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2005 DIGILAW 103 (HP)

ARKASH KUMAR v. PUNJAB ROADWAYS

2005-04-24

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.: This appeal for enhancement of compensation has been filed by the claimant under Section 173 of the motor Vehicles Act against the award dated 23.8.1997 passed in MAC. Petition No. 13-S/2 of 1996 by the Motor Accident Claims Tribunal. Solan, H.P. (hereinafter referred to as the Tribunal). 2. The facts necessary for decision of this case are that the claimant was travelling on his scooter No.HP-14-3131 on 21.11.1995. He was employed as cashier in State Bank of Patiala and posted at Kandaghat. When he was going to Kandaghat at about 9.30 a.m. Bus No. PB-12B-9501 driven by Rajinder Singh and owned by Punjab Roadways came form the other side. The said bus was being driven in a rash and negligent manner and there was a collision between the bus and the scooter. As a result of the accident the claimant suffered serious injuries to his right leg. He was taken to the District Hospital, Solan from where he was referred to PGI Chandigarh. The claimant remained admitted in PGI Chandigarh upto 28.12.1995. The leg of the claimant was amputated in the PGI. The Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the bus. The claimant was awarded Rs. 25,607.60 on account of expenses on his medical treatment. He was awarded Rs. 6520/- for travelling expenses, Rs. 15,500/-for attendant charges. He was also awarded Rs. 2,10,283/- for future loss of income. In addition thereof the claimant was awarded Rs. 60,000/- for pain and suffering and Rs. 10,000/- for future medical treatment. The total amount awarded to the claimant was Rs. 3,52,000/-. 3. The claimant being aggrieved against the amount of compensation has filed the present appeal. Since the only question involved in this appeal is with regard to the quantum of compensation the relevant evidence in this behalf only is being discussed. 4. PW-1 Dr. Romesh Kumar Sen, is Assistant Professor, Department of Orthopedics, PGI Chandigarh. He has proved on record the disability certificate of the applicant which shows that he has suffered disability to the extent of 34% in relation to his whole body and 95% in relation to his right lower limb. This witness has also proved on record the discharge summary of the claimant. 5. PW-2 is the claimant himself. He states that he underwent several operations but ultimately his leg was amputated. This witness has also proved on record the discharge summary of the claimant. 5. PW-2 is the claimant himself. He states that he underwent several operations but ultimately his leg was amputated. According to him he also took treatment at Amritsar and Patiala and incurred Rs. 1,00,000/- on treatment and Rs.25,000/- on transportation. He further states that he remained without leave for 150 days. According to him his marriage prospects have been ruined and he cannot travel without any attendant and needs the help of his parents for small jobs like wearing cloths, going to the toilet etc. According to him he is still suffering from pain and he needs a mechanical leg cost of which is Rs.2,47,500/-. In cross examination he had admitted that he is entitled to reimbursement but states that the same is limited. According to him out of the bills Exts? P-1 to P-86 submitted by him which are for a sum of Rs. 35,598/- only an amount of Rs. 10,000/- to Rs. 12,000/- is reimbursable. He has also admitted that he is still getting his pay and is working in the same job as before. He states that the bills Exts P-1 to P-86 are the bills of medicines prescribed to him by private doctors. He states that the bills of the Government hospitals have been reimbursed to him. 6. PW-5 is Suresh Sharma, Clerk, State Bank of Patiala. He has proved on record Ext. PE which is a certificate showing that the applicant remained on medical leave for 30 days form 17.9.1996 to 16.10.1996 without pay and also for 7 days on casual leave on various other dates. 7. PW-6 Kuldip Sharma is Head Cashier, State Bank of Patiala, Kandaghat. He has proved on record the salary of the claimant Ext. PF which shows that his salary was Rs. 3224/- and adding the banks contribution towards PF his salary was Rs. 3436/-. He has also proved the certificate ext. PG which shows that on account of the accident the claimant remained on leave from 21st November, 1995 to 24th May, 1996. Ext. PB the discharge treatment summary of the claimant shows that the claimant suffered a fracture of the right femur. 3436/-. He has also proved the certificate ext. PG which shows that on account of the accident the claimant remained on leave from 21st November, 1995 to 24th May, 1996. Ext. PB the discharge treatment summary of the claimant shows that the claimant suffered a fracture of the right femur. He was taken for surgery in emergency on 22.11.1995 and K. Nail fixation was done/Since the would did not heal and the vessels were found damaged amputation above the knee was done on 26.11.1995. Re-amputation was done on 5.12.1995. He was discharged on 28.12.1995 and advised daily dressing at home. 8. One important question raised in this appeal was as to cost of the artificial leg and the amount of charges reimbursed by the bank. Therefore, oh 23.5.2005 I had passed the following order: "Mr. Dibender Ghosh, learned counsel for the appellant has produced before me a photo copy of the certificate wherein it has been shown that a sum of Rs. 2,12,670/- has been spent for the cost of an artificial limb. The appellant is directed to produce the original bill and also to file his affidavit to show whether this amount or part of its has been reimbursed to him by his employer or not. The appellant shall also file an affidavit of the Branch Manager(s) of the Bank where he was serving from the date of accident till 31st March, 1998 giving the details of the medical reimbursement of the appellant Let the needful be done within three weeks. List the matter on 29th June, 2005. 9. Thereafter, the claimant has filed certain affidavits. Some of the affidavits are beyond the scope of the order and are not being gone into. Suffice to say that as per the affidavit now filed the cost of the artificial limb was Rs.2,12,670/- out of which a sum of Rs. 1,75,000/- was reimbursed by the State Bank of Patiala the employer of the claimant. Another sum of Rs. 27,000/- was paid to the claimant for maintenance of the artificial leg. Despite opportunities given to the Roadways no counter affidavits were filed. 10. It is well settled law that the compensation to victims in accident cases who suffered injuries has to be awarded for both the pecuniary and non-pecuniary damages. Another sum of Rs. 27,000/- was paid to the claimant for maintenance of the artificial leg. Despite opportunities given to the Roadways no counter affidavits were filed. 10. It is well settled law that the compensation to victims in accident cases who suffered injuries has to be awarded for both the pecuniary and non-pecuniary damages. Under the head of pecuniary damages the claimant is entitled to the actual cost of medical treatment including cost of travelling and cost of attendants, special diet etc. He is also entitled under this head for the actual loss of income which take place and also for the future loss of income and prospects. He may also be paid some amount for future medical treatment under this head. Under the head of non-pecuniary damages the claimant is entitled to compensation for pain and suffering and also for damages on account of loss of amenities, future discomfort and disability. The claimant may in certain cases be also entitled to damages on account of loss of marital prospects. 11.Mr. Dibender Ghosh, learned counsel for the claimant has contended that the amount awarded under the head of pain and suffering should be increased and he should also be awarded substantial amount for loss of amenities, future discomfort and disability and for the maintenance and repair of the leg. 12. On the other hand Ms. Smita Thakur, learned counsel appearing on behalf of the Punjab Roadways submits that the claimant has wrongly been awarded a sum of Rs. 2,10,283.20 on account of loss future income and in fact he has not suffered any loss of income. She submits that the award is in fact excessive and calls for no enhancement 13. Mr. Dibender Ghosh, has cited the following case law: Case M. Jaganuthan vs. Pallavan Transport Corporation Ltd. 1999 ACJ 366, related to amputation of leg above the knee. A division bench of the Madras High Court granted total compensation of Rs. 4,50,000/-. In this case the injured was hospitalized for five months and had been on medical leave for 7-1/2 months. 14. In Pallavan Transport Corporation Ltd. vs. M. Jagannathan, (2002) 9 SCC 728, the Apex Court awarded a sum of Rs. 4,50,000/-. In this case the disability was assessed at 85% with possibility of 100% loss of disability. 15. In Pyar Chand Vs. 14. In Pallavan Transport Corporation Ltd. vs. M. Jagannathan, (2002) 9 SCC 728, the Apex Court awarded a sum of Rs. 4,50,000/-. In this case the disability was assessed at 85% with possibility of 100% loss of disability. 15. In Pyar Chand Vs. HRTC and another, 2003 (2) T.A.C. 720 (H.P.) this Court has awarded a sum of Rs. 5,00,000/- in the case of amputation of leg. In this case the amputation has resulted in 70% disability. It would also not be out of place to mention that in this case the expenses for treatment which had not been reimbursed were more than Rs. 1,31,000/- and an amount of Rs. i,25,000/- was for loss of pay. The claimant was held entitled to an amount of Rs. 1,50,000/- on account of pain and suffering and the rest of the award ofrS.3,50,000/- was towards his actual pecuniary loss. 16. In case Nagappa vs. Gurudyal Singh and others, AIR 2003 SC 674, the claimant was an agriculturist who has lost his leg. The main point decided in this case is that the Tribunal under the Motor Vehicles Act can award recurring damages for the future also. The total award in that case was not very high and in fact the Tribunal had only awarded Rs. 30,000/- and the High Court awarded Rs. 1,00,000/-in all. The Supreme Court increased the compensation by a further amount of Rs. 1,00,000/- i.e. Rs. Two lakhs in all. 17. Each case has to be decided on its own facts, in the present case the claimant has been awarded Rs. 25,607.60 by the Tribunal for medical treatment. In fact I find that all the case memos Exts. P-1 to P-86 are not for the medicines prescribed to him by the private doctors and that in fact a number of slips are for the medicines prescribed at PGI. In fact no evidence has been led by the claimant to show that he was treated at Patiala or Amritsar. No doctors from these hospitals have been examined to show what was the extent and nature of treatment. The Tribunal has awarded Rs 25,607 60 to the claimant. The claimant has been reimbursed most of his medical expenses. There is no explanation as to why the claimant did not ask for reimbursement of this amount also. No doctors from these hospitals have been examined to show what was the extent and nature of treatment. The Tribunal has awarded Rs 25,607 60 to the claimant. The claimant has been reimbursed most of his medical expenses. There is no explanation as to why the claimant did not ask for reimbursement of this amount also. No evidence has been examined to show that the bank had rejected the claimant for reimbursement of these medicines. In any event the claimant has been awarded Rs. 25,607,60 on this account which is upheld. 18. It has come on record that the claimant spent Rs. 2,12,000/- and odd on his artificial leg out of which Rs. 1,75,000/- has been reimbursed to him. It has also come on record that he needs to maintain this artificial leg. Therefore, a sum of Rs. 37,670/- is awarded to him for the difference between the amount spent by him and the amount reimbursed to him. 19. Mr Ghosh also contents that the claimant has to spend regularly for the maintenance and repair of the leg. Though there is no clear-cut evidence in this regard, the claimant is awarded a sum of Rs. 35,000/- for future medical expenses which mainly involve the maintenance of the leg. 20. The claimant has been awarded a sum of Rs. 6,520/- on account of travelling expenses. In my opinion, a person may not retain all the bills and therefore it would be just and reasonable to award him Rs. 10,000/- on account of transportation expenses for his treatment. The claimant has been awarded a total sum of Rs. 15,500/- for attendant charges. This amount is just and reasonable and the same is upheld. The version of the claimant that even thereafter he requires an attendant cannot be accepted. A person with an artificial leg can move around and does not require attendant for each and every need. The claimant however is held entitled to Rs.5000/- for special diet etc. 21. The claimant has been awarded Rs. 60,000/- for pain, suffering and loss of amenities etc. In my opinion it would be just and proper to award him Rs. 60,000/-on account of pain and suffering only. 22. The claimant has been awarded Rs. 2,10,283.20 for future loss of income. In my view the claimant was not entitled to this amount. 21. The claimant has been awarded Rs. 60,000/- for pain, suffering and loss of amenities etc. In my opinion it would be just and proper to award him Rs. 60,000/-on account of pain and suffering only. 22. The claimant has been awarded Rs. 2,10,283.20 for future loss of income. In my view the claimant was not entitled to this amount. The Tribunal in a mechanical manner by taking a disability at 34% assessed the loss of future earning at 34% of the income and applied a multiplier of 15. Loss of future earning has to be decided in the context of each case. It can happen that even though the disability is very low, keeping in view the nature of work of the claimant it leads to 100% loss of earning capacity. For example, if in the present case the claimant was a manual labourer and was not educated then the same disability could lead to 100% loss in future earning. In the present case the claimant is employed as a Cashier. His is a sitting job. He admittedly continues to be in employment. No evidence has been led to show his future prospects and promotional avenues have been hampered by the injury. Therefore, he was not entitled to this amount. 23. Mr. Ghosh has argued that at least after retirement he could not done some other work and his future loss of income should be calculated at least thereafter. That in my opinion is too remote in the future and cannot be calculated at this, state. However, this aspect can be taken into consideration while assessing the compensation under the head of loss of amenities, disability,. Future discomfort etc. 24. The claimant has to remain without a leg through out his life. He has become dependent on an artificial leg. He cannot walk about like a normal human being. His life is completely changed. He has to start life anew. He has to learn how to walk again and do everything all over again. He can never be a complete human being. Keeping in view the fact that the claimant was only 22 years of age and has been deprived of various pleasures of life and his future prospects it would be just and reasonable to award him Rs. 1,00,000/- under the head of loss of amenities, future discomfort and disability. 25. He can never be a complete human being. Keeping in view the fact that the claimant was only 22 years of age and has been deprived of various pleasures of life and his future prospects it would be just and reasonable to award him Rs. 1,00,000/- under the head of loss of amenities, future discomfort and disability. 25. The claimant was only 22 years old when he suffered the accident. He rightly states that his marital prospects have been ruined. Therefore, he is held entitled to Rs. 50,000/- for loss of matrimonial prospects. 26. The total award, in my opinion, therefore, works out to Rs. 3,38,000/-. The claimant has been awarded Rs. 3,52,000/-. Therefore, no enhancement is called for and the appeal is dismissed with no order as to costs.