Jugal Kishor Khanna vs Ram Kumar And 2 Others
2019 Latest Caselaw 298 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 26
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2602 of 2017
 
Appellant :- Jugal Kishor Khanna
 
Respondent :- Ram Kumar And 2 Others

Counsel for Appellant :- In Person,J.K. Khanna

Counsel for Respondent :- Sudhanshu Behari Lal Gour

Hon'ble Dr. Kaushal Jayendra Thaker,J.]

1. This appeal is listed before the undersigned by the orders of the Hon'ble the Chief Justice.

2. I have heard Sri J.K. Khanna, who is party in person for the appellant, who is original claimant and Sri Sudhanshu Behari Lal Gour, learned counsel for the Insurance Company. None appears for the owner. The claimant had sustained injuries while he was pillion rider on the scooty, on 15.11.2014 at 8.15 p.m., accident occurred at Krishi Vihar Bus Stand red light crossing within P.S. Greater Kailash-I, New Delhi. He preferred a claim petition being Claim Petition No.341 of 2015 before the Motor Accident Claims Tribunal, Allahabad. The Motor Accident Claims Tribunal awarded a sum of Rs.33,220/- with 7% simple interest from the date of institution of the claim petition. The claimant has preferred this appeal claiming enhancement, as according to him, he had claimed Rs.13,98,000/-. The appellant is a practising Advocate in the High Court of Judicature at Allahabad. The Insurance Company and the owner have accepted the decision of the Tribunal. The accident having taken place is not in dispute. The finding of negligence has attained finality now. The insurance being in vogue and there being no breach of the insurance policy, those issues are concluded in favour of the appellant and, hence, they are not discussed at length.

The only issue which has to be decided is the justness of compensation and whether the same requires to be interfered with. My finding on the same issue is positive with 9% interest as the amount awarded by the Tribunal is not just compensation.

3. This Court on 7.2.2019 and 20.2.2019 has passed the following orders:

"Order Date :- 7.2.2019

Heard Sri J.K. Khanna, in person, and Sri Sudhanshu Behari Lal Gour for the respondents.

Judgement reserved.

List for pronouncement of judgement on 28.02.2019.

Order Date :- 20.2.2019

Learned Advocate feels that he has already argued the matter, the matter was already argued on 7.02.2019 and ordered for dictation in chamber but when the matter is taken up certain aspects required clarification, both parties were appraised of the lack of certain facts. Having found that the appellant is practising advocate was shown that there are material defects in the claim petition itself. I think it proper to grant him reopportunity. He was even requested or seek assistance of some other counsel who is normally practising in M.A.C.P. side. However he maintains that he has argued the matter.

List this matter for final disposal on 28.02.2019."

4. At the outset before I advert to the facts, certain aspects require to be noted, (I) that the amount claimed in the body of the petition and in the prayer differ. (ii) The claimant has prayed for Rs.13,98,000/- with 18% interest. However, this fact is based on no record as the claimant has not mentioned the amount anywhere in the claim petition.(iii) No certificate showing that there was any permanent partial disablement is produced. (iv) His ITR returns do not show that he was/is earning Rs.50,000/- (v) He has not proved that he could not attend court for six months (vi) The certificate for re-operation is not supported by any medical evidence and the said certificate is given by a non- orthopaedic doctor.

5. The record and proceeding was summoned which has been thoroughly perused by this Court.

6. Heard party in person and the counsel for the insurance company. It is submitted by Mr. Khanna that the Tribunal has not given any finding on the percentage of disability which has occurred to him and has not given any amount under the head of disability which he might have incurred due to the insertion of rod and the fractures which was caused to his lower limb.

7. The party in person has relied on the decision of this High Court in F.A.F.O. No. 2603 of 2003 (Indra Pas Singh Vs. Smt. Shobha Srivastava and Others) decided on 21.1.2009 and has contended that similar order requires to passed in this matter also. However, a glaring fact and the difference in cited matter and in this matter is that in the case in hand, the learned counsel has examined no body and has not produced any such cogent evidence to show that he was so impaired that he could not attend the Court for a period of six months or more. The documentary evidence which has been produced are all practically not germane for the purpose though he has given the list of witnesses to be examined but none of them has been examined before the Tribunal. The document attached also do not show the fact as to what except the document at page Nos.26, 6 and 7 which show their medical discharge and x-ray report. All other documents were either related to vehicle or else other which do not goes to show what injuries caused to him.

8. The history of the appellant/claimant's injury is annexed and exhibited as 17Ga/26 are as under:

"Alleged h/o FTA with injury to left leg on Nov 15, 2014

C/o Pain, Swelling, Deformity Left Leg

No H/o LOC, VGMIT , ENT Bleed

Patient conscious oriented

Left Leg

Swelling +

Tenderness +

Deformity +

Abnormal mobility

No distal neuro vascular deficit."

9. The document at page 17G/28 shows that he was advised to do regular physiotherapy as plaster was removed after one months. It is admitted position that no further proof of his injury was ever produced before Tribunal or even before this Court.

10. On perusal of the claim petition, the following prayer is extracted :-

"It is therefore, most humbly prayed that the Hon'ble Tribunal may be pleased to award a sum of Rs.2, 50,000.00 for No-Fault Liability U/s 140 and the sum of Rs.4, 8,000.00 for Fault Liability U/s 168 of the Motor Vehicle Act 59 of 1988, with cost of the case and interest @18% per annum from the date of the accident till payments."

Whereas in the body of the claim petition, amount of compensation is claimed in Para 22 of the claim petition which is as below :-

"22. Amount of compensation claimed:

Rs. 25,000.00 U/s 140 of the Motor Vehicle Act 1988.

Rs. 2, 00,000.00 U/s 166 of the Motor Vehicle Act 1988.

Details of the Claim

1. Rs.1,00,000/- Damages for mental shock physical Pain and suffering

2. Rs.2,00,000/- Damage for loss of normal amenities and pleasures of life

3. Rs.3,00,000/- Damages for loss of bodily Integrity

4. Rs.2,00,000/- Damages for loss of Inconvenience hardship disfigurement, frustration and metal stress in life

[B] SPECIAL DAMAGES

(5) Rs.2,00,000/- Damages for loss of future Income on account of accident, the applicant is unable to move and cannot attend the court since 15.11.2014 and less of practice for which damages are required.

(6) Rs.1, 00,000/- Damages for loss of money spent in Medical Treatment, nursing cost etc.

Rs.11, 00,000/- Total Compensation Claimed."

11. The tribunal on the evidence produced before it awarded the compensation. As P.W.1 that is the claimant himself has alone been examined.

The income claimed is Rs.50,000/- per month but the average Income Tax Return for the ITR accounting years i.e. 2012-2013, 2013-2014 and 2014-2015 come to show the income is that as appellant which belies his oral testimony that he was earning Rs.50,000/- per month. The income tax returns for the accounting year 2011-12 shows gross total income of Rs. 2,44,204/- and he had claimed refund of Rs.25,607/-. His income for the year 2012-13 was Rs.3,30,093/- and he claimed refund of Rs.54,672/-. In the year 2013-2014 income in gross has become Rs.3,58,470/- and he has claimed Rs.42,268/- and for the year 2014-15, his income was Rs.3,58,374/- and has claimed refund of Rs.42,562/-. It is not in dispute that the appellant was 66 years of age when the accident occurred. He has not produced any disability certificate to show what would be his loss of earning. The certificate for future treatment is given by a person, who is not an Orthopaedic Surgeon. All these factors have weighed with the learned Tribunal while awarding the compensation.

12. It is submitted by the party in person that there is implantation of a rod in his thigh. The leg was plastered and the amount for operation was Rs.24,000/-. He has claimed Rs.50,000/- for the trauma. Rs.10, 000/- for attendant charges and Rs.50,000/- for removal of the rod. It is further submitted that because of the iron rod he faces the trauma of being stopped and examined at the airport. He has claimed Rs.7,00,000/- as per claim petition (supra).

13. As against this, learned counsel for the respondent has submitted that even if we would go by the judgement in Raj Kumar Vs. Ajay Kumar and Anr. 2011 (1) SCC 343, as he was aged about 66 years,  future loss can be granted as per the judgement of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. It is not proved what was his functional disability as held by the Supreme Court in the case of Raj Kumar (Supra). It is not known when the rod will be removed and it is submitted that the appellant has miserably failed to show that he is entitled to the amount claimed in the claim petition. Sri Sudhanshu Behari Lal Gour has conveyed that marginal amount can be enhanced but nothing for future prospects can be given as the learned Advocate himself is arguing the matter and is able to perform his duties from the ITR returns, it is clear that there is no loss of income even in the year of the accident.

14. It is an admitted position of fact that no medical certificate showing what was the percentage of disability caused to the appellant is produced. The disability would be judged on the touch stone of the judgement in Raj Kumar Vs. Ajay Kumar and Anr. 2011 (1) SCC 343, it has been contended by the party in person that there is no finding of fact that there is functional disability, this is a submission made for being rejected as in absence of any certificate or any medical evidence the Tribunal would not have held that there was any kind of functional disability which arose out of the said accident. The Tribunal in the case on hand has awarded a sum of Rs.26,420/- for the medical expences as according to the Tribunal the claimant was admitted in Government Hospital where he was treated conservatively. The certificate were made the basis for the grant of the said amount. Rs.4000/- for transport expences as the injured was undergoing medical treatment in Delhi, Rs.1000/- for mental shock and suffering and Rs.1800/- for nutritious food at the rate of Rs.200/- per day for 9 days i.e. the period he undergone medical treatment. Thus, in total, the Tribunal has awarded a sum of Rs.26,420 + 4000 + 1000 + 1800 = 33,320/- in favour of the claimant-injured. The Tribunal refused to grant the amount of Rs.50,000/- as the appellant herein did not prove when he was to be operated. The Tribunal felt that as he has taken his first treatment at Jai Prakash Trauma Centre, he could be treated there for removal of the rod.

15. It is an admitted position of fact that the appellant remained in hospital for nine days and his plaster was therefore for one month and therefore it can be safely said that he has suffered one month and nine days of actual loss of Rs. 35,000/- as his yearly income is roughly taken as rupees three lakhs per annum as per his ITR. The Tribunal has shown total insensitivity by awarding Rs.1,000/- under the head of pain shock and suffering, to a person of 66 years of age, the trauma would be much higher and, therefore, the appellant is entitled to a sum of Rs.25,000/- under the head of pain shock suffering. The Tribunal has again fallen in error in granting Rs1800/- for nutritious food and Rs.4000/- for transportation. The said amount is enhanced to additional amount of Rs.10,000/-. To which an additional amount of Rs.30,000/- for further medical treatment which may be undertaken in future however, the appellant has failed to prove that there is any functional disability because of the said accident, compensation under that head cannot be granted. I am supported in my view by the latest decisions of the Apex Court reported in AIR 2018 SC 1640 and AIR 2018 SC 1900. The compensation has to be granted on the basis of permanent disability and loss of future earning. In this case, neither there is a percentage of permanent disability nor is there any pleading or evidence to substantiate that what was the functional disability and, therefore, no fault can be found with the Tribunal for not awarding compensation under the same head, however, the Tribunal has fallen an error in not awarding what can be said to be just compensation.

16. As elaborated above, the appellant is entitled to be a sum of Rs.35,000/- for actual loss of income, Rs.25,000/- additional amount be paid for pain shock suffering and Rs.30,000/- for further medical treatment, which may be undertaken in future and additional Rs.10,000/- towards all other charges and for good diet.

17. The submission that he has spent Rs.34,000/-, the grant of Rs. 33,200/- will be considered under that head as this Court has granted separate amounts under the head of pain shock suffering and attendant charges which have been meager amounts awarded by the Tribunal.

18. Hence, over and above, the amount granted by the tribunal the appellant would be entitled to Rs.1,00,000/- with 9% rate of interest throughout from the date of filing of the claim petition till the amount is deposited by the Insurance Company. I am unable to accept the submission of party in person that the amount should be paid with 18% rate of interest the reason being the decisions of the Apex Court and this Court referred herein (infra).

19. A Division Bench of this Court in FIRST APPEAL FROM ORDER No.-1011 of 2012 (Ramesh Kumar Soni Vs. Shriram General Insurance Co.Ltd. Thr.Manager & Another) decided on 3.3.2017, while dealing with the issue of interest, has held as under:

"14. Tribunal has awarded interest at the rate of 6% per annum on the amount of compensation from the date of filing of claim petition. It is contended that interest at the rate of 6 % is on much lower side and it should be 9 %.

15. We find in recent authorities, Courts have held that appropriate rate of interest should be 9%.

16. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-

"The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8 % per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481. Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."

17. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9 % interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.

18. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9 % per annum which was challenged that it is on higher side. Court upheld said rate of interest.

19. In Shashikala and Others Vs Gangalakshmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9 % rate of interest from the date of claim petition till the date of realization.

20. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8 % . Accident took place on 27.11.2016. It was held that 8 % interest is on lower side and it should be 9 %.

21. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6 %. Court held that it is on lower side and it should be 9 %.

22. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9 % interest.

23. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15 % interest which was reduced to 12% by Gujrat High Court. Court held that it is on higher side and awarded 9 % interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).

24. In view of above, the rate of interest in the present case, 6 % awarded by Tribunal also cannot be justified and in our view interest should be paid at 9 % per annum."

20. The appeal is partly allowed. The judgment and decree shall stand modified to the aforesaid extent. The disbursement shall be made keeping in view the judgment of the Apex Court in AV Padma vs. R. Venu Gopal and others 2012 (3) SCC 378 as the claimant is an advocate and 66 years of age there is no need to keep any amount to fix deposit.

21. The Tribunal shall disburse the aforesaid amount, accordingly. Record and proceedings be sent back to the Tribunal forthwith.

Order Date :28.2.2019

m.a.