Anisa Begum Mother Of Deceased vs Oriental Insurance Company Ltd. ...
2022 Latest Caselaw 213 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1418 of 2007
 

 
Appellant :- Anisa Begum mother of Deceased
 
Respondent :- Oriental Insurance Company Ltd. Thru B.M. And Ors.
 
Counsel for Appellant :- Arun Kumar Tripathi,Ashfaq Husain,Tahir Husain
 
Counsel for Respondent :- D.M.Tripathi,Aarushi Khare,Arun Kumar Shukla,Sudip Ojha
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

1. Heard Tahir Husain, learned counsel for the appellant, Sri Sudip Ojha, learned counsel for respondent no. 1 and Sri A. K. Shukla, learned counsel for respondent no. 3.

2. This appeal , at the behest of the claimants, challenges the award and decree dated 07.02.20007 passed by M.A.C.T/Additional District Judge, Court No. 3, Farrukhabad (hereinafter referred to as "Tribunal") in M.A.C.P. No. 135 of 2005 awarding a sum of Rs. 2,55,000/- as compensation with interest at the rate of 6%.

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

4. Brief facts as culled out from the record are that on 14.05.205 at about 2:00 p.m Rizwan Hussain Farooqui was coming from Bholepur to Fatehgarh on his own motor-cycle bearing registration no. U.P. 76D/2833 and was accompanied by his friend Amir Ali @ Montu. He was driving his motor-cycle cautiously at a constant speed. When he reached Fatehgarh crossing a tempo driven by driver Neelu @ Diwakar rashly and negligently bearing registration no. U.P. 76E/9110 dashed the moto-cycle of Rizwan from behind. As a result of which Rizwan Hussain Farooqui and his friend Amir Ali @ Montu sustained injuries. Rizwan Hussain Faooqui received grievous injuries on his nose, ear, jawline and on face. He was rushed to nearby Das Nursing Home. He received grievous injury on his head and received fractures in various parts of his body, therefore for treatment and C.T. Scan he was admitted to Regency Hospital, Kanpur. In Regency Hospital he was treated and he underwent many surgeries. It is averred that treatment continued and the appellant had to spent about Rs. 5,00,000/- on his treatment.

5. The injured was 21 years of age and was studying at Rao I.A.S, Delhi at the time of accident. Due to his accident he could not complete his course at Rao I.A.S, Delhi. Injured was giving tuition and was earning Rs. 5,000/- p.m. The tribunal has considered his income to be Nil, granted Rs. 2,00,000/- towards loss of medical expenses, granted Rs. 50,000/- towards his future medicine and Rs. 5,000/- towards pain, shock and sufferings and ultimately assessed the total compensation to be Rs. 2,55,000/-.

6. It is submitted by learned counsel for the appellant that no amount under the head loss of income has been granted by the Tribunal which is unjust and should be at least Rs.6,000/- per month. It is submitted that no amount is granted under the head of monthly loss to injured which is also unjust and should be at least 40% Rs. 6,000/- per month with future loss of income. It is submitted that no amount under the head of future loss of income has been granted. It is also submitted that the amount under the non-pecuniary heads and the interest awarded are also on the lower side and requires to be enhanced in view of the following authoritative pronouncements:

(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.

(v) Hari Babu Vs. Amrit Lal and others, 2019 (2) T.A.C. 718 (All.).

(vi) Kajal Vs. Jagdish Chand reported in 2020 (0) AIJEL-SC 65725

7. As against this, it is submitted by the learned counsel for the respondent that the quantum awarded by the Tribunal is just and proper and does not call for any interference of this Court. The learned counsel has submitted that the claimant was not granted any amount as the documentary evidence which were produced did not show that there was any disability which the appellant-claimant. The claimants claim for Rs. 5 lacs as expenses is not supported by any documentary evidence and that the tribunal has rightly held that as the injured was not into any profession no amount could be granted for loss of income and therefore, the tribunal has rightly not granted any amount for loss of income.

8. After hearing the counsel for the parties and perusing the judgment and order impugned, as he was a bright student and preparing for U.P.S.C, this Court feels that income with potential to earn can be considered to be Rs.6000/- per month. To which as the injured was 21 years at the time of accident, 40% of the income would have to be added as future loss of income to the injured in view of the decision of the Apex Court in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 and Syed Sadiq and others (Supra). The loss of earning capacity namely 25% as considered by the Tribunal is enhanced to 40% for following reasons. The Apex Court recently in Smt. Meena Pawaia & others Vs. Ashraf Ali and others 2021 0 Supreme (SC) 694 and National Insurance Co. Ltd. V.s Pranay Sethi and others, 2017 Law Suit (SC) 1093 has held that "even if a person is not earning his potential to earn should also be considered". In our case we fail to understand how the tribunal can hold that the injured cannot be granted any amount under the head of loss of income. The injuries which are brought on record go to show that the injured had suffered multiple injuries even at the young age which are narrated herein below:-

" Fracture left temporal bone with opaque ethmoid and maxillary sinuses.

- Hyper dense areas suggestive of extra dural haematoma is seen in left tempor parietal region with associated cerebral oedema causing effacement of ipisilateral sylvian fissure and sulci. Slight midline shift is noted to right.

- Rest of the Brain parenchyma is normal

- Left ventriele is partially effected.

Rest of the ventricular system is normal.

- Brain stem and cerebellum appear normal."

These injuries have been considered and accepted by the tribunal but just because the injured was not into any vocation the tribunal did not grant the said amount. We would even base our judgment on the decision titled Shivdhar Kumar Vashiya Vs. Ranjeet Singh and others in Civil Appeal No. 433 of 2022 decided on 21.01.2022. The fact that the decision in Anthony Alias Anthony Swamy Vs. Managing Director, K.S.R.T.C in Civil Appeal No. 2551 of 2020 decided on June 10, 2020 of the Apex Court which has relied on the judgment of Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 and Syed Sadiq and others (Supra) will also enure for the benefit of the claimant as we have seen that there were lot of injuries on the body of the claimant. The claimant has produced before us his prolonged illness of two years. This trauma ultimately culminated into the sad demise of the 21 year old person who breathe his last after 5 months of the decision and filing of this appeal. The question is what would legal heirs be entitled after death. The recent judgment of the Apex Court in the case of The Oriental Insurance Company Ltd. Vs. Kahlon @ Jasmail Singh Kahlon through his legal representative in Civil Appeal No. 4800 of 2021 decided on 16.08.2021 wherein the Apex Court held that "on death of a person the compensation claims would not abate." In our case also the judgment was rendered when the injured was having 40% disability and was alive. The tribunal unfortunately just gave what is known as medical expenses but did not grant any amount for future loss of income in such a serious matter. The judgment of Parminder Singh relied in the aforementioned judgment and in the judgment of Kajal (supra) will enure for the benefit of the appellant. Thus the finding of facts by the tribunal are not germane and pervisity has crept in the beneficial peace of legislation has not been properly appreciated and will have to be upturned as in view of the decisions aforementioned and the fact that the injured died after the judgment of the tribunal and after 5 months offiling of the appeal. Thus the principles enunciated in kahlon (supra) will have to be borne in mind and therefore the compensation payable would relate to the date of the accident. It goes without saying that we need not to corroborate or give answer whether the death was because of the injuries or not as that is not the subject before us and that is not the issue raised before us, had the deceased died before the award of the tribunal the issue to be decided would have been different and different parameters would be made applicable.

9. Further, the amount granted by the Tribunal for medical expenses plus 50,000/- rounding the figure to Rs. 2,50,000/- future medicine upto 07.02.2007 and 20,000/- for attendant charges are granted. As far as the amount under pain, shock and sufferings is concerned, looking to the fact that he was admitted in hospital many times and has undergone surgeries, the amount is enhanced to Rs.1,00,000/-. Unfortunately the father of the injured also breathe his last during pendency of this appeal on 11.03.2014 and therefore the amount will have to be disbursed to the legal heirs alive at present and who are representing the estate of the deceased.

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

i.    Income : Rs.6000/- 
 
ii.   Percentage towards future prospects : 40% namely Rs.2400/- 
 
iii.  Total income : Rs. 6000 + 2400 = Rs. 8400/- 
 
iv.   Loss of earning capacity : 40% namely Rs. 3400/- (rounded up) 
 
v.    Annual loss : Rs. 3400 x 12 = Rs. 40,800/- 
 
vi.   Multiplier applicable : 18 
 
vii.  Total loss : Rs. 40,800 x 18 = Rs. 7,34,400/- 
 
viii. Medical expenses : Rs. 2,50,000/-(rounded up) 
 
ix.   Special diet : Rs. 20,000/- 
 
xi.   Attendant charges : Rs. 20,000/- 
 
xii.  Amount under pain, shock and suffering : Rs.1,00,000/- 
 
xiii. Total compensation : 11,24,400/-
 

11. As far as issue of rate of interest is concerned, it should be 7.5% in view decision of the Apex Court in Civil Appeal No.242/243 of 2020 (National Insurance Company Ltd. vs Birender and others) decided on 13 January, 2020 which is the latest in point of time and 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." .

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

13. In view of the above, the appeal is partly allowed. Award and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be deposited by the respondent-Insurance Company within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited. 

14. Record be sent back to tribunal forthwith.

15. This Court is thankful to both the learned Advocates for ably assisting this Court.

Order Date :- 23.03.2022

PS