Kailash Yadav vs Sahil Walia And Others

The claimant-injured (hereinafter referred to as the 'appellant') has filed the present appeal seeking enhancement of the compensation awarded by the learned Motor Accident Claims Tribunal, Chandigarh (for short 'the Tribunal') vide award dated 4. 05.2012 passed in MACT Case No.423 of 06.10.2009 titled Kailash Yadav Vs. Sahil Walia and others on account of injuries suffered by him in a motor vehicle accident, which took place on 9. 06.2009.

Briefly stated, the facts which are relevant for disposal of the present appeal are that the appellant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the M.V. Act') on the averments that on 09.06.2009 at about 07:30 P.M., when the appellant was crossing the road in front of Hari Mandir, Sector-26, Chandigarh and was going towards Rickshaw Stand of Sector-26, Chandigarh on foot, Car bearing registration No.CH-23-T-1434 owned by respondent No.2 and insured with respondent No.3 came from the side of Sector-7, Chandigarh driven by respondent No.1 in a rash and negligent manner and at fast speed and struck against him due to which he suffered multiple injuries. FIR No.138 dated 12.06.2009 under Sections 279 and 337 of the Indian Penal Code, 1860 was registered at Police Station Section-26, Chandigarh. The appellant was aged about 32 years at the time of accident and was earning Rs. 4,000/-per month by working as rickshaw puller. Due to the accident he became permanently disabled. The appellant accordingly sought award of compensation of Rs. 15,00,000/- with costs and interest at the rate of 12% per annum against respondents No.1 to 3.

The petition was contested by the respondents in terms of their respective written statements. In their joint written statement respondents No.1 and 2 pleaded that the accident took place due to own negligence of the appellant and the Car was insured with respondent No.3. In its written statement respondent No.3 took objections as to respondent No.1-driver not having valid and effective driving licence at the time of accident and respondent No.2-owner having committed breach of the terms and conditions of the insurance policy. Respondent No.3 also controverted the material averments made in the petition and denied its liability.

The Tribunal framed Issues and recorded evidence produced by the parties and on conclusion of inquiry held that the appellant suffered injuries due to accident caused by rash and negligent driving of car by respondent No.1 who was having valid and effective driving licence and respondents No.1 to 3 were jointly and severally liable for payment of compensation to the appellant. The Tribunal awarded amount of Rs. 5,000/- towards medical treatment, Rs. 38,400/- on account of loss of future income, Rs. 10,000/- on account of loss of earnings during medical treatment, Rs. 3,000/- towards attendant, Rs. 3,000/- for special diet, Rs. 3,000/-towards conveyance charges and Rs. 5,000/- on account of pain and suffering. The Tribunal awarded total compensation of Rs. 67,400/-and directed respondents No.1 to 3 to pay the same jointly and severally with costs and interest at the rate of 6% per annum from the date of filing of the petition till realization.

Feeling aggrieved, the appellant-claimant has filed the present appeal.

I have heard arguments addressed by the learned counsel for the appellant and learned Counsel for respondent No.3 and gone through the record.

Learned Counsel for the appellant has argued that the appellant suffered injuries including facture of pelvis and head injury in the accident and was treated in G.M.C.H., Sector-32, Chandigarh, A.G. Clinic & Nursing Home, Sector-28, Chandigarh and Bone and Joint Care Clinic, Sector-10, Panchkula and suffered from 5% permanent disability with respect to right lower limb. The appellant being confined to bed could not be expected to maintain all the medical bills and denial of medical expenses of Rs. 50,000/- incurred by him on account of non-production of bills was not justified. Therefore, amount of Rs. 50,000/- may be awarded to the appellant under the head of medical treatment. The appellant remained under medical treatment for a long time and was advised special diet. He had to visit hospital number of times and required attendant. The Tribunal has awarded meager amounts under the abovesaid heads which may be enhanced. The appellant was earning Rs. 4,000/- per month. The appellant remained confined to bed for a period of four months and could not earn anything and the compensation of Rs. 10,000/- awarded under the loss of earnings during medical treatment may be enhanced. Prior to the accident the appellant was earning his livelihood by working as rickshaw puller. Though fracture of the pelvis involved physical disability of the lower right limb to the extent of 5% but the same involved functional disability and consequent loss of earning capacity to the extent of 100% as the appellant could not work as rickshaw puller. Therefore, compensation of Rs. 7,68,000/- may be awarded under the head of future loss of income due to permanent disability. The Tribunal awarded meager amount of Rs. 5,000/- towards pain and sufferings. Keeping in view the nature of injuries of the appellant, the same may be enhanced to amount of Rs. 1,00,000/-. Apart from the award of compensation of Rs. 7,68,000/- on account of loss of future income, Rs. 50,000/- may also be awarded to the appellant under the head of permanent disability. The Tribunal awarded interest at the rate of 6% per annum instead of 12% per annum. In view of the decisions of this Court and Hon'ble Supreme Court interest at the rate of 12% per annum may be granted. In support of his arguments, learned Counsel for the appellant has placed reliance on the decisions of Hon'ble Supreme Court in Sayed Sadiq Etc. Vs. Divisional Manager, United India Insurance Company : 2014 (1) R.C.R. (Civil) 765; Raj Kumar Vs. Ajay Kumar and another : 2011 (2) R.C.R. (Civil) 101; Mohan Soni Vs. Ram Avtar Tomar and others : 2012 ACJ 583 and B. Kothandapani Vs. Tamil Nadu State Transport Corporation Limited : 2011 (3) R.C.R. (Civil) 206.

On the other hand, learned Counsel for respondent No.3 has argued that the appellant has failed to produce medical bills and prove the amount spent by him on his medical treatment beyond the amount awarded by the Tribunal. The appellant suffered from permanent disability of the right lower limb to the negligible extent of 5% and the appellant has failed to prove his functional permanent disability as claimed. The Tribunal has awarded just and adequate compensation to the appellant and he is not entitled for enhancement thereof. Therefore, the appeal may be dismissed.

It is now well settled that in personal injury cases compensation can be awarded under the following heads:-

(1) 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; and

(b) Loss of future earnings on account of permanent disability; and

(iii) Future medical expenses

(2) Non-pecuniarv damages (General damages)

(i) Damages for pain, suffering and trauma as a consequence of the injuries;

(ii) Loss of amenities (and/or loss of prospects of marriage); and

(iii) Loss of expectation of life (shortening of normal longevity).

(See Raj Kumar Versus Ajay Kumar and another (2011) 1 Supreme Court Cases 343 and R. D. Hattangadi Versus Pest Control (India) Limited and others 1995 ACJ (SC) 366).

So far as the claim of the appellant for expenses relating to treatment, hospitalization and medicines is concerned, the appellant testified as PW-1 that he suffered fracture of pelvis, head injury and other multiple injuries. He remained admitted in G.M.C.H., Sector-32, Chandigarh for three days. He remained under the medical treatment of Dr.Amajit Singh of AG Clinic & Nursing Home, Sector-28, Chandigarh and Dr. Lalit Kaushal, Bone and Joint Care Clinic, Sector-10, Panchkula. He remained under the medical treatment for a period of about 8 months and remained on bed for a period of 4 months. He further testified that he spent Rs. 50,000/- on his treatment and transportation. To corroborate his testimony he produced his Treatment Card Ex.P-3 and Prescription Slips Ex.P-4 and Ex.P-5 and also examined Dr.Pranaw Kumar, Sr. Resident, Department of Orthopaedics, G.M.C.H., Sector-32, Chandigarh as PW-2. However, the appellant did not examine Dr.Amarjit Singh and Dr. Lalit Kaushal and did not produce any bills to prove that he spent amount of Rs. 50,000/- on his medical treatment. The appellant has averred that he could not maintain the bills due to being under treatment for a long period of 8 months but this explanation is not sufficient. He could examine the concerned doctors to prove the amount charged by them and also the chemists from whom he purchased the medicines to prove the amount spent by him on purchase of medicines. Non-examination of the concerned doctors and chemists and non-production of medical bills warrants drawing of adverse inference against him. In the absence of examination of the concerned doctors and chemists amount of Rs. 50,000/- claimed could not be awarded on the assumption of the same having been spent by the appellant on his medical treatment. In the facts and circumstances of the case, amount of Rs. 5,000/- awarded to the appellant by the Tribunal towards expenses incurred on his medical treatment cannot be said to be unjust and inadequate.

It is also pertinent to observe here that the appellant did not produce any medical evidence to prove requirement of his medical treatment in future. Therefore, the appellant was not entitled to award of any compensation towards future medical treatment.

The appellant did not produce any specific evidence to prove the amounts spent on conveyance and attendant. The appellant testified as PW-1 that he spent Rs. 15,000/- on special diet but he did not produce any bills and his self-serving testimony as to quantum of the amount spent towards special diet could not be relied upon for acceptance of his claim in toto. However, it is common knowledge that in such cases expenses are incurred on conveyance, attendant and special diet. The Tribunal awarded amount of Rs. 3,000/- towards conveyance, amount of Rs. 3,000/-towards attendant and amount of Rs. 3,000/- towards special diet. In view of the number of visits as mentioned in Medical Treatment Card Ex.P-3 and Prescription Slips Ex.P-4 and Ex.P-5 to hospitals in Chandigarh and Panchkula amounts awarded towards conveyance and attendant cannot be said to be inadequate. However, in view of the nature of injuries, special diet required and period of treatment, amount of Rs. 3,000/- awarded by the Tribunal towards special diet cannot be said to be adequate. In the facts and circumstances of the case, amount of Rs. 10,000/- is awarded to the appellant towards special diet.

The appellant pleaded and testified as PW-1 that he remained on bed for a period of four months and his testimony in this regard was also acted upon by the Tribunal. However, the Tribunal awarded amount of Rs. 10,000/- to the appellant towards loss of earnings during the treatment without assessment of his income. The appellant pleaded and testified as PW-1 that he was working as a rickshaw puller at the time of accident and was earning a sum of Rs. 4,000/-. The appellant could not be expected to produce any documentary evidence to prove his income. In view of unrebutted testimony of the appellant as PW-1 and the minimum wages of Rs. 3,784/- notified by Labour Department, Chandigarh to be payable to an unskilled labourer during the relevant period, it will be just and reasonable to hold that the appellant was having income of Rs. 4,000/- per month at the time of the accident. The amount of Rs. 10,000/- awarded by the Tribunal towards loss of earnings during the period of four months when the appellant was confined to bed cannot, therefore, be said to be adequate and the appellant is entitled to award of Rs. 16,000/-towards loss of income during the period of treatment.

To prove his permanent disability and consequent loss of future earnings, the appellant examined Dr. Pranaw Kumar, Sr. Resident, Department of Orthopaedics, G.M.C.H., Sector-32, Chandigarh as PW-2 who testified that the appellant has suffered permanent disability to the extent of 5% because of fracture of pelvis with mild restriction of right hip. Due to this hip injury he cannot ply the rickshaw because of pain in hip joint.

In view of this medical evidence, it is claimed that the appellant has suffered functional permanent disability of the body and consequent loss of future income to the extent of 100% due to 5% permanent disability making him physically incapable of carrying on his earlier work of plying rickshaw.

In Raj Kumar Vs. Ajay Kumar and another : 2011 (2) RCR (Civil) 101 Hon'ble Supreme Court considered in detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it and in pargraphs No.10, 11 and 13 of its judgment made the following observations:-

"10. 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 ability (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 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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.

The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.

We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

In Raj Kumar's Case (Supra) in view of medical evidence as to 45% disability of the left lower limb, Hon'ble Supreme Court assessed functional disability of the body of the injured-claimant as 25% and loss of future earning capacity as 20%. In Mohan Soni's Case (Supra) functional permanent disability of a cart puller due to amputation of left leg was assessed as 90% against assessment by the Tribunal affirmed by High Court as 50%. In Syed Sadiq's Case (Supra) in Civil Appeal @ MFA 1131/2011 (MVC No.149/2010) Hon'ble Supreme Court assessed functional permanent disability of a vegetable vendor due to amputation of his right leg as 85% overruling the assessment as 65% by the High Court. In that case in Civil Appeal @ MFA 1132/2011 (MVC No.147/2010) Hon'ble Supreme Court assessed permanent functional disability of a vegetable vendor due to compound fracture of right femur, fracture of tibia, fracture of middle shaft tibia and fibula as 35% against assessment of permanent disability of 69% to lower limb by the doctor and assessment of functional disability as 25% by the High Court. In that case in Civil Appeal @ MFA 1133/2011 (MVC No.148/2010) Hon'ble Supreme Court assessed permanent functional disability of claimant earning his livelihood through manual labour due to facture of right hand disabling him from bending, stretching or rotating the same as 85% against assessment of permanent disability as 22% upper limb and 29% to lower limb by the doctor and functional disability as 13% by the High Court.

In the present case, the appellant suffered from permanent physical disability of 5% in respect of right lower limb because of fracture of pelvis with mild restriction of right hip making him incapable of plying rickshaw due to pain to be thereby caused. However, the appellant is not thereby rendered unfit from carrying on other work such as sell of vegetables, fruits or other saleable goods or taking up other menial jobs not involving hard physical labour. In Mohan Soni's Case (Supra) relied upon by the learned Counsel for the appellant, the loss of the earning capacity of the cart puller due to amputation of his left leg was considered to be not less than 90% as at the age of 55 years it would be impossible for him to find any job. The observations in above-said judicial precedent are not applicable to the present case as the appellant was aged about 32 years at the time of the accident and it was not impossible for the appellant to find alternative mode of earning his livelihood. However, in view of the nature of his injuries and consequent permanent disability, the appellant may not be able to work in the same manner and on the same terms as a physically healthy abled bodied person would. In Syed Sadiq's Case (Supra) in Civil Appeal @ MFA 1132/2011 (MVC No.147/2010) Hon'ble Supreme Court assessed permanent functional disability of a vegetable vendor due to compound fracture of right femur, fracture of tibia, fracture of middle shaft tibia and fibula as 35% against assessment of permanent disability of 69% to lower limb by the doctor and assessment of functional disability as 25% by the High Court. Facts of the present case are similar. In the facts and circumstances of the case and on overall assessment of the material on record including the Permanent Disability Certificate as to 5% permanent disability of right lower limb of the appellant, it will be appropriate to assess permanent physical disability of body and consequent loss of earning capacity of the appellant as 25% instead of 100%. The appellant was aged about 32 years and was having income of Rs. 4,000/- per month at the time of the accident to which addition of 40% (4000 X 40/100=) Rs. 1600/- has to be made towards future prospects as per observations made by Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 (4) R.C.R. (Civil) 1009. In view of age of the appellant at the time of accident being 32 years, multiplier of 16 was applicable as per observations made by Hon'ble Supreme Court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another 2009 (3) R.C.R. (Civil) 77. On application of the multiplier method as per the observations made by the Hon'ble Supreme Court in Raj Kumar's Case (Supra), proportionate compensation payable to the appellant for loss of future earnings due to functional permanent disability and consequent loss of earning capacity to the extent of 25% comes to (Rs. 5,600/- X 12 X 16 = Rs. 10,75,200 X 25/100=) Rs. 2,68,800/-.

So far as the non-pecuniary general damages are concerned, the Tribunal merely awarded amount of Rs. 5,000/-towards pain and suffering as a consequence of the injuries and did not award any amount for loss of amenities. In view of the nature of the injuries including fracture of right pelvis and consequent permanent disability suffered by the appellant, the amount awarded by the Tribunal for pain and suffering was on the lower side. In the facts and circumstances of the case, it would be just and proper to award amount of Rs. 25,000/- to the appellant towards pain and suffering and Rs. 25,000/- towards loss of amenities. However, the injuries are not proved to have shortened the longevity of life and resulted in loss of expectation of life and the appellant is not entitled to any compensation therefor.

It follows from the above discussion that the appellant is entitled to payment of compensation as calculated under the following heads:-

Sr. No.

Head

Compensation

1.

Expenses relating to medical treatment, hospitilzation and medicines

Rs. 5,000/-

2.

Future medical treatment

-nil-

3.

Expenses relating to Transportation, Special Diet and Attendant

Rs. 16,000/-

4.

Loss of earnings during the period of treatment

Rs. 16,000/-

5.

Loss of future earnings due to loss of earning capacity/functional permanent disability

2,68,800/-

6.

Pain and suffering

Rs. 25,000/-

7.

Loss of amenities

Rs. 25,000/-

8.

Shortening of longevity of life

-nil-

9.

Total Compensation

Rs. 3,55,800/-

In the present case, the Tribunal directed the payment of compensation amount with interest at the rate of 6% per annum from the date of filing of the claim petition till realization of the whole amount which is challenged to be inadequate and the question which arises is as to what would be the appropriate rate of interest.

In claim petitions under Section 163-A or 166 of the M.V. Act, the Motor Accident Claims Tribunal is empowered by Section 171 of the M.V. Act to award interest, in the eventuality of claim petition being allowed, from the date of making the claim at such rate as may be specified by it. In awarding interest, the Motor Accident Claims Tribunal is not bound by the provisions of Section 34 of the Code of Civil Procedure, 1908 to restrict the award of interest to 6% per annum. In Puttamma and others Vs. K.L. Narayana Reddy and another 2014 (1) R.C.R. (Civil) 443, Hon'ble Apex Court observed in para 60 as under:-

"This Court in Abati Bezbaruah Vs. Deputy Director General, Geological Survey of India and another (2003) 3 SCC 148 noticed that varying rate of interest is being awarded by the Tribunals, High Courts and this Court. In the said case, this Court held that the rate of interest must be just and reasonable depending on the facts and circumstances of the case and should be decided after taking into consideration relevant factors like inflation, change in economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, loss of enjoyment of life etc."

In Supe Dei and others Vs. National Insurance Company Ltd. and another 2009 (4) SCC 513, Hon'ble Apex Court held that 9% per annum would be the appropriate rate of interest to be awarded in Motor Accidents Claims compensation cases. In Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy : 2012(3) RCR (Civil) 203 and Syed Sadiq etc. Vs. Divisional Manger, United India Insurance Company : 2014(1) RCR (Civil) 765 interest was awarded at the rate of 9% per annum. In Sube Singh and another Vs. Shyam Singh (Dead) and others 2018 (2) R.C.R. (Civil) 131 (SC) rate of interest of 6% per annum awarded by the Motor Accidents Claims Tribunal was modified by Hon'ble Supreme Court of India to 9% per annum.

In view of the observations in above referred judicial precedents, mercantile rate of interest prevalent, rate of interest allowed by Nationalized Banks on fixed deposit receipts and other relevant factors, it will be appropriate to modify interest awarded by the Tribunal at the rate of 6% per annum to 9% per annum.

It follows from the above discussion that the appellant is entitled to payment of amount of Rs. 3,55,800/- from the respondents No.1, 2 and 3 jointly and severally with costs and interest at the rate of 9% per annum from the date of institution of the petition till realization. Amount of Rs. 67,400/- already awarded to the appellant shall be liable to be deducted from the abovesaid amount. On deposit 40% of the enhanced compensation be paid to the appellant in cash and remaining 60% be deposited in some nationalized bank in three FDRs spread over a period of three years i.e. one, two and three years respectively.

In view of the above discussion, the appeal is allowed with costs in the above terms and award dated 04.05.2012 is modified as discussed above.