Punjab-Haryana High Court
Pooja And Ors vs Jaipal Ors on 6 September, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:127613
1
FAO-2803-2006 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
201 FAO-2803-2006 (O&M)
Date of Decision: September 06, 2024
Miss Puja and others ......Appellants
Vs.
Jaipal and others ......Respondents
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Maneet Kaushik , Advocate
for Ashit Malik Advocate for the appellants.
Mr. Pardeep Goyal, Advocate and Ms.Simran Advocate
for respondent No.2-Ins. Co.
----
SUDEEPTI SHARMA J. (ORAL)
1. The present appeal has been preferred against the award dated
19.04.2006 passed by the learned Motor Accident Claims Tribunal, Kaithal (for
short, 'the Tribunal') vide which the claim petition filed by the claimants-appellants
under Section 166 of the Motor Vehicles Act, 1988 on account of death of Barma
Ram in road accident, was dismissed.
FACTS NOT IN DISPUTE
2. The brief facts of the case are that on 19.07.1998 at about 9.30 p.m.
deceased Barma Ram was taking his Rehri to the house from Hansi Road to Shiv
Colony, Karnal and when he reached near railway over bridge, in the meantime, a
truck bearing registration No. HR-45-2170 came from behind and struck against
the Rehri of the deceased and due to this impact, the deceased sustained multiple,
serious and grievous injuries on various parts of his body and succumbed to the
injuries in PGI, Chandigarh.
1 of 25
Neutral Citation No:=2024:PHHC:127613
the factum of accident/compensation.
4. From the pleadings of the parties, the Tribunal framed the following
issues:-
1. Whether the accident resulting into the death of Barma
Ram alias Braham Parkash took with truck No. HR-45-2170 as
alleged? OPP
2. If issue No.1 is proved, whether the claimants are entitled
to compensation and if so to what amount and from whom?
OPP
3. Whether the alleged vehicle was being driven in
contravention of terms and conditions of the insurance policy?
OPR-2
4. Relief.
5. After taking into consideration the pleadings and the evidence on
record, the learned Tribunal has dismissed the claim petition. Hence the
claimants/appellants filed the present appeal for grant of compensation.
SUBMISSIONS OF THE COUNSELS
6. The learned counsel for the claimants-appellants contends that the
owner of the offending vehicle admitted the fact of accident while stating that the
deceased died due to his own negligence and the Tribunal did not take this
statement into consideration. The Ld. Tribunal did not take into consideration the
medical record, wherein, it has been written "hit by a truck" against the column of
cause of injury. He further contends that PW-2 Mahipal is the eye-witness who
specifically stated that truck hit against the Rehri as a result of which the deceased
died. Driver of the offending vehicle was challan by the police and he did not
2 of 25
Neutral Citation No:=2024:PHHC:127613
award dated 19.04.2006 dismissing of the claim petition filed by the appellants be
set aside. He has relied upon the judgment passed by Hon'ble the Supreme Court
in case titled as "Anita Sharma and others Vs. The New India Assurance Co. Ltd.
And another" 2021(1)SCC(CRl.)475, wherein it was held that strict principles of
evidence and standards of proof like a criminal trial are inapplicable in MACT
claim cases. Standard of proof in such like matters is one of preponderance of
probabilities rather than beyond reasonable doubt. Further in case titled as "
Ashalata Suryakant Patil and others Vs. New India Assurance Company Ltd.
and another" 2023(2)TAC725, wherein it was held that initially the details of
vehicle was not mentioned in the FIR and it was during the course of the
investigation the vehicle had been identified and charge-sheet had been filed, it was
held that claimant had discharged their initial burden of proof.
7. Per contra, learned counsel for the respondent-Insurance Company,
however, vehemently argues on the lines of the Award and contends that there is no
infirmity in the award and the learned Tribunal has rightly dismissed the claim
petition.
8. I have heard learned counsel for the parties and perused the whole
record of this case.
9. The relevant portion of the Award is reproduced as under:-
"Issue no.1:
In order to prove rash and negligent driving on the part of
driver of the offending truck No.HR-45/2170, owned by respondent
no.1 himself and insured by respondent no.2, the claimants have
produced Mahipal as PW2, who has tendered his affidavit Ex.P2,
wherein, he has solemnly affirmed and declared that on 19.7.1998, he
3 of 25
Neutral Citation No:=2024:PHHC:127613
Over bridge, Kaithal road, Karnal at about 9 p.m., a truck bearing
registration no.HR-45/2170 came from Karnal side, which was being
driver by driver Rattan Singh allegedly in a rash and negligent
manner and without observing the traffic rules and struck against the
toy clay Rehri and scooter bearing no. DEH-6846, as a result of
which, the owner of the said Rehi received multiple injuries and the
occupants of the scooter also received injuries. He has deposed that
he and other persons immediately rushed to the place of occurrence
and found injured Brahm Parkash bleeding profusely and then he was
shifted to civil hospital Karnal and thereafter, he was referred to PGI
Chandigarh where he died on 20.7.1998.
To substantiate further, the claimants have produced the
certified copy of the final report under section 173 Cr.P.C. as Ex.P3,
medical rukka Ex.P4, photo copy of site plan mark-P5, copy of
application for post mortem examination mark-E.
8. However, on the other hand, the Insurance Company has
produced Sh. Vikas Chaudhary Advocate as RW1, who was appointed
as investigator by the insurance company respondent no.2.
Respondent no.2 has also produced copy of statements of Satpal as
mark-R2 and Mahipal as mark-R3.
9. From the testimony of Sh. Vikas Chaudhary, Advocate who
appeared as RW1, it emerged that he was appointed as investigator in
this case by the insurance company and during investigation, he found
that the truck in question has been involved after one month of the
alleged occurrence in collusion with respondent no.1 and in fact, no
4 of 25
Neutral Citation No:=2024:PHHC:127613
that during his investigation, he found that deceased Brahm Parkash
died due to struck against the scooter and later on the truck in
question has been involved in collusion with the police authorities. He
also found that all the three scooterists were under the influence of
liquor and scooterists and the deceased belonged to the same locality
and to avoid the responsibility of the scooterists, the truck in question
has been falsely involved, only to grab the false compensation from
the insurance company. He has testified his report as Ex.R1, which
bears his signatures. He has also deposed that during investigation,
claimant Sarni Devi met him at Shiv Colony, Karnal.
10. However, after going through the evidence and circumstances of
the case, it emerges that on 19.7.1998, deceased Braham Parkash, at
about 9 p.m. met with an accident near the Railway over-bridge
Kaithal Road, Karnal and the deceased was taken to civil hospital
Karnal, from where, he was referred to PGI Chandigarh, where he
succumbed to the accidental injuries.
From the report under section 173 Cr.P.C. Ex.R3, it emerges
that on 19.7.1998, the police of police station city Karnal received a
medical rukka regarding the admission of injured Braham Parkash in
the hospital, on the basis of which, Head Constable Prem Singh
alongwith other police officials reached the general hospital Kaithal,
but by that time, injured Brahm Parkash deceased had been referred
to PGI Chandigarh by the doctor, and no other relative of Braham
Parkash was available in the hospital. Therefore, on 20.7.1998, Head
Constable Prem Singh went in search of the relatives of deceased
5 of 25
Neutral Citation No:=2024:PHHC:127613
Petrol-pump, then he came to know that another injured person was
admitted in Navjiwan Hospital. Thereafter, the police party reached in
the said hospital and enquird from Sh. Naresh Kumar, who disclosed
that Raj Kumar alias Raju son of Rambir resident of Shiv Colony
Karnal was admitted in his hospital and he handed over the medical
rukka to the police and then after obtaining necessary permission from
the doctor, he recorded the statement of inured Raj Kumar alias Raju,
who reported that on 19.7.1998, he and his friends Satpal and Rakesh
Kumar were going on the scooter no.DEH 6846 at about 9 p.m to Shiv
Colony from Railway over bridge and when they reached in front of
Govt. Press, then a person Braham Parkash alongwith Toy-clay Rehri
was going and in the meantime, a truck came from behind and struck
against the said toy-clay Rehri, as a result of which, said Rehri turned
turtle and Braham Parkash became unconscious on account of
injuries suffered by him in the afore stated accident and thereafter,
their scooter struck against the said Rehi, which also turned turtle, as
a result of which, they also received injuries.He has also reported that
he was admitted to Navjiwan Hospital Karnal and Braham Parkash
was admitted in civil hospital, Karnal.
11. It is pertinent to mention here that in the report under section
173 Cr.P.C., Raj Kumar alias Raju has categorically stated that on
account of darkness, he could not note the registration number of the
offending truck. He has also reported that the driver of the offending
truck was also unknown. It is also pertinent to mention here that in the
report under section 173 Cr.P.C. Ex.P3, it has been mentioned that
6 of 25
Neutral Citation No:=2024:PHHC:127613
Jyoti Nagar Karnal reported to the police that the said accident had
taken place with truck no. HR45/2170, which was being driver by
Rattan Singh son of Ramdhari resident of village Kalehri and
thereafter, the final report under section 173 Cr. P.C. has been
forwarded by the police against Rattan Singh.
Therefore, after going through the circumstances of the case and
in view of the report under section 173 Cr.P.C., it is evident that
initially neither the registration number of the offending truck nor the
name of the driver, who was allegedly driving the offending truck in a
rash and negligent manner was disclosed to the police by Raj Kumar
alias Raju, who is author of the FIR.
12. However, during investigation of the case, the investigating
agency has recorded the statement of Satpal son of Dula Ram,
photocopy of the which has been placed on file as Ex.R2 by Insurance
Company in order to show that in fact, the accident had taken place
between scooterists, which was being driver by Braham Parkash
deceased. From the statement of Satpal M mark R2 under section 161
Cr.P.C., the entire version given by Raj Kumar alias Raju in the FIR is
similar, but said Sat[pal has gone to the extent in deposing that Raj
Kumar alias Raju and Satish Kumar and Rakesh Kumar were under
the influence of liquor and he had expressed that they had caused the
accident with Rehi of deceased Braham Parkash. Said Satpal is
closely related to Braham Parkash, who has taken in injured condition
in civil hospital Karnal. The insurance company has also produced
photo copy of statement of Mahipal as mark R3, who had also reached
7 of 25
Neutral Citation No:=2024:PHHC:127613
brother-in-law of deceased Braham Parkash. His statement under
section 161 Cr.P.C. is also on the same line as given by Satpal. He
also took injured Braham Parkash in the hospital and has also
deposed that scooterists were under the influence of liquor, but the
investigating agency after the expiry of approximately three weeks,
recorded the statement of Mohabat Singh son of Suhawa Singh
resident of Jyoti Nagar Karnal on 12.8.1998, who has disclosed the
number of the alleged offending truck was HR 45-2170 as well as
driver of the said alleged offending truck as Rattan Singh son of
Ramdhari, on the basis of which final report under section 173 Cr.P.C
was prepared by the investigating agency against Rattan Singh While
involving the truck no.HR-45/2170 as offending vehicle, but said
Mohabat Singh, who is the most important witness as he has disclosed
the registration number of the offending vehicle as well as name of the
driver, who was allegedly driving the said alleged offending vehicle,
has not been produced by the claimants to prove the involvement of
offending vehicle no. HR-45/2170, which was allegedly being driver
by Rattan Singh in a rash and negligent manner, so much so, said
Rattan Singh, who was allegedly driving the alleged offending vehicle
no.HR- 45/2170 has not been impleaded even as respondent, so as to
enable the Claim Tribunal to arrive at a conclusion as to whether the
alleged offending truck was being driver by alleged driver Rattan
Singh in a rash and negligent manner and there is no whisper in the
claim petition regarding the driving of truck no.HR 45-2170 by Rattan
Singh alleged driver, rather it has been pleaded that the claim petition
8 of 25
Neutral Citation No:=2024:PHHC:127613
question of negligence was not pleaded, but it seems that the same
plea has only been taken to avoid the implication of alleged driver
Rattan Singh and in order to avoid the onus to prove negligence on his
part.
It is pertinent to mention here that the claimants have claimed
the compensation to the tune of Rs.20,00,000/- as claimed in para
no.20 of the claim petition and Rs. 10,00,000/- as claimed in the relief
clause while assessing the monthly income of the deceased to the tune
of Rs. 10,000/- i.e. Rs. 1,20,000/- per annum and as such, in view of
the second schedule of Motor Vehicles Act, the claim petition more
than the income of Rs.40,000/- per annum and in view of the settled
provisions of law is not covered under section 163-A of the Act.
Despite this, report under section 173 Cr.P.C. Ex.P1 and recording of
FIR no.676 under section 279, 337, 304-A I.P.C. leads to an inference
that as per the version of the author of FIR Raj Kumar, there was the
question of negligence on the part of driver of the alleged offending
truck no.HR- 45/2170 and as such, in the present circumstances of the
case, it has to be held that the claim petition under section 163-A of
the Act is not maintainable, rather the claim petition is maintainable
under section 166 of the Act, in which, the question of negligence is
paramount consideration.
In the instant case, in order to prove rash and negligent driving
on the part of driver, whose name has not been mentioned in the claim
petition and he has not been sued as driver of the offending vehicle the
claimants have simply sued the owner of the alleged offending vehicle
9 of 25
Neutral Citation No:=2024:PHHC:127613
vehicle as respondent no.2 and in the affidavit Ex.P2 of Mahipal, it
has been solemnly affirmed and declared that the offending truck was
being driver by Rattan Singh in a rash and negligent manner without
observing the traffic rules, but said Mahipal son of Ram Niwas has
given his statement on 21.7.1998 under section 161 Cr.P.C., photo
copy of which is mark R-3 and in the said statement, which was
recorded by the investigating agency, just after two days of the
occurrence, there is no mention of registration number of the
offending vehicle or name of driver and it seems that thereafter, then
the truck no.HR-45/2170 has been procured by the claimants in
collusion with the police and final report under section 173 Cr.P.C.
has been forwarded involving the truck no.HR-45/2170 as offending
vehicle, then the claimants have procured the affidavit of Mahipal as
Ex.P2 involving rash and negligent driving on the part of Rattan
Singh, who was allegedly driving the said offending truck and said
Mahipal is brother in-law of deceased Braham Parkash and as such,
in order to help the claimants, said Mahipal has given the affidavit
Ex.P2.
13. It is pertinent to mention here that as per prosecution version,
the number of the offending vehicle was disclosed by one Mohabat
Singh, but said Mohabat Singh has not been produced by the
claimants as a witness. Said Mohabat Singh was the vital witness,
because it is who, who has allegedly disclosed the registration number
of the offending vehicle as well as name of the alleged driver, who was
10 of 25
Neutral Citation No:=2024:PHHC:127613
non-production of vital witness goes against the claimants.
14. The argument on behalf of the claimants that in view of
Girdhari Lal versus Radhey Sham and ors. 1993 PLR-109, there is
prima-facie case against the driver of the offending vehicle and in
view Virat Sama versus Mohan Lal and others, 1994 (2) CCC-22 the
contents of FIR cannot be taken as gospel truth as the FIR has been
lodged in a haste, is of no help in the present circumstances of the
case. No doubt, recording of FIR against the driver of offending
vehicle is a prima-facie case, but the claim Tribunal has got its duty to
arrive at a right conclusion after appraising the evidence produced
before it and if the evidence does not inspire confidence, then lodging
of FIR itself is of no consequence. A duty has been castes, upon the
claimants to prove involvement of the alleged offending vehicle in the
accident and driving of the same by the driver in a rash and negligent
manner, but in the instant case, the claimants have failed to discharge
the onus which was heavy upon them in order to prove the involvement
of the alleged offending vehicle in the afore stated accident.
15. The authority National Insurance Co. Ltd. versus Roshni Devi
and others 2002 ACJ-1752 relied upon by the counsel for the
claimants is of no help in the present circumstances of the case,
because before getting the Award of compensation, the involvement of
the vehicle in the accident is a primary requirement, but in the instant
case, the claimants have failed to prove the involvement of the vehicle
no.HR-45/2170 in the afore stated accident. Similarly, the authority
National Insurance Company Versus Tula Ram and others, 2003 (2)
11 of 25
Neutral Citation No:=2024:PHHC:127613
(1) RCR-13. Oriental Insurance Co. Ltd., versus Chintharbhai
Sibabhai and another 2003 ACJ-839, Lalloo Ram Vs. Ram Babu
Kamariya and ors. 2005 ACJ-1755, and Manjit Kaur and others Vs.
State of Punjab and others, 1996 ACJ-859 are of no help as they are
not attracted in the present circumstances of the case.
16. On the contrary, in view of the testimony of RW1, Sh. Vikas
Chaudhary, who has submitted his report as Ex.R1, it emerges that the
afore stated truck no.HR-45/2170 was not involved in the afore stated
accident as even after two days, Satpal son of Dula Ram has not
disclosed the number of the offending vehicle in his statement under
secion 161 Cr.P.C. as mark-R2 and similarly Mahi Pal has not
disclosed the registration number of the offending vehicle in his
statement mark R-3 and Mohabat Singh, on whose statement the
registration number and driver of the offending vehicle has not been
produced by the claimants in the Court. So, it has to be held that
either the accident had taken place with the said scooterists Raj
Kumar or some unknown vehicle has caused the accident with Rehri
of deceased Braham Parkash and later on in collusion with the police
and in collusion with Mohabat Singh, who has not been produced in
the witness box and FIR has been lodged against Rattan Singh whose
name has not been mentioned in the claim petition by projecting truck
no.HR45-2170 as offending vehicle in collusion with respondent no. 1,
owner of the said truck. It is again pertinent to mention here that the
claim petition has been filed at Kaithal in order to avoid any
complication despite the fact that the accident took place within the
12 of 25
Neutral Citation No:=2024:PHHC:127613
widow of deceased Braham Parkash was residing at Shiv Colony,
Karnal as is evident from the testimony of RW1 Vikas Chaudhari.
17. Therefore, in view of the above discussion and evidence on
record, and in view of authorities Smt. Chand Kaur versus Mohinder
Singh, 2001 (2) RCR-417 and Vishav Bandhu versus Rajian and others
1996 ACJ-733, it has to be held that the claimants have miserably
failed to prove involvement of the vehicle no. HR45/2170 in the afore
stated accident as well as driving of alleged offending vehicle by
alleged driver in a rash and negligent manner. Therefore, since the
vehicle no.HR- 45/2170 is not involved in the afore stated accident
and as such, the responsibility of the afore stated accident cannot be
fastened upon the driver of vehicle no. HR 45/2170. Therefore, this
issue is herby decided against the claimants.
Issues no.2 & 3
18. As the vehicle no.HR45/2170 has not been found to have been
involved in the afore stated accident and as such, these issues have
become redundant and require no findings.
Relief:
In view of the above discussion and findings, the present claim
petition is hereby dismissed with costs."
10. A perusal of the record shows that the Ld. Tribunal failed to appreciate
the whole record and dismissed the claim petition on technical ground. The factum
of accident is admitted which is further supported by the medical record and the
statement of PW-2 who is the eye witness of occurrence. Further, the factum of
accident is proved in FIR. The para 8 and 9 of the reply on merits filed by
13 of 25
Neutral Citation No:=2024:PHHC:127613
own negligence and there is no fault on the part of the driver of the truck in
question which further proves the factum of accident.
11. The affidavit Ex.P2 is the statement of eye witness-Mahipal wherein
the whole incident of accident has been stated and which reads as under:-
" 1. That on 19.07.1998, the deponent along with Satpal,
Subhash etc. were present near Tea Stall of over Railway
Bridge, Kaithal Road, Karnal, at about 9 PM, a truck bearing
Regn. No. HR-45/2170 came from Karnal city side, which was
being driven by its driver i. e. Rattan Singh in a rash and
negligent manner without observing the traffic rules and hit
against one Rehri, which was loaded with clay Toys and scooter
bearing No. DEH-6846. Due to the impact of this accident, the
owner of said Rehri received multiple, serious injuries in this
accident
2. That the occupants of the abovesaid scooter also
received injuries in this accident. The deponent and other
persons immediately rushed to the place of accident and found
the injured Barma @ Braham Parkash s/o Gopal Dass, who
was bleeding profously. He was shifted to Civil Hospital, Karnal
but his condition was serious so he was referred to PGI,
Chandigarh where he died on 20/7/98,
3. That the accident occurred arising out of use of Truck
bearing Regn. No. HR-45/2170. "
12. The affidavit of Sarni @ Sarvani wife of late Sh. Barma @ Braham
Parkash shows that the deceased Barma @ Braham Parkash died in motor vehicle
accident. He was working as 'Raj Mistri' and used to manufacture clay toys and
was earning Rs.40,000/- per annum. It is further stated in the affidavit that a sum of
Rs.30,000/- was spent on his last rites. As per the medical record, the cause of
death is head injury.
14 of 25
Neutral Citation No:=2024:PHHC:127613
precedent, the award dated 19.04.2006 passed by Ld. Tribunal, Kaithal stands
vitiated by a complete absence of judicial application of mind.
14. Since Issue No.2 i.e. "If issue No.1 is proved, whether the claimants
are entitled to compensation and if so to what amount and from whom? OPP" was
not decided by the Ld. Tribunal, therefore, this Court decides as follows:-
i) A perusal of the record reveals that the deceased-Barma Ram @
Brahma Prakash was working as a 'Raj Mistri' and used to manufacture clay toys
and his income was asserted to be Rs.40,000/- per annum. However, under the
prevailing facts of the present case, his income is to be assessed as Rs. 1200/- per
month in accordance with the minimum wages prescribed for unskilled worker in
the State of Haryana.
SETTLED LAW ON COMPENSATION
15. 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, 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
15 of 25
Neutral Citation No:=2024:PHHC:127613
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)
(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).
16 of 25
Neutral Citation No:=2024:PHHC:127613
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.
(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
17 of 25
Neutral Citation No:=2024:PHHC:127613
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,
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/-.
18 of 25
Neutral Citation No:=2024:PHHC:127613
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
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)].
16. 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;
19 of 25
Neutral Citation No:=2024:PHHC:127613
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:-
" 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."
17. 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
20 of 25
Neutral Citation No:=2024:PHHC:127613
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.
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."
21 of 25
Neutral Citation No:=2024:PHHC:127613
FAO-2803-2006 (O&M)
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
while applying the multiplier method, future prospects on
22 of 25
Neutral Citation No:=2024:PHHC:127613
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:
Heads Awarded
Loss of earning power Rs. 9,81,978/-
(Rs.14,648 x 12 x 31.1/100
23 of 25
Neutral Citation No:=2024:PHHC:127613
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.
18. 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
19.04.2006 is hereby set aside. The appellants-claimants are entitled to
compensation as per the calculations made here-under:-
Sr. Heads Compensation Awarded
No.
1 Monthly Income Rs.1200/-
2 Future prospects @ 40% Rs.480/- (40% of Rs.1200/-)
3 Deduction towards personal Rs.420/- (1/4th of Rs. 1680./-)
expenditure
4. Total Income Rs.1260/-
5 Annual Dependency Rs.2,57,040/-
(1260 X 12 X 17 )
6 Loss of Estate Rs.18,000/-
7 Funeral Expenses Rs.18,000/-
8 Loss of Consortium Rs.2,40,000/-
Parental : Rs. 48,000/- x 2
Spousal : Rs. 48,000/-x 1
24 of 25
Neutral Citation No:=2024:PHHC:127613
19. 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 the claim petition, till the date of realization.
20. The Insurance Company is directed to deposit the awarded amount
alongwith interest with the Tribunal within a period of two months from the date of
receipt of copy of this judgment. The Tribunal is directed to disburse the same to
the appellants-claimants in their bank account. The appellant-claimant is directed
to furnish his bank account details to the Tribunal.
21. Pending applications, if any, also stand disposed of.
(SUDEEPTI SHARMA)
JUDGE
September 06, 2024
sonia arora
Whether speaking/non-speaking : Speaking
Whether reportable : Yes
25 of 25
