Sikkim High Court
The Divisional Manager, National ... vs Dhanesh Gupta Alias Dhanesh Kumar Gupta ... on 16 September, 2025
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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MAC App. No. 03 of 2025
1. The Divisional Manager,
National Insurance Company Limited,
NH 10, Gangtok,
P.O. & P.S. Gangtok,
Sikkim Pin No.737101.
2. The Branch Manager, National Insurance Company
Limited,
Having Office, at: Damber Chowk, Reshi Road,
Kalimpong, District Darjeeling,
West Bengal, Pin No.734301.
..... Appellants
Versus
1. Dhanesh Gupta alias Dhanesh Kumar Gupta,
Aged about 44 years,
R/o Majhigoan East MW.,
Housing Colony Jorethang Nagar Panchayat,
Naya Bazar, District Namchi,
Sikkim, Pin No.: 737128.
.....Respondent No.1/Claimant
2. Shri Norbu Tshering Bhutia,
Son of Late Phuchung Bhutia,
Resident of Jorethang, SNT Colony,
P.O. & P.S. Jorethang,
District Namchi, Sikkim,
Pin No. 737128.
.......Respondent No.2/
Owner of the vehicle.
Appeal under section 173 of the Motor Vehicles Act, 1988.
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Appearance:
Mr. Madan Kumar Sundas, Advocate for the Appellants.
Mr. Rahul Rathi, Ms. Rupa Agarwal, Advocates for the
Respondent No.1/Claimant.
2
MAC App No. 03 of 2025
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
None for Respondent No.2.
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Date of Hearing: 11.08.2025
Date of Judgment: 16.09.2025
Bhaskar Raj Pradhan, J.
1. The National Insurance Company Limited (the
appellants) is aggrieved by the award of Rs.71,20,670/-
dated 27.03.2024 granted in favour of the respondent no.1
(the claimant) by the Motor Accident Claims Tribunal (the
learned Tribunal).
2. The respondent no.2 is the owner of the vehicle which
met with an accident.
3. The learned Tribunal has concluded that the accident
occured on 19.04.2016; the driver died on the spot; the
claimant sustained injuries and was evacuated to
Bahadurganj Hospital after which he underwent medical
treatment in Siliguri, West Bengal. The claimant was
examined and a disability certificate (exhibit-17) was issued
certifying that he had sufferred 45% permanent physical
impairment.
Rash and negligent driving
4. The learned Tribunal did not accept the contention of
the appellants that their authorised investigator had found
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
out that the accident occured when the driver was trying to
save the vehicle from colliding with the rods on the bridge
and as such rash and negligent driving was not proved
since the authorised investigator was not examined.
5. Under section 166 of the Motor Vehicles Act, 1988
(the MV Act) it was incumbent upon the learned Tribunal to
conclusively opine that the accident occured due to the
rash and negligent act of the driver. The learned Tribunal
however, did not give any conclusive opinion as to whether
the accident occured due to rash and negligent driving of
the deceased driver or not.
6. Admittedly, the deceased driver died on the spot at the
time of the accident. It is noticed that the First Information
Report (FIR) (exhibit-1) was filed against the deceased
driver alleging that the driver was driving the vehicle fast
and negligently. It is also noticed that pursuant to the FIR
registered against the deceased driver, criminal
investigation followed and a final report (exhibit-2) was
submitted alleging that the deceased driver (as an accused
person) had driven the vehicle fast thereby causing the
accident. Accordingly, charge-sheet no. 83/16 dated
30.04.2016 was submitted under section
279/337/338/304 (A) of the Indian Penal Code, 1860 (the
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
IPC) against the deceased driver. Thereafter, the
investigation was closed. This Court is unable to
understand how an FIR was lodged, investigation
conducted and charge-sheet filed against a dead man. This
Court therefore, excludes the FIR as well as the charge-
sheet from consideration.
7. The claim application asserted that the cause of
accident was due to rash and negligent driving on the part
of the deceased driver. As the claimant was the only person
amongst the witnesses who was physically present at the
time of the accident his evidence is of relevance. Although
the appellants denied the assertion of the claimant the
respondent no.2 did not do so. The claimant in his evidence
on affidavit reiterated that the accident was caused due to
rash and negligent driving of the deceased driver. This
assertion of the claimant could not be demolished during
his cross-examination. As such the claimant has been able
to prove that the accident occured due to negligence of the
deceased driver.
8. The learned Tribunal has concluded that the insurance
policy (exhibit-5) and the driving license (exhibit-3) of the
deceased driver were valid and proved. The appellants have
not contested the fact that the insurance policy (exhibit-5)
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
covers the accident. Therefore, this Court shall examine
only the issues that have been contested.
9. The learned Tribunal has calculated the
compensation as under:
(a) Loss of earnings: Rs. 36,53,100/-
Rs. 2,43,540/-x15
(b) Compensation for permanent Rs. 16,43,895/-
Disability (45% of Rs.36,53,100/-
(c) Medical expenses Rs. 2,12,435/-
(excluding hotel bills and railway
tickets)
(d) Loss of earning is calculated as Rs. 14,61,240/-
Rs.36,53,100/-; thus future (40% of Rs.36,53,100/-)
prospects includes 40% on loss of
earning i.e.:
(e) Future medical expenses: Rs. 1,00,000/-
(f) Pain and suffering: Rs. 20,000/-
(g) Loss of amenities: Rs. 30,000/-
TOTAL Rs. 71,20,670/-
10. The learned counsel for the appellants has addressed
the present appeal on a short point. The appellants does
not contest the claim that the claimant's annual income
was Rs.2,43,540/- or the grant of compensation under
other heads. The appellants are only aggrieved by the
calculation of the "loss of earnings" by the learned
Tribunal. According to the learned counsel the "loss of
earnings" should have been calculated as Rs.16,43,895/-
as done in (b) above as compensation for permanent
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
disability and not as calculated in (a) above to the extent of
Rs. 36,53,100/-. It is also submitted that while the learned
Tribunal could grant compensation for "loss of earnings" it
could not, in addition, grant compensation for "permanent
disability". He relied upon the judgment of the Supreme
Court in Raj Kumar vs. Ajay Kumar1.
11. Mr. Rahul Rathi submitted that he was of the view
that compensation calculated by the learned Tribunal
under the head loss of earning should not be granted but
compensation for permanent disability may be granted. He
relying upon the same judgment i.e. Raj Kumar (supra)
submitted that although the disability certificate (exhibit-
17) certifies his permanent disability at 45% there is
evidence on record which shows that his disability is 100%
and therefore he is entitled to a higher compensation than
what was granted by the learned Tribunal. He also relied
upon National Insurance Company vs. Yoel Subba2 to submit
that "just compensation" should be granted by the court;
and Surekha vs. Santosh3 to submit that in a matter of
insurance claim compensation in reference to the motor
accident, the court should not take hyper technical
1 (2011) 1SCC 343
2 2024:SHC: 44
3 (2021) 16 SCC 467
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
approach and ensure that just compensation is awarded to
the affected person or the claimant. The learned counsel for
the claimant has therefore sought enhancement of the
amount of compensation on various heads i.e. "pain and
suffering", "loss of amenities", "future medical expenses",
"legal expenses" as well as compensation for "attendant
charges".
Appellant's contention
12. This Court shall first examine the issue raised by the
appellants. The submission of the learned counsel for the
appellants that the learned Tribunal could not have
granted compensation both under the head "loss of
earnings" and "permanent disability" is liable to be rejected
straight away as it is a settled position of law that non
granting of compensation towards permanent disability
once compensation is computed for "loss of earnings"
capacity and "loss of future earnings" is unsustainable.
(vide paragraph 21 of K. Suresh vs. New India Assurance
Company Limited and Anr.4). This Court is of the view that in
certain cases it would be just and proper to grant
compensation for permanent disability even if
compensatiion under the head loss of earning has been
4 (2012) 12 SCC 274
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
granted (vide paragraph 15 of Kothandapani vs. Tamil Nadu
State Trasport Corpoation Limited5).
13. As per the calculation made by the learned Tribunal
in paragraph 14 of the impugned judgment "loss of
earnings" has been quantified as Rs.36,53,100/- i.e.
Rs.2,43,540/- taken as annual income of the claimant
multiplied by multiplier 15 as he was at the time of the
accident 38 years old. It is also noticed that the learned
Tribunal has granted compensation for "permanent
disability" as well as "loss of future earnings".
Components of compensation
14. In Raj Kumar (supra) it has been held that the heads
under which compensation is awarded in personal injury
cases are as follows:-
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:
5 (2011) 6 SCC 420
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
(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).
15. It was also held 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.
16. In view of the opinion of the Supreme Court in Raj
Kumar (supra) it is important for the learned Tribunal to
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
come to a conclusion as to whether it is a "routine personal
injury case" or a "serious case of injury" and thereafter
award compensation.
17. According to the disability certificate (exhibit-17) the
claimant has sufferred a fracture of the left femoral neck
resulting in limb length discrepency. He has therefore,
become physically disabled to the extent of 45%. The
discharge certificate (exhibit-53) of the claimant dated
28.04.2016 records the diagnosis as "(1) Polytrauma with
right sided hydropneumothorax and multiple rib fracture (2)
Left sided neck femur fracture (3) Multiple lacerated injury
over face". The discharge certificate (exhibit-53) also
records that the claimant was "operated for left neck femur
fracture, under (S/A)-proximal femur locking plate and SAB
on 22.04.2016". The disability certificate (exhibit-17) read
with the discharge certificate (exhibit-53) makes it clear
that the claimant had sufferred "serious injury" and it was
not a case of "routine personal injury".
18. In Raj Kumar (supra) the Supreme Court has clarified
that the percentage of permanent disability is expressed by
the doctors with reference to the whole body, or more often
than not, with reference to a particular limb. When a
disability certificate states that the injured has suffered
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
permanent disability to the extent of 45% of the left lower
limb (similar as in the present case), it is not the same as
45% permanent disability with reference to the whole body.
The extent of disability of a limb (or part of the body)
expressed in terms of a percentage of the total functions of
that limb, obviously cannot be assumed to be the extent of
disability of the whole body.
19. In Raj Kumar (supra) loss of earning is sub-categorised
into two heads i.e. "loss of earning during the period of
treatment" and "loss of future earnings" on account of
permanent disability. It has also been held that 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.
Loss of earnings during medical treatment
20. The claimant had claimed loss of earning during
medical treatment for two years as Rs.4,87,080/- i.e.
[Rs.2,43,540/- (annual income) multiplied by two years].
The discharge certificate (exhibit-53) reflects the date of
admission to the hospital as 20.04.2016 and date of
discharge as 28.04.2016. The advice as per the discharge
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
certificate (exhibit-53) to the claimant was to do incentive
spirometric and chest and limb physiotherapy to continue
as advised. The medical papers exhibited by the claimant
reflect that he was treated till 2018. A reading of the
judgment of the Supreme Court in Raj Kumar (supra) makes
it evident that the amount of Rs.4,87,080/- i.e.
[Rs.2,43,540/- (annual income) multiplied by two years]
was correctly claimed by the claimant. Therefore, the
compensation granted under the head loss of earnings by
the learned Tribunal multiplying the annual income of the
claimant with the multiplier 15 was incorrect. It is
accordingly set aside and the amount of Rs.4,87,080/- as
claimed by the claimant is granted.
Loss of future earnings
21. Under category (d) of the above chart the learned
Tribunal has calculated an amount of Rs.14,61,240/- i.e.
(40% of Rs.36,53,100/-) as the loss of future earning. For
the purpose of calculating loss of future earning as per the
dicta of the Supreme Court in Raj Kumar (supra) it is
important to find out the effect and impact of such
permanent disability on his earning capacity. In the
opinion of the Supreme Court in the case of an injured
claimant with a disability what is calculated is the future
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
loss of earning of the claimant, payable to the claimant.
Functional disability
22. Although in Raj Kumar (supra) the Supreme Court has
clearly opined that the 45% of the permanent disability of
the left lower limb cannot be considered to be functional
disability of the body nor could it be assumed to result in a
corresponding extent of loss of earning capacity, as the
disability would not have prevented him from carrying on
his avocation as a cheese vendor, though it might impede
in his smooth functioning, the learned counsel for the
claimant argues otherwise. The Supreme Court, in the facts
of Raj Kumar (supra), which is almost similar to the present
case, computed functional disability to the extent of 25%.
In the present case it is argued that there is evidence to
show that the claimant has sufferred 100% disability
although his medical disability was only to the extent of
45% and therefore, his loss of future earning should be
enhanced.
23. In the claim petition the claimant has claimed an
amount of Rs.17,53,488/- as "loss of future earning"
calculated thus: as the age of the victim is 38 years the
multiplier to be taken as 16. The net pecuniary loss
therefore was calculated as Rs.2,43,540/- (annual income)
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
x 45% = 1,09,593.00 x 16 (multiplier) future prospects at
the rate of 40% (as the victim was 38 years at the time of
the accident relying upon the judgment of the Supreme
Court in National Insurance Company Limited vs. Pranay
Shetty6 . The learned Tribunal has granted only an amount
of Rs.14,61,240/- to the claimant as loss of future earning
as calculated in category (d) in the above chart.
24. In Pranay Shetty (supra) the Supreme Court was
determining a case of loss of future earning because of the
death of the deceased. The present case is not of that
nature as evidence reflects that the claimant was not totally
incapacitated and unable to earn anything due to the
permanent disability. According to the claimant he was a
business man running a trade in Jorethang, South Sikkim
vide Trade License dated 21.06.2012 and earning an
annual income of Rs.2,43,450/- as per his income tax
returns (exhibit-16) filed for the year 2016-17. However, his
income tax returns (exhibit-16) reflects his annual income
as Rs.2,43,540/- and therefore, this amount is taken as
the correct amount. In the claim petition the claimant has
6 (2017)16 SCC 680.
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
stated that he has suffered 45% permanent disability and
he is unable to run his business as he cannot travel to
Siliguri for purchase of stocks, stand alone in the shop or
to manage the business as he sufferred from various
grievous injuries. The claimant reiterated these facts in his
evidence on affidavit and further stated that in reality the
45% locomotive disability has rendered him 100% disabled
and he is unable to perform his business work and has
suffered loss of source of income.
25. During cross examination the claimant deposed that
after the accident he has not been able to look after his
shop which is being looked after by his brother. He
admitted that initially he used to sit and run his business
in the shop and did not have much physical activity. He
also admitted that he had submitted the income tax return
for his business and that he had travelled alone in a taxi to
the learned Tribunal.
26. The accident had occured on 19.04.2016. The income
tax returns (exhibit-16) filed by the claimant is for the
assessment year 2016-17 filed on 20.03.2018 which
suggest that the claimant business was running and he
was making an annual income of Rs.2,43,540/-. In such
view of the matter it may not be correct on the part of the
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
claimant to claim that he has suffered 100% disability
although the disability certificate (exhibit-17) issued by the
medical expert state that he had only 45% of permanent
disability as he sufferred a fracture of the left femoral neck
resulting in limb length discrepency.
27. This Court therefore, deems it fit to consider his
permanent functional disability at 30% keeping in mind
that the Supreme Court in almost identical case of 45%
permanent disability was of the view that the permanent
functional disability should be assessed at 25%. Therefore,
in the present case this Court proposes to assess the
permanent disability of the body as 30% and the loss of
future earning capacity as 25%. As the income of the
claimant is assessed at Rs.2,43,540/- per annum, the loss
of his earning due to functional disability would be 25% of
Rs.2,43,540/- which is Rs.60,885/- per annum. As the age
of the claimant at the time of accident was 38 years, the
multiplier applicable would be 15. Therefore, the loss of
future earning would be Rs.60,885/- x 15 = Rs.9,13,275/.
The above loss of future earning is calculated as per the
dicta in Raj Kumar (supra) in the facts of the present case
keeping in mind the type of business activity and that the
claimant was still able to travel alone in a vehicle.
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
The claimant's contention
28. This Court shall now examine the submissions for
enhancement of compensation under various heads made
by the learned counsel for the claimant although it is made
only through oral submissions.
Pain and suffering
29. Under the head pain and suffering the claimant had
claimed a total amount of Rs.2,00,000/-. The learned
Tribunal has awarded Rs.20,000/- without assigning any
reason.
30. The facts in K.S. Muralidhar vs. R. Subbulakshmi & Anr.7
relied upon by the claimant were quite different to the facts
of the present case. In that case the victim had suffered
90% permanent disability and functional disability was
calculated at 100%.
31. In Pappu Deo Yadav vs. Naresh Kumar8 the Supreme
Court underlined that courts should be mindful that a
serious injury not only permanently imposes physicial
limitations and disabilities but too often inflicts deep
mental and emotional scars upon the victim. The attendant
trauma of the victim having to live in a world entirely
7 2024 INSC 886
8 (2022) 13 SCC 790
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
different from the one she is or he is born into, as an
invalid, and with degrees of dependence on others, robbed
of complete personal choice of autonomy, should forever be
in the judge's mind, whenever tasked to adjudge
compensation claims. Severe limitations inflicted due to
such injuries undermine the dignity which is now
recognised as an intrinsic component of the right to life
under Article 21 of the individual, thus depriving the
person of the essence of the right to a wholesome life which
she or he had lived, hitherto. From the world of able
bodied, the victim is thrust into the world of the disabled,
itself most discomfiting and unsettling. If courts nit-pick
and award niggardly amounts oblivious of these
circumstances, there is resultant affront to the injured
victim.
32. The judgment of the Supreme Court in Kajal vs.
Jagdish Chand & Ors.9 in which the victim was awarded
compensation of Rs.15,00,000/- under the head "pain and
sufferings" may not be applicable in the present case since
in that case in addtion to 100% disability the young girl
was suffering from severe incontinence, severe histeria and
9 (2020) 4 SCC 413
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
was left with brain of a nine-month-old child. As such
departure was made from the normal rule for grant of
compensation in the peculiar facts and circumstances to
the tune of Rs.15,00,000/-.
33. This Court is of the opinion that considering the
physcial disability and the functional disability of the
claimant it would be just and proper to enhance the
amount of compensation granted by the learned Tribunal
from Rs.20,000/- for pain and suffering to Rs.1,50,000/-.
Loss of Amenities
34. The learned Tribunal has granted Rs.30,000/-
compensation under the head loss of amenities. Loss of
amenities 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. It is settled
law that while computing compensation under this head
the approach of the learned Tribunal has to be broadbased
but it would also involve some guess work as there cannot
be any mathematical exactitude or a precise formula to
determine the quantum of compensation.
35. From the evidence brought on record it is clear that
the claimant has suffered physical disability to the extent of
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
45% and this Court has calculated his functional disability
to the extent of 30%. Keeping this in mind we enhance the
compensation under the head loss of amenities from
Rs.30,000/- to Rs.50,000/-.
Future medical expenses
36. The learned Tribunal has granted compensation of
Rs.1,00,000/- although no amount of compensation was
claimed under this head by the claimant. The evidence led
by the claimant suggests that the claimant does require
some amount of medical attention, examination and
treatment in the future as well. This Court therefore,
enhances compensation under this head from
Rs.1,00,000/- to Rs.2,00,000/-.
Attendant charges
37. The claimant has claimed Rs.1,50,000/- as attendant
charges. The learned Tribunal has not granted any amount
under this head. Due to the disability it is quite obvious
that claimant would require some amount of assistance
due to his physical and functional disability. This Court is
therefore inclined to grant the claim of Rs.1,50,000/- as
attendant charges as claimed.
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
Medical expenses
38. Besides the above it is noticed that the learned
Tribunal has granted an amount of Rs.2,12,435/- as
medical expenses excluding hotel bills and railway tickets.
The claimant has sought compensation of medical
expenses supported by bills to the extent of Rs.2,77,803/-;
transportation charges of Rs.2,00,000/-; compensation for
extra nourishment for an amount of Rs.5,00,000/-. The
bills presented for medical expenses adds up to an amount
of Rs.2,68,035/- which is granted under the head medical
expenses.
39. This Court shall now examine the compensation to be
granted under the head transportation charges, extra
nourishment and miscellaneous expenses.
Transportation charges
40. It is seen that during the period of treatment he has
travelled to Bihar and West Bengal for his treatment. The
claimant has exhibited railway tickets for an amount of
Rs.2,296/- and Rs.1546/- which adds up to Rs.3,842/-.
The learned Tribunal has not granted any compensation for
transportation charges without assigning any reason. It is
quite obvious that the claimant would have incurred
transportation charges during the time of treatment and
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
would also incur transporation charges for the future. The
claimant is a resident of Naya Bazar, Jorethang, Sikkim.
The claimant would also have incurred charges for lodging
during this period. Therefore, this Court is inclined to
award the amount of Rs.2,00,000/- as compensation for
transportation and lodging charges as claimed.
Extra nourishment and miscellaneous expenditure
41. An amount of Rs.5,00,000/- is claimed for extra
nourishment by the claimant. The learned Tribunal has
awarded nothing under this head. This Court is inclined to
grant an amount of Rs.1,50,000/- for extra nourishment of
the claimant and Rs.20,000/- for miscellaneous
expenditure.
Permanent disability
42. This Court is of the opinion that as all the
components of compensation for permanent disability has
already been granted under various heads and this is not a
case in which compensation for permanent disability
should be granted separately. The computation of
compensation under the head permanent disability by the
learned Tribunal was incorrect.
43. The claimant had to file the application under section
166 of the MV Act to get compensation. Obviously some
The Divisional Manager, National Insurance Company Limited & Anr.
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Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
amount of expenditure was made by the claimant on the
cost of litigation. The learned counsel for the claimant
seeks an amount of Rs.25,000/- to compensate the
claimant on the cost of litigation which is reasonable and
accordingly granted.
44. The contention of the appellants that the learned
Tribunal had erroneously calculated and awarded
compensation in excess of Rs.44,56,782/- seems to be
somewhat correct. Therefore, this Court recomputes the
compensation under various heads as under:-
Expenses relating to treatment, Treatment = Rs 2,68,035/-
hospitalisation, transportation, Transportation =Rs.2,00,000/-
nourishing food and miscellaneous Nourishing =Rs.1,50,000/-
expenses. Food
Miscelleneous = Rs.20,000/-
expenses
Total Rs.6,38,035/-
Loss of earning during the period Rs.4,87,080/-
of treatment.
Loss of future earnings Rs.9,13,275/-
1. Pain and suffering Rs.1,50,000/-
Loss of amenities Rs. 50,000/-
2.
Future medical expenses Rs.2,00,000/-
Attendant charges Rs.1,50,000/-
Extra nourishment and Rs. 1,50,000/-
Miscellaneous expenditure Rs. 20,000/-
Total Rs.1,70,000/-
Cost of Litigation Rs. 25,000/-
GRAND TOTAL Rs. 27,83,390/-
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
45. In Yadava Kumar vs. National Insurance Company
Limited10 the Supreme Court lucidly explains the concept of
"just compensation". It was held that it goes without saying
that in matters of determination of compensation both the
tribunal and the court are statutorily charged with a
responsibility of fixing a "just compensation". It is obviously
true that determination of a just compensation cannot be
equated to a bonanza. At the same time the concept of "just
compensation" obviously suggests application of fair and
equitable principles and a reasonable approach on the part
of the tribunals and the courts. This reasonableness on the
part of the tribunal and the court must be on a large
peripheral field. In Concord of India Insurance Co. Ltd. vs.
Nirmala Devi (smt) & Ors.11 the Supreme Court opined that
the determination of the quantum must be liberal, not
nigardly since the law values life and limb in a free country
in generous scales.
46. The "just compensation" to be awarded to the
claimant as per the dicta of the Supreme Court in Raj
Kumar (supra) would therefore be Rs.27,83,390/- only. The
impugned judgment is set aside. The Appeal allowed to the
above extent. The prayer for enhancement under various
10 (2010) 10 SCC 341
11 (1979) 4 SCC 365
The Divisional Manager, National Insurance Company Limited & Anr.
vs.
Dhanesh Gupta Alias Dhanesh Kumar Gupta & Anr.
heads made by the claimant was also considered and
appropriately granted.
( Bhaskar Raj Pradhan )
Judge
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