Madhya Pradesh High Court
Amit Pathak @ Lucky vs Ramsiya on 15 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 15th OF FEBRUARY, 2024
MISC. APPEAL No. 1030 of 2016
BETWEEN:-
Amit Pathak @ lucky S/o Vijay Pathak Aged about 33
years, R/o khalwara Bazar, Kymore, P.S. Kymore, Katni
(Madhya Pradesh)
.....Appellant
(By Shri Sharad Gupta - Advocate)
AND
1. Ramsiya S/o Babadeen Kushwaha Aged about 50
years R/o Village Purwa, Rampur Baghela, District
Satna (Madhya Pradesh)
2. M/s Kanodiya Brothers Through Proprietor/Partner
Shri Priyesh Kanodiya S/o Jugal Kanodiya aged about
28 years R/o Kanodiya Jail Stambh Chowk, Civil
Lines, District Rewa(Madhya Pradesh)
3. The Oriental Insurance Co. Ltd. Through Branch
Manager, Nai Basti, Katni (Madhya Pradesh)
.....Respondents
(By G.C. Sohane - Advocate for respondent No.3/Insurance company)
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Reserved On : 23.01.2024
Pronounced On : 15.02.2024
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This appeal coming on for hearing on 23.01.2024, the court passed
the following:
2
JUDGMENT
This appeal has been preferred against the judgment and award
dated 28.01.2016 passed by the Additional Member, Motor Accident
Claims Tribunal (hereinafter referred to as "the MACT"), Katni in
MACC No.152/2012 filed by the appellant - Amit Pathak @ Lucky for
enhancement of the quantum of compensation.
2. For the sake of convenience, the parties are referred to as they
arrayed before the Motor Accident Claims Tribunal (in short "MACT").
3. Brief facts as culled out from the record are that on 25.05.2012 at
about 05:30 pm, the appellant Amit @ Lucky alongwith his friend Sunil
Barman (pillion rider) were proceeding to Kymore from Katni on their
motor cycle bearing No.MP-21-MC-0107, when they were reached near
Chaka village, the offending vehicle/truck bearing No.MP-17-HH-2088
coming from opposite direction(wrong side) in rash and negligent driven
by its driver (respondent no.1) and dashed against the motor cycle, due to
which, the appellant sustained severe injuries over head, both hands, leg
and chest. He was taken to MGM Hospital, Katni for treatment. During his
treatment, three fractures found over his head, five fractures in the tibia
bone of right leg and right hand, blood clotting in ribs, he was operated
and sustained permanent disablement. On the information received by
Police Kuthla, ASI recorded the statement of injured/claimant and
registered a case in Crime No.219/2012 against the non-applicant No.1 for
offence under Sections 279, 337 and 338 of IPC. After investigation of this
case, the charge-sheet was submitted before the Court of ACJM, Katni
against accused/driver (respondent no.1), for the offence punishable under
Sections 279, 337 and 338 of IPC.
4. The claimant/appellant filed a claim petitioner seeking
compensation of Rs.27,30,000/- before the Claims Tribunal on account of
injuries sustained by him in a road traffic accident as he was a owner of the
truck and running tea shop and used to earn of Rs.10,000/- per month and
used to maintain family with the said earning.
5. The respondents no.1 and 2/non-applicants filed written statement
jointly denied the allegation made in the application and contended that the
offending vehicle in question was insured with non-applicant no.3 under
Policy No.152702/31/2012/3004, but the same policy was cancelled due to
dishonor of cheque, after coming to know about the dishonour of the
cheque for the premium, the non-applicant no.2 paid the premium amount
in cash, the policy No.152702/31/2012/3249 was renewed for a period
from 18.10.2011 to 17.10.2012. Further contended that the offending
vehicle was driven by its driver/respondent no.1 having a valid driving
license, respondent no.3 was the insurer of the offending vehicle.
Therefore, the entire risk and liability is on the Insurance
Company/respondent no.3 and claim against respondent no.1 and 2 is
liable to be dismissed.
6. The respondent no.3/non-applicant i.e. Oriental Insurance Co. Ltd.
filed written statement and contended that allegation made in the
application are false. Further contended that the cheque issued for the
premium was dishonoured on 07.10.2011 and the policy was cancelled and
the offending vehicle was not insured. Apart from that, the registration,
permit and fitness certificate of the offending vehicle/truck in question
were not filed. The driver/non-applicant no.1 of the vehicle was not having
a valid license. Further contended that the appellant has not filed any
documents regarding permanent disability and treatment, therefore, prays
to dismiss the petition.
7. In view of the pleadings of the parties, the learned Tribunal framed
the following issues dated 29.10.2013 :-
"(i) Whether on 25.05.2012 at about 05:30 pm, the applicant
was going from Katni to Kymore by motor cycle
bearing registration No.MP-21-MC-0107 and when he
reached near Marghatai in village Chaka, then the
vehicle Truck bearing registration No.MP-17-HH-2800
which owned by non-applicant no.2, driven by non-
applicant no.1 from the wrong direction in a rash and
negligent manner and hit the applicant's motor cycle
and caused serious injuries to the applicant ?
(ii) Whether the applicant suffered from injuries of serious
nature in the above accident which caused permanent
disability to him?
(iii) Whether the applicant approximately 33 years of age at
the time of accident?
(iv) Whether the applicant's monthly income of Rs.10,000/-
on the date of accident?
(v) Whether on the date of accident i.e. on 25.05.2012, the
truck No.Mp-17-HH-2800 was insured with the non-
applicant no.3.?
(vi) Whether the non-applicant no.1 had a valid and effective
driving license on the date of accident?
(vii) Whether on the date of incident i.e. on 25.05.2012 the
truck bearing registration No.MP-17-HH-2800 owned
by non-applicant no.1 driven by the non-applicant no.1
in violation of the terms and conditions of the
Insurance Policy?
(viii) Whether the applicant is entitled for compensation, from
whom and how much?
(vi) Aid and expenditure?"
8. In order to establish their claim, at the time of trial before the
Tribunal, PW-1 to PW-8 (AW-1 to AW-8) were examined and exhibits
Ex.P-1 to P-194 were got marked on behalf of the appellant. No evidence
led and no document marked on behalf of the respondent no.3/Insurance
Company.
9. The Tribunal, after analyzing the entire evidence on record, passed
an award for a sum of Rs.5,62,376/- as compensation, the break up details
of compensation awarding by the learned Tribunal are tabulation under:-
Sr. No.Head of Compensation Amount of compensation
awarded
1. Medical Expenditure Rs.3,87,376/-
2. Transportation & Special Diet etc. Rs. 25,000/-
3. Pain & Suffering and Professional loss Rs.1,50,000/-
Total Rs.5,62,376/-
10. Aggrieved by and dissatisfied with the said award passed by the
learned Tribunal, the appellant/claimant preferred the present appeal for
seeking enhancement of compensation.
11. The learned counsel for the appellant would submit that learned
Tribunal committed error in passing impugned award for meager amount
without looking the material and evidence on record. Further would submit
that the learned Tribunal erred in taking the disability at 100% by
awarding amount under loss of future earnings and further would submit
that the learned Tribunal ought to have awarded suitable compensation for
medical expenses incurred by the claimant for treatment, further would
submit that learned Tribunal has not awarded the amount under
conventional heads by applying the principles of the Apex Court's
judgments. Further would submit that the appellant/claimant sustained
100% disability, the future loss of earning not awarded by the Tribunal, the
learned Tribunal committed illegality while passing the award which needs
interference by this Court. Further would submit that the
appellant/claimant has taken treatment in many hospitals from Katni to
Bombay and spent huge amount for his treatment nearly Rs.10,00,000/-
which is supported by bunch of bills in the name of the claimant and
medical expenses need to be enhanced. In fact the appellant/claimant who
was a worker and running tea stall is not supposed to be that much
meticulous so as to maintain the bill for any future use, in fact he spent
more amount but the learned Tribunal has not awarded the amount spent
by him towards treatment under the bills. Further he would submit that the
amount awarded by the learned Tribunal and the amount now claimed on
the basis of various judgments of Hon'ble Supreme Court and this Court
shall reasonably increase the amount towards medical treatment, and
towards attendant charges as well as other conventional heads etc.
Therefore, prays to enhance the compensation by modifying the award
passed by learned Tribunal.
12. The learned standing counsel for the third respondent/Oriental
Insurance Company Ltd. has opposed this appeal and contended that the
learned Tribunal has not committed any illegality or irregularity which
needs no interference by this Court. Therefore, this appeal lack of merits
and is liable to be dismissed the same.
13. In view of the above rival arguments, the points for determination in
this appeal are as under:-
(i) Whether the claimant is entitled for enhancement of
compensation as prayed for ? and ;
(ii) Whether the awarded passed by the learned Tribunal by
following the principles of law or needs any interference?
14. Considering the submissions of the learned counsels, perused and
assessed the entire evidence on record including the exhibited documents.
A perusal of the impugned award would show that the learned Tribunal
has framed issue no.1, as to whether, the accident in question occurred
only due to the rash and negligent driving of the offending vehicle bearing
registration No.MP-17-HH-2800, by its driver, to which, the learned
Tribunal after considering the oral evidence coupled with the documents,
gave a finding on issue no.1 and mentioned in para-14 of the judgment that
on the date of accident on 25.02.2012, the offending vehicle bearing
No.MP-17-HH-2800 driven by its driver/respondent no.1 in rash and
negligently (wrong side) and dashed the motor cycle and as a result,
caused a grievous injuries to the claimant and a criminal case is filed
against the driver(respondent No.1) of the offending vehicle as per exhibit
P-9/certified copy of the charge sheet. Therefore, this Court is of the view
that no reason to interfere with the finding of the learned Tribunal that the
accident occurred due to rash and negligent driving of the driver of the
offending vehicle/ truck bearing no. MP-17-HH-2800.
15. In the present case, respondent no.3 took a plea in the written
statement that the driver of the offending vehicle has not possessed the
valid driving license and further took a plea that the offending vehicle does
not cover the insurance policy by the date of the accident and there was no
permit and fitness of the offending vehicle. On perusal of the documentary
evidence and in para 15 of the judgment, the learned Tribunal had given a
finding that the offending vehicle bearing no. MP-17-HH-2800 was
insured from 18.10.2011 to 17.11.2012 with respondent no.3 and the copy
of the policy available in the file. Further held that the respondent no.1 was
having valid driving license and filed photocopy of the driving license of
was issued by Transport Authorities for a period from 30.03.2012 to
29.03.2015 for driving the transport vehicle and gave a finding that the
respondent no.1 was having an effective valid driving license by the date
of accident dated 25.05.2012. Therefore, this Court is of the considered
view that the offending vehicle is covered with the insurance policy and
respondent no.1 having valid driving license by the date of accident.
16. In the instant case, the Tribunal has not assessed the monthly
income of the appellant/injured, neither awarded the loss of past nor future
earnings and committed grave error for not awarding future liability. The
appellant/claimant took a plea before the Tribunal that he owned the truck
and running tea stall and used to earn of Rs.10,000/- per month. In support
of plea, he filed exhibits P-2C, P-3C and P-4C to show that Nagar
Panchayat Parishad, Kymore had given a license for running tea stall and
he filed exhibits P-5C P-6C and P-7C of the Insurance Policy of the truck
bearing no. MP-21-H-0514 in the name of the appellant/claimant which
clearly proves that he was getting monthly income by running tea stall and
truck but except filing of those documents, he has not filed any documen-
tary prove to show that he is getting income for Rs.10,000/- per month. In
the absence of the same, this Court is of the opinion that the appellant/in-
jured is treated as Cooli/worker, his monthly income as on the date of acci-
dent as to be taken into consideration.
17. The law in respect of notional income is well settled by the deci-
sions of Hon'ble Suprem Court:-
The law in respect of notional income is well settled by
the decisions of the Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram Alliance
[(2011) 13 SCC 236] and Syed Sadiq and others v.
Divisional Manager, United India Insurance Co.Ltd.
[(2014) 2 SCC 735]. The Hon'ble Supreme Court in
Ramachandrappa (supra) has fixed the notional income
of a coolie worker in the year 2004 MACA.No.952 OF
2008 @ Rs.4,500/- per month. In Syed Sadiq (supra), the
Hon'ble Supreme Court fixed the notional income of a
vegetable vendor in the year 2006 @ Rs.6,500/- per
month. This Court in Soman vs. Jinesh James and
others [ILR 2020 (3) Kerala 1003] has fixed the notional
income of a coolie worker in the year 2010 at Rs.7,500/-
per month.
18. The Hon'ble Supreme Court has also recognized the principle that
there would be incremental enhancement in the case of even self-employed
individuals in the unorganized sector (National Insurance Co. Ltd. v.
Pranay Sethi, (2017) 16 SCC 680) and with respect to an unspecified job
of a coolie considering the increase in cost of living and economic
advancements over the years, it can be safely assumed that even a coolie
would be eligible for incremental addition of at least Rs.500/- in every
subsequent year. The Tribunal has not considered the monthly income of
the injured while determining the compensation.
19. In the light of the above judgment cited (supra), the notional income
of the Coolie worker has been fixed in the year 2010 at Rs.7,500/- per
month. Following the parameters laid down in the above judgments
(supra), this Court is of the considered opinion that by the date of accident,
the notional income of the deceased can be safely assumed that even a
Coolie would be eligible for the incremental addition of at least Rs.500/- in
every subsequent year. In such circumstances, the notional income of the
injured can safely be fixed at Rs.8,500/- per month as in the year of
accident 2012.
20. It is a well settled principle that while determining the compensation
payable to appellant/claimant in the claim filed under the Motor Vehicles
Act, 1988, this Court referred to the judgment of the Court of Appeal
in Ward Vs. James1 Halsbury's Laws of England, 4th Edition, Volume 12
(Page 446) wherein, it was held as follows:
1. (1965) 1 ALL ER 563
"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".
21. Further, it is relevant to refer the judgment of the Hon'ble Apex
Court in Rekha Jain Vs. National Insurance Co. Ltd.2 wherein, at Para
No.40, it was held as follows:
"40. It is well settled principle that in granting
compensation for personal injury, injured has to be
compensated (1) for pain and suffering (2) for loss of
amenities, (3) shortened expectation of life, if any, (4) loss
of earnings or loss of earning capacity or in some cases for
both, and (5) medical treatment and other special
damages............".
22. It is relevant to refer to the judgment of the Hon'ble Apex Court in
Abhimanyu Pratap Singh Vs. Namita Sekhon and another3 wherein, at
Para Nos.11, 12 and 13 it was held as follows:
11. In Philipps v. London & South Western Railway
Co. [Philipps v. London & South Western Railway Co.,
(1879) LR 5 QBD 78 (CA)] , it was held that by making a
payment of compensation for the damages, the court
cannot put back again the claimant into his original
position. On the date of determination of the compensation,
he is being compensated but he cannot sue again,
therefore, the compensation must be full and final while
determining the same.
12. In Mediana, In re [Mediana, In re, 1900 AC 113
(HL)] , it is said that the determination for an amount of
compensation to the damages is an extreme task. What may
be adequate amount for a wrongful act and can it be
compensated by money, particularly towards pain and
2. (2013) 8 SCC 389
3. (2022) 8 SCC 489
suffering. By an arithmetical calculation, it cannot be
decided what may be the exact amount of money which
would represent the pain and suffering to a person, but as
per recognised principles, damages must be paid.
13. In H.West & Son Ltd. v. Shephard [H. West & Son
Ltd. v. Shephard, 1964 AC 326 : (1963) 2 WLR 1359 (HL)]
, it was held that payment of compensation in terms of
money may be awarded so that something tangible may be
procured to replace something else of the like nature which
has been destroyed or lost. But money cannot renew a
physical frame that has been battered and shattered,
however the courts must consider to award sums, which
may be reasonable. Simultaneously, uniformity in the
general method of approach is also required. Thereby,
possible comparable injuries can be compensated by
comparable awards.........."
23. If the above judgments are read together, the issue of adequacy and
grant of just and reasonable amount of compensation requires
consideration is what should be the basis for determination and what may
be the reason for awarding such compensation. Applying the uniform
methodology for determination of compensation, comparable to the
injuries, thereby a person can lead his life though his physical frame
cannot be reversed. In the present case of nature, the learned Tribunal has
not awarded compensation under loss of past and future liability in
accorandance with the the Hon'ble Apex Court's judgments, which is not
just and reasonable.
24. In the instant case the injured sustained 100% disability as per the
exhibit P-1/disability certificate dated 04.07.2013 issued by Medical Board
(Experts Body), District Hospital, Katni. In support of above disability
certificate Dr. P.D. Soni was examined as AW-1 stated that 04.07.2013,
the Disablment Board, Katni of which he was member of the Board and
examined the injured, the President of the Board and other members were
also present and found that the right femur, tibia and fibula bone were
fractured, right side breachial plexus was damaged, due to which his
right hand is senseless, thus, the Medical Board issued a certificate for
100% disability vide exhibit P-1 in which contains his signature alongwith
the Expert Body. Dr. Pankaj Gupta was examined as AW-4, he stated that
that due to rupture of the blood vains there is no possibility of early
recovery and Dr.Sanjeev Banajree examined as AW-5 who had operated
the injured at Jabalpur Hospital, he stated that he fixed the plates due
fracuture in the right shoulder, right thigh and multiple fractures in the
right leg and the bones of the right leg was tided up by machine,
Dr.Mukund R. Thede, Dr. Ajay Seth and Dr. Suneel Shah were also
treated the injured. As per the medical evidence, the right hand of the
appellant is not workable. Therefore, the occupation of truck operation and
running tea stall may not be possible, that the appellant is totally disable
for occupational purposes. The learned Tribunal committed a grave error
for not awarding loss of past and future earnings by following the
judgment of Hon'ble Apex Court in Kajal Vs. Jagdish Chand4, wherein
para 16, 17 and 18 are as follows:
16. In Raj Kumar v. Ajay Kumar [Raj Kumar v. Ajay
Kumar, (2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 :
(2011) 1 SCC (Cri) 1161] , this Court laid down the
heads under which compensation is to be awarded for
personal injuries : (SCC p. 348, para 6)
"6. 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.
4. 2020(4) SCC 413
(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."
17. In K. Suresh v. New India Assurance Co. Ltd. [K.
Suresh v. New India Assurance Co. Ltd., (2012) 12 SCC
4 : (2013) 2 SCC (Civ) 279 : (2013) 4 SCC (Cri) 638] ,
this Court held as follows : (SCC p. 276, para 2)
"2. ... There cannot be actual compensation for anguish
of the heart or for mental tribulations. The
quintessentiality lies in the pragmatic computation of the
loss sustained which has to be in the realm of realistic
approximation. Therefore, Section 168 of the Motor
Vehicles Act, 1988 (for brevity "the Act") stipulates that
there should be grant of "just compensation". Thus, it
becomes a challenge for a court of law to determine
"just compensation" which is neither a bonanza nor a
windfall, and simultaneously, should not be a pittance."
18. Applying the aforesaid principles, we now proceed
to assess the compensation.
25. In the case of Raj Kumar Vs. Ajay Kumar's case (supra) the
Hon'ble Apex Court has gave illustration of a driver who has permanent
disablement and stated that the loss of future earnings capacity would be
virtually 100%. Therefore, clearly when it comes to loss of earning due to
permanent disability, the same may be treated as 100% loss caused to the
appellant since he will never be able to work again as a driver of the truck.
The contention of the respondent/Insurance Company is that the appellant
could take up any other alternative employment, is no justification to avoid
their vecarious liability. Hence, the loss of earnings is determined by this
Court at Rs.8,500/- x 12 = 1,02,000/-. In the present case, AW-1 Dr. P.D.
Soni who treated the injured and issued disability certificate, he stated that
he found the right femur, tibia and fibula bones were fractured and right
side breachial plexus were damaged, due to which his right hand is
senseless, thus, the Medical Board(Expert Body) issued the certificate for
100% permanent disablement vide Exhibit P-1. Thus, the calculation of
compensation towards loss of future earning as per the judment of Raj
kumar Case (supra) will follow by applying appropriate multiplier as per
the principles laid down in Sarla Verma's case (supra).
a) Annual income before the accident
(Rs.8,500x12= 1,02,000) .... Rs.1,02,000/-
b) Loss of future earnings per annum
(100% of the prior annual income) .... Rs.1,02,000/-
c) Multiplier applicable with reference
to age (appellant's age was 33 years
at the time of the accident as per
Sarla Verma's case) .... 16
d) Loss of future earnings (1,02,000x 16) ....Rs.16,32,000/-
26. In the present case, learned Tribunal grossly erred for not awarding
loss of future earnings. Therefore, a reading of the Tribunal award makes it
clear that the Tribunal approach does not accord at all with the current ju-
dicial opinion, therefore, the appellant/claiman is entitled to an amount of
Rs.16,32,000/- under the head of "loss of future earnings" which would be
substantive.
27. The Tribunal awarded an amount of Rs.3,87,376/- towards medical
expenses. The Tribunal has committed an error while awarding
compensation under the head of medical expenses. The claimant met with
an accident on 25.05.2012, immediately he was shifted to MGM Hospital,
Katni where he was taken primary treatment and spent of Rs.16,407/- as
per the bills (Exhibit P-39 to P-53) and thereafter he was shifted to the
Jabalpur Hospital & Research Center, Jabalpur and he was taken treatment
from 26.05.2012 to 31.05.2012, he spent an amount of Rs.4,97,667/- as per
the medical bills Exhibited P-54 to P-108-B and from there he was shifted
to Nagpur for better treatment in Wockhardt Hospital, Nagpur on
10.07.2012 and there from he was shifted to Bombay Hospital & Medical
Research Center, Bombay where he was admitted from 20.01.2013 to
29.01.2013 where he spent an amount of Rs.7,00,000/- approximately as
per Exhibit P-109 to P-194. The appellant/claimant who was skilled labour
is not supposed to be that much of meticulous so as to maintain the bills
for any future use. The claimant has reminded in hospitals in three
occasions for a total period of more than two months. He must have
incurred more expenses. The medical bills consist 194 showing the
expenditure incurred by the claimant towards the treatment which is not
disputed by other side. The bills consist of advance bill and some of them
are duplication of bills, if these bills are excluded medical expenses comes
to Rs.7,00,000/- whereas the Tribunal has assessed the medical Expenses
of Rs.3,87,376/- for no reason. Hence, the appellant is entitled to be
reimbursed the medical expenses incurred for his treatment, thus, the just
compensation comes to Rs.7,00,000/- to which the appellant is entitled
against Rs.3,87,376/-, therefore, the compensation under the head of
"medical expenses" is enhanced from Rs.3,87,376/- to Rs.7,00,000/-.
28. The Tribunal ought to have awarded compensation towards loss of
amenity as a person who is suffering 100% permanent disability cannot
lead a normal life. The AW-1 and AW-4 to AW-8 who are treated in
injured in various hospital and found that the right femur, tibia and fibula
bones are fractured and right side brachial plexus was damaged due to
which his right hand is senseless and the Medical Board (Expert Body)
issued assessment certificate (disability 100%). The compensation is only
the means to grant some support for the loss, he suffered with which is
expected to live for the rest of his life. By making a payment of
compensation for damages, the Court cannot be foot back again the
claimant into his original position on the date of determination of
compensation. He is being compensated but cannot be sue again.
Therefore, this Court is of the view that Rs.2,00,000/- has to be awarded
towards the loss of amenities of life.
29. Further the Tribunal has not awarded any amount towards loss of
earnings for the period of treatment. The accident occurred on 25.05.2012.
He underwent treatment as impatient in many hospitals at Katni, Jabalpur
Hospital, Wockhardt Hospital, Nagur and Bombay Hospital and Medical
Research Center at Bombay from 25.05.2012 to 29.01.2013, which nearly
seven months and normally the patient was advised for three months bed
rest because the nature of injuries sustained by him altogether nine months
he lost his earning by taking the consideration, the evidence, the loss of
earning for nine months, as stated above, would come to Rs.8,500/- x 11 =
93,500/-. As such the appellant is entitled to an amount of Rs.1,00,000/-
under the head of "loss of earnings".
30. Apart from that, the amount under another conventional head i.e.
attendant charge needs to be awarded to the injured, as the tribunal has not
awarded any amount towards attendant charges. The injured had taken
treatment more than nine months in many hospitals as stated above and ad-
vised to take bed rest for two months, altogether for eleven months. As
such the attendant may also loss of earnings for the said period of
treatment, therefore, the appellant/claimant is entitled to an amount of
Rs.8500/- x 11 = 93,500/- towards attendant's charges. Hence, an amount
of Rs.1,00,000/- is awarded towards "attendants charges" to the claimant.
31. The Tribunal has awarded a meager amount towards extra
nourishment "diet" and transportation for Rs.25,000/-. This Court is of the
view that the injured sustained very serious injuries, he moves from one
state to another state and to the injuries sustained by him in the road traffic
accident, he has to take best diet for speedy recovery and also he should
travel alongwith attendant, he may be spent more expenditure for
transportation, therefore, for awarding an amount of Rs.25,000/- for diet
and transportation by the learned Tribunal is not in accordance with
principles of law, therefore, this Court is of the view that Rs.1,00,000/- is
sufficient for transportation and extra nourishment. The compensation
awarded under the head of "extra nourishment and transportation" is en-
hanced from Rs.25,000/- to Rs.1,00,000/-.
32. In the instant case, with regard to pain, suffering & trauma which
has been caused to the appellant who sustained several fractures, his right
hand is senseless and implants were inserted in his right thigh and hip bone
as stated by the doctors who treated the appellant, the Tribunal has
awarded meager amount of compensation of Rs.1,50,000/- for pain and
suffering. It is contended that the compensation awarded by the Tribunal
was meager and insufficient and it is undisputed that the appellant remind
in the hospitals for a period of three months, it is not possible for the
Courts to make precise assessment of the pain and trauma suffered by the a
person whose right hand was senseless and has suffered permanent
disability of 100%, due to the accident caused. The appellant will have to
struggle and face different challenges as being handicapped permanently.
Therefore, in all such cases, the Tribunal and the Courts should make a
broad estimate for the purpose of determining the amount of just and
reasonable compensation to be awarded. Admittedly, at the time of
accident, the appellant was a young man of 33 year. For the rest of his life,
the appellant will suffer from the trauma of not being able to do his normal
work, neither driving the truck nor running the tea stall. Therefore, this
Court is of the view that in a peculiar facts and circumstances of the case,
even after taking a very conservative view of the matter a reasonable
amount payable for pain and suffering to the appellant is required, there-
fore, it is submitted that to meet the ends of justice, it would be just and
proper to award him a sum of Rs.2,50,000/- towards the "pain, suffering
and trauma" caused to him, therefore, the compensation under the head of
pain & suffering is enhanced from Rs.1,50,000/- to Rs.2,50,000/-.
33. The Tribunal has not awarded any amount under the head of future
medical expenses. As per the evidence of doctor who treated him, they too
have stated that two years or more treatment is required for him for
recovery and in such circumstances, keeping in view of the nature of in-
juries sustained by him i.e. the fact that his right hand was senseless and
suffered from a lot of medical problems may arise in future. True, there is
an evidence in this regard for periodical medical expenses, it is not
possible for a fresh award to be passed or to review a previous award,
when the medical expenses incurred after finalization of the compensation
proceedings. Therefore, the only alternative is that at the time of passing of
final award, the Tribunal should consider such eventuality and fixed
compensation under the above said head, accordingly.
34. In the instant case, the award passed on 28.01.2016, after passing a
final award, the injured has taken further treatment at Bombay Hospital &
Medical Research Center, Bombay from 15.12.2017 to 29.01.2018 and
filed bunch of medical bills which covered an amount of Rs.1,72,000/- and
filed a memo alongwith the medical bills before this Court for additional
medical expenditure, subsequent the award passed by the learned Tribunal.
The claimant has not been awarded under this head. Keeping in view of
nature of injuries and the fact that he spent huge amount for further
treatment subsequent to the award passed by the Tribunal, suffers from a
lot of medical problems and spent Rs.1,72,000/- for his further treatment
as stated supra, true it is that there is sufficient evidence in this regard and
he may requires special treatment which will have provide treatment
frequently and he may face many other medical issues because of injuries
suffered in the accident. Keeping in view of his young age and assuming
he would live another 30 to 40 years, it would not be unjust to award him
for Rs.3,50,000/- for "future medical expenses", therefore, it is submitted
by him that it will be just and reasonable for this Court to award a further
sum of Rs.3,50,000/- to the appellant for his future treatment.
35. In Sarla Verma vs. Delhi Transport Corporation & anr. 5 the
Hon'ble Apex Court, while elaborating the concept of 'just compensation'
observed as under:
5. (2009) 6 SCC 121
"Just compensation is adequate compensation which is fair
and equitable, on the facts and circumstances of the case, to
make good the loss suffered as a result of the wrong, as far as
money can do so, by applying the well settled principles
relating to award of compensation. It is not intended to be a
bonanza, largesse or source of profit."
36. On an overall re-appreciation of the pleadings, material on record
and the law laid down by the Hon'ble Supreme Court in the afore-cited
decisions, I am of the definite opinion that the claimants are entitled to
enhancement of compensation as modified and recalculated above and
given in the table below for easy reference and the appellant shall be
entitled to the compensation figured out in the following table under
different heads:-
S.No Head of Compensation Amount Enhanced Amount
awarded by
the Tribunal
1 Loss of future earnings ------- Rs.16,32,000/-
(Rs.8500 x 12 = Rs.1,02,000
x 100% x16 =
Rs.16,32,000/-)
2 Medical expenses & cost of 3,87,376/- Rs.7,00,000/-
medicines
3 Loss of amenities of life ------- Rs.2,00,000/-
4 Attendant charges ------- Rs.1,00,000/-
5 Transport and Diet 25,000/- Rs.1,00,000/-
6 Pain, suffering & trauma as a 1,50,000/- Rs.2,50,000/-
consequence of the injuries as
disability is 100% in view of
judgment of Mallikarjun vs. National
Insurance Company Ltd. & Anr.6
7 Future medical expenditure & ------- Rs.3,50,000/-
treatment
8 Loss of earning ------- Rs.1,00,000/-
Total Rs.5,62,376/- Rs.34,32,000/-
37. A decision in the case of Meena Devi v. Nunuchand Mahto7, Para 17
as follows:-
6. 2014(14) SCC 396
7.(2023) 1 SCC 204
"17. At this stage, it is necessary to clarify that as per the de-
cision of a Three-Judge Bench of this Court in Nagappa vs.
Gurdayal Singh and others (2003) 2 SCC 274, it was observed
that under the MV Act, there is no restriction that the Tri-
bunal/Court cannot award compensation exceeding the
amount so claimed. The Tribunal/Court ought to award 'just'
compensation which is reasonable in the facts relying upon
the evidence produced on record. Therefore, less valuation, if
any, made in the Claim Petition would not be impediment to
award just compensation exceeding the claimed amount."
38. In the light of the above decision, there is no restriction that
compensation could be awarded only up to the amount claimed by the
claimant in this appeal for enhancement of Rs.5,00,000/-. In an appropriate
case where from the evidence brought on record, if Tribunal /Court
considers that claimant is entitled to get more compensation than claimed,
the Tribunal may pass such award. There is no embargo to award
compensation more than that claimed by the claimant. Rather it is
obligatory for the Tribunal and Court to award "just compensation", even
if it is in the excess of the amount claimed. The Tribunals are expected to
make an award by determining the amount of compensation which should
appear to be just and proper. In the present case, the compensation as
awarded by the Claims Tribunal, against the background of the facts and
circumstances of the case, is not just and reasonable and the claimant is
entitled to more compensation though he might not have claimed the same
at the time of filing this appeal.
39. Therefore, in view of the foregoing discussion, this Court is of the
opinion that the award passed by the Tribunal warrants interference and
thereby enhanced the compensation from Rs.5,62,376/- to Rs.34,32,000/-.
40. Resultantly, the appeal is allowed with costs and the compensation
amount is enhanced from Rs.5,32,376/- to Rs.34,32,000/- along with
interest @ 6% per annum from the date of filing of the claim petition till
the date of realization, against the respondents No.1 to 3 jointly and
severally.
(ii) Respondent no.3/Insurance Company is directed to deposit the
compensation amount within two months from the date of this judgment,
failing which execution can be taken out against insurance company.
(iii) The appellant/claimant is directed to pay the requisite Court-fee
in respect of the enhanced amount awarded over and above the amount
awarded (As per the judgment of Hon'ble Apex Court in Ramla Vs.
National Insurance Company Limited8).
(iv) On such deposit, the claimant is permitted to withdraw the
entire amount with accrued interest and costs, by filing a proper
application before the learned Tribunal.
(v) The impugned award of the learned Tribunal stands modified to
the aforesaid extent and in the terms and directions as above.
(vi) The record be sent back to the Tribunal within three weeks from
this day.
(vii) As a sequel, interlocutory applications pending for
consideration, if any, shall stand closed.
DUPPALA VENKATA RAMANA, J
8. 2019 ACJ 559 (SC)
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 15th OF FEBRUARY, 2024
BETWEEN:-
Amit Pathak @ lucky S/o Vijay Pathak Aged about 33
years, R/o khalwara Bazar, Kymore, P.S. Kymore, Katni
(Madhya Pradesh)
.....Appellant
(By Shri Sharad Gupta - Advocate)
AND
1. Ramsiya S/o Babadeen Kushwaha Aged about 50
years R/o Village Purwa, Rampur Baghela, District
Satna (Madhya Pradesh)
2. M/s Kanodiya Brothers Through Proprietor/Partner
Shri Priyesh Kanodiya S/o Jugal Kanodiya aged about
28 years R/o Kanodiya Jail Stambh Chowk, Civil
Lines, District Rewa(Madhya Pradesh)
3. The Oriental Insurance Co. Ltd. Through Branch
Manager, Nai Basti, Katni (Madhya Pradesh)
.....Respondents
(By G.C. Sohane - Advocate for respondent No.3/Insurance company)
-----------------------------------------------------------------------------------------
Reserved On : 23.01.2024
Pronounced On : 15.02.2024
-----------------------------------------------------------------------------------------
SUBMITTED FOR APPROVAL :
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANAW
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment ? Yes/No
2. Whether the copies of judgment may be marked to Law
Reporters/Journals ? Yes/No
3. Whether His Lordship wish to see the fair copy of the
Judgment ? Yes/No
DUPPALA VENKATA RAMANA, J.
vibha
