Reserved On: 24.02.202 vs Suraj Singh And Others
2021 Latest Caselaw 496 j&K

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     IN THE HIGH COURT OF JAMMU AND KASHMIRAT JAMMU

                           MA No. 549/2014
                           CM No. 01/2017

                                                      Reserved on: 24.02.2021
                                                    Pronounced on: 22.04.2021
National Insurance Co. Ltd.
                                                          .... Appellants
                                      Through: Mr. Baldev Singh, Advocate

                                    Versus
Suraj Singh and others
                                                          .... Respondent
                                      Through: Mr. K. D.S. Kotwal, Advocate.

CORAM:
        HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.

                               JUDGEMENT

1. Appellants, National Insurance Company Limited, has impugned in this Appeal the Award dated 20.11.2013, passed by Motor Accident Claims Tribunal, Ramban (for short 'Tribunal') on a Claim Petition bearing File no.25/2010 titled Suraj Singh v. Mangal Singh and others, directing appellant Insurance Company to pay compensation in the amount of Rs.3,17,200/- along with 7.5% interest per annum throughout its realization, on the grounds mentioned therein.

2. A claim petition, as is apparent from perusal of the file, was filed by respondent no.1 before the Tribunal on 01st of March, 2010, stating therein that Suraj Singh S/o Shankar Das R/o Ramban, Tehsil and District Ramban, aged 33 years, got injured in an accident, which took place on 22nd of January, 2007 at Thard NHW within the jurisdiction of Police Station, Udhampur, due to rash and negligent driving of driver of offending vehicle, bearing Registration no. JK02K5-9885 (Truck), which was insured with Appellant-Insurance Company.

3. Appellant Insurance Company resisted the claim before the Tribunal on the ground that the offending vehicle at the time of accident was being driven

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by its driver in violation of the conditions of the insurance policy,the route permit and the driver was not holding a valid license.

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

1. Whether petitioner was permanently disabled as a result of injuries received in a Raod Traffic Accident involving offending vehicle No. JKO2K/8995 on 22.01.2007 driven by its driver in a rash and negligent manner by respondent no. 1 under the jurisdiction of Police Station Udhampur? OPP.

2. Whether petitioner is entitled to compensation under Motor Vehicle Act for the disablement from the respondents? OPP.

3. Whether the offending vehicle was being driven at the time of accident in contravention of terms and conditions of the insurance policy and respondent insurance company was not liable to pay any compensation to the petitioner? OPR.

4. Relief?

5. Claimant produced and examined two witnesses before the Tribunal; besides himself.Appellant-Insurance Company has not produced or examined any witness in support of its stand or to rebut the claim.

6. By impugned Award, the Tribunal found claimant/respondent entitled to receive compensation of Rs. 3,17,200/-along with 7.5% interest per annum.

7. Heard learned counsel for the parties and considered the matter.

8. Learned counsel for appellant-Insurance Company has submitted that driver of offending vehicle was not holding valid and effective driving license at the time of accident and the offending vehicle was being plied without route permitand at the time of accident it was being driven by its driver in violation of the conditions of the insurance policy.

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.

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9. Learned counsel for appellant has also stated that the Tribunal erred in passing impugned Awardas compensation awarded by it is on higher side. Respondent no.1 could not lead any documentary evidence in support of his pleadings especially with regard to his income and medical expenses. The Tribunal is said to have erred in holding the income of the respondent no.1 as Rs. 8000/- per month and has further erred in working out the compensation by taking the disability of respondent no.1 at 45% when in fact the injury has been of temporary nature and curable. Besides there was no evidence on record before the Tribunal justifying the award. It is further contended that Tribunal was not justified in awarding the interest on future loss of income for the period the claim petition remained subjudice due to the delay caused by respondent no.1 himself as it has taken two yearsfor adducing evidence. The benefit derived by the respondent under the award regardless of the conduct leading to protraction of proceedings is urged to be unjust for which appellant cannot be penalized by directing to pay the interest on future loss 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 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 respondent no.1 in support of his plea of having 45% disability. The Tribunal has drawn the conclusion about the monthly earning capacity of Rs.8000/- on valid considerations which cannot be substituted by any contrary view in this appeal. The Tribunal has, thus, rightly awarded compensation of Rs.3,17,200/- 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 judgements rendered by the Supreme Court in the case ofRaj Kumar v. Ajay Kumar and another reported as 2011 ACJ 1 and Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121.

11. It is pertinent to mention here that 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 disabilitybut

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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 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 respondent no.1/claimant has been inflicted with the disabilityof 45%. 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

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physical frame of claimant/respondent. That is why it has been said bythe Courts that whenever any amount is 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 Apex 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 view of aforementioned principles laid down by the Hon'ble Apex 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.

16. In the instant case, the Tribunal has rightly assessed and computed the compensation on account loss of income/earning as claimant/respondent is

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claimed to be a mason 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 45% disability and has to live rest of his life in the same condition. The Tribunal has rightly said that claimant is entitled to compensation under various heads. The computations and calculations of compensation on various heads, as is obvious from perusal of impugned Award, have been made strictly in accordance with law laid down by the Hon'ble Apex Court. The impugned Award is clear, comprehensive and expressive, and, therefore, does not warrant any interference. As a corollary thereof Appeal of National Insurance Company Limited is liable to be dismissed.

17. For reasons discussed above, the instant Appeal is dismissed along with connected CM(s). Interim direction, if any, shall stand vacated.

18. Record of the Tribunal be remitted along with copy of this judgement.

(JAVED IQBAL WANI) JUDGE JAMMU 22.04.2021 TASADUQ SAB:

Whether the order is reportable: Yes.

MA No. 549/2014