Vishal Gupta vs Director I.G.F.R.I. And Others
2021 Latest Caselaw 11480 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR 
 
Court No. - 21
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1477 of 2008
 

 
Appellant :- Vishal Gupta
 
Respondent :- Director I.G.F.R.I. And Others
 
Counsel for Appellant :- A.K. Ojha,R.P. Tiwari
 
Counsel for Respondent :- V.K. Tiwari,Ashok K. Jaiswal,Manoj Kumar Sharma
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per: Hon'ble Ajai Tyagi, J)

1. This appeal, at the behest of the injured-claimant, has been preferred against the judgement and order dated 31.01.2008 passed by Motor Accident Claims Tribunal, Jhansi (hereinafter referred to as ''Tribunal') in Claim Petition No.361 of 2004 (Vishal Gupta Vs. Director IGFRI) awarding a sum of Rs.3,29,000/- as compensation with interest at the rate of 7% per annum.

2. Brief facts of the case are that a motor accident claim petition was filed by claimant-Visual Gupta, who sustained serious injuries in the accident in question. The averments of petition are that on 23.04.2004, the claimant was going from Chitra crossing towards B.K.D. crossing at 11:00 am on motorcycle No. UP 93F-7585. As soon as he reached Rishabh hotel a bus No. UP 90C-0414 hit his motorcycle from behind due to rash and negligent driving of the bus driver. The claimant was taken to the hospital. His condition was serious. Due to sustaining serious injuries in the legs, his left leg was operated thrice and at last, it was amputated from thigh. The claimant became permanently disabled to the extent of 80%. He remained hospitalized for a long period and incurred the expenditure of Rs.1,25,000/- towards medical expenses. It is also alleged in petition that claimant was student of final year engineering. Due to sustaining aforesaid injuries in accident, his future became dark. Alongwith his studies, he was earning Rs.10,000/- by doing job work in different institutions.

3. Heard learned counsel for the appellant and learned counsel for the respondent-Insurance Company as well as perused the record.

4. The accident is not in dispute. The issue of negligence decided by the learned Tribunal also is not in dispute. The respondent-Insurance Company has not challenged the liability imposed on it. The only issue to be decided is, the quantum of compensation awarded.

5. Before computation of compensation, it is worth mentioning that the principles regarding the determination of just compensation, contemplated under the Motor Vehicle Act (hereinafter referred to as ''MV Act') are well settled. Injuries caused deprivation to the body, which entitles the claimant to claim damages. It is impossible to compensate human sufferings and personal deprivation with money. However, this is what the MV Act enjoins upon the courts to do. The Court has to make a judicious attempt to award damages so that the claimant or the victim may be compensated for the loss suffered by him. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of injury, the claimant may suffer consequential loss such as loss of earnings as well as future earnings, medical expenditure, special diet and attendant charges etc. Victim may suffer non-pecuniary damages also in the form of loss of pleasure of life by particular limb of the body. In this way, damages can be pecuniary as well as non-pecuniary. The Court/Tribunal should keep in mind that compensation awarded must be just compensation because the damages assess for personal injuries should be substantial to compensate the injured for the deprivation suffered by him throughout his life.

6. In Kajal Vs. Jagdish Chand reported in 2020 (0) AIJEL-SC 65725, the Apex Court has quoted pertinent observations from a very old case Philips Vs. Western Railway Company (1874) 4QBD 406 as under:

"You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered." Besides, the Tribunals should always remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure."

7. Hon'ble the Apex Court has further quoted pertinent observations from a very old case H. West & Son Ltd. v. Shephard 1963 2 WLR 1359 as under:

"Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.

In the same case Lord Devlin observed that the proper approach to the problem was to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to "hold up his head among his neighbours and say with their approval that he has done the fair thing", which should be kept in mind by the court in determining compensation in personal injury cases."

8. Section 168 of MV Act stipulates that there should be grant of just compensation. Thus, it becomes challenge for a Court of law to determine just compensation which should not be bonanza for the claimant/victim and at the same time it should not be too meagre. Hon'ble the Apex Court in Rajkumar Vs Ajay Kumar and others (2011) 1 SCC 343 has laid down the heads under which compensation is to be awarded for personal injuries which is as follows:

"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.

9. In K. Suresh v. New India Assurance Company Ltd. and Ors.8, Hon'ble the Apex Court has held as follows :

"2...There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity the Act) stipulates that there should be grant of just compensation. Thus, it becomes a challenge for a court of law to determine just compensation which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."

10. We have gone through the Judgement in the case of National Insurance Company Limited Vs. Lavkush and another, 2018 (1) T.A.C. 431, in which the concept of just compensation is discussed elaborately.

10. Applying for the aforesaid principles, we now proceed to assess the compensation.

11. The injured-appellant was 21 years of age at the time of accident. He was final year student in engineering college and it is averred that alongwith his studies, he was earning Rs.10,000/- by doing job work in different institutions in the form of giving tuition as argued by learned counsel for the appellant. The Tribunal awarded total compensation of Rs.3,29,000/- with rate of interest of 7%. It is submitted by learned counsel for the appellant that the Tribunal assumed income of the appellant as Rs.15,000/- per annum while appellant was earning Rs.10,000/- per month and no amount is awarded for future loss of income. Learned counsel also submitted that appellant was going to become engineer within a year of accident and he was having a bright future. But his whole life is shattered due to the accident. Hence, Tribunal has committed grave error in assessing the income of the appellant.

12. Learned counsel for the appellant also submitted that appellant sustained 80% disability due to amputation of his leg and disability certificate of 80% is given by Chief Medical Officer. Learned counsel next submitted that Tribunal has awarded Rs.1,00,000/- towards medical expenses while appellant has incurred Rs.1,50,000/- in the said head. It is also submitted that Tribunal has awarded only Rs.25,000/- for pain, shock and suffering, which is very meagre amount keeping in view the agony of the appellant. It is also submitted that no amount is awarded for future medicines, special diet and attendant charges by the Tribunal and 7% per annum interest is awarded by the Tribunal, is also on lower side. Hence, Tribunal has not awarded just compensation. Learned counsel for the appellant placed reliance on V. Mekala Vs. M. Malathi and another, 2014 Lawsuit (SC) 371, Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 Lawsuit (SC) 613 and Zakir Hussain Vs. Shabir and other 2015 (2) AWC 1475 (SC).

13. Recently, Hon'ble Supreme Court in the case of Basudev Das Vs. Pradymna Mohanty & Another reported in 2019 ACJ 3019, has held that even for amputation, addition of future income has to be made and therefore in case of appellant also future loss will have to be added.

14. Per contra, it is submitted by respondent-Insurance Company that the quantum awarded by the Tribunal is just and proper. It is also submitted that regarding the income of the appellant, there is no documentary evidence on record, only oral evidence is there, which was rightly disbelieved by the Tribunal. There is no illegality or error in awarding the compensation by the Tribunal and it does not call for any interference by this Court as the income, which is not proved, cannot be granted.

15. After hearing the counsel for the parties and perusing the record, it is crystal clear, at the time of accident, that the appellant was final year student in engineering college. He has deposed before learned Tribunal that alongwith his studies, he was doing part time job and earning Rs.10,000/- per month, but there is no documentary evidence in this regard. Hence, we feel that his income can be considered to be Rs.5,000/- per month. At the time of accident, the appellant was 21 years old, therefore, 40% of the income will be added as future loss of income of the injured in view of the decision of the Apex Court in Rajkumar Vs. Ajay Kumar (Supra) and Kajal Vs. Jagdish Chandra (supra). The Chief Medical Officer has issued permanent disability certificate to the extent of 80%, which is not disputed by Insurance Company. Hence, loss of earning capacity namely, 80% has considered by the Tribunal is maintained.

16. The amount awarded by the Tribunal for medical expenses is also on lower side. Looking into the injuries sustained by the appellant and alleged by the appellant, we holds that appellant would be entitled to a sum of Rs.1,25,000/- for medical expenses instead of Rs.1,00,000/- as allowed by the Tribunal.

17. Tribunal has not awarded any sum for future medicines, special diet and attendant charges while in these heads he would have necessarily incurred expenses keeping in view the seriousness of injuries sustained by him and amputation of left leg from thigh. Hence, Tribunal has committed an error in not awarding any sum under aforementioned heads. Hence, Rs.25,000/- shall be awarded for future medicines and Rs.10,000/- for special diet and Rs.10,000/- for attendant charges shall also be awarded.

18. It is very pertinent to mention that on account of injuries sustained in accident, the left leg of the appellant was amputated from thigh and it is evident from the record that only 6 inch of length of the leg has left. The appellant has deposed before learned Tribunal that his left leg is artificial, therefore, appellant shall be entitled to get Rs.1,00,000/- for artificial limb because artificial limb manufactured and fitted to the injured, cannot long last. There is every possibility for its replacement because first artificial limb may not work whole life. The appellant might incur replacement cost also. The appellant shall get Rs.1,00,000/- for pain, shock and suffering.

19. Hence, the total compensation payable to the appellant is computed herein below:

i. Income : Rs.5,000/-

ii. Percentage towards future prospects : 40% = Rs.2,000/-

iii. Total Income : Rs.5000+ Rs.2,000/- = Rs.7,000/-

iv. Loss of earning capacity : 80% namely Rs.5,600/-

v. Annual loss : Rs.5,600/- x 12 = Rs.67,200

vi. Multiplier applicable : 18

vii. Total loss Rs.67,200 x 18 = Rs.12,09,600/-(which is rounded of Rs.12,10,000/-)

viii. Medical expenses : Rs.1,25,000/-

ix. Future medicines : Rs.25,000/-

x. Artificial limb : Rs.1,00,000/-

xi. Special diet : Rs.10,000/-

xii. Attendant charges : Rs.5,000/-

xiii. Amount under pain, shock and suffering : Rs.1,00,000/-

xiv. Total compensation : Rs.12,10,000 + Rs.1,25,000 + Rs.25,000 + Rs.1,00,000 + Rs. 10,000 + Rs.5000 + Rs.1,00,000= Rs.15,75,000/-

20. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under:

"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

21. Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.

22. No other grounds were urged when the matter was heard.

23. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.

24. The records and proceedings be sent back to the Tribunal for disbursement.

        (Ajai Tyagi, J.)        (Dr. Kaushal Jayendra Thaker, J.)
 

 
Order Date :- 15.12.2021
 
Ashutosh Pandey