Punjab-Haryana High Court
Rama Shanker vs Anil Kumar And Ors on 11 November, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
FAO-4643-2006
2006 (O&M) -1-
211
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO
FAO-4643-2006 (O&M)
Date of Decision : 11.11.2024
Rama Shanker ....Appellant
VERSUS
Anil Kumar and Others ....Respondent
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Jashan Sekhon, Advocate for
Mr. Shiv Kumar, Advocate
for the appellant.
appellant
Mr. Vishal Aggarwal, Advocate
for the respondent-Insurance Co.
-.-
SUDEEPTI SHARMA,
SHARMA J. (Oral)
1. The present appeal has been preferred by the claimant/appellant for
enhancement of compensation awarded by the learned Motor Accident Claims
Tribunal, Faridabad (for short, 'the Tribunal')) vide award dated 29.5.2006 under
/140 of the Motor Vehicles Act, 1988, whereby, the claimant/appellant
was awarded a compensation of Rs.1,00,000/-
Rs.1, - along with interest @ 7.5%
% per
annum.
FACTS NOT IN DISPUTE
2. Brief facts of the case are that on 17.10.2004 at about 9.30 p.m the
appellant was going on his cycle to attend his duty in M/s Starwire India Limited
21/4, Mathura Road, Faridabad, from his house situated at Azad Nagar Jhuggi,
Sector -24,
24, Faridabad. When he was crossing the GT Road with pr
proper
oper care and
caution, car bearing registration No.HR-26M-
No.HR -3226
3226 came from Ballabgarh side
being driven by respondent No.1 rashly and negligently and hit the appellant. Due
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to this accident, appellant sustained fracture on his right leg, right hand, shoulder
bone besides injuries on his head. He was removed to B.K.Hospital, Faridabad and
after first aid, he was taken to ESI Hospital, Faridabad and then to Safdarjang
Hospital, Delhi,, where he remained admitted for the period from 18.10.2004 to
09.11.2004 and operation of his leg and hand was conducted. Stitches on hi
hiss head
were also applied. Still, he is under treatment and doctors have advised for second
operation of his leg as the first operation could not succeed. He has already spent a
sum of Rs.50,000/-
Rs.50,000/ on his treatment and huge amount is still to be spent.
He is now not in a position to do his job as Maintenance Fitter. FIR No.466, dated
18.04.2004 was also got registered under Sections 279, 337, 338 of the Indian
Penal Code at Police Station Sector 7, Faridabad, regarding the said accident.
3. Upon notice of the claim petition, respondents appeared and denied
the factum of accident/compensation.
accident
4. From the pleadings
pleading of the parties, the Tribunal framed the following
issues:-
1. Whether the alleged accident resulting into the injuries
on the person of petition took place due to rash and negligent
driving of Opel Car bearing No.HR
No.HR-26M-3226
3226 by respondent
No.1? OPP
2. If issue No.1 is proved, whether the petitioner is entitled
to compensation and if so how much and from whom?OPP
3. Whether the petition is not maintainable? OPR
4. Whether the driver of the car in question (respondent
No.1) was not holding a valid and effective driving licence and
if so its effect. OPR-3
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2006 (O&M) -3-
5. Relief.
5. After taking into consideration the pleadings and the evidence on
record, the learned Tribunal awarded compensation to the tune of Rs.1,00,000/
0,000/-
along with interest @ 7.5% per annum.. Hence the claimant/appellant filed the
present appeal for enhancement of compensation awarded by the Tribunal.
SUBMISSIONS OF LEARNED COUNSELS FOR THE PARTIES
6. Learned counsel for the claimant-appellant
claimant appellant contends that the appellant
suffered serious injuries i.e. fracture on right leg and right shoulder's bone besides
injuries on his head. He further contends that the amount assessed by the learned
Tribunal for pain and suffering, future medical treatment and for loss ooff income is
on the lower side.
side. He further contends that no amount was granted for
transportation charges, attendant charges and for loss of amenities of life. He,
therefore, prays that the present appeal be allowed and the amount of compensation
be enhanced.
7. Per contra, learned for the respondent
respondent-Insurance Company argues that
the learned Tribunal vide award dated 29.05.2006 has rightly assessed the amount
of compensation. Therefore, he prays for dismissal of the present appeal.
8. I have heard learned counsel for the parties and perused the whole
record of this case.
case
9. A perusal of the record shows that the appellant does not suffer any
permanent injury on account of accident. A perusal of the record further reveals
that the appellant remained admitted in the hospital from 18.10.2004 to
08.11.2004. Record further reveals that the appellant has transferred from EST
Hospital Faridabad to Safdarganj Hospital,
Hospital, Delhi. Further no amount of
compensation was awarded for transportation, attendant charges and loss of
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2006 (O&M) -4-
amenities of life. Moreover, compensation granted for pain and suffering
suffering, future
medical treatment and for loss of income is on the lower side. T
Therefore,
efore, the
award requires interference by this Court.
SETTLED LAW ON COMPENSATION
10. 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
Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343
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
compensation
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, reason
reasonable
able 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
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
FAO-4643-2006
2006 (O&M) -5-
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)
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
transportation,
(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
Non-pecuniary
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 pr
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
amenities
expectation of life.
FAO-4643-2006
2006 (O&M) -6-
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.
(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
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 capa
capacity
city is the
same as percentage of permanent disability).
(iii) The doctor who treated an injured
injured-claimant
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
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
an
earning Rs. 3000/-
3000/ per month at the time of accident. As per Doctor's
evidence, the permanent disability of the limb as a consequence of the
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2006 (O&M) -7-
injury was 60% and the consequential permanent disability to the
person was quantified at 30%. The loss of earnin
earning
g capacity is
however assessed by the Tribunal as 15% on the basis of evidence,
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/
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
years,, earning Rs.
3000/ per month. His hand is amputated and his permanent disability
3000/-
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/
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/
4,59,000/-
Illustration 'C' : The injured was 25 years and a final year
Engineering student. As a result of th
thee 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
FAO-4643-2006
2006 (O&M) -8-
incapacitated to pursue his chosen career and as he required the
assistance of a servant throughout
throughout his life, the loss of future earning
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
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)].
11. Hon'ble Supreme Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law
aw under
Sections 166, 163-A
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
self ployed or fixed salary.
The relevant portion of the judgment is reproduced as under:
under:-
FAO-4643-2006
2006 (O&M) -9-
" 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 fune
funeral
ral 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
fact-centric
centric or quantum-
quantum
centric. We think that it would be condign that the amoun
amountt 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."
12. Hon'ble Supreme Court in the case of Erudhaya Priya Vs. State
Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:
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).
(SC) In para 46 of the said judgment, the Consti
Constitution
tution 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
15 25 years, the multiplier has to be '18' along with
factoring in the extent of disability.
FAO-4643-2006
2006 (O&M) -10-
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'.
appellant
(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.
ompensation. 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]
The aforesaid principle has also been emphasized in an earlier
judgment, i.e. the Sandeep Khanuja ccase
ase (supra) opining that the
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2006 (O&M) -11-
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. Furthe
Further,
r, it has
been opined in para 13 of Sandeep Khanuja case (supra) that
while applying the multiplier method, future prospects on
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2006 (O&M) -12-
advancement in life and ccareer
areer 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
king 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 JJagdish
agdish'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
esaid 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:
Heads Awarded
FAO-4643-2006
2006 (O&M) -13-
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.
CONCLUSION
13. In view of the law laid down by the Hon'ble Supreme Court in the
above referred to judgments, the present appeal is allowed. The award dated
29.05.2006 is modified accordingly. The appellant
appellant-claimant
claimant is entitled to the
enhanced amount of compensation as per the calculations made here
here-under:-
Sr. Heads Compensation Awarded
No.
1. Future treatment Rs.30,000/
Rs.30,000/-
2. Loss of income Rs.50,000/
Rs.50,000/-
3. Transportation charges Rs.30,000/
Rs.30,000/-
4. Loss of Amenities of life Rs.30,000/
Rs.30,000/-
5. Attendant Charges Rs.15,000/
Rs.15,000/-
6. Pain and sufferings Rs.40,000/
Rs.40,000/-
7. Special Diet Rs.20,000/
Rs.20,000/-
8. Medical Expenses Rs.30,000/
Rs.30,000/-
FAO-4643-2006
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Total Compensation Rs.2,45,000/
Rs.2,45,000/-
Compensation awarded by Rs.1,00,000/
Rs.1,00,000/-
the Tribunal
Enhanced Compensation Rs.1,45,000/
Rs.1,45,000/-
14. 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
realization.
15. The Insurance Company is directed to deposit the enhanced amount of
compensation along with interest with the Tribunal within a period of two months
from the date of receipt of certified copy of this judgment. The Tribunal is further
directed to disburse the
the amount of compensation along with interest in the account
of claimant/appellant. The claimant/appellant
claimant/appellant is directed to furnish his bank
account details to the Tribunal.
16. In views of the order passed in FAO No.1682 of 2007 dated
18.07.2024, the insurance
insurance company is hereby directed to deposit the current
scheduled fees to Mr. Vishal Aggarwal,, Advocate within a period of ten days from
the date of receipt of copy of this judgment.
17. Disposed of accordingly.
18. Pending applications, if any, also stand disposed of.
November 11,, 2024 (SUDEEPTI SHARMA)
tripti JUDGE
Whether speaking/non-speaking
speaking/non speaking : Speaking
Whether reportable : Yes/No
es/No
