Karam Singh Vs M/S The Kangra ExServiceman TPT

The Hon''ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. Whether approved for reporting? Yes. For the appellant: Ms. Leena Guleria, Advocate, vice Mr. G.R. Palsra, Advocate. For the respondents: Mr. Neeraj Gupta, Advocate, for respondents No. 1 to 8. Mr. Bhunesh Pal, Advocate, for respondent No. 9. Mansoor Ahmad Mir, Chief Justice. (Oral) Subject matter of this appeal is award, dated 21st November, 2011, made by the Motor Accident Claims TribunalII, Mandi, District Mandi, H.P. (for short "the Tribunal") in Claim Petition No. 38 of 2004, titled as Sh. Karam Singh versus M/S The Kangra ExServiceman TPT and others, whereby compensation to the tune of Rs. 40,290/with interest @ 7.5% per annum from the date of filing of the petition till its realization came to be awarded in favour of the claimantinjured and the insurer was saddled with liability (for short "the impugned award").

The driver, ownerinsured and the insurer of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.

The claimantinjured has called in question the impugned award, by the medium of the instant appeal, on the ground of adequacy of compensation.

It is apt to record herein that the impugned award was already questioned by the insurer before this Court by the medium of FAO No. 77 of 2012, titled as Oriental Insurance Company Ltd. versus Karam Singh & others, decided on 1st August, 2014, whereby all the issues have been determined against the insurer. After noticing the said judgment, learned counsel for the insurer was directed to seek instructions for settling the claim by paying Rs. 2,00,000/ in lumpsum, failed to do so.

Thus, the only dispute in this appeal is - whether the amount awarded is inadequate?

I have gone through the record read with the impugned award and am of the considered view that the amount awarded is inadequate for the following reasons:

The perusal of the discharge/referral slip, Ext. PW1/ B, does disclose that the claimantinjured remained admitted at Zonal Hospital, Mandi, with effect from 30th January, 2004 to 11th February, 2004 and remained under treatment thereafter also. The disability certificate is also on the record as Ext. PW1/ A, in terms of which the claimantinjured has suffered 20% permanent disability.

The claimantinjured has examined Dr. Sanjeev Raj Kapoor as PW1, who was one of the members of the Medical Board, which has issued the disability certificate, has specifically stated that due to the injury suffered by the claimantinjured, he will not be able to do heavy manual work.

It is beaten law of land that in an injury case, the compensation is to be awarded under pecuniary and nonpecuniary heads by making guess work.

My this view is fortified by the judgments made by the Apex Court in the cases titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755, Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, reported in 2010 AIR SCW 6085, Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011 AIR SCW 4787, and Kavita versus Deepak and others, reported in 2012 AIR SCW 4771.

This Court has also laid down the same principle in a series of cases.

Admittedly, the claimantinjured was 49 years of age at the time of the accident and was working as a Pump Operator with I&PH Department. Because of the disability, he will not be able to perform heavy manual work. The salary certificate of the claimantinjured is on the record as MarkA, in terms of which his income was 6,395/? per month at the relevant point of time. The claimantinjured has suffered 20% permanent disability. Thus, by guess work, it can be safely held that he has suffered loss of income to the tune of ? 500/per month.

Keeping in view the age of the claimantinjured, the multiplier of ''11'' is just and appropriate in view of the Second Schedule appended with the Motor Vehicles Act, 1988 (for short "MV Act") read with the law laid down by the Apex Court in the case titled as Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104, and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120.

Having said so, the claimantinjured has lost source of future income to the tune of ? 500/x 12 x 11 = Rs. 66,000/.

The Tribunal has rightly awarded compensation to the tune of Rs. 6,000/under the head ''cost of attendant'' and 15,000/under the head ''cost Rs. of transportation'', is maintained.

The injury suffered by the claimantinjured has shattered his physical frame and due to the said injury, he will not be able to perform heavy manual work. The Tribunal has fallen in an error in awarding compensation to the tune of Rs. 10,000/each under the heads ''loss of amenities of life'' and ''pain and sufferings''.

The Apex Court in its latest decision in the case titled as Jakir Hussein versus Sabir and others, reported in (2015) 7 SCC 252, while discussing its earlier pronouncements, observed that in injury cases, the compensation would include not only the actual expenses incurred, but the compensation has to be assessed keeping in view the struggle which the injured has to face throughout his life due to the permanent disability and the amount likely to be incurred for future medical treatment, loss of amenities of life, pain and suffering to undergo for the entire life etc. It is apt to reproduce paragraphs 11 and 18 of the judgment herein: "11. With regard to the pain, suffering and trauma which have been caused to the appellant due to his crushed hand, it is contended that the compensation awarded by the Tribunal was meagre and insufficient. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the courts to make a precise assessment of the pain and trauma suffered by a person whose arm got crushed and has suffered permanent disability due to the accident that occurred. The appellant will have to struggle and face different challenges as being handicapped permanently. Therefore, in all such cases, the Tribunals and the courts should make a broad estimate for the purpose of determining the amount of just and reasonable compensation under pecuniary loss. Admittedly, at the time of accident, the appellant was a young man of 33 years. For the rest of his life, the appellant will suffer from the trauma of not being able to do his normal work of his job as a driver. Therefore, it is submitted that to meet the ends of justice it would be just and proper to award him a sum of Rs.1,50,000/towards pain, suffering and trauma caused to him and a further amount of Rs.1,50,000/for the loss of amenities and enjoyment of life. ............

Further, we refer to the case of Rekha Jain & Anr. v. National Insurance Co. Ltd., 2013 8 SCC 389 wherein this Court examined catena of cases and principles to be borne in mind while granting compensation under the heads of (i) pain, suffering and (ii) loss of amenities and so on. Therefore, as per the principles laid down in the case of Rekha Jain & Anr. and considering the suffering undergone by the appellant herein, and it will persist in future also and therefore, we are of the view to grant Rs.1,50,000/towards the pain, suffering and trauma which will be undergone by the appellant throughout his life. Further, as he is not in a position to move freely, we additionally award Rs.1,50,000/towards loss of amenities & enjoyment of life and happiness."

In view of the ratio laid down by the Apex Court in the judgment (supra), I am of the considered view that the claimantinjured is entitled to compensation to the tune of 50,000/under the head ''Rs. loss of amenities of life'' and Rs. 50,000/under the head ''pain and sufferings''. The claimantinjured is also entitled to Rs. 20,000/under the head ''medical expenses already incurred and to be incurred in future''.

Having glance of the above discussions, the claimantinjured is held entitled to total compensation to the tune of Rs. 66,000/+ Rs. 6,000/+ Rs. 15,000/+ Rs. 50,000/+ Rs. 50,000/+ Rs. 20,000/= Rs. 2,07,000/with interest @ 7.5% per annum from the date of the impugned award till its realization.

In view of the discussions made hereinabove, the amount of compensation is enhanced, impugned award is modified and the appeal is disposed of, as indicated hereinabove.

The insurer is directed to deposit the enhanced awarded amount before the Registry within eight weeks. On deposition, the same be released in favour of the claimantinjured strictly as per the terms and conditions contained in the impugned award through payee''s account cheque or by depositing the same in his bank account after proper identification.

Send down the record after placing copy of the judgment on Tribunal''s file.