Rajasthan High Court

Hari Shankar Bansal vs Narayan Singh And Others on 18 February, 2022

Bench: Anoop Kumar Dhand

             HIGH COURT OF JUDICATURE FOR RAJASTHAN
                         BENCH AT JAIPUR

               S.B. Civil Miscellaneous Appeal No. 1496/2012

     Hari Shankar Bansal son of Sh. Ram Dayal Bansal, resident of
     near Manav Bharti School, Neemda Gate, Bharatpur (Raj.)
                                                             ----Claimant-Appellant
                                          Versus
     1. Narayan Singh son of Sh. Harendra Singh, resident of Simco
     Lever Colony, Bharatpur (Raj.)
     2. Sukhveer Singh son of Harendra Singh, resident of #69,
     Krishana Nagar, Bharatpur (Raj.)
     3. The National Insurance Company Ltd., Regional Office near
     Nidhi Bhawan, High Court Circle, Jaipur through its Regional
     Manager.
                                                 ----non-claimants-respondents

For Appellant(s) : Ms. Chelsi Gangwal and Mr. Aakarsh Gothwal for Mr. Virendra Agarwal For Respondent(s) : Mr. Rizwan Ahmed

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order

18/02/2022 Reportable

The present appeal under Section 173 of the Motor Vehicles

Act, 1988 has been preferred by the appellant against the

judgment and award dated 21.02.2012, passed by the Court of

Motor Accident Claims Tribunal (Additional District & Sessions

Judge, Fast Track No.1), Bharatpur (for short 'Tribunal') in Civil

Misc. (MAC) Case No.266/2004, whereby, the Tribunal has

awarded a sum of Rs. 5,22,950/- to the claimant-appellant.

Learned Tribunal after framing the issues, evaluating the

evidence available on record and hearing both the sides, decided

the claim petition of the claimant-appellant and awarded

compensation of Rs.5,22,950/- under various heads in favour of

the appellant-claimant.

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     Learned counsel for the appellant submitted that                               the

claimant has sustained 83.2 percent permanent disability and his

age was about 45 years on the date of the accident. Learned

counsel further submitted that the claimant-appellant remained

admitted in hospital for 152 days. Learned counsel further

submitted that the learned Tribunal has erred in determining the

disability of the claimant as 60% without any basis simply by

saying that the Doctor was not examined. Learned counsel further

argued that when disability certificate issued by the medical board

of three Doctors was available on the record, there was no need to

examine the doctor to prove the permanent disability certificate.

In support of his contentions, learned counsel placed reliance

on a judgment passed by this Court in Civil Misc. Appeal No.3537

of 2018 in "Pappu Saini Vs. Sumer Singh Gurjar & Ors." wherein

this Court has held that the Doctor is not required to be examined

to prove the permanent disability certificate when the certificate

has been issued by the medical board. Learned counsel further

submitted that admittedly the age of the claimant was 45 years,

hence, multiplier of 14 should have been applied, but without any

basis, the learned Tribunal has applied the multiplier of 13.

Learned counsel further submitted that the claimant was

having his own shop and also used to do the business of tours and

travelling and because of 83.2 percent permanent disability, he is

not able to do his business and daily activities.

Learned counsel for the appellant placed reliance upon a

judgment passed by this Court in S.B. Civil Mis. Appeal

No.4615/2017 in "Leelaram Vs. Deshraj & Ors." decided on

09.12.2021, wherein the injured sustained 90 percent disability

(3 of 10) [CMA-1496/2012]

and this Court awarded Rs.3,00,000/- towards loss of amenities in

life.

Lastly, learned counsel submitted that as per the judgment

of Hon'ble Apex Court in the case of Sarla Verma v. Delhi

Transport Corporation: (2009) 6 SCC 121, the claimant is also

entitled for 25 percent amount of compensation under the head of

future prospects.

Per contra, learned counsel for the respondent-Insurance

Company submitted that the learned Tribunal while deciding the

claim petition of the claimant-appellant has rightly taken into

consideration the factors while calculating the amount of

compensation, in the case after evaluating the evidence available

on the record. Learned counsel further submitted that the

judgment dated 21.02.2012 does not call for any intereference by

this Court.

Learned counsel for the respondent, however, is not in a

position to controvert the submissions made by the learned

counsel for the appellant with respect to re-computation of the

award in the present case in the light of the judgments passed by

this Court in the cases of "Pappu Saini" (supra), "Sarla Verma"

(supra) and "Leelaram" (supra).

I have considered the rival submissions made by the counsel

at Bar and gone through the judgment dated 21.02.2012, as well

as the other relevant documents available on the record. It is not

in dispute that the claimant was 45 years of age at the time of

accident, therefore, the learned Tribunal was not right in applying

the multiplier of 13 and looking to the age of the claimant,

multiplier of 14 is applicable.

(4 of 10) [CMA-1496/2012]

The learned Tribunal has erred in determining the disability

of the claimant as 60 percent without any basis, when the

disability certificate of the claimant indicates that he sustained

83.2 permanent disability and the disability certificate was issued

by the medical board of three doctors. The learned Tribunal has

also erred in not granting 25 percent future prospects to the

claimant and not a single penny has been awarded towards 152

days of treatment spent in the hospital.

While the permanent disability as certified by the doctors

stands at 83.2%, the same by no means, adequately reflects the

travails the impaired claimant will have to face all his life. The 45

years old aged person's dreams and future hopes were snuffed out

by the serious accident. The claimant's impaired condition has

certainly impacted his family members. Their resources and

strength are bound to be stressed by the need to provide full time

care to the claimant. For the appellant to constantly rely on them

for stimulation and support is destined to cause emotional,

physical and financial fatigue for all stakeholders.

The Motor Vehicles Act is in the nature of social welfare

legislation and its provisions make it clear that the compensation

should be justly determined. In "Helen C. Rebello and others V.

Maharashtra SRTC and Anr., reported in 1999(1) SCC 90, the

Hon'ble Apex Court has held the following on the contours of 'just'

compensation, "The word "just", as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just."

(5 of 10) [CMA-1496/2012]

A person therefore is not only to be compensated for the

injury suffered due to the accident but also for the loss suffered on

account of the injury and his inability to lead the life he led, prior

to the life-altering event. Three Judges' Bench of Hon'ble Supreme

Court in "Jagdish Vs. Mohan and others" reported in 2018(4) SCC

571, made the following relevant observation on the intrinsic value

of human life and dignity that is attempted to be recognised,

through such compensatory awards, "...the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law."

The Courts should strive to provide a realistic recompense

having regard to the realities of life, both in terms of assessment

of the extent of disabilities and its impact including the income

generating capacity of the claimant.

The extent of economic loss arising from a disability may not

be measured in proportions to the extent of permanent disability.

This aspect was noticed by Hon'ble Supreme Court in "Raj Kumar

Vs. Ajay Kumar and Anr.", reported in 2011 (1) SCC 343 that:-

"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 different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a

(6 of 10) [CMA-1496/2012]

particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced shows 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 4(2011)1 SCC 343 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."

The test for determining the effect of permanent disability on

future earning capacity involves the following 3 steps as was laid

down in Raj Kumar (supra) and reiterated by Hon'ble Apex Court

in "Chanappa Nagappa Muchalagoda Vs. Divisional Manager, New

India Insurance Company Limited" reported in 2020 (1) SCC 796

that:-

"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 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

(7 of 10) [CMA-1496/2012]

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."

The above yardstick was reaffirmed by Hon'ble Apex Court in

"Pappu Deo Yadav Vs. Naresh Kumar and others" reported in 2020

SCC online 752. The following was set out by the three Judges'

Bench:

"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 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."

"20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant.

(8 of 10) [CMA-1496/2012]

As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some 'proportionate' principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case."

In "Govind Yadav V. The New India Insurance Company Ltd.",

reported in 2011 (10) SCC 683, the Hon'ble Supreme Court held

that:

"18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Company Ltd. (supra) and Raj Kumar v. Ajay Kumar (supra) 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 enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."

(emphasis supplied)

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

reported in 2012 (12) SCC 724, the Hon'ble Supreme Court held

that:-

                                          (9 of 10)                   [CMA-1496/2012]


             "10. It is noteworthy to state that an
       adjudicating     authority,  while    determining

quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the tribunal or a court has to be broad based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of 'just compensation' should be inhered."

(emphasis supplied)

This Court finds that the compensation awarded to the

Appellant is insufficient. The Appellant has sustained 83.2%

permanant disability and not a single penny has been awarded to

him towards the head of 'loss of future amenities in life' and 'loss

of future prospects', hence, the impugned award needs suitable

enhancement. In view of the material available on record, the

appellant-claimant is entitled to get compensation in the following

terms:-

Monthly income Rs. 3450 X 83/100 = Rs.2863.5/- Annual income Rs. 2863.5 x12 = Rs.34,362/- per annum

34,362 X 14 = Rs.4,81,068/-

Add 25 per cent towards Rs.4,81,068 + Rs. 1,20,267 future prospects = Rs. 6,01,335/-

Add medical expenses Rs. 1,00,000/-

Add transportation expenses Rs.25,000/- Add hospital charges Rs.600 (per day) X 152 (days)= 91,200/-

Add loss of amenities in life Rs.3,00,000/-

Total compensation                Rs. 11,17,535/-
awardable
Less amount awarded by the Rs.   11,17,535                   -   Rs.5,22,950     =
Tribunal                   Rs.5,94,585/-
Enhanced amount of                Rs. 5,94,585/-
compensation


                                                                            (10 of 10)              [CMA-1496/2012]

In view of the above, the appellant-claimant would be

entitled to get a further sum of Rs. 5,94,585/-, which shall carry

interest @ 6% per annum from the date of filing the claim petition

till the actual payment is made.

Consequently, the appeal is disposed of. The enhanced

compensation shall be paid by the Insurance Company within a

period of six weeks of this judgment. The Tribunal shall disburse

Rs.2,00,000/- in the Saving Bank Account of the claimant and the

balance amout of the enhanced compensation be invested in any

Nationalised Bank for a period of three years and interest accrued

on the deposit shall be paid to the appellant on monthly basis.

Record of the trial Court be sent back forthwith.