Allahabad High Court

Hari Babu vs Amrit Lal And Others on 4 April, 2019

Bench: Kaushal Jayendra Thaker




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 26
 

 
Case :- FIRST APPEAL FROM ORDER No.3199 of 2004
 
Appellant :- Hari Babu
 
Respondent :- Amrit Lal And Others
 
Counsel for Appellant :- Ram Singh
 
Counsel for Respondent :- Arun Kumar Shukla
 

 
Hon'ble Dr. Kaushal Jayendra Thaker, J.

1. Heard learned counsel holding brief of Sri Ram Singh for the appellant and Sri Arun Kumar Shukla for the respondent - Insurance company. None appears for the owner.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 16.7.2004 passed by Motor Accident Claims Tribunal, Allahabad, (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 829 of 1998 awarding a sum of Rs. 3,77,000/- with interest at the rate of 6 per cent for the injuries suffered by the claimant - appellant, who has amputation on his lower limb.

3. The accident is not in dispute. The issue of negligence is decided in favour of the appellant herein. The Insurance Company has not challenged the liability imposed on them by the Tribunal. The only issue to be decided is the quantum.

4. It is submitted by learned counsel for the appellant that the Tribunal has considered Rs.4,000/- per annum which is unjust even in the year of accident. It is submitted that the income of the injured should have been considered to be at least twice as he had business of his own and he was 35 years of age. It is submitted that the amount awarded also requires to be disturbed and the amount cannot be refused for future prospects of injured in light of the following:-

(i) Sanjay Kumar Vs. Ashok Kumar and another, (2014) 5 SCC 330;

(ii) Syed. Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735;

(iii) V. Mekala Vs. M. Malathi and another, (2014) 11 SCC 178; and

(iv) Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011.

5. It is submitted that the injured being 35 years of age at the time of accident, the multiplier of 16 requires to be granted. It is submitted that there is amputation of left leg below knee. The injured was also having a compound fracture in his right leg. The Chief Medical Officer, Allahabad, gave that he was having 60% disability but the Tribunal assessed it as 40% loss of income. It is submitted that as he was having his own provision store, he has incurred lot of losses because of his said injuries. It is submitted that the Tribunal has committed an error in considering his income at Rs.4,000/- only and has also erred in calculating the total compensation. It is submitted that the amount awarded being Rs.3,77,000/- with 6% rate of interest is also bad.

6. It is submitted by Sri Arun Kumar Shukla, learned counsel for the respondent, that no future income loss can be granted as the income of the claimant has not been shown to have been decreased and, therefore, cannot be more than what has been assessed by the Tribunal. He could not point out that the additional amount under the head of future prospects has not to be added as per the judgment in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343. It has not been shown by counsel for the respondent that the said amount cannot be enhanced though there is amputation of left leg. The amount awarded under other heads is also not required to be enhanced is submitted by counsel for the respondent.

7. Counsel for the respondent has further submitted that amount requires to be added as per Uttar Pradesh Motor Vehicles Rules, 1998 (hereinafter referred to as 'Rules') and the interest cannot be paid as prayed by the claimant namely 18 % and it should be at 7% on the enhanced amount and the amount which has already been awarded.

8. The injured was earning Rs.4,000/- per month meaning thereby Rs.48,000/- per annum even if we consider the judgment of the Apex Court in Raj Kumar (supra). The future loss of income cannot be 100 per cent as it is not shown that he had closed down his provisions store. The future prospect also has to be as per the reduction in his income. Hence, the Tribunal cannot be said to have committed any error when it has held that the injury which was caused was bringing 40% functional disability. The said cannot be interfered with as it is not demonstrated how the claimant had incurred total loss as submitted by counsel for the appellant. The calculation made by the counsel itself is erroneous. The disability has to be considered as 40 per cent of Rs.48,000/- and Rs.48,000/- cannot be added with Rs.19,200/- and it cannot be 60% of Rs.67.200/-. The total disability would be calculated in the following manner. Rs.48,000/- can be considered to be his annual income. Out of which, 40% is his available amount under functional disability which would be Rs.19,200/-, which can be multiplied with 16. The decision of Sanjay Kumar Shukla also states that compensation where there is serious injuries can be granted under other pecuniary damages like loss of future earning on account of permanent disability.

9. I am supported in my view by the Division Bench Judgement in FIRST APPEAL FROM ORDER No. - 199 of 2017 (National Insurance Company Limited, Lucknow Versus Lavkush and another) decided on 21.3.2017 and the said judgment has been ordered to be circulated. The reference to certain observations of the said Division Bench judgment more particularly paragraph no. 8 onward will be necessary wherein the High Court has considered the applicability of Rules while deciding claim petitions. The said paragraphs are reproduced as under :

"8. Documentary evidence included insurance, registration, driving licence of vehicle in question, and cash memos to show amount spent on medical treatment. A disability certificate was also filed. Oral evidence comprised of statement of Luvkush, as PW-1, and Chandra Shekhar as PW-2. Owner and Insurer did not produce any witness at all.

9. Tribunal answered Issue 1 in favour of Claimant, holding that accident was caused due to rash and negligent driving by Driver of Tempo and there was no fault on the part of Claimant or driver of Auto Rickshaw in which Claimant was traveling. With regard to Issues 2, 3 and 4, it held that all documents relating to tortfeaser vehicle, namely, registration certificate, insurance policy, permit, fitness certificate etc. were valid and driver also had a valid and effective driving licence.

10. Question of compensation was considered by deciding Issue 5. Tribunal held that though amputation of right leg, technically, is said to be a 50% disability which has also been so verified by competent authority, but considering the fact that Claimant is an unskilled labour and after amputation of his right leg, has become totally incapable of earning his livelihood by working as unskilled labour, hence in his case, it is 100% disability and compensation deserves to be computed accordingly. Taking notional income as Rs. 3000/- per month, Tribunal has applied multiplier of 18. Besides, it has allowed Rs. 32,319/- towards medical expenses and another Rs. 30,000/- under different heads, as we have already noticed above.

11. Learned counsel for appellant contended that there was only 50% disability, duly verified through disability certificate produced by Claimant, hence Tribunal has erred in law in awarding compensation treating it a case of 100% disability. He further argued that in State of U.P., rules have been framed, i.e., U.P. Motor Vehicles Rules, 1998 (hereinafter referred to as the U.P. Rules, 1998"), in exercise of powers under Sections 28, 38, 65, 95, 96, 107, 111, 138, 176 and 230 of Act, 1988 read with Section 21 of General Clauses Act, 1897. Chapter IX thereof deals with Claims Tribunal. By amendment notification dated 26.09.2011, published in U.P. Gazette Extraordinary dated 26.09.2011, Rule 220A has been inserted therein, providing fixed amount of compensation payable to Claimant under different heads. It has fixed limit of compensation, under different heads like personal and living expenses of deceased, future prospects and other non pecuniary damages. Sri Agarwal contended that no amount, under different heads, over and above what is contemplated and provided under Rule 220A of U.P. Rules, 1998, can be awarded. He also urged that under Rule 220A(6), rate of interest is 7%. He argued that while computing compensation, Tribunal has no authority to determine any amount on its own, particularly in the light of the fact that delegated legislature has already intervened by fixing amount under different heads and provisions of U.P. Rules, 1998 shall prevail. Amount of compensation determined by Tribunal, not consistent with Rule 220A is without jurisdiction, illegal and hence cannot be sustained.

12. Appeal has been contested by Claimant-Respondent 1 through his counsel Sri Anoop Kumar Srivastava. So far as Respondent-owner is concerned, he has not challenged award and qua him award has attained finality.

13. Learned counsel appearing for Claimant-Respondent 1 contended that duty and responsibility of Tribunal is to award compensation which appears to it, "just". What amount of compensation will be "just", has to be determined by Tribunal in view of Section 168 of Act, 1988. This obligation of Tribunal can neither be checked nor arrested nor controlled by subordinate legislature in any manner. Rules, therefore, have to be read as a mere guideline. Ultimate statutory obligation is upon Tribunal to determine "just" amount of compensation and this statutory authority of Tribunal cannot be restricted by even subordinate legislation. He further argued that looking to entire facts and circumstances, Tribunal has rightly found that here is a case of 100% functional disability and loss to Claimant. Amount of compensation has been computed accordingly by applying relevant multiplier, hence no interference is required and appeal should be dismissed.

14. We have heard learned counsel for parties at length and perused relevant statutory provisions as also various authorities cited at Bar as also the record.

15. Claimant is a young budding person having attained majority very recently when met accident. On the fateful day of 03.05.2015, he was just 20 years of age. He was working as unskilled labour when met accident and sustained serious injuries as a result whereof his femur was broken and entire right leg below knee got crushed badly. Doctors found no option but to cause amputation of his right leg. The disability certificate (Paper No. Ga 25/14 dated 05.06.2015) shows that his lower right leg below knee was amputated and his physical disability in medical terms, was found 50%.

16. Tribunal has recorded a finding that amputation of right leg has caused loss of earning to Claimant to the extent of 100% since it is not possible for him to discharge function of labour and he, being unskilled, is not expected to perform any other job.

17. Learned counsel for appellant suggested that when physical disability was only 50%, it is always open to Claimant to do any other sedentary job but when we enquired from him that a person who, in hierarchy of physical labour, at the lowest ebb, being an unskilled labour, what sedentary job can he perform, which may provide him livelihood, he could give no reply whatsoever.

18. The points of determination arisen in this appeal are:

(I) Whether Tribunal has erred in determining compensation treating disability of Claimant, i.e., loss of capacity to earn, to the extent of 100% and applying relevant provisions accordingly or it should have confined to only 50% which was certified vide disability certificate due to amputation of right leg below knee.

(II) Whether compensation under different heads awarded by Tribunal necessarily should be the amount mentioned in Rule 220A of U.P. Rules, 1998 or the said Rules are directory and Tribunal can award appropriate amount of compensation other than what is mentioned in Rule 220A.

(III) Whether power of Tribunal to determine amount of compensation can be controlled, restricted or checked by subordinate legislation, i.e., by enacting rules, laying down specific amounts payable under different heads, in a claim petition under Section 166 read with Section 168 of Act, 1988.

19. It is admitted by parties that Claimant sought compensation by filing application under Section 166 of Act, 1988. Relevance of application under Section 166 is not without any reason. Broadly there are three provisions under Act, 1988 whereunder compensation can be awarded to a victim or his legal heirs, as the case may be.

20. Chapter X, having Sections 140 to 144, deals with the provisions relating to "liability without fault", in certain cases. Provisions under this Chapter have been given overriding effect by virtue of Section 144. Section 140(1) provides, where death or permanent disablement has resulted to a person from an accident arising out of use of a motor vehicle or motor vehicles, owner/owners of vehicle shall, jointly and severely, be liable to pay compensation, in respect of such death or disablement, in accordance with said section. Sub-section (2) provides a fixed amount of Rs. 50,000/- in case of death and Rs. 25,000/- in case of permanent disablement. In order to attract Section 140 there is no necessity or requirement to show that accident took place due to rash and negligent driving of tortfeaser vehicle. It recognizes principle of "no fault liability". The amount awardable thereunder is fixed by legislature itself. Liability is that of owner. Insurer does not come into picture when claim is made under Section 140. This "no fault liability" envisaged in Section 140 is distinct from the "rule of strict liability". In other words, liability under Section 140 is a statutory liability. If an amount under Section 140 has been paid and thereafter claim is made under Section 166, amount paid under Section 140 is liable to be deducted from final amount of compensation awarded by Tribunal. The amount under Section 140 being a fixed/crystallized amount, same has to be considered as part of estate of deceased as held in Smt. Manjuri Bera vs. The Oriental Insurance Company Ltd. and another, AIR 2007 SC 1474.

21. Liability under Section 140 has to be borne by owner if vehicle was not insured or there was a breach of conditions of insurance. Though Section 140 makes owner of vehicle responsible for payment of compensation but if vehicle is insured, it is always open to owner to make Insurer liable to pay amount of compensation for the reason that once vehicle is covered under the terms of policy, it is for Insurer to make payment of liability of owner to the extent indicated in policy, be it under Section 166 or Section 140 of Act, 1988.

22. In the scheme of Act, 1988, Chapter X, by virtue of Section 140, contemplates earliest relief to a victim by awarding a fixed amount of compensation, if death or permanent disability has resulted from an accident arising out of use of a motor vehicle and for this purpose there is no requirement of pleading or establishing that death or permanent disablement was due to any wrongful act, neglect or default of owner of vehicle.

23. Section 141 declares that right to claim compensation under Section 140 is in addition to any other right to claim compensation on the principle of "fault liability" but it only excludes right to claim compensation under Section 163A. In other words, if a compensation is claimed under "no fault liability" then either it can be an application under Sections 140 or 163A and not both. This is what has also been clarified in The Oriental Insurance Co. Ltd. etc. vs. Hansrajbhai V.Kodala and others, 2001(5) SCC 175.

24. Section 142 classifies injuries which are considered "permanent disablement" for the purpose of Chapter X of Act, 1988.

25. By virtue of Section 143 of Act, 1988, benefit of "no fault liability" under Chapter X has also been extended to a workman to claim compensation in respect of death or permanent disablement either by approaching Workman Compensation Commissioner under Workmen's Compensation Act, 1923 (hereinafter referred to as the "Act, 1923") or Tribunal under Act, 1988, by filing application under Section 140 of Act, 1988.

26. Next provision under Act, 1988 is Section 161 read with Section 163, which is a special provision for compensation in case of a hit and run motor accident where identity of vehicle/ tortfeaser is not ascertainable despite reasonable efforts for the purpose. In this regard Section 163 empowers Central Government to make a scheme for payment of compensation in hit and run accident cases and subject to such scheme, Section 161(3) provides compensation of fixed sum of Rs. 25,000/- in case of death and Rs. 12,500/- in case of grievous injuries.

27. Initially when Act, 1988 was enacted there was no provision for compensation in case of "no fault liability" based on a structured formula which gives a scope for determination of compensation. By Act 54 of 1994, and w.e.f. 14.11.1994, Section 163A was inserted making special provision as to payment of compensation on structured formula. This Section commences with a "non-obstente" clause and overrides provisions of Act, 1988 or any other law for the time being in force or instrument having force of law. It says that owner of vehicle or authorized Insurer shall be liable to pay compensation as indicated in Second Schedule in case of death, to legal heirs and in case of permanent disablement, to the victim, as the case may be. Explanation to Section 163A(1) incorporates by Reference, meaning of "permanent disability" as provided in Act, 1923 to the word "permanent disablement" used under Section 163A of Act, 1988. For claiming compensation under Section 163A(1) claimant is not required to plead or establish that accident occurred due to any wrongful act, neglect or default on the part of owner of vehicle concern or of any other person.

28. There is a note appended to Second Schedule of Act, 1988, raising a legal fiction stating that injuries deemed to result in permanent total disablement/ permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule First under Act, 1923. In para 5 of Second Schedule of Act, 1988, provisions of First Schedule of Act, 1923 have been incorporated by reference. To attract Section 163A and to claim compensation thereunder, one has to establish factum of accident, age of deceased/ injured, as the case may be and his/her income. Broadly, these are the only relevant material factors to be brought before Tribunal for determining compensation under Section 163A.

29. However, while determining compensation, Tribunal has to consider relevant factors and it cannot be expected to go by a ready reckoner as held in U.P. State Road Transport Corporation and Ors. vs. Trilok Chandra and others, 1996(4) SCC 362.

30. Next provision relating to compensation is Chapter XII, i.e., Section 166 read with Section 165.

31. State Government has empowered by Section 165(1) to constitute one or more Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving death of, or bodily injury, to persons, arising out of use of motor vehicles or damages of any property of a third party so arising or both.

32. Section 166 provides that an application for compensation arising out of an accident of the nature specified in Section 165(1) may be made and these are:

"(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be."

33. Section 168 requires Tribunal to determine amount of compensation which appears to it, "just" after giving opportunity to parties including Insurer.

39. Section 168 contemplates determination of "just compensation". 'Just' means, fair, reasonable and equitable amount accepted by legal standards. "Just compensation" does not mean perfect or absolute compensation. "Just compensation" principle requires examination of particular situation obtaining uniquely in an individual case.

40. When compensation is to be determined on an application under Section 166, various heads under which damages are to be assessed, have to be looked into by Tribunal and not by merely determining income and applying multiplier.

41. We may consider some broad aspects in the context of injury/ disability and death separately.

Bodily Injury/Disability

42. Here damages are broadly in two categories, i.e., pecuniary damages and special damages. Pecuniary damages are those which victim has actually incurred and which are capable of being calculated in terms of money. Pecuniary damages may include: (i) medical attendance; (ii) loss of earning profit upto the date of trial; (iii) other material loss.

43. Non-pecuniary damages are such which are incapable of being assessed by arithmetical calculation. They may include; (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

48. This judgment has been referred to with approval in Arun Kumar Agrawal and another Vs. National Insurance Company Limited and others, 2010(9) SCC 218.

49. Besides above, there are two general heads which are applicable to all category of cases, namely, (i) litigation expenses and (ii) interest.

50. We have recapitulated broadly the relevant statutory provisions as also certain general principles for determining amount of compensation under the provisions of Act, 1988.

51. In the present case, application for determining compensation was admittedly filed under Section 166 and, therefore, Tribunal was under an obligation to determine "just amount of compensation". Whether this 'just' amount can be a mathematical calculation, as suggested by learned counsel for appellant, or, have to be determined in the light of peculiar facts and circumstances of each and every case, though broadly following statutory guidelines, is a question which requires consideration.

52. Statutory provisions have been deviated while determining compensation on an application filed under Section 166 and a modified multiplier schedule has been provided in Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation (supra).

53. The first question is regarding Rule 220A, whether Tribunal can go beyond it or not.

54. Rule 220A of U.P. Rules, 1998 reads as under:

"220-A. Determination of compensation--(1) The multiplier for determination of loss of income payable as compensation in all the claims cases shall be applied as per Second Schedule provided in the Act.

(2) Deduction for personal and living expenses of a deceased, shall be as follows--

(i) The deduction towards personal expenses of a deceased unmarried shall be 50% where the family of a bachelor is large and dependent on the income of the deceased, the deduction shall be 1/3 (33.33%).

(ii) The deduction towards personal and living expenses of a married person deceased shall be 1/3rd where dependent family members are 2 to 3 in number, 1/4th where dependent family members are 4 to 6 in number and 1/5th where dependent family members are more than 6 in number.

(3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under--

(i) Below 40 years of age

50% of the salary,

(ii) Between 40-50 years of age

30% of the salary,

(iii) More than 50 years of age

20% of the salary,

(iv) When wages not sufficiently proved

50% towards inflation and price index.

(4) The non-pecuniary damages shall also be payable in the compensation as follows--

(i) Compensation for loss of estate

Rs. 5000 to Rs. 10,000.

(ii) Compensation for loss of consortium

Rs. 5000 to 10,000.

(iii) Compensation for loss of love and affection

Rs. 5000 to 15,000.

 
(iv) Funeral expenses, costs of transportation of body
 
Rs. 5000 or actual expenses    whichever is less. 
 
(v) Medical expenses 
 
actual expenses proved to the satisfaction of the Claims Tribunal. 
 

 
(5)	For determination of compensation in case of injuries, partial or permanent disability provisions of Second Schedule of the Act shall apply:

Provided that the Claims Tribunal may also award compensation for future prospects according to sub-rule (3) in case of permanent disability depending upon the nature, extent and its effect on the future of disabled claimants.

(6) The rate of interest shall be 7% pendente lite and future till the actual payment."

55. As already pointed out U.P. Rules, 1998 have been framed in exercise of powers under certain Sections of Act, 1988 noted above. We may examine these sections separately.

56. Section 28 confers power of making rules upon State Government for the purpose of carrying into effect provisions of Chapter II other than the matters specified in Section 27. Chapter II, contemplates provisions of licensing of drivers of motor vehicles. In sub-section (2) of Section 28 certain specific subjects are mentioned but the same are also in the context of licensing of connected matters therewith.

57. Similarly, Section 38 confers power upon State Government to make rules for the purpose of carrying into effect provisions of Chapter III. Sub-section (2) specifies certain subjects which also relates to matters concerned with Chapter III which deals with provisions of licensing of conductors of stage carriages.

58. Then comes Section 65 which confers similar power upon State Government for framing rules for carrying into effect the provisions of Chapter IV relating to registration of motor vehicles.

59. Next is Section 95 which confers power upon State Government to frame rules as to Stage Carriages and Contract Carriages and conduct of passengers in such vehicles. This Section 95 is part of Chapter V which contains provisions relating to control of transport vehicles.

60. Section 96 confers power upon State Government to frame rules for the purpose of carrying into effect, provisions of Chapter V.

61. Section 107 confers power to frame rule for carrying into effect the provisions of Chapter VI which deals with special provisions relating to State transport undertakings.

62. Section 111 confers power upon State Government to frame rules regulating construction, equipment and maintenance of motor vehicles and Trailers, with respect to all matters other than the matters specified in sub-section (1) of Section 110. This Section 111 is part of Chapter VII which contains provisions of construction, equipment and maintenance of motor vehicles.

63. Section 138 confers power to frame rules upon State Government for the purpose of carrying into effect the provisions of Chapter VIII which contains provisions relating to control of traffic.

64. Section 176 is the only relevant provision which takes into its ambit Sections 165 to 174 which are part of Chapter XII relating to Claims Tribunal. Section 176 reads as under:

"176. Power of State Government to make rules.--A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:--

(a) the form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such applications;

(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;

(d) the form and the manner in which and the fees (if any) on payment of which an appeal may by preferred against an award of a Claims Tribunal; and

(e) any other matter which is to be, or may be, prescribed."

65. Lastly, it is Section 213 which is part of Chapter XIV, i.e., "Miscellaneous". Section 213 confers power upon State Government to establish a Motor Vehicles Department and appoint officers therefor as it thinks fit.

66. As we have already discussed, Section 176 nowhere specifically confers power upon State Government to make a provision which may control a Claim Tribunal in the matter of determination of amount of compensation under Section 168 which is the judicial adjudicatory authority conferred upon Tribunal by Principal Legislature.

67. In R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and others, 1995(1) SCC 551 it was observed that process of determination of amount of compensation involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused but all aforesaid elements have to be viewed with objective standards. Process of determination involves a reasonable estimate and a justifiable guess work on the part of Tribunal. In the nature of claims involving fatal accident cases, what is required is determination of "what would have been" and not "what actually is". However, approach has to be pragmatic and sympathetic. Court is expected not only to take fortuitous circumstances and good possibilities of future, the advantages in favour of deceased as well as dependents but also the unexpected misfortunes that may happen. Taking all these aspects into account, a fair and justifiable conclusion, striking a fair balance, tranquilised with a sympathetic chord, but devoid of all emotionalism, sensationalism and melodramatic blood and thunder, has to be arrived at by Tribunal. These factors to some minor modification may apply in the case of permanent disability also.

68. Broadly it has been observed that in deciding, what damages should be awarded to a claimant, same should be tested on three principles, first, that the award should be moderate, just and fair and it should not be oppressive to respondent, second, award should not be punitive, exemplary and extravagant and third, as far as possible similar cases must be decided similarly so that community of public at large may not carry the grievance of discrimination.

10. The recent decision of the Apex Court will permit this Court to grant a sum of Rs.1,00,000.00 for pain shock suffering and Rs.50,000.00 for buying crutches or artificial leg. This Court also grants 20% as future loss of income for loss to his provision store as per the judgment of Sanjay Kumar (supra) which comes to Rs.800 x 12 x 16 = Rs.1,53,600.00. Towards loss of amenities and other aspects a further sum of Rs.30,000.00 requires to be granted. Hence, the amount which would now be enhanced, would be Rs. 3,33,600.00 rounded up to Rs.3,34,000.00 over and above the amount already granted.

11. Thus, in view of the discussions and observations made herein above, the appellants- claimants would be entitled to following compensation:

Computation of Compensation

S. No.

Heads

Awarded by the Tribunal

Awarded Amount by this Court

Income of the injured (A)

Rs.4,000/- per month

Monthly loss of income (B)

Rs.1,600.00 per month

Annual loss of injured

(B x 12= C)

Rs.19,200.00 per annum

Multiplier (D)

Total loss of injured

(C x D = E)

Rs.3,07,200.00

Future economic loss (F)

Nil

Rs.1,53,600.00

Pain, shock and sufferings (G)

Rs.20,000.00

Rs. 1,00,000.00

Medical Expenses (H)

Rs.40,000.00

Future medicine and crutches (I)

Nil

Rs.50,000.00

10.

Special diet (J)

Rs.5,000.00

Rs.15,000.00

11.

Attendant charges for past & future (K)

Rs.5,000.00

Rs.15,000.00

TOTAL COMPENSATION

(E+F+G+H+I+J+K= L)

Rs.3,77,000.00

Rs.7,11,000.00

INTEREST AWARDED

9% from the date of claim petition till judgment and 6% thereafter.

12. The rate of interest will have to be enhanced and I am unable to accept the submission of Sri Arun Kumar Shukla, learned counsel for the respondent, that the Rules will apply. A Division Bench of Lucknow Bench in F.A.F.O. No. 199 of 2017 (National Insurance Company Limited Vs. Lavkush and another) decided on 21.3.2017 have interpreted the Rules, which has been followed by this Court time and again, will enure for the benefit of the appellant and, therefore, the rate of interest would be 9% as held in catena of decisions of this High Court and recently in FAFO No.1343 of 2002, decided on 15.3.2019 by the undersigned.

13. I am in agreement with counsel for the respondent that after the appeal is filed and is kept pending, the rate of interest requires to be decreased.

14. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be deposited with interest at the rate of 9% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount be deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.

15. This Court is thankful to both the counsels to see that this very old matter is disposed of.

Order Date :- 4.4.2019

Irshad