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2005 DIGILAW 519 (UTT)

Ram Singh v. New India Assurance Co. Ltd.

2005-12-07

J.C.S.RAWAT, P.C.VERMA

body2005
JUDGMENT Per : Hon'ble J.C.S. Rawat, J.- This appeal has been filed by the claimant/appellant under Sec. 173 of the Motor Vehicles Act, 1988 for enhancement of amount of compensation against the judgment and award dated 08.11.2004 passed by the Motor Accident Claims Tribunal/District Judge, Pauri Garhwal in Motor Accident Claim Case No. 42 of 2002, Ram Singh versus Sri Rashid Contractor and another. 2. Brief facts of the case giving rise to this appeal are that on 24.03.2001 at about 2.00 p.m.; truck bearing registration No. UTS 1314 was carrying sand in Janki Nagar, Kotdwara. The sand was wetted, hence the body of the truck became wetted. The claimant/appellant was working as conductor/helper in the said truck. During the course of unloading the truck and covering its body by wooden sheet, one wooden sheet touched the electric line and he became injured by electric current. The appellant immediately got admitted in the Government Hospital, Kotdwara for treatment and thereafter he was taken to Tulsi Nursing Home, Meerut and then he was shifted in Srivastava Orthopaedic Hospital, Dehradun for better treatment. The appellant was 26-year-old at the time of accident and he was getting Rs. 2000/- per month as salary. The said truck was insured with Opp. party/respondent-New India Assurance Company on the date of accident. It was alleged that his left leg was amputated and on his treatment he has spent more than Rs. 2 lacs. The claimant/appellant filed the claim petition before the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) for compensation amounting to Rs. 6,00,000/-. 3. The opposite parties contested the claim petition before the Tribunal. The opposite party No.1-owner of the offending Truck filed his written statement and stated that on the date of accident, the truck was insured with the New India Assurance Company and all the documents regarding registration and insurance were valid. If any liability for payment of compensation is fixed, that shall be borne out by the Insurance Company. 4. The Opp-party No.2-Insurance Company filed its written statement alleging therein that the claim petition was filed on the basis of wrong facts. It was also pleaded by the Insurance Company that the driver of the truck has not been made party, hence the claim petition is bad for non-joinder of necessary party. 4. The Opp-party No.2-Insurance Company filed its written statement alleging therein that the claim petition was filed on the basis of wrong facts. It was also pleaded by the Insurance Company that the driver of the truck has not been made party, hence the claim petition is bad for non-joinder of necessary party. It was also pleaded that the said accident cannot be said motor accident under the provisions of Motor Vehicles Act. 5. On the pleadings of the parties, the Tribunal framed necessary issues and after appreciating the evidence adduced by the parties, the Tribunal allowed the claim petition for Rs. 70,350/-. It has also been ordered by the Tribunal that in case of failure in payment of said amount within a period of two months from the date of order, the claimant shall get interest at the rate of 9% per annum from the date of petition till the date of payment. Feeling aggrieved, the claimant has come up in this appeal for enhancement of the amount of compensation. 6. We have heard the learned counsel for the parties and carefully gone through the record of the case. The learned counsel for the appellant pressed the appeal only on the point of quantum of compensation. He contended that the learned Tribunal while awarding the compensation has not considered that the appellant has suffered injuries which have resulted in permanent disability to the appellant. The compensation awarded to the appellant is too meager. The learned Tribunal ought to have awarded compensation for loss of income suffered by the appellant and committed a gross mistake in not calculating the compensation for pecuniary loss. A perusal of the impugned judgment shows that the Tribunal has recorded finding in issue Nos. 1 and 4 that the injured/appellant sustained injuries while he was in the process of covering the body of the truck by wooden sheets alter unloading the sand from it. The said sand was wetted by which the body of the truck also became wet led and got the electric current on touching the electric wire. Due to electric current the appellant sustained injuries• and it cannot be said that the petitioner/appellant was negligent. The petitioner/appellant has filed bills for Rs. 20,351.00 which he has incurred on account of his treatment. Besides the amount of Rs. 20,351/-, the Tribunal has awarded only Rs. Due to electric current the appellant sustained injuries• and it cannot be said that the petitioner/appellant was negligent. The petitioner/appellant has filed bills for Rs. 20,351.00 which he has incurred on account of his treatment. Besides the amount of Rs. 20,351/-, the Tribunal has awarded only Rs. 50.000/- for mental and physical agony to the petitioner. The petitioner/appellant has produced himself in the witness box as P.W.1. He stated on oath that he was working as cleaner in the offending truck and was getting Rs. 2000/- per month as salary besides Rs. 50/-per day for fooding expenses. He also deposed that due to said injuries he has lost the vision of his left eye and his left leg was amputated from the hips joint. The perusal of aforesaid evidence reveals that the accident was occurred when the claimant was in process to unload the truck and to cover the body of the said truck from wooden sheets. Section 165 of the Motor Vehicles Act, 1988 provides that the State Government, by notification in the official gazette, may constitute one or more Motor Accident Claims Tribunals for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of the motor vehicles, or damages to any property of a third party so arising, or both. The aforesaid provision makes it clear that if any person met with an accident at the time when he is using the motor vehicle, he is entitled to get compensation and the learned• Tribunal committed no mistake in holding. that the petitioner sustained injuries in the accident. 7. The evidence also shows that the petitioner incurred a huge amount on his treatment in different hospitals although he has filed the bills only for an amount of Rs. 20,351/-. Paper No. 30 G/43 filed by the petitioner is a certificate issued by Chief Medical Superintendent. Govt. Combined Hospital, Kotdwara (Pauri Garhwal), on 18.9.2002. In the said certificate the disability was found at 80% (though in words it has wrongly been written 'eight per cent' in the said certificate). In his cross-examination the injured /petitioner denied the suggestion made on behalf of the Insurance Company that he was not the helper/conductor in the said truck. Govt. Combined Hospital, Kotdwara (Pauri Garhwal), on 18.9.2002. In the said certificate the disability was found at 80% (though in words it has wrongly been written 'eight per cent' in the said certificate). In his cross-examination the injured /petitioner denied the suggestion made on behalf of the Insurance Company that he was not the helper/conductor in the said truck. The injured /petitioner has lost his earning capacity for his whole life and the Tribunal, in cursory manner only awarded Rs. 50,000/- on account of mental and physical agony. In this regard the finding recorded by the \earned Tribunal in issue No.6 is wrong and is liable to be set aside. 8. The Hon'ble Apex Court in the case of Pallavan Transport Corporation Ltd. versus M. Jagannathan, reported in (2002) 9 Supreme Court Cases, 728 in which the claimant has lost his one leg with 85% disability, upheld the compensation of Rs. 4,50,000/-awarded by High Court in appeal. In the said case the Hon'ble Apex Court has held as under: "On overall consideration we do not find it to be a fit case to interfere even on the grant of compensation. This is a case where the claimant has lost his one leg with 85% disability with the possibility of cent-per-cent loss. In view of this such persons life is completely changed. He is a new man, he has to live a new life, start a new venture hence, we do not find any error in the impugned order to interfere with it. Hence for the said reasons, we decline to interfere with it. Accordingly, this appeal is dismissed with costs." 9. The Hon 'ble Apex Court in the case of Ashwani Kumar Mishra versus P.Muniam Babu and others, reported in 1999 ACJ 1105, in which the appellant, who was 23 years of age, had met with an accident and received severe injuries causing damage to his spinal cord. He remained under treatment for about 90 days and became permanently disabled, has observed in Para-4 of the judgment that this court in R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd., 1995 ACJ 366 (sq, had held: "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. The pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas the non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate the two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial (iii) other material loss. So far as 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." 10. The Apex Court in Ashwani Kumar Mishra's case (supra) allowed the appeal filed by the injured/appellant and enhanced the amount of compensation from Rs.2,25,000/- as awarded by the High Court to Rs. 5.00.000/- with interest at the rate of 12 per cent per annum. In Para-5 of the said judgment the Apex Court held as under: "In the instant case the appellant has been awarded Rs. 94,037 as expenses incurred on medical care. Rs. 20,000 for special diet and expenses for attendant during the treatment. For his becoming permanently disabled and paraplegic on account of the injury and damage caused to his spinal cord, the appellant; who admittedly has been held permanently incapacitated, has been granted only Rs. 1,00,000. We are of the opinion that the appellant was right in claiming his income at Rs. 2.000 per month while working with his father at the time of the accident and even if we apply the multiplier of 16. he is entitled to the claim of Rs. 3.84,000 on account of loss of expectation of life besides disappointment. frustration and mental stress particular when he has to 'keep a permanent attendant to look after him in his rest of life. Adding this amount to the amount of Rs. he is entitled to the claim of Rs. 3.84,000 on account of loss of expectation of life besides disappointment. frustration and mental stress particular when he has to 'keep a permanent attendant to look after him in his rest of life. Adding this amount to the amount of Rs. 1,14,000 to which the appellant has rightly been held entitled on account of expenses incurred on medical care and for the pain and suffering during the period of treatment the appellant is entitled to a total sum of Rs. 4,98,000 which we round up to Rs. 5,00,000 inclusive of costs of litigation. The aforesaid amount is liable to be paid by the respondent insurance company as was held by the High Court." 11. From the careful perusal of aforesaid case laws it is clear that while assessing damages the Tribunal cannot base its opinion merely on speculation. The disablement is of permanent nature and it reduces the earning capacity of the appellant in every employment which he was capable of undertaking at the time of accident. 12. In the evidence it has been proved that the claimant/appellant was employed as helper/conductor in the said truck (bearing registration No. UTS 1314) and he was getting Rs. 2000/- per month as salary. He was 26-year-old at the time of accident. The Opp. party-Insurance Company has not adduced any evidence rebutting this fact. The said truck was validly insured with the respondent No.10- New India Assurance Company on the date of the accident. 13. Keeping in view all the facts and circumstances of the case, we are of the opinion that compensation should be calculated applying the multiplier of 16, which the Apex Court has applied in the case of Ashwani Kumar Mishra (supra). Hence the amount of compensation comes to Rs. 2000 x 12 x 16 = Rs. 3,84.000/-. The injured-claimant (appellant) has also filed the bills of medical expenses incurred by him on his treatment, which are to the tune of Rs. 20,351/-. He is also entitled to get this amount. Hence, the injured claimant shall be entitled to get total compensation of Rs. 3,84,000 + 20,351 = Rs. 4,04,351/- alongwith interest from the respondent No.1 (Opp. party No.2) New India Assurance Company Ltd. 14. In the result, the appeal is allowed by modifying the order impugned holding the appellant entitled to a compensation of Rs. Hence, the injured claimant shall be entitled to get total compensation of Rs. 3,84,000 + 20,351 = Rs. 4,04,351/- alongwith interest from the respondent No.1 (Opp. party No.2) New India Assurance Company Ltd. 14. In the result, the appeal is allowed by modifying the order impugned holding the appellant entitled to a compensation of Rs. 4,04,151/-(Rupees four lacs four thousand three hundred fifty one) with interest at the rate of 9% (nine per cent) per annum from the date of filing of claim petition before the Tribunal. Amount, if already paid, shall be adjusted.