Madhya Pradesh High Court

Sudesh Pandey vs Sudhir Kumar & Ors. on 1 May, 2024

                                              1

               IN   THE
                      HIGH COURT OF MADHYA PRADESH
                           AT JABALPUR
                               BEFORE
            HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
                        ON THE 1ST OF MAY, 2024

                             MISC. APPEAL No. 2116/2005

Between:-
Sudesh Pandey S/o Late Shri J.P.Pandey,
Aged About 31 Years R/o Heera Ganj,
Katni (M.P.)
                                                                                .....Appellant
(By Shri Sharad Gupta- Advocate)
AND
1. Sudhir Kumar S/o Man Singh Sahni,
   Aged About 38 Years, R/o Near Ram
   Mandir, Gayatri Nagar, Katni (M.P.)
2. Gulshan Sahani, S/o Man Singh Sahni,
   R/o Near Ram Mandir, Gayatri Nagar,
   Katni (M.P.)
3. The Oriental Insurance Com. Ltd.
   Through Branch Manager, Nai Basti,
   Katni (M.P.)
                                                            .....Respondents
(None for the Respondent No.1 And 2 and Shri R.K.Samaiya - Advocate for the
Respondent No.3/Insurance Company)
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Reserved on : 05.04.2024
Pronounced on : 01.05.2024
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        This appeal coming on for hearing 05.04.2024 this day, the court
passed the following:

                                      JUDGMENT

This appeal under section 173(1) of the Motor Vehicle Act, 1989 (hereafter referred to as "the Act", for short) has been filed by the claimant seeking enhancement of the amount of compensation against the judgment dated 04.04.2005 in MVC No.109/2004 passed by the learned 4 th Additional

Motor Accident Claims Tribunal, Katni (hereafter referred to as "the Tribunal", for short).

2. For the sake of convenience, the parties are referred to as they arrayed before the Tribunal.

3. The facts of this case are that the appellant Sudesh Pandey filed a claim application under section 166 of the Act against the respondents alleging that at the time of filing the claim petition he was aged about 31 years and working as advocate's clerk and used to earn Rs.5,000/- per month. The accident took place on 21.02.2004 at about 3:00 pm. while he was proceeding towards Heeraganj from Nai Basti when he reached in front of Mangat Ram Hospital, Nai Basti, Katni, the offending motor cycle bearing No.MP 21 C 6745 came behind in a rash and negligent manner and dashed against the claimant/appellant driven by its rider (the first respondent) and sustained serious injuries and he was taken to the Hospital for treatment and he sustained fracture in left leg ankle bone and due to the injuries sustained by him, his left leg could not be cured and shortened, due to which, he got permanent disability. The matter was reported by the claimant to Police Katni alleging that the alleged accident took place on account of rash and negligent driving of the said motorcyclist by its rider. Basing on the report, Police Katni registered a case in Crime No.154/2004 for offence under sections 279 and 338 of IPC. After investigation of this case, charge-sheet was submitted against accused/driver (first respondent-Sudhir Kumar) for having committed offence punishable under sections 279 and 338 of IPC.

4. The appellant/injured filed an application claiming compensation a sum of Rs.3,40,000/- before the Claims Tribunal on account of injuries sustained by him in the said accident.

5. The first and second respondents filed written statement jointly denied the allegations made in the claim petition and they averred that the vehicle in question did not involve in the accident, the claimant not sustained any permanent disability, the claimant/appellant with the connivance with the police filed a false case and it is further averred that the vehicle was insured with the third respondent, if any liability arises the same would be payable by the third respondent and they are not liable to pay any compensation.

6. The third respondent/insurance company filed a written statement denied the allegations made in the claim petition, further contended that the claimant has not filed any document regarding his age and income. Further contended that the first respondent not having valid and effective driving license at the time of the accident, if there is any violation in terms and conditions of the insurance policy, the insurance company/third respondent is not liable to pay compensation.

7. In view of the pleadings of the parties, the learned Tribunal framed the following issues dated 28.09.2004 :-

(i). Whether on the date of accident, the non-applicant no.1 driving the motorcycle bearing no.MP21 C 6745 in a rash and negligent and causes the accident ?

(ii). Whether the appellant due to the grievous injuries sustained in the said accident suffered permanent disablement ?

(iii). Whether the vehicle was used against the terms and conditions of insurance policy ?

(iv). Whether the non-appplicant no.1 was having a valid and effective driving license on the date of accident ?

If yes, effect.

(v). Aid and expenditure ?.

8. In order to establish his claim at the time of inquiry, PW-1 to PW-4 were examined and exhibits Ex.P-1 to Ex.P-16 were got marked on behalf of appellant/claimant. No evidence led and no documents were marked on behalf of the respondents.

9. On appreciation of evidence of PW-1 (Sudesh Pandey), PW-3 and PW- 4 (Doctors) and Ex.P-1 to P-16, the learned Tribunal was of the view that the alleged accident occurred due to the rash and negligent driving of the motorcycle by its rider (the first respondent) caused the accident and filed charge sheet (Ex.P-1) against the rider of the offending vehicle (the first respondent). He was responsible for causing the accident (as stated in para-8 of the judgment) and passed an award an amount of Rs.59,000/- with interest @ 9 % pa. from the date of claim petition till the payment by the respondents jointly and severally.

10. The break up details of compensation awarded by the learned Tribunal are tabulations as under:-

      Sr.   Head of Compensation                     Amount of
      No.                                            compensation
                                                     awarded in Rupees
      1.    Loss of income                           Rs.4000/-
            (Two months income @ Rs.2,000/-)
      2.    For medical expenses                     Rs.10,000/-
      3.    Pain and suffering                       Rs.15,000/-
      4.    Loss of amenities                        Rs.30,000/-
            Total                                    Rs.59,000/-

11. Aggrieved by and dissatisfied with the said award passed by the learned Tribunal, the appellant/claimant preferred the present appeal seeking enhancement of compensation.

12. The learned counsel for the appellant would submit that the learned Tribunal committed error in passing impugned award with meager amount

without looking to the material evidence available on record. Further would submit that the learned Tribunal ought to have awarded suitable compensation for the medical expenses which incurred for the treatment and also ought to have awarded suitable amount for pain and suffering and special diet. He would further submit that the learned Tribunal ought to have seen the disability certificate issued by the Medical Board sustained 20% of the permanent disablement. The learned Tribunal committed error in not awarding future loss of earnings and the award passed by the learned Tribunal is not in accordance with the law and awarded meager amount, therefore, he prayed that the award of the learned Tribunal may be modified and enhance the compensation.

13. The learned counsel appearing for the third respondent/insurance company would vehemently argued that the claimant has not filed any documentary proof to prove his age and income. Further would submit that the learned Tribunal has taken reasonable amount of Rs.2000/- per month as income of the claimant. Accordingly, calculated the compensation which by all means is just and reasonable and claimant is not entitled to any further enhancement of compensation. Further would submit that the learned Tribunal has not committed any illegality or irregularity which needs no interference by this Court. Therefore, this appeal lack of merit and is liable to be dismissed.

14. 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 award passed by the learned Tribunal needs any interference ?

15. 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 motorcycle bearing no.MP 21 C 6745, by its rider, to which, the learned Tribunal after considering the oral evidence coupled with the documents, gave a finding on issue no.1 mentioned in para-8 of the judgment, it was clear evidence, prima-facie proved only by initiation of a criminal case against the rider of the motor cycle (the first respondent), who was responsible to cause accident. It is confirmed that the accident caused due to rash and negligent driving of the motorcycle by its rider, therefore, this court is of the considered view that the accident occurred due to rash and negligent driving of the motorcycle bearing No.MP21 C 6745 driven by its rider, it is further observed that the offending vehicle was covered by an insurance policy by the date of accident, another plea taken that the first respondent did not possess valid driven license, the third respondent has not taken any steps for summoning the transport authority to produce the driving license particular of the first respondent, in the absence of the same, it cannot be said that the first respondent not possessing the valid driving license. Even otherwise, the first respondent (rider) not possessing valid drive license, the insurance company cannot escape from its liability, though third respondent has taken plea "denial of possessing driving license", no one examined and no evidence led by the third respondent to substantiate the plea taken in the written statement, therefore, in the absence of any material evidence placing on the record, it cannot be said the rider of the motor cycle (the first respondent) not possessing valid driving license. The third respondent/insurance company is liable to pay compensation. Therefore, the

finding of the learned Tribunal in this regard cannot be said to be faulted. Therefore, it stands proved that due to the rash and negligent driving on the part of the rider of the offending motorcycle, the victim met with an accident and sustained grievous injuries on the left leg ankle and by the time of accident the insurance policy is in force, therefore, the insurance company is liable to compensation.

16. On perusal of the judgment, with regard to determination of income of the appellant-injured the accident occurred on the 21.02.2004, the judgment of Hon'ble Apex Court in the case Ramachandrappa v. Manager, Royal Sundaram Alliance1 para-14, 15 held as thus:

14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.

15. In the present case, the appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs 100 to Rs 150 per day or Rs 4500 per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs 4500 to Rs 3000 per month. We, therefore, accept his statement that his monthly earning was Rs 4500.

1. (2011) 13 SCC 236

17. In the light of above decision, when the accident occurred in the year 2004 as fixed the notional income of a labour/coolie @ Rs.4,500/- per month. In the instant case, the claimant has taken a plea that he was working as advocate clerk and getting income @ Rs.5,000/- per month except the plea he did not produce any proof of document to prove his income, therefore, in view of the judgment of Ramchandrappa referred supra, the monthly income of a labour was accepted to be Rs.4,500/- when the accident occurred in the year 2004, in the present case, the accident occurred in the year 2004 and the appellant/claimant is treated to be a labour/worker. Hence, it would be appropriate in the facts and circumstances of the case to assume the income of the appellant/injured as Rs.4,500/- per month, the learned Tribunal committed error in fixing the notional income of the claimant @ Rs.2,000/- per month in contrary to the judgment of Ramachandrappa's case (surpa), therefore, the income of the appellant should be taken @ Rs.4,500/- per month.

18. 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. James2 Halsbury's Laws of England, 4th Edition, Volume 12 (Page 446) wherein, it was held as follows:

"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".

2. (1965) 1 ALL ER 563

19. Further, it is relevant to refer the judgment of the Hon'ble Apex Court in Rekha Jain Vs. National Insurance Co. Ltd.3 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............".

20. It is relevant to refer to the judgment of the Hon'ble Apex Court in Abhimanyu Pratap Singh Vs. Namita Sekhon and another4 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 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 recognized 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

3. (2013) 8 SCC 389

4. (2022) 8 SCC 489

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.........."

21. It is relevant to refer to the judgment of the Hon'ble Apex Court in Sarita Vs. Siva5 wherein, at 16 held as follows:

"16. Therefore, it may not be possible on some occasions to follow the particular judgment delivered by the High Courts or the Supreme Court. Judgments may be outdated or delivered some years back or the facts and circumstances in that particular judgment may not be much applicable to the facts and circumstances of the case on hand. Therefore, the courts are bound to consider the judgments with reference to the facts and circumstances as well as the prevailing situation. Mechanical approach in application of judgments is also not proper. Thus, for grant of compensation under the Motor Vehicles Act, 1988, a particular amount fixed in a particular case need not be passed in a routine manner. Once the facts and circumstances are different, then the yardstick to be adopted has also to be different."

22. The above judgments referred 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 awarded compensation in contrary to the

5. 2021 ACJ 1479 (Madras)

Hon'ble Apex Court's judgments, which is not just and reasonable and the learned Tribunal erred in fixing the income of the claimant.

23. In the present case, the claimant himself examined as PW-1, he stated that on 21.02.2004 at about 3:00 pm. while he was proceeding from oriental insurance company to Heeraganj on foot. When he reached near Mangatram Hospital Nai Basti motor cycle bearing no.MP 21 C 6745 which was driven by its rider came in rash and negligent manner and dashed from his back and caused injuries and he was shifted to the hospital for treatment and Dr.Pradeep Soni treated him, found fracture on left leg and fixed a plaster. PW-3 Pradeep Soni who treated the claimant (PW-1) and deposed that on 21.02.2004 he examined the injured Sudesh Pandey who had admitted in the hospital and advised for X-ray and his left leg ankle bone was fractured 3x3 inches back and he was advised for X-ray on which left Calcanium bone was fractured, the injured was admitted from 21.02.2004 to 30.03.2004 viz. the plaster was fixed in the left leg. In his cross-examination, he stated that there is chance of causing permanent disability. In support of his evidence, PW-4 another Doctor Naveen Kothari stated that the injured got permanent disability 20 % due to fracture and he was member of Medical Board and also signed on disability certificate which was issued as Ex.P-10. On perusal of the disability certificate issued by Medical Board shows 20% disability and the age of claimant mentioned as 31 years. Therefore, considering the evidence of PW-3 and PW-4 the disability certificate accepting 20% of disability of the appellant would be just and reasonable. The learned Tribunal ought to have accepted the said assessment certified by the expert body, in the said circumstances, the disability certificate issued by Medical Board that the appellant suffers from disability of 20%, thus the calculation of compensation

towards loss of future earning as per judgment of Raj Kumar Vs. Ajay Kumar6 will be as follows :

a) Annual income before the accident (Rs.4,500x12= 54,000) .... Rs.54,000/-

b) Loss of future earnings per annum (20% of the prior annual income) .... Rs.10,800/-

c) Multiplier applicable with reference to age (appellant's age was 31 years mentioned in the disability certificate issued by the Medical Board) (As per Sarla Verma's case) .... 16

d) Loss of future earnings (10800x 16) ....Rs.1,72,800/-

24. Therefore, the appellant/claimant is entitled to an amount of Rs.1,72,800/- towards loss of future earnings.

25. The Tribunal awarded meager amount of Rs.10,000/- towards medical expenses. The learned Tribunal has committed an error while awarding compensation under medical expenses. The claimant may spend much more amount for the injuries sustained by him he was hospitalized from 21.02.2004 to 30.03.2004 nearly 40 days, definitely he spend more amount. The appellant/claimant, who was unskilled labour is not supposed to be that much of meticulous so as to maintain the bills for any future use. Therefore, the claimant has been awarded Rs.50,000/- towards medical expenses as he sustained serious injuries i.e. fracture on his left leg ankle. Therefore, the compensation under the head of medical expenses should be enhanced from Rs.10,000/- to Rs.50,000/-.

6. 2011 ACJ (1) SC

26. Further, the learned Tribunal awarded meager amount towards loss of earning for the period of treatment and rest for another two months. Altogether four months for loss of earning. The accident occurred on 21.02.2004 and the claimant was admitted in hospital as impatient till 30 th March, 2004, and normally the patient was advised for two months bed rest because of fracture sustained by him on his left leg ankle. The loss of earning of four months as stated above would come to Rs.18,000/- (Rs.4,500/- x4=18000/-). Therefore, under the head of loss of earning for the period of treatment and rest for another two months, appellant/claimant is entitled for enhancement of amount from Rs.4000/- to Rs.18,000/-.

27. Apart from that, the amount under another conventional head i.e., Attendant Charges needs to be awarded to the injured, as the Tribunal has not awarded any amount towards attendant charges. As the claimant remained admitted in hospital and his left leg ankle was fractured he must have required an attendant at that time and thereafter at least two months for taking bed rest after discharge. As such, the attendant may also sustain loss of earnings. Therefore, the appellant/claimant is entitled to an amount of Rs.18,000/- (Rs.4,500x4=18,000/-) towards attendant charges. Accordingly, the claimant/appellant is entitled to an amount of Rs.18,000/- towards attendant charges.

28. The learned Tribunal has not awarded compensation under the conventional head of transportation and extra nourishment. This Court is of the view that Rs.20,000/- is sufficient for transportation and extra- nourishment.

29. In the instant case, the learned Tribunal has awarded compensation of Rs.15000/- towards pain and suffering. It needs to be enhanced to Rs.40,000/- as the injured was operated for left leg ankle and plaster for 45 days and

definitely he would have suffered a lot. The sufferance of injured cannot be compensated in terms of money. Therefore, the compensation under the head of pain and suffering is enhanced from Rs.15000/- to Rs.40,000/-.

30. In Sarla Verma's case (supra) the Hon'ble Apex Court, while elaborating the concept of 'just compensation' observed as under:

"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."

31. 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 appellant/claimant is entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference. "

 S.                         Name of the Head                        Amount      Enhanced/Reduce
 No                                                               awarded by    d by this Court in
                                                                  the learned          Rs.
                                                                   Tribunal
  1      Loss of future earnings (4500X12= 54000X20%X16=               --                 1,72,800
         1,72,800/-)

  2      Medical Expenses & Cost of Medicines                      10,000/-                   50,000/-
  3.     Loss of earnings during the period of treatment & rest     4000/-                    18,000/
  4      Attendant Charges                                            ----                    18,000/-
  5      Pain & Suffering                                          15,000/-                   40,000/-
  6      Loss of future inconvenience/amenities                    30,000/-            ----
  7      Extra nourishment and transportation                         ----                    20,000/-
 Total                                                             59,000/-             3,18,800/-
 (-) Compensation awarded By the Tribunal                                                     59000/-
 Enhanced amount                                                                        2,59,800/-

32. 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.

33. 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.59,000/- to Rs.3,18,800/-.

34. Resultantly, the appeal is allowed and the compensation amount is enhanced from Rs.59000/- to Rs.3,18,800/- along with interest @ 9% per annum from the date of filing of the claim petition till the date of realization, against the Respondents 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 (if not paid earlier) 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 Limited7).

(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.

7 2019 ACJ 559 (SC)

(vii) As a sequel, interlocutory applications pending for consideration, if any, shall stand closed.

DUPPALA VENKATA RAMANA, J

Rk....

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA ON THE 1ST OF MAY, 2024

Between:-

Sudesh Pandey S/o Late Shri J.P.Pandey, Aged About 31 Years R/o Heera Ganj, Katni (M.P.) .....Appellant (By Shri Sharad Gupta- Advocate) AND

1. Sudhir Kumar S/o Man Singh Sahni, Aged About 38 Years, R/o Near Ram Mandir, Gayatri Nagar, Katni (M.P.)

2. Gulshan Sahani, S/o Man Singh Sahni, R/o Near Ram Mandir, Gayatri Nagar, Katni (M.P.)

3. The Oriental Insurance Com. Ltd.

Through Branch Manager, Nai Basti, Katni (M.P.) .....Respondents (None for the Respondent No.1 And 2 and Shri R.K.Samaiya - Advocate for the Respondent No.3/Insurance Company)

------------------------------------------------------------------------------------------ Reserved on : 05.04.2024 Pronounced on : 01.05.2024

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SUBMITTED FOR APPROVAL :