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2005 DIGILAW 699 (GAU)

Oriental Insurance Co. Ltd. v. Hmingthangzuala

2005-09-20

I.A.ANSARI, MAIBAM B.K.SINGH

body2005
JUDGMENT I.A. Ansari J. 1. On 24.12.2000, when the claimant-respondent herein, was standing by the side of road at Darlawng, at Aizwal-Lunglei road, the truck bearing registration No. AMC-51 came, and dashed against the claimant and fled away. On being hit by the truck, the claimant fell down and became unconscious. The claimant was carried, in injured condition, to the Civil Hospital, Aizwal, and received medical treatment there. As a result of the accident, the claimant suffered from complete paralysis of the lower part of his body making it impossible for the claimant to move without help of others. The claimant has, therefore, continued to be under medical treatment. With such a description of the accident and also the consequences ensuring therefrom, the claimant made an application under Section 166 of the Motor Vehicles Act, 1988, (in short, 'the MV Act'), seeking compensation. This application gave rise to MAC Case No. 120/2003. As the owner of the said truck did not contest the proceeding, the insurer thereof was allowed, in terms of Section 170 of the MV Act, to contest the proceeding on all such grounds, which were available to the owner. The insurer, accordingly, resisted the claim. 2. By award, dated 26.11.2004, passed in MAC Case No. 120/2003, aforementioned, the learned Member, Motor Accident Claims Tribunal, Aizwal, has granted, in all, Rs. 11,82,275 as compensation with interest @9% per annum from the date of making of the claim application until realisation of the entire awarded amount. Aggrieved by the award, so passed, the insurer has preferred the present appeal. As the award did not satisfy the claimant, the claimant too has filed his cross-objection on the ground, inter alia, that the quantum of compensation awarded by the learned Tribunal is not adequate and the same may be enhanced. 3. We have heard Mrs. Helen Dawngliami, learned Counsel, for the insurer-appellant, and Mr. A.R. Malhotra learned Counsel, appearing on behalf of the claimant-respondent. 4. Presenting the case on behalf of the appellant, Mrs. 3. We have heard Mrs. Helen Dawngliami, learned Counsel, for the insurer-appellant, and Mr. A.R. Malhotra learned Counsel, appearing on behalf of the claimant-respondent. 4. Presenting the case on behalf of the appellant, Mrs. Dawngliami has submitted that though the claim application was made under Section 166 of the MV Act, the learned Tribunal did not frame any issue in order to determine as to whether there was any fault on the part of the driver of the said truck and without determining, in fact, the question as to whether there was any fault on the part of the driver of the said truck, the claim application has been allowed, which is, contends Mrs. Dawngliami, impermissible under the law inasmuch as, points out Mrs. Dawngliami, the claimant, having made application under Section 166, ought to have proved fault on the part of the driver of the said truck in order to enable him to succeed in his claim application. 5. Controverting the above submissions, made on behalf of the appellant, Mr. Malhotra has pointed out that notwithstanding the fact that the learned Tribunal did not frame any issue or record any finding with regard to the question as to whether there was, in fact, any fault on the part of the driver of the said truck, which caused the said accident, the evidence on record was sufficient to hold that the accident took place due to the fault on the part of the driver of the said truck. 6. Bearing in mind the fact that the present appeal is nothing but an expension of the proceeding before the learned Tribunal and in view also of the fact that the claimant has filed cross-objection, we have decided to examine the issue raised by the appellant, namely, as to whether the said accident took place due to fault on the part of the driver of the said truck. 7. On a close scrutiny of the evidence adduced by the claimant, we find that according to his evidence, the said truck dashed against him, when he was standing by the side of the road at Darlawng. There is absolutely no evidence on record to show that the said truck faced any obstruction, which made it move and came to the side of the road and hit a person standing there. There is absolutely no evidence on record to show that the said truck faced any obstruction, which made it move and came to the side of the road and hit a person standing there. In a situation, such as the present one, resort may be taken to the doctrine of res ipsa loquitur, which means that the accident speaks for, itself. In the case at hand, there is absolutely no material on record to indicate as to why the truck had to leave the main portion of the road and, instead of proceeding on the main road, left the same and moved towards the wayside and hit the claimant. There is also no evidence to show that the said truck suffered from any mechanical defect leading to the said accident. In the given set of facts and circumstances of the present case, the inference, which is irresistible to draw, is that the said accident took place due to rash and negligent driving of the said truck by its driver. This inference gets strengthened from the fact that even the police report, which stands exhibited on the record, indicates that the accident, in question, took place due to fault on the part of the driver of the said truck. 8. Because of what have been pointed out above we have no hesitation in holding that the said accident took place due to the fault on the part of the driver of the said truck. 9. Before entering into the merit of the rival submissions made on the quantum or adequacy of the compensation amount awarded by the learned Tribunal, what is pertinent to note, as noted by the Apex Court in RD Hattangadi v. Pest Control (India) Pvt. Ltd and Ors. reported in [1995] 1 SCR 75, is that while fixing the 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. Pecuniary damages may include expenses incurred by the claimant for (i) medical treatment and attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. Pecuniary damages may include expenses incurred by the claimant for (i) medical treatment and 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., when 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., when 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. Keeping in view the fact that the claimant sought for compensation on the ground of injuries sustained by him resulting into his disability, we have to determine as to what the pecuniary, loss, if any, has been sustained by the claimant due to the said accident and what not pecuniary damage, if any, he deserves to be awarded. 11. While considering the above aspects of the matter, it may be pointed out that the claimant's evidence is that before the accident took place, he was a carpenter and he used to earn Rs. 200 per day and at times, when he was sent out, he was paid Rs. 50 per day as allowance and that he used to work everyday except on Sundays, but after the accident, he has become completely paralyzed so far as the lower part of his body is concerned and he is unable to work and earn anything nor is he able to maintain his family, which consists of his wife and three minor children, who were entirely dependent on him. In support of his evidence, so given, the claimant has adduced evidence by examining the doctor, who had attended and his former employer as witnesses. 12. From the evidence given by the employer, it transpires that the claimant used to work as a carpenter at his workshop and earn wages at the rate as has been deposed to by the claimant. 12. From the evidence given by the employer, it transpires that the claimant used to work as a carpenter at his workshop and earn wages at the rate as has been deposed to by the claimant. The medical expert's evidence also gives credence to the evidence of the claimant that the injuries sustained by him in the said accident have resulted into complete paralysis of the lower part of the claimant's body. 13. Situated thus, we notice that the learned Tribunal's conclusion is not incorrect that though, according to the evidence of the claimant's employer, the claimant used to work almost 26 days in a month, he cannot be presumed to have been working for more than 24 days constantly in a month. This apart, in view of the fact that the claimant used to earn, ordinarily, Rs. 200 per day as his wages, the learned Tribunal was not in our view, wrong in calculating that the claimant used to earn almost Rs. 4,800 per month as wages. The claimant's annual income was, thus, Rs. 4,800 x 12 = Rs. 57,600. 14. Taking the annual income of Rs. 57,600 as the base, the learned Tribunal applied 18 as multiplier and calculated the loss of income of the claimant to the tune of Rs. 10,36,800. For the reasons, which we have assigned hereinabove, we see no reason to take a view different from what the learned Tribunal has taken. 15. Coupled with the above, the learned Tribunal has also held the claimant entitled to receive a sum of Rs. 30,275 as conveyance charges for receiving medical treatment. On this aspect of the matter, it may be mentioned that it has been pointed out, on behalf of the insurer-appellant, that it was the claimant's uncle, who had prepared receipts and obtained signatures of the owner and driver thereof in acknowledgement of the conveyance charges received by them. It is, no doubt, true, as surfaces from the evidence on record, that it was the claimant's uncle, who had prepared the receipts aforementioned and obtained signatures thereon by the owner and driver of the vehicle(s) concerned. What is, however, of paramount importance to note, in this regard, is that there is no challenge to the evidence of the claimant that the amount of Rs. What is, however, of paramount importance to note, in this regard, is that there is no challenge to the evidence of the claimant that the amount of Rs. 30,275 was incurred by him as expenses nor was there any assertion from the end of the insurer while cross-examining the claimant, that no payment was made by or on behalf of the claimant against the receipts, which had been exhibited on record. Considered, thus, we find no reason to interfere with the amount of Rs. 30,275, which the learned Tribunal has awarded. 16. Turning to the non-pecuniary damages, we notice that the learned Tribunal has awarded a sum of Rs. 1,15,200 as non-pecuniary damages for mental shock, pain and sufferings and loss of expectancy of life, etc. 17. In view of the fact that the claimant has become completely paralyzed, he ought to have been suitably compensated for the loss of his marital life. The claimant also deserves to be awarded compensation for the mental shock, pain and sufferings undergone by him. In the given set of facts and circumstances of the present case, we are of the view that the sum of Rs. 1,15,200, which the learned Tribunal has awarded, in this regard, as non-pecuniary damages does not need any interference. What, we, however, note is that the learned Tribunal has not taken into account the expenses, which the claimant would be required to bear for an attendant, as a result of his paralyzed condition and for having remained confined to bed. The claimant, as the learned Counsel for the appellant has pointed out, takes help of his wife as attendant. The accident has rendered the claimant almost entirely incapable of earning anything and he has three minor children hence, it is but natural that his wife may be required to work and make his family survive. In such a situation, the claimant does need to employ a person to look after him as attendant, so as to enable his wife to work for earning her living. 18. Moreover, in the context of the peculiar facts and attending circumstances of the present case, it was not unreasonable, on the part of the claimant, to seek to be compensated for the expenses, which the claimant is required to bear in respect of a person, who has to be engaged by him as an attendant. 18. Moreover, in the context of the peculiar facts and attending circumstances of the present case, it was not unreasonable, on the part of the claimant, to seek to be compensated for the expenses, which the claimant is required to bear in respect of a person, who has to be engaged by him as an attendant. As the claimant has not mentioned any quantified amount, in this regard, in his claim application or in his evidence, we are of the view that a lump-sum amount of Rs. 1,00,000 is an adequate amount for this purpose inasmuch as the said amount of Rs. 1,26,000 can be kept by the claimant in fixed deposit and with the interest derived there form, the expenses for an attendant can be borne by the claimant. 19. What emerges from the above discussion is that the award, dated 26.11.2004, aforementioned, needs modification to the extent that instead of making payment, in all of Rs. 11,82,275, aforementioned, the insurer-appellant shall pay, a sum of Rs. 12,82,275 as compensation, to the claimant including the statutory liability of the appellant as insurer. The amount, so awarded, shall be paid with interest @ 9% per annum from the date of making of the claim application until realisation of the entire amount. While calculating the interest payable to the claimant, the appellant shall deduct the interest in respect of the amount, which already stands deposited by the appellant in terms of the impugned award, 26.11.2004, aforementioned. 20. With the above modifications in the impugned award, this appeal shall stand disposed of. No order as to costs.