accordingly, the present appeal is allowed in part in terms of the aforesaid directions. No order is however, passed as to costs.

Order Date :- 29.5.2014

Ashok Kr.