Chattisgarh High Court

Goutam Vishwash vs Arjun Giri on 12 May, 2022

                                                                                                 AFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                       Miscellaneous Appeal (C) No.708 of 2017

                              Order Reserved on : 27.4.2022
                              Order Passed on :            12.5.2022

       Goutam Vishwash, S/o Late Shri V.N. Vishwash, aged about 62 years,
       R/o Telibandha, Post Office Raipur, Police Station Telibandha, Raipur,
       District Raipur, Chhattisgarh
                                                                  ---- Appellant
                                     versus
    1. Arjun Giri, S/o Shri Vachan Giri, R/o House No.159, Station Road,
       Rairam, Ranchi, District Ranchi (Jharkhand), Present R/o M/s J.J.
       Associate, Paradise Home, Kamal Vihar, Lalpur, Raipur, District
       Raipur, Chhattisgarh
    2. M/s J.J. Associates, through Proprietor of J.J. Associates, Paradise
       Home, Kamal Vihar, Lalpur, Raipur, District Raipur, Chhattisgarh
    3. The Oriental Insurance Company Limited through Branch Manager,
       Branch Office, Madina Building, Jail Road, Raipur, Post Office Raipur,
       Police Station Golbazar, Raipur, Tahsil and District Raipur,
       Chhattisgarh
                                                              --- Respondents

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For Appellant : Shri Shivendu Pandya, Advocate For Respondent No.3 : Shri Sudhir Agrawal, Advocate For Respondents No.1 & 2 : None

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. ORDER

1. The instant appeal has been preferred by the claimant against the

award dated 21.3.2017 passed by the 7 th Additional Motor

Accidents Claims Tribunal, Raipur in Claim Case No.72 of 2016 for

enhancement of the compensation awarded by the Tribunal.

2. Facts of the case, in short, are that at the time of accident, the

Appellant/claimant was aged about 62 years and was working as

an Assistant Professor in Mechanical Engineering Department in

Raipur Institute of Technology, Raipur. On 28.9.2015 at about 7:30

a.m., when the Appellant was standing near the traffic signal

Telibandha, Raipur for going to Raipur City, Respondent 1/driver of

the offending truck bearing registration No.CG 04 JD 3831 by

driving the truck rashly and negligently dashed the

Appellant/claimant. As a result of the accident, the Appellant

sustained multiple grievous injuries on various parts of his body.

Respondent 2 was the registered owner of the offending truck and

the truck was insured with Respondent 3. After the accident, the

Appellant was hospitalised for treatment for about 1½ months.

During the treatment, his left leg was operated and amputated from

above the knee. As per his disability certificate, the Appellant has

sustained 80% permanent disability. He has not recovered fully

and is still not able to do his daily routine work and is facing great

hardship in walking, sitting, standing and in his work of teaching. At

the time of accident, he was earning Rs.40,000 per month from his

work of teaching as an Assistant Professor. He filed a claim

petition under Section 166 of the Motor Vehicles Act before the

Tribunal claiming compensation of Rs.31,50,000. After recording

evidence and hearing the parties, the Tribunal passed the

impugned award of Rs.7,00,000 in his favour. Hence, the instant

appeal by him for enhancement of the compensation.

3. Learned Counsel appearing for the Appellant/claimant submitted

that the Tribunal has erred in disbelieving the evidence adduced by

the Appellant/claimant in proper manner as the left leg was

amputated from above the knee. The Appellant is unable to do his

daily routine work. He is facing great hardship in walking, sitting,

standing and also in his work of teaching. The Tribunal has also

grossly erred in not accepting and considering the disability

certificate in proper manner. The Tribunal has also failed to

appreciate the fact that the Appellant is still taking treatment and

facing great problems in his day to day life because of the injuries

sustained. The Tribunal has only awarded Rs.7,00,000 and out of

that amount, Rs.6,61,485 is for the medical expenses and the

Tribunal has only granted Rs.38,515 for pain and suffering etc. The

Tribunal has not granted any compensation under various heads,

e.g., for special/nutritious diet, for future treatment, for loss of

income during treatment, for loss of future income and for

transportation charges. Therefore, it was prayed by the Learned

Counsel that the compensation may be enhanced suitably.

Reliance was placed on 2011 (III) DMP 493 (SC) (Govind Yadav v.

The New India Insurance Company Limited), 2011 (III) DMP 103

(SC) (Sri Kumaresh v. The Divisional Manager, National Insurance

Co. Ltd.), (2014) 2 SCC 735 (Syed Sadiq v. Divisional Manager,

United India Insurance Company Limited) and (2020) 4 SCC 413

(Kajal v. Jagdish Chand).

4. Learned Counsel appearing for Respondent 3/insurance company

opposed the arguments raised on behalf of the Appellant/claimant.

It was argued that considering the evidence adduced before the

Tribunal, the Tribunal has granted just and proper compensation.

From the evidence, it is established that though the

Appellant/claimant has got permanent disability of 80%, it was only

for amputated leg not for the whole body. From the admissions

made by the Appellant/claimant, it is also clear that the Appellant is

still doing his job and also doing his other routine work as earlier.

Therefore, he is not entitled to get any amount for loss of his future

income. It was further submitted that under other heads also, the

Tribunal has granted just and proper compensation, which does not

warrant any interference by this Court. Reliance was placed on

(2011) 1 TAC 785 (SC) (Raj Kumar v. Ajay Kumar), (2009) 2 MAC

9 (SC) (Smt. Sarla Verma v. Delhi Transport Corporation), 2017

ACJ 2700 (National Insurance Co. Ltd. v. Pranay Sethi) and 2020

(3) TAC 683 (SC) (Pappu Deo Yadav v. Naresh Kumar).

5. I have heard Learned Counsel appearing for the parties and

perused the record of the Tribunal minutely.

6. It is not in dispute that at the time of accident the Appellant/claimant

was aged about 62 years and was working as an Assistant

Professor in Mechanical Engineering Department in Raipur Institute

of Technology, Raipur. It is also not in dispute that after the

accident, during the course of treatment, his left leg was amputated

from above the knee. As per the disability certificate (Ex.P10),

which has been issued by the District Medical Board, Raipur, he

has got 80% permanent disability.

7. Claimant's Witness No.3 Dr. P.K. Gupta, who was one of the

members of the District Medical Board, Raipur and who issued the

disability certificate (Ex.P10), admitted that the 80% disability of the

claimant relates to his left lower limb only and it was not for the

whole body. In his cross-examination, this witness further admitted

that the claimant can stand up with the help of a crutch and can

walk and sit also and he was also doing his teaching work by

sitting. Thus, from the above admissions made by this witness, it is

established that the 80% permanent disability of the

Appellant/claimant is only in the left lower limb not in the whole

body. Considering the facts that the Appellant was 62 years old at

the time of accident, he is an educated person, he was employed

as an Assistant Professor in an engineering college where he was

required to discharge his duties of teaching by standing and moving

for most of the times but it is not possible for him to do so after

amputation of his left leg, it would be appropriate to hold his

permanent disability for the whole body to the extent of 40%.

8. In cases of injury and permanent disability, how and for which

heads damages will be calculated, the Supreme Court has held in

Govind Yadav case (supra) and Kajal case (supra) as follows. In

Govind Yadav case (supra), the Supreme Court has held as under:

"13. In Arvind Kumar Mishra v. New India Assurance Company Limited, (2010) 10 SCC 254 : 2010 (III) DMP 518, the Court considered the plea for enhancement of compensation made by the appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:

"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it ti say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect

compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered."

14. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 :

2011 (I) DMP 475, the Court considered some of the precedents and held:

"The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.

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 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."

15. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Company Ltd., (supra) and Raj Kumar v. Ajay Kumar (supra) must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."

In Kajal case (supra), the Supreme Court has held as under:

"5. The principles with regard to determination of just compensation contemplated under the Act are well settled. The injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as:

(i) loss of earning;

(ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges, etc.,

(iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and

(iv) loss of future earning capacity.

Damages can be pecuniary as well as non-pecuniary, but all have to be assessed in rupees and paise."

9. In the case in hand, the Tribunal has awarded total compensation

of Rs.7,00,000 and out of which Rs.6,61,485 is based on medical

bills and the Tribunal has granted only Rs.38,515 for pain and

suffering etc., which is not in accordance with the law laid down by

the Supreme Court in Govind Yadav case (supra) and Kajal case

(supra).

10. Looking to the decision of the Supreme Court in Govind Yadav

case (supra) and Kajal case (supra), I assess the following just and

proper receivable compensation for the Appellant/claimant.

11. For expenses relating to the treatment, hospitalisation and

medicines, the Tribunal has awarded Rs.6,61,485, which is based

upon the bills submitted by the Appellant before the Tribunal. It

does not warrant any interference.

12. As regards loss of earning, it is also duly established in this case

that the Appellant was working as an Assistant Professor in

Mechanical Engineering Department in Raipur Institute of

Technology, Raipur and as per his salary certificate (Ex.P12), he

was getting monthly salary of Rs.40,000. During the course of

treatment, he was admitted in the hospital on 28.9.2015 and was

discharged from there on 6.11.2015. Meaning thereby, he was

admitted in the hospital for 38 days. Therefore, the Appellant is

entitled to get Rs.50,000 for his loss of earning for that period.

13. As regards loss of future earning on account of permanent

disability, at the time of accident, the Appellant was aged about 62

years and as observed above by this Court, his permanent

disability for the whole body is 40%. His monthly income is

Rs.40,000, which comes to Rs.4,80,000 per year. Out of his

income, he has suffered loss of 40%, i.e., (Rs.4,80,000 x 40% = )

Rs.1,92,000 due to 40% permanent disability in the whole body. As

per the law laid down by the Supreme Court in Smt. Sarla Verma

case (supra), multiplier of 7 should be applied. After applying the

multiplier of 7, loss of future earning comes to (Rs.1,92,000 x 7 =)

Rs.13,44,000. Since the Appellant was aged about 62 years at the

time of accident, as per the law laid down by the Supreme Court in

Smt. Sarla Verma case (supra) and Pranay Sethi case (supra), he

is not entitled to get any amount for his future prospects. Thus,

loss of his future earning is Rs.13,44,000.

14. As the left leg of the Appellant is amputated from above the knee

and due to which he is not able to walk, sit and stand up without the

help of a crutch and is compelled to suffer physically as well as

mentally for the whole remaining life and further after growing his

age he would be compelled to depend on someone, it would be

appropriate to award Rs.5,00,000 towards the pain and suffering for

the period of his treatment as well as for future.

15. Looking to the injuries sustained by the Appellant and considering

the fact that his left leg is amputated, it appears that he will be

required to undergo treatment in future also and, therefore, it would

be appropriate to award Rs.1,00,000 for his future treatment.

16. As regards an attendant, special/nutritious diet and transportation

charges, as the Appellant was admitted in the hospital for 38 days,

his left leg was amputated and it can be assumed that during the

treatment and thereafter he would have required an attendant for a

period of about 6 months and during the course of his treatment his

family members would have required to visit the hospital along with

him frequently and for early recovery he would have required to

take special/nutritious diet, I grant him Rs.60,000 for his attendant

expenses, Rs.25,000 for special/nutritious diet and Rs.25,000 for

transportation charges.

17. As an outcome of the above discussion, I award a total sum of

Rs.27,65,485 to the Appellant/claimant under the following heads:

         Sl.                 Heads                             Amount
         No.                                                        (Rs.)
          1    For Medical Expenses                               6,61,485
          2    For Loss of Earning During Treatment                 50,000
          3    For Loss of Future Earning                        13,44,000
          4    For Pain and Suffering                             5,00,000
          5    For Future Treatment                               1,00,000
          6    For Attendant                                        60,000
          7    For Special/Nutritious Diet                          25,000
          8    For Transportation Charges                           25,000
                                                 Total =         27,65,485

18. The total amount of compensation of Rs.27,65,485 shall carry

simple interest of 6% per annum from the date of filing of the claim

petition before the Tribunal till final realisation of the compensation.

Respondent 3/insurance company shall deposit the enhanced

amount of compensation before the Tribunal in terms of this

judgment within a period of 3 months from today after deducting the

amount already paid by it. On deposit of the entire amount, the

Tribunal shall keep an amount of Rs.15,00,000 in a fixed deposit in

the name of the Appellant/claimant for a period of 5 years in a

nationalised bank which would be giving highest rate of interest on

fixed deposit. The Appellant shall be entitled to withdraw the

interest accrued on the said fixed deposit on an interval of every 3