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2011 DIGILAW 1828 (HP)

Lachhi Ram Thakur v. Tek Chand

2011-03-30

DEEPAK GUPTA

body2011
JUDGMENT Deepak Gupta, J. 1. This appeal for enhancement of compensation by the claimant is directed against the Award of the learned Motor Accident Claims Tribunal-II, Solan whereby it has only awarded Rs. 85,000/-as compensation to the claimant. 2. The claimant was working as a lecturer in a private school and at the relevant time drawing salary of Rs. 10,435/-. It is not disputed that he met with an accident on 30th July, 2001. The claimant suffered multiple injuries and was admitted in Indira Gandhi Medical College, Shimla and was discharged from the hospital after 19 days on 18th August, 2001. It has also been proved on record that the claimant remained on leave for a period of two months due to the fact that he had been advised to take rest. Ext. PW1/E is the discharge certificate of the claimant which clearly shows that he was admitted in Indira Gandhi Medical College & Hospital, Shimla on 31.7.2001 at 1.25 a.m. and discharged from hospital on 18.8.2001. He was diagnosed with having fracture of D-12 Vertibra with fracture left clavicle with compound fracture proximal phalynax ring finger right hand. He was treated and discharged on 18.8.2001, but even after discharge he was advised bed rest for a period of six weeks. The discharge slip also shows that even after six weeks, the claimant had to come to Shimla and in fact came to Shimla on various dates including 15.9.2001, 21.9.2001, 22.10.2001. This document which was proved on record will further show that on 31.1.2002, 1.6.2002 and 12.4.2002 the treatment was continued and he even thereafter was advised to continue with physiotherapy. He was also advised to come again to the hospital for review. The learned Tribunal after taking into consideration all the factors has awarded compensation under following different heads:- “Pecuniary damages. i) Expenditure on medical treatment Rs. 12,000/- Non Pecuniary damages. ii) Expenditure on attendant and transportation. iii) Pains and suffering iv) Loss of amenities of life v) Loss of income including future earning Rs. 8,000/-Rs. 10,000/-Rs. 15,000/-Rs. 40,000/- Total Rs. 85,000/-” 3. The learned Tribunal has in fact mixed up the headings of pecuniary and non pecuniary damages. Expenditure on attendant and transportation are definitely pecuniarydamages and not non pecuniary damages. Similarly loss of income never can be said to be a non pecuniary loss. Be that as it may, I proceed to assess the loss as follows. 85,000/-” 3. The learned Tribunal has in fact mixed up the headings of pecuniary and non pecuniary damages. Expenditure on attendant and transportation are definitely pecuniarydamages and not non pecuniary damages. Similarly loss of income never can be said to be a non pecuniary loss. Be that as it may, I proceed to assess the loss as follows. 4. Expenditure on medical treatment. The claimant has proved on record that he has actually spent Rs. 11,899/-on medical expenses. He has been awarded Rs. 12,000/-. This Court cannot loose sight of the fact that when a person is admitted in hospital, some times receipts of all medicines are not kept especially in a case where the injured is not a government servant and medical expenses are not to be reimbursed. It would therefore be reasonable to add a sum of Rs. 5,000/-to Rs. 12,000/-and the medical expenses of the treatment are assessed at Rs. 17,000/-. 5. The learned Tribunal has assessed the expenditure on attendant charges at Rs. 8,000/-. As far as attendant charges are concerned, the claimant was only admitted in hospital for about 19 days and therefore a sum of Rs. 3,000/-under this head is reasonable. As far as transportation charges are concerned, it has come on record that the claimant suffered a serious injury and he has been regularly coming for treatment to the hospital at Shimla for more than 2 years thereafter. At times he may have come by bus and at times by taxi,. Keeping in view the fact that the treatment continued for a long period, it would not be unreasonable to award him Rs. 10,000/-for transportation expenses both past and future. 6. Pain and suffering, the learned Tribunal has awarded Rs. 10,000/-. In my opinion this award is on the lower side keeping in view the fact that the claimant is still under treatment and continues to suffer. One cannot loose sight of the fact that the claimant is working in a private school in the rural area and has to walk to the school, therefore, the award is enhanced from Rs. 10,000/-to Rs. 20,000/-. 7. Loss of amenities of life. The learned Tribunal has only allowed Rs. 15,000/-under this head. This amount is reasonable keeping in view the nature of the injury suffered by the claimant. 8. As far as loss of income is concerned, the same is divided into two parts. 10,000/-to Rs. 20,000/-. 7. Loss of amenities of life. The learned Tribunal has only allowed Rs. 15,000/-under this head. This amount is reasonable keeping in view the nature of the injury suffered by the claimant. 8. As far as loss of income is concerned, the same is divided into two parts. The income of the claimant was approximately at Rs. 10,435/-and he remained on leave for two months and for the loss of income actually suffered by him, he is entitled to Rs. 21,000/-. 9. As far as loss of future income is concerned, according to the doctor the disability in question will not affect the teaching capacity of the claimant. It has also come on record that the claimant can do most of his routine work. The disability of the claimant has been assessed 40%, but in cross-examination the doctor stated that this disability is not in respect of the entire body and if the entire body is taken into consideration the disability is only 20%. Percentage of disability is not equal to the loss of earning capacity. This is a classic example of such a situation. The claimant is a teacher and this disability will not affect his earning capacity. On the other hand, if the same disability was suffered by a labourer, the loss and earning capacity could have assessed on a much higher side. Having said so, the fact remains that the claimant like any other teaching staff would have over a period of time started giving tuition etc. and because of the disability, he may not be able to do work more than that which he can do in a school. One has to take note of the fact that the claimant has suffered a major injury to his spine and this injury will persist for all his life. Therefore his earning capacity is somewhat reduced, but in this case it cannot be calculated in terms of the percentage. Therefore the assessment of future loss of earning has to be done on a global basis and is assessed at Rs. 30,000/-. 10. In view of the above discussion, the claimant is held entitled for a total compensation at Rs. 1,16,000/-. Consequently, the appeal is partly allowed and awarded amount is enhanced from Rs. 85,000/-to Rs. 1,16,000/-. Therefore the assessment of future loss of earning has to be done on a global basis and is assessed at Rs. 30,000/-. 10. In view of the above discussion, the claimant is held entitled for a total compensation at Rs. 1,16,000/-. Consequently, the appeal is partly allowed and awarded amount is enhanced from Rs. 85,000/-to Rs. 1,16,000/-. The respondents No. 1 to 3 are held jointly and severally liable to pay the compensation, but since the vehicle is insured, it is the primary responsibility of the insurance company to satisfy the award. The respondent No.3 is directed to deposit the enhanced amount of compensation alongwith interest @ 9% per annum in the Registry of this Court on or before 31st August, 2011. No costs.