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Rajasthan High Court · body

2008 DIGILAW 1804 (RAJ)

Dharmendra Singh v. National Insurance Company Ltd.

2008-07-30

R.S.CHAUHAN

body2008
JUDGMENT 1. - The appellant-claimant has challenged the award dated 3.3.06 passed by Motor Accidents Claims, Tribunal Dholpur whereby for multiple fractures suffered by the claimant, the learned Tribunal has granted a Compensation of Rs. 37,000/- alongwith an interest @ 6% per annum. Since the appellant is aggrieved y the meagre amount of compensation, he has filed the present appeal for enhancement. 2. The facts of the case are that on 19.12.04, while the appellant was comign on his motorcycle from Dholpur on the Odela Road, near the village called Odikapura, a tractor, bearing Registration No. RJ-11-4370, which was being driven rashly and negligently, came and collided with the motorcycle. Consequently, the appellant suffered serious injuries including numerous fracture of the face and fracture of his ulna bona of his right arm. subsequently, the appellant filed the claim petition before that learned Tribunal. In order to substantiate his case, he examined two witnesses and submitted seventeen documents. Although the Insurance Company did into examine any witness, but it did submit a single document. After going through the oral and documentary evidence, the learned Tribunal granted the compensation as aforementioned. Hence this appeal. 3. Mr. D.K. Garg, the learned counsel for the appellant has argued that the learned Tribunal has not properly considered the number of fractures suffered by the appellant on his face. Therefore, it has mis-assessed the amount of compensation. In order to buttress his contention he has drawn the attention of this Court to Ex.P.12 which is the X-Ray report of the appellant. Secondly, despite the fact that the appellant was in the hospital and had undergone medical treatment, no compensation has been paid to him for medical treatment. He has also argued that at the time of the accident the appellant was a young man of 32 years, therefore, his entire future lying lay ahead of him. Hence, he shoudl be compensated for pain and sufferings. 4. On the other hand, Mr. praveen Jain, the learned counsel for respondent No. 1, the National Insurance Co. Ltd. has vehemently argued that a compensation need not a bonanza. Secondly, considering the fact that there was no disability certificate available on record, a compensation of Rs. 37,000/- is more than just and reasonable in the facts and circumstances of the case. praveen Jain, the learned counsel for respondent No. 1, the National Insurance Co. Ltd. has vehemently argued that a compensation need not a bonanza. Secondly, considering the fact that there was no disability certificate available on record, a compensation of Rs. 37,000/- is more than just and reasonable in the facts and circumstances of the case. Thirdly, no compensation needed to be paid for medical treatment as the appellant was a Government servant who has been reimbursed by the Government for medical expenses incurred by him. 5. Heard both the learned counsel for the parties perused the record and examined the impugned award. 6. Ex.P. 12 which contains the information regarding the numbers of fractures suffered by the appellant is as under: "There is displaced fracture of right condylar process of mandible, however the condyle is occupying the condylar fossa of temporal bone. There is displaced fracture of mandible in the midline reaching to the alveolar process (Compound). Another are of cortical breech is seen in anterior surface left canine fossa: Fracture of alveolar process of maxilla extending to involve the hard palate is also seen. There are fracture of anterior medical and postero-lateral wall of left maxillary antrum. Coronal images also show fracture of roof of maxillary antra on either side. Right maxillary antrum show fracture of postero-lateral and medical wall. Communuted fracture of pterygoid plates both lateral and medical on either seen. There is fracture of lateral orbital wall on right side. Right Zygomatic arch appears undisplaced fracture on the temporal side. Left zygomatic arch appears normal. There is fracture of nasal process of frontal bond, both nasal bone, nasal turbinates and septum. Soft tissue density (Blood clot) is seen filling sion-nasal cavity. No displaced fracture of cribriform plate seen. Air density seen in both orbit, however no significant contusion of soft tissue or any bony. Globes outline is normal. Atlanto-axial alignment is normal. Cervical vertebrae in view are normal. Impression : 3 D Face Reveal: Transfacial, Nasal, Arch, Bilateral Zygomatic maxillary as well as right sided zygomatic frontal and hard palate fracture as described - In the le forte classification class II with partial right sided class III type. Fracture of mandible bod and right condylar process." 7. A bare perusal of this Ex.P.23 clearly shows that atleast twelve fractures have been caused on the face of the appellant. Fracture of mandible bod and right condylar process." 7. A bare perusal of this Ex.P.23 clearly shows that atleast twelve fractures have been caused on the face of the appellant. The said fractures are both in the exterior and in the interior part both on the anterior and posterior part of the face; not only the frontal bone of the nose has been fractured, but most importantly the jaws and the inner part of the mount have also suffered a number of fractures. Thus in all the appellant has suffered 13 fractures including the fracture of his right arm. The learned Tribunal has glossed over Ex.P. 12 without realising that Ex.P.12 clearly reveals the existence of 12 fractures on the face. According to the Second Schedule attached to the Motor Vehicle Act, 1988, Rs. 5,000/- should be paid for the grievous injury sustained by a person. Thus the compensation should have also been calculated as under: 8. In the case of R.D. Hattangadi v. Pest Contro (India) Pvt. Ltd., 1995 ACJ 366 the Hon'ble Supreme Court has dealt extensively with pecuniary and non-pecuniary losses suffered by the injured person as under : "9. 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. Pecuniary damages, are those which the victim has actually incurred and which are capable of being calculated in terms of mogey; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant (i) medical attendance; (ii) loss of earning of profit up to 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 longetivity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in Iife." 9. The learned Tribunal has totally ignored the fact that the appellant was a young man of 32 years when the accident occurred. Due to this accident, he must have suffered a considerable pain and agony as the entire face seems to have been crushed. Yet, for the pain and agony suffered by the appellant during the recuperation and the frustration that he would suffer in the future, these two aspects have been ignored. Thus, this court deems it proper to award Rs. 20,000/- for the non-pecuniary category of the pain and agony and future frustration. 10. Since the medical bills were reimbursed by the Government, no compensation needs to be paid for the medical expenses incurred by the appellant. 11. In the result this appeal is allowed and the impugned award dated 3.3.06 is modified as under : 1. Compensation for injuries Rs. 65,000/-. 2. Non-pecuniary benefits. Rs. 20,000/-. Rest of the award is confirmed. 12. The Insurance Company is directed to pay the enhanced amount to the claimant alongwith interest @6% p.a. from the date of the filing of the claim petition. The Tribunal is directed to ensure that the enhanced amount is paid to the claimant within a period of two months from the date of receipt of the certified copy of this judgment. No order as to costs.Appeal allowed. *******