Oriental Insurance Co. Ltd. vs Madan Lal

1,Pain and sufferings:,"Rs. 2,00,000/-",

2,Medical Expenses:,"Rs. 50,000/-",

3,Future Medical Expenses:,"Rs. 50,000/-",

4,Future Economic Loss (Pecuniary Loss):,"Rs. 12,00,000/-",

5,"Disability including the loss of amenities and loss of

expectations of life :","Rs. 2,00,000/-",

6,Attendant:,"Rs. 1,00,00/-",

7,Extra diet:,"Rs. 20,000/-",

,Total,"Rs. 18,20,000/-",

Supreme Court 3191 (1), Paragraphs 33 and 36 whereof is read as under:",,,

So far the general principle of estimating damages under common law is concerned, it is settled that the pecuniary loss can be ascertained only",,,

by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the",,,

‘pecuniary advantage’ which from whatever source comes to him by reason of the death. In other words, it is balancing of loss and gain of",,,

the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the",,,

light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the",,,

claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act",,,

has to be deciphered, eo-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the",,,

pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious",,,

illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act.",,,

Thus, the application of general principle under the common law o floss and gain for the computation of compensation under this Act must co-",,,

relate to this type of injury or deaths, viz., accidental. If the words ‘pecuniary advantage’ from whatever source are to be interpreted to",,,

mean any form o&death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law.,,,

If the ‘pecuniary advantage’ resulting from death means pecuniary advantage coming under all forms of death then it will include all the,,,

assets movable, immovable shares, bank accounts, cash and every amount receivable under any contract.",,,

Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during",,,

the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured,",,,

is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz.,",,,

accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his",,,

contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise,,,

than the accidental death. No co-relation between tire two. Similarly, life insurance policy is received either by the insured or the heirs of the",,,

insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he",,,

lives till maturity after paying.""",,,

(Emphasis supplied).,,,

In view of the above decision, in so far as the income is concerned, deduction of Rs. 5,000/- applicable to pension from income is erroneous.",,,

Hence, the income of Rs. 15,000/- claimed supported by evidence will be appropriate. Learned counsel for the claimant-Respondents No. 1 also",,,

placed reliance on case titled Vimal Kumar & Ors. v. Kishore Dan & Ors. reported in 2013 AIR SCW 3258, in support of this plea. Hence",,,

the plea of the claimant is accepted.,,,

In terms of the award of the learned Tribunal, the injured claimant was 47 years of age at the time of accident and the same is not disputed by",,,

the appellant-Insurance Company. The fact that the claimant is suffering 100% disability is based on the evidence of the doctor and it is not,,,

seriously disputed as the medical board had testified that the claimant is not in a position to move by himself or to do any work and he requires the,,,

help of an attendant throughout his life. There is no likelihood of the disability decreasing with the passage of time. There is no material on record,,,

contrary to the above finding and to discard the evidence that the injured claimant is totally disabled. Injured claimant was hospitalized for a long,,,

time and necessarily he will need an attendant to taken care of him. The Tribunal did not grant the same.,,,

The other issue raised in the appeal is that the medical expenses hill submitted is only to the extent of Rs. 15,500/- whereas Tribunal has",,,

erroneously granted Rs. 50,000/-. This is verified by the counsel for claimant and accepted as tenable plea. Therefore, in so far as medical",,,

expenses is concerned, it stands reduced to Rs. 15,500/- (rupees fifteen thousand five hundred only).",,,

In so far as plea that in respect of pain and suffering, the compensation is excessive is justified. This has to be considered in the light of the",,,

nature of injury, period of hospitalization etc. The Tribunal without any discussion awarded Rs. 2,00,000/- (rupees two lacs only) for pain and",,,

suffering. Appellant counsel pointed out that the claimant in the claim petition sought for Rs. 50,000/- (rupees fifty thousand only) for pain and",,,

suffering in Paragraph 20(A) of the claim petition. Hence the appellant pleads for reduction.,,,

Having considered the above plea, the serious nature of the injury, period of hospitalization, medical expenses, future medical expenses and",,,

loss of pecuniary benefits, the compensation requires to be modified for granting just compensation. I am inclined to modify the compensation on",,,

various heads as follows.,,,

Considering the age, nature of injury as discussed above, the period of hospitalization, disability etc. in so far as pain and sufferings is",,,

concerned as against Rs. 2,00,000/- (rupees two lacs) awarded, a sum of Rs. 1,00,000/- (rupees one lac only) is granted to the",,,

claimant/Respondent No. 1 substantial amount is granted in other heads.,,,

In so far as future medical expenses is concerned, same is confirmed.",,,

As regards, disability including the loss of amenities and loss of expectations of life, Rs. 2,00,000/- (rupees two lacs only) is granted by the",,,

Tribunal. In view of the decision in Raj Kumar v. Ajay Kumar & Anr. reported in 2011 ACJ 1, the same is reduced to Rs. 50,000/- (rupees",,,

fifty thousand). Paragraph 10 of aforementioned judgment is reproduced as under:,,,

It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100 percent (or even any thing more than,,,

50 per cent), 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.,,,

S. No.,"Nature/Head of

compensation",By Tribunal,"Modified by this

Court

1,Pain and sufferings,"Rs. 2,00,000/-","Rs. 1,00,000/-

2,Medical Expenses,"Rs. 50,000/-","Rs. 15,500/-

3,"Future Medical

Expenses","Rs. 50,000/-","Rs. 50,000/-

4,"Future Economic

Loss","Rs. 12,00,000/-","Rs. 18,00,000/-

5,"Disability including the

loss of amenities and

loss expectation of life","Rs. 2,00,000/-","Rs. 50,000/-

6,Attendant,"Rs. 1,00,000/-","Rs. 50,000/-

7,Extra Diet,"Rs. 20,000/-","Rs. 20,000/-

,Total,"Rs. 18,20,000/-","Rs. 20,85,500/-