Jammu & Kashmir High Court - Srinagar Bench

United India Insurance Company ... vs Mohammad Afzal Siddiqui And ... on 5 April, 2021

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR
                            ....
                                MA No. 43/2018

                                                      Reserved on: 28.12.2020
                                                   Pronounced on: 05.04.2021


United India Insurance Company Limited                         .....Appellant(s)

                                 Through: Mr. N. H. Khuroo, Advocate
      V/s
Mohammad Afzal Siddiqui and others                          ..... Respondent(s)

                                 Through: Mr. Malik Mushtaq, Advocate


Coram:
            HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                JUDGEMENT

1. Impugned in this Appeal is Award dated 11th April 2016, passed by Motor Accident Claims Tribunal, Pulwama (for short "Tribunal") on a Claim Petition bearing MAC no. 33/2007 titled Mohammad Afzal Sidiqi v. Irfan Elahi and Others, directing appellant Insurance Company to pay compensation in the amount of Rs.7,98,000/- along with 6% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.

2. A claim petition, as is discernible from perusal of the file, was filed by respondent nos.1 to 3 before the Tribunal on 21 st August 2007, averring therein that Mohd Afzal Siddiqui S/o Mehfooz Ahmad Siddiqui R/o Chakka Tola, aged 36 years, got injured in an accident, which took place on 26th June 2007 at Drangbal Pampore, due to rash and negligent driving of driver of offending vehicle, bearing Registration no. JK05-2342 (Truck) which was insured with appellant Insurance Company.

3. Appellant Insurance Company resisted the claim before the Tribunal on the ground that respondent no.2 had miserably failed to prove that the vehicular documents were valid on the date of accident as he had not

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submitted such documents before the investigator for verification despite repeated demands from the investigator for the same. Under established law, a commercial vehicle cannot ply on the public premises/roads without a valid route permit.

4. The Tribunal, in view of pleadings of parties, framed issues for determination, which are:

1. Whether on 26th June 2007, the petitioner was going towards Pampore as a Pillion rider of Motorcycle bearing no. 7198-JK01F, driven by Ab. Qayoom Wani S/o Gh. Rasool Wani R/o Chatapora, Pulwama, was hit near Munsiff Court Pampore, by truck no. 2342- JK05, being driven by respondent no.2 rashly and negligently with the result the petitioner was rendered disabled? OPP.

2. In case issue no.1 is proved in affirmative to what amount of compensation the petitioner is entitled to and from whom? OPP.

3. Whether the offending vehicle was being driven by the respondent no.2 without a valid DL and route permit, if yes, the company is not bound to indemnify the owner? OPP.

4. Relief. OP Parties.

5. Claimants produced and examined three witnesses before the Tribunal;

besides claimants/respondent no.1. Appellant Insurance Company also produced one witness namely Jamsheed Saqib in support of its stand.

6. By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 7,98,000/- along with 6% interest per annum.

7. Heard and considered.

8. Learned counsel for appellant Insurance Company has submitted that driver of offending vehicle was not holding valid and effective driving licence at the time of accident and the offending vehicle was being plied without route permit.

As regards above submission, as may be seen from plain reading of the record on the file as also impugned Award, Issue no.3 was framed, discussed and decided by the Tribunal. The onus to prove Issue no.4 was upon appellant Insurance Company, but it has failed to discharge its burden to prove Issue no.3 and accordingly the same was decided against appellant Insurance Company.

9. Learned counsel for appellant has also stated that the Tribunal erred in passing impugned Award as compensation awarded by it is on higher side. Respondent no.1 could not lead any documentary evidence in

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support of his pleadings especially with regard to his income and medical expenses. The Tribunal is said to have erred in law in taking the income of the respondent no.1 as Rs.9000/- per month and has further erred in working out the compensation by taking the disability of respondent no.1 as 40% when in fact the injury has been of temporary nature and curable. Besides there was no evidence on record before the Tribunal justifying to award additional compensation of Rs.1.00 lakh for medical expenses. Likewise, the awarding of Rs.50000/- more for shock and pain is on the higher side and against the law. It is further contended that Tribunal has not been justified in awarding the interest for the entire period for which the claim petition remained sub judice before it due to the delay caused by respondent no.1 himself as he has taken nine long years in adducing his evidence for which appellant cannot be penalized by directing it to pay the interest for the entire period of nine years and accordingly the impugned award needs to be set-aside.

In respect of above submissions, it may be mentioned here that the Tribunal while deciding Issue no.2, has elaborately discussed comprehensively all aspects of the matter to compute and calculate compensation to be paid in favour of claimant. The Tribunal took into account the fact that a certificate issued by Medical Board had been produced by petitioner in support of his plea of having 40% disability. The Tribunal took Rs.9000/- as monthly income of claimant. The Tribunal has finally awarded compensation of Rs.7,98,000/- in favour of claimant.

10. It may be mentioned here that for computation and entitlement of compensation, the Tribunal framed Issue no.2, and placed reliance on the judgement rendered by the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121.

11. The exercise for determination of compensation in accident cases involve some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability. But these elements are required to be considered in an objective manner. In R. D. Hattangadi v. Pest Control (India) Private Limited, (1995) 2 SCC 551 , claimant was a

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retired judge and practicing when he met with an accident causing 100% disability and paraplegia below the waist. While determining compensation payable to him in a claim filed under Section 110A of the Motor Vehicles Act, 139, the Supreme Court referred to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:

"When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration."

12. Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment frustration and mental stress in life.

13. It cannot be disputed that because of the accident respondent/claimant, has become disabled by 40%. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by him and for having become a lifelong disabled. No amount of compensation can restore the physical frame of claimant/respondent. That is why it has been said by courts that whenever any amount is

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determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.

14. The Supreme Court in Arvind Kumar Mishra v. New India Assurance Company Limited and another, (2010) 10 SCC 254 , sought to assess future earnings of a final year engineering student who received injuries to the brain among others which resulted in 70% permanent disability and he needed a helper throughout his life. The Supreme 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 to 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 in so far 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. In some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum."

15. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1, the Supreme Court called upon to assess compensation payable under the Consumer Protection Act, 1986, to the victim of medical negligence, who was left completely paralyzed at the age of 20. After detailed examination of the issue, the Supreme Court observed as under:

"39. We must emphasize that the Court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized. Life it is said is akin to a ride on a roller coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-vis a family in a case

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of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself."

16. The Supreme Court in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, considered a large number of precedents and laid down the following propositions:

"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."

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17. In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited (2011) 13 SCC 236, the Supreme Court observed:

"8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.

9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case."

18. In view of supra-mentioned principles laid down by the Supreme Court,

it is suffice to say that in determining quantum of compensation payable

to victims of accident, who are disabled either permanently or

temporarily, efforts should always be made to award adequate

compensation not only for physical injury and treatment, but also for loss

of earning and inability to lead a normal life and enjoy amenities, which

would have been enjoyed but for the disability caused due to the accident.

The amount awarded under the head of loss of earning capacity are

distinct and do not overlap with the amount awarded for pain, suffering

and loss of enjoyment of life or the amount awarded for medical

expenses.

19. In the present case, the Tribunal has rightly assessed and computed the

compensation on account loss of income/earning as claimant/ respondent

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is claimed to have been carrying the business of tyre repairment and it

was found by the Tribunal that prospective loss in earning in future had

been made out. It also cannot be disputed that claimant/respondent has

sustained 40% disability and has to live rest of his life in the same

condition. The Tribunal has rightly said that claimant is entitled to