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2002 DIGILAW 1712 (RAJ)

Gopi Chand v. Ram Karan

2002-10-18

GYAN SUDHA MISRA

body2002
Judgment Gyan Sudha Misra, J.-This appeal has been filed by the appellant Gopi Chand against the award of the Motor Accidents Claims Tribunal, Kotputali, which has been pleased to award a compensation of Rs. 1,26,000 (rupees one lakh twenty-six thousand only) for the injury sustained by him in the accident caused by the vehicle which was insured with National Insurance Co. Ltd., the respondent No. 3 herein. The principal ground of challenge to the impugned award is that the amount determined towards compensation is inadequate considering the nature of injury sustained by the claimant-appellant. 2. Sincethe factum of accident and the negligence of the vehicle causing the accident is not under challenge, it is considered inessential to enter into the facts in detail in regard to the accident. Suffice it to say that the claimant Gopi Chand was aged 28 years, who earned his living by selling vegetables. On the date of the accident also he was travelling on truck No. RNG 3488 loaded with 50 bags of cucumber and ‘kakri’ from Santhala towards Delhi when this truck overturned at Shahpura due to rash and negligent driving of the driver of the aforesaid truck. Claimant-appellant claimed earnings of Rs. 3,000 per month out of this occupation. On account of this accident the appellant admittedly sustained grievous injuries all over his body including his spine. He had to undergo treatment at Shahpura Hospital and thereafter, in Government Hospital, Tonk and finally in S .M. S. Hospital, Jaipur where he remained for about a month but even thereafter his treatment continued for approximately one month and due to this prolonged treatment his hands and legs are practically paralysed without any sensation therein and the doctor has certified that his permanent disability is to the extent of 87.6 per cent. Consequently, the appellant is not in a condition to undertake any job and requires the assistance of another person even for his daily routine affairs. 3. The Tribunal did not accept the plea of the claimant regarding his income to the extent of Rs. 3,000 per month but it held that the appellant’s income per month was not less than Rs. 1,000 and considering the percentage of his injury, his loss of income has been assessed at Rs. 870 per month since the injury sustained by him is 87.6 per cent. The annual income of the appellant was thus Rs. 3,000 per month but it held that the appellant’s income per month was not less than Rs. 1,000 and considering the percentage of his injury, his loss of income has been assessed at Rs. 870 per month since the injury sustained by him is 87.6 per cent. The annual income of the appellant was thus Rs. 12,000 and since he was 28 years of age at the time of accident, a sum of Rs. 1,04,400 (rupees one lakh four thousand and four hundred only) has been awarded for loss of income, Rs. 20,000 (rupees twenty thousand only) has been awarded towards mental pain, agony, food and nourishment and Rs. 1,600 has been awarded towards medical expenses. In all a sum of Rs. 1,26,000 has been awarded towards the compensation claimed by the appellant. 4. Challenging the quantum of compensation awarded by the Tribunal, it was submitted by the Counsel for the appellant that as per Second Schedule to the Motor Vehicles Act, in the case of partial permanent disablement, such percentage of the amount is required to be awarded, which is arrived at by multiplying the annual loss of income by the multiplier applicable to the age of the injured on the date of determining the compensation and such percentage of compensation would be payable to claimant in case of permanent total disablement which is specified in Clause (4) of the Second Schedule to Motor Vehicles Act, which are general damages under the head of ‘pain, suffering, grievous injuries, non-grievous injuries, medical expenses’. It was also submitted that the earnings of the claimant-appellant was Rs. 1,000 per month and hence multiplier of 18 should have been applied to the annual income of the injured-claimant for loss of income and such percentage, out of this amount would be payable by way of compensation which is in proportion to the percentage of injuries sustained. Since this method of computation for the amount of compensation is born out from the Second Schedule to the Motor Vehicles Act itself , there can be no quarrel about this and hence applying this formula, the amount which is arrived at would be approximately Rs. 1,90,000. It is, however, further noticed that under the head of non-pecuniary loss for pain and suffering which also includes pecuniary loss regarding food and nourishment, only Rs. 20,000 has been awarded. 1,90,000. It is, however, further noticed that under the head of non-pecuniary loss for pain and suffering which also includes pecuniary loss regarding food and nourishment, only Rs. 20,000 has been awarded. It is no doubt true that under the non-pecuniary loss, such as pain, suffering, past and future loss of amenities and enjoyment of life, there can be no precise yardstick by which compensation is payable to such heads which can be assessed and determined and it is impossible to quantify the damage in monetary terms; nevertheless, the amount of compensation has to be a just compensation which can justify that a fair amount of compensation has been paid to the victim. Bearing this in mind when the nature of the injuries sustained by the claimant-appellant is considered, it is difficult to ignore that the appellant was only 28 years of age at the time of accident and is unable to move without the assistance of any other person, he can neither stand nor walk and thus he is crippled for the whole life. Hence it is considered just and appropriate to enhance the amount of Rs. 20,000 under the head of’ non-pecuniary loss’ for pain and suffering to Rs. 50,000 and the amount of Rs. 1,600 determined towards nourishment is enhanced to Rs. 10,000. Thus the appellant in all would be entitled to a sum of Rs. 2,50,000 towards compensation for 87 per cent injuries sustained by him. 5. Learned Counsel for the appellant had relied upon two Judgment s, one delivered in the case of National Insurance Co. Ltd. vs. A. Kala Mohan, 1998 ACJ 295 (Madras), wherein a sum of Rs. 6,49,000 had been awarded for 100 per cent disability and on a Judgment of the Apex Court in the case of Nagesha vs. M.S. Krishna, 1998 ACJ 467 (SC), wherein Rs. 6,00,000 has been awarded for an injured aged about 23 years who suffered permanent disability of 95 per cent. However, in these two cases annual income of the injured persons were higher than the appellant herein as in the case of Kala Mohan (Supra), the victim was earning a sum of Rs. 240 to Rs. 250 per day through video and audio recording and because of 100 per cent permanent disability he was not able to move about even from the wheelchair or from bed to the wheelchair. 240 to Rs. 250 per day through video and audio recording and because of 100 per cent permanent disability he was not able to move about even from the wheelchair or from bed to the wheelchair. Besides this, he was also a married man and the plight of the young wife of the man who lost all amenities of life through her husband was a consideration due to which a higher compensation of Rs. 6,49,000 had been awarded to the injured/disabled. In the case of Nagesha vs. M.S. Krishna (Supra), the injured had suffered 95 per cent permanent disability whereas in case of the appellant it is 87 per cent and hence the amount enhanced hereinabove is considered appropriate considering the fact that his annual loss of income was not on par with claimants in whose case Rs. 6,00,000 had been awarded. In the instant case the appellant is not deprived of total loss of income as it has come out in evidence that he can still continue his job of selling vegetables. It is, therefore, considered appropriate that the amount of Rs. 2,50,000 along with interest at the rate of 9 per cent per annum to the appellant-claimant from the date of filing of this appeal till the date of payment be paid to appellant and any amount already received by the appellant by way of interim compensation shall be deducted from this amount, if this amount is kept by the appellant in the fixed deposit account, it would fetch the amount of interest of Rs. 1,800 per month approximately and hence this amount is considered adequate. 6. The impugned award accordingly stands modified and the respondent National Insurance Co. Ltd. is directed to pay the balance amount of award to the appellant expeditiously. The appeal thus stands allowed and disposed of