Punjab-Haryana High Court

Manju Pandey & Anr vs Sanjeev Kumar & Ors on 1 April, 2025

Author: Archana Puri

Bench: Archana Puri

                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                CHANDIGARH


                                                             (i)            FAO-5554-2011 (O&M)

                           Manju Pandey and another
                                                                                         ...Appellants

                                                        VERSUS

                           Sanjeev Kumar and others
                                                                                       ...Respondents

                                                             (ii)           FAO-5555-2011 (O&M)

                           Roshan Pandey
                                                                                          ...Appellant

                                                        VERSUS

                           Sanjeev Kumar and others
                                                                                       ...Respondents

                                                             (iii)          FAO-5556-2011 (O&M)

                           Danish
                                                                                          ...Appellant

                                                        VERSUS

                           Sanjeev Kumar and others
                                                                                       ...Respondents


                                                                     Date of Decision: April 01, 2025


                           CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI

                           Present:   Mr.Shakti Mehta, Advocate
                                      for the appellants.

                                      Mr.Neeraj Khanna, Advocate
                                      for respondent No.3.

                                            ****

                           ARCHANA PURI, J.

These are three appeals, filed to assail the common Award

FAO-5554-2011 and connected cases -2-

dated 11.02.2011 passed by learned Motor Accident Claims Tribunal,

whereby, three separate claim petitions, arising from the same accident, were

decided, which resulted into death of Rohit Pandey, injuries sustained by

Danish as well as damage caused to the ill-fated motorcycle bearing

registration No.HR-03H-1892.

On appraisal of the evidence brought on record, learned

Tribunal, on account of death of Rohit Pandey had taken the earnings of the

deceased, as per minimum wages prevalent at that time as Rs.3500/- per

month. Since, the deceased was unmarried, the earnings were scaled down

to 50% and it was taken as Rs.1800/- per month, annual whereof, was taken

as Rs.21,600/-. However, considering the age of the claimants/parents of the

deceased, multiplier of '13' was applied and the compensation was worked

upon as Rs.2,80,800/-. Besides the same, another amount of Rs.2000/- was

granted on the count of 'funeral expenses'. In total, the compensation was

worked upon as Rs.2,82,800/-.

Even, Roshan Pandey, brother of deceased Rohit Pandey had

filed separate claim petition, for seeking compensation, in respect of damage

caused to the motorcycle bearing registration No.HR-03H-1892, which was

being occupied by his brother Rohit Pandey and Danish, at the relevant time.

Besides himself stepping into witness box, claimant Roshan Pandey has also

examined Rampal Mishra, Works Manager, Ekam Auto Point (P) Ltd. As

PW-4, who had proved the estimate of cost involved for the repair of the

damaged motorcycle, which is Ex.P5.

However, considering the provisions of Section 147 of the Motor

Vehicles Act and also considering the restricted limit of compensation, so

FAO-5554-2011 and connected cases -3-

far as, third party property damage is concerned, learned Tribunal held

Roshan Pandey to be entitled to Rs.6000/- as compensation.

Qua injuries sustained by Danish, claimant himself stepped into

witness box as PW-1 and has deposed about sustaining fracture FA(R),

fracture right hand, left hip joint. He further deposed that thumb of his right

leg was amputated and also suffered injury on left clavicle bone, one teeth of

upper jaw uprooted and lower jaw was displaced. Considering the period of

his hospitalization from 18.05.2008 to 06.06.2008 and also taking the

earnings of the claimant to Rs.3500/- per month, the compensation, on the

count of pain and suffering was granted to the extent of Rs.25,000/-. As per

the recitals of disability certificate Ex.P3, wherein, it is stated about the

disability to be to the extent of 35%, qua upper and lower limb and taking it

to be Rs.2000/- for every 1% disability, an amount of Rs.70,000/- was

granted, on the count of disability.

Besides the same, another amount of Rs.2000/- on each count of

special diet and transportation was granted. Thus, the total compensation

worked upon as herein given:-

1. Pain and suffering undergone by the claimant Rs.25,000/-

2. Expenses incurred on special diet Rs.2,000/-

3. Expenses incurred on transportation Rs.2,000/-

4. Disability to the extent of 35% Rs.70,000/-

                                                                                  Total          Rs.99,000/-


                                        Respondents     were      held   liable   to      pay   the   aforesaid

                           compensation.

Dissatisfied with the adequacy of the compensation awarded,

the appellants-claimants filed the respective appeals.

FAO-5554-2011 relates to the death of Rohit Pandey. FAO-

FAO-5554-2011 and connected cases -4-

5555-2011 relates to damage caused to the motorcycle bearing registration

No.HR-03H-1892 and FAO-5556-2011 relates to the injuries sustained by

Danish, in the accident in question.

Be it noted that none of the respondents, upon whom, the liability to

pay the compensation was fastened, have filed any appeal to challenge the

Awards. It is only the claimants, who have filed the appeals for seeking

enhancement of the compensation.

At the very outset, it is submitted by learned counsel for the

appellants that learned Tribunal had not appraised the evidence in correct

perspective. In fact, the earnings of deceased Rohit Pandey as well as of

Danish, have been taken at the lowest level of minimum wages, as existing

at that time. However, the evidence, with regard to their doing job, as such,

has been overlooked. Even, it is submitted that so far as Rohit Pandey is

concerned, the multiplier applied, has also been taken on lower side. Thus,

the consequential 'work on' of the compensation is too meagre. Even, under

the conventional heads also, the amount granted, do call for enhancement.

Likewise, it is submitted that the compensation awarded qua the

damage caused to the motorcycle in the accident in question, is not worked

upon in correct manner. In fact, the liability ought to be to the extent of

Rs.7,50,000/-, qua which the insurance cover was obtained by the

respondent, but however, wrong interpretation has been made to the

provisions of Section 147 of the Motor Vehicles Act and thus, learned

Tribunal had erroneously restricted the amount of compensation, only to the

extent of Rs.6,000/-.

Further, also it is submitted that injuries sustained by Danish, in the

FAO-5554-2011 and connected cases -5-

accident in question, as such, has also not been appraised in the appropriate

manner. In fact, the period of his hospitalization and extent of injuries, has

been appraised in a mechanical manner. Various counts have been given

amiss, while granting compensation. As such, learned counsel for the

appellants-claimants, made a prayer for enhancement of compensation, in all

the three appeals.

Considering the 'work on' of the compensation aforesaid, now

let us consider each case, individually. Firstly, coming to FAO-5554-2011,

which relates to death of Rohit Pandey. Vijay Krishna, father of Rohit

Pandey, has stepped into witness box as PW-2. In his affidavit Ex.PB,

besides deposing about his relationship with Rohit Pandey as well as factum

and manner of accident, has also further proved post-mortem report. Also,

he deposed about his son to be unmarried and 20 years old and stated about

him to be working in Airtel, Sector-26, Chandigarh and getting salary of

Rs.5,000/- per month. Besides the same, deceased was also indulging in part

time accounts work of Surender Pal Kaur, LIC Agent and was earning

Rs.4,000/- per month. Thus, Vijay Krishna deposed about the earnings of

deceased to be Rs.9000/- per month.

The said testimony has been very correctly appraised by learned

Tribunal. Sh.Inderjit Sharma, Manager of Human Resource, Dr.I.T. Planets

has been examined as PW-3, who deposed about Rohit Pandey to be

working with them and that he was earning Rs.11,000/- per month. He stated

that the salary certificate is already on record as Ex.P4. Besides the same,

PW-6 Smt.Surender Pal Kaur has also been examined, who deposed about

herself to be LIC agent, since 1987 and is regular income tax payee. She

FAO-5554-2011 and connected cases -6-

also deposed about Rohit Pandey to be working in her office on every

Sunday and on alternate days, in the late evening hours. She used to pay

Rs.4,000/- per month to him. She has also issued salary certificate dated

05.08.2009. However, she had not brought any proof, with regard to her

being LIC agent.

So far as, the age of the deceased is concerned, the same stands

amply established from the matriculation certificate, which is Ex.P16 and

the same contains the recital of date of birth as 17.07.1988. Thus, it stands

established that at the time of accident, deceased Rohit Pandey was 20 years

old. So far as, his being employed with Airtel is concerned, learned

Tribunal has rightly concluded about no evidence, relating to the same,

coming on record. Even though, PW-3 Inderjit Sharma has been examined,

but however, he deposed about deceased to be working with Dr.I.T. Planets.

Nothing, as such, is coming on record, about any connectivity between

Dr.I.T. Planets and Airtel Telecom.

In the given circumstances, appropriately, learned Tribunal has not

placed reliance upon the salary certificate Ex.P4. PW-3 Inderjit Sharma,

Manager, Dr.I.T. Planets had not brought any record of the company, to

establish the connectivity of Dr.I.T. Planets with Airtel Telecom or of

himself being employee of Dr.I.T. Planets. Even, PW-6 Smt.Surender Pal

Kaur has not proved the salary certificate Ex.P9, which was simply tendered

into evidence by mother of the deceased. No person from the LIC office has

been examined, to establish about Surender Pal Kaur to be LIC agent. Her

income tax returns Ex.P7 and Ex.P8 have been proved in evidence, but the

same do no establish about employment of the deceased with Surender Pal

FAO-5554-2011 and connected cases -7-

Kaur, in any manner.

Considering the same and also taking into consideration the fact

of deceased having passed 12th class, not being established and taking into

consideration the matriculation examination certificate, learned Tribunal had

correctly taken the minimum wages, prevalent at that time. Even though, the

earnings have been taken as Rs.3500/- per month, at the relevant time, it was

rounded off as Rs.3600/- per month.

From the evidence adduced, it stands established that Rohit

Pandey was unmarried individual and therefore, loss of dependency has to

be scaled down to half of his earnings, which has been appropriately taken

by learned Tribunal as Rs.1800/- per month. Taking into consideration the

age of the deceased to be 20 years, addition of 40%, ought to be made, on

the count of 'future prospects', which comes to be Rs.720/-. After making

such addition, the earnings of the deceased, comes to be Rs.2,520/- per

month, annual whereof, comes to be Rs.30,240/-.

Further, while making assessment of the compensation for the

claimants, learned Tribunal, had considered the age of the claimants i.e.

parents of deceased, which as per the prevalent law, calls for correction. As

per National Insurance Company Limited vs. Pranay Sethi and others,

2017(4) RCR (Civil) 1009, it is the age of the deceased, which ought to be

taken into consideration, for application of the appropriate multiplier. Thus,

considering the age of the deceased, the appropriate multiplier to be applied

is '18'. Thus, by applying the same, the loss of dependency comes to be

Rs.30,240x18=Rs.5,44,320/-.

Besides the aforesaid, on the count of 'loss of consortium',

FAO-5554-2011 and connected cases -8-

both the appellants-claimants, are entitled to prevalent amount of

Rs.48,400/- each i.e. Rs.48,400x2=Rs.96,800/- and they are also entitled to

compensation, on the counts of 'loss of estate' as well as 'funeral

expenses', which is Rs.18,150/-, on each count.

Considering the same, the compensation payable to appellants-

claimants, on account of death of Rohit Pandey, is re-computed, as herein

given:-

                                        Loss of dependency               :      Rs.5,44,320/-
                                        Loss of consortium               :      Rs.96,800/-
                                        Loss of estate                   :      Rs.18,150/-
                                        Funeral expenses                 :      Rs.18,150/-

                                        Total                            :      Rs.6,77,420/-

As such, the enhanced compensation, after the deduction of

compensation awarded by the Tribunal comes to be Rs.6,77,420-

2,82,800=Rs.3,94,620/-. On the enhanced amount of the compensation i.e.

Rs.3,94,620/-, the appellants-claimants shall be entitled to the interest, at the

rate of 6% per annum, from the date of filing of the present appeal, till

realization of the enhanced amount of compensation.

Accordingly, the impugned Award dated 11.02.2011 relating to

claim petition qua death of Rohit Pandey, stands modified, to the extent, as

indicated aforesaid. The residue terms of the Award, as ordered by learned

Tribunal, shall remain the same. With the above observations, FAO-5554-

2011 stands allowed.

Now, coming to FAO-5555-2011, which relates to

compensation awarded qua damage caused to motorcycle bearing

FAO-5554-2011 and connected cases -9-

registration No.HR-03H-1892. The claim petition was filed by Roshan

Pandey. He sought compensation qua damage caused to the ill-fated

motorcycle, of which, his deceased brother Rohit Pandey as well as his

friend Danish were the occupants, at the relevant time of the accident.

Claimant-Roshan Pandey himself stepped into witness box as PW-5 and he

has deposed about the damage caused to his motorcycle and also deposed

about estimate of Rs.70,000/-, having obtained by him for the repair of the

said motorcycle form M/s Ekam Auto Pvt. Ltd., as Ex.P5. Also further, the

claimant examined Rampal Mishra, Works Manager, Ekam Auto Pvt. Ltd.,

Panchkula as PW-4, who proved the estimate Ex.P5 but, he was not the

professional mechanic.

However, the ill-fated motorcycle was not insured and thus, while

considering the provisions of Section 147 of the Motor Vehicles Act, so far

as, damage to the property of third party is concerned, taking into

consideration the restricted limit of compensation as Rs.6000/-, the amount,

on the count of third party damage, was granted as Rs.6000/-.

Even though, now it is submitted that this amount is too less

and calls for enhancement, but however, it is not so. Learned counsel for the

insurance company mainly contends that the insurance policy is a limited

policy and as per the policy condition, the claim for the third party property

damages is limited upto Rs.6000/- and therefore, in case of making it liable

to pay compensation, the insurance company is liable to indemnify the loss,

only upto Rs.6000/-. The insurance policy has been proved as Ex.R3.

Before making reference to the same, it is pertinent to mention that there is

nothing, as such, coming on record, about any contract between the insurer

FAO-5554-2011 and connected cases -10-

and insured of having wide indemnity cover. As per requirement of Motor

Vehicles Act, the statutory limit of third party property damage is Rs.6000/-.

However, there can be contract for having wide indemnity cover of

Rs.7,50,000/-. For this, the additional premium of Rs.100/- is to be charged

for changing TPPD cover to Rs.7,50,000/-. In this regard, it is important to

make reference to the recitals of insurance policy of the offending vehicle,

copy whereof is proved as Ex.R3. Perusal of the same reveals that there is

third party property damage as per IMT 20 and the limit of liability under

Section II-I(ii) is Rs.7,50,000/-. However, perusal of various recitals of this

insurance policy reveals that only basic premium of Rs.2500/- was paid.

Besides the same, for the legal liability to the driver, Rs.25/- was paid and

for PA Owner-Driver, another Rs.100/- was paid. The total premium paid

was Rs.2625/-. No premium as such was paid for having wide indemnity

cover.

However, third party property damage having limited upto

Rs.6000/-, is to be taken into consideration and considering the same, the

insurance company has been appropriately made liable to indemnify the loss

only to the extent of Rs.6000/-. As such, there is no merit in the appeal filed

by Roshan Pandey and as such, FAO-5555-2011 stands dismissed.

Now, coming to FAO-5556-2011, relating to the compensation

awarded to Danish, on account of injuries sustained by him, in the accident

in question.

As observed in the earlier portion of the judgment, learned Tribunal

had granted compensation to the extent of Rs.99,000/-, on account of

injuries sustained by Danish, in the accident in question. To substantiate the

FAO-5554-2011 and connected cases -11-

extent of injuries, claimant-Danish himself stepped into witness box as PW-

1 and his sworn testimony, in the form of affidavit is Ex.PB, wherein,

besides deposing about the manner of taking place of the accident, has

further deposed about the injuries sustained in the accident in question. He

has categorically stated that he remained admitted in PGI from 18.05.2008 to

06.06.2008 and he was diagnosed to be a case of fracture FA(R) fracture

acetabulam (R), fracture right hand, fracture left hip joint and thumb of his

right leg was amputated. He further suffered injuries on left clavicle bone,

one teeth of upper jaw was uprooted and lower jaw was displaced.

He further deposed in his affidavit that he was operated twice. Firstly,

during his first stay in PGI from 18.05.2008 to 06.06.2008. After his

discharge, he had been continuously going for the follow-up treatment. He

also deposed that he could not recover from the injuries and was again

admitted in hospital on 31.03.2010. He was advised surgery and the cost of

the same was amounting to Rs.1,25,000/- and the estimate in this regard was

also given by PGI. He was 25 years old at the time of accident and was

unmarried.

Besides the same, Danish also tendered into evidence photocopies of

follow-up treatment, cards of PGI Ex.P1 and Ex.P2, copy of estimate Mark

'A', copy of leave record Mark 'B' and original disability certificate Ex.P3.

Even, father of injured-Danish has also been examined and his affidavit is

Ex.PA, wherein, he has also reiterated about the detail of injuries sustained

by Danish and further also deposed that his son was operated on 04.06.2008.

Iron rods and plates were inserted in the hip joint and one iron plate was

inserted in the right hand and thumb of right leg was amputated partially.

FAO-5554-2011 and connected cases -12-

The disability certificate is Ex.P3. As per the same, the claimant had

suffered disability to the extent of 35%, qua upper and lower limb.

Taking into consideration the aforesaid evidence, the 'work on'

of the compensation, as done by learned Tribunal, do call for re-

determination.

Before proceeding further, it is appropriate to make beneficial

reference to decision rendered in Smt.Sarla Verma vs. Delhi Transport

Corporation and anr., 2009(3) RCR (Civil) 77, wherein, the Hon'ble

Supreme Court held that the 'just' compensation is adequate compensation

and the Award must be just that-'no less and no more'. Time and again, it

has been reiterated by the Courts that always a genuine attempt to be made

to restore the self-dignity of the claimant, who had sustained severe injuries,

on account of taking place of the accident and the compensation awarded

should be 'just compensation'.

Reference is also made to Raj Kumar Vs. Ajay Kumar and Anr.,

2011 (1) SCC 343, wherein, the Hon'ble Supreme Court, had lucidly set out

the principles for grant of compensation, in case of permanent physical

functional disability as follows:-

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be

FAO-5554-2011 and connected cases -13-

different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co.Ltd.)

xxxx xxxx xxxx

13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession

FAO-5554-2011 and connected cases -14-

and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

As to how the compensation, in case where permanent disability

of the injured affects his functional disability, is to be assessed, has been

considered by the Courts, time and again. It has been held by the Courts that

the impact of the disability, upon the earning capacity, has to be taken into

consideration.

It is pertinent to mention that in the case in hand, even though, it was

asserted about claimant to be working in Dr.I.T. Planets and was getting

Rs.5,000/- per month, but however, the same was rightly not considered by

learned Tribunal. But anyhow, considering the age of the claimant,

definitely, his earnings, in the minimum, to be taken as that of unskilled

worker and taking it to be so, at the prevalent time, his earnings can be taken

as Rs.3600/- per month. In this backdrop, it has to be taken into

consideration that as per the disability certificate, he was found to be case of

various fractures, as a result whereof, he is unable to squat and sit cross

legged and the disability was assessed to be 35%. The condition was stated

to be not likely to improve and hence, it was permanent disability.

The age of claimant-Danish is of utmost importance. There are

FAO-5554-2011 and connected cases -15-

always chances of growth of a person, considering the young age, at which,

he suffered the injuries. The claimant was young person of 24-25 years, at

the relevant time and on account of injuries sustained, which have been

detailed in the disability certificate, there was inability on his part to squat or

sit cross-legged and there was also deformity in the right arm. Definitely, on

account of this disability, which was permanent in nature, his avenues of

further growth, must have become very restricted.

Considering the same, the disability, which is upper and lower

limb, as assessed to be 35%, is taken as 35% functional disability.

Considering the earnings of the claimant as Rs.3600/- per month, as

observed aforesaid and considering the age of the appellant-claimant to be

24-25 years, at the relevant time, addition of 40%, on the count of 'future

prospects' ought to be made and thus, the total earnings comes to be

Rs.3600+1440=Rs.5,040/- per month, annual whereof, comes to be

Rs.5,040x12=Rs.60,480/-.

Considering the age of appellant-claimant Danish, the

appropriate multiplier, to be applied is '18' and while considering the

disability to be 35%, the loss of earnings is assessed as

Rs.60,480x18x35/100=Rs.3,81,024/-.

Besides the same, appropriate amount of Rs.25,000/- has been

granted by learned Tribunal, on the count of 'pain and suffering'. However,

amount granted, on the counts of 'special diet' and 'transportation', do call

for enhancement and the same stands from Rs.2000/- on each count to

Rs.5000/-, on each count.

So far as, second admission in the hospital is concerned, there is

FAO-5554-2011 and connected cases -16-

no doctor examined and in the absence of doctor, definitely, second

admission, as such, does not stand established, but however, the fact remains

that once the iron plates have been inserted, as evident from the record of

first admission in the hospital, definitely, the claimant is ought to be in need

of future medical treatment and on this count, another amount of Rs.10,000/-

is granted.

On account of disability suffered by the claimant, his physical

body functioning has also become restricted, as he is unable to squat and

also could not sit cross-legged throughout his life, considering the same,

there is definitely, loss of amenities and on this count, another amount of

Rs.50,000/- is granted.

Taking into consideration the kind of injuries sustained by the

claimant, it is quite obvious, he must have been looked after, by his family

also, who would have taken care of him by diverting their time from the

gainful employment for some period of time and in the minimum, some time

thereafter, till he adept to skill of self-dependence. Thus, on the count of

'attendant charges', an amount of Rs.10,000/- is granted.

Thus, on various counts, as detailed aforesaid, the compensation

to be granted to appellant-claimant Danish, is re-computed, as herein given:-

1. Loss of earnings Rs.3,81,024/-

2. Pain and suffering Rs.25,000/-

3. Special diet Rs.5,000/-

4. Transportation charges Rs.5,000/-

5. Future Medical treatment Rs.10,000/-

6. Loss of amenities Rs.50,000/-

7. Attendant charges Rs.10,000/-

                                               Total                           Rs.4,86,024/-



                            FAO-5554-2011 and connected cases                                      -17-