Mahoora Banu vs Mohammad Shafi Channa

Ali Mohd. Magrey, J.—This appeal has been preferred by the appellant-claimant against the judgment and order dated 14.11.2011 passed

by the Motor Accidents Claims Tribunal, Srinagar, (hereafter, the Tribunal) awarding a total compensation of Rs. 2,75,000 in favour of the

petitioner, disallowing her claim on account of medical checkup and treatment outside the State as well as the permanent disability, opined by the

Doctor to be to the extent of 60%, caused to the appellant on account of the accident and not awarding any compensation for loss of earnings.

On 17.11.2007, the appellant was traveling by a Bus bearing registration no. JKE/3788. Somewhere on the National Highway within the

jurisdiction of Police Station Pattan, the Bus, being driven by its driver rashly and negligently, collided with a standing Maruti Car and turned on his

left side. The appellant received multiple fatal injuries on various parts of her body, including left arm.

The petitioner filed a claim petition claiming a total sum of Rs. 30,000,00.00 on the following counts:

a) Rs. 15,00,000 on account of disablement: Appellant in her claim petition claimed that, being a young lady of the age of 26 years, she was

working in the agriculture farm, and that, because of the disablement caused to her she had been deprived of her future earnings for livelihood on

this count;

b) Rs. 10,00,000 on account of shock, pain, mental agony and the tastes of life. Petitioner further claimed that on account of disablement she

would permanently require an attendant for herself;

c) Rs. 5,00,000 on account of treatment, medical expenses etc.

The respondent, Insurance Company, while resisting the claim petition, in paragraph 8 of its objections, inter alia, stated that the quantum of

compensation adjudicated to be payable by the answering respondent was highly exaggerated and that the liability of the answering respondent

cannot be fixed beyond the scheduled provided under the Motor Vehicles Act and other provisions thereof.

The Tribunal by its impugned judgment has awarded compensation to the appellant-petitioner under different heads as mentioned below:

The petitioner-appellant has filed this appeal on the grounds taken in the memorandum of appeal.

I have heard learned counsel for the parties, perused the record and considered the matter.

It may be mentioned here that the Driver and prospective owner of the vehicle in question have not filed any objections to the Claim petition

before the Tribunal and, in fact, they were proceeded ex parte. However, the original owner of the vehicle and the Insurance Company filed their

written statements, and the Tribunal framed the following four issues in the petition:

Whether on 17th of November, 2007, the petitioner was traveling in bus No. JKE-3788 towards Srinagar, being plied by respondent driver

rashly and negligently which collided with maruti car No. JK-4629. The petitioner sustained serious injuries in the said accident which resulted in

her permanent disablement? OPP

Whether the respondent owner has committed breach of insurance contract by permitting the respondent driver, not holding a valid and effective

driving license on the date of accident. If yes, the respondent insurance company is not liable to indemnity the respondent owner? OPR3

In case the issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to, from whom and in what

proportion? OPP

Relief?

One of the two eye witnesses examined by the petitioner stated that left arm of the appellant had come under the bus and it was only after

200/300 people, who gathered on spot, lifted the bus up, using logs, that the appellant could remove her arm from underneath the Bus. The

Tribunal recorded its finding that the accident had taken place as a result of rash and negligent driving by the respondent/driver which has resulted

in grievous injuries to the petitioner. Accordingly, the Tribunal decided issue no. 1 in favour of the appellant and against the respondent Company.

Insofar as issue no. 2 is concerned, the Tribunal recorded the finding that the vehicle was insured on the material date of occurrence and that the

driver was holding a valid license. The Tribunal came to the conclusion that the Insurance Company miserably failed to discharge the onus and,

consequently, issue no. 2 was decided against the Insurance Company and in favour of the driver and owner.

Issue no. 1 having been proved in affirmative, the Tribunal has proceeded to determine the quantum of compensation payable to the appellant.

Perusal of the impugned judgment reveals that on behalf of the appellant it was argued that she was a young lady of the age of about 29 years

and was working in the agriculture farm. She having suffered 60% permanent disablement in her arm has rendered her permanently disabled for

life. By reason of such disablement she would not be able to do domestic work not to speak of agriculture work in her farm at Kupwara.

The learned Tribunal in its impugned judgment has recorded that since the appellant was working as a Rahbar-e-Taleem, getting Rs. 1500 per

month, and that by now she would be confirmed as a Teacher, therefore, it can safely be said that the appellant did not suffer any loss of income

on account of the disablement. The Tribunal, accordingly, held that award cannot be granted under this head.

Mr. M.A. Qayoom, learned counsel for the appellant, submitted that that it was the specific case of the appellant-petitioner before the Tribunal

that the appellant had been engaged as a Rahbar-e-Taleem which was a contractual engagement and that, since by reason of the motor accident in

question, the appellant could not attend her duties, she stood disengaged and was no more holding the position. He further submitted that there

was no evidence before the Tribunal that the appellant was continuing as Rehbar-e-Taleem ; instead it was pleaded that the appellant having been

rendered disabled permanently to the extent of 60% and she was not able to do her domestic chores and the agricultural work which the village

woman generally do in their fields alongside their other family members and, thereby she has suffered a set back and loss. The learned counsel

submitted that the Tribunal, without there being any evidence to that effect, itself in its finding has recorded that the petitioner in her statement made

on 30.6.2009 had admitted that she was working as a Government Teacher.

The learned Tribunal while adverting to this aspect of the matter, in its impugned award, has observed as under:

The petitioner in her petition has stated that she was working in the agriculture farm and due to disablement caused to her in the accident she has

lost future earning as she was a young lady, could earn for her livelihood for a long time and to this effect she has claimed compensation. But her

contention has been nullified by the witness Irshad Ahmad who has been produced by her and happens to be her relative. The said witness has

stated before this court on 23.7.2009 that the petitioner was Rehbari Taleem (RT) Teacher and was getting 1500/- rupees per month and her

service would confirm after five years, and in the meanwhile has stated that her service was not confirmed because she could not go to school on

account of this accident and as such she was deprived of this job. But the documentary evidence in the shape of photocopy of order issued by

office of the Zonal Education Officer, Kupwara has of late been produced by the petitioner herself. The perusal of the said order reveals that a

post has been created in newly sanctioned Pry School Geerhati Kupwara under SSA vide DEK s order No. Plg/SSA-02-04/1712-17 dated

07.8.2004 and CEO Kupwara s No. Plg/Opg/800-21 dated 29.10.2004, the petitioner Mahoora Bano, qualification 10+2 W/O Manzoor

Ahmad Wani R/O Geerhati Kupwara has been appointed as Rehbar-Taleem in SSA Pry School Geerhati on merit basis by the Selection

Committee vide No. Estt/SSA/RT/22928-29 dated 22.3.2005 on the monthly honorarium of Rs. 1500/- and the said order was dispatched

besides the authorities at the helm of affairs to the petitioner also vide Dispatch No. ZEO/05/1875-78 dated 23.3.2005 which means that the

petitioner is under Government employment and this the petitioner has also admitted in her statement before this Tribunal on 30.6.2009 that she is

working as Govt. teacher.

I have minutely gone through the deposition made by the appellant before the Tribunal on 30.06.2009. It is seen there from that though she has

not stated anywhere that she was working as a Rehbar-e-Taleem, but her identification particulars mentioned at the top of the statement she had

tendered before the Tribunal mentions her occupation as Government Teacher. Learned counsel for the appellant has vehemently disputed the

same. Irshaad Ahmad in his deposition has in unambiguous terms stated that the appellant was appointed as Rehbar-e-Taleem in 2005, and that

after five years she would be confirmed, but, as she could not go to School, she lost the job. Obviously, reference to the order of appointment of

the appellant as Rehbar-e-Taleem made by the Tribunal in its judgment is a fact which related to a date prior to the accident. There is no evidence

on record, worth the name, to even remotely suggest that after the accident the appellant continued to function as such Rehbar-e-Taleem or that

she had been confirmed as a regular teacher before completion of five years after her such appointment. It is specifically recorded by the Tribunal

in the impugned judgment that the appellant had been appointed as Rehbar-e-Taleem on 23.3.2005, and it is also not in dispute that on the date of

making of the aforesaid deposition before the Tribunal viz. on 30.06.2009, even if she was continued after the accident, she could not have been

regularised as a Government teacher, because she had not completed 5 years service as Rehbar-e-Taleem, which eventuality could arise only after

March, 2010. Apparently, the occupation of the appellant recorded at the top of the statement while describing her particulars is not supported by

the rules and/or any other evidence. The finding recorded by the Tribunal is, thus, based on assumption, especially so in view of the categorical

statement made by the witness, Irshad Ahmad, that the appellant lost the job.

Learned counsel further submitted that on account of the permanent disablement and the set back suffered by the appellant on account of her

inability to perform domestic chores and agriculture work in the fields, she was entitled to and had claimed compensation to the tune of Rs.

15,00,000, but the learned Tribunal has not returned any finding on this vital aspect of the matter. He submitted that the appellant is entitled to a

just compensation, which may not be equated with a bonanza, but, at the same time, the concept of just compensation, as prescribed by law,

would suggest application of fair and equitable principles and reasonable approach on the part of the Tribunal to determine the quantum of

compensation.

The learned counsel also submitted that the learned Tribunal has also disallowed half of the claim of the appellant under the head medical

expenses on untenable and flimsy grounds. The learned counsel invited the attention of this Court to the reasons recorded in that regard by the

Tribunal in its impugned judgment, which portion of the judgment is quoted hereunder:

It seems that the petitioner has out of her own gone to Delhi for the medical check up which was already done herein at Srinagar. This means that

she has been given full treatment here and was not required to go out of State. This menace/fashion adopted by general public is required to be

discouraged. In case this is allowed to go, it will encourage the public and resultantly will adversely tell upon State Exchequer which is the trustee

of the public money.

On the aforesaid reasoning, the Tribunal has disallowed the claim of the appellant in that regard in the following words:

There is also documentary medical evidence available on record. Perusal of which reveals that the same have been collected by the petitioner from

the various medical institutes, including All India Institute of Medical Sciences, Delhi and shows that the petitioner has been treated there and

during this process medicines have been purchased. Air Ticket showing air fare also forms part of the medical record. But as stated hereinabove

that this part of medical evidence cannot be taken into account, because of the fact that the traumas suffered by the petitioner has been treated

herein in the Kashmir Valley as is evident from the oral evidence produced by the petitioner herself and also that such traumas get full treatment

here as all the Govt. Medical Institutes located in the valley of Kashmir are well equipped with the latest technology.

Mr. Qayoom, learned counsel, submitted that the learned Tribunal has not awarded adequate compensation to the appellant and, therefore,

has prayed for enhancement of the compensation. Precisely, his case is that the appellant is entitled to a fair compensation for having suffered

permanent disablement, medical expenses etc. on account of her having undergone treatment etc outside the Valley as also under other heads,

particularly loss of earnings. To buttress his submissions, the learned counsel cited and relied upon the judgment of the Supreme Court in S.

Manickam Vs. Metropolitan Transport Corporation Ltd., .

On the other hand, learned counsel for the Insurance Company vehemently opposed the prayer of the appellant on the ground that the

Tribunal, in the facts and circumstances of the case, has awarded a just compensation.

It becomes axiomatic from the impugned judgment passed by the learned Tribunal that it has not granted any compensation to the appellant on

account of permanent disablement caused to her. The Tribunal has linked the permanent disablement with its affect on the earning capacity as a

Rahbar-e-Taleem and has come to the conclusion that no loss at all has been, or would be, suffered, by the appellant on that count. In S.

Manickam v. Metropolitan Transport Corp. Ltd. (supra), at paragraph 9 of the judgment, the Supreme Court, has mentioned and relied upon its

earlier judgment, in Ramesh Chandra v. Randhir Singh and others, 1990 (3) SCC, and observed that it had been categorically held therein that

compensation can be payable both for loss of earning as well as disability suffered by the claimant. Again at paragraph 10, the Supreme Court has

relied upon its earlier judgment in B. Kothandapani Vs. Tamil Nadu State Transport Corporation Ltd., , wherein the Supreme Court, granted

separate compensation under the head permanent disability even after grant of compensation under loss of earning/earning capacity. Paragraph 9

and 10 of the judgment are relevant to the argument advanced in this case by the learned counsel for the appellant and the same are, therefore,

quoted hereunder:

This Court, in Ramesh Chandra Vs. Randhir Singh and Others, , has categorically held that compensation can be payable both for loss of

earning as well as disability suffered by the claimant.

In addition to the same, in B. Kothandapani Vs. Tamil Nadu State Transport Corporation Ltd., , this Court (speaking through one of us) after

considering the Full Bench decision of the Madras High Court in Cholan Roadways (supra), disagreed with the said view and granted separate

compensation under the head permanent disability even after grant of compensation under loss of earning/earning capacity. The following

conclusion is relevant:

In Ramesh Chandra v. Randhir Singh while considering award of compensation for permanent disability (right foot amputated) caused by the

accident u/s 110B of the Motor Vehicles Act, 1939 which is similar to Section 168(1) of the Motor Vehicles Act, 1988, this Court upheld the

award of compensation under the separate head of pain, suffering and loss of enjoyment of life, apart from the head of loss of earnings. The

discussion and ultimate conclusion are relevant which read as under:

With regard to Ground 19 covering the question that the sum awarded for pain, suffering and loss of enjoyment of life, etc. termed as general

damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis. The

pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant

and the ordeal he had to undergo. If money be any solace, the grant of Rs. 2,000/- to the claimant represents that solace. Money solace is the

answer discovered by the law of torts. No substitute has yet been found to replace the element of money. This, on the face of it appeals to us as a

distinct head, quite apart from the inability to earn livelihood on the basis of incapacity or disability which is quite different. The incapacity or

disability to earn a livelihood would have to be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account

deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grant of compensation under the head

of pain, suffering and loss of enjoyment of life. One head relates to the impairment of person s capacity to earn, the other relates to the pain and

suffering and loss of enjoyment of life by the person himself. For these reasons, we are of the considered view that the contentions raised by the

truck owner appellant in that behalf must be negatives and we hereby negative them.

It is true that the compensation for loss of earning power/capacity has to be determined based on various aspects including permanent

injury/disability. At the same time, it cannot be construed that compensation cannot be granted for permanent disability of any nature. For example,

take the case of a non-earning member of a family who has been injured in an accident and sustained permanent disability due to amputation of left

or hand, it cannot be construed that no amount needs to be granted for permanent disability. It cannot be disputed that apart from the fact that the

permanent disability affects the earning capacity of the person concerned, undoubtedly, one has to forego other personal comforts and even for

normal avocation they have to depend on others.

After laying down the above ratio regarding merits of that case, it was concluded:

In the case on hand, two doctors had explained the nature of injuries, treatment received and the disability suffered due to partial loss of

eyesight and amputation of middle finger of the right hand and we have already adverted to the avocation namely, at the time of accident, he was

working as foreman in M/s. Armstrong Hydraulics Ltd. Taking note of his nature of work, partial loss in eyesight and loss of middle finger of the

right hand, not only affect his earning capacity, but also affect normal avocation and day-to-day work. In such circumstances, we are of the view

that the Tribunal was fully justified in granting a sum of Rs. 1,50,000/- towards permanent disability.

The above decision makes it clear that the ratio laid down by the Full Bench of the Madras High Court in Cholan Roadways (supra) has not been

accepted by this Court.

It may also be mentioned here that following the ratio in B. Kothandapani (supra), the Supreme Court in the subsequent decision in K. Suresh

Vs. New India Assurance Company Ltd. and Another, , awarded separate amount for permanent disability apart from fixing compensation under

the head loss of earning or earning capacity. This is borne out by paragraph 11 of the judgment in S. Manickam v. Metropolitan Transport Corp.

Ltd. (supra),

In so far as the case in S. Manickam v. Metropolitan Transport Corp. Ltd. (supra), was concerned, the Supreme Court in paragraph 13

thereof held that the High Court has committed an error in setting aside the award amount of Rs. 1,00,000/- under the head permanent disability

on the ground that substantial amount had been fixed under the head loss of earning and loss of earning capacity. Then, in paragraph 16 of the

judgment, the Supreme Court has held as under:

In para 16 of the impugned judgment the High Court, while computing the loss of earning capacity, without any acceptable reason, applied the

multiplier of 10 and fixed a sum of Rs. 3,20,000/-(Rs. 8000/- x 10 x 12 x 1/3) as against Rs. 4,00,000/- determined by the Tribunal. Learned

counsel appearing for the appellant submitted that even for determining just and fair compensation in the case of injury/permanent disablement, the

tribunal/courts are free to apply multiplier method for which he relied on a decision of the Madras High Court in United India Insurance Company

Ltd., Branch Officer Vs. Veluchamy and Another, . While agreeing with the said decision, though multiplier method cannot be mechanically applied

to ascertain the future loss of income or earning power, depending on various factors such as nature and extent of disablement, avocation of the

injured whether it would affect his or her employment or earning power, we are of the view that the loss of income or earnings may be ascertained

by applying the same as provided under the second schedule to the Act

Coming to the case on hand, the Tribunal has not awarded any amount in favour of the appellant on account of permanent disability caused to

her. The Tribunal has also not considered or awarded the compensation to the appellant under the head of loss of income. The Tribunal has also

disallowed compensation on account of medical expenses incurred by the appellant either at Delhi or at Amritsar on, I must say, an untenable

ground that it would tell upon State Exchequer.

Now, the Tribunal has already awarded an amount of Rs. 90,000/- under the head mental agony in favour of the appellant. This amount, in my

view, should suffice the monetary solace for the sufferings on account of permanent disability. However, as regards loss of earnings, it has come on

record that at the time of accident, the appellant was earning Rs. 1500/- as honorarium. She had been appointed as Rehbar-e-Taleem on

23.3.2005. Five years thereafter, on or around 23.3.2010, she would have been confirmed as a regular teacher. On the date of accident her age

was stated to be 26 years. In normal course, she would retire at the age of 58 years and thereby had the prospects of earning as a Government

teacher for another 32 years till her retirement. That means from the date of accident, which occurred on 17.11.2007, she would have continued

as Rehbar-e-Taleem on Rs. 1500/- honorarium per month for about another 28 months. Thereafter, on regularization as a regular teacher, she

would draw her salary, in accordance with the scale of pay and grade applicable to such teachers for another about 29 years with all possible

increases in her salary. Unfortunately, there is no evidence, not even in the least, on record to show as to what pay and allowances the appellant

would be entitled after confirmation. Be that as it may, even if her monthly earnings are taken to be only Rs. 1500/-, i.e., the amount she was

drawing as Rehbar-e-Taleem, which job she lost on account of the accident, she was entitled to compensation on account of loss of such earnings.

Clause 5 of the Schedule appended to the Act lays down as under:

Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents.-

Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.

Plus either of the following.-

(a) in case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier

applicable to the age on the date of determining the compensation; or

(b) in case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total

disable as specified under item (a) above.

The annual loss of income of the appellant @ Rs. 1500/- at the time of accident, comes to Rs. 18,000/-. Since the appellant had suffered

permanent partial disablement to the extent of 60%, applying the formula contained in sub-clause (b) of Clause 5 quoted above and the multiplier

17 in terms of the judgment of the Supreme Court in Sarla Verma s case, the compensation payable to the appellant for the loss of income would

come to Rs. 18,000 + (18,000 x 17 x 0.6) = 18,000 +1,83,600 = 2,01,600.

As to the expenses incurred by the appellant for her treatment at Delhi or at Amritsar, the claim petition filed by the appellant is bereft of the

details of the expenditure on that count. Nonetheless, there are photocopies of numerous medical vouchers on record and the air ticket details

which do suggest that the appellant has had to incur huge amounts on her treatment outside the State. The appellant in her statement has stated that

she had to incur two to four lac rupees on her treatment. The Tribunal has awarded compensation of Rs. 1,30,000 in her favour under the head

medicines and diet expenses. I think, it would be just and fair to grant Rs. 20,000/- more under this head to the appellant on account of her

treatment at Delhi and at Amritsar, which would include her air tickets and of her attendant, local transport at the places of treatment, fee paid to

the Hospitals, Doctors, cost of medicine and tests conducted at these two places etc. etc.

In light of the above discussion, the appellant is held to be entitled to the following additional amounts:

i) Loss of income: Rs. 2,01,600

ii) Towards expenses incurred on treatment outside the State: Rs. 20,000

Accordingly, in addition to the amount awarded by the Tribunal, the claimant/appellant is entitled to an additional amount of Rs. 2,21,600.

Altogether, it is made clear, the appellant is entitled to a total compensation of Rs. 2,75,000 + Rs. 2,21,600 = 4,96,600. The respondent

Insurance Company is directed to deposit the aforesaid additional awarded amount before the Registry of this Court within one month for its

payment to the appellant, failing which a simple interest at the rate of 9% on the additional amount of Rs. 2,21,600 hereby awarded shall be

chargeable from the Insurance Company from the day following expiry of one month till its actual payment or realization,

The appeal stands accordingly allowed and the impugned award passed by the Tribunal is modified to the extent indicated above.

No order as to costs.