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2005 DIGILAW 227 (CHH)

ASHOK KUMAR BALEKAR v. RISIKUMAR RAJPOOT

2005-06-28

A.K.PATNAIK, S.K.SINHA

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JUDGMENT As per Hon'ble Shri A.K. Patnaik C.J 1. This is an appeal under section 173 of the Motor Vehicles Act 1988 against the award dated 23-03-1996 passed in Claim Case No.25 of 1994 by the VIth Additional Motor Accident Claims Tribunal, Raipur. 2. The facts briefly are that on 04-04-1992 in the evening around 7 p.m. Tikamchand was driving a Luna and the appellant was sitting behind him. A Jeep bearing Regn. No. MBT 8304 came from front side and dashed against the Luna. As a result of the said accident the appellant was thrown away about 8-10 feet and as a consequence, he received a fracture in his left log He was hospitalized in D.K. Hospital for a period of one month He filed the foresaid Claim Case before the Tribunal claiming a compensation to the tune of Rs.2,65,000/- The Tribunal however worked out a Sum of Rs.31,200/-as loss of in come and sum of Rs.5000/-towards medical expenses and finally awarded a sum of 36,000/- alongwith interest @ 12% per annum calculated from the date of application I.e. 09-3-1993 till realization. since the Jeep was insured with the Oriental Insurance Company Ltd/respondent No.3, the compensation, amount so awarded was to be paid by respondent No.3 Aggrived by the said award dated 23-3-1996 the claimant has filed his appeal. 3. Shri S.C Verma. Learned counsel for the appellant submitted that the Tribunal has come to the finding on the, basis of evidence before him that the appellant was selling ice-cream and on account of the injuries suffered by him in his left leg, he would earn an income of Rs.1000/- instead of Rs.1200/- p.m. and accordingly calculated the loss of income, by adopting the multiplier, of 13 and worked out the total loss of income of the appellant as Rs.31,200/- (Rs. 200 x12x13). He vehemently argued that the finding of the Tribunal is very clear that the appellant would suffer a loss of income of Rs.10/-every day in his business on account of injuries in his leg and if that be so the total loss of income would work out at Rs.300/- instead of Rs.200/- per month. 200 x12x13). He vehemently argued that the finding of the Tribunal is very clear that the appellant would suffer a loss of income of Rs.10/-every day in his business on account of injuries in his leg and if that be so the total loss of income would work out at Rs.300/- instead of Rs.200/- per month. He further submitted that the appellant was aged about 34 years at the time of accident and yet the Tribunal has determined his age as 36 years on the basis of medical report and some medical prescriptions which has been produced before the Tribunal, but it would be clear from the deposition of the appellant himself which was given about years after the accident that he was 36 years when he gave the deposition before the Tribunal. He vehemently argued that there is no reason whatsoever to take the age of the appellant as 36 years when his actual age was 34 years at the time of accident Mr. Verma further submitted that besides the loss of in come and medical expenses the Tribunal has not awarded any amount towards pain and suffering although the appellant was hospitalized for a period on one month and thereafter, had to visit the hospital every 15 days as would clear from the deposition of the appellant before the Tribunal He further submitted that the Certificate Ex.P.01 and the evidence of Doctor (A.W.2). are clear that the left leg of the appellant had become stiff at the knee on account of which the appellant was limping and yet no compensation has been awarded for loss of amenity suffered by the appellant Mr. Verma cited the decision of the Supreme Court in the case of R.D. Hattangadi Vs. Pest control (India) Pvt. Ltd., and others wherein the Supreme Court awarded an amount of Rs.1,50,000/- towards pain and suffering and Rs. 1,50,000/towards loss of amenities of life of the claimant. He also relied on the decision of Supreme Court in the case of Amar Singh Vs. Ishwar and other; wherein the Supreme Court enhanced the award of Rs. 50,000/- to a further sum of Rs. 1,00,000/- on the head of pain, shock and suffering with 12% interest on the additional amount. 4. Mr. Vinay Harit, learned counsel appearing for respondent No.31 Oriental Insurance Company Ltd., on the other hand submitted that the compensation of Rs. Ishwar and other; wherein the Supreme Court enhanced the award of Rs. 50,000/- to a further sum of Rs. 1,00,000/- on the head of pain, shock and suffering with 12% interest on the additional amount. 4. Mr. Vinay Harit, learned counsel appearing for respondent No.31 Oriental Insurance Company Ltd., on the other hand submitted that the compensation of Rs. 31,200/- towards loss of income was just and adequate and that enhancement was not justified in the facts and circumstances of this case. He pointed out that besides Rs. 31,200/- the Tribunal awarded medical expenses of Rs. 5000/- and no further amount could possibly be awarded in favour of the appellant. Regarding the decision of the. Supreme Court in R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. (supra) he submitted that in the said case, an advocate having good practice in different courts had suffered the accident and taking into account the special circumstances of the case, the Supreme Court had allowed a sum of Rs. 1,50,000/- towards pain and suffering and Rs. 1,50,0001/- towards loss of amenities of his life, but in the present case the petitioner is an ice-cream seller and the business of selling ice-cream was a seasonal business and the amount of Rs.36,000/- awarded by the Tribunal for loss of income as well as the medical expenses were enough. He further submitted that the appellant was hospitalized only for a period of one month and the claim towards pain and suffering as submitted by Mr. Verma was not justified. He submitted that the Karnataka High Court in the case of Rangappadas Vs. K. Srinivasa Rao and others has awarded a sum of Rs. 10,000/- for loss of amenities and Sum of Rs. 20,000/- for pain and suffering in Ii case where the right leg of the victim had been rendered dysfunctional and useless aria the injured has suffered 60% disability in the limb. He further submits that in the present case since the Certificate in EX.P-1 showed that the appellant had suffered 40% disability in the limb the award towards loss of pain and suffering and towards loss of amenities should be less. 5. We have considered the submissions of Mr. Verma, counsel for the appellant and Mr. He further submits that in the present case since the Certificate in EX.P-1 showed that the appellant had suffered 40% disability in the limb the award towards loss of pain and suffering and towards loss of amenities should be less. 5. We have considered the submissions of Mr. Verma, counsel for the appellant and Mr. Vinay Harit counsel for respondent No.3/Insurance Company and we find that the Tribunal has clearly recorded a finding that the appellant was selling ice-cream and the Tribunal has worked out the loss of income of the appellant at Rs.200/- per month at the rate of Rs. 10/-per day. If the loss of income is Rs.10/ per day, we find no reason as to why the appellant should not be allowed such loss of income per day for an average of 30 days in a calendar month, in which case the loss of income of the appellant every month will work out at Rs.300/- When the evidence was recorded before the Tribunal on 02-08-1995 the appellant on solemn affirmation in his deposition stated his age is 36 years and not 36 years at the time of accident should be accepted. If the age of the which was applicable as per the schedule to the Motor Vehicles Act 1988 would be 17 and not 13. Accordingly the loss of income of the appellant would work out at Rs.300 x12x17=Rs.61,200/- 6. In the case of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. (supra) the Supreme Court has held that while fixing an amount of compensation payable to a victim of accident, the damages have to be assessed separately as pecuniary damages and special damages. The Supreme Court has explained in the aforesaid case that pecuniary damages are those which ,the victim had 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. The Supreme Court has explained in the aforesaid case that pecuniary damages are those which ,the victim had 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. The Supreme Court has further observe that pecuniary damages may include expenses incurred by the claimant towards medical attendance on his treatment and medicines, loss of-earning of profit and other material losses whereas non-pecuniary damages may include damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future, and damages to compensate for the loss of amenities of life which may include a variety of matters including the claimant not being able to walk, run or sit on account of injury. In this Case, the Tribunal has awarded only the pecuniary damages of Rs.31,200/- towards loss of income and Rs.5000/- towards medical expenses on his treatment but has not awarded any amount towards non pecuniary damages. We have worked the loss of income of appellant at Rs.61.,200/- and the Tribunal has awarded pecuniary damages towards medical expenses at Rs.5000/- To these amounts towards pecuniary damages, non- pecuniary damages are to be added as per the aforesaid decision' of the Supreme Court. 7. We accordingly proceed to work out the non-pecuniary damages in the present case. The appellant has suffered hospitalization for one month and was also required to visit the hospital from time to time thereafter on account of the injury in the his left leg. It is clear from the evidence of the Doctor A.W.2 that the appellant had suffered a disability 'of 45%. It is also clear from his evidence that on account of injury iii the left leg and there is stiffness in the knee of the appellant as the knee had lost its flexibility. Obviously stiffness in the leg has affected the ability of the appellant to walk, run and sit comfortably. We are of the view that on account of pain and suffering the appellant was entitled to a sum of Rs.10.000/- and on account of loss of amenity of one leg he was entitled to a sum of Rs. 20,000/-. The amount of Rs. 150,000/- towards pain and suffering and the amount of Rs. We are of the view that on account of pain and suffering the appellant was entitled to a sum of Rs.10.000/- and on account of loss of amenity of one leg he was entitled to a sum of Rs. 20,000/-. The amount of Rs. 150,000/- towards pain and suffering and the amount of Rs. 1,50,000/- towards loss of amenities of life as claimed by Verma, counsel for the appellant on the basis of decision of tile S6preme" Court in the case of R.D. Hattangadi (Supra) would not be allowable to the appellant in the present case because the nature of pain and suffering and the loss of amenities of life of the appellant in the present case differs to a large extent from those suffered by the claimant in the aforesaid case of the Supreme Court. In the aforesaid case of the Supreme Court, the claimant who was a practicing Lawyer had become paraplegic on account of injury suffered by him and had become life-long handicapped and it is because of these special Circumstances that the claimant in that case was awarded Rs. 1,50,000/- towards "pain and suffering" and Rs: 1,50,000/- towards "loss of amenities of life" as indicated in Para 17 of the said judgment of the Supreme Court. In Para 17 of the said Judgment, the Supreme Court has further held as under. "When compensation is to be awarded for pain and suffering and loss of amenity of life the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he had suffered, the effect thereof on his future life." In this case, considering the special Circumstances of the appellant in chiding his age, deprivation he has suffered on his left leg and effects thereof on his life we are of the considered opinion that a sum of Rs.10,000/-towards pain and suffering and sum of Rs.20.0001- towards loss of amenities of life would be just and fair compensation. 8. In the result, the appellant would be entitled to a compensation as worked out hereunder: (1) loss of income Rs. 61,200/- (2) medical expenses Rs. 5,000/- (3) pain and suffering Rs. 10,000/- (4) loss of amenities of life Rs. 20,000/- Total Rs. 96,200/- 9. Mr. Vinay Harit, learned counsel for respondent No.3 vehmently submitted that the interest @12% as awarded by the Tribunal should be lowered to.9% in this case. 61,200/- (2) medical expenses Rs. 5,000/- (3) pain and suffering Rs. 10,000/- (4) loss of amenities of life Rs. 20,000/- Total Rs. 96,200/- 9. Mr. Vinay Harit, learned counsel for respondent No.3 vehmently submitted that the interest @12% as awarded by the Tribunal should be lowered to.9% in this case. In support of the aforesaid submission, he cited the decisions of the Supreme Court in Tamilnadu State. Transport Corporation Ltd. Vs. S. Rajapriya and others, in which the Supreme Court has after taking note of prevailing rate of interest in bank deposits awarded an interest of 7.5% per annum on the compensation amount. He also relied on the decision of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Charlie and another wherein the-Supreme Court has held that the compensation awarded would carry an interest @7. 5% per annum from the date of filing of the claim application till the date of payment. He also relied on a decision of the Division Bench of Madhya Pradesh High Court in case of Pusuva Vs. Lakshman and others 12% interest per annum has been awarded from the date of application till realization in case of an accident which has occurred on 24-4-1985. 10. We are unable to accept the aforesaid submission of Mr. Vinay Harit. In Tdmilnadu State Transport Corporation Vs. S. Rajapriya and (Supra) the compensation case was filed in respect of an accident which took place on 30-08-2001; the Supreme Court held that taking note of prevailing rate of interest the rate of interest should be fixed at 7.5% per annum. In the case New India Assurance Company Ltd. Vs. Charlie and another (Supra) the date of accident was 14-12-1997 and the claim case was filed thereafter and the Supreme Court held that the compensation would carry interest @ 7.5% from the date of fling of the claim application upto the date of payment. In Pusuva Vs. Lakshman (supra), although the accident took place on 24-4-1985 the claim case was filed in the year 1990 and on these facts the M.P. High Court held that the rate of interest at 12% p.a. was allowable from the date of the application till realization. In Pusuva Vs. Lakshman (supra), although the accident took place on 24-4-1985 the claim case was filed in the year 1990 and on these facts the M.P. High Court held that the rate of interest at 12% p.a. was allowable from the date of the application till realization. In the present case, the accident took place on 04-04-1992 and the claim case was filed on 09-3-1993 and considering the prevailing rate of interest as in the year 1993, the Tribunal has awarded interest @ 9% per annum. We may mention here that the interest rate started falling much after. 1993 and not in the year 1993. Hence, we are not inclined to reduce the rate of interest as awarded by the Tribunal from 12% to 9% as contended by Mr. Vinay Harit, learned counsel for respondent No.3. 11. For the aforesaid reasons the impugned award is modified and respondent No.3 is directed to pay the compensation amount of Rs.96,200/with interest @ 12% per annum calculated from the date of application before the Tribunal i.e. 09-3-1993 less the amount already paid. The appeal stands allowed to the extent indicated above. Appeal Partly Allowed.