Sri Chandan Das vs Sri Harendra Chanda Ghosh

T. Vaiphei, Actg, C.J.—This appeal under Section 173, Motor Vehicles Act, 1988 is directed against the award dated 21-1-2013 passed by the learned Member, Motor Accident Claims Tribunal, Khowai in T.S. (MAC) No. 20 of 2011 directing the payment by the insurer of compensation amounting to Rs. 54,000/- as against the claim of Rs. 4,98,000/- made by the appellant.

The facts giving rise to this appeal, as pleaded by the appellant, may be briefly noted at the outset. According to the appellant, on 25-9-2004 at about 4 PM, when he was proceeding towards Teliamura in a Commander Jeep and was reaching Baramura under Jirania Police Station near Bankumari Temple along Assam-Agartala Highway, a truck bearing registration number AS 25 7262 came from the opposite direction in a high speed and dashed against his Jeep due to rash and negligent driving by the driver of the truck. As a result, the appellant sustained burnt injuries on his back, the left side of his waist and other parts of his bodies and had to be treated at G.B. Hospital as an indoor patient w.e.f. 25-9-2004 to 6-11-2004 and again from 11-12-2004 to 25-12-2004 as out patient and was thereafter advised to take bed rest for six month and attend G.B. Hospital for further medical check-up. He also needed regular dressing of his burn injuries for which he had to appoint a trained nurse at his house. In his amended pleading, he also stated that on 23-3-2007, he was again admitted to Teliamura Hospital for waist pain and was on 24-3-2007 referred to G.B. Hospital for better treatment. He was again admitted to G.B. Hospital for better treatment, and stayed there as inpatient w.e.f. 24-3-2004 to 10-4-2004 and incurred Rs. 25,000/- for his treatment. He was aged 40 years old at the time of the accident. As a professional driver, he used to earn Rs. 4,500/- per month, was the sole bread earner of his family and quantified his loss of income at Rs. 48,000/-. He also claimed Rs. 1,00,000/- for mental pain and sufferings, another sum of Rs. 25,000/- for loss of amenities and another sum of Rs. 50,000/- as the cost of interest of the loan taken by him for his medical treatment. He initially claimed a compensation of Rs. 3,48,000/- which claim was enhanced by him to Rs. 4,98,000/- after amending his pleading. The police also registered Jirania P.S. Case No. 53/2004 U/s 279/338 IPC. It may be noticed that the claim case was taken up by Motor Accident Claims Tribunal, Agartala but was subsequently transferred to file of the Motor Accident Claims Tribunal, Khowai, which finally passed the impugned award.

Though the claim petition was resisted by the owner of the truck bearing registration No. AS 25-7262, who was impleaded as the respondent No. 1 before the Tribunal. As no appeal is preferred by the respondent No. 1 as well as the Insurance Company, but he did no prefer an appeal against the award. Therefore, I will confine myself to the grievances projected by the appellant, which is about the quantum of compensation awarded by the Tribunal. The Tribunal awarded a sum of Rs. 10,000/- towards the cost of medical treatment, Rs. 50,000/- for pain and sufferings, Rs. 18,000/- for loss of income calculated @ Rs. 3000/- per month for a period of six months i.e. Rs. 3000�6= Rs. 18,000/-. This amount was reached by the Tribunal by determining the income of the injured at Rs. 120/- per day or Rs. 4,500/- per month. The Tribunal also awarded Rs. 30,000/- for loss of amenities and enjoyment of life, which includes disappointment and frustration that he can never be a normal person. Aggrieved by the impugned award, this appeal is filed by the appeal for enhancement of the compensation.

The main contention of Mrs. S. Deb Gupta, the learned counsel for the appellant, is that the Tribunal has completely overlooked the principles laid down by this Court for awarding compensation in a case of injury and has in the process awarded compensation, which is inadequate, unjust and unfair. She takes me through the judgment in State of Tripura & ors v. Sanjib Sarkar, 2015 Legal Eagle (Tri) 6 and contends that the appellant is entitled to double the amount of compensation awarded by the Tribunal if the parameters laid down therein with respect to attendant charges, loss of income and damages for loss and sufferings are applied to the facts of this case. She forcefully submits that the compensation payable to the appellant should be enhanced to double the amount awarded by the Tribunal. Mr. K. Nandi, the learned counsel for the insurer, however, supports the impugned award and submits that the Tribunal awarded the compensation after duly taking into account all the parameters laid down by law for awarding a just compensation. He reminds this Court that compensation cannot be a bonanza or a source of profit or a pittance; the object is to grant just compensation, which denotes equitability, fairness and reasonableness. So judged, submits the learned counsel for the insurer, the compensation awarded by the Tribunal is just and fair and does not need the interference of this Court. He, therefore, contends that as the appellant has miserably failed to prove that he is entitled to enhanced compensation, the appeal, therefore, deserves outright dismissal.

I have given my thoughtful consideration to the rival submissions advanced on behalf of both the parties. I have also gone through the materials on record. A Tribunal constituted under the Motor Vehicles Act as provided for in Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which to it appears to be just. One cannot lose sight of the glaring fact that compensation for injuries sustained or loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of compensation fixed should be in accordance with the injury. The amount awarded, however, should be not expected to be a windfall for the victim. The principles laid down by the Apex Court in R.D. Hattangadi v. Pest Control India (P) Ltd., (1995) 1 SCC 551 for assessing the quantum of compensation payable to the claimant are quote instructive and are reproduced below:

"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 are 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 and 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."

In the instant case, fortunately for the appellant, he does not suffer permanent disability, partial or otherwise. He was undoubtedly admitted to G.B. Hospital and Teliamura Hospital off and on from 25-9-2004 to 6-11-2004, from 11-12-2004 to 25-12-2004, from 23-3-2007 to 24-3-2007 and from 24-3-2007 to 10-4-2007. Thus, a total number of 74 days was spent by him in hospitals though on different spells. Moreover, it is the finding of the Tribunal that the appellant was under constant medical check up from 25-9-2004 to September, 2005 and had to suffer due to the accident even in the year 2007. It is also the finding of the Tribunal that due to his prolonged illness, he was definitely prevented from working for at least six months. If that is the case, considering his earning per day before the accident as determined by the Tribunal being Rs. 150/- per day, he is entitled to Rs. 150/- �180=Rs. 27,000/- towards of loss of income as against Rs. 18,000/- awarded by the Tribunal. No evidence is, however, adduced by the appellant to show as to many days exactly he had to engage a nurse. However, as he was in hospitals for 74 days, it can be reasonably inferred that he engaged a medical attendant for 74 days. Even in Agartala, it will not be possible these days to get a medical attendant at the rate not less than Rs. 200/- per day. Therefore, the appellant will be entitled to reimbursement for engaging a medical attendant at the rate of Rs. 200/- per day, for which he is entitled to Rs. 200�74=Rs. 14,800/-. However, even after his discharge, as the appellant was found by the Tribunal to be under constant medical check-up from 25-9-2004 to September, 2005, he is also entitled to Rs.150�360=Rs. 54,000/- for inability to earn any income during this period. As for pain and suffering, considering the fact that the appellant was in the hospitals for a total period of 74 days and thereafter had to be under constant medical check-up w.e.f. 25-9-2004 to September, 2005, the award of Rs. 50,000/- to the appellant on this count is quite appropriate. As for future discomfort and loss of amenities of life, the award of Rs. 30,000/- already awarded on this count is also quite proportionate, more so, when he does not suffer from any permanent disability. Thus, the amount of compensation, payable to the appellant is enhanced to Rs. 1,89,000/- inclusive of Rs. 10,000/- awarded by the Tribunal as the cost of treatment. As the finding of the Tribunal on contributory negligence is not questioned by the appellant, the contributory negligence is apportioned at 50:50 between the appellant and the truck owner. Thus, after deducting 50% from the total amount of compensation payable, the appellant is awarded Rs. 94,500/-.

The result of the foregoing discussion is that this appeal partly succeeds. The appellant is entitled to compensation of Rs. 94,500/- together with interest at the rate of 9% per annum from the date of the claim petition till the date of full and final payment. The insurer-respondent No. 4 shall deposit the compensation with the interest so awarded with the Registry within a period of two months from the date of receipt of this judgment. Needless to say, the amount already deposited or paid to the appellant shall be adjusted accordingly. The impugned award stands modified to the extent indicated above. No cost. A copy of this judgment is to be supplied to the learned counsel for the insurer to ensure early payment to the appellant. Transmit the LCRs forthwith.