Jharkhand High Court

Chandra Shekhar Prasad vs Dhananjay Kumar Singh on 28 February, 2023

                                       1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     M.A. No. 528 of 2017
       Chandra Shekhar Prasad                   ...................Appellant
                   Versus
   1.Dhananjay Kumar Singh
   2. Bajaj Allianze General Insurance Company, Ltd., Lalpur, Ranchi,
                                                .............. Respondents
CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Appellants             : Mr. Vijay Kumar Sharma, Advocate
For the Respondent No.1         : Mr. Sabyasanchi, Advocate
For the Respondent No. 2        : Mr. Sidhartha Jyoti Roy, Advocate
                           ..........

13/Dated: 28/02/2023 Heard Mr. Vijay Kumar Sharma learned counsel for the appellant, Mr.

Sabyasanchi, learned counsel for the respondent no. 1 and Mr. Sidhatrtha Jyoti

Roy, learned counsel for the respondent no. 2.

2. Aggrieved with award dated 24.07.2017 passed by the learned District

Judge-1-cum-Additional Claim Tribunal-Ist, Chatra in Claim Case No. 59 of 2012, the

appellant/claimant has preferred this appeal for enhancement of awarded amount.

3. On 14.01.2007 the claimant was travelling from Itkhori to Chatra in a

Jeep bearing Registration No. JH-13A-0766. Around 06.15 pm, when the jeep reached

village Chour, the driver of Jeep namely, Khula Mochi stopped the jeep for getting

the passengers down. To facilitate the passengers in getting down due to over crowd,

the claimant also got down from the Jeep, meanwhile, the driver of tractor bearing

No. JH-13A-3042 namely Jai Prakash Singh driving the tractor in rash and negligent

manner dashed against the claimant and fled away as a result of which he received

multiple grievous injuries on his left leg. He was rushed to Chatra, Hospital and

thereafter he was referred to Gaya Hospital from where he was referred to PMCH,

Patna. The injured was also treated at Max Care Hospital, Patna. For the alleged

accident, F.I.R. was registered as Chatra Sadar P.S. Case No. 14 of 2007 under

sections 279, 337 and 338 of the I.P.C. on 24.01.2007 against the driver of tractor no.

JH-13-A 3042, Jai Prakash Singh. The matter was investigated and chargesheet was

filed. At the time of accident the injured was 25 years old and he was registered

medical practitioner (RMP) and was earning Rs. 6,000/- per month and he was the

only bread earner of the family, because of the permanent injury he suffered a lot.

He spent Rs. 1,50,000/- in his treatment and due to injuries caused he cannot work as

usual. Therefore he claimed compensation.

4. Mr. Vijay Kumar Sharma, learned counsel for the appellant submits that

the learned tribunal has awarded the amount on the lesser side. He submits that the

earning of the deceased was Rs. 6,000/- however the learned tribunal fixed Rs.

3,000/- per month only. According to him the learned tribunal in the awarded

amount wrongly deducted 1/3rd of the income which is not required in the case of

such injury as has been held by the Hon'ble Supreme Court in the case of "Raj

Kumar V. Ajay Kumar and Another 2011 (1) SCC 343. He further submits that

the appellant's left leg has been amputated from the thigh. He further submits that

loss of future earning has been awarded as Rs. 2,44,000/- which is not in accordance

with law. He submits that the said amount is required to be enhanced. He submits

that medical expenses suffered by the appellant has been awarded on lesser side. He

submits that the awarded amount may be enhanced.

5. Mr. Sidhartha Jyoti Roy, learned counsel for the respondent no. 2-

Insurance Company submits that considering the lesser injuries the learned tribunal

has rightly awarded compensation and there is no need of enhancement in awarded

amount and no interference is required by this Court.

6. Mr. Sabyasanchi, learned counsel for the respondent no. 1-owner

submits that tractor in question was fully insured with the respondent no. 2 even

trailer was also insured and in that view of the matter the learned tribunal has erred

in directing the Insurance Company to pay and recover the amount from the owner

of the tractor.

7. In view of above submission of the learned counsel for the parties the

Court has gone through the impugned award as well as L.C.R. and finds that the

learned tribunal after considering exhibits as well as evidences has been pleased to

award amount of Rs. 4,34,349/- with interest @ 7.5 % from the date of filing of the

claim application.

8. The appellant has suffered amputation of lower left leg and as per

disability certificate the appellant has suffered 60% disability. To assess the quantum

of compensation to be awarded, the Hon'ble Supreme Court has considered whether

permanent disability caused has any adverse effect on the earning capacity of the

appellant, as has been held by the Hon'ble Supreme Court in the case of "Sandeep

Khanuja V. Atul Dande and Anr. 2017 (3) SCC 351 wherein para 14 it has been

held as under :-

"14. The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, MACT approached the issue in the right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is not impaired. Such a conclusion was justified if the appellant was in the employment where job requirement could be to do sitting/table work and receive monthly salary for the said work. An important feature and aspect which is ignored by MACT is that the appellant is a professional Chartered Accountant. To do this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is not only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did not go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of compensation with the adoption of multiplier method, as held by this Court in Yadava Kumar v. National Insurance Co. Ltd:-

"9. 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 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.

10. In some cases for personal injury, the claim could be in respect of lifetime'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. The conventional basis of assessing compensation in personal injury cases and that is now recognised mode as to the proper measure of compensation--is taking an appropriate multiplier of an appropriate multiplicand."

9. In the case of Raj Kumar V. Ajay Kumar and Another 2011 (1)

SCC 343 the Hon'ble Supreme Court has held that where the claimant suffers a

permanent disability as a result of injuries, the assessment of compensation for loss

of future earnings would depend upon the impact and effect of the permanent

disability on his earning capacity. In para 10 and 11 of the said judgement the

Hon'ble Supreme Court has held as under:-

"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, the 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.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd.4 and Yadava Kumar v. National Insurance Co. Ltd.)"

10. The appellant/claimant herein suffered and has been amputated left

leg. The appellant/claimant is not salaried person and he was self-employed who

manages his business. He is definitely required to move around. The appellant can

also not drive on his own which hinders his mobility. This proves that the functional

disability of the appellant will severely impact his earning capacity and 60%

functional disability calculated by the learned tribunal is found to be true.

11. It is well settled that position of law that in cases of permanent

disablement caused by a motor accident the claimant is entitled to not just future loss

of income but also future prospects and in many cases it has been reiterated by the

Hon'ble Supreme Court as well as the High Court that just compensation must be

interpreted in such a manner as to place the claimant as he was before the accident

took place. In the case of "National Insurance Co. Ltd. Vs. Pranay Sethi (2017)

16 SCC 680 the applicable 40% addition of future prospects was given

compensation considering the age of 25 years.

12. The learned tribunal has awarded compensation of Rs. 50,000/- for the

artificial leg.

13. The learned counsel for the appellant submits that cost in view of

Exhibit 6 which quotation is required to be Rs. 1,48,396/- towards repair and

maintenance and the Exhibit-6 is of the time of accident.

14. At the time accident the appellant was aged about 25 years and has a

full life ahead as has been held in the case of " Anant son of Sidheshwar Dukre

V. Pratap son of Zhamnnappa Lamzane and Another (2018) 9 SCC 450 that

the purpose of fair compensation is to restore the injured to the position he was in

prior to the accident as best as possible. Paragraphs 12 and 13 of the said judgment is

quoted herein below:-

"12. in cases of motor accidents leading to injuries and disablements, it is well settled principle that a person must not only be compensated for his physical injury but also for the non pecuniary losses which he has suffered due to the injury. The claimant is entitled to be compensated for his inability to lead a full life and enjoy those things and amenities which he would have enjoyed, but for the injuries.

13. "The purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position to the accident This Court in Yadava Kumar V. National Insurance Company Ltd. explained "just compensation" in the following words:-

15. It goes without saying that in matters of determination of compensation both the tribunals and courts are statutorily charged with a responsibility of fixing a "just compensation". It is obviously true that determination of "just compensation" cannot be equated to be 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 courts. These reasonableness on the part of the tribunal and court must be on a large peripheral field."

15. In view of above facts and considering that the learned tribunal has only

awarded a sum of Rs. 50,000/- for artificial leg and considering Exhibit 6 that amount

is required to be enhanced. The exhibit 6 is of the year, 2009 in view of the matter the

awarded compensation of Rs. 3 lakhs including other maintenance of the sum is

modified to the above extent.

16. In the case of "R.D. Hattangadi v. Pest Control (India) (P) Ltd."

1995 (1) SCC 551 the Hon'ble Supreme court dealing with the different heads of

compensation in injury cases in para 9 has held as under:-

"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are 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 and 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."

17. In the light of above decision, the Court comes to the conclusion that in

the facts and circumstances of the case in hand compensation to be awarded as

follows:-

i. Compensation for pain and suffering-Rs. 1,00,000/-

ii. Compensation for loss of amenities of life -Rs. 1,00,000/-

iii. Compensation for disability and disfigurement-Rs. 1,00,000/-.

18. Recently the Hon'ble Supreme Court in the case of disability in "Mohd.

Sabeer @ Shabir Hussain v. Regional Manager, U.P. State Road Transport

Corporation (JT 2022 volume 12 SC 330 in paragraph 28 and 29 has held as

under:-

"28. It is almost universally seen that persons from marginalized backgrounds often face an additional layer of discrimination due to bodily disabilities. This is because persons from marginalized sections of the society already face severe discrimination due to a lack of social capital, and a new disability more often than not compounds to such discrimination. In such circumstances, to preserve the essence of justice, it becomes theduty of the Court to at the very least restore the claimant as best as possible to the position he was in before the occurrence of the disability, and to do so must award compensation in a liberal manner.

29. While no material compensation can completely negate the trauma and suffering that the injured and his family faces, the law only knows the language of monetary compensation in such cases. It then becomes to duty of the court to translate the provisions of monetary compensation into a fabrication that helps the injured and his family in coping with their loss."

19. On the basis of above mentioned facts and analysis the court comes to the

conclusion that the just compensation to be awarded to the claimant/appellant under

different heads ought to be as under:-

Cost of Artificial Limb and its Rs. 3,00,000/-

                     maintenance
                     Loss of earning capacity due      Rs. 4,08,000/- as calculated by the
                     to functional disability          learned tribunal, there shall be no
                                                       deduction of 1/3rd in that amount
                     Future prospects                  40% to be added i.e Rs. 244800/-
                     Medical expenses                   Rs. 50,000/- as held by the learned
                                                       tribunal
                     Conveyance                         Rs. 10,000/-
                     Special Diet                      Rs. 15,000/-
                     Pain and Suffering                Rs. 1,00,000/-
                     Loss and Amenities of life        Rs. 1,00,000/-
                     Loss     of   disability   and    Rs. 1,00,000/-
                     disfigurement
                                                       Total:-Rs. 13,27,800/-

20. In view of above facts, the impugned award is modified to the above

extent. The claimant/appellant is entitled to Rs. 13,27,800/-along with interest as

awarded by the learned Tribunal from the date of filing of the petition.

21. It is made clear that if the award is already satisfied the same shall be

deducted and the rest amount shall be paid by the Insurance Company to the

appellant/claimant within six weeks from the date of production/receipt of a copy of

this order.

22. It is made clear that so far other direction of the learned tribunal is

concerned the same is kept intact. The court has not accepted the argument of

learned counsel for the respondent no. 1-owner considering that the respondent has

not preferred any appeal. No relief can be extended to the respondent no.1 in the

appeal filed by the insurance company. It is open to the respondent no.1 to take

recourse under the law.