Allahabad High Court
Amit Kumar vs National Insurance Company ... on 6 October, 2017
Bench: Bharati Sapru, Mahboob Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 14.09.2017
Delivered on 06.10.2017
Court No. - 35
Case :- FIRST APPEAL FROM ORDER No. - 1871 of 2017 Appellant :- Amit Kumar
Respondent :- National Insurance Company Limited And Another
Counsel for Appellant :- A.K. Pandey,Bhanu Bhushan Jauhari Counsel for Respondent :- Radhey Shyam
Hon'ble Bharati Sapru,J.
Hon'ble Mahboob Ali,J.
(Delivered by Hon'ble Mahboob Ali, J.)
Heard learned counsels for the parties and perused the record.
This first appeal has been preferred by the petitioner/appellant ('appellant', for short) against the judgment and award dated 12.05.2006 passed by Sri Nihal Ahmad Siddiqui, Additional District Judge, Court no. 6 Shahjahanpur/ Motor Accident Claims Tribunal (the 'Tribunal', for short) in Motor Accident Claim Petition No. 128 of 2003 (Amit Kumar vs National Insurance Company Ltd. And Others), whereby the Tribunal has awarded the total compensation of Rs. 42,000/- with 6% interest per annum from the date of filing the petition.
Briefly stated the facts are;
That on 25.04.2003 at about 6.30 a.m. the claimant/appellant was going by his bicycle to take his High School examination, when he reached near Collectorganj, a motor cycle bearing registration no. UP 27 E 1073, rashly and negligently driven by Mukesh Kumar, dashed the cycle from behind as a result of which he sustained serious injuries and he was taken to Kanaujia Nursing Home, Shahjahanpur where he remained admitted from 25.04.2003 to 14.05.2003, his left leg was found fractured from the thigh for which an operation was done on 30.04.2003, in which steel rod was implanted and bone grafting was done. The appellant filed the claim petition for the compensation of Rs. 11 lacs.
Respondent No. 2 Chhote Lal and respondent no. 3 Mukesh Kumar in their written statements, denied the factum of accident.
Respondent No. 1 Insurance Company contested the matter alleging that the amount claimed for compensation is highly exaggerated, no accident took place on 25.04.2003 at the place as alleged and appellant himself was driving his bicycle on the road rashly and negligently.
On the basis of evidence on record, the Tribunal has proceeded to award a compensation of Rs. 42,000/- with 6% interest per annum from the date of filing of the petition.
The appellant has challenged the award, interalia, on the following grounds :-
(i) That the Tribunal has not considered the future prospects of employment and income of the appellant.
(ii) That the claim petition has been filed under Section 166 Motor Vehicles Act but the Tribunal has wrongly considered the provisions of II schedule of Section 163-A of the Motor Vehicles Act, 1988.
(iii) That loss of earning capacity of the appellant has been discarded on the ground that disability certificate is not produced and the Tribunal has not considered the evidence of Dr. Sanjeev Kanaujia who deposed in the Court that due to fracture steel rod and screws were implanted in the fractured leg of the appellant and bone grafting was done.
(iv) That the Tribunal has not considered the fact that the appellant is unfit for military services for which he could have been selected under the Army quota because his father was in the Army.
(v) The Tribunal has also not taken into consideration the pain and sufferings, mental agony and future medical expenses of the appellant who remained admitted in the hospital from 25.04.2003 to 14.05.2003, where his operation was done.
(vi) That the Tribunal has wrongly fixed the interest at the rate of 6% per annum, whereas it should have been awarded at the rate of 12% per annum.
Learned counsel on behalf of the Insurance Company sought to justify the judgment and award passed by the Tribunal contending that there is no disability nor any disability certificate has been filed by the petitioner.
The Tribunal having concluded that the petitioner sustained serious injuries in the accident, has proceeded to award Rs. 5000/- to the appellant/petitioner for the injuries according to Para 4 (1) (a) of Second Schedule to Section 163-A Motor Vehicles Act, 1988, Rs. 32,000/- towards medical expenses incurred in the treatment of the petitioner and Rs. 5,000/- as diet money.
The Tribunal has observed in its judgment that there is no disability in the body of the petitioner neither any disability certificate of Chief Medical Officer has been filed, nor there is any such evidence indicating the disability of the petitioner. Learned counsel for the appellant, vehemently, contended that Dr. Sanjeev Kanaujia (PW-2) deposed that the petitioner remained admitted in his Nursing Home from 25.04.2003 to 14.05.2003, his fractured leg was operated upon in which rod and screws were implanted and bone grafting was done. He further stated that petitioner is unfit for Police and Military Services.
Perusal of the impugned judgment reveals that in the absence of disability certificate from the Chief Medical Officer, the Tribunal has not found the ocular testimony of Dr. Kanaujia (PW-2) convincing and sufficient to conclude the disability of the petitioner/appellant.
As regards the assessment of compensation for personal injury the Hon'ble Apex Court in the case of Arvind Kumar Mishra vs. New India Assurance Company Ltd. and Another 2010 (10) SCC 254, observed that:
"the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered."
In 2011 ACJ 1 (SC) (Raj Kumar v. Ajay Kumar), Hon'ble Supreme Court considered the principles for awarding compensation in injury cases, and held as under:-
4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
5. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads
(i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
In (Govind Yadav v. New India Assurance Company Limited) 2012 ACJ 28, Hon'ble Apex Court held as under :-
"15. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Company Ltd. (supra) and Raj Kumar v. Ajay Kumar (supra) must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."
As per the principals laid down by the Hon'ble Apex Court in cases of personal injury, the Tribunal has to first decide the factum of permanent disability and thereafter to determine the effect and extent of such permanent disability. If the Tribunal concludes that there is no permanent disability then the matter ends there. In this regard Hon'ble Supreme Court in the case of Raj Kumar vs Ajay Kumar and another (supra) observed as under :-
"..... If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity."
In the present case, the Tribunal has concluded that there is no evidence regarding the disability of the petitioner/appellant, nor any disability certificate from the Chief Medical Officer is brought on record.
Appellant's learned counsel has also urged that father of the appellant was in the service of Indian Army and the appellant could have been selected in the Army under the quota prescribed for the dependants of Army personnel as the appellant is otherwise fit for Military Services but only because of injuries sustained by him in the accident he is rendered unfit for Army Services as stated by Dr. Sanjeev Kanaujia (PW-2) that "अमित कुमार पुलिस और मिलिट्री के लिए अक्षम है I" As already observed, the Tribunal has proceeded to conclude that there is no evidence to establish the factum of disability of the claimant.
In view of the aforesaid contentions made on behalf of the appellant on one hand and finding of the Tribunal that there is no evidence indicating the disability of the appellant on the other hand and keeping in view the object of the Motor Vehicles Act, 1988, it appears expedient, in the interest of justice, that the appellant should be given one more opportunity to lead evidence regarding his alleged disablement due to the injuries sustained in the accident so that he may be able to get just, adequate and proper compensation in case he succeeds to prove his claim to the satisfaction of the Tribunal.
In Bimla Devi and others vs. Satbir Singh and others 2013 (14) SCC 345. Hon'ble Supreme Court observed as under :-
Motor Vehicles Act is a social piece of legislation and has been enacted with intent and object to facilitate Claimants/ Victims to get redress for loss of loosing of family member or for injuries at an early date-in any case, money cannot be any substitute for it, but in long run it may have some soothing effect-thus, it is desirable to adopt a more realistic, pragmatic and liberal approach in these matters- interest of justice would be served and fully met if appellants are afforded at least one more opportunity to prove their case to satisfaction of Claims Tribunal.
Keeping in view the contentions of appellant's learned counsel that the appellant was 16 year old at the time of the accident, he missed his High School examination because of the accident, he remained in hospital for about 20 days, his fractured leg was operated upon in which steel rod was implanted and bone grafting was done, his father was in the Indian Army and he could get into Army under the quota prescribed for the dependants of Army personnel had he not sustained injuries in the accident, clear and sufficient evidence is required to conclude as to whether there is permanent disability due to injuries sustained by the appellant and if there is permanent disability what is the impact or effect and extent of such disability on the future earning capacity of the petitioner, the impact on his future prospects of employment and more particularly the prospects of his joining Indian Army.
In this background of the case and in the light of the pronouncements of Hon'ble Apex Court, cited above, we are of the considered opinion that the matter be remanded to the Tribunal to provide one more opportunity to the petitioner/appellant to lead evidence regarding his alleged disability, the opposite party, be also allowed to adduce evidence in rebuttal.
In view of the above, impugned judgement and award dated 12.05.2006 passed by the Tribunal, is hereby set aside and the appeal is accordingly allowed. The matter is remitted to the Tribunal with the aforesaid observation and direction. Since the matter is old, the Tribunal would endeavour to dispose of the claim petition on merits and in accordance with law within a period of six months from the date of production of a certified copy of this order before him.
(Mahboob Ali, J.) (Bharati Sapru, J.)
Order Date :- 06.10.2017
Ujjawal
