Punjab-Haryana High Court
Kamlesh Kumar vs Anand Sharma And Anr on 5 April, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
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FAO-4139-2007 (O&M)
-1-
206
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO-4139-2007 (O&M)
Date of Decision : 05.04.2024
Kamlesh Kumar ....Appellant
VERSUS
Anand Sharma and others ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. J.P.Sharma, Advocate for the appellant.
Ms. Simran, Advocate for
Mr. Pardeep Goyal, Advocate for respondent No.2 - Insurance Co.
-.-
SUDEEPTI SHARMA, J. (Oral)
1. The present appeal has been preferred against the award dated
21.12.2005 passed by the learned Motor Accident Claims Tribunal, Narnaul,
whereby the appellant has been awarded compensation to the tune of Rs.80,000/-.
2. The brief facts of the case as mentioned in the claim petition are that
the appellant was a pillion rider on motor cycle No.HR-35B-0331. On 14.10.2004,
he was coming from Nangal Chaudhary to Narnaul. The said motor cycle was
being driven by respondent No.1 at normal speed. At about 9.30 AM, when the
motor-cycle reached near Jal Mahal Crossing, Narnaul, suddenly a blue bull
appeared on the road and in a bid to save the said bull, respondent No.1 (driver of
motor-cycle) lost control of the motor-cycle and had fallen down. The appellant
and respondent No.1 had received multiple injuries. The appellant was shifted to
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M/s Raj Hospital, Singhana, where he remained under treatment. Claiming that the
appellant was earning Rs.3,600/- per month, compensation of Rs.5 lacs was sought
against the respondents, which after moving an application by the claimant under
Order XXIII Rule 1 CPC for reducing the amount of compensation and income,
was reduced to Rs.2 lacs and Rs.3000/-, respectively.
3. Upon notice, respondent No.1denied, the contentions made by the
claimant.
4. From the pleading of the parties, the Tribunal has framed the
following issues:-
1. Whether the petitioner Kamlesh Kumar sustained injuries in a
vehicular accident on 14.10.2004 at Narnaul-Nangal Chaudhary Road
near the turning of Jal Mahal on account of use of motor-cycle No.
HR-35B-0331 being driven by Anand Sharma, respondent No.1?OPP
2. Whether the petitioner is entitled to any compensation, if so to
what amount and from whom?OPP
3. Whether respondent No.2 is not liable to make payment of
compensation in view of the preliminary objections in the written
statement?OPR-2
4. Relief.
5. Learned counsel for the appellant submits that the appellant was taken
to hospital immediately after accident and he remained admitted there for few
days, therefore, the FIR could not be lodged immediately and the reason given by
the Tribunal while passing the order is that there is a delay of 6 days in lodging of
FIR and treated it to be an extra-ordinary delay. He further submits that the
Tribunal has wrongly observed that there is no explanation from the claimant as to
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why the claimant had not rushed for his treatment to the Civil Hospital, Narnaul or
to any other doctor nearby since the accident had allegedly taken place near Jal
Mahal crossing on Narnaul-Nangal Chaudhary Road. And why even when he
required immediate medical treatment, he rushed to Dr. Ranbir Singh (PW-3)
practicing medicine privately at Singhana. He further submits that the Tribunal has
wrongly observed that Joginder Singh (PW-5) is shown to be an eye-witness of the
accident whereas his name does not appear in the DDR (Ex.P2). He further
submits that the Tribunal had wrongly observed after perusing affidavit
(Ex.PW5/A) of Joginder Singh (PW-5) as to, that Jogender Singh mentioned in his
affidavit that after the accident the claimant had made telephonic message to his
brother and his brother had taken the claimant to M/s Raj Hospital, Singhana, but
claimant (Kamlesh) has not mentioned in his affidavit about arrival of his brother
and only mentioned that after the accident he was admitted in M/s Raj Hospital
Singhana. He further submits that the compensation awarded to the tune of
Rs.80,000/- is on the lower side even after assessing the disability of the appellant
as 15%.
6. Per contra, learned counsel for respondent No.2 vehemently argued on
the lines of the award and submitted that after taking into consideration the
disability, compensation has rightly been awarded and no enhancement is required
in the present case and appeal is liable to be dismissed.
7. I have heard learned counsel for the parties and thoroughly gone
through the record.
8. Hon'ble Supreme Court has settled the law regarding grant of
compensation with respect to the disability. The Apex Court in the case of Raj
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Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343, has
held as under:-
General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ('Act' for short)
makes it clear that the award must be just, which means that
compensation should, to the extent possible, 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 a result of
wrong done as far as money can do so, in a fair, reasonable and
equitable manner. The court or tribunal shall have to assess the
damages objectively and exclude from consideration any speculation
or fancy, though some conjecture with reference to the nature of
disability and its consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also for the loss which he
suffered as a result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used to earn or could
have earned. (See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR
1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India)
Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467).
6. The heads under which compensation is awarded in personal
injury cases are the following :
Pecuniary damages (Special Damages)
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(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(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.
xxx xxx xxx xxx
19. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not
result in loss of earning capacity.
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FAO-4139-2007 (O&M)
(ii) The percentage of permanent disability with reference to the
whole body of a person, cannot be assumed to be the percentage of
loss of earning capacity. To put it differently, the percentage of loss of
earning capacity is not the same as the percentage of permanent
disability (except in a few cases, where the Tribunal on the basis of
evidence, concludes that percentage of loss of earning capacity is the
same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him
subsequently to assess the extent of his permanent disability can give
evidence only in regard the extent of permanent disability. The loss of
earning capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages
of loss of earning capacity in different persons, depending upon the
nature of profession, occupation or job, age, education and other
factors.
20. The assessment of loss of future earnings is explained below
with reference to the following
Illustration 'A' : The injured, a workman, was aged 30 years and
earning Rs. 3000/- per month at the time of accident. As per Doctor's
evidence, the permanent disability of the limb as a consequence of the
injury was 60% and the consequential permanent disability to the
person was quantified at 30%. The loss of earning capacity is
however assessed by the Tribunal as 15% on the basis of evidence,
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because the claimant is continued in employment, but in a lower
grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs. 36,000/-.
b) Loss of future earning per annum
(15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration 'B' : The injured was a driver aged 30 years, earning Rs.
3000/- per month. His hand is amputated and his permanent disability
is assessed at 60%. He was terminated from his job as he could no
longer drive. His chances of getting any other employment was bleak
and even if he got any job, the salary was likely to be a pittance. The
Tribunal therefore assessed his loss of future earning capacity as
75%. Calculation of compensation will be as follows :
a) Annual income prior to the accident : Rs. 36,000/- .
b) Loss of future earning per annum
(75% of the prior annual income) : Rs. 27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-
Illustration 'C' : The injured was 25 years and a final year
Engineering student. As a result of the accident, he was in coma for
two months, his right hand was amputated and vision was affected.
The permanent disablement was assessed as 70%. As the injured was
incapacitated to pursue his chosen career and as he required the
assistance of a servant throughout his life, the loss of future earning
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capacity was also assessed as 70%. The calculation of compensation
will be as follows :
a) Minimum annual income he would
have got if had been employed as an
Engineer : Rs. 60,000/-
b) Loss of future earning per annum
(70% of the expected annual income) : Rs. 42000/-
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[Note : The figures adopted in illustrations (A) and (B) are
hypothetical. The figures in Illustration (C) however are based on
actuals taken from the decision in Arvind Kumar Mishra (supra)].
09. Hon'ble Supreme Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under
Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following
aspects:-
(A) Deduction of personal and living expenses to determine
multiplicand;
(B) Selection of multiplier depending on age of deceased;
(C) Age of deceased on basis for applying multiplier;
(D) Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses, with escalation;
(E) Future prospects for all categories of persons and for different
ages: with permanent job; self-employed or fixed salary.
The relevant portion of the judgment is reproduced as under:-
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" Therefore, we think it seemly to fix reasonable sums. It
seems to us that reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral expenses
should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively.
The principle of revisiting the said heads is an acceptable
principle. But the revisit should not be fact-centric or quantum-
centric. We think that it would be condign that the amount that
we have quantified should be enhanced on percentage basis in
every three years and the enhancement should be at the rate of
10% in a span of three years. We are disposed to hold so
because that will bring in consistency in respect of those
heads."
10. Hon'ble Supreme Court in the case of Erudhaya Priya Vs. State
Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:-
" 7. There are three aspects which are required to be examined by us:
(a) the application of multiplier of '17' instead of '18';
The aforesaid increase of multiplier is sought on the basis of
age of the appellant as 23 years relying on the judgment in National
Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ
2700 (SC). In para 46 of the said judgment, the Constitution Bench
effectively affirmed the multiplier method to be used as mentioned in
the table in the case of Sarla Verma (Smt) and Others v. Delhi
Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age
group of 15-25 years, the multiplier has to be '18' along with
factoring in the extent of disability.
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The aforesaid position is not really disputed by learned counsel
for the respondent State Corporation and, thus, we come to the
conclusion that the multiplier to be applied in the case of the
appellant has to be '18' and not '17'.
(b) Loss of earning capacity of the appellant with permanent
disability of 31.1%
In respect of the aforesaid, the appellant has claimed
compensation on what is stated to be the settled principle set out in
Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep
Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract
below the principle set out in the Jagdish (supra) in para 8:
"8. In assessing the compensation payable the settled principles
need to be borne in mind. A victim who suffers a permanent or
temporary disability occasioned by an accident is entitled to the
award of compensation. The award of compensation must cover
among others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal life together
with its amenities;
(iv) Medical expenses including those that the victim may be
required to undertake in future; and
(v) Loss of expectation of life."
[emphasis supplied]
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The aforesaid principle has also been emphasized in an earlier
judgment, i.e. the Sandeep Khanuja case (supra) opining that the
multiplier method was logically sound and legally well established to
quantify the loss of income as a result of death or permanent
disability suffered in an accident.
In the factual contours of the present case, if we examine the
disability certificate, it shows the admission/hospitalization on 8
occasions for various number of days over 1½ years from August
2011 to January 2013. The nature of injuries had been set out as
under:
"Nature of injury:
(i) compound fracture shaft left humerus
(ii) fracture both bones left forearm
(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft femur
(vii) fracture both bones left leg
We have also perused the photographs annexed to the
petition showing the current physical state of the appellant,
though it is stated by learned counsel for the respondent State
Corporation that the same was not on record in the trial court.
Be that as it may, this is the position even after treatment and
the nature of injuries itself show their extent. Further, it has
been opined in para 13 of Sandeep Khanuja case (supra) that
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while applying the multiplier method, future prospects on
advancement in life and career are also to be taken into
consideration.
We are, thus, unequivocally of the view that there is merit
in the contention of the appellant and the aforesaid principles
with regard to future prospects must also be applied in the case
of the appellant taking the permanent disability as 31.1%. The
quantification of the same on the basis of the judgment in
National Insurance Co. Ltd. case (supra), more specifically
para 61(iii), considering the age of the appellant, would be
50% of the actual salary in the present case.
(c) The third and the last aspect is the interest rate claimed as
12%
In respect of the aforesaid, the appellant has watered
down the interest rate during the course of hearing to 9% in
view of the judicial pronouncements including in the Jagdish's
case (supra). On this aspect, once again, there was no serious
dispute raised by the learned counsel for the respondent once
the claim was confined to 9% in line with the interest rates
applied by this Court.
CONCLUSION
8. The result of the aforesaid is that relying on the settled
principles, the calculation of compensation by the appellant, as
set out in para 5 of the synopsis, would have to be adopted as
follows:
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FAO-4139-2007 (O&M)
Heads Awarded
Loss of earning power Rs. 9,81,978/-
(Rs.14,648 x 12 x 31.1/100
Future prospects (50 per Rs.4,90,989/-
cent addition)
Medical expenses including Rs.18,46,864/-
transport charges,
nourishment, etc.
Loss of matrimonial Rs.5,00,000/-
prospects
Loss of comfort, loss of Rs.1,50,000/-
amenities and mental
agony
Pain and suffering Rs.2,00,000/-
Total Rs.41,69,831/-
The appellant would, thus, be entitled to the compensation of
Rs. 41,69,831/- as claimed along with simple interest at the rate of 9%
per annum from the date of application till the date of payment.
11. The result of the aforesaid is that relying on the settled principles, the
award dated 21.12.2005 is modified and the calculation of enhanced compensation
would be as follows:-
Sr. Heads Compensation Awarded
No.
1. Income Rs.3,000/-
2. Future Prospects 50% Rs.1500/-
3. Annual Income Rs.54,000/- (3000+1500 x 12)
4. Loss of future earning per Rs.8,100/- (54,000 x 15%)
annum
5. Multiplier Rs.1,29,600 (8,100 x 16)
6 Attendant Charges Rs.30,000/-
7 Pain and sufferings Rs.40,000/-
8 Nutrition & Special Diet Rs.20,000/-
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4 Total Compensation Rs.2,19,000/-
5. Compensation awarded by Rs.80,000/-
the Tribunal
Enhanced Compensation 1,39,000/- (2,19,000 - 80,000)
12. So far as the interest part is concerned, as held by Hon'ble Supreme
Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176
and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5
Supreme Court Cases 107, the amount so calculated shall carry an interest @9%
per annum from the date of filing of claim petition till the date of realization.
13. In view of the above, the appeal is allowed. Pending applications, if
any, also stand disposed off.
April 05, 2024 (SUDEEPTI SHARMA)
tripti JUDGE
Whether speaking/non-speaking : Speaking
Whether reportable : Yes/No
