Diwakar Prakash and Another vs Anees Ahmad and Others

Rajiv Sharma and Dr. Satish Chandra, JJ.—Present appeal u/s 173 of the Motor Vehicles Act, 1988, for enhancement of the compensation, has been preferred against the judgment and award dated 8th December, 2006 passed by the Motor Accident Claims Tribunal, Sitapur in Claim Petition No. 163 of 2004 (Diwakar Prakash and others v. Anees Ahmad and others). The brief facts of the case are that on 18th January, 2004 at about 12.45 noon, the deceased Uttam Kumar was travelling in a Mahendra Marshal Jeep No. UP 32 AN 3011 from Sitapur to Lucknow. When the Jeep reached near village Kuwarpur, its driver tried to over take a Truck No. UP-32 Z-7960, resulting in collusion with another Truck No. HR 58-4195, coming from the opposite direction. The deceased sustained severe injuries. He was taken to the Primary Health Center. Later, he was referred to the Medical College, Lucknow, where he ultimately died. It was claimed that the deceased was aged about 30 years of age and was earning Rs. 4,000/- per month from the food grains business.

After examining the entire evidence, the Tribunal observed that the accident was a contributory accident. So, the Truck as well as Jeep in question were held liable to pay 50% compensation each. In the absence of any document, the Tribunal took a notional income of Rs. 15,000/- per annum and finally awarded a compensation of Rs. 50,000/-. In addition, the compensation of Rs. 7,000/- was also awarded for funeral expenses and loss of consortium etc. Thus, total compensation of Rs. 57,000/- was awarded. Not being satisfied, the claimant has filed the present appeal for enhancement of the compensation.

With this background, Sri Pritish Kumar, learned Counsel for the appellant submits that the compensation is meager one. The deceased was earning Rs. 4,000/- per month, which comes to Rs. 48,000/- per annum, but the Tribunal has taken Rs. 15,000/- as notional income. For this purpose, he has relied on the ratio laid down in the case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, .

On the other hand, learned Counsel for the Insurance Company justified the impugned order passed by the Tribunal.

We have heard both the parties at length and gone through the material available on record.

It may be mentioned that India is one of the country with the highest number of road accidents. Motor accidents are everyday affairs. A large number of claims for compensation for injury caused by road accidents are pending in various Motor Accident Claims Tribunal. In a fatal accident, the dependents of the deceased are entitled to compensation for the loss suffered by them on account of the death. The most commonly practiced method of assessing the loss suffered to calculate the loss for a year and then to capitalize the amount by a suitable multiplier. To that is added the loss suffered on account of loss of expectation of life and the like. The Tribunals and High Courts have adopted divergent methods to determine the suitable multiplier. Even this Court has not been uniform; may be because the principle on which this method came to be evolved has been forgotten. It has, therefore, keeping in view the Legislature also in exercise of the powers u/s 163-A has framed a schedule providing therein the tabulation for calculation of compensation.

The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case, there is possibility of repair or restoration. But, in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry v. Cleaver, (1969 1 All. E.R. 555) Lord Morris stated as follows :

To compensate in money for pain and for physical consequences is invariably difficult, but....no other process can be devised than that of making monetary assessment.

Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. Though the Legislature has framed a 2nd Schedule for payment of compensation but what would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, .

The Hon''ble Supreme Court in the case of R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, , laying the principles posited:

Broadly speaking, while fixing the amount of compensation payable to a victim of an accident the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are capable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant : (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

In the instant case, keeping in view the peculiar facts and circumstances of the case, the Tribunal has awarded a compensation of Rs. 50,000/- by applying multiplier of 5 and by looking the age of parents. The deceased Sri Uttam Kumar was aged bout 30 years of old. Though, it was claimed that he was earning Rs. 48,000/- per annum from the food grains business but no evidence was furnished. Since, no proof of income was furnished, the notional income will have to be taken as per the ratio laid down in the case of Laxmi Devi and others v. Mohammad Tabbar and another, 2008 (2) T.A.C. 394 (S.C.) , followed by this Court in the case of Guddi Singh and others v. Baboo and others, 2010 (25) L.C.D. 857, in which one of us was the author (Dr. Satish Chandra, J), where it was observed that the minimum income even notionally should not be less than Rs. 3,000/- per month. Accordingly, in this case the income of the deceased is assessed at the rate of Rs. 3,000/- per month and 1/3rd is deducted in lieu of personal expenses the net income shall be Rs. 2,000/- per month i.e. Rs. 24,000/- per year. By looking the age of the claimant, multiplier of 5 will apply as per Schedule II of the Motor Vehicles Act. Thus, the compensation will come to Rs. 1,20,000/-. In addition, the claimants are also entitled for Rs. 7,000/- which were already granted by the Tribunal, as funeral expenses and loss of consortium etc. Thus, total compensation comes to Rs. 1,27,000/-(Rupees One lac twenty seven thousand). Hence, we enhanced the compensation, as discussed.

Accordingly, the impugned order dated 8th December, 2006 passed by the Motor Accident Claims Tribunal, Sitapur is modified. The claimants-appellants are entitled to the compensation of Rs. 1,27,000/- Rupees One lac twenty seven thousand) in terms of the award, which will be paid by the Insurance Company, who will get the right of recovery from the owner of the Jeep in question, as decided in FAFO No. 252 of 2006 (Oriental Insurance Company Limited v. Smt. Radha Devi Mishra and others) and connected matters, on 22nd February, 2012. The appeal for enhancement of the compensation is allowed.