Punjab-Haryana High Court

Sumitra Devi vs Jairam @ Jag Parkash And Others on 14 January, 2025

Author: Alka Sarin

Bench: Alka Sarin

                                   Neutral Citation No:=2025:PHHC:004430




IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


106                                               FAO-2400-2012 (O&M)
                                                  Date of Decision : 14.01.2025


Sumitra Devi                                                        ....Appellant

                                       VERSUS

Jairam @ Jag Parkash and Others                                  ....Respondents


CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


Present :       Mr. Arvind Kumar Yadav, Advocate for the appellant.

                Mr. Harsh Aggarwal, Advocate for respondent No.3.

ALKA SARIN, J. (Oral)

1. Present appeal has been preferred by the claimant-appellant

aggrieved by the quantum of compensation awarded by the Motor Accident

Claims Tribunal, Rewari (hereinafter referred to as the 'Tribunal') vide

award dated 04.02.2012 on account of the injuries received by her in a motor

vehicular accident which took place on 18.11.2008, rendering her 100%

disabled.

2. Since the facts, as recorded in the impugned award passed by

the Tribunal, are not in dispute, the same are not being reproduced herein for

the sake of brevity.

3. The Tribunal in the present case had awarded the following

compensation :

     Sr. No.                  Heads                   Compensation Awarded
        1      Compensation on account of Rs.3,69,852/-
               expenses for getting medical
               treatment       which       includes
               hospitalization charges, expenses in
               purchasing medicines etc.



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2 Compensation on account of pain Rs.50,000/-

and suffering and future prospects 3 Compensation on account of special Rs.50,000/-

diet 4 Compensation on account of Rs.10,000/-

attendant 5 Compensation on account of Rs.50,000/-

transportation charges 6 Compensation on account of Rs.2,37,600/-

          disability to the extent of 100%
          Total Compensation                         Rs.7,67,452/-
          Interest                                   6% per annum

4. Learned counsel for the claimant-appellant would contend that

the compensation awarded by the Tribunal is on the lower side inasmuch as

the income of the claimant-appellant has been assessed as Rs.3600/- per

month as per the minimum wages whereas the claimant-appellant in the

present case was a student of B.Com. final year. Relying on the judgment of

this Court in FAO-1386-2013 [Palwinder Kaur & Ors. vs. Surinder

Singh & Ors.] decided on 15.03.2024, where the notional income of the

deceased, who was a student of 10+2, was assessed as Rs.10,000/- per

month for an accident which took place in 2006, learned counsel for the

claimant-appellant would contend that income of the claimant-appellant

ought to have been assessed @ atleast Rs.15,000/- per month. It is further

the contention that no amount has been awarded towards loss of future

prospects and the multiplier has also wrongly been applied. It has further

been contended that no amount has been awarded towards loss of amenities

of life and loss of marriage prospects and that the amounts awarded

under the heads pain and suffering, attendant charges, special diet and

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transportation charges are also on the lower side. Learned counsel for the

claimant-appellant has relied upon a judgment of the Hon'ble Supreme

Court in the case of Abhimanyu Partap Singh vs. Namita Sekhon & Anr.

[2022 (3) RCR (Civil) 557] to contend that the attendant charges ought to

have been granted for life keeping in view the fact that the claimant-

appellant herein is 100% disabled.

5. Per contra learned counsel for respondent No.3 has vehemently

contended that income of the claimant-appellant has rightly been assessed,

and that sufficient amount of compensation has already been awarded and

there is no scope of any further enhancement.

6. Heard.

7. In the present case, it has been duly proved by way of cogent

evidence by Dr. Ashok Saini, Medical Officer, General Hospital, Rewari

who stepped into the witness-box as PW-7 that the claimant-appellant herein

was 25 years of age at the time of accident and had suffered 100% disability

due to a head injury with altered sensorium with bowel and urine

incontinence. Ex.PW-7/A is her disability certificate. It has further come in

the cross-examination, on a suggestion put by the respondents, that the

disability is permanent and would not improve with the passage of time or

physiotherapy.

8. In case of Raj Kumar vs. Ajay Kumar [(2011) 1 SCC 343]

the Hon'ble Supreme Court had held as under :

"General principles relating to compensation in injury

cases :

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5. The provision of the Motor Vehicles Act, 1988 (`the

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 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 used to earn or could have earned. (See C. K.

Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970

Supreme Court 376, R.D. Hattangadi vs. Pest Control

(India) Ltd. (1995) 1 SCC 551 and Baker vs.

Willoughby, (1970 AC 467).

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6. The heads under which compensation is awarded

in personal injury cases are the following:

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation,

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).

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

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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."

Then again in the case of Jagdish vs. Mohan and Others [2018 (2) RCR

(Civil) 308] their Lordships of the Apex Court have held as under :

"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."

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In Sri Laxman @ Laxman Mourya v. Divisional Manager, Oriental

Insurance Co. Ltd. [2012(1) RCR (Civil) 509 : 2011 (12) SCALE 658]

this Court held:

"The ratio of the above noted judgments is that if the

victim of an accident suffers permanent or temporary

disability, then efforts should always be made to award

adequate compensation not only for the physical injury

and treatment, but also for the pain, suffering and

trauma caused due to accident, loss of earnings and

victim's inability to lead a normal life and enjoy

amenities, which he would have enjoyed but for the

disability caused due to the accident."

In K. Suresh v. New India Assurance Company Ltd.

2013(1) R.C.R.(Civil) 312 : (2012)12 SCC 274, this

Court adverted to the earlier judgments in Ramesh

Chandra v. Randhir Singh (1990) 3 SCC 723 and B.

Kothandapani v. Tamil Nadu State Transport

Corporation Limited 2011(3) R.C.R.(Civil) 206 : (2011)

6 SCC 420. The Court held that compensation can be

granted for disability as well as for loss of future

earnings for the first head relates to the impairment of a

person's capacity while the other relates to the sphere of

pain and suffering and loss of enjoyment of life by the

person himself.

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In Govind Yadav v. New India Insurance Company

Limited, 2011(4) R.C.R.(Civil) 817 : (2011) 10 SCC

683, this Court adverted to the earlier decisions in R.D.

Hattangadi v. Pest Control (India) (Pvt) Ltd. (1995) 1

SCC 551, Nizam's Institute of Medical Sciences v.

Prasanth S. Dhananka 2009(3) R.C.R.(Civil) 174 :

(2009) 6 SCC 1, Reshma Kumari v. Madam Mohan,

2009(3) R.C.R.(Civil) 908 : (2009) 13 SCC 422, Arvind

Kumar Mishra v. New India Assurance Company

Limited, 2010(4) R.C.R.(Civil) 917 : (2010) 10 SCC

254, and Raj Kumar v. Ajay Kumar, 2011(2)

R.C.R.(Civil) 101 : (2011) 1 SCC 343 and held thus:

"18. In our view, the principles laid down in

Arvind Kumar Mishra v. New India Assurance Co.

Ltd. and Raj Kumar v. Ajay Kumar must be

followed by all the Tribunals and the High Courts

in determining the quantum of compensation

payable to the victims of accident, who are

disabled either permanently or temporarily. If the

victim of the accident suffers permanent disability,

then efforts should always be made to award

adequate compensation not only for the physical

injury and treatment, but also for the loss of

earning and his inability to lead a normal life and

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enjoy amenities, which he would have enjoyed but

for the disability caused due to the accident." (Id at

page 693)"

These principles were reiterated in a judgment of this

Court in Subulaxmi v. MD Tamil Nadu State Transport

Corporation, 2012(4) R.C.R.(Civil) 945 : Civil Appeal

No. 7750 of 2012, decided on 1 November 2012

delivered by one of us, Justice Dipak Misra (as the

learned Chief Justice then was)."

9. The accident in the present case took place on 18.11.2008.

Hon'ble Supreme Court in the case of Bishnupriya Panda vs. Basanti

Manjari Mohanty [2023 ACJ 2393], where the accident took place on

27.07.2013, had assessed the notional income of a deceased student who was

in 4th year of MBBS, as Rs.50,000/-. In the case of Arjun Kumar Aggarwal

vs. New India Assurance Company Ltd. [Civil Appeal No.3644-3645 of

2023 decided on 12.05.2023], the notional income of the injured therein was

taken as Rs.29,166/- on the basis of an appointment letter. In the case of an

engineering student in case of Kandasami & Ors. vs. Lindabriyal & Anr.

[2023 ACJ 1653], where the accident took place on 28.09.2008, the notional

income was assessed as Rs.25,000/-. In view thereof, taking a conservative

estimate as the date of accident in the present case is 18.11.2008, the

notional income of the claimant-appellant is assessed as Rs.15,000/- per

month.

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10. Further, the Tribunal has not awarded any addition towards loss

of future prospects. Hon'ble the Supreme Court in the case of Pappu Deo

Yadav vs. Naresh Kumar & Ors. [2020 (4) RCR (Civil) 404] has held as

under :

"12. In view of the above decisive rulings of this court,

the High Court clearly erred in holding that

compensation for loss of future prospects could not be

awarded. In addition to loss of future earnings (based

on a determination of the income at the time of

accident), the appellant is also entitled to compensation

for loss of future prospects, @ 40% (following the

Pranay Sethi principle).

13. The factual narrative discloses that the appellant, a

20-year-old data entry operator (who had studied up to

12th standard) incurred permanent disability, i.e. loss of

his right hand (which was amputated). The disability

was assessed to be 89%. However, the tribunal and the

High Court re-assessed the disability to be only 45%, on

the assumption that the assessment for compensation

was to be on a different basis, as the injury entailed loss

of only one arm. This approach, in the opinion of this

court, is completely mechanical and entirely ignores

realities. Whilst it is true that assessment of injury of

one limb or to one part may not entail permanent injury

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to the whole body, the inquiry which the court has to

conduct is the resultant loss which the injury entails to

the earning or income generating capacity of the

claimant. Thus, loss of one leg to someone carrying on a

vocation such as driving or something that entails

walking or constant mobility, results in severe income

generating impairment or its extinguishment altogether.

Likewise, for one involved in a job like a carpenter or

hairdresser, or machinist, and an experienced one at

that, loss of an arm, (more so a functional arm) leads to

near extinction of income generation. If the age of the

victim is beyond 40, the scope of rehabilitation too

diminishes. These individual factors are of crucial

importance which are to be borne in mind while

determining the extent of permanent disablement, for the

purpose of assessment of loss of earning capacity."

11. In view of the principles as laid down by the Hon'ble Supreme

Court in the case of Pappu Deo Yadav (supra), 40% addition is to be made

towards loss of future prospects. The claimant-appellant in the present case

was 25 years of age at the time of accident and the Tribunal has wrongly

applied a multiplier of '11' and hence a multiplier of '18' would be

applicable.

12. The Tribunal has awarded an amount of Rs.10,000/- towards

attendant charges. The Supreme Court in the case of Abhimanyu Partap

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Singh (supra) had assessed the attendant charges for the injured who was

totally confined to the bed as Rs.5000/- per month for whole life, calculating

the compensation applying a multiplier of '18'. In the present case, the

appellant is 100% disabled and requires an attendant 24x7. The minimum

wages of an unskilled worker at the time of the accident i.e in the year 2008

were Rs.3,600/- per month and hence the claimant-appellant, who is totally

confined to bed, would be entitled to an amount of Rs.7,77,600/- [Rs.3,600x

12x18 (multiplier)] towards attendant charges.

13. Further, the amount of Rs.50,000/- awarded under the head pain

and suffering is enhanced to Rs.10,00,000/-. The amount of Rs.50,000/-

awarded towards special diet is enhanced to Rs.2,00,000/-. The amount of

Rs.50,000/- awarded under the head transportation is enhanced to

Rs.1,50,000/-. The Tribunal has not awarded any amount towards loss of

amenities of life and loss of marriage prospects. This Court deems it

appropriate to award an amount of Rs.2,00,000/- towards loss of amenities

of life and Rs.5,00,000/- towards loss of marriage prospects. The Tribunal

has not awarded any amount towards future medical expenses. Keeping in

view the condition and the disability of the claimant-appellant, she would

require medical treatment for the rest of her life and therefore this Court

deems it appropriate to award an amount of Rs.10,00,000/- towards future

medical expenses. The amount of Rs.3,69,852/- awarded by the Tribunal

towards medical expenses is maintained. Accordingly, the reworked

compensation is as under :

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Sr. Heads Compensation Awarded No. 1 Monthly income Rs.15,000/-

2 Annual Income [Rs.15,000 x 12] = Rs.1,80,000/- 3 Future prospects @ 40% [Rs.1,80,000+72,000/-] = Rs.2,52,000/- 4 Loss of income after [Rs.2,52,000 x 18] = Rs.45,36,000/-

applying multiplier '18' 5 Pain and suffering Rs.10,00,000/-

6 Special Diet Rs.2,00,000/-

7 Transportation charges Rs.1,50,000/- 8 Loss of Amenities of life Rs.2,00,000/- 9 Loss of marriage prospects Rs.5,00,000/- 10 Future medical expenses Rs.10,00,000/- 11 Attendant Charges [Rs.3,600 x 12 x 18] = Rs.7,77,600/- 12 Medical Bills Rs.3,69,852/-

Total Compensation Rs.87,33,452/-

14. So far as the interest on the enhanced amount of compensation is concerned, it stands clarified that this Court has to modify the impugned award under all the heads as awarded by the Tribunal and thus, the amount as enhanced, shall carry interest @ 6% per annum from the date of filing of the present appeal. The interest awarded by the Tribunal vide the impugned award shall remain the same till filing of the present appeal so far as the compensation awarded by the Tribunal vide the impugned award is concerned.

15. In view of the above discussion, the present appeal is allowed and the impugned award passed by the Tribunal stands modified accordingly. Pending applications, if any, also stand disposed off.