Rajasthan High Court

New India Insurance Co Ltd vs Satya Prakash And Ors on 13 April, 2022

Bench: Birendra Kumar

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 1737/2008

New India Insurance Company Ltd., Branch Office: Jhunjhunu,
through its Regional Office at Nehru Place, Tonk Road, Jaipur
                                                      ----Defendant-Appellant
                                    Versus
1. Satya Prakash S/o Rajendra Prasad, resident of Haripura,
Police Station Malsisar, District Jhunjhunu (Rajasthan)
                                                     ----Claimant-Respondent

2. Raju Singh S/o Mahavir Prasad, resident of Ward No.1 Rajota Tehsil Kehtari District Jhunjhunu (Rajasthan)

----Jeep Driver-Respondent

3. Hari Ram S/o Mahavir Prasad, resident of Ward No.1 Rajota Tehsil Khetri District Jhunjhunu (Rajasthan)

----Power of Attorney holder of Jeep-Respondent

4. Laxmi Devi W/o Hari Ram Jangid, resident of Ward No.1 Rajota, Tehsil Khetri District Jhunjhunu (Rajasthan)

----Owner Jeep-Respondent

5. Vikram Singh S/o Ram Singh, resident of Tyonda, Tehsil Khetri District Jhunjhunu (Rajasthan)

----Owner Motor Cycle-Respondent

6. Bajaj Alliance General Insurance Co. Ltd., registered office G Plazma Airport Road, Yrwada, Pune-411006 (Maharashtra) Insurer of Motor Cycle

----Insurer Motor Cycle-Respondent

For Appellant(s) : Mr. S.R. Joshi with Mr. Ganesh Joshi For Respondent(s) : Mr. S.K. Singodiya

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment reserved on : 01/04/2022 Date of Pronouncement : 13/04/2022

1. The appellant-New India Insurance Company Ltd. is insurer

of the Jeep bearing registration No.RJ-21C-5056. The appellant

has challenged the award dated 04.03.2008 passed by the Motor

Accident Claims Tribunal, Khetri in Claim Case No.59/2006, by

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Additional District Judge, Khetri, whereby the learned Tribunal

awarded Rs.7,97,850/- in favour of the injured-Satya Prakash,

respondent No.1 herein along with 9% interest from the date of

application.

2. Undisputed facts of the case are that on 25.05.2006, Satya

Prakash was a pillion rider on the motorcycle being driven by Ajay

Kumar Bhargava (A.W.2). Case of the claimant is that as soon as

the motorcycle reached near Khetri Bus Stand, the rash and

negligent Jeep above mentioned dashed against the motorcycle

causing fracture of tibia and fibula on left leg. The injury resulted

in permanent disability. For the accident aforesaid, FIR

No.163/2006 was registered with Khetri Police Station. After

investigation of the case, police submitted charge-sheet against

the driver of above referred Jeep with the conclusion that the

accident was as a result of rash and negligent driving of the jeep

driver.

3. Two witnesses were produced by the claimant before the

Tribunal besides several documentary evidences. No evidence was

led by the defendants of the claim case. Appellant was one of the

defendants.

4. The motor accident as well as insurance of the Jeep with the

appellant is established by documentary evidence as exhibited on

the record as FIR, charge-sheet and policy of insurance.

5. Mr. S.R. Joshi with Mr. Ganesh Joshi, learned counsel for the

appellant challenges the award on the ground that due to injuries,

there was no loss of salary to the claimant as he was a

Government Employee and his disability did not lead him to leave

the job or being demoted to some other post. Further contention

is that the learned Tribunal has awarded compensation on

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assumption without any material to support the income of the

claimant.

6. Claimant-Satya Prakash A.W.1 has specifically stated that at

the time of accident, his monthly salary was Rs.12,341/-. The fact

was not controverted during cross-examination of this witness.

Ex.49 is the certificate issued by the Head Master of the school,

where claimant was a Teacher. The certificate shows that the

claimant was on medical leave for 74 days after the accident and

in July, 2006 his salary was Rs.12,662/-. Since the finding of the

Tribunal is based on evidence on record, it cannot be argued that

the learned Tribunal awarded compensation under the head "loss

of income" on mere assumption.

7. The learned Tribunal multiplied the monthly income of the

claimant taking round-figure of Rs.12,000/- per month with

multiplier of 12 months to get yearly loss of income and

thereafter, calculated 30% of the same as loss of income due to

permanent disability. Contention is that the learned Tribunal has

gone against the decision of the Hon'ble Supreme Court in the

case of Raj Kumar v. Ajay Kumar and anr. reported in (2011) 1

SCC 343, wherein the Hon'ble Supreme Court said that for

assessing the future loss of earning due to permanent disability,

the Tribunal/Court must be conscious that the criteria should not

be the extent of permanent disability found by the medical

reports, rather the assessment should be based on the basis of

inability to the injured, which prevented him from doing the same

vocation or from performing other vocations. The Medical Board of

three doctors found that due to compound fracture, 1/4 of the left

leg led to permanent disability of about 30%.

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8. The disability of a limb aforesaid did not affect the vocation

of the claimant as a Teacher in Government School. Therefore,

considering the settled principles referred above, the claimant was

not affected by the disability aforesaid, as regards loss of income

is concerned, however, the claimant has deposed that due to

disability aforesaid, he feels incapacitated in normal walk, he

cannot lift weights, after his retirement he was to pursue his

agricultural activity but now he cannot do it. The disability has led

him to lead a life of mental and physical pains and agony. He has

been incapacitated to perform his social and family responsibility.

He has to undergo further surgery for removal of the implants put

by the doctors in the first surgery.

9. Learned counsel for the appellant has relied on the judgment

of Hon'ble Supreme Court in the case of Rajesh Kumar v.

Yudhvir Singh and anr. reported in (2008) ACJ 2131 for his

submission that disability certificate was granted by the team of

doctors which had no occasion to examine the injured at initial

stage.

10. In Rajesh Kumar's case (supra), civil surgeon had issued

the certificate and it was not established that civil surgeon was

competent to issue the same. In the present case, the medical

board of doctors had issued the certificate and the certificate was

issued on 13.11.2006 after examining the injured and the finding

is based on objective observations.

11. On these issues, the witness has not been confronted in the

cross-examination rather the cross-examination is confined to the

extent that there was no reason for getting no treatment in the

Government Hospital rather preferring private hospital and further

that a government servant is entitled for reimbursement of the

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medical expenses. This cannot be a ground to not award "just

compensation" because a victim of motor accident injury always

prefers better treatment of his choice and satisfaction.

12. Learned counsel for the appellant next contends that the

site-plan of the accident would show that the accident took place

at the mid of the road, hence contributory negligence of the

motorcycle rider cannot be ruled out. The learned Tribunal has

wrongly not apportioned for the contributory negligence of the

motorcycle.

13. The evidence of A.W.2-Ajay Kumar Bhargava, who was eye-

witness of the accident is unrebutted and uncontroverted that the

accident took place when the rash Jeep came to the side of

motorcycle, which was moving at a mild speed. Unless there is

evidence to disbelieve the eye-witness, only on the basis of site-

plan, his testimony cannot be ignored. The site-plan is prepared

after the accident and position of the vehicles involved in the

accident does not remain the same, which was at the time of

accident because accident itself throws the vehicle against the

force used, therefore, this was not a case of contributory

negligence.

14. The cases relied upon by learned counsel for the appellant

i.e. Bhajan Singh v. Jarnail Singh and ors. reported in (2014)

ACJ 2370 (Uttarakhand High Court), Oriental Insurance Co.

Ltd. v. Narinder Kaur and ors. (2002) ACJ 1116 (Punjab and

Haryana High Court), Om Wati (since deceased) through L.Rs

v. Mohd. Din and ors. reported in (2002) ACJ 868 (Delhi High

Court) and Ganesh v. Syed Munned Ahamed and ors. (2000)

ACJ 1463 (Karnataka High Court), were decided on different facts

and circumstances of the case and the evidences as available on

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record. In the present case, there is nothing to disbelieve the

testimony of eye-witness, who is specific that the accident was a

result of rash and negligent driving of the Jeep driver only.

15. In the case of Raj Kumar (supra), the Hon'ble Supreme

Court in para Nos. 6 & 7 stated as follows :-

"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).

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 expectation of life.

7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding

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need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv),

(v) and (vi) --involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)

(a). We are concerned with that assessment in this case."

16. Considering the aforesaid guidelines and assuming that this

was not a case of permanent disablement leading to permanent

loss of income of the claimant, the claimant would be entitled for

compensation under following heads :-

(i) Loss of salary for 75 days equals to -

Rs.12,662x75 days = Rs.37,924/-.

(ii) Expenses related to treatment, hospitalization, medicines, transportation, nourishing food and misc. expenditure :- The claimant got treatment at Raj Hospitals and Fracture Clinic. He had undergone surgery, metals were implanted to join the fractured bone and the medical prescription shows that the hospital had charged Rs.27,470/- and the injured had purchased medicines from outside of Rs.13,577/-. Total expenses were Rs.41,047/- for medical treatment, hospitalization and medicines. The Tribunal has awarded Rs.1,000/- for conveyance, that should be Rs.10,000/- considering the nature of injury sustained by the claimant and difficulty in carrying him in any public conveyance. For nourishment, the Tribunal has awarded Rs.3,000/-. The Tribunal has not awarded anything for services of the

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helper during treatment. The aforesaid amount must be Rs.60,000/- for three months. This head further needs an addition of Rs.64,000/-.

17. Under head, future medical expenses, the Tribunal has

awarded Rs.1,00,000/- which is not excessive one because the

appellant would have to undergo further surgery for removal of

implants. For the injury and disability aforesaid and the damages

under the head, pains, suffering and trauma as a consequence of

the injuries, it cannot be less than Rs.1,50,000/-. Besides the

aforesaid, the claimant would be entitled under the head for loss

of expectation of life (including loss of prospects of marriage and

other amenities), it cannot be less than Rs.2,00,000/-. He will

further be entitled for compensation under the head inability to