Shankar Dutt vs United India Insurance Co. Ltd & Another

,,

Lok Pal Singh, J",,

This appeal, under section 173 of Motor Vehicle Act 1988, is preferred against the judgment and award dated 02.03.2012 passed by the Motor",,

Accident Claim Tribunal/Additional District Judge, Kotdwar, Pauri Garhwal in MAC Case No. 50 of 2005, allowing the claim petition of the",,

claimant/appellant to the tune of Rs. 4,77,823/- along with 4%.",,

Facts, in brief, are that on 09.11.2004, appellant-claimant (injured) was going to Motadhak from Kotdwar through his motorcycle; jeep no. UP06-",,

0915, coming from Motadhak, which was allegedly driven by its driver rashly and negligently hit the claimant, on coming from wrong side, due to",,

which appellant sustained serious injuries on his leg; he was taken to Government Hospital Kotdwar, having considered seriousness of injuries he was",,

referred to Himalayan Hospital, Jolly Grant Dehradun; he got admitted there and his right leg was amputated on 13.11.2004, due to amputation of his",,

right leg he become permanently disabled and unable to do work of carpenter as he was doing prior. It is alleged that during treatment, appellant spent",,

an amount of Rs.1,50,000/-. Appellant/claimant claimed compensation to the tune of Rs. 18,50,000/-",,

Owner of the vehicle and Insurance companies filed their respective written statement and contested the claim petition.,,

On the pleadings of the parties, learned Tribunal formulated the following issues:-",,

Whether on 09.11.2004 at about 8:00 p.m., at Kotdwar Sigaddi Motor Marg near Tadiyal Chawk when Shankar Dutt-appellant was going from his",,

motor cycle no. UA12-5725, Jeep no. UP06-0915, coming from opposite side, which was allegedly driven by its driver rashly and negligently hit the",,

appellant’s motor cycle in which he sustained serious injuries?,,

Whether alleged incident was occurred on account of negligence on the part of the appellant/claimant?,,

Whether on the date of incident the jeep was not insured?,,

Whether jeep was plied in violation of insurance policy and permit?,,

Whether claimant is entitled for any compensation, if yes then what amount and from which party?",,

Claimant/appellant, in support of his case, examined himself as A.P.W.1, examined Anandmani as APW2, examined Ravindra Singh as APW3,",,

examined C.P. Naithani as APW4 and examined D.C. Mishra as APW5. In documentary evidence, he adduced copy of injury report, copy of FIR,",,

disability certificate, medical papers, insurance cover note of motorcycle, registration certificate, license etc.",,

Owner of the vehicle has adduced copy of registration certificate, copy of driving license, insurance cover note and fitness certificate. However, no",,

evidence has been adduced by the other respondents.,,

The Tribunal, after recording evidence of the parties, gave its finding that accident was occurred due to rash and negligent driving on the part of the",,

driver of the vehicle and not due to negligent driving of the claimant and decided issue nos. 1 and 2 in favour of the claimant. Further, Tribunal, while",,

recording its finding on issue nos. 3 and 4 and has held that the offending vehicle was insured with the United India Insurance Company and was plied,,

with all relevant documents and decided the same in the favour of the claimant-appellant. On issue no. 5 the Tribunal has recorded a finding that as,,

the accident occurred due to rash and negligent driving of its driver and vehicle was insured with the United India Insurance Company-respondent no.,,

2 herein, thus liability to pay the compensation is fastened upon the Insurance Company.",,

Accept claimant-appellant, none has preferred an appeal against the impugned judgment and award, thus, findings recorded by the Tribunal on issue",,

nos. 1 to 4 has attained finality and same is, thus, hereby affirmed. The sole controversy before this Court is whether the Tribunal has awarded",,

appropriate compensation to the claimants-appellants. A perusal of the impugned judgment and award would transpires that the learned Tribunal,,

awarded the compensation to the tune of Rs.4,77,823/- under the following heads:-",,

i. The notional income of the deceased has been assessed as Rs. 36,000 per annum;",,

ii. Considering 70% disability, assessed loss of income Rs. 25,200;",,

iii. Multiplier of 17 has been applied as been applied on the age of the injured;,,

iv. Rs. 5000 has been awarded towards loss of physical and mental agony;,,

v. Rs. 44,423/- has been awarded towards medical expenses.",,

Heard Mr. Hari Mohan Bhatia, Advocate appearing for the claimant-appellant. None is present for the respondents.",,

Learned counsel for the appellant would contend that meager amount has been awarded by the Tribunal in favour of the appellant. It is further,,

contended that appellant has proved his income as carpenter to Rs. 8,000 to Rs. 10,000/- per month, as he was running the shop of carpenter, owner",,

of the shop also proved the fact about the income of the appellant but the learned Tribunal has wrongly assessed notional income of the injured-,,

claimant @ Rs. 3,000/- per month, however, the statement made by the injured-appellant that appellant-claimant was earning Rs. 8,000 to Rs. 10,000/-",,

has not been refuted by the other parties. Learned counsel for the appellant has placed reliance upon the judgment of Hon’ble Apex Court in the,,

case of Jagdish vs. Mohan & ors. decided on 06.03.2018 and emphasis upon para no. 8 and 11 and would contend that the Tribunal has not awarded,,

any compensation under the following heads:-,,

i. Pain, suffering and trauma resulting from the accident;",,

ii. Loss of income including future income;,,

iii. The inability of the victim to lead a normal life together with its amenities;,,

iv. Medical expenses including those that the victim may be required to undertake in future; and,,

v. Loss of expectation of life.,,

It is apt to quote paragraph nos. 8 and 11 I the case of Jagdish vs. Mohan & ors. decided on 06.03.2018. Same are extracted hereunder:-,,

“8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability,,

occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:",,

(i) Pain, suffering and trauma resulting from the accident;",,

(ii) Loss of income including future income;,,

(iii) The inability of the victim to lead a normal life together with its amenities;,,

(iv) Medical expenses including those that the victim may be required to undertake in future; and,,

(v) Loss of expectation of life.,,

In Sri Laxman @ Laxman Mourya v Divisional Manager, Oriental Insurance Co .Ltd, 2012 (1) R.C.R. (Cvil) 509: 2011 (12) SCALE 6,5 t8his Court",,

held:,,

“The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be",,

made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to",,

accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused",,

due to the accident.â€​,,

In K Suresh v New India Assurance Company Ltd. 2012 (1) R.C.R. (Civil) 31: (2012) 12 SCC 27, 4this Court adverted to the earlier judgments in",,

Ramesh Chandra v Randhir Singh (1990) 3 SCC 723 and B Kothandapani v Tamil Nadu State Transport Corporation Limited 2011(3) R.C.R. (Civil),,

206: (2011) 6SCC 420. The Court held that compensation can be granted for disability as well as for loss of future earnings for the first head relates to,,

the impairment of a person’s capacity while the other relatesto the sphere of pain and suffering and loss of enjoyment of life by the person,,

himself.,,

In Govind Yadav v New India Insurance Company Limited, 2011 (4) R.C.R. (Civil) 817: (2011) 10SCC 68,3 this Court adverted to the earlier",,

decisions in R D Hattangadi v Pest Control (India) (Pvt) Ltd (1995) 1 SCC 55, 1Nizam’s Institute of Medical Sciences v Prasanth S Dhananka",,

2009 (3) R.C.R. (Civil) 174: (2009) 6 SCC 1, Reshma Kumari v Madam Mohan 2009 (3) R.C.R. (Civil) 908: (2009) 13 SCC 42, 2Arvind Kumar",,

Mishra v New India Assurance Company Limited, 2010 (4) R.C.R. (Civil) 917: (2010) 10 SCC 25 4and Raj Kumar v Ajay Kumar, (2011) R.C. R.",,

(Civil) 101: (2011) 1 SCC 343 and held thus:,,

“18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be",,

followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled",,

either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate",,

compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities,",,

which he would have enjoyed but for the disability caused due to the accident.â€​ (Id at page 693),,

These principles were reiterated in a judgment of this Court in Subulaxmi v MD Tamil Nadu State Transport Corporation, 2012 (4) R.C. R. (Civil) 945:",,

Civil Appeal No. 7750 of 2012, decided on 1 November 2012 delivered by one of us, Justice Dipak Misra (as the learned Chief Justice then was).",,

11 In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he",,

has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a",,

loss of hands is a complete Civil Appeal No. 7750 of 2012, decided on 1 November 2012 deprivation of the ability to earn. Nothing â€" at least in the",,

facts of this case â€" can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the,,

being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it",,

must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law’s doles. In a discourse,,

of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an",,

assertion of enforceable rights as intrinsic to human dignity.,,

The Tribunal has noted that the appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this,,

background, it would be a denial of justice to compute the disability at 90 per cent. The disability is indeed total. Having regard to the age of the",,

appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the appellant on account of the loss of income,",,

including future prospects, would be Rs. 18,14,400/-. In addition to this amount, the appellant should be granted an amount of Rs. 2 lakhs on account of",,

pain, suffering and loss of amenities. The amount awarded by the Tribunal towards medical expenses (Rs. 98,908/-); for extra nourishment (Rs.",,

25,000/-) and for attendant’s expenses (Rs. 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The",,

appellant should be allowed an amount of Rs. 3 lakhs towards future medical expenses. The appellant is thus awarded a total sum of Rs. 25,38,308/-",,

by way of compensation. The appellant would be entitled to interest at the rate of 9 per cent per annum on the compensation from the date of the,,

filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver",,

jointly and severally which is affirmed. The amount shall be deposited before the Tribunal within a period of 6 weeks from today and shall be paid over,,

to the appellant upon proper identification.â€​,,

The Hon’ble Apex Court in the case of Chameli Devi & ors. vs. Jivrail Mian & ors, decided on 04.09.2019 having considered the fact that",,

deceased was a carpenter and no evidence has been adduced to proof the income has held that except to lead oral evidence what proof a carpenter,,

can lead and accordingly assessed Rs. 200/- per day as his income and, further, assessed income at Rs. 5,000/- per month, as carpenter may not get",,

work every day.,,

My view is fortified with the dictum of Hon’ble Apex Court in the case of Chameli Devi & ors. vs. Jivrail Mian & ors, decided on 04.09.2019",,

. The appellant, in the case in hand, is carpenter by profession, and is 70% disabled. He made statement on oath the he was earning Rs. 8,000/- per",,

month prior to the incident, but the Tribunal did not consider the statement of the injured-claimant and adopted formula of notional income. Thus, the",,

monthly income of the injured-claimant is assessed as Rs.5,000/-, as per the law laid down in Chameli Devi & ors. vs. Jivrail Mian & ors, decided on",,

04.09.2019. The Tribunal has applied multiplier of 17. Admittedly, appellant was 38 years of age, in view of principle laid down in Sarla Verma vs.",,

Sl. No.,Head,Compensation awarded

1,Income,"Rs. 3,500/- (70% of Rs.

5,000)

2.,Future prospects,"Rs. 1,400 (40% of the

income)

3.,Total income,"Rs. 4,900

4.,Multiplier,15

5.,"Annual loss of future

income","Rs. 8,82,000 (4,900 x 12x15)

6.,"Pain, suffering and loss

of amenities","Rs. 1,00,000/-

7.,Future nourishment,"Rs. 25,000/-

8.,Medical expenses,"Rs. 44,433/-

9.,"Future Medical

expenses","Rs. 1,00,000/-

10,"Total compensation

awarded","Rs. 11,51,433/-