Calcutta High Court (Appellete Side)
Sahim Banu @ Sahin Banu vs National Insurance Company ... on 3 January, 2023
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
F.M.A 1956 of 2013
Sahim Banu @ Sahin Banu
Vs.
National Insurance Company Limited & Anr.
For the Appellant/ :Mr. Krishanu Banik, Advocate
Claimant
For the Respondent No. 1/ :Ms. Sucharita Paul, Advocate
National Insurance Co. Ltd.
Hearing concluded on : December 02, 2022
Judgment on : January 03, 2023
Bibhas Ranjan De, J.
1. This appeal is directed against the judgment and award passed by Ld.
Motor Accident Claims Tribunal, Fast Track, 1st Court, Asansol in Motor
Accident Claim Case No. 49 of 2006 whereby, Ld. Tribunal awarded
compensation to the tune of Rs. 40,000/- to the claimant.
2. This claim case arose out of an application under Section 166 of the
Motor Vehicles Act, 1988, on account of injury sustained by claimant,
Md. Murshid, a boy of fifteen (15) years.
3. On 17.06.2006 at about 6.00 p.m. one Pick Up Van bearing no. WB-
37A/9401 running with high speed and in rash and negligent manner
dashed Md. Murshid near Damagoria while he was walking through
National Highway-2. As a result, said boy sustained injury and lost his
working ability forever being physically disabled to the extent of 45%
according to Medical Board.
4. That is why, mother of injured Md. Murshid filed the claim petition with
a prayer for compensation to the tune of Rs. 2,55,000/-.
5. Though, owner of the vehicle did not contest the case but National
Insurance Company entered appearance and contested the case by filing
a written statement denying all averments of the claim petition
contending, inter alia, that the alleged pick up van was not insured with
the Insurance Company and the said pick up van was not also involved
in the accident. Therefore, Insurance Company is not liable to pay any
compensation.
6. To prove the case, Sahin Banu, claimant of the case examined herself as
PW-1 and she corroborated the factum of accident for which Kulti PS
Case no. 134/06 dated 20.06.2006 under Section 279/338/427 of the
Indian Penal Code was started and ended with charge sheet against the
driver of the said pick up van. She further stated the age of her son and
to incur the expenditure for treatment she had to spend more than Rs.
50,000/-. In course of her evidence, certified copy of FIR, charge sheet,
seizure list, disability certificate, copy of Policy, R/C Book, Tax token etc.
were admitted in evidence as exhibit 1 to 10.
7. One Mr. Md. Ali Iman, has been examined as PW-2, who claimant
himself as eye-witness, has testified that on 17.06.2006 at about 6.00
p.m. the injured Md. Murshid was crossing the road and suddenly one
Max Pick Up Van bearing reg. no. WB 37A/9401 coming from the side of
Asansol with high speed dashed Md. Murshid. In effect, he sustained
injury all over his body. He was taken to nearby nursing home and
thereafter to Bokaro General Hospital. In cross-examination PW-2
testified that the injured was walking through Zebra crossing on foot and
PW-2 himself witnessed the accident with his own eyes. He took the
injured to hospital.
8. One Nurul Amin, claiming himself a teacher of Ranitala Maqtar Free
Primary School, deposed to prove the date of birth of the injured Md.
Murshid after verifying the school register. Certificate issued by the PW-3
was admitted as exhibit-9. From the cross-examination, it appears he
could not say whether the injured was then studying in that school or
not but he was their student. From his cross-exanimation it is further
seen that PW-3 could not say when Md. Murshid left the school.
9. Dr. Shyamal Sanyal, has been examined as PW-4, who claimed himself
as Medical Officer attached to blood bank of S.D. Hospital, Asansol. He
stated that, he being superintended of the hospital was a member of the
Medical Board. They examined Md. Murshid and issued handicapped
certificate (exhibit-10). In cross-examination, he stated that, Neuro
Surgeon was the best specialist in this regard. They examined the
patient, but did not use any instrument. They issued certificate in
compliance with the standard guidelines of the Government.
10. Ld. Tribunal ignored the disability certificate on the fact that
injured being a student did not suffer any loss of income and in view of
the structural formula for assessment of compensation under Section
163A of the Motor Vehicles Act, 1988. Ld. Tribunal relied on the
guidelines framed by the Hon'ble Apex Court in the case of R.D.
Hattangadi vs. M/s Paste Control (India) Pvt. Ltd. & Anr. reported in
AIR 1985. Ld. Tribunal refused to grand any compensation towards a
head of 'pecuniary loss', but considering the permanent defect due to
spinal injury according to disability certificate (exhibit-10) Ld. Tribunal
granted compensation of Rs. 40,000/- under the head of non-pecuniary
loss.
11. Therefore, it appears that Ld. Tribunal ignored any compensation
under the head of 'pecuniary loss' as the injured was a student having no
income.
12. In course of argument, Ld. Advocate Mr. Krishanu Banik appearing
on behalf of the appellant/claimant has submitted that Ld. Tribunal
awarded only a sum of Rs. 40,000/- instead of applying multiplier with
monthly notional income of the injured. Mr. Banik has further submitted
that Ld. Tribunal also did not consider future prospect in view of the
principle laid down by the Hon'ble apex Court. According to Mr. Banik,
Ld. Tribunal ought to have considered non pecuniary damages towards
expenses on difference heads i.e. loss of amenities, pain and suffering
loss of expectation of life, mental shock etc. In support of his contention,
he relied on the following cases:-
D. Sampath Vs United India Insurance Co. Ltd. & Anr. (ACJ 2011
(vol-4)- 2466
K. Suresh Vs New India Assurance Company and others reported in
(2012) 12 SCC 274
Kurvan Ansari vs Shayam Kishore Murmu and Anr. (2022) 1
Supreme Court Cases 317
Meena Devi Vs Nunu Chand Mahto @ Nemchand Mahto (2022) SCC
OnLine Sc 1393
13. In opposition to that, Ld. Advocate, Ms. Sucharita Paul, appearing
on behalf of the Insurance Company has seriously raised a question of
credibility of the disability certificate (exhibit-10). According to her so
called Medical Board failed to assess the percentage of disability in
absence of any Neuro Surgeon who would be the best person to assess
the extent of disability. In support of his contention he referred to cross-
examination of one of the member of the Board (PW-4). She has further
relied on the observation of the Hon'ble Apex Court in D. Sampath
(supra) to the following extent:
".......We are not saying that under all circumstances,
the Court has to blindly accept the Disability Certificate
produced by the claimant. The Court has the discretion
to accept either totally or partially or reject the
Certificate so produced and marked in the trial but, that,
can be done only by assigning cogent and acceptable
reasons...."
14. MS. Paul has further argued that, injured being a boy of 15
(fifteen) years cannot be expected to have income in absence of any
cogent evidence. Referring to the evidence of PW-3 Ms. Paul has
contended that claimant hopelessly failed to prove that injured was a
student of any school and therefore, according to Ms. Paul, the award
passed by the Ld. Tribunal on the basis of non pecuniary loss was
correct and reasonable.
15. Both Mr. Banik and Ms. Paul on behalf of the parties to this appeal
were ad-idem in respect of the accident when injury sustained by a minor
of 15 years due to rash and negligent driving of a pick up van bearing
registration no. WB 37A/9401 which was duly insured with National
Insurance Company Limited.
16. D. Sampath (supra) observed as follows:
"5. We do not intend to disturb the judgment and order
passed by the High Court except to a limited extent. The
High Court, while assessing the compensation payable
to the claimant, has arrived at the loss of earning
capacity in a sum of ` 8,16,000/- and, thereafter,
though the Doctor has assessed 75% disability, has
taken into account 50% disability while calculating the
loss of income without any rhyme or reason. In our view,
this is a mistake committed by the High Court. It is no
doubt true that, while making assessment, there is
an element of guess work, but that guess work
again must have reasonable nexus to the available
material/evidence and the quantification made. In
the instant case, the claimant had not only
examined himself to sustain the claim made in the
petition but also Dr. J.R.R. Thiagarajan, PW-3,
who has stated that the claimant has suffered
75% disability, by referring to the Disability
Certificate issued by a competent Doctor who had
treated the claimant. Though the Doctor is cross-
examined at length by learned Advocate for the
Insurance Company, nothing adverse to the
interest of the claimant is elicited. Therefore, the
Tribunal has rightly accepted the evidence of the Doctor-
PW-3. However, the High Court has taken 50% disability
into account while calculating the loss of income. This, in
our view, is the mistake committed by the High Court.
We hastened to add that we are not saying that under
all circumstances, the Court has to blindly accept the
Disability Certificate produced by the claimant. The
Court has the discretion to accept either totally or
partially or reject the Certificate so produced and
marked in the trial but, that, can be done only by
assigning cogent and acceptable reasons. In this view of
the matter, we take the disability suffered by the
claimant at 75% and calculate the loss of income of the
claimant keeping in view the loss of earning capacity of
the claimant assessed by the High Court. Accordingly,
we arrive at the loss of earning capacity of the claimant
at `6,12,000/-."
17. K. Suresh (supra) lays out the following guidelines:-
"7. The conception of "just compensation" is
fundamentally concretized on certain well established
principles and accepted legal parameters as well as
principles of equity and good conscience. In Yadav
Kumar v. Divisional Manager, National Insurance
Company Limited and another[9], a two-Judge Bench,
while dealing with the facet of "just compensation", has
stated thus: - "It goes without saying that in matters of
determination of compensation both the tribunal and the
court are statutorily charged with a responsibility of
fixing a "just compensation". It is obviously true that
determination of just compensation cannot be equated to
a bonanza. At the same time the concept of "just
compensation" obviously suggests application of fair
and equitable principles and a reasonable approach on
the part of the tribunals and the courts. This
reasonableness on the part of the tribunal and the court
must be on a large peripheral field.
10. It is noteworthy to state that an adjudicating
authority, while determining quantum of compensation,
has to keep in view the sufferings of the injured person
which would include his inability to lead a full life, his
incapacity to enjoy the normal amenities which he
would have enjoyed but for the injuries and his ability to
earn as much as he used to earn or could have earned.
Hence, while computing compensation the approach of
the tribunal or a court has to be broad based. Needless
to say, it would involve some guesswork as there cannot
be any mathematical exactitude or a precise formula to
determine the quantum of compensation. In
determination of compensation the fundamental criterion
of "just compensation" should be inhered.
18. In Ramesh Chandra (supra) the learned Judges
proceeded to address the issue of difficulty or incapacity
to earn and how it stands on a different footing than
pain and suffering affecting enjoyment of life and stated
as under: - "The inability to earn livelihood on the basis
of incapacity or disability which is quite different. The
incapacity or disability to earn a livelihood would have
to be viewed not only in praesenti but in futuro on
reasonable expectancies and taking into account
deprival of earnings of a conceivable period. This head
being totally different cannot in our view overlap the
grant of compensation under the head of pain, suffering
and loss of enjoyment of life. One head relates to the
impairment of person‟s capacity to earn, the other
relates to the pain and suffering and loss of enjoyment
of life by the person himself.
19. After referring to the said passage, the Bench
proceeded to state that it is true that compensation for
loss of earning power/capacity has to be determined
based on various aspects including permanent
injury/disability, but at the same time, it cannot be
construed that that compensation cannot be granted for
permanent disability of any nature. It has been
mentioned by way of an example that in a case of a
non-earning member of a family who has been injured in
an accident and sustained permanent disability due to
amputation of leg or hand, it cannot be construed that
no amount needs to be granted for permanent disability.
It cannot be disputed that apart from the fact that the
permanent disability affects the earning capacity of the
person concerned, undoubtedly, one has to forego other
personal comforts and even for normal avocation they
have to depend on others."
Ramesh Chandra V. Randhir Singh (1990) 3 SCC 723.
24. It is worthy noting that the Bench referred to the
pecuniary damages and non-pecuniary damages and
opined thus: - "Pecuniary damages (Special damages) K.
Suresh vs New India Assurance Co.Ltd & Anr on 19
October, 2012 (i) Expenses relating to treatment,
hospitalisation, 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)."
18. In Kurvan Ansari (supra) Hon'ble Apex Court held as under:-
"11. As the claim was made under Section 163-A of the
Motor Vehicles Act 1988, since the deceased child was
not an earning member, the Tribunal has considered
notional income as per Schedule-II for the purpose of
fixing compensation. The Tribunal has awarded
compensation by taking notional income of the deceased
at Rs.15,000/- per annum by applying multiplier „15‟,
awarded compensation of Rs.2,25,000/- towards loss of
dependency with interest @ 6% per annum from the date
(2009) 14 SCC 1 (2014) 1 SCC 244 (2020) 7 SCC 256 of
judgment. When the appeals are preferred by the
Insurance Company as well as the appellants herein, by
the impugned common judgment, the High Court has
dismissed the appeal preferred by the Insurance
Company, and in the appeal preferred by the claimants,
while confirming the compensation awarded for loss of
dependency at Rs.2,25,000/-, has awarded a further
sum of Rs.15,000/- towards funeral expenses and
accordingly granted a total compensation of
Rs.2,40,000/- with interest @6% per annum payable by
respondent No.2 - Insurance Company and by
permitting it to recover the same from Respondent No.1 -
owner of the motorcycle.
14. In this case, it is to be noted that the accident was
on 06.09.2004. In spite of repeated directions, Schedule-
II is not yet amended. Therefore, fixing notional income
at Rs.15,000/- per annum for non- earning members is
not just and reasonable. 15. In view of the judgments in
the cases in Puttamma & Ors.1, R.K. Malik & Anr.2 and
Kishan Gopal & Anr.3, we are of the view that it is a fit
case to increase the notional income by taking into
account the inflation, devaluation of the rupee and cost
of living. In view of the same, the judgment in the case
of Rajendra Singh & Ors.4 relied on by the learned
counsel for respondent No.2-Insurance Company would
not render any assistance to the case of the insurance
company.
16. In view of the above, we deem it appropriate to take
notional income of the deceased at Rs.25,000/- (Rupees
twenty five thousand only) per annum. Accordingly,
when the notional income is multiplied with applicable
multiplier „15‟, as prescribed in Schedule-II for the
claims under Section 163-A of the Motor Vehicles Act
1988, it comes to Rs.3,75,000/- (Rs.25,000/- x
Multiplier 15) towards loss of dependency. The
appellants are also entitled to a sum of Rs.40,000/-
each towards filial consortium and Rs.15,000/- towards
funeral expenses. Thus, the appellants are entitled to
the following amounts towards compensation:
(a) Loss of Dependency : Rs. 3,75,000-00
(b) Filial Consortium : Rs. 80,000-00 (Rs.40,000/- x 2)
(c) Funeral Expenses : Rs. 15,000-00
-----------------
Total : Rs. 4,70,000-00"
19. Meena Devi (supra) held as follows:-
"2. The facts relevant for disposal of the present case
are that the child, namely; Bankee Bihari, aged about
12 years on the date of accident i.e. 29.7.2003, while
playing in front of his house, was dashed by the
Commander Jeep bearing registration No. JH-11A 6894
and died on the way, while being taken to a hospital in
Dhanbad. A Claim Petition under Sections 140, 166
read with Section 171 of Motor Vehicles Act, 1988 (for
short, "the M.V. Act") seeking compensation to the tune
of Rs. 2,00,000/- with interest was Signature Not
Verified Digitally signed by SONIA BHASIN filed by the
appellant, who is the mother of the deceased Date:
2022.10.13 14:37:18 IST Reason:
12. In view of the foregoing decisions, it is apparent that
in the cases of child death, the notional income of Rs.
15,000/- as specified in the IInd Schedule of M.V. Act
has been enhanced on account of devaluation of money
and value of rupee coming down from the date on which
the IInd Schedule of M.V. Act was introduced and the
said notional income was treated as Rs. 30,000/- in the
case of Kishan Gopal (supra) and Rs. 25,000/- in
Kurvan Ansari (supra) in age group of 10 and 7 years
respectively. 13. Thus applying the ratio of the said
judgments, looking to the age of the child in the present
case i.e. 12 years, the principles laid down in the case
of Kishan Gopal (supra) are aptly applicable to the facts
of the present case. As per the ocular statement of the
mother of the deceased, it is clear that deceased was a
brilliant student and studying in a private school.
Therefore, accepting the notional Meena Devi vs Nunu
Chand Mahto @ Nemchand Mahto on 13 October, 2022
earning Rs. 30,000/- including future prospect and
applying the multiplier of 15 in view of the decision of
this Court in Sarla Verma (supra), the loss of
dependency comes to Rs. 4,50,000/- and if we add Rs.
50,000/- in conventional heads, then the total sum of
compensation comes to Rs. 5,00,000/-. As per the
judgment of MACT, lump sum compensation of Rs.
1,50,000/- has been awarded, while the High Court
enhanced it to Rs. 2,00,000/- up to the value of the
Claim Petition. In our view, the said amount of
compensation is not just and reasonable looking to the
computation made hereinabove. Hence, we determine
the total compensation as Rs. 5,00,000/- and on
reducing the amount as awarded by the High Court i.e.
Rs. 2,00,000/-, the enhanced amount comes to Rs.
3,00,000/-."
Krishan Gopal (2014) 1 SCC 244
20. In our case, if I go through the evidence of PW-4 (Doctor) being a
member of the Medical Board to assess the disability of the injured, I
find that it was opinion of that particular doctor (PW-4) that Neuro
Surgeon was the best specialist in this regard. It further appears from
the evidence of PW-4 that none of the member of the Board ever treated
the injured boy. Thereby, I am in a fix to place any reliance on the
disability certificate (exhibit-10).
21. D. Sampath (supra) Hon'ble Apex Court dealt with a disability
certificate which was issued by a competent doctor who had treated the
claimant and nothing adverse was elicited from the cross-examination of
the said doctor unlike the case in my hand.
22. K. Suresh (supra) denied the principles for computing 'just
compensation' which is neither a bonanza nor a windfall, and
simultaneously, should not be a pittance.
23. Kurvan Ansari (supra) & Meena Devi (supra) also dealt with a
case under Section 163-A of the Motor Vehicles Act, on account of death
of a child that too unlike our case.
24. Aforesaid discussion clearly culminates that the cases relied on
behalf of the appellant can not assist this Court to accept the disability
certificate which was issued by a group of doctors and none of those
doctors was Neuro Surgeon to assess the disability of the injured.
25. In this conjecture, no option is left to this Court but to pry into the
track of compensation in terms of non-pecuniary damages i.e. damage
for pain and suffering and trauma as a consequence of the injuries, loss
of amenities, loss of expectation of life.
26. We are dealing with an accident of 2007 i.e. 15 years back and in
the mean time child has already attained majority by lapse of time.
Considering entire evidence on record, I am of the humble view that
injured is entitled to Rs. 1,00,000/- for pain and suffering, Rs.
1,00,000/- towards loss of amenities and Rs. 50,000/- towards loss of
expectation of loss of life.
27. Thus, injured is entitled to compensation of Rs. 2,50,000/-
towards non pecuniary damages along with interest @ 6% per annum
from the date of the filing of the application till the date of deposit
thereof. Respondent/ Insurance Company is directed to pay the amount
after deducting the awarded amount of Rs. 40,000/-, if already paid,
along with interest @ 6% per annum from the date of filing of the claim
petition till the date of deposit with office of the Ld. Registrar General,
within 6(six) weeks from date.
28. Ld. Registrar General is requested to disburse the amount to the
injured Md. Murshid on proper identification and proof.
29. With the above observation, the appeal, F.M.A. 1956 of 2013 is
being disposed of without any order as to cost.
30. All pending applications, if any, stand disposed of accordingly.
31. Let the records of the Tribunal along with a copy of this order, be
transmitted back at once.
32. Urgent Photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
[BIBHAS RANJAN DE, J.]
