Calcutta High Court (Appellete Side)
Dipali Jana On Behalf Of Injured ... vs United India Insurance Company ... on 18 November, 2022
IN THE HIGH COURT, AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK.
FMAT 460 OF 2021
IA NO. CAN 01 OF 2021
Dipali Jana on behalf of injured Ramapada Jana
......................Appellant
Versus
United India Insurance Company Limited & Another
..............Respondents
For the Appellant: Mr Amit Ranjan Roy, Advocate.
For the Respondent no.1: Mr Sanjay Paul, Advocate.
Heard on: 06.09.2022.
Judgment on: 18.11.2022
Bivas Pattanayak, J :-
1. The present appeal has been preferred against the judgment and award
passed on 19 September 2016 by learned Additional District Judge cum
Judge, Motor Accident Claims Tribunal, 2nd Court, Tamluk, Purba Medinipur
in M.A.C Case no. 10 of 2010/158 of 2009 under Section 166 of the Motor
Vehicles Act,1988 granting compensation to the victim-injured to the tune of
Rs. 10,47,699/- along with interest from the date of order.
2. The brief fact of the case is that on 28.12.2008 at about 5.30 AM while the
victim was going to IOC site through VIP Road via Hallypad Maidan at Haldia
suddenly the offending vehicle bearing no. WB 19D/4636 (Travera) dashed
the victim with great force from opposite side and fled away, as a result of
which the victim sustained grievous injuries on his head, right side of chest
and hand, both legs and other parts of the body. The victim was shifted to
Haldia S.D Hospital wherefrom he was transferred and admitted to National
Neuro Science Centre, Kolkata, at Peerless Hospital where he was treated till
24.03.2009 and thereafter at ESI Hospital. The victim sustained disablement
to the extent of 80%. The accident took place due to rash and negligent
driving on the part of driver of the offending vehicle. On such basis the
victim-injured through his wife filed application under Section 166 of the
Motor Vehicles Act, 1988 claiming compensation to the tune of
Rs.11,00,000/-along with interest from the date of filing of the claim
application.
3. The respondent no.1-insurance company contested the claim application
before the learned tribunal. However respondent no.2-owner of the offending
vehicle did not contest the claim application before the learned tribunal in
spite of due service of summons and the claim application was disposed of
exparte against him. By order dated 14.06.2022 the service of notice of appeal
upon respondent no.2-owner of the offending vehicle has been dispensed with
for the aforesaid reasons.
4. The claimant in order to prove its case examined five witnesses including
his wife and proved number of documents which has been marked as Exhibit
1 to 10 respectively. The contesting opposite partyno.2-insurance company
(respondent no.1 herein) did not adduce any evidence on its behalf.
5. Upon considering the materials on record and evidence produced on behalf
of the claimant the learned tribunal passed the following order granting
compensation in favour of the claimant-injured.
"That the instant M.A.C Case be and the same is allowed on contest
against O.P no.2 and exparte against the O.P no.1.
The O.P no.2 United India Insurance Company is directed to pay the
compensation amount of Rs.10,47,699/- along with interest @ 8% per
annum to the claimant within one month from date of order and the rate
of interest will be calculated from the date of order till its recovery."
6. Being aggrieved by and dissatisfied with the impugned judgment and
award of the learned tribunal the appellant-claimant has preferred the
present appeal.
7. Mr Amit Ranjan Roy, learned advocate appearing on behalf of the
appellant-claimant submitted as follows.
The learned tribunal instead of taking recourse to multiplier method to
quantify the loss of income resulting from permanent disablement suffered in
an accident, chose to grant lump sum amount of compensation which in the
eye of law is not at all tenable and in support of his contention he relied on
the decision of Hon'ble Supreme Court passed in Karthik Subramanian
versus B.Sarath Babu & Anr reported in 2021 SAR (Civ) 1180.
The claimant through the oral evidence of Prasun Kumar Sahoo (PW4) proved
his pay-slip for the month of November 2008 marked as Exhibit 9 which
shows the income of the injured-claimant to the tune of Rs.7,204/-and such
income should be taken into consideration for assessing the amount of
compensation.
At the time of accident the injured-victim was aged 41 years as per the voter's
identity card (Exhibit 5) and hence multiplier of 14 is to be adopted in terms
of observation of Hon'ble Supreme Court made in Sarla Verma & Others
versus Delhi Transport Corporation and another reported in 2009 ACJ
1298.
The learned tribunal ought to have considered the aspect of future prospect of
the injured-victim to the extent of 25% of the income while assessing the
compensation amount as per observation of Hon'ble Supreme Court made in
National Insurance Company Limited versus Pranay Sethi and Others
reported in 2017 ACJ 2700.
The injured-victim as per the disability certificate sustained 80% disablement
due to the injuries received in the said accident and thus the loss of earning
should be considered on such basis.
Further the interest on the awarded sum should be from the date of filing of
the claim application.
In the light of his aforesaid submissions he prayed for enhancement of the
compensation award.
8. In reply to the aforesaid contentions raised on behalf of the appellant-
claimant, Mr Sanjay Paul, learned advocate for respondent no.1-insurance
company submitted that PW4 is an employee of 'Malabika Construction'
whereas the injured-victim used to work in a concern under the name and
style of 'Mother India' and therefore PW4 is not the best witness to prove the
pay-slip of the injured-claimant and hence such pay-slip cannot be taken into
consideration for assessing the income of the injured-victim.
He further drew the attention of the court that the disability certificate does
not specify as to whether the injured-victim had permanent or partial
disability. Rather it is noted that the case requires review after 10 years
which implies that the nature of disability is temporary and not permanent
and therefore the extent of disability of 80% cannot be taken into
consideration for assessing the loss of earnings.
In the light of his aforesaid submissions he prayed for dismissal of the appeal.
9. Having heard the learned advocates for the parties, I now proceed to decide
the issues raised in this appeal.
9.1. With regard to the quantum of income of the deceased at the time of
accident, it is argued on behalf of the appellant that as per the oral evidence
of PW4 as well as documentary evidence in the form of pay-slip the income of
the deceased in the month of November, 2008 was Rs.7,204/-. Per contra it is
argued on behalf of respondent no.1-insurance company that such
documentary evidence has not been proved by best witness as PW4 is not an
employee of the concern in which the injured-claimant used to work. It
appears that PW4, Prasun Kumar Sahoo produced the copy of the pay-slip of
injured issued by 'Mother India Construction' pertaining to the month of
November, 2008 which is marked as Exhibit 9 and he deposed that such
document belongs to their company namely 'Malabika Construction'. He
further deposed that the injured-claimant worked in their company but due
to his illness he cannot work presently. In his cross-examination he has
clarified that 'Mother India Construction' is only a labour supplier company.
Thus by necessary implication it appears that the injured-claimant was
deputed by 'Mother India Construction' to work in 'Malabika Construction'.
Hence the challenge thrown to acceptability of documentary evidence of
income namely the pay-slip by the learned advocate for respondent no.1-
insurance company falls short of merit. As per the pay-slip for the month of
November, 2008 (Exhibit 9) the net pay of the injured-claimant at the time of
accident was Rs.7,204/-.
9.2. With regard to the extent of disability of the deceased and its nature,
learned advocate for the appellant-claimant argued that the disability
certificate, medical documents as well as evidence of the doctor (PW5) clearly
establishes that the injured-victim sustained 80% disablement of permanent
nature. Such claim has been refuted by learned advocate for respondent
no.1-insurance company on the ground that the disability certificate does not
specify that the injured-claimant sustained 80% disablement of permanent
nature. Having heard the learned advocates on this issue it would be
proficient to look to the medical documents produced by the appellant-
claimant before the learned tribunal.
The Discharge Summary of National Neuro Sciences Centre, Calcutta where
the injured-claimant was treated marked as Exhibit 8 (collectively) shows
certain observations made therein, which is reproduced hereunder for better
appreciation.
"TREATMENT/COURSE IN HOSPITAL
xxxxxxx
At the time of discharge he has spontaneous eye opening and limb
movements. There is no verbalization. He does not follow
commands. He has severe spasticity of limbs. He is being fed
through Ryle's tube and is voiding on condom catheter. For ulnar
fracture, back slab has been reset.
PLAN
The patient will require long-term rehabilitation, round the clock
nursing, regular medical supervision and fixation of the ulnar
fracture by the orthopaedic surgeon."
Thus from the above observations in the discharge summary it is quite clear
that the injured-claimant neither had the capacity of verbalization nor could
follow commands and had severe spasticity of limbs and he required long-
term rehabilitation.
The injured-claimant also examined Dr Haradhan Barman (PW5) who was a
member of the board which issued disability certificate (Exhibit 10). PW5
deposed that the injured claimant had 80% disability. In his cross-
examination he stated that he cannot say whether the patient had chance of
recovery or not. He had also denied the suggestion that the nature of injury
sustained by the patient was curable. There is no such medical evidence
forthcoming from the side of the respondent no.1-insurance company to
establish the fact that the injury sustained by the patient was curable. The
disability certificate (Exhibit 10) shows the extent of disablement to be 80%.
It is a fact that the disability certificate does not specify as to whether the
nature of disability is permanent or partial. Be that as it may, keeping in
mind the observations made in the discharge summary as indicated above,
the evidence of PW5 (doctor) who was the member of the board issuing
disability certificate, the extent of disablement of 80% and the preponderance
of probability I am constrained to hold that such disability of the injured-
victim is of permanent nature.
10. The next the question that has fallen for consideration in this appeal is
whether multiplier method is to be adopted for assessing the amount of
compensation in the present case or not. The Hon'ble Supreme Court in its
decision passed in Karthik Subramanian (supra) observed as follows:
" 4. Learned Counsel for the appellant had relied upon the recent
judgment of this Court in Erudhaya Priya v. State Express Transport
Corporation Ltd.-2020 Supp. SAR (Civ) 962= 2020 SCC Online SC 601.
The judgment took into consideration the earlier judgements including in
Pranay Sethi (supra) and Sandeep Khanduja v. Atul Dande-2017
SAR (Civ) 385 = (2017) 3 SCC 351. The latter judgment had opined that
multiplier method was logically sound and legally well established to
quantify the loss of income as a result of death or permanent disability
suffered in an accident. The present case being one of permanent
disability of 40 per cent, it has been urged that the same principle should
be applied in the present case while in fact nothing has been granted on
account of future prospects.
5. In our view, this issue is no more res integra in view of Sandeep
Khanduja's case (supra) and Erudhaya Priya's case (supra) opining
that multiplier method has to be applied for future prospects and
advancement in life and career."
Bearing in mind the aforesaid observation of Hon'ble Supreme Court and as
the nature of disability is permanent to the extent of 80% the multiplier
method is to be applied in order to grant just and fair compensation as has
been rightly argued by learned advocate for the appellant-claimant.
11. It is undisputed that as per the voter's identity card of the injured-victim
marked as Exhibit 5, the injured at the time of accident was 41 years of age
as has been rightly held by the learned tribunal. Following the observation of
the Hon'ble Supreme Court made in Sarla Verma's case (supra) a multiplier
of 14 is to be adopted for assessing the amount of compensation.
12. As on the date of accident the injured-victim was aged 41 years and it is
also found that he was on fixed salary, hence in view of observation of the
Hon'ble Supreme Court made in Pranay Sethi's case (supra) an addition of
25% of such salary towards future prospects is to be taken into account while
assessing the amount of compensation.
13. The learned tribunal has assessed the pecuniary damages i.e the
expenses incurred by the injured-claimant towards his treatment to the tune
of Rs.3,47,699/-. The aforesaid finding of the learned tribunal has not been
disputed by the respondent no.1-insurance company by way of appeal or
cross-objection. Hence the aforesaid amount towards pecuniary damages has
also to be taken into account for assessing the compensation amount.
14. So far as the non-pecuniary damages are concerned, as the injured-
claimant has sustained 80% disablement and taking into account his mental,
physical shock, pain and sufferings and bearing in mind the principles
enunciated by the Hon'ble Supreme Court in its decision passed in R.D
Hattangadi versus M/s Pest Control (India) Pvt. Ltd reported in AIR 1995
SC 755 I am of the opinion that an amount of Rs.2,00,000/-be given to the
injured-claimant towards non-pecuniary damages.
15. Now taking into consideration the aforesaid aspects the compensation
amount is calculated hereunder.
Calculation of compensation
Monthly Income............................................Rs.7,204/-
Annual Income.....(Rs.7,204/- X 12)...............Rs. 86,448/-
Add: Future Prospects @ 25% of total Income...Rs.21,612/-
Total......................................................Rs.1,08,060/-
80% loss of Income due to disablement of 80%......Rs.86,448/-
Adopting multiplier 14 ( Rs.86,448/- X 14)...........Rs.12,10,272/-
Medical Expenses Incurred .................................Rs.3,47,699/-
Non-pecuniary damages.......................................Rs.2,00,000/-
Total Compensation...........................Rs.17,57,971/-
16. Thus the total compensation comes to Rs.17,57,971/-. It is informed that
the injured-claimant has already received the amount of compensation of
Rs.10,47,699/-alongwith interest as directed by the learned tribunal. It is
pertinent to note that the learned tribunal allowed interest on the
compensation amount from the date of order. Accordingly, the injured-
claimant is entitled to interest @ 6% from the date of filing of the claim
application till the date of order of the learned tribunal (i.e 19.09.2016) on
amount of compensation of Rs. 10,47,699/- granted by learned tribunal.
17. Accordingly, the respondent no.1-United India Insurance Company
Limited is directed to deposit the balance amount of Rs. 7,10,272/- alongwith
interest @ 6% per annum from the date of filing of the claim application till
deposit and the interest as indicate in the foregoing paragraph, by way of
cheque with learned Registrar General, High Court, Calcutta within a period
of four weeks from date. The learned Registrar General, High Court, Calcutta
upon deposit of the aforesaid amount shall release the said amount to the
injured-claimant on satisfaction of identity.
18. The appeal accordingly stands allowed on contest. No order as to cost.
19. The department is directed to register a FMA no. against the instant
FMAT.
20. With the aforesaid direction the appeal, stands disposed of.
21. All connected applications stand disposed of.
22. Interim order, if any, also stands vacated.
23. Urgent photostat certified copy of this judgement, if applied for, be given
to the parties upon compliance of necessary legal formalities.
(Bivas Pattanayak,J.)
