Bombay High Court
Hareshwar Harishchandra Mistry vs Pravin B Nayak And Anr on 4 January, 2022
Bench: N. J. Jamadar
FA-2144-2011.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 2144 OF 2011
Hareshwar Harischandra Mistry ...Appellant
Versus
Pravin B. Nayak & Anr. ...Respondents
Mr. N. V. Gangal a/w Mr. Ashok D. Kadam, for the Appellant.
Ms. Varsha Chavan, for the Respondent No.2
CORAM : N. J. JAMADAR, J.
RESERVED ON : 2nd DECEMBER, 2021.
PRONOUNCED ON : 4th JANUARY, 2022.
JUDGMENT :
1. The appellant-original claimant assails the Judgment
and Award in MACP No.972 of 2001, dated 25 th October, 2010
passed by learned Member, Motor Accident Claims Tribunal,
Palghar (Tribunal), on the ground of inadequacy of the
compensation awarded by the Tribunal.
2. The appeal arises in the backdrop of the following facts:
a) In the year - 1996, the applicant claimed that, he was 39
years of age and dealing in the business of fabrication and civil
contractor. He used to earn Rs.10,000/- per month. On 17 th
December, 1996, he was riding a motor cycle bearing No. MH04/ W-
Digitally
2278 in a moderate speed and on the correct side of road, on his
signed by
SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT JAMADAR
Date:
way to Mumbai. When he reached near Thermal Power Station,
JAMADAR 2022.01.04
16:47:43
+0530
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Dahanu road, opposite new guest house, a Tata Sumo bearing No.
MH04 - Q - 5328 owned by the opponent No.1 and insured with
opponent No.2 came from the opposite direction in a high speed.
The driver of the said jeep drove it in an extremely negligent
manner and gave a violent dash to the applicant's motor cycle. Due
to the impact, the applicant and Mr. Dilip Amin, the pillion rider,
were thrown off the motor cycle. The applicant suffered a
compound fracture Tibia (right). It resulted in a permanent partial
disability, assessed it 20%. On account of the said disability, the
applicant is unable to squat, run, sit cross legged etc. The applicant
was made to incur expenses to the tune of Rs. 25,000/- towards
medical treatment. Hence, the applicant instituted an application
for compensation under Section 166 of the Motor Vehicles Act, 1988
("MV Act,1988").
b) The application proceeded ex-parte against opponent No.1-
insured.
c) The opponent No.2 - insurer resisted the claim by filing
written statement. All the averments in the application adverse to
the interest of the opponent No.2 / insurer were denied. The
liability of the insurer to pay the compensation was sought to be
contested.
d) The learned Member of the Tribunal, recorded the evidence
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of applicant Hareshwar Mistry, PW-1. The documents tendered by
the applicant, namely, copy of FIR (Exh.39), spot of accident
Panchanama (Exh.40), insurance cover note (Exh.42), medicine
bills (Exh.43), Income Tax return acknowledgment (Exh.45) and
the disability certificate (Exh.41) were admitted in evidence on
behalf of the insurer.
e) Upon appraisal of the evidence of the applicant and the
aforesaid documents, the learned Member was persuaded to record
a finding that the accident occurred on account of negligence on the
part of the driver of the Tata Sumo vehicle bearing No. MH04/Q-
5328 and the applicant had sustained 20% permanent disability
therein. The tribunal went on to award the total compensation of
Rs.70,000/-, comprising Rs.20,000/- towards medical expenses and
Rs.50,000/- towards the disability suffered by the applicant, by the
impugned judgment and award dated 25th October, 2010.
f) Being aggrieved by and dissatisfied with the quantum of the
compensation, the applicant is in appeal.
3. I have heard Mr. Gangal, the learned counsel for the
appellant and Ms. Chavan the learned counsel for the respondent
No.2 - insurer. With the assistance of the learned counsels for the
parties, I have perused the material on record including the
impugned judgment, deposition of the witness and documents.
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4. Mr. Gangal, the learned counsel for the appellant
strenuously submitted that the determination of compensation by
the tribunal, in the case at hand, suffers from the vice ad hocism
and arbitrariness. The learned member of the tribunal, according
to Mr. Gangal, committed an error in law in not adhering to the well
recognized principles of determination of compensation under
pecuniary and non-pecuniary heads, in the matter of a personal
injury claim. It was further submitted that the award of a sum Rs.
50,000/- towards lump sum compensation, without delving into the
exercise of determining the compensation under the well
recognized heads caused serious prejudice to the applicant,
especially when the fact that the applicant had sustained 20%
permanent disability was admitted by the respondent No.2-insurer.
In the circumstances, the tribunal ought to have adopted the
method of assessing the compensation by arriving at the loss of
annual income i.e. multiplicand and multiplying it with appropriate
multiplier, having regard to the age of the applicant, urged Mr.
Gangal.
5. In contrast to this, Ms. Chavan, the learned counsel for
respondent No.2-insurer supported the impugned judgment. It was
submitted by Ms. Chavan that in the case at hand, there is positive
evidence to indicate that the applicant had not suffered any loss of
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income, as is manifested by the Income Tax return acknowledgment
(Exh.45), despite the permanent disability. Though there was
evidence to show that the applicant had suffered 20% permanent
disability, according to Ms. Chavan, there was next to no evidence
to further demonstrate that the applicant suffered any functional
disability. Loss of income hinges upon the functional disability. In
the absence of evidence to establish the fact that the physical
disability resulted in functional disability, there was no question of
awarding compensation under the head of, "Loss of Future Income,"
submitted Ms. Chavan. To bolster up this submission, Ms. Chavan
placed a strong reliance on the judgment of the Supreme Court in
the case of Rajkumar Vs. Ajay Kumar and another1.
6. I have given careful consideration to the aforesaid
submissions. To begin with, it would be suffice to note that the
finding of the tribunal that the accident occurred on account of
negligence on the part of the driver of the offending Tata Sumo
bearing No. MH04/Q-5328 has attained finality. The fact that the
applicant had suffered permanent disability in the said accident
was not controverted on behalf of the respondent No.2 / insurer as
the disability certificate (Exh.41) came to be admitted in evidence.
The learned member of the tribunal observed that the disability
certificate (Exh.41) recorded that there was 6.6% disability at right
1 2011 ACJ SC 1
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knee, 6.6% at right ankle and 6.6% disability in muscle power
aggregating to 20% total disability.
7. In the light of the aforesaid uncontroverted facts, the
question that crops up for consideration is, whether the tribunal
was justified in awarding lump sum compensation of Rs.50,000/-?
8. For an answer, it is imperative to bear in mind the object
of the provisions contained in Section 166 of the MV Act, 1988. The
tribunal is statutorily enjoined to award "Just" compensation. A
compensation can be said to be "just" if it has the element of
restoring the claimant to the position prior to the accident, albeit to
the extent possible, in full measure. The tribunals and the Courts
are expected to be alive to the fact that a person is not only to be
compensated for the physical injury but also for the loss, which
such injury entails, namely, inability to earn as much as the injured
used to earn or could have earned, inability to lead the life to the
fullest and not in the least the inability to enjoy the usual amenities
and joys which the life offers.
9. In order to ensure an element of objectivity and
minimize the incidence subjectivity and arbitrariness, the
compensation in personal injury cases is determined under two
broad categories of pecuniary damages and non pecuniary
damages. It would be suffice to make a reference to the judgment of
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the Supreme Court in the case of Rajkumar V. Ajay Kumar and Anr.
(supra) wherein the heads of pecuniary and non pecuniary
damages were categorized by the Supreme Court as under :-
" 5. The heads under which compensation is awarded
in personal injury cases are the following :
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food and
miscellaneous expenditure.
(ii) Loss of earning (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 earning 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 expectation of life (shortening of normal
longevity)."
10. The aforesaid method of determination of compensation
under the heads of pecuniary and non-pecuniary damages is well
recognized and generally adhered to scrupulously. In the case at
hand, evidently, the tribunal went on to award a sum of Rs.70,000/-
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without delving into the aspects of the head under which the
applicant would be entitled to claim compensation. Mr. Gangal was
within his rights in canvasing the submission that the tribunal had
fallen into an error in not adhering to aforesaid mandate. By
awarding a lump sum compensation, without ascribing justifiable
reasons, in my view, the tribunal clearly fell in error. Had the
tribunal adhered to the method of determination of compensation,
under pecuniary and non-pecuniary heads, it would have arrived at
a "just" compensation. I am, therefore, persuaded to determine the
compensation under the aforesaid heads.
11. In the facts of the case, under pecuniary damages, the
claim of the applicant for award of compensation warrants
consideration under two categories.
A] Expenses relating to treatment etc.
B] Loss of future earnings on account of permanent
disability.
12. A] Expenses relating to treatment etc. :-
On the first count, taking into account the fact that the
applicant could produce bills to evidence the medical expenditure to
the tune of Rs.18,657/-, the tribunal awarded Rs.20,000/- towards
the medical expenses. No sum was however awarded towards
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nourishing food, costs of transportation and miscellaneous
expenditure. In the facts of the case, on an conservative estimate,
the tribunal ought to have awarded a sum of Rs.10,000/- towards
the nourishing food, transportation and miscellaneous expenditure.
The compensation under this head, thus, stands enhanced to
Rs.30,000/-.
13. B] Loss of future earnings :-
The tribunal was of the view that since the Income Tax
return for the period ending 31st March, 1997 (Exh.45) indicated
that there was no loss of income reported, despite disability, the
applicant did not suffer any loss of income. Opining that mere
disability was not sufficient, the tribunal proceeded to award a sum
of Rs.50,000/- towards the disability. Whether this approach of the
tribunal is justifiable?
14. First and foremost, the tribunal seems to have
committed an error in appreciating the facts. The accident had
occurred on 27th December, 1996. The income tax return was filed
for the period of 1st April 1996 to 31st March, 1997. Almost 9
months income was reported by the applicant. In that view of the
matter, the claim of the applicant could not have been discarded on
the ground that no loss of income was reported as the applicant
could earn for the substantial part of the financial year.
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15. Secondly, from the perusal of the deposition of the
applicant, it becomes evident that the claim of the applicant that on
account of the injuries sustained in the accident he was unable to
squat, run, sit cross legged, and the movements of his right leg were
restricted, went unchallenged. The applicant further affirmed that
he was doing the business of fabrication and civil contractor. Post
accident, he could not do the said business and was forced to seek
employment at a salary of Rs.6,500/- per month. This claim of the
applicant was also not traversed during the course of the cross
examination.
16. It is true that the applicant did not claim that he
suffered total loss of income. Nor the applicant claimed that he was
incapacitated to perform any work. In the face of the material on
record to indicate that the applicant had filed income tax return for
the financial year 1996-97, it could not have been disputed that the
applicant was gainfully self employed. In such circumstances, even
assuming the notional income at Rs.5,000/- per month, the 20%
permanent disability suffered by the applicant, would have entailed,
in the minimum, corresponding 20% loss of income, resulting in the
loss of Rs.12,000/- per annum. Once, the annual loss of income is
determined, the appropriate method to arrive at just compensation
is multiplying the said multiplicand with appropriate multiplier,
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depending upon the age of the claimant.
17. A useful reference in this context can be made in the
Judgment of the Supreme Court in the case of Sandeep Khanuja V.
Atul Dande and Another2 wherein the Supreme Court, after
adverting to the previous pronouncements, observed that it is now
well settled principle repeatedly stated and re-stated time and again
by the Supreme Court that in awarding compensation the multiplier
method is logically sound and legally well established. This method,
known as "principle of multiplier" has been evolved to quantify the
loss of income as a result of death or permanent disability suffered
in an accident.
18. On the aforesaid touchstone applying the multiplier, as
expounded by the Supreme Court in the case of Sarla Verma & Ors
vs Delhi Transport Corp.& Anr.,3 assuming that the applicant fell in
the age bracket of 41 to 45 years, the appropriate multiplier would
be 14. The loss of income would thus be Rs.1,68,000/-. To account
for the future of prospects, 25% of the income is required to be
added as the applicant was above 40 years of age. Thus the total
loss of future earning would be Rs.2,10,000/-
19. Under the head of non pecuniary damages, on a
conservative estimate, the applicant is entitled to a sum of
Rs.10,000/- each towards pain and suffering, loss of amenities of life
and loss of expectation of life. The applicant is thus entitled to a
2 2017, SCC 351
3 (2009) ACJ 1298
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total compensation of Rs.2,70,000/- under the following heads :
Head Amount (in Rs.)
1. Medical expenses, extra 30,000/-
nourishment etc.
2. Loss of Future earning 2,10,000/-
3. Pain and Suffering 10,000/-
4. Loss of amenities of life 10,000/-
5. Loss of expectation of life 10,000/-
Total 2,70,000/-
20. The tribunal was persuaded to award interest on the
amount of compensation from the date of the order. It was, inter
alia, observed that the appellant -applicant was responsible for the
delay in disposal of the proceeding and, therefore, the applicant
cannot be allowed to take benefit of his own wrong. Mr. Gangal, the
learned counsel for the applicant would urge that these
observations of the learned Member of the tribunal are not
completely borne out by the record. The number of adjournments
which the applicant had obtained were matched by the number of
adjournments sought on behalf of the respondent No.1 - insurer.
Hence, the applicant alone could not have been penalized by not
awarding interest from the date of the application, which is the
norm.
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21. Section 171 of the MV Act, 1988 vests with the tribunal
the discretion to award interest on the amount of compensation
from such date not earlier than the date of making the claim, as well
as the rate at which such interest shall be payable. Ordinarily, the
interest is awarded from the date of the application. In the case at
hand, indisputably, the applicant is also responsible for the delay in
disposal of the application for compensation. At the same time, the
conduct of respondent No.1 was not wholly unblameworthy. The
respondent No.1 also contributed to the delay. In the circumstances,
it would be appropriate to direct that the amount of compensation
shall carry interest from 1st January, 2005, instead of the date of
the impugned judgment and award. Hence, the following order.
ORDER
1. The appeal stands partly allowed with costs.
2. The impugned judgment and award stands modified as
under :
The respondent/opponent Nos. 1 and 2 do jointly
and severally pay a sum of Rs.2,70,000/- along with
interest @ 6% per annum from 1 st January, 2005 till
realization, to the applicant.
3. The amount already deposited by the respondent/
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opponents shall be deducted from the amount of
compensation as modified by this order.
4. Award be drawn accordingly.
(N. J. JAMADAR, J.)
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