Punjab-Haryana High Court
Jagdish Kumar vs Arvind And Ors on 19 October, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:143064
FAO-1944-2007
2007 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO
FAO-1944-2007 (O&M)
Date of Decision : 19.10.2024
Jagdish Kumar ....Appellant
Versus
Arvind @ Ravinder and others ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr.Ajay Jain, Advocate
Mr
for the appellant.
Mr. Ravinder Arora, Advocate for the respondent
respondent-Ins. Co.
-.-
SUDEEPTI SHARMA,
SHARMA J.
1. The instant appeal has been preferred by the claimant/appellant for
enhancement of compensation awarded by the learned Motor Accident Claims
Tribunal, Hisar (for short, 'the Tribunal') vide award dated 01.03.2007 under
Section 166 of the Motor Vehicles Act, 1988,, whereby the claimant/appellant was
awarded compensation of Rs.1,09,000/-
Rs. along with interest @ 6% per annum.
FACTS NOT IN DISPUTE
2. Brief facts of the case are that on 23.11.2001, petitioner Jagdish
Kumar alongwith one Purshotam Dass was going for walk from his residence to
City Hansi. They were on foot. When they were on B.T. Road, a Tata
Tata-709
709 truck
bearing registration No.HR 38-C/2182
38 C/2182 came from the opposite side. The said truck
was being driven by the respondent No.1 in a rash and negligent manner and struck
against the petitioner from front side, as a result of which, the petitioner fell down
and received serious and grievous injuries on various parts of his body. His left leg
below
w knee joint was crushed by the said truck. After the accident, the injured was
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taken to General Hospital, Hansi by Purshotam Dass where first aid was given to
him. Since injuries of the petitioner were serious, therefore, he was referred to
Chawla Nursing Home, Hisar. The petitioner was got admitted in the Chawla
Nursing Home, Hisar for treatment and he was operated upon there. The petitioner
also took treatment from Dental Care Centre, Pushpa Complex, Hisar for fracture
of mandible. FIR No.617 dated 17.12.2001
17.12.2001 under Section 279 and 338 IPC was
registered about this accident at Police Station City Hansi. The petitioner claims to
have spent Rs.1,00,000/-
Rs.1,00,000/ on his treatment and pleaded that Rs.50,000/
Rs.50,000/- more are
required for further treatment and that due to the accident, he suffered pecuniary
loss, pain and agony, permanent disability, loss of earnings etc. The petitioner also
claimed that he used to earn Rs.8,000/-
Rs.8,000/ per month from his business. On these
premises, the petitioner sought sum of Rs.5,00,000/
Rs.5,00,000/- as compensation
pensation together with
interest @ 18% per annum and costs of the proceedings from the driver, owner and
insurer of the offending truck.
3. Upon notice of the claim petition, respondents appeared and denied
Upon
the factum of compensation.
4. From the pleading of the parties, the Tribunal framed the following
issues:-
"1. Whether Jagdish Kumar petitioner received injuries in an
accident which occurred on 23.11.2001 due to rash and
negligent driving of Tata-709
709 being registration No.HR 38-
C/2182 by Arvind Kumar Ravinder respondent No.1? OPP
2. Whether the issue No.1 is proved, the claimant is entitled to
claim compensation, if so to what amount and from whom?
OPP
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3. Whether this petition is filed by the petitioner in collusion
collusi
with respondent No.1 and 2 to claim compensation? OPR
OPR-3
4. Whether the vehicle was not driven by a person holding
valid and effective driving licence at the time of accident?
OPR-3
5. Whether the vehicle was driven in contravention of terms
and conditions of insurance policy? OPR
OPR-3
6. Relief ""
5. After taking into consideration the pleadings and the evidence on
record, the learned Tribunal awarded compensation of Rs.
Rs.1,09,000/- alongwith
interest @ 6% per annum.
annum Hence the claimant/appellant filed the present appeal for
enhancement of compensation awarded by the Tribunal.
SUBMISSIONS OF THE COUNSEL FOR THE PARTIES
6. The learned counsel
counsel for the claimant
claimant-appellant contends that the
amount assessed by the learned Tribunal is on the lower side.
He further contends that the appellant suffered permanent disability to
the extent of 30%
30 as result of post traumatic deformity of left ankle and the
disability certificate is produced on record as Ex.P
Ex.P-26.
He further contends that the learned Tribunal has granted only
Rs.39000/- for medical expenses which is also on the lower side.
He further contends that the Tribunal has awarded Rs.
Rs.10000/- for
transportation and special diet; Rs.10,000/- for pain and suffering and Rs.50,000/
000/-
for permanent disability, which is also on the lower side.
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7. Per contra, learned for the respondent
respondent-Insurance Company argues that
the learned Tribunal vide award dated 01.03.2007 has rightly assessed the amount
amou
of compensation.
8. I have heard learned counsel for the parties and perused the whole
record of this case.
case
9. A perusal of the award shows that the claimant was stated to be
businessman earning Rs.8000/- per month. However, no documentary evidence
was adduced by the claimant in this regard.. Therefore, tthe income of the claimant
is to be assessed as Rs.2050/-
Rs.2050/ per month in accordance with the minimum wages
prescribed for unskilled workers in the State of Haryana. Further thee amount
awarded by the Tribunal for transportation charge
charges,, special diet, pain and suffering
and permanent disability are on the lower side. Therefore, the award requires
interference of 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
343,, has
Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343
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
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
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equitable manner. The court or tribunal shall have to assess the
damages objectively
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 uused
sed 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)
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gain
gains)
s) 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.
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(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shorteni
(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
expectat
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.
(ii) The percentage of permanent disability with refe
reference
rence 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, whe
where
re 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
injured-claimant
claimant or who examined him
subsequently to assess the extent of hhis
is permanent disability can give
evidence only in regard the extent of permanent disability. The loss of
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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
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/-
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,
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, 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 ccould
ould 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
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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
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
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)].
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 under
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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 employed or fixed salary.
The relevant portion of the judgment is reproduced as under:
under:-
" Therefore, we think it se
seemly
emly 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 head
headss 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 amount that
we have quantified should be enhanced on percentage basis in
every three years and the enhancement should bbee 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:-
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" 7. There are three aspects which are required to be examined by us:
(a) the application of multiplier of '17' instead of '18'
'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 Ver
Verma
ma (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.
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
low 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
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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]
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
perman
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
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(v) subtrochanteric fracture
ture 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
while applying the multiplier method, future prospects on
advancement in life and
nd 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 appellantt 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
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view of the judicial pronouncements including in th
thee 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
resaid 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
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/-
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.
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RELIEF:
13. In view of the above, the present appeal is allowed and award dated
01.03.2007 is modified.
14. Accordingly, as per the settled principles of law as laid down by
Hon'ble Supreme Court as mentioned above,
above, the appellant - claimant is held
entitled to the enhanced compensation amount as calculated below
below:
Sr. Heads Compensation Awarded
No.
1 Income Rs.
Rs.2050/-
2 Future Prospects 25% Rs.
Rs.512/- (25% of 2050)
3 Annual Income Rs.
Rs.30744/- (2050+512 x 12)
4 Loss of future earning per Rs.
Rs.9223/- (30744/-x 30%)
annum @ 30%
5 Multiplier (13) Rs.
Rs.1,19,899/- (9223 x 13)
5. Medical Rs.
Rs.39000/-
6 Attendant Charges Rs.
Rs.20,000/-
7 Transportation Rs.
Rs.15,000/-
8 Pain and Sufferings Rs.
Rs.30,000/-
9 Special diet Rs.
Rs.30,000/-
11 Loss of amenities of life Rs.
Rs.50,000/-
Total Compensation Rs.
Rs.3,03,899 /-
Amount Awarded by the Rs.
Rs.1,09,000/-
Tribunal
Enhanced amount Rs.
Rs.1,94,899/-
15. 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 appellant-claimant
claimant is granted the interest @ 9%
per annum on the enhanced amount from the
the date of filing of claim petition till the
date of its realization.
realization
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16. 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 today. The Tribunal is further directed to disburse the enhanced amount of
compensation along with interest in the account of the claimant/
claimant/appellant.. The
claimant/appellant
/appellant is directed to furnish his bank account details to the Tribunal.
Stayed amount by this Court, if any, shall
shall also be released to the appellant.
17. Pending applications, if any, also stand disposed of.
19.10.2024 (SUDEEPTI SHARMA)
A.Kaundal JUDGE
Whether speaking/non-speaking
speaking/non speaking : Speaking
Whether reportable : Yes/No
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