Union Of India Thru' The Secy., ... vs Rajiv Kumar Srivastava
2017 Latest Caselaw 2900 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 41
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1078 of 2001
 

 
Appellant :- Union Of India Thru' The Secy., Ministry Of Defence, New Delhi
 
Respondent :- Rajiv Kumar Srivastava
 
Counsel for Appellant :- S.N.Srivastava,Subodh Kumar
 
Counsel for Respondent :- V.C.Dixit,A.K. Singh,B.K.Singh Raghuvanshi
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Krishna Singh,J.

This appeal has been filed by Union of India through the Secretary, Ministry of Defence, New Delhi, being aggrieved against the judgment and award dated 28.3.2001 passed by the Motor Accident Claims Tribunal/Additional District Judge, Allahabad in MACP No. 31 of 1999, Rajiv Kumar Srivastava Vs. Union of India, awarding compensation to the tune of Rs. 9,50,000/- with 10% interest to the respondent inter alia on the ground that the compensation which has been awarded in favour of respondent is excessive and also that the Tribunal has not calculated the compensation as contemplated under law.

Learned counsel for the appellant Sri Subodh Kumar submits that the compensation is excessive and, therefore, same is required to be taken into consideration by this Court. Learned counsel for the appellant has tried to dispute the award on the ground that the injured was not wearing helmet, as such, it amounted to contributory negligence and accident in question has not taken place with the vehicle in question, which has been stated in the claim petition.

The argument of the learned counsel for the appellant has to be tested in the light of the evidence adduced by the parties and finding recorded by the Tribunal.

Whether non wearing of helmet by the injured can had to contributory negligence?

The contributory negligence has to be taken into consideration in the light of the fact that when both the parties are negligent to a certain extent. In the present case the injured was hit from the back by the offending vehicle. Once the injured was hit from the back side, the argument of learned counsel for the appellant that non-wearing of helmet resulted in contributory negligence cannot be accepted by us. The compensation has to be awarded on the basis of rash and negligent driving of a particular vehicle. The rash and negligent driving is established from the fact that injured was hit from the back side.

The argument of learned counsel for the appellant that the accident has not taken place from the offending vehicle cannot be accepted and neither it has any leg to stand in view of the fact that the vehicle in question was identified on the spot. There is ample evidence to establish that the accident in question has taken place from the said vehicle. There being no doubt in regard to involvement of the offending vehicle and the evidence adduced in respect of the accident is clear and cogent.

We are unable to accept the argument of the learned counsel for the appellant that the accident has not taken place from the offending vehicle. So far as the argument in regard to award of excessive amount is concerned, we are persuaded by learned counsel for the appellant and learned counsel for the respondent in this regard and both the parties have tried to convince the Court in regard to award of adequate compensation.

Sri Ashok Kumar Singh, learned counsel for the respondent, has submitted that even if no appeal has been filed, the adequate compensation can be awarded upon the controversy in respect of award of compensation. In support of his argument, learned counsel for the respondent has placed reliance on a judgment of apex Court in the case of Jitendra Khimshankar Trivedi & Ors. Vs. Kasam Daud Kumbhar & Ors., 2015 (4) SCC 237, in paragraph 13 of the said judgment apex Court held as follows;

"13. The tribunal has awarded Rs.2,24,000/- as against the same, claimants have not filed any appeal. As against the award passed by the tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the courts/tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasized by this Court in Nagappa vs. Gurudayal Singh & Ors. 2003 2 SCC 274, Oriental Insurance Company Ltd. vs. Mohd. Nasir & Anr. 2009 6 SCC 280, and Ningamma & Anr. vs. United India Insurance Company Ltd. 2009 13 SCC 710. As against the award passed by the tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/tribunals to award just and reasonable compensation, it is appropriate to increase the compensation."

The compensation which has been awarded to the injured on the basis of income which has been taken into consideration by the Tribunal to the extent of Rs. 6,00000/- does not appear inadequate in any manner, therefore, to that extent this Court is not inclined to enhance or modify the award in question but the learned counsel for the respondent has been able to convince the Court in regard to grant of future prospect and relied upon the law settled by the apex Court in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corp. and another, 2009 (3) AWC 2138 (SC), wherein it has been settled that according to the age of the person whose earning has come to an end has to be assessed and he has been ousted from service.

Learned counsel for the respondent submits that the claimant respondent is bed-ridden and unable to speak, therefore, according to the Sarla Verma's case 50% of future prospect should be allowed to the injured.

Looking to the peculiar facts and circumstances of the case and looking to the fact that the claimant respondent is totally paralyzed and bed-ridden and his employment has come to an end, we find appropriate to award 50% future prospect. So far as the awarding of compensation in regard to pain and suffering and loss of amenities are concerned, we find that in this regard law has been settled by the apex Court in the case of R.D. Hattangadi Vs. Pest Control India Private Limited, Laws (SC) 1995 1 109 and in paragraph 17 while dealing with the issue of pain and suffering and for loss of amenities, held as under;

"17. The claim under SI. No. 16 for pain and suffering and for loss of amenities of life under SI. No. 17, are claims for non-pecuniary loss. The appellant has claimed lump sum amount of Rs 3,00,000 each under the two heads. The High Court has allowed Rs 1,00,000 against the claims of Rs 6,00,000. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for nonpecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration. According to us, as the appellant was an advocate having good practice in different courts and as because of the accident he has been crippled and can move only on wheelchair, the High Court should have allowed an amount of Rs 1,50,000 in respect of claim for pain and suffering and Rs 1,50,000 in respect of loss of amenities of life. We direct payment of Rs 3,00,000 (Rupees three lakhs only) against the claim of Rs 6,00,000 under the heads "Pain and Suffering" and "Loss of amenities of life"."

The apex Court in the aforesaid judgment while dealing with the issue in regard to pain and suffering and for loss of amenities proceeded to award Rs. 3,0000/- lump sump amount. In the present case, we find that the injured has been totally paralyzed and, therefore, he would be entitled for Rs. 3,0000/- as compensation in respect of pain and suffering and for loss of amenities out of which Rs. 1,50,000/- will be given to the injured in respect of pain and suffering and Rs. 1,50,000/- will be given to the injured in respect of loss of amenities of life. It is evident from the record that the total compensation awarded by the Tribunal alongwith interest at the rate of 10% is Rs. 9,50,000/-. We are of the view that in addition to that respondent claimant would be entitled for Rs. 3,00,000/- as compensation in respect of future prospect. Thus total compensation comes to Rs. 9,50,000/- (awarded by Tribunal) + Rs. 1,50,000/- (compensation in respect of pain and suffering) + Rs. 1,50,000/- (compensation in respect of loss of amenities of life) + Rs. 3,00,000/- (compensation in respect of future prospect) = 15,50,000/-.

We do not find appropriate to award any other further amount of compensation or enhancement of the amount of compensation in respect of other heads as argued by the learned counsel for the respondent as no evidence has been brought on record to substantiate the aforesaid claim. In respect of medical treatment Rs. 50,000/- has already been awarded by the Tribunal.

In view of the above, considering the entire facts and circumstances of the case and ends of justice to award adequate compensation to the injured, we hereby modify the award to the aforesaid extent. It is also made clear that 7% interest would be payable on the amount, which has not been paid.

In view of the above, we do not find any merit in the appeal and same is dismissed, accordingly.

[Krishna Singh, J.]                   [Satyendra Singh Chauhan, J.]
 

 
Order Date :- 2.8.2017
 
Shekhar