Rajinder Singh vs National Insurance Co. Ltd. and Others

O.P. Sharma, J.—This appeal u/s 173 of the Motor Vehicles Act is directed for enhancement of the amount awarded by the Motor

Accidents Claims Tribunal, Jammu, vide award dated 14.2.1998.

The undisputed facts are that the appellant was employed as conductor with truck No. JKQ 2427 of which respondent No. 2 was the driver

and respondent No. 3 the owner. The vehicle, it is admitted was insured with respondent No. 1. On 24.6.95 the vehicle, according to the

appellant, was proceeding from Pathankot side, it met with an accident near Hiranagar on national highway because of the negligence of the driver.

As a result of the accident, left leg of the petitioner was crushed. Despite treatment, the left leg of the petitioner could not be saved and had to be

amputated. The petitioner claimed Rs. 2,00,000 as compensation on the ground that he was only 19 years old and the disability was 100 per cent

because he would not be able to work either as a conductor or a driver. The Tribunal awarded Rs. 1,59,000 as compensation under different

heads.

The appellant seeks enhancement of the amount on the ground that only being 19 years of age and unmarried, he has no chance of rehabilitation

in life. The amputation of his leg has rendered him unsuitable for any job and the amount of compensation is so meagre that much of it had already

been spent on his treatment. The Tribunal according to Mr. Bhatia has ignored the basic components on the basis of which compensation is

awarded in case of personal injury and particularly when as a result of the injury, the limb of the victim had to be amputated. Mr. Gupta appearing

for the insurance company submitted that considering the nature of injury, the age of the appellant and the disability, the amount awarded is fair and

just. The Tribunal has awarded the compensation under the following heads:

(1) For loss of future income Rs. 54,000

(2) For loss of present income Rs. 10,000

(3) For expenses on medicines Rs. 15,000

(4) For expenses on transport Rs. 5,000 | During

(5) For expenses on special diet Rs. 5,000 |

(6) For gratuitous services Rs. 5,000 | hospitalisation

(7) For expenses on transport, special

diet,medicines and for gratuitous

services after discharge Rs. 5,000

under each head Rs. 20,000

(8) For lessened marriage prospects Rs. 10,000

(9) For pain and suffering Rs. 25,000

(10) For disfiguration, inconvenience Rs. 10,000

Total: Rs. 1,59,000

Although the Tribunal referred to the judgment of the Supreme Court in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, yet

it failed to apply the principles laid down therein while making assessment of the compensation. Broadly speaking, the compensation in case of

personal injury is divided into pecuniary damages and non-pecuniary damages. The pecuniary damages according to their Lordships include

medical expenses and other material losses. Non-pecuniary damages include (i) damages for mental as well as physical shock; (ii) pain and

suffering, both already suffered and are likely to be suffered; (iii) loss of amenities of life such as inability to walk, run, sit, etc.; (iv) loss of

expectation of life; and (v) inconvenience, discomfort, frustration besides mental stress due to the disability.

It is an admitted fact that the petitioner was first treated in Government Medical College Hospital, Jammu and later he was also treated in Post

Graduate Institute of Medical Education and Research, Chandigarh. As per the discharge record, he was admitted in P.G.I., Chandigarh on

27.6.95 and discharged on 4.7.95. Dr. Anil Gupta, Registrar, Department of Orthopaedics, Government Medical College Hospital, Jammu, has

been examined by the petitioner. According to this doctor, there is below knee amputation of the left leg of the petitioner. Dr. Anil Gupta has

issued the following certificate dated 14.6.1996:

Certified that Rajinder Singh s/o Pus-hap Singh, 16 years, r/o Dooday, Teh. Udhampur, was examined on 12.6.1996 in Ortho OPD. He is a B/K

amputate Lt. His permanent disability amounts to about 60 per cent (sixty). M.O.I. Black mole over neck.

Sd/-

Dr. Anil Gupta,

Registrar Ortho III

14.6.1996

However, in his deposition the doctor was emphatic that the appellant would not be able to work either as a conductor or a driver. He would

also not be able to engage himself in agricultural pursuits. The doctor has further opined that the disability as a result of amputation would affect the

applicant's matrimonial life, earning capacity and also enjoyment of life. The Tribunal accepted this evidence which was not challenged and yet

awarded only Rs. 10,000 for loss of prospects of married life; Rs. 25,000 for pain and suffering and Rs. 10,000 for disfiguration and

inconvenience. This certainly cannot be termed as just and fair compensation under these heads.

The learned Tribunal also found that the monthly income of the deceased was Rs. 1,500 and this finding is based on the certificate issued by his

employer. So the annual income of the appellant would be Rs. 18,000. The Tribunal accepted that for the age of the appellant multiplier of 16 was

applicable in terms of Schedule II (section 163-A) to the Motor Vehicles Act but yet scaled it down to 12 keeping in view the uncertainty of life.

This was not the proper course because the question of uncertainty of life would not be attracted in this case, so multiplier of 16 had to be applied

and if applied the total income of the appellant would be Rs. 18,000 x 16 = Rs. 2,88,000. The Tribunal further found that the loss of earning

capacity could not be less than 20 per cent with the disability of 60 per cent and awarded Rs. 43,200 after assessing the total loss at Rs. 2,16,000.

Since the appellant has 60 per cent disability, therefore, the earning capacity will be reduced by at least 25 per cent instead of 20 per cent as found

by the Tribunal. So the loss of future income would be Rs. 72,000. The Tribunal also found that the petitioner was unable to do any job for at least

6 months from the date of accident and awarded Rs. 9,000 under this head, the same is kept intact. So under the head loss of future and present

income the compensation amount is increased to Rs. 81,000 instead of Rs. 64,000 awarded by the Tribunal.

Mr. Bhatia has referred to a decision of the High Court of Judicature at Madras in M. Jaganathan Vs. Pallavan Transport Corporation Ltd., , in

which left leg of a 45-year victim of the accident was amputated above knee. An amount of Rs. 4,50,000 was awarded to him. However, the

victim in that case had remained confined to bed for 7½ months. In that case the amputation was above the knee which again is the serious

handicap as compared to amputation below knee. However, considering the age of the appellant in this case who was hardly 20 years at the time

of accident, the compensation awarded to him cannot be said to be just and fair. Accordingly, the compensation under the following heads requires

upward increase, it is increased accordingly; (i) Loss of present and future income--amount enhanced from Rs. 64,000 to Rs. 81,000; (ii) For loss

of marriage prospects--Rs. 35,000 instead of Rs. 10,000; (iii) For pain and suffering--Rs. 50,000 instead of Rs. 10,000; and (iv) For

disfiguration, inconvenience, etc.--Rs. 45,000 instead of Rs. 10,000. So the amount is enhanced from Rs. 1,59,000 to Rs. 2,76,000. The

enhanced amount shall be payable with same interest as awarded by the Tribunal.