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2008 DIGILAW 2602 (RAJ)

Hemraj v. Abdul Mazid Khan

2008-11-27

NARENDRA KUMAR JAIN

body2008
JUDGMENT 1. - Heard learned counsel for the appellant. 1. The injured-appellant has preferred this appeal for enhancement of the amount of compensation in respect of injuries sustained by him in motor accident took place on 19.1.2003 and being aggrieved with the impugned award dated 24.7.2007 passed by the Addl. District Judge (Fast Track) No. 6, Jaipur City, Jaipur, in Motor Accident Claim Case No. 449/2006, whereby the Tribunal has awarded a total compensation of Rs. 4,66,460/- in his favour with interest @ 6% p.a. from the date of claim application i.e. 22.7.2005 till the date of payment as under:- Rs. 4,46,760/-towards loss of income, Rs. 1,000/- for third simple injury, Rs. 18,700/- for medical bills. 2. The only grievance of the learned counsel for the appellant is that the Tribunal has committed an illegality in not awarding any amount of compensation under the head of physical pain & mental agony, transportation charges, nutritious food and attendant expenses. 3. I have considered the submissions of the learned counsel for the appellant and examined the impugned award, particularly; the finding of issue No. 4 relating to quantum of compensation. The learned counsel for the appellant does not dispute the finding of the Tribunal in respect of age, income of the appellant and multiplier of 17 applied in the present case for the purpose of calculating the amount of compensating under the head of loss of income. As per injury report Ex 2, the appellant sustained three injuries. Two injuries were sustained in legs and third injury was simple in nature. As per Ex 14, permanent disability certificate, the appellant suffered 88.89% permanent disability. There was amputation of both the legs. It is correct that no specific amount has been awarded by the Tribunal towards physical pain & mental agony, transportation charges, nutritious food and attendant expenses. But all these heads have been mentioned in Second Schedule appended with Section 163-A of the Motor Vehicles Act, 1988, whereas the present claim application was filed under section 166 read with 140 of the Motor Vehicles Act, 1988. It is true that normally the Second Schedule is applied as far as possible in claim application filed under section 166 of the Motor Vehicles Act, 1988, also. It is true that normally the Second Schedule is applied as far as possible in claim application filed under section 166 of the Motor Vehicles Act, 1988, also. However, it is a settled law that the Tribunal is required to pass an award under section 168 of the Motor Vehicles Act, which appears to be "just", fair and reasonable. Neither it should be a meager amount nor it should be a bonanza. 4. It is relevant to mention that the Hon'ble Supreme Court in Sunil Kumar v. Ram Singh Gaud and others ( 2008 ACJ 9 ) (para-9) and New India Assurance Co. Ltd. v. Charlie & Anr. (2005(II) ACC 74 (SC) (para 5), has deducted ⅓rd amount towards personal / miscellaneous expenses of the injured even in the injury cases. But in the present case, no such deduction has been made in the present case. Even if the contention of the learned counsel for the appellant is allowed and certain amount is allowed towards physical pain & mental agony, transportation charges, nutritious food and attendant expenses and ⅓rd amount is deducted for personal/miscellaneous expenses as per judgment of the Hon'ble Supreme court referred above, the amount of compensation awarded by the Tribunal is liable to be reduced. But looking to the nature of injury, particularly; the amputation of legs and percentage of permanent disability, I find that the total amount of Rs. 4,66,460/- with interest awarded in the present case, appears to be just, fair and reasonable and I do not find any further reason to enhance the said amount under the heads as argued by learned counsel for the appellant, in the facts and circumstances of the present case. 5. The Hon'ble Supreme Court in Divisional Controller, KSRTC v. Mahadeva Shetty - (2003) 7 SCC 197 : 2003 (3) T.A.C. 284, held that compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Hon'ble Apex Court further held that every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrariness. Para 15 of the judgment is reproduced as under:- "15. The Hon'ble Apex Court further held that every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrariness. Para 15 of the judgment is reproduced as under:- "15. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be 'just'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and nonarbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC ( AIR 1998 Supreme Court 3191 : 1999 (1) T.A.C. 1)." 6. In view of the above discussion, I do not find any merit in this appeal and the same is accordingly dismissed in limine.Appeal dismissed. *******