Oriental Insurance Company Ltd. vs Faquir Chand

Mr. Tashi Rabstan, J. - Faquir Chand-claimant, injured (respondent No. 1 herein) filed a claim petition under Section 166 of Motor Vehicles

Act before the learned Presiding Officer, Motor Accident Claims Tribunal (Principal District Judge), Kathua for grant of compensation on account

of injuries caused to him due to rash and negligent driving of driver of the offending vehicle (bus) bearing registration No. RJ-18PA 2711, being

driven by respondent No. 1 (respondent No. 3 herein).

The succinct facts are that on 22.09.2009 at about 7.30 a.m. at Baswain Morh NHW, claimant was hit by offending bus bearing Registration

No. RJ-18PA 2711, driven by respondent No. 3 in rash and negligent manner, resulting in serious injuries to petitioner. Petitioner's left leg got

amputated and he remained at Amandeep Hospital, Amritsar upto 14.10.2009.

The owner and driver of offending vehicle, though duly served, did not come forward to oppose the claim petition. Insurance Company

(respondent no. 3 before the Tribunal) appeared through counsel and filed objections, resisting claim petition on the ground that driver of offending

vehicle was not holding a valid and effective driving licence at the time of accident.

The Tribunal on going through the pleadings of the parties framed the following issues:-

Whether the accident took place on 22.09.2009 at Baswain Morh NHW due to rash and negligent driving by driver of the offending vehicle in

which petitioner sustained injuries ? OPP

In case issue No. 1 is proved in affirmative, whether the petitioner is entitled to compensation? OPP

Whether the driver of the offending vehicle was not holding a valid driving licence at the time of the accident? OPR-3

Relief.

The parties to the claim petition adduced their evidence to discharge the onus of proving issues, burden whereof was placed on them

respectively. Learned Tribunal after deciding all the issues has worked out Rs. 22,24,800/-as compensation payable by the Insurance Company to

the claimants along with interest @7.5 p.a. Thus, it held the Insurance Company to pay the aforesaid compensation to the claimants.

The Insurance Company questions the impugned Award dated 13.04.2011 through the medium of present appeal on the ground that learned

Tribunal has not appreciated the law as well as facts on record, in a proper perspective and the conclusions drawn therefrom were erroneous

under law. That learned Tribunal in absence of any definite proof, with regard to the income of respondent No. 1-Claimant, took Rs. 8000/- as

monthly income while awarding compensation under the Head ""Loss of Future Income"" and respondent No. 1 has not been able to prove on the

basis of cogent and reliable documentary evidence the effect of the injuries on his earning capacity. Even there was not an iota of evidence

produced to prove that because of the injuries sustained, earning capacity of the respondent No. 1 has been reduced. It is further contended that

the compensation worked out by the learned Tribunal in different heads was excessive and on the higher side.

I have gone through the appeal as also the impugned award and have heard learned counsel for the parties.

The possession of one's own body is the first and most valuable of all human rights and while awarding compensation for bodily injuries, this

primary element is to be kept in mind. Bodily injury is to be treated as a deprivation, which entitles a claimant to damages. The amount of damages

varies on account of gravity of bodily injury. Though it is impossible to equate money with human suffering, agony and personal deprivation, the

Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss. Regard must be given

to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be

substantial and not token damages.

The general principle that should govern the assessment of damages in personal injury cases, is that the Court should award to injured person

such a sum as will put him in the same position as he would have been if he had not sustained the injuries.

Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as

regards pecuniary damages and non-pecuniary damages. Pecuniary damages are those the victim has actually incurred and which is capable of

being calculated in terms of money whereas non-pecuniary damages are those, which are incapable of being assessed by arithmetical calculations.

As noted herein above, damages have to be assessed separately as regards pecuniary damages and non pecuniary damages. In the instant

case, Tribunal has awarded Rs. 22,24,800/- under both the heads.

The claimant-injured was reported to be a skilled worker and earning Rs. 10,000/- per month. Even from the perusal of the photocopy of the

Insurance policy, it has been proved that the offending vehicle was insured with respondent No. 3 at the time of accident and which has also been

admitted by respondent No. 3. Learned Tribunal by taking the income of the claimant has assessed income loss to the tune of Rs. 1,24,800/-. It is

further held that leg of the petitioner has been amputated and petitioner needs an attendant permanently to assist him in daily routine work as well

as his official execution, a lump sum amount of Rs. 5.00 lac was granted to him for keeping an attendant, throughout his life. On account of

substituted limb, learned Tribunal has awarded Rs. 6.00 lacs. On account of pain and suffering, learned Tribunal has awarded Rs. 5.00 lacs and on

account of loss of amenities, Rs. 5.00 lacs has been awarded. In total, an amount of Rs. 22,24,800/- has been awarded along with interest @

7.5% p.a. till liquidation minus the amount of interim compensation, if any, received by the petitioner.

The claimant has to suffer pain throughout his life and has to spend a good amount for medical expenses. It would be difficult for the petitioner

to stand independently without the support and would not be able to bend his lower limbs. He has to take the assistance of a helper throughout his

life. The Tribunal, after taking all these aspects in view, awarded a sum of Rs. 22,24,800/-.

On examination of the case in hand from all angles, the compensation awarded to claimant/respondent no. 1, is just and fair compensation and

it deserves not to be interfered with.

The ""incapacity or disability to earn 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"" has been held by the Supreme Court in Ramesh Chandra v. Randhir Singh &

Ors. reported in (1990) 3 SCC 723.

In case Divisional Controller, KSRTC v. Mahadeva Shetty & Anr., reported in (2003) 7 SCC 197, where the claimant was a mason,

the Hon'ble Supreme Court has held thus:-

It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a

deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring

about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to

damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because

of physical handicap. The normal expectation of life is impaired.

In case R.D. Hattangadi v. Pest Control (India) (P) Ltd. & Ors., reported in (1995) 1 SCC 551, while fixing compensation in case of

injury affecting earning capacity, the Apex Court held as under:-

....No amount of compensation can restorer the physical frame of the appellant. That is why it has been said by courts that whenever any amount

is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury ""so far as money can

compensate"" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and

shattered physical frame.

In the aforesaid judgment, the Apex Court held thus:-

in its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork,

some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be

viewed with objective standards.

In a judgment handed down by the Hon'ble Supreme Court in a case titled Yadava Kumar v. The Divisional Manager, National

Insurance Co. Ltd. & Anr., reported in 2010 (5) R.A.J. 116, while drawing the distinction between 'compensation' and 'damage' their

Lordships have observed in para 20 as under:-

The High Court and the Tribunal must realise that there is a distinction between compensation and damage. The expression compensation may

include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas

compensation stands on a slightly higher footing.

It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the

same position, as if the injury has not taken place, by way of grant of pecuniary relief Thus, in the matter of computation of compensation, the

approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot

be any rigid or mathematical precision in the matter of determination of compensation.

In the aforesaid judgment, while referring to Second Schedule under Section 163-A of Motor Vehicles Act, which gives a structured formula

for the calculating compensation in accident cases, the Hon'ble Supreme Court held that multiplier method is to be applied in case of injuries as

well.

It is pertinent to point out that Section 168 Motor Vehicles Act saddles Motor Accident Claims Tribunal with the duty to asses just

compensation. The duty cast on the Tribunal is independent of the pleadings and not necessarily restricted by the perceptions of the claimants

reflected in the claim petition. It is well settled law that rigor of rules of pleadings and proof is not attracted with same force in case of claims under

Motor Vehicles Act as it applies to other civil proceedings. Reference in this regard may be made to law laid down in Nassapa v. Dayal Singh,

reported in AIR 2003 SCC 674. The duty lies primarily on the Tribunal to assess the just compensation and to accomplish the task, the Tribunal

is given freedom to rely upon the hypothetical considerations. If the Tribunal is held to be saddled with the duty to asses and evaluate just

compensation, same is true about the 1st Appellate Court. In other words if the Appellate Court, while going through the award, no matter

whether questioned by the Insurer or the insured, finds that the award is exorbitant or the Tribunal while making award has ignored an important

aspect of the case that on consideration would have persuaded the Tribunal to enhance the compensation, the Appellate Court would not feel any

handicap in taking the correct measures. The Supreme Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., reported in

(2009) 6 SCC 121, while commenting on meaning of expression ""just compensation"" has observed.

...Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss

suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not

intended to be a bonanza, largesse or source of profit. Assessment of compensation through involving certain hypothetical considerations, should

nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and

uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in

assessing compensation, same and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should

be the result of adjudication to arrive at just compensation.

Given all these aspects, I am of the considered view that there is sufficient evidence on the file to hold that the amount awarded under different

heads by the learned Tribunal is just and appropriate, cannot be said to be excessive or meager in any way, thus, needs no interference.

Having glance of the above discussion, the impugned award merits to be upheld and appeal merits to be dismissed. Accordingly, the impugned

award is upheld and the appeal is dismissed.

The amount of compensation is directed to be released in favour of the claimant after proper identification and verification strictly in terms of

the impugned award. The court fee shall be the first charge.