Km. Sristi Chaurasiya vs Faiz Mohammad And Another
2015 Latest Caselaw 323 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- FIRST APPEAL FROM ORDER No. - 258 of 2009
 
Appellant :- Km. Sristi Chaurasiya
 
Respondent :- Faiz Mohammad And Another
 
Counsel for Appellant :- V. Singh,A.L. Gupta,Aalok Kumar Srivastava,S.K. Srivastava,V.S. Singh
 
Counsel for Respondent :- Usha Kiran
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Dinesh Gupta,J.

1. Heard Shri S.K. Mishra, Advocate, learned counsel for appellant and Smt. Usha Kiran, learned counsel for Insurance Company.

2. None has put-in appearance on behalf of respondent no.1-owner of vehicle though the case has been taken-up in revised call.

3. This FAFO under Section 173 of Motor Vehicles Act, 1988 has been filed assailing correctness of judgement and award dated 25.9.2008 passed by learned Additional District Judge, Court No.5/Motor Accident Claim Tribunal, Allahabad (hereinafter referred to as "Tribunal") in Claim Petition No.459 of 2002 (Km. Sristi Chaurasiya vs. Faiz Mohammad and another) whereby the Tribunal partly allowed the claim petition and awarded compensation of Rs.6,17,416/- alongwith 8% interest.

4. The facts in brief are that the appellant Km. Sristi Chaurasiya filed a claim petition before Tribunal for grant of compensation, which was registered as Claim Petition No.459 of 2002 and transferred to the court of Additional District Judge, Court No.5/Motor Accident Claim Tribunal, Allahabad. The aforesaid claim petition was filed for grant of compensation on account of injuries sustained in an accident which had taken place on 25.6.2000.

5. The case set-up by claimant was that on fateful day, the appellant was travelling in a Jeep, bearing Registration No. UP-07/5088. She was going alongwith her family members for Darshan of Sarkunda Devi. When vehicle reached near Suvakholi Market, suddenly steering of Jeep failed and Driver lost control over vehicle and it fell down in the valley. At the time of alleged accident, Driver of vehicle was driving the same very rashly and negligently. In the accident, appellant suffered grievous injuries. There were three fractures in spinal bone, both legs broken and she also suffered head injuries. Due to the said accident, the appellant became 100% disabled.

6. The report was lodged at Police Station-Munsoori-Dehradun. The appellant was admitted in Himalaya Institute Jolygrant, Dehradun, where she was operated twice. She remained in hospital for a considerable time and then came back to Allahabad. Again she went to All Indian Institute of Medical Sciences, New Delhi and then also admitted in Government Ayurvedic Medical College, Lucknow. On account of above said injuries, the appellant became 100% disabled. She cannot stand or sit. The family of appellant spent million of rupees in her treatment.

7. The appellant claimed for compensation of rupees one crore on account of said injuries.

8. Notice was issued to owner of vehicle as well as Insurance Company. The owner of vehicle did not turn up. The Court proceeded ex-parte against him. The Insurance Company filed its written statement and contested the petition.

9. After considering the facts and circumstances of case and evidence available on record, the Tribunal partly allowed claim petition, granted compensation of Rs.6,17,416/- only, which included partial treatment expenditure and compensation on account of disability and under other heads.

10. Feeling aggrieved, appellant has come-up in the present FAFO for enhancement of compensation.

11. Despite notice to owner of vehicle, it has chosen not to put-in appearance.

12. Learned counsel for appellant submitted that accident and consequential injuries sustained by claimant, were duly proved. One Chet Ram, who was driving the vehicle died on spot. The claimant sustained serious injuries in spine, both legs, head and almost the entire body. Despite, long term treatment in different Medical Institutions of repute, she could not recover in entirety and has become 100% disabled. Still she has to go to hospital for treatment persistently. She cannot work and cannot stand without clutches. She was meritorious student having passed High School and Intermediate in first division and BA first year also securing good marks.

13. Tribunal has also held:

a. There was a serious accident in which the vehicle fell down in the valley causing 100% disability to claimant.

b. The claimant is entitled for actual expenses incurred on treatment against receipts, which are proved.

14. Having said so, the Tribunal has examined various receipts, which were for more than 21 lacs but receipts pertaining physiotherapy have not been accepted by observing that instead of physiotherapy by specialist, claimant could have got ordinary massage at her residence and expenses on physiotherapy were on much higher side. It has also held that expenses were on much higher side including physiotherapy but considering the fact that brother of claimant is a Government Officer and could have well expected to spend any amount for protection of life of claimant, the award of such high expenses would put a heavy burden upon Insurance Company and, therefore, bills of Rs.3,38,642/- in Booklet No.3 and Rs.53,774/- in Booklet No.4 may be allowed. It, thus, allowed compensation towards injuries sustained and disability caused to Rs.2,25,000/- and Total to Rs.6,17,416/-.

15. It is contended that none of the expenses have been found unwarranted, unrequired or fictitious. It was a case of multiple fractures including spine and head injuries. Specialist physiotherapy was advised and undergone. Once its genuineness and requirement was not doubted, there was no justification for Tribunal, not to allow these expenses on conjectures and flimsy ground. The approach of Tribunal in this regard, is clearly against very spirit of provisions of Act, which is a social welfare legislations and due compensation ought to have been allowed to claimant.

16. Learned counsel for appellant further submitted that (i) Tribunal declined to award any amount in respect of procurement of artificial limb support to appellant despite having observed that appellant could obtain artificial limbs support from the concerned company; (ii) Court has failed to consider that appellant who became 100% disabled, would require a continuous treatment in future as well as one attendant for her, throughout the life; (iii) Court has failed to give any plausible explanation while discarding treatment bills of more than Rs.17 lacs and awarding a meagre amount of Rs.3,38,642/- on account of her treatment; (iv) Court has declined to grant compensation on account of pains, sufferings and mental agony, simply by observing that grant of excessive compensation will be an additional burden on Insurance Company, which is a public limited company.

17. Learned counsel for appellant raised argument in respect of enhancement of compensation, and submitted that Tribunal has wrongly applied multiplier considering the age of appellant/injured. According to her age, the multiplier of 17 was appropriate. However, the court had wrongly applied multiplier of 15.

18. Learned counsel appearing for Insurance Company, per contra, contended that compensation awarded by Tribunal is just and appropriate and no interference is called for. The treatment bills have been discarded giving plausible explanation. Driver of vehicle was not having valid driving licence and despite that Insurance Company was not given right to recover the amount of compensation paid to claimant from owner. The bills and treatment papers submitted by appellant were not proved and found doubtful by Tribunal. The appellant filed certificate of disability issued by Chief Medical Officer. In case of disability, the appellant should have examined herself before Medical Board and certificate issued by Medical Board would be sufficient. The certificate issued by Chief Medical Officer will be of no use. The Tribunal has also relied upon the said certificate and held that appellant has became 100% disabled. Lastly, it was contended that there is no illegality in the award passed by Tribunal. However, he conceded that Insurance Company has not filed any appeal against this award.

19. Having heard the rival submissions and considering the hard and unfortunate facts, in our view, the approach of Tribunal in awarding compensation to claimant, is very erroneous, faulty and whimsical.

20. Requisite treatment of physiotherapy ought to have got done by claimant at her residence itself or through specialist physiotherapy was not an issue to be decided by Tribunal. It was a decision to be taken by victim or injured person in view of her medical physical requirement. It has also to be seen, whether a person of ordinary prudence, would have administered and followed the said treatment or not. The Tribunal has not said that physiotherapy by specialist was not at all required and claimant has undergone such treatment unnecessarily. Once requirement of treatment is not found unwarranted, it was not open to Tribunal to under take a task, whether instead of having treatment of physiotherapy by specialist, the injured person should have taken recourse of localized method, incurring lessor expenses. This approach ignores to consider mindset of a person, who is facing a trauma of severe injuries.

21. Here is not a case of extravagance. Even according to Tribunal, claimant should have resorted to local treatment, which would have resulted in lessor expenses. It shows that there was a requirement of physiotherapy In fact, we find that findings of Tribunal are self contradictory. On the one hand, it held that nature of expenses on treatment incurred by claimant might have been justified still it has declined to accept the same, and for that purpose, what has dominated upon approach of Tribunal was the burden upon Insurance Company.

22. The following findings recorded by Tribunal are apparently erroneous and cannot be proved:

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"a. Even then, it is not proper to award the payment of whole expenses to the tune of Rs. 21,00,000/-. It will lay excess burden over the insurance company.

b. A person of ordinary background cannot spend more than it. In particular circumstances, if one seeks some extra service, one may spend maximal amount to save his life. In this case, Km. Srishti's family-members can spend a huge amount. The details of expenses provided by them, which is above Rs. 20,00,000/-, may be proper. But it is the duty of the court not to award the payment of expenses incurred upon a specialist in a case where the services of an ordinary physiotherapist or his family-members may suffice to serve the purpose. In the instant case, a considerable amount has been spent on physiotherapist. However, some curtailment has been done therein inasmuch as the awarding the payment of the additional specialist by the court will cast excessive burden over the insurance company.

(English translation by Court)

23. The Tribunal has also found that for the purpose of sustenance, claimant can proceed for availing artificial limbs from Jaipur (Rajasthan), which may help her in living a better life but having said so, it has failed to provide any amount towards compensation for the said purpose. Here again we find approach of Tribunal erroneous, evidently.

24. We also find that on one hand, Tribunal has found that claimant belongs to a good family but then it has found that entire future expenses towards her marriage etc. must be covered by compensation of Rs.2,25,000/-, which it had calculated by applying multiplier of 15 only.

25. Considering the submissions of learned counsel for Insurance Company that disability certificate issued by Chief Medical Officer was of no use, we find that nowhere it is provided that such certificate can only be issued by a Board and not by Chief Medical Officer. The Tribunal, therefore, has not committed any error in relying upon said certificate. The otherwise submission advanced by Insurance Company has no force.

26. Further from a bare perusal of impugned award, it is apparent that appellant was examined herself before Tribunal and it visualized her physical condition and has mentioned in award that she was taken to Court premises with the help of her relatives and she could not stand before Court; her half portion of body has totally become incapable and there is no life in both legs of appellant. These facts clearly demonstrate that appellant has became 100% handicapped and disabled. Being a girl, she now cannot lead a normal life throughout.

27. It is also emphasized that Insurance Company has not filed any appeal or cross objection in this regard. Thus, validity of certificate cannot be considered. Further, argument raised by learned counsel for Insurance Company that driving licence of driver of vehicle was invalid, is also irrelevant as Insurance Company has not filed any appeal to challenge the award.

28. So far as amount spent on treatment of appellant is concerned, the Court while considering all bills and receipts held that appellant has been able to prove expenditure of about Rs.21 lacs. However, Tribunal declined to award the same on the ground that it will be additional burden on Insurance Company, although, Tribunal was required to grant compensation in accordance with law and not on sentiments.

29. So far as genuineness of bills, receipts etc. are concerned, the Court has minutely examined all the bills and receipts and arrived on a conclusion that appellant had established expenditure of Rs.21 lacs. It is also important to mention here that accident had taken place on 25.6.2000 and award was passed on 25.9.2008, almost after eight years and considering condition of appellant, it is obvious that she must have gone continuous treatment. The expenditure of Rs.21 lacs on treatment, thus, could not be said to be excessive in any case.

30. The argument of learned counsel for appellant that appellant has not been granted any amount for pains and mental agony, which she suffered throughout also has force. The Court has not provided any amount towards future expenditure for her treatment and also for purchase of artificial limbs support.

31. We have also considered that in accident, appellant sustained 100% disability and is unable to lead a healthy and normal woman life. She also has lost the benefit of normal marital life. The appellant was only 17 years of age at the time of accident. Therefore, she should be given due compensation for pains and mental agony suffered on account of said accident.

32. So far as application of multiplier is concerned, the contention of learned counsel for appellant appears to be correct that considering the age of appellant as 17 years, application of multiplier of 17 appears to be appropriate.

33. In view of above discussion, in our view, in addition to compensation awarded by the Tribunal, appellant/claimant is also entitled for enhancement of award as under:

1. Rs.15 lacs towards expenses incurred by appellant/claimant on her treatment initially and subsequently till the date of award of Tribunal.

2. Rs.10 lacs towards expenses, which claimant is likely to spend in future treatment, for pains, mental agony, purchase of artificial limbs support, and for keeping a attendant through whole life.

3. After compensation is received by appellant, an amount of Rs.15 lacs shall be invested in maximum interest bearing Fixed Deposit Scheme in a Nationalized Bank and shall be kept initially for five years and after five years as per the Tribunal's direction.

4. The appellant will also be entitled to interest at the rate of 8% from the date of award i.e. 25.9.2008, on enhanced compensation throughout.

34. Appeal is, therefore, allowed partly with cost to the extent of success by appellant/claimant throughout.

Order Date :- 4.5.2015

Ajeet