Allahabad High Court

Ashok Kumar vs Smt. Chhinamalu M. And 3 Ors. on 19 April, 2022

Bench: Kaushal Jayendra Thaker, Ajai Tyagi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 28.3.2022
 
Delivered on 19.4.2022
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. 235 of 2014
 
Appellant :- Ashok Kumar
 
Respondent :- Smt. Chhinamalu M. And 3 Ors.
 
Counsel for Appellant :- B.P. Verma
 
Counsel for Respondent :- Ashok Kumar Srivastava,Amaresh Sinha
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

1. Heard Sri B.P. Verma for the appellant, Sri Anubhav Sinha for New India Assurance Company Limited and Sri Ashok Kumar Srivastava for the National Insurance Company Limited.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 28.10.2013 passed by Motor Accident Claims Tribunal/Addl. District Judge, Court Room No.20, Agra (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 157 of 2010 awarding a sum of Rs. 7,38,000/- with interest at the rate of 7% as compensation.

3. The brief relevant facts are that a claim petition was filed by the appellant-claimant, who was injured in road accident and his right leg was amputated. It is averment in plaint that the injured was serving in Indian Navy. On 9.4.2009 he was going with one Satish Kumar on motorcycle bearing no. AP04G 1840 from guard-room to his unit. Motorcycle was being driven by Satish Kumar. A car No.AP31TV-0145 came from opposite direction and by driving rashly and negligently its driver dashed the car with the motorcycle. In this accident, the appellant sustained serious injuries and his right leg was amputated. At the time of accident, he was mechanical engineer in Navy and was getting salary Rs. 18,000/- per month.

4. The accident is not in dispute. Insurance company did not object to the liability to pay compensation except the quantum. Issue of negligence has not been challenged by respondent. Now, there remains only the question of quantum of compensation to be decided.

5. Learned Counsel for the appellant submitted that in the accident, the appellant sustained serious injuries. His right leg sustained compound fractures. At last during the treatment, the leg of the appellant was amputated from the knee joint and he became permanently disabled. It is further submitted that disability certificate showing permanent disability to the extent of 80% was issued by competent doctor but the learned Tribunal reduced the percentage of disability to 50% and hence less compensation was awarded. It was also submitted that the appellant was treated in government hospital and his expenditure on treatment were Rs. 15,000/- which was not granted by the Tribunal.

6. Learned Counsel for the appellant submitted that the Tribunal reduced the percentage of disability to 50% for body as a whole even then compensation for disability was not awarded as per decisions cited by claimant and it was held by the Tribunal that as the appellant is still in service and getting salary as per rules, he cannot be said to have suffered loss of income. He had loss of income only for going and coming back to the office and the same was considered only Rs. 3,000/- per month as future loss of income. It is submitted by learned Counsel that due to amputation of leg, promotions were not granted to the appellant hence there is a big loss of future income, which should be granted.

7. Learned Counsel for the appellant-claimant has heavily relied on the decisions of the Apex Court in Karthik Subramanian Vs. B. Sarath Babu and others, 2021 (2) TAC 1, Erudhaya Priya Vs. State Express Transport Corporation Ltd., 2020 (3) TAC 1 The New India Assurance Company Ltd. Vs. Satish Chandra Sharma and another, Special Leave to Appeal (C) No.14350 of 2019, decided on 23.2.2022, and Shivdhar Kumar Vashiya Vs. Ranjeet Singh and others, Civil Appeal No.433 of 2022, decided on 21.1.2022, and has contended that even if a person, who is in employment but has suffered due to accidental injuries, he would be entitled to claim compensation. The learned Counsel for the appellant has further relied on the decisions of the Apex Court in the case of Anisa Begum mother of deceased Vs. Oriental Insurance Company Lted and others, F.A.F.O. No.1418 of 2007, decided on 23.3.2022 and the same would enure for the benefit of the appellant also and the decision in Anoop Maheshwari Vs. Shiv Kumar Singh and others, FAFO No.3750 of 2009, decided on 7.3.2022 will also enure for the benefit of the appellant. It is also submitted that only Rs. 50,000/- was awarded for pain shock suffering and a very meagre amount of Rs. 20,000/- was awarded for loss of amenities.

8. Learned Counsel for the Insurance company vehemently opposed the submissions made by the appellant and submitted that the certificate of 80% disability is not for the whole body disability of the appellant. The appellant is government servant and still working in his office as before the accident. Hence, he has no loss of earning capacity. Hence, the learned Tribunal has rightly considered Rs.3,000/- as loss of future income. The compensation on other heads is also sufficiently awarded which call for no interference by this Court.

9. Learned Counsel has relied on the decision in Rashmita Biswal and others Vs. Divisional Manager, National Insurance Company Ltd. And another, 2021 0 Supreme (SC) 805, Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298 and Raj Kumar Vs. Ajay Kumar and another, 2010 0 Supreme (SC) 991.

10. The learned Counsel for the respondents has also relied on the judgment of Satish Chandra (supra) and has contended that the appellant has been adequately compensated and the injury certificate was not for entire body. He is not immobilized. He can perform his daily job and, therefore, no amount be added and the appeal requires to be dismissed (Union of India and others Versus Ashwathanarayan S. Sharma, 1993 (1) G.L.H.1044 ).

11. It is admitted fact that appellant was government servant in armed forces. The appellant is still working in his office. The claimant would loss future income. A perusal of impugned judgment shows that just compensation is not awarded by the Tribunal.

12. Before computation of compensation, it is worth mentioning that the principles regarding the determination of just compensation, contemplated under the Motor Vehicles Act (hereinafter referred to as ''MV Act') are well settled in view of the decision in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 and Syed. Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735 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 assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by him throughout his life.

13. Recently the Apex Court in Kajal Vs. Jagdish Chand reported in 2020 (0) AIJEL-SC 65725, 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."

14. Hon'ble 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."

15. 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.

16. 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.

17. In K. Suresh v. New India Assurance Company Ltd. and Ors. (2012) 12 scc 274, 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."

18. We have perused the judgment of Division Bench of this Court in the case of National Insurance Company Limited Vs. Lavkush and another, 2018 (1) TAC 431, in which the concept of just compensation is discussed elaborately.

19. The injured appellant was getting salary from his office for which he has produced salary certificate on record. Learned Counsel for the appellant has submitted that he was getting salary of Rs. 18,000/- per month. The service certificate on record shows total salary of the appellant at Rs. 15,198/- per month out of which Rs. 2,313/- got deducted towards various deductions. Hence, salary after deduction is Rs. 12,885/- per month which is relevant for computation of compensation. PW-3 is an employee of Indian Navy, who had appeared before the learned Tribunal and deposed that due to amputation of leg, the appellant could not get promotions and due to denial of promotion, he would have future financial loss during service and even after service, he will have loss of post retirement pensionary benefits. In our opinion, this is big loss of future earning. Hence, learned Tribunal has committed error by considering only Rs. 3,000/- per month towards loss of future earning and computed it in a wrong way. Hence, for loss of future earning, 50% would be added to the income as held by the Apex Court and also in case titled National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 105, which would be Rs.6,442/-, hence, total income comes to Rs.19,327/-. The age of the appellant was 22 years at the time of accident hence as per Sarla Verma's case, the multiplier of 18 would be applied, which would be Rs.41,74,632/-. Although the certificate of disability is issued which shows the disability to the extent of 80% but this is not the whole body disability. The evidence goes to show that the appellant is working in his office and getting salary as per Rules hence his functional disability is considered to the tune of 40%, hence, he would be entitled to get Rs. 16,69,852/- for permanent disability and future earning. The appellant would also be entitled to Rs. 1,00,000/- for artificial limb and for future medicines (post retirement) Rs. 1,00,000/- for pain, shock, suffering. Rs. 2,00,000/- shall be granted to the appellant for loss of amenities. The Tribunal has granted Rs. 20,000/- for special diet which we affirm. As far as the submission of appellant is concerned that he has spent Rs.15,000/- for treatment, learned Tribunal has held in this regard that no such bills or receipt is filed on record. We concur with the findings of the Tribunal as far as medical expenses are concerned as he may have been reimbursed by his employer.

20. On the basis of the above discussions, the amount payable to the appellant as compensation is computed herein below:-

(i) For permanent disability : Rs. 16,69,952/-

(ii) Artificial limb : Rs. 1,00,000/-

(iii) Pain shock suffering : Rs. 1,00,000/-

(iv) Loss of amenities : Rs. 2,00,000/-

(v) Special diet : Rs. 20,000/-

Total : Rs. 20,89,852/- (Rs.20,90,000/- round up)

21. As far as issue of rate of interest is concerned, the interest 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."

22. No other grounds are urged orally when the matter was heard.

23. 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 respondent-Insurance Company shall deposit the amount with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.