Shriram General Insurance Co. Ltd. Gutkar vs Deep Kumar And Another

Sandeep Sharma, J

By way of instant petition filed under S.173 of Motor Vehicles Act, challenge has been laid to Award dated 28.9.2019 passed by learned Motor Accident Claims Tribunal-II, Mandi, District Mandi, Himachal

Pradesh camp at Sundernagar, District Mandi, Himachal Pradesh in Claim petition No. 62/2016, titled Deep Kumar vs. Sh. Param Dev and another, whereby learned Tribunal below, while allowing the claim

petition having been filed by respondent No.1/claimant (hereinafter, ‘claimant’) under S.166 of the Act, directed the appellant-Insurance Company to pay compensation to the tune of Rs.49,40,000/- to the

claimant alongwith interest at the rate of 9% per annum from the date of filing of the petition till the date of deposit.

Precisely, the facts of the case as emerge from the record are that claimant filed a claim petition under S.166 of the Act against the owner and insurer of Truck bearing registration No. HP31A-6466, on

account of injuries suffered by him in the accident on the intervening night of 8th and 9th September, 2016 at Kumarhatti Bypass road, Dharampur, District Solan, Himachal Pradesh. Claimant claimed that he was

working as a Collie in the offending vehicle and was being paid Rs.10,000/-per month by the owner i.e. respondent No. 2, Param Dev. Claimant averred that he had traveled to Kakkarmajra Punjab in the

offending vehicle and after it was loaded with bricks and was on its return journey to Rampur, Himachal Pradesh, it met with an accident near Kumarhatti Bypass on Chandigarh-Shimla road on account of rash

and negligent driving of the driver, as a consequence of which, he suffered multiple injuries and has been rendered paraplegic and is unable to stand, walk, sit and squat and thus is totally confined to bed and

unable to move his arms and head and change sides without the help of others. As per claimant, he will require permanent attendant throughout his life. Claimant also averred that on account of having rendered

permanently disabled, he has been deprived of joys of life and can neither earn nor marry nor perform any other work and has been permanently crippled as such, he is entitled to compensation to the tune of

Rs.1.00 Crore under various heads from the owner and insurer of the offending vehicle.

owner of the offending vehicle, by way of a reply, though admitted the factum with regard to accident but denied that the accident took place on account of rash and negligent driving of the vehicle by its driver.

He claimed that the driver of offending vehicle was possessing valid and effective driving licence to drive the vehicle and said vehicle was duly insured on the date of alleged accident, as such, liability, if any, can

be fastened by the Tribunal on appellant-Insurance Company.

Appellant-Insurance Company, while refuting the claim of the claimant, claimed that since the vehicle was being driven in violation of terms and conditions of the policy and as such, it is not liable to indemnify

the insured. Appellant-Insurance Company further alleged that there is connivance inter se claimant and owner of the vehicle, as such, it may be permitted to contest the petition on all the grounds/pleas.

Appellant-Insurance Company pleaded that the claimant was traveling in the ill-fated truck as a gratuitous passenger and as such, its liability is not covered under the insurance policy, as such, it cannot be held

liable to pay compensation. Besides above, appellant-Insurance Company averred that the amount claimed is on higher side, as such, claim petition may be dismissed.

On the basis of aforesaid pleadings of the parties, learned Tribunal below framed following issues on 23.12.2017:

“1. Whether the petitioner suffered injuries due to rash and negligent driving of vehicle/truck bearing No. HP31A-6466 by its driver Parveen Kumar alias Rinku on the intervening night of 08/09.089.2016 at

about 12 mid-night near Kumarhatti bypass road, Tehsil Dharampur, District Solan, H.P., as alleged? OPP

Whether the petitioner is entitled to the compensation, if so, from whom and what amount? OPP

Whether the vehicle was being driven in violation of the terms and conditions of insurance policy, as alleged? OPR-2

Whether the driver of the vehicle was not having valid and effective driving licence. At the time of alleged accident, as alleged? OPR-2

Relief.â€​

Learned Tribunal below, on the basis of evidence led on record by respective parties, allowed the claim petition and held the claimant entitled to compensation to the tune of Rs.49,14,400/- alongwith interest at

the rate of 9% per annum from the date of filing of the petition till the date same is paid by the appellant-Insurance Company. In the aforesaid background, appellant-Insurance Company has approached this

Court in the instant proceedings, praying therein to set aside the impugned award.

I have heard the learned counsel for the parties and perused the material available on record.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that primarily the challenge to the impugned award on behalf of the appellant-Insurance Company is

on two grounds i.e. (1) since the claimant was traveling as a gratuitous passenger in the vehicle, insurance company cannot be fastened with liability to indemnify the insured i.e. owner of the offending vehicle, on

account of compensation, if any, to the claimant and (2) amount awarded by learned Tribunal below under several heads as well as interest are on higher side as such, same need to be reduced.

Mr. Virender Sharma, Learned Counsel appearing for the appellant-Insurance Company, while making this Court peruse the record, vehemently argued that though the claimant claimed before learned Tribunal

below that he was working as a Collie/labourer in the offending vehicle at the time of alleged accident, but bare perusal of the FIR (Ext. PW-1/A) clearly suggests that at the time of alleged accident, he was

driving the vehicle. He contended that since the claimant was not having valid and effective driving licence to drive the offending vehicle, appellant-Insurance Company could not be held liable to pay the

compensation on account of injuries, if any, suffered by the claimant. With a view to support his aforesaid contention, Mr. Sharma made this Court peruse the FIR, perusal whereof certainly reveals that as per

claimant, Prakash Chand, who informed the police with regard to alleged accident claimant was the driver of vehicle in question at the time of accident. FIR Ex. PW -1/A, has been proved in accordance with law

by PW-1, Pyare Lal, Head Constable, who in his cross-examination stated that as per information received in the Police Station, vehicle at the time of alleged accident was being driven by the claimant. While

referring to the aforesaid document, Mr. Sharma contended that once, due reliance has been placed on FIR, Ext. PW-1/A, while proving factum with regard to contents thereof, same is also relevant and cannot

be ignored, while determining capacity, in which claimant was traveling in the offending vehicle at the time of alleged accident. Mr. Varun Rana, learned Counsel appearing for the claimants, while refuting

aforesaid submission made on behalf of appellant-Insurance Company, invited attention of this Court to the statement of RW-1, Param Dev, perusal whereof reveals that factum with regard to employment of

claimant in the truck owned by RW-1 as helper stands duly admitted. Cross-examination conducted on this witness clearly suggests that respondents including appellant-Insurance Company were unable to elicit

anything contrary to what this witness stated in his examination-in-chief, wherein he has categorically stated that claimant was working as a helper in the truck and the truck was being driven by Parveeen Kumar,

who at the time of alleged accident was having valid and effective driving licence to drive the vehicle in question. In his cross-examination, aforesaid witness stated that it has been wrongly recorded in the FIR

that vehicle in question was being driven by claimant, Deep Kumar. He admitted that on his askance,/disclosure, police subsequently showed Parveen Kumar as driver and claimant as helper. He specifically

stated that actually, Parveen Kumar was driving the vehicle and claimant had no licence to drive the vehicle.

Leaving everything aside, bare perusal of final report filed under S.173 CrPC, in the aforesaid FIR submitted by police, Ext. PW-2/B clearly reveals that at the time of alleged accident, vehicle in question was

being driven by Parveen Kumar and not by claimant. Besides this, it also stands recorded in Challan that Parveen Kumar was driver of the vehicle and claimant was engaged as a Helper by owner of vehicle,

Param Dev.

Having taken note of the aforesaid documents coupled with the statement of RW-1 Param Dev, owner of the offending vehicle, this Court is unable to agree with the contention raised by Learned Counsel

appearing for the appellant that the claimant was traveling as a gratuitous passenger, rather it stands duly established on record that at the time of alleged accident, claimant was rendering his services as a helper

in the offending vehicle and on the date of alleged accident, he had gone with the driver Parveen Kumar to Punjab for loading bricks. There is neither any dispute nor challenge, if any, has been laid to the findings

of fact recorded by learned Tribunal below that in the alleged accident, claimant has become 100% permanently disabled on account of injuries allegedly suffered by him in the accident and as such, this Court

sees no reason to go into that aspect of the matter. Mr. Sharma, Learned Counsel appearing for the appellant contended that learned Tribunal below has erred in taking monthly income of the claimant to be

Rs.6,000/- per month at the time of alleged accident. Mr. Sharma, contended that since RW-1, owner of the vehicle was unable to substantiate his claim that claimant was being paid Rs.10,000/- per month at the

time of alleged accident, by placing on record receipt, if any, learned Tribunal below could not consider the income of the claimant to be Rs.6,000/- per month at the time of alleged accident. This Court finds from

the record that though, in the case at hand, RW-1, owner of the vehicle categorically stated before learned Tribunal below that at the time of alleged accident, he was paying Rs.10,000/- per month to the claimant,

on account of his being helper in the offending vehicle, but since he failed to place on record some documentary evidence in this regard, learned Tribunal below applying guess work, took income of the claimant to

be Rs.6,000/- per month. Since no evidence ever came to be led on record with regard to monthly income of the claimant, learned Tribunal below ought to have applied formula of minimum wages applicable at

the time of accident. In the case at hand, accident took place in the year 2016, when definitely minimum wages were Rs.200 per day, as such, learned Tribunal below has rightly presumed monthly income of the

claimant to be Rs.6000/- and same cannot be interfered with.

Similarly, learned Tribunal below has rightly assessed loss of earning of the petitioner. Dr. Mukand Lal, PW-3, Professor, Head of Orthopaedic Department, while proving the extent of disability, has

categorically deposed that disability was found to be 100% permanent in relation to whole of the body of the claimant, on 14.5.2018, whereafter disability certificate Ex. PW-2/F was issued. Though this witness

was subjected to cross-examination, but he did not specifically state that disability of the claimant would improve in future.

Having taken note of the fact that claimant suffered 100% disability, with regard to whole of the body, it can be safely inferred that he cannot stand, sit, squat or move independently. PW-2 (claimant) has

categorically stated hat he cannot move his arm without assistance of a person. Cross-examination conducted on this witness nowhere suggests that the respondents, including appellant-Insurance Company were

able to extract something contrary to what this witness stated in examination-in-chief. No other evidence, if any, has been led on record by appellant-Insurance Company to prove that disability certificate issued

by the Medical Board is wrong or is not based on factual position.

At this stage, learned counsel for the claimant argued that no addition on account of loss of future prospects has been given to the claimant and as such, same is required to be given to the claimant.

Since it stands duly proved on record that on account of permanent disability, claimant has been rendered totally incapacitated and is totally unable to perform his day-to-day work, learned Tribunal below has

rightly awarded sum of Rs.5.00 Lakh towards hospitalization and medical expenses incurred by him in the past. Since the claimant is totally bed ridden, he is unable to do anything of his own and as such, he has

been rightly held entitled for attendant charges of Rs.5,000/- per month. As has been taken note herein above, minimum wages prevalent in the year 2016 were Rs.200/- per month i.e. Rs.6,000/- per month. In

the case at hand, where specially trained medical attendant is required to look after the claimant, learned Tribunal below has only awarded a sum of Rs.5,000/- per month on account of attendant charges.

At this stage, Mr. Virender Sharma, Learned Counsel appearing for the appellant, while referring to statement of PW- 3. Dr. Mukand Lal, made a serious attempt to persuade this Court to agree with his

contention that since the medical officer has nowhere stated that the claimant on account of his having been rendered permanently disabled, requires attendant throughout his life, no amount could have been

awarded by learned Tribunal below, on this count, however, having perused the statement of PW-3 Dr. Mukand Lal, wherein he has categorically stated that the claimant has been rendered 100% disabled in

relation to his whole body and health of the claimant would not improve in future, aforesaid submission made by Learned Counsel appearing for the appellant deserves outright rejection. Once, it stands duly

proved on record that the claimant on account of his having rendered permanently disabled, is unable to perform his day-to-day work, no fault, if any, can be found with the awarding of Rs.5,000/- per month, on

account of attendant charges.

Since at the time of accident, age of claimant was 24 years, learned Tribunal below rightly presumed life of the claimant to be 25 years and awarded sum of Rs.15.00 Lakh on account of attendant charges for

future.

Recently, Hon'ble Apex Court in Kajal vs. Jagdish Chand & Ors. Civil Appeal No. 735 of 2020, decided on 5.2.2020, has held the injured entitled not only to addition to income on account of future prospects

but has also held that while awarding amount for future attendant charges, multiplier system should be used. Relevant paragraphs of the judgment (supra) are excerpted herein below:

“Loss of earnings

Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs.15,000/ per annum can be taken into consideration. We do not think this is a proper way of

assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs.15,000/ per annum. Each case has to be decided on its own evidence but taking

notional income to be Rs.15,000/ per annum is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs.4846/ per month. In our opinion

this would be the minimum amount which she would have earned on becoming a major. Adding 75% for the future prospects, it works to be Rs.6784.40/ per month, i.e., 81,412.80 per annum. Applying the

multiplier of 18 it works out to Rs.14,65,430.40, which is rounded off to Rs.14,66,000/-

Though the claimant would have been entitled to separate attendant charges for the period during which she was hospitalised, we are refraining from awarding the same because we are going to award her

attendant charges for life. At the same time, we are clearly of the view that the tortfeasor cannot take benefit of the gratuitous service rendered by the family members. When this small girl was taken to PGI,

Chandigarh, or was in her village, 23 family members must have accompanied her. Even if we are not paying them the attendant charges they must be paid for loss of their wages and the amount they would have

spent in hospital for food etc. These family members left their work in the village to attend to this little girl in the hospital at Karnal or Chandigarh. In the hospital the claimant would have had at least two

attendants, and taking the cost of each at Rs.500/ per day for 51 days, we award her Rs.51,000/.

Attendant charges

The attendant charges have been awarded by the High Court @ Rs.2,500/ per month for 44 years, which works out to Rs.13,20,000/. Unfortunately, this system is not a proper system. Multiplier system is

used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the

multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges etc. This system was recognised

by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami9. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum 9 AIR 1962 SC 1 award, the longevity of the

claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better

justice between the parties and thus results in award of ‘just compensation’ within the meaning of the Act.

It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. O’Connor:

Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency. That

is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present

value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to

deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case

where the facts are special, I think, that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the

present case is the incidence of Income Tax and, it may be, surtax.

This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati 10 1971 AC 115 and Ors., U.P. State Road Transport Corporation and Ors. v. Trilok

Chandra and Ors., Sandeep Khanduja v. Atul Dande and Ors.. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the

claimant’s age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court.

Having held so, we are clearly of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from

incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24

hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not

suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010, 11 1966 ACJ 57 12 (1996) 4 SCC 362 13 (2017) 3 SCC 351 wherein the wages for skilled

labourer is Rs.4846/ per month. We, therefore, assess the cost of one attendant at Rs.5,000/ and she will require two attendants which works out to Rs.10,000/ per month, which comes to Rs.1,20,000/ per annum,

and using the multiplier of 18 it works out to Rs.21,60,000/ for attendant charges for her entire life. This takes care of all the pecuniary damages.

Similarly, this Court having noticed nature of injury and permanent disability suffered by claimant, in the alleged accident and its further consequences, sees no reason to interfere in the amount awarded by

learned Tribunal below on account of physical and mental pain and loss of natural amenities i.e. Rs.3,00,000/-.

Learned Counsel appearing for the appellant argued that the learned Tribunal below has erred while awarding a sum of Rs.5.00 Lakh on account of future medical expenses. He contended that since it stands

duly established on record that Ext. PW-3/C (Medical Reimbursement Form) that the amount earlier incurred on treatment of the claimant was reimbursed to father of the claimant, it can be safely concluded that

in future also, amount incurred on medical treatment of the claimant, shall be reimbursed to him. However, this Court is not impressed with the submission made by Learned Counsel appearing for the appellant as

such, same is rejected.

True it is that father of the claimant, being a Government employee, received medical re-imbursement of amount spent by him on the medical treatment of his son but such fact cannot be made basis to deny

future medical expenses to the petitioner, who on account of his permanent disability would remain dependent upon medical attendant as well as medicines. At the time of accident, father of the claimant may be

was there to help him but he may not available forever to help him or to meet his medical expenses. Otherwise also, claimant being totally disabled is wholly dependent upon his parents, who apart from

shouldering the responsibilities of the claimant, may have other responsibilities as well, as such, amount of Rs.5.00 Lakh is just and fair and calls for no interference.

In view aforesaid, this Court finds no scope for interference with the impugned award, save and except that while calculating loss of income, future prospects have not been taken into consideration. If we

consider that the claimant would have been earning at the rate of Rs.6,000/- per month, keeping in view the existing minimum wages at the relevant time, it is equally true that the income of the claimant would

have increased with every passing year and as such, there would have been definite increase in income, but for the permanently disability earned by the claimant in the unfortunate accident, due to which not only

income would be lost but his future prospects would also be lost, which are also required to be taken into consideration, while calculating overall loss of income. Since claimant was not in a regular employment at

the time of alleged accident, he is entitled to 40% addition on account of future prospects and loss of income may be calculated thus:

Loss of income calculated by

learned Tribunal below                                                = 18,14,400

40% addition on account of loss

of future prospects: Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â =7,25,760

Total loss of income                                                     =25,40,160

Besides this, this Court deems it fit to award an amount of Rs.3.00 Lakh on account of loss of prospects of marriage. The claimant, who has been rendered 100% permanently disabled, will not be able to find

a bride for himself, keeping in view his medical condition and as such, he needs to be compensated for the loss of marriage prospects. Also, this Court finds that the amount of Rs.3.00 Lakh awarded on account

of pain and suffering also requires enhancement keeping in view the mental and physical pain and agony, which the claimant has and will have to bear throughout his life, as such, amount of Rs.3.00 Lakh

awarded on account of pain and suffering is enhanced to Rs.6.00 lakh.

At this stage, learned counsel for the appellant-Insurance Company argued that this Court has no power to award any extra amount/enhance the amounts already awarded by learned Tribunal below, since no

cross-objections/appeal has been filed by the claimants. On the issue of power of an appellate court to make additional award, reference may be made to a judgment rendered by Hon’ble Apex Court in

Ranjana Prakash and others vs. Divisional Manager and another (2011) 14 SCC 639, whereby, it has been held that amount of compensation can be enhanced by an appellate court, while exercising powers under

Order 41 Rule 33 CPC. It would be profitable to reproduce following para of the judgment herein:-

“Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent

had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 CPC can be pressed into service to make the

award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where

the claimants seek compensation against the owner and the insurer of the vehicle and the tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court

can make the insurer jointly and severally liable to pay the compensation, alongwith the owner, even though the claimants had not challenged the non-grant of relief against the insurer.â€​

In view of the discussions made supra and the law laid down by Hon'ble Apex Court in the afore -cited judgments, this Court deems it fit modify the impugned award to the following extent:

                                                                                  Â

                      Amount

Loss of income to the extent of 100% Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 2540160

disability

Hospitalization and medical expenses                                                              500000

Future medical attendant charges @ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 1500000

Rs.5,000/- per month and assuming life

of the claimant to be 25 years i.e. 5,000x

12 x 25

Compensation on account of mental and                                                          600000

physical pain

Loss of natural amenities                                                                     Â

           300000

Future medical assistance                                                                    Â

           500000

Loss of marriage prospects                                                                  Â

           300000

                                                                          Â

           6240160

Similarly, as per prevailing rate of interest, 9% per annum is adequate and same requires no interference.

Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, present appeal stands disposed of. Impugned award passed by learned Tribunal below is

modified to aforesaid extent only. The apportionment shall remain as determined by learned Tribunal below in the impugned award.

Pending applications, if any, are also disposed of. Interim directions, if any, are vacated.