Punjab-Haryana High Court
Om Parkash vs Sandeep And Ors on 22 October, 2024
Neutral Citation No:=2024:PHHC:140283
1
FAO No.7105 of 2017 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.
No.7105 of 2017 (O&M)
Date of Reserve: 22.07.2024
Date of Decision: 22.10.2024
OM PARKASH ......
......Appellant(s)
Vs
SANDEEP AND OTHERS ....Respondent
....Respondent(s)
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJ
MANUJA
Present: Mr. Kulvir Narwal, Advocate
for the appellant.
Mr. Pankaj Mehta, Advocate
for
or respondent No.3/Insurance
No. /Insurance Company.
****
HARKESH MANUJA, J.
[1]. By way of present appeal, challenge has been laid to an award dated
22.12.2016 passed by the learned Motor Accident Claims Tribunal, Jhajjar
(hereinafter
hereinafter to be referred as "the Tribunal"), whereby an amount of Rs.76,440
76,440/-
was awarded as compensation to the appellant/claimant
/claimant along with interest @ 7.5%
7.5
per annum on account of injuries suffered by him in a vehicular accident.
Brief Facts
[2]. The appellant, Om Parkash, being injured filed claim petition before
learned Tribunal praying for grant of compensation
compensation on account of injuries suffered
by him in a motor vehicular accident which took place on 12.02.2015 while
alleging rash and negligent driving by respondent No.1/driver.
[3]. After going through the claim petition and evaluating the evidence led
by both the parties, learned Tribunal arrived at a conclusion that the accident
occurred on account of rash and negligent driving of respondent No.1/driver and
awarded compensation in the following manner:
manner:-
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Neutral Citation No:=2024:PHHC:140283
S.No Heads of Claim Amount (in Rs)
1. Expenses relating to treatment and Rs.1,440/-
medical bills
2. 20% Permanent Disability Rs.40,000/-
3. Pain and Suffering Rs.20,000/-
4. Transportation, Attendant and Special Rs.15,000/-
Diet (Lump-sum)
TOTAL: Rs.76,440/-
Liability to pay the amount of compensation to the petitioner was
fastened upon all the respondents jointly and severally.
[4]. Being aggrieved against the award dated 22.12.2016, the present
appeal has been preferred by the appellant for enhancement of compensation. Facts
as specified in the claim petition and the issue regarding negligence of the driver as
held by the Tribunal are not being assailed, therefore, for the sake of brevity, those
are not being repeated here.
Arguments
[5]. Learned counsel for the appellant submitted that no compensation has
been awarded by the learned Tribunal on account of loss of income during
hospitalization period; loss of future earning capacity due to disability and
disfigurement of body while taking into consideration the in
injuries
juries and the
permanent disability suffered by the appellant. He also submitted that the
compensation granted for transportation, attendant charges and special diet was on
the lower side and even the compensation awarded under non
non-pecuniary
pecuniary heads is
also required to be enhanced.
[6]. On the other hand, learned
learned counsel representing respondent
No.3/Insurance
nsurance Company
ompany submitted that appellant had been adequately
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compensated and as such the impugned award warrants no interference and the
present appeal is, thus,
th liable to be dismissed.
Discussion
[7]. I have heard learned counsel for the parties and perused the paper
book of the case. I find force in the arguments
arguments advanced by the learning counsel
for the appellant/claimant.
appellant/claimant
On the aspect of enhancement of compensation
Assessment under "loss of income and future income"
[8]. To prove his case, appellant tendered in the evidence his affidavit as
Ex.PW1/A; copy of FIR as Ex.P2; copy of discharge summaries as Ex.P3and
Ex.P4; copy of OPD card as Ex.P5; medical bill as Ex.P6 and the disability
certificate as Ex.P11.
[8.1]. In the present case appellant being an Ex
Ex-serviceman
serviceman was receiving
pension and pleaded in his affidavit (Ex.PW1/A) that he was running a dairy farm
and doing agricultural work. Learned Tribun
Tribunal
al erred while not awarding any
compensation for loss of income during hospitalization, merely on account of
absence of any documentary proof regarding proof of income of the injured.
Reliance in this regard can be placed upon the decision rendered by the Hon'ble
Supreme Court in case of "Kubrabibi
"Kubrabibi v. Oriental Insurance Co. Ltd.", reported as
23, whereby it was held that in the absence
(2023) 3 Apex Court Judgments (SC) 23,
of definite proof of the income, the social status of the deceased was to be kept in
perspective where such persons were employed in unorganized sector. Relevant
para from thereof is reproduced here-under:
here -
"7. In a matter of the present nature where the compensation is
sought and even in the absence of definite proof of tthe
he income, the
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social status of the deceased is to be kept in perspective where such
persons are employed in unorganized sector and the notional income
in any event is required to be taken into consideration. The fact that
the deceased had three dependents to be cared for and had claimed
that he was working as a mechanic, the amount payable to an
unskilled labour, cannot be the basis and in that circumstance when
he was a skilled person, the daily income at Rs.200/
Rs.200/- per day in any
event could have been taken
taken even if the income from jeep transport
business was discarded for want of documents. More so in a
circumstance, where the MACT had referred to the evidence available
on record and then arrived at its conclusion, the re
re-appreciation
appreciation of
evidence by the High
High Court is without being sensitive to nature of lis
before it."
Further, learned Tribunal also failed to appreciate the fact that Motor
Vehicles Act, 1988 being a beneficial piece of legislation, strict rules of evidence
as applicable in a criminal trial,
trial, were not applicable in motor accident
compensation cases. Reliance in this regard
regard can be placed upon the judg
judgment
ment of
the Hon'ble Apex Court in "Rajwati @ Rajjo v. United India Insurance Company
Ltd.", reported as 2023(3) Apex Court Judgments (SC) 684
684, relevant paras from
which are reproduced hereunder:-
hereunder:
"18. Similarly, in the case of Kusum Lata & Ors. v. Satbir & Ors.
(2011) 3 SCC 646, this Court observed that it is well known that in a
case relating to motor accident claims, the claimants are not requ
required
ired
to prove the case as it is required to be done in a criminal trial. The
Court must keep this distinction in mind.
19. It is well settled that Motor Vehicles Act, 1988 is a beneficial
piece of legislation and as such, while dealing with compensation
cases, once the actual occurrence of the accident has been
established, the Tribunal's role would be to award just and fair
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compensation. As held by this Court in Sunita (Supra) and KusumLata
(Supra), strict rules of evidence as applicable in a criminal tr
trial,
ial, are
not applicable in motor accident compensation cases, i.e., to say, "the
standard of proof to be borne in mind must be of preponderance of
probability and not the strict standard of proof beyond all reasonable
doubt which is followed in criminal ca
cases".
Undisputedly, as per notification dated 21.10.2015 issued by the
Labour department, Haryana revised rates of minimum wages for an unskilled
labourer from 01.11.2015 onwards were Rs.7,600/
Rs.7,600/- per month and, thus, the
income of appellant at the time of motor vehicular accident needs to be assessed as
Rs.7,200/- per month (Rs.240/-
(Rs.240/ per day).
[8.2]. A perusal of copy of discharge summary (Ex.P3 and Ex.P4) showed
that appellant remained in Park Hospital, Gurugram from 12.02.2015 to
23.02.2015 (12 days) and again from 07.03.2015 to 12.03.2015 (6 days).
Therefore, loss of income during hospitalization of appellant is assessed @
Rs.4,320/- (Rs.240 x 18).
[8.3]. Upon perusal of disability certificate of the appellant (Ex.P11), it is
evident that he suffered 20% permanent disability due to injuries suffered by him
on right proximal tibia. Appellant being a dairy farmer and agriculturist would
definitely be said to face difficulty in doing arduous task involving significant
manual labour, thus, functional disability faced by him needs to be assessed @
20%. Now, even though there is no birth certificate or any other document to prove
the accurate age on record but on cumulative reading of disability certificate
(public record), discharge summary and affidavit tendered by the appellant, it can
be safely presumed that he was more than 60 years of age at the relevant time. In
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such circumstances, this Court in its humble opinion,
opinion, conservatively by applying
multiplier of 7, assesses loss of future income as Rs.1,20,960/
Rs.1,20,960/- (7,200 x 20/100 =
1,440 x 12 x 7).
Assessment under "other pecuniary heads"
[8.4]. Upon perusal of copy of FIR (Ex.P2) and copy of discharge
summaries (Ex.P3 and Ex.P4) as well as the averments made in affidavit of the
appellant, it is evident that he was first taken from the place of accident to
Government Hospital, Charkhi Dadri, then to PGIMS, Rohtak and later shifted to
Army Base Hospital, Delhi and finally received treatment from Park Hospital,
Gurugram. In such circumstances, it can be noticed that the appellant must have
incurred some expenses on transportation, thus, compensation on this count is
assessed @ Rs.20,000/-.
Rs.20,000/ . Further, appellant remaine
remained
d in hospital for 18 days and
would have definitely required attendant and nutritious diet during such period. It
is also evident from the discharge summaries (Ex.P3 and Ex.P4) that the appellant
was advised to undergo physiotherapy during post operation rrehabilitation
ehabilitation period,
thus, compensation under these heads including future medical treatment is
conservatively assessed as Rs.70,000/-
Rs.70,000/ while placing reliance on the judgment of
the Hon'ble Supreme Court in case of "Jagdish vs Mohan and others"
others",, reported
as (2018) 4 SCC 571, whereby it was held that in cases where post operative care
has to be undertaken by the injured, compensation towards future medical
expenses could be awarded.
[8.5]. In the present case, appellant being an ex
ex-serviceman
serviceman received some
treatment from Army Base Hospital, Delhi and from the cross examination of Mr.
Satbir, who appeared as PW-3,
PW 3, it is evident that he did not incur any expense
towards the treatment there. But on the other hand, upon bare perusal of discharge
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summaries (Ex.P3 and Ex.P4), it can be seen that the appellant received treatment
in a private hospital and even remained as indoor patient for 18 days in total. Even
though no medical bills other than X-ray
X ray bill (Ex.P6) were proved by the appellant
before the learned Tribunal
Tribunal or even presented before this Court, however,
considering the fact that the Motor Vehicle Act, 1988 happens to be a beneficial
legislation and irrefutable evidence of appellant being hospitalized, he needs to be
suitably compensated against this.
Therefore, compensation towards medical expenses is conservatively
assessed as Rs.50,000/-.
Rs.50,000/
Assessment
ment under "non-pecuniary
"non heads"
[9]. In motor accident cases, determining the value of pain and suffering is
a complex process that involves considering var
various
ious factors and subjective
assessments. Unlike economic damages such as medical expenses or lost wages,
which can be calculated based on objective evidence, pain and suffering damages
are more intangible and subjective. While considering the fact that no amount of
compensation can alleviate the mental trauma and agony caused to the injured and
loss to the future enjoyment of amenities of life, but societal balance could be
maintained if he could be awarded some lumpsum amount on account of
permanent disability.
disability. Therefore, in the present case, appellant is held entitled for
compensation on account of permanent disability to the extent of 20% as well as
pain and sufferings suffered by him to the tune of Rs.1,00,000/
Rs.1,00,000/-.
Conclusion
[10]. In view of what has been discussed hereinabove, the
appellant/claimant
/claimant shall be entitled for the grant of compensation in the following
manner:-
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Sr.No. Nature Amount in
Rupees
1. Loss of Income and Loss of future Income Rs.1,25,280/-
(4,320+1,20,960)
2. Medical Expenses/Hospitalization Rs.50,000/-
3. Pain & Suffering and Disability Rs.1,00,000/-
4. Attendant charges, Special Diet and Future Rs.50,000/-
Medical Treatment
5. Transportation Rs.20,000/-
Total Compensation Rs.3,45,280/-
Amount Awarded by the Tribunal Rs.76,440/-
Enhanced Amount Rs.2,68,840/-
[11]. The grant of interest @ 7.5%
% per annum is not just in view of the facts
and circumstances of the present case and as per the observations made by the
Hon'ble Supreme Court in Smt. Supe Dei and others Vs. National Insurance
Company Limited and other, (2009) (4) SCC 513 approved in a subsequent
judgment titled as Puttamma and others Vs. K.L. Narayana Reddy and another,
2014 (1) RCR (Civil) 443 the interest is enhanced to 9% per annum on the amount
of compensation awarded to the claimant from the date of institution of claim
petition till its realization but excluding the period of delay in filing of the present
appeal. Needless to mention here that the amount of compens
compensation
ation already paid to
the claimant shall be deducted from the enhanced compensation.
[12]. In view of aforesaid modification, the present appeal stands disposed
of. Pending miscellaneous application(s) if any, shall also stand disposed of.
(HARKESH MANUJA)
October 22, 2024
202 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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