Kaushal Kishore Sharma vs M/s. New Sethi Transport Co. and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 has been preferred by claimant/appellant against an Award dated 1st February 2005 in Claim Case No. 7/04 passed by the MACT, Bhind (M.P.), on being dissatisfied with the quantum of compensation. The facts, in short, just for the decision of this case are that on 25th October, 2003 in the morning, the claimant/injured was coming back to his village Kheriya Thapak on his motorcycle bearing No. RJ-14-43/M-3879 alongwith one Ramshesh, as pillion rider from Jaipur where he was usually going for working. When these persons reached near village Mandana district Dausa (Rajasthan), they received dash from the truck No. RJ 14-G-6055, which at that time was being driven by Baldev Singh (Respondent No. 2), owned by M/s. New Sethi Transport Company Jaipur (Respondent No. 1) and insured with New India Insurance Company (Respondent No. 3). In such an accident, the claimant was seriously injured and got several fractures in legs. An F.I.R. was lodged at Police Station Dausa (Rajasthan). After investigation, the charge-sheet was filed before the court competent. It is stated that the injured, on the date of accident, was working as a skilled labour and by doing painting work, he used to earn Rs. 250/- per day. It is stated in the claim petition that due to injuries received by the appellant, he got permanent disablement which results in functional disability. The appellant, in these circumstances, prayed for compensation to the tune of Rs. 3,03,30,902/- in all the heads for the injuries against the respondents. The learned tribunal after recording the evidence of the parties and by considering the evidence awarded a sum of Rs. 41,226/- in favour of the injured. Aggrieved by the award, the claimant/appellant has preferred this appeal.

Learned counsel for the appellant submitted that the award under appeal is against the facts as appeared from the evidence and the law applicable to the case, hence, same is liable to be set aside. It is further argued that the tribunal erred in computing monthly income of the injured. The injured was working as skilled daily labourer and was receiving Rs. 7,500/- monthly but due to accident he got permanent disability and was not in a position to perform the work efficiently. Apart from it, it is submitted that no appropriate compensation was granted to the injured in other heads. On these grounds it is prayed that by allowing the appeal, the compensation amount may be enhanced.

Learned counsel for the respondent No. 3 though admitted the accident and also injuries caused to injured in accident opposed the prayer of enhancement of compensation and prayed that the compensation as awarded being adequate looking to the nature of injuries, the appeal seeking enhancement of the award deserves to be dismissed.

Heard the learned counsel for the parties. Also perused the record of the tribunal.

The question for consideration in this appeal is as to what would be just compensation in the facts of the present case.

It is not disputed that on the date of accident, the injured was aged 24 years and was working as daily wager and used to earn Rs. 250/- per day. It is also not disputed that sometimes he was getting more wages in his specified field. It is further not in dispute that the accident was the direct result of negligent driving on the part of the driver-respondent No. 2 of the offending truck and as per evidence adduced by the parties, the contributory negligence is not proved. It is also proved that in accident, the injured got severe bony injuries and resultantly patella bone (knee cap) was removed during operation of the injured. It is also proved that after accident and the primary treatment, further treatment was provided to the injured by the different hospitals at Jaipur, Rajasthan and District Hospital Bhind. In his statement Dr. J.S. Yadav, (AW-2) who at the relevant time was posted in the District Hospital Bhind deposed that he examined the injured and treated him. He stated that twice plasters at the interval of one-one month were applied and medicine were prescribed. He opined that after removal of knee cap, there cannot be any difficulty to the patient in performing routine work except athletic activities. In this manner, the doctor did not confirm the disability of the injured for his future life and further no opinion was expressed by the doctor relating to loss of future earnings on account of the accident. Considering the evidence on record, the learned tribunal awarded compensation of Rs. 30,000/- for loss of earnings, Rs. 6226/- for medical expenses and Rs. 5000/- for pains and sufferings. Accordingly, total amount of Rs. 41,226/- as compensation was awarded to the injured by the impugned Award.

In the case of Mohan Soni Vs. Ram Avtar Tomar and Others, at page 270: the Hon. Apex court observed as follows:-

In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one''s personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.

Prior to it, in Raj Kumar Vs. Ajay Kumar and Another, the Hon. Apex Court observed as follows:-

The heads under which compensation is awarded in personal injury cases are the following:

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:

(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).

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.

Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii)(a).

In cases of motor accidents an endeavour should be made to put the claimant in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. Hence, the damages so awarded should be adequate sum of money that would put the party, who has suffered in the same position if he had not suffered on account of the wrong. For these reasons, in addition to pecuniary losses, the law recognizes that payment should also be made for non-pecuniary losses on account of loss of happiness, pain, suffering and expectancy of life etc. The Act also provides for payment of just compensation. Therefore, the endeavour of the court must be to provide a just, fair and reasonable amount as compensation keeping in view all the relevant facts and circumstances into consideration. On considering these legal and factual aspects of this case, it is apparent that the learned MACT did not consider the aspect of compensation on the aforesaid recognized heads such as (1) expenses towards transportation of injured from place of accident to his residence, expenses for his nursing during his actual treatments in the Hospitals in Jaipur which is far away from his residence, loss of future income due to the direct result of injuries received in accident as after accident he would be unable to do painting work after climbing at the roof as appeared from his statement recorded and the expenses for bony injuries which was not defined as permanent injury. Thus, after keeping in to consideration these above aspects, this court is of the view that a further sum of Rs. 2,00,000/- (Rs. Two lac only) would be sufficient to meet the ends of justice. Resultantly, the appeal stands disposed of. The appellant/claimant is held entitled to receive total sum of Rs. 2,41,226/- (Rs. Two Lac forty one thousand two hundred twenty six only) alongwith interest @ 8% on the enhanced sum from the date of filing of the petition till actual payment is made with costs of both the courts, which would be payable jointly or severally by the respondents within a period of three months from the date of this order. Counsel fee Rs. 1,000/- be also added in the costs.