Allahabad High Court
Union Of India vs Kumari Kanta Bhardwaj on 23 August, 2017
Bench: Satyendra Singh Chauhan, Krishna Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Court No. - 41
Case :- FIRST APPEAL FROM ORDER No. - 2702 of 2004
Appellant :- Union Of India
Respondent :- Kumari Kanta Bhardwaj
Counsel for Appellant :- U.N. Sharma,D.S. Shukla,Pramod Kumar Singh,R.B.Singhal
Counsel for Respondent :- V.S.Chaudhary,Bharat Bhushan Paul,Daya Ram Yadav,Kuldeep Kr. Misra,O.P. Mishra,Ram Singh
with
Cross Objection No. Nil of 2012
(Filed on behalf of respondent claimant Km. Kanta Bhardwaj)
Hon'ble Satyendra Singh Chauhan,J.
Hon'ble Krishna Singh,J.
(Delivered by: Hon'ble Krishna Singh, J.)
Present appeal has been filed by the appellant respondent being aggrieved against the impugned judgment and award dated 27.1.1996 passed by the Motor Accident Claims Tribunal/Additional Sessions Judge, Meerut in M.A.C.P. No. 199 of 1995 (Kumari Kanta Bhardwaj Vs. Union of India and others) awarding compensation to the tune of Rs. 5,14,000/- alongwith 12% interest per annum to the Respondent claimant inter alia on the ground that the compensation awarded by the Tribunal is excessive and also that the Tribunal has not calculated the compensation as contemplated in law.
Brief facts giving rise to the instant appeal are that on 25.1.1995 Respondent claimant Km. Kanta Bhardwaj started his journey in a rickshaw from Kudesia Public School, Shastri Nagar, Meerut to go to Victoria Park, Sports Colony, Meerut. One Km. Manju also accompanied her in the said rickshaw. At about 2.30 PM their rickshaw reached near Yog Nursing Home on University Road, Shastri Nagar Tiraha, Meerut and at the said point of time the offending vehicle/army jeep bearing registration no. 520-97P-92B came from behind i.e. from medical college side at a very high speed and same was being driven very negligently by its driver and hit at the back of rickshaw resulting thereby this tragic accident. Respondent claimant sustained grievous injuries causing permanent disability. The said accident is the result of sole negligence on the part of the driver of the said offending vehicle. At the time of accident, the Respondent claimant was a charming girl of 24 years of age. She was unmarried and was teaching at Kudesia Public School and she also used to do tuition and coaching to the students as her part time job after school hours. She was a qualified teacher and was earning Rs. 4000/- per month and maintaining herself, parents and dependent brother. Due to the injuries sustained in the said accident her lower limbs have become completely paralyzed. She cannot turn her sides and move herself or to go even for urinating on her own strength and no one will be ready to marry with a bedridden girl as she has become totally dependent on others and a liability. She has lost sex feelings and womanhood and has turned herself into a dreamy past with no charm in her future life.
The FIR of the said accident was lodged at police station Medical College, Meerut under Sections 279/338 IPC against the driver of the offending vehicle. Respondent claimant examined five witnesses in support of her claim including herself. Respondent claimant has filed her treatment papers, salary certificate and disability certificate issued by the Chief Medical Officer, Meerut.
Appellant respondent appeared before the Tribunal and filed its written statement with the pleadings that the accident in question has not occurred due to rash and negligent driving of the driver of the offending vehicle i.e. army jeep no. 520-97P-92B for which they are not responsible and in fact same has occurred due to negligent driving of rickshaw puller.
Appellants respondent has filed this appeal on the ground that while awarding the compensation, Tribunal has completely ignored the fact that accident has not occurred due to fault of the driver of the army jeep. Tribunal has also ignored the fact that whether the injured claimant was suffering from paralysis earlier to the accident or not. Compensation awarded by the Tribunal is exorbitant and does not commensurate to the injuries and loss sustained by the injured claimant. Tribunal wrongly assessed the income of the respondent claimant as Rs. 4000/- per month and, as such, the impugned judgment and award is liable to be set-aside.
Per contra respondent claimant has filed cross objections against the impugned judgment and award on the ground that it is proved from the evidence adduced by the respondent claimant that accident in question has occurred due to rash and negligent driving of the driver of the offending vehicle in which she has received grievous injuries and her both the legs were paralyzed. She cannot do her routine work without any helper/attendant. She has become permanently handicapped and her occupation also become affected. Tribunal has assessed Rs. 70,000/- as medical treatment, Rs. 30,000/- for future medical treatment. She is still under treatment and, as such, compensation amount assessed by the Tribunal is very low. Tribunal has not considered properly the loss of earnings/future prospects of the respondent claimant. Tribunal has also not considered the inconvenience, hardship, discomfort, disappointment, frustration and mental stress in the life of the respondent claimant and, in view of the above facts, awarded amount of compensation should be enhanced.
We have heard learned counsel for the parties and perused the record.
Learned counsel for the appellant has submitted that while awarding compensation the Tribunal has ignored the fact that whether the claimant respondent was suffering from the disease namely paralysis earlier to the accident or not. Learned counsel for the appellant further submitted that Tribunal has also ignored the fact that the accident in question had not occurred due to fault of the driver of the army jeep. Learned counsel for the appellant further submitted that the compensation awarded by the Tribunal is excessive and the impugned judgment and award even otherwise is bad in law and same is liable to be set-aside.
Per contra learned counsel for the claimant respondent has submitted that it is proved from the evidence available on record that prior to the accident claimant respondent was healthy and accident in question had occurred due to sole negligence of the driver of the army jeep. Learned counsel for the claimant respondent further submitted that claimant respondent has sustained grievous injuries in the accident due to which she has become permanently handicapped and compensation awarded by the Tribunal is inadequate and, therefore, same is to be enhanced.
The controversy involved in appeal and cross-objections is identical, the same are being heard together and decided by a common judgment and order.
In our considered opinion, it is proved from the evidence adduced by the claimant respondent that the accident in question had occurred on 21.5.1995 at about 2.30 PM due to rash and negligent driving of the driver of the offending vehicle/army jeep no. 520-97P-92B. The Union of India is the owner of the said offending vehicle and rickshaw puller was not responsible for the accident in question. Respondent claimant has sustained grievous injuries in the accident in question and her both legs were paralyzed due to which she has become permanently handicapped and she cannot do her routine work without any helper/attendant. At the time of accident the respondent claimant was a teacher in Kudesia Public School, Meerut and her income from salary and tuition was near about Rs. 3000/- per month. It is also proved from the evidence available on record that prior to the accident in question respondent claimant was hale and hearty. In our opinion finding recorded by the Tribunal in respect of accident is based on proper evidence and is correct.
By means of impugned judgment and award the Tribunal has concluded that respondent claimant was entitled to get compensation as Rs. 10,0000/- for attendant, Rs. 70,000/- for medical expanses already incurred, Rs. 10,0000/- for future medical expanses, Rs. 50,000/- for pain and suffering and Rs. 2,64,000/- for loss of earnings/future prospect. It is evident from the record that at the time of accident the age of respondent claimant was about 24 years and while calculating the loss of earnings/future prospect, the Tribunal wrongly used the multiplier of 11.
In the case of Smt. Sarla Verma and others Vs. Delhi Transport Corp. and another, 2009 (3) AWC 2138 (SC), Hon'ble Apex Court in paragraph 21 has held as follows;
"We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
In view of the above, we find that with reference to the age of respondent claimant the multiplier of 18 ought to have been applied, which was appropriate in the facts of the case. Since the Tribunal has failed to apply the correct multiplier, we, accordingly, provide that multiplier of 18 should be applied in the facts of the case.
We are of the considered view that in the case of permanent disability while awarding compensation towards loss of earnings/future prospect deductions from the income of injured as personal and living expanses should not be made. It is evident from the record that after deducting 1/3 income of the respondent claimant as personal and living expanses, the Tribunal has worked out the compensation for loss of earnings/future prospect. In our opinion the procedure adopted by the Tribunal for calculation of compensation is not correct. We have also considered the fact that rupee value has come down drastically. It is proved from the oral and documentary evidences adduced by the respondent claimant that she has sustained grievous injuries in the said accident and her both legs were paralyzed. She cannot do her routine work without any helper/attendant and she has become permanently handicapped.
In view of the above facts and circumstances, we are of the view that compensation awarded by the Tribunal as Rs. 10,0000/- for helper/attendant is inadequate and needs to be enhanced. It appears from the record that Tribunal awarded interest @ 12% per annum which is on higher side, we, accordingly, provide that rate of interest should be fixed on the lower side and, as such, we reduce the interest to the extent of 7% per annum.
We have also considered the fact that the rupee value has come down drastically and after considering all the facts and circumstances of the case we are of the view that compensation awarded by the Tribunal is not just and proper, therefore, it should be enhanced.
In view of the law laid down by the Hon'ble Apex Court in the case of R.D. Hattangadi Vs. Pest Control India Private Limited, Laws (SC) 1995 1 109 and Sanjay Batham Vs. Munnalal Parihar, Laws(SC) 2011 11 6, the compensation payable to the claimant respondent is worked out as under:
a.
Income of the respondent claimant
Rs. 3000/- per month
Rs. 36,000/- per annum
b.
Income Tax payable
Nil
c.
Multiplier applied (as per Sarla Verma's case with reference to the age of injured claimant)
d.
Compensation for loss of future earnings on account of permanent disability/future prospect
Rs. 36,000 x 18 = Rs. 6,48,000/-
e.
Compensation for attendant/helper
Rs. 4,00,000/-
f.
Compensation for transportation, nourishing foods and medical expanses already incurred
Rs. 1,00,000/-
g.
Compensation for future medical expanses
Rs. 1,00,000/-
h.
Compensation for pain, suffering and trauma as a consequence of the injuries
Rs. 50,000/-
i.
Compensation for loss of amenities (and/or loss of prospect of marriage)
Rs. 1,00,000/-
j.
Compensation for loss of expectations of life (shortening of normal longevity)
Rs. 1,00,000/-
k.
Total amount of compensation
Rs. 14,98,000/-
l.
Amount of compensation already awarded by the Tribunal
Rs. 5,14,000/-
m.
Amount enhanced by this Court
Rs. 14,98,000 - Rs. 5,14,000 = Rs. 9,84,000/-
On the basis of discussions made above, we are of the view that present appeal is devoid of merit and is dismissed, accordingly.
Cross objection filed by the respondent claimant is allowed by modifying the impugned judgment and award by increasing the compensation awarded from Rs. 5,14,000/- to Rs. 14,98,000/-, as such, the respondent claimant shall be entitled to enhanced amount of award Rs. 9,84,000/- in addition to what is already awarded by the Tribunal. The respondent claimant shall also be entitled to the interest at the rate of 7% per annum to the aforesaid total amount of compensation (Rs. 14,98,000/-) from the date of filing of claim petition till its realization. Appellants respondents are directed to pay the enhanced amount of compensation to the respondent claimant alongwith interest within a period of three months from the date of receipt of certified copy of this order in the form of account payee cheque.
To secure the enhanced amount it is deemed appropriate that upon deposit it shall be converted into an FDR initially for a period of 5 years with automatic renewals and respondent claimant would be entitled to the monthly interest accruing thereon. It is also made clear that if respondent claimant is in need of any amount of money, then upon filing of an application before the Tribunal, the money claimed should be released by the Tribunal provided it is shown that it is for a just cause.
There would be no order as to costs.
[Krishna Singh, J.] [Satyendra Singh Chauhan, J.]
Order Date :- 23.8.2017
Shekhar
