Shriram General Insurance Company Limited @APPELLANT@Hash Dinesh Kumar and Others

Sandeep Sharma, J.

By way of appeal at hand, appellant-Insurance Company has challenged Award dated 31.5.2017 passed by Motor Accident Claims Tribunal,

Ghumarwin, District Bilaspur, Himachal Pradesh (camp at Bilaspur) in MAC No. 4-2 of 2014, whereby compensation to the tune of Rs. 26,30,000/-

has been awarded in favour of respondent No.1-claimant (hereinafter, ‘claimant’) and against the appellant-Insurance Company (hereinafter,

‘Insurance Company’) with interest at the rate of 9% per annum from the date of filing of petition till realization of the entire amount.

Facts in brief, as are necessary for the adjudication of the appeal are that the claimant filed a claim petition under Section 166 of the Motor

Vehicles Act before the learned Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, Himachal Pradesh (camp at Bilaspur), for grant of

compensation on account of permanent disability suffered by him in an accident on 23.4.2013, while he was going on his scooter bearing registration

No. PB10AY-2819 from Bilaspur to Ghumarwin. As per the claim petition filed under Section 166 of the Act ibid, when claimant reached near Village

Kularu, truck bearing registration No. HP11C-1454 being driven by respondent No. 3 i.e. Rajender Singh alias Raju, in a rash and negligent manner

and in high speed, came from the opposite direction and struck the scooter of claimant on wrong side, due to which claimant fell down and sustained

multiple injuries on all parts of his body. Claimant was removed to Civil Hospital, Ghumarwin and then to District Hospital, Bilas;ur, from where he

was further referred to IGMC, Shimla. Claimant remained admitted at IGMC Shimla with effect from 24.3.2013 to 4.6.2013 and was operated five

times. Claimant claims to have spent more than Rs.3,00,000/- on his treatment till the date of filing of the petition. It is also claimed that treatment is

still going on. Claimant is a lawyer by profession. It is further claimed in the petition that claimant had also installed a poly- house and was earning

more than Rs.25,000/ - per month from all sources. It is claimed that due to injuries suffered by claimant, he had become permanently disabled. It is

also claimed that due to injuries to the internal parts of his body i.e. liver and kidney, claimant has been rendered incapable of carrying out routine

activities. The claimant sought compensation to the tune of Rs.50,00,000/- alongwith interest at the rate of 12% per annum from the date of accident

till realisation of the amount.

That claim petition came to be resisted by respondents No. 2 and 3 by filing joint reply. Respondent No.3 filed a separate reply. Respondents No.1

and 2, in their defence raise a plea that the accident in question had taken place due to rash and negligent driving on the part of the claimant, who was

under the influence of liquor at the relevant time. Amount of compensation was also stated to be highly exaggerated.

Respondent No.3 i.e. appellant-Insurance Company took preliminary objections of maintainability, suppression of material facts, petition being bad

due to mis-joinder and non-joinder of parties. Accident was denied as also the liability of the appellant-Insurance Company on the ground that the

offending vehicle i.e. Truck bearing registration No. HP11C-1454 was being plied in violation of the terms and conditions of the insurance policy. It

was also claimed that the driver of the offending vehicle was also not holding a valid and effective driving licence to drive the vehicle in question at the

time of accident.

Learned Tribunal below, on the basis of pleadings of the parties, framed following issues on 24.9.2015:

“1. Whether on 24.04.2013 at about 7:00 P.M. near Kularu, due to the rash and negligent driving of truck No. HP11C-1454 by respondent No.2,

injuries were caused to the petitioner? OPP.

If issue No.1 is proved in affirmative, whether the petitioner is entitled to compensation and if so, to what amount and from whom? OPP.

Whether the petition is not maintainable? OPR-3

Whether the vehicle was being driven in contravention of the provisions of the Motor Vehicles Act? OPR-3

Whether the vehicle was being driven by a person who was not having an effective and valid driving licence at the time of accident? OPR-3

Whether the vehicle was being driven without valid documents? OPR-3

Whether the petition is bad for mis-joinder and non-joinder of necessary parties? OPR-3

Relief.â€​

Learned Tribunal below, on the basis of evidence led on record by the respective parties, allowed the petition and awarded following amounts under

different heads:

Loss of earning 21,60,000

Cost of medical treatment 1,50,000

Transportation expenses 30,000

Special diet 20,000

Attendant charges 20,000

Pain and suffering 1,00,000

Future discomfort and loss of 1,50,000 amenities

 Total 26,30,000

Being aggrieved and dissatisfied with the compensation awarded by the learned Tribunal below, appellant-Insurance Company has approached this

court in the instant proceedings, praying therein for modification and enhancement of the award.

It is not in dispute that the claimant has suffered 22% permanent disability on account of accident in question and as such, this certainly has

affected the income of the claimant. Learned Tribunal below, while calculating the monthly income of the claimant has relied upon guess work and

has arrived at a conclusion that the monthly income of the claimant from the legal profession would be Rs.15,000/-. However, income from other

sources could not be proved by the claimant. Further, while assessing loss of income on account of 22% permanent disability, the learned Tribunal

below has arrived at a conclusion that due to the aforesaid disability, claimant’s monthly income has been reduced by 50%. Learned counsel

appearing for the appellant-Insurance Company vehemently argued that by no stretch of imagination, it can be said that the claimant’s income has

been reduced by 50% due to the disability, rather, earning capacity of the claimant being an advocate has not been substantially affected and the loss

of income arrived at by the learned Tribunal below is not correct and based merely on assumptions and presumptions.

Though the claimant has not led any material on record to prove his monthly income, but even if same is taken to be Rs.15,000/-, it can not be said

that the loss of income suffered by the claimant is 50% and as such, this court finds substance in the argument of Mr. Jagdish Thakur, learned counsel

representing the appellant-Insurance Company that the learned Tribunal below has assessed the loss of income on higher side and as such, this court

deems it fit to calculate the loss of income on account of disability suffered by claimant at 35%. Thus, after taking total income of claimant at

Rs.15,000/-, the loss of income suffered would be 15,000x35% = 5250.

Similarly, the learned counsel representing the appellant-Insurance Company has argued that the learned Tribunal below has awarded an addition

of 50% to the established income of the claimant, which ought to have been 40% since the claimant was not in permanent employment and was self

employed. This court finds sufficient force in the argument of the learned counsel representing the appellant-Insurance Company in view of the latest

law laid down by Hon'ble Apex Court in Mangla Ram Vs. The Oriental Insurance Company Ltd. & Ors. [Civil Appeal Nos. 24992500 of 2018 arising

out of SLP(Civil) Nos. 2814142 of 2017], decided on 6.4.2018. At this stage, it would be appropriate to take note of following paragraphs of judgment

in Mangla Ram (supra):

“25. The next question is about the quantum of compensation amount to be paid to the appellant. The Tribunal noted the claim of the appellant that

he was getting Rs.1500/per month towards his salary and Rs.600/per month towards food allowance from Bhanwar Lal. The fact that the appellant

had possessed heavy transport motor vehicle driving licence has not been doubted. The driving licence on record being valid for a limited period,

cannot be the basis to belie the claim of the appellant duly supported by Bhanwar Lal, that the appellant was employed by him on his new truck.

Besides the said income, the appellant claimed to have earning of Rs.1000/per month from farming fields. In other words, e find that the Tribunal has

not analysed this evidence in proper perspective. The Tribunal, however, pegged the loss of monthly income to the appellant at Rs.520/per month

while computing the compensation amount on the finding that there was no convincing evidence about complete nonemployability of the appellant.

Further, no provision has been made by the Tribunal towards future prospects. The Tribunal, therefore, should have computed the loss of income on

that basis. Additionally, the appellant because of amputation of his right leg would be forced to permanently use prosthetic leg during his life time. No

provision has been made by the Tribunal in that regard. On these heads, the appellant is certainly entitled for enhanced compensation.

The next question is about the liability of insurer to pay the compensation amount. The Tribunal has absolve the insurance company on the finding

that no premium was received by the insurance company nor any insurance policy was ever issued by the insurance company in relation to the

offending vehicle. The respondents no. 2 and 3 had relied on a Cover Note which according to respondent No.1 â€" Insurance Company was

fraudulently obtained from the then Development Officer, who was later on sacked by respondent No.1 Insurance Company. The possibility of misuse

of some cover notes lying with him could not be ruled out. The respondent Nos. 2 & 3 have relied on the decision of this Court in Rule (supra).

In view of the law laid down above, compensation awarded on account of loss of future prospects needs to be reassessed i.e. loss of earning

capacity at the rate of 35% of the established income (Rs.15,000/-) = Rs.5250/- and 40% addition would be 5250x 40% =2100/- thus totaling to Rs.

7350/-, which would come to Rs.88,200/- per annum and after applying multiplier of 16, the total loss of income comes to Rs. 14,11,200/-

This Court is in agreement with the contention raised by Mr. Jagdish Thakur, learned counsel representing the insurance company that amount

awarded by the Tribunal below on account of hospitalization charges, attendant charges, transportation charges and in lieu of services rendered by

helper, are strictly in terms of the evidence led on record, because assessment made by the Tribunal below is purely based upon the bills placed on

record by the claimant as such, this Court sees no reason to interfere with the same. However, having taken note of the fact that the claimant has

remained admitted in the hospital and had to take lengthy medical treatment, as stands duly proved on record, impugned award on account of pain and

suffering i.e. Rs. 1,50,000/- and discomfort appears to be on lower side, especially when it stands duly proved on record that claimant suffered multiple

injuries and remained admitted in hospital.

A Coordinate Bench of this Court in case Smt. Chandra Wati V/s Tek Chand & others, Latest HLJ 2014 (HP) 288, while dealing with the

question as to how to grant compensation in injury cases, has held as under:

I have gone through the impugned award. The Tribunal has awarded a meager amount while ignoring the injuries suffered by the claimant/victim

and affect of the said injuries, which has made her life miserable and dependant throughout her life. The said injuries also destroyed her matrimonial

home, snatched the amenities and charm of her life and she has to be dependent on others throughout her life. She has undergone pain and suffering

and has to undergo it forever. Not only this, it has also affected her privacy.

Now, the question is how to grant compensation in such injury cases. The concept of granting compensation is outcome of Law of Torts. The

Tribunals, while examining a case of an injured and awarding compensation to him/her, have to do some guess work, sympathetically, keeping in view

the fate and physical frame of the injured/victim.

The Apex Court in case titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755, had

discussed all aspects and laid down guidelines how a guess work is to be done and how compensation is to be awarded under various heads. It is apt

to reproduce paras 9 to 14 of the judgment hereinbelow:

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

pecuniary damages and special damages. Pecuniary damages are those which 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. In order

to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up

to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock,

pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a

variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on

account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and

mental stress in life.

It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the

injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the

appellant and for having become a life long handicapped. No amount of compensation can restore 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 case Ward v. James, 1965 (1) All ER 563, it was said:

Although you cannot give a man so gravely injured much for his ""lost years"", you can, however, compensate him for his loss during his shortened

span, that is, during his expected ""years of survival"".

You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate

him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be

unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best

they can and give him what they think is fair. No wonder they find it wellnigh insoluble. They are being asked to calculate the incalculable. The figure

is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of

money.

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 guess work,

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.

This Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, in connection with the Fatal Accidents Act has

observed (at p. 380):

In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is

inevitable.

In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said :- ""Non-pecuniary loss : the pattern.

Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair,

fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a

provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall.

The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the

award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key

points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.

The said judgment was also discussed by the Apex Court in case titled as Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another,

reported in 2010 AIR SCW 6085, while granting compensation in such a case. It is apt to reproduce para-7 of the judgment hereinbelow:

“7. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the

basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far

as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of

the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the

claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial

loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and

reasonable sum. The conventional basis of assessing compensation in personal injury cases - and that is now recognized mode as to the proper

measure of compensation - is taking an appropriate multiplier of an appropriate multiplicand.â€​

The Apex Court in case titled as Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011

AIR SCW 4787 also laid down guidelines for granting compensation. It is apt to reproduce paras 8 & 9 of the judgment hereinbelow:

“8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or

members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation

to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the

injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.

The term ""disability"", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body.

If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he

was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability

benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be

established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every

case.â€​

The Apex Court in case titled as Kavita versus Deepak and others, reported in 2012 AIR SCW 4771 also discussed the entire law and laid down

the guidelines how to grant compensation. It is apt to reproduce paras 16 & 18 of the judgment hereinbelow:

“16. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, this Court considered large number of precedents and laid down the following propositions:

“The provision of the motor Vehicles Act, 1988 ('the Act', for short) makes it clear that the award must be just, which means that compensation

should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to

make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the

Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with

reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the

loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those

normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The

heads under which compensation is awarded in personal injury cases are the following: “Pecuniary damages (Special damages) (i) Expenses

relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains)

which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings

on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and

trauma as a consequence of the injuries. v) (Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of

normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of

injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads

(ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of

prospects of marriage) and loss of expectation of life.â€​

………………………….

In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the

victims of accident, who are disabled either permanently or temporarily, 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 inability to lead a normal life and enjoy amenities, which would have been enjoyed

but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with

the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.â€​

Admittedly, the claimant/victim was a house wife, who was maintaining her family, domestic home, looking after cows and selling milk; her income

was about Rs.5,000/- per month and was of the age of 55 years at the time of accident. This fact is not denied by the other side nor there is a rebuttal.

Even otherwise, a domestic wife is the backbone of a home, maintaining the domestic home and takes all steps to keep her husband, children and

other family members united, in good health and joyous mood. If anyone has to engage a helper for domestic help, the minimum wages which has to

pay, is not less than Rs.3,000/- per month plus clothing and food. She has not only been deprived of the income from domestic work, but also lost her

income by maintaining cows and selling milk. It is unrebutted, as discussed by the Tribunal in the impugned award, that she has become permanently

disabled, helpless, hapless and a burden on others, has to suffer 45% permanent disability throughout her life and has lost her income, which was about

Rs.5,000/- per month. The Tribunal also held that due to her dependency on others, she engaged a helper, to whom she is paying Rs.1500/ - per

month. She has produced that lady Smt. Chinta as a witness, who has proved and stated that she is receiving Rs.1500/- per month from the claimant

as wages.

The Tribunal awarded Rs.75,000/- under the head of pain and suffering, which is too meager, while taking the physical frame of the claimant and

other factors in consideration and in view of the judgments of the Apex Court, referred hereinabove, read with the judgment of the Apex Court in case

titled as Nizam’s Institute of Medical Sciences versus Prasanth S. Dhananka & others, reported in 2009 AIR SCW 3563.â€​

Applying the ratio of law laid down in the judgment supra and parameters laid down, this Court deems it fit to enhance amount awarded under

head of pain and suffering to Rs. 2,00,000/- instead of Rs. 1,00,000/-.

This Court can not lose sight of the fact that on account of the permanent disability suffered by claimant, he would not be able to lead a normal life

and as such, this court is of the view that the learned Tribunal below ought to have awarded adequate compensation on account of future discomfort

and loss of amenities. Hence, having perused facts of the case vis-Ã -vis evidence available on record, this Court has no hesitation to conclude that

learned Tribunal below, while determining compensation, has failed to appreciate material evidence available on record, in its right perspective and as

such erred in awarding Rs.1,50,000/ - on account of future discomfort and loss of amenities, resultantly, the amount on aforesaid account is enhanced

to Rs.2,00,000/-.

Besides the above, this court finds that the learned Tribunal below has rightly awarded amounts under other heads i.e. transportation charges,

special diet charges and attendant charges, which are upheld.

Consequently, in view of aforesaid modification made herein above, appellant-claimant is held entitled to following amount under various heads:

Loss of earning 14,11,200

Cost of medical treatment 1,50,000

Transportation expenses 30,000

Special diet 20,000

Attendant charges 20,000

Pain and suffering 2,00,000

Future discomfort and loss of 2,00,000 amenities

 Total 20,31,200

This Court however does not see any reason to interfere with the rate of interest awarded on the amount of compensation and as such, same is

upheld.

Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, present appeal is allowed and

Award dated 31.5.2017 passed by Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, Himachal Pradesh (camp at Bilaspur) in MAC No.

4-2 of 2014, is modified to the above extent only. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated.