Dharmendra Kumar vs United India Insurance Co. Ltd. ...
2022 Latest Caselaw 230 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on: 08.03.2022
 
Delivered on: 29.3.2022
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 4228 of 2012
 
Appellant :- Dharmendra Kumar
 
Respondent :- United India Insurance Co. Ltd. And Others
 
Counsel for Appellant :- Krishna Kumar Singh,Mohd. Asim Zulfiquar
 
Counsel for Respondent :- Rajeev Ojha
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Hon'ble Ajai Tyagi, J.)

1. Heard Mohd. Asim Zulfiquar, learned counsel for the appellant; Shri Rajeev Ojha, learned counsel for the Insurance Company - respondents; and perused the record.

2. This appeal, at the behest of the claimants, challenges the judgment and order dated 05.09.2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.9, Moradabad (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.222 of 2009 awarding a sum of Rs.62,624/- with interest at the rate of 6% p.a. as compensation.

3. The brief facts as culled out from the record are that this claim petition is filed by the appellant/claimant for seeking compensation for injuries sustained by him in a road accident. Averments in claim petition are that on 28.9.2008 at 08.00 a.m., appellant was going from his Village Mundhapandey to Moradabad for the work of mason. When he alighted from the bus at Gulababadi, a Motorcycle bearing No.UP 21 G 7562 came from behind which was being driven rashly and negligently by its driver and hit the appellant. Appellant sustained serious injuries and he was admitted in District Hospital. Next day, he was shifted to Shreya Hospital, Moradabad. The appellant regained consciousness after 12 days. It is also averred in petition that the appellant sustained serious head injury due to which he became incapable for feeding his family. Respondents filed their respective written statements and opposed the facts mentioned in claim petition.

4. The accident is not in dispute, the liability of owner/insurance company to pay the compensation is also not disputed. The finding regarding negligence has attained finality. So now it is the dispute of quantum of compensation which is left to be decided in this appeal.

5. Learned counsel for the appellant submitted that learned tribunal has awarded compensation regarding some of the medical bills only. It is also submitted that due to the accident, the appellant sustained serious head injury for which grafting was done on his head and face due to which he was medically declared as 45% disabled. His face and head were also disfigured, but learned tribunal has not considered the disability and did not award even a single penny for disablement. It is next submitted that learned tribunal has also not awarded any sum for future loss of income because due to injuries sustained in accident, the appellant is not able to work as before. It is further submitted that even the learned tribunal has not awarded any sum for pain and suffering.

6. Learned counsel for Insurance Company vehemently objected the submissions made by appellant and further submitted that learned tribunal has considered each and every aspect while awarding compensation and has awarded just compensation. Hence, the impugned judgment does not call for any interference by this Court.

7. We have perused the record and impugned judgment and find that learned tribunal has not followed the contours of just compensation in this matter.

8. Before computation of compensation, it is worth mentioning that the principles regarding the determination of just compensation, contemplated under the Motor Vehicle Act, 1988 (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 assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by him throughout his life.

9. 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."

10. The Apex Court has further quoted pertinent observations from case titled 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."

11. 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. 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.

12. 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."

13. We have perusal the Judgement of Division bench of this Court 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.

14. We now proceed to assess the compensation to be granted to appellant.

15. There is no doubt that the appellant sustained serious injuries in the accident. Learned tribunal has awarded only Rs.62,624/- as compensation which is regarding medical bills of the appellant. In this regard, learned tribunal has mentioned in impugned judgment that some of the bills are added twice by the appellant. Hence, we do not disturb the amount awarded by the tribunal for medical bills. The learned tribunal has discarded certificate of permanent disability on the ground that it is not signed by three doctors and it is not proved by calling the concerned doctors. This is not the requirement of law that disability certificate should be proved by calling the Doctors issuing it or doctors on the board.

16. We have fortified our view by the decision in Dasharath v. Alok Kumar Dubey and others, F.A.F.O. No.233 of 2006 where the decision of the Apex Court has been relied and the Court has come to the conclusion that disability certificate requires no oral testimony and this was based on the decision of the Apex Court in AIR 2019 SC 3235 in the case of S. Kumar (dead) v. United India and Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186

17. Learned tribunal has also lost sight of the fact that due to head injury, grafting was done on the head of the appellant and disfigurement of face is also there. In a case where such serious injuries are sustained by the appellant, learned tribunal has brushed aside the disability certificate in a very casual manner. It is worth mentioning that there is no evidence on record that the disability certificate was challenged by the respondents by producing any evidence to rebut the same. Learned tribunal has stated that there are two disability certificates on record and it cannot be possible to issue two medical disability certificates, but we are not convinced with this finding because the record goes to show that first certificate is granted by Community Health Centre, Chandausi, District Moradabad showing disability to the tune of 45%. It was issued on 20.11.2009 and after that second disability certificate was issued on 16.02.2010 and later disability certificate is issued by conducting medical examination by a panel of doctors. This certificate is finally signed and issued by Chief Medical Officer, Moradabad certifying disability of 45% of body as a whole which is same as shown in certificate issued earlier by Community Health Centre, Chandausi. Hence, merely on the ground that two certificates are issued, it cannot be said that these certificates are fake in absence of any evidence. The disability certificate shows disability regarding speech and hearing. The photographs annexed to the disability certificates clearly show the disfigurement of head/face of the appellant. Learned tribunal has erred in ignoring the disability certificate in this regard.

18. The judgment of the Apex Court in Anita Sharma v. New India Assurance Co. Ltd. (2021), 1 SCC 171 would also apply to the facts of this case. The evidence of the witnesses has not been accepted which is also against the Judgment in the case of the Apex Court in Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186

19. Hence we assess the functional disability of appellant to the tune of 25% for the purpose of computation of compensation. We hold the income of the appellant at Rs.5,000/- p.m. because he was a mason. At the time of accident, the appellant was below 40 years of age. In the judgment of Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830, the Hon'ble Apex Court held that it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30% increase in his total income for a period of time. Hence, 30% of the income shall be added for future loss of income. The appellant was of 28 years of age, hence multiplier of 17 would be applicable.

20. We are shocked to note that in spite of sustaining serious injuries by the appellant where he remained hospitalised for several days, learned tribunal has not awarded any amount under the head of pain and suffering and has not assigned any reasons.

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

i. Income : Rs.5,000/- p.m., it would be Rs.60,000/- p.a.

ii. Percentage towards future prospects : 30% = Rs.18,000/-

iii. Total Income : Rs.60,000+ Rs.18,000/- = Rs.78,000/-

vi. Multiplier applicable : 17

v. Total loss Rs.78,000 x 17 = Rs.13,26,000/-

vi. 25% for permanent disability: Rs.3,31,500/-

vii. Medical bills : Rs.62,624/- (as awarded by the tribunal)

viii. Amount under pain and suffering : Rs.50,000/-

ix. Amount under other non pecuniary head : 50,000/-

x. Total compensation (vi+vii+viii+ix): Rs. 3,31,500 + Rs. 62,624 + Rs. 50,000 + Rs.50,000 = Rs.4,94,124/-

22. 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 7 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."

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 along with additional amount 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.

24. The Tribunal shall follow the guidelines issued by the Apex Court in A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 13 years have elapsed, once the monies are deposited in tribunal, the amount be transmitted in the Saving Account of claimant in Nationalized Bank which would be furnished by claimant without F.D.R.

25. We are thankful to learned counsels for the parties for ably assisting this Court.

26. Record be sent back to the tribunal below forthwith.

Order Date :- 29.3.2022

A.N. Mishra