Jammu & Kashmir High Court

Ghulam Mohd. Wani vs United India Insurance Co. Ltd. ... on 25 May, 2023

      HIGH COURT OF JAMMU AND KASHMIR & LADAKH
                      AT JAMMU


                                             MA No. 421/2012 (O&M)

                                             Reserved on:      02.05.2023
                                             Pronounced on:    25.05.2023

Ghulam Mohd. Wani                                             ...Appellant(s)

                 Through :- Mr. M. A. Bhat, Advocate

                v/s

United India Insurance Co. Ltd. and others                .....Respondent(s)

                 Through :- Mr. Vishnu Gupta, Advocate with
                            Ms. Damini Singh Chauhan, Advocate



Coram:      HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE



                              JUDGMENT

1. Challenge in this appeal has been thrown to an award dated

25.07.2012 passed by Motor Accident Claims Tribunal, Ramban (for short,

the Tribunal) in file No. 49/2008 titled 'Ghulam Mohd. Wani v. United India

Insurance Company Ltd. and others', vide which, compensation in the

amount of Rs. 6,32,000/- (rupees six lacs and thirty two thousand) has been

awarded in favour of appellant along with pandentelite and future interest @

7% per annum. Appellant seeks enhancement of compensation awarded.

2. Brief facts of the case are that on 21.04.2008, appellant while

travelling in a bus bearing Registration No. JK02M-4595 on way from

Ramban to Banihal met with an accident at about 5:00 p.m. near Battery

Chasma, National Highway 1A allegedly due to rash and negligent driving

of its driver-respondent No. 3, stated to be under active employment of

owner of the vehicle-respondent No. 2. Offending vehicle is stated to be

insured with respondent No.1-insurance company. Appellant preferred a

claim petition in the tribunal stating inter alia that he was permanently

disabled as a result of injuries sustained in the accident, he was 30 years old

and was working as an operator in MD Plastics, village Nahar Pur, NH-8

Near Krishna Dharma Kanta Gurgaon, Haryana, and used to earn Rs. 8,300/-

per month. The claim of appellant was resisted by respondent no.1-insurance

company on various grounds and after framing of issues, appellant/claimant

was called upon to produce evidence in support of the petition. The appellant

adduced evidence with respect to his age and income by examining himself,

Shafiq-ur-Rehman and Farooq Ahmed Wani. It is pertinent to mention that

appellant also produced an income certificate issued by his employer. No

evidence was led in defence. Learned Tribunal, after analyzing the evidence

led by the claimant has allowed the claim petition and awarded

compensation aforementioned and respondent No. 1 was directed to make

payment of the awarded amount within a period of thirty days from the date

of award.

3. Appellant has questioned the impugned award inter alia on the

grounds that learned Tribunal has taken his monthly income on the lesser

side despite sufficient evidence on record, wrong multiplier of 17 has been

applied as against the correct multiplier of 18 under Schedule of Motor

Vehicles Act, 1988, and that learned Tribunal has awarded interest of 7% per

annum against the prevailing rate of interest of 8% per annum. Appellant has

also assailed the impugned award on the ground that his future income has

not been taken into consideration and learned Tribunal has wrongly assessed

loss of income as 50% whereas he has suffered 85% permanently disability

as his left arm was totally amputated. He has also challenged the impugned

award on the ground that learned Tribunal has not awarded any

compensation on account of mental agony and love and affection.

4. Having heard rival contentions of the parties, I have given my

thoughtful consideration to the facts emanating from the record as also the

law governing the field.

5. While learned counsel for the appellant has reiterated the grounds

urged in the memo of appeal, Mr. Vishnu Gupta, learned counsel for the

respondent- Company has urged that multiplier applicable to the age group

of 25 to 30 is 17 and not 18 as claimed by the appellant and, therefore,

learned Tribunal has applied the correct multiplier. He further submits that

as per the claim petition, appellant claims to be a businessman whereas he

has annexed an income certificate issued by his employer to indicate that he

was an employee, earning monthly salary of Rs. 8,300/- per month. Since

appellant/claimant had neither produced any evidence to prove the income

certificate nor led any evidence to establish that he was earning a particular

amount on account of his occupation as a businessman, therefore, learned

tribunal had taken monthly income of appellant as Rs.6,000/- which too, was

on the higher side and in such cases, notional income of Rs. 3,000/- per

month was required to be considered by learned Tribunal. He also

emphasized that since there is no evidence on record with respect to exact

occupation and monthly income of appellant, therefore, future prospects

could not be taken into consideration.

6. In support of his contention, learned counsel for respondent-Company

has placed reliance on National Insurance Company Ltd. v. Pranay Sethi

and ors. reported as 2017 ACJ 2700 (SC), Shri Nagar Mal and ors. v.

The Oriental Insurance Company Ltd. and ors. [Civil Appeal No. 448 of

2018 dated 19.01.2018], Raj Kumar v. Ajay Kumar reported as 2010 (13)

SCR 179, Manusamy and others v. Managing Director, Tamil Nadu

State Trans. Corpn. Ltd. reported as 2018 ACJ 740, Santosh Devi and

ors. v. Mahaveer Singh and ors. reported as 2018 ACJ 2436, Nutan Rani

and another v. Gurmail Singh and others reported as 2018 ACJ 2169,

Syed Basheer Ahamad and others v. Mohd. Jameel and another reported

as 2009 ACJ 690, National Insurance C. Ltd. v. Jagat Narain Goel and

other reported as 2016 ACJ 512, Lal Singh Marabi v. National Insurance

Co. Ltd. and others reported as 2017 ACJ 1362 and Savita v. Bindar

Singh and others reported as 2014 ACJ 1261.

7. Before adverting to the merits of the case, uncontroverted facts of the

case are required to be noticed. The appellant laid a claim before learned

Tribunal whereby he claimed to be a businessman having a monthly income

of Rs. 7,000/-. It is also averred in the claim petition that appellant was

hospitalized in Sher-i-Kashmir Institute of Medical Sciences, Srinagar vide

MRD No. 505193. It is evident from the claim petition filed by none other

than appellant that he was a businessman at the relevant point of time i.e. at

the time of accident, earning a monthly income of Rs. 7,000/-. He was

hospitalized and got treatment from a Government Medical Institute,

namely, Sher-i-Kashmir Institute of Medical Sciences, Srinagar. Appellant

nowhere claims to have got any treatment from any private institute and

therefore, appellant did not place on record any proof with respect to

medical expenses incurred by him.

8. Hon'ble Supreme Court in Raj Kumar v. Ajay Kumar and anr.

reported as (2011) 1 SCC 343 commenting upon the principle of just and

fair compensation has clearly ruled that:

"It should 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 far as money can do so, in a fair, equitable and reasonable manner."

9. It is manifest from the afore-quoted observation of the Hon'ble

Supreme Court that the object behind principle relating to fair and just

compensation is to make a genuine attempt to restore the dignity of the being

he had at the time of accident in a fair, equitable and reasonable manner. It is

by far crystallized and trite that in granting compensation for personal

injuries, the victim is to be compensated primarily for the following

damages:

           a.       Pain and suffering and loss of amenities;
           b.       Shorten expectancy of life, if any;
           c.       Loss of earning and loss of earning capacity or both;
           d.       Medical treatment; and
           e.       Special damages, if any.

Loss of earning and loss of earning capacity

10. Reverting to the present case, appellant has assailed the impugned

award on this count primarily on the ground that learned tribunal has taken

his monthly income on the lesser side, despite sufficient evidence on record

that he was working as an Operator in MD Plastics, Village Nahar Pur, NH-

8, Near Krishna Dharma Kanta Gurgaon, Haryana and was drawing a

monthly salary of Rs.8300/. The appellant claims to be 30 years old at the

time of accident. According to appellant, learned tribunal has also applied

wrong multiplier of 17 as against correct multiplier of 18 as per the Schedule

of Motor Vehicles Act, 1988.

11. It is pertinent to mention that appellant in the claim petition laid in the

tribunal, claims to be a businessman, earning a monthly income of Rs.

7,000/-. Contrary to the claim petition, the appellant placed on record some

income certificate issued by MD Plastics reflecting his monthly salary as

Rs.8300/-. However, appellant has failed to lead any evidence in support of

the certificate and, therefore, income certificate annexed with the claim

petition is not admissible in evidence. Be that as it may, since income

certificate produced by the petitioner is contrary to his assertion made in the

petition that he is a businessman by occupation, the said certification

otherwise pales into insignificance and cannot be taken into consideration. In

this view of the matter learned Tribunal has taken a speculative monthly

income of the appellant at Rs.6000/-. Although appellant has not adduced

any evidence to prove the income certificate placed on record, however, he

and his witnesses PWs Shafiq-ul-Rehman and Abdul Wani have testified

that appellant had a monthly income between Rs.7,000/- to Rs.10,000/- and

in view of the fact that neither the appellant nor his witnesses, during the

trial, were confronted with respect to contradiction in the claim petition viz-

a-viz the income certificate, therefore, on account of uncertainties and

imponderabilities of life, monthly income of the appellant speculated by

learned trial court at Rs. 6,000/- is maintained.

12. Appellant has also taken exception to the tribunal pegging down the

functional disability to 50% as against 85% certified by the doctor. Learned

counsel for the respondent-Company has submitted that extent of disability

of limb reflected in the disability certificate cannot be assumed as extent of

disability of the whole body. It is by far trite position of law now that the

assessment of compensation under the head of loss of future earnings

depends upon the impact of permanent disability suffered by the claimant on

his earning capacity. Adjudicating authorities or tribunals are not obliged to

apply the percentage of permanent physical disability, in a perfunctory

fashion, as the percentage of economic loss or loss of earning capacity, but

they are obliged to assess functional disability of the complainant. This

principle of law has been considered at length by Hon'ble Supreme Court in

Raj Kumar (Supra). Relevant observation of the pronouncement for the

facility of reference reads thus:

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation."

13. Hon'ble Supreme Court, on ascertainment of the effect of permanent

disability on the actual earning capacity of the victim or claimant, has also

made following observation in paragraph 13 of the aforesaid judgment:

"Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find

out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."

14. In the background of aforesaid principle of law enunciated by Hon'ble

Supreme Court, functional disability of the appellant assessed by the tribunal

at 50% as against 85% permanent disability certified by doctor, appears to

be just and fair, in view of the facts and circumstances of the present case.

Appellant claims to be working as an operator in a private company and

drawing a monthly salary of Rs.8300/-. However, as discussed earlier, he

failed to produce any evidence in this respect and, therefore, the income

certificate produced by appellant, being inadmissible in evidence, cannot be

taken into consideration. It needs reiteration, though at the cost of brevity,

that appellant laid the claim petition claiming to be a businessman by

occupation, earning monthly income of Rs.7,000/- and in view of

contradictory stands taken by the appellant in the tribunal, speculative

income of Rs. 6,000/- per month assessed by the tribunal has been

maintained. It is also pertinent to mention that appellant has suffered

amputation of his left mid arm. In these circumstances, extent of permanent

disability suffered by the appellant would not result in corresponding loss of

his earning capacity. Therefore, assessment of functional disability of 50%

by learned tribunal is also maintained.

15. According to the appellant, tribunal has also applied wrong multiplier

of 17 as against the correct multiplier of 18, as per schedule of Motor

Vehicles Act, 1988.

16. For the use of multiplier, Hon'ble Supreme Court in Sarla Verma

and ors. v. Delhi Transport Corporation and anr. reported as 2009 (3)

Supreme 487 has held that in cases falling under Section 166 of the Motor

Vehicles Act, Davies' method is applicable. Relevant extract of judgment,

with respect to the multiplier, is reproduced below for the facility of

reference:

"We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

17. Appellant claims to be 30 years at the time of accident and it is

evident from the afore-quoted judgment that correct multiplier for the age

group between 26 to 30 years is 17 and not 18, therefore learned trial court

has applied the correct multiplier.

Loss of future income

18. Learned tribunal ought to have, but did not award any amount towards

loss of future prospects as also for medical expenditure. Hon'ble Supreme

Court in Santosh Devi v. National Insurance Company Ltd. reported as

AIR 2012 SC 2185, dwelling on the issue of addition to income for future

prospects in case a claimant is privately employed or self employed, has held

that increase towards future prospects cannot be denied. Relevant extract of

the judgment reads as below:

"An absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages cannot be laid down. It would be reasonable to say that person who is self employed or employed on fixed wages would get 30% rise in income over a period of time. If such person becomes vitcim of

accident formula of 30% rise has to be applied for calculation of compensation."

In view of the aforesaid position of law, 30% of the actual income of

the appellant is to be added towards future prospects.

Pain and suffering and loss of amenities

19. An award of Rs. 10,000/- each on these heads by learned Tribunal has

not been assailed by the appellant and cannot be otherwise faulted with.

Medical treatment

20. Learned tribunal has erred in law in declining compensation on this

head on the ground that though appellant claimed to have spent more than

Rs.1.00 lac on his treatment but failed to produce any bill/voucher/cash

memo with respect to the medicines purchased or expenses incurred on his

treatment. According to Mr. Gupta learned counsel for the insurance

company, since appellant was treated in a Government hospital and has not

furnished any evidence with regard to the expenses incurred by him on his

treatment, therefore, learned tribunal has rightly denied the relief on this

head.

21. Law values life and limb in a democratic set up. The tribunals, while

determining the quantum of compensation, in a just and fair manner are

obliged to take note of sufferings of the victim of motor accidents, including

his inability to lead a normal life and enjoy full amenities of life, as also his

inability to earn as much as he could, but for the injuries he sustained in the

accident. It needs reiteration that appellant, in the present case, has suffered

a mid-arm amputation on left side with shoulder stiffness. True, he was

treated in a Government hospital, but it is only the treatment which is

provided in a government hospital. Government hospitals would not provide

medicines and bear the allied expenditure on various tests etc. Appellant

must have incurred a handsome amount on all this. In the case of an

amputation of a limb, victim has to undergo regular medical check-up and to

pay for the artificial limb as well which is required to be changed after a

regular intervals of time.

22. Tribunals are statutorily charged with the responsibility to award 'just

compensation', on the basis of fair and equitable principles. Therefore,

learned tribunal has fallen in grave error of law to ignore this vital aspect of

the matter. Claimant cannot be denied the compensation on account of

medical expenses incurred by him merely on account of his failure to

produce the bills, vouchers or cash memos with respect to purchase of

medicines. A three judge Bench of Hon'ble Supreme Court in Jagdish v.

Mohan and others reported as AIR 2018 SC 1347 commenting on this

aspect has ruled thus:

"In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing - at least in the facts of this case - can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity."

23. In view of the afore-quoted observation of the Apex Court, tribunals

are required to determine 'just and fair' compensation on broader conspectus

of a case and at times it may include some speculative income particularly in

cases of amputation of limb/limbs. Therefore, an amount of Rs. One lac in

lump-sum is awarded in favour of the appellant for medical treatment and

for artificial limb etc.

Special damages

24. Given the facts and circumstances of the case, in view of the fact that

the petitioner has suffered amputation of one of his limbs, special damages

on account of special diet etc. is also required to be awarded in favour of the

appellant and, therefore, an amount of Rs.25,000/- is considered suffice on

this head.

25. In the light of law enunciated by the Apex Court in the afore-quoted

judgments, the case law cited at bar by respondent-insurance Company is

clearly distinguishable on facts and circumstances of the case.

26. Having regard to the legal principles discussed above, it would now

be appropriate to assess the case of appellant for enhancement of

compensation. The loss of monthly income of the appellant after addition of

30% on account of future prospects turns out to be Rs. 7800/- (6000+1800).

On account of functional disability assessed as 50%, appellant can be said to

have suffered a loss of Rs. 3900/- per month and annual loss of Rs. 3900 X

12 = 46800/-. As the appellant was 30 years of age at the time of accident

multiplier of 17 has been rightly applied by the Tribunal and, therefore, the

total loss of income of the appellant is worked out as Rs.795600/- (i.e.

Rs.46800 X 17). In addition, appellant is found entitled to Rs. 10,000/- each

on account of pain and suffering and loss of amenities, one lac on account of

medical expenses and another Rs. 25,000/- on account of special damages.

Therefore, petitioner is entitled to total compensation of Rs. 9,40,600/."

Calculation Table

Loss of income Rs. 6000/- per month

Future prospects (@ 30% as per para 15 of Rs. 1800 (i.e. 30% of Rs.

this judgment) 6000)

Deduction towards functional disability @ 50% of Rs. 7800 = Rs. 3900 50%

Total income after adding future prospects Rs. 46800 per annum (i.e. Rs. and deducting functional disability @ 50% 6000 + Rs. 1800 - Rs. 3900)

Multiplier i.e. 17 (as per second schedule Rs.7,95,600 (i.e. Rs. 46800 X and Section 166) 17)

Total amount of compensation Rs.7,95,600/-

               Damages on       account    of     pain   and Rs. 10,000/-
               sufferings

               Medical expenses                               Rs. 1,00,000/-

               Loss of amenities                              Rs. 10,000/-

               Special damages (as per para 18)               Rs. 25,000/-

               Grand total                                    9,40,600/-