Smt. Anita Jain vs Ramveer Singh and Others

G.D. Saxena, J.—The instant appeal has been preferred by claimant/appellant against an Award dated 20th January 2004 in Claim Case No. No. 59/2002 passed by Sixth Additional Member of the Motor Accidents Claims Tribunal, Gwalior (M.P.), which is for seeking enhancement of the amount of compensation alongwith interest @ 9% and cost of the case. The facts, in short, for decision of this appeal are that on 24th June 2002, the claimant Smt. Anita Jain with her daughter Anamika was going in an Auto-rickshaw bearing registration No. MP07-T/0624 from Gole Ka Mandir to Central School Maharajpura where she was working as a teacher. It is said that the said Auto-rickshaw was being driven by the driver very cautiously. On the other hand, the driver of the dumper of red coloured having registration No. MP20G 3927 was driving it in a rash and negligent manner which hit the Auto-rickshaw going by the side of the road and caused accident. After accident, the auto-rickshaw turned turtle as a consequence of which, the claimant and her daughter received severe injuries. During treatment, her daughter succumbed to injuries in Kalyan Memorial Hospital Morar, Gwalior whereas her mother/claimant Smt. Anita Jain remained admitted in the hospital for a long time under surgical and medical treatment for compound fracture sustained in ulna and radius bone of right hand. On the report, the FIR of the accident was lodged and after investigation, the charge-sheet was submitted against the driver of the offending dumper before the Criminal Court. By filing claim petition, the petitioner Smt. Anita Jain claimed compensation in the sum of Rs. 9,07,000/- for injuries caused to herself. The learned tribunal after trial awarded Rs. 95,000/- to the claimant/petitioner for the injuries with interest @ 9% and cost of the case. Having been dissatisfied with the amount of compensation, the appellant has knocked the door of this court.

Learned counsel appearing on behalf of the appellant contended that the award passed under appeal is against the evidence as adduced by the parties and the law applicable to the present case. It is submitted that the learned tribunal did not consider the case of injured/claimant in proper perspective and failed to appreciate that the permanent disability has been caused to the injured on account of compound fracture in her right hand. Hence, the amount awarded being on lower side, it is submitted that after considering the all heads relevant for determining the fair award, appropriate compensation may be granted to the injured. Accordingly, it is prayed that the award amount may be enhanced with Rs. 4,50,000/- in addition to the award of Rs. 95,000/- granted by the learned tribunal.

On the other hand, learned counsel for the respondent No. 3/Insurance Company by supporting the impugned award submitted that the amount of compensation is just and proper and therefore the appeal which is filed on wholly untenable grounds for enhancement of the award is liable to be rejected.

Heard the learned counsel for the parties. Also perused the record of the learned claims tribunal and the law applicable to the case at hand.

The question for consideration is whether considering the nature of injuries, the learned tribunal has properly compensated the injured or the amount needs to be enhanced under the facts and circumstances of the case?

On perusal of the record and the evidence as adduced by both parties, it appears that the facts relating to accident are proved that the accident of auto-rickshaw with dumper was direct result of the rash and negligent act on the part of the driver of the said dumper. It is also proved that the dumper involved in accident was insured with the respondent No. 3-Insurance Company and there is no violation in terms of the policy which may exonerate the Insurance Company from indemnifying the payment of award on behalf of the insured/owner of the vehicle. The learned tribunal awarded the compensation of Rs. 25,000/- towards medical treatment, Rs. 20,000/- for loss of physical capacity in working, Rs. 10,000/- for agony of pain and suffering, Rs. 5,000/- for physical and mental agony and lastly Rs. 35,000/- for special diet. Thus total compensation in a sum of 95,000/- with interest @ 9% p.a. was awarded from the date of application till full and final payment is made against the non-petitioners on the principle of joint and several liability.

Inviting attention of this court, learned counsel for the appellant contended that the tribunal while awarding compensation to the injured/appellant has overlooked the major medical expenses borne by the appellant on the ground that the treating physician is in relation of the injured who is working at Nasik at a place far away from Gwalior whereas such medical facilities are available at Gwalior. On this ground, the evidence of the appellant has been discarded and the medical bills submitted by her were not held to be reliable. The learned tribunal disallowed the medical expenses for treatment and payment of bills for X-ray or other investigations which were necessary for treatment. The tribunal was further wrong in drawing inference that since the injured is in State service, the medical bills and leaves spent in treatment being en-cashed by her through employer, she is not entitled to claim. In support of his appeal, learned counsel placed reliance on the decisions of Hon. Apex Court in Smt. V. Sudha Vs. P. Ganapathi Bhat and Another, , S. Manickam Vs. Metropolitan Transport Corporation Ltd., , Manoj Rathaur Vs. Anil Raheja and Others, and the Division Bench decision of this court in Sabal Singh Vs. Madhya Pradesh State Road Transport Corporation, 1996 ACJ 162.

In Raj Kumar Vs. Ajay Kumar and Another, , the Hon. Apex Court considering the issued involved in the case has held at page 348:

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.

Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses-Item (iii)-depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages-Items (iv), (v) and (vi)-involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability-Item (ii)(a). We are concerned with that assessment in this case.

Assessment of future loss of earnings due to permanent disability

Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person''s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person''s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.

Now, considering the specific aspects of the present case, the compensation as granted are reassessed by modifying the award under the heads as follows: -

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, medicines, Compensation Rs. 50,000/-.

(ii) Expenses for future surgical and other treatment Rs. 20,000/-.

(iii) For nourishing and healthy food duration of ailment compensation Rs. 20,000/-.

(iv) For transport to various places in Gwalior/outside Gwalior compensation Rs. 10,000/-.

(v) Loss of earnings (and other gains) which the injured would have made had he not been injured, during treatment and in future comprising compensation Rs. 1,00,000/-.

(vi) Damages for pain, suffering and trauma as a consequence of the injuries. Damages for pain, suffering and trauma as a consequence of the injuries compensation Rs. 20,000/-.

Resultantly, by allowing the appeal for enhancement preferred by the appellant, the award passed by the learned tribunal is enhanced to Rs. 2,20,000/- (Rs. Two lacs twenty thousand only) instead of Rs. 95,000/- as awarded by the tribunal with interest @ 9% on enhanced amount from the date of filing the appeal, which would be paid within two months from the date of the order of this court by the respondents on joint and several liability. The respondents shall also pay the cost of this appeal to appellant. Counsel fee, Rs. 2,000/- if certified.