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2011 DIGILAW 914 (RAJ)

Oriental Insurance Co. Ltd. v. Teekaam Chand Jain

2011-05-04

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—This appeal has been filed against the award dated 16.11.2006 passed by Judge, Motor Accident Claims Tribunal & Special Court (Communal Riots), Jaipur in Claim Case No. 814/2004 (465/1997) whereby an award of Rs. 19,32,480 was passed in favour of the claimant respondent No.1. 2. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary. 3. The brief facts giving rise to this appeal are that the claimant respondent No. 1 filed a claim petition before the Motor Accident Claims Tribunal, Jaipur under the provisions of Motor Vehicles Act on account of the alleged loss suffered by him due to injuries sustained in the road accident allegedly occurred on 31.3.1996 at about 4.00 p.m. when the claimant was traveling in jeep No. RJ 19 C 6510 with Rewat Singh, and when the said jeep crossed the Barwala Bye pass suddenly a TATA 704 Truck HR 46 8889 came from Jhansi side and hit the said jeep resulting injuries to the claimant and death of jeep driver. The said truck was being driven by respondent No. 2 rash and negligently. The said truck was owned by respondent No. 3 and was insured with the appellant insurance company. The said claim petition was lateron transferred to the Court of Motor Accident Claims Tribunal and Special (Communal Riots) Jaipur where it was registered as claim case No. 814/2004. The claimant in the claim petition claimed that at the time of accident he was 36 years old running his business in the name of M/s. Bhagwati Traders, Merta City and was earning Rs. 9000 per month and due to accident he sustained serious injuries and as such he claimed compensation. The permanent disability was assessed by the doctor 57.60%. The respondent 2 and 3 despite service did not appear before the Tribunal and as such order to proceed exparte was passed against them on 4.3.1998. The insurance company unfortunately could not file reply to the claim petition however the claim petition was contested by the insurer alone and as such the application under Section 170 filed by the insurance co. was allowed by the Tribunal on 26.9.2001 and the appellant insurance company was permitted to adopt all the defence available to insured. The insurance company unfortunately could not file reply to the claim petition however the claim petition was contested by the insurer alone and as such the application under Section 170 filed by the insurance co. was allowed by the Tribunal on 26.9.2001 and the appellant insurance company was permitted to adopt all the defence available to insured. On behalf of the claimant 3 witnesses namely Tikam Chand as AW1, Mustak Pahalwan as AW 2 and Rewat Singh as AW 3 appeared before the Tribunal and produced documentary evidence marked as Ex. 1 to Ex. 766. The Tribunal vide award dated 16.11.2006 decided the claim petition awarding a sum of Rs. 19,32,480/- to the claimant respondent along with interest @ 6% per annum payable thereon from the date of filing claim petition till its actual payment. 4. Mr. Virendra Agarwal, learned counsel appearing for the insurance company has argued that the Tribunal while making assessment of compensation has committed serious error and the compensation has been assessed on very higher side looking to the nature of injury and material available on record. There was no evidence on record that due to alleged injuries the income of the deceased has been prejudiced or he is having difficulty in enjoyment of the life and even then the Tribunal has passed the award for Rs. 19,32,480 without considering the documentary evidence. The Tribunal has awarded the compensation in different heads though there was no evidence on record to substantiate the same and overall award passed for Rs. 19,32,480 in the case of permanent disability only 57.60% appears on the higher side. The disability certificate produced by the claimant cannot be taken into consideration because it was not proved by the doctor who has issued the same. The Tribunal has committed error in awarding interest from date of filing of claim petition because it can be awarded only from the date of passing of award. 5. On the contrary, Mr. Jitendra Mitruka, learned counsel appearing for the claimant respondent states that the award passed by the Tribunal is just and proper and there is no perversity in the award passed by the Tribunal. He has placed reliance on Yadava Kumar vs. Divisional Manager National Insurance Co. Ltd. and another MACD 2010 (SC) 217 = 2010(2) CCR 947 (SC), which is squarely covered to the facts of this case. 6. He has placed reliance on Yadava Kumar vs. Divisional Manager National Insurance Co. Ltd. and another MACD 2010 (SC) 217 = 2010(2) CCR 947 (SC), which is squarely covered to the facts of this case. 6. I have considering the arguments raised by the learned counsel for the parties and also gone through the award passed by the Tribunal. 7. In Yadava Kumar vs. National Insurance Co. Ltd., MACD 2010 (SC) 217 : (2010) 10 SCC 341 in paras 9 to 20, the Apex Court held as under: 9. The Second Schedule under Section 163-A of the Motor Vehicles Act, 1988 given a structured formula for the calculation of compensation in accident cases Note 5 of the Schedule deals with disability in non-fatal accidents and reads as follows: "5. Disability in non-fatal accidents The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks. PLUS either of the following- (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under Item (a) above. Injuries deemed to result in permanent total disablement/ permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923." Thus, the multiplier method is to be applied in cases of injuries also and it has been applied in a number of accident cases by the High Courts and this Court. 10. This Court in Sunil Kumar vs. Ram Singh Gaud1, awarded compensation in case of injury for loss of future earnings and applied the multiplier method for calculation of the same. The same principle was recognised by this Court in Priya Vasant Kalgutkar vs. Murad Shaikh. 11. In Mukesh Kumar Sharma vs. Ramdutt3, The Madhya Pradesh High Court applied the multiplier method keeping in mind the percentage by which the injured person's earning capacity was reduced. A similar calculation was made by the Division Bench of the Karnataka High Court in Syed Nisar Ahmed vs. Bangalore Metropolitan Transport Corpn. 4. 12. 11. In Mukesh Kumar Sharma vs. Ramdutt3, The Madhya Pradesh High Court applied the multiplier method keeping in mind the percentage by which the injured person's earning capacity was reduced. A similar calculation was made by the Division Bench of the Karnataka High Court in Syed Nisar Ahmed vs. Bangalore Metropolitan Transport Corpn. 4. 12. In the instant case, the appellant has sustained a fracture of distal end of left radius with fracture of left ulnar styloid process and fracture of distal end of right radius with mild diastasis and soft tissues swelling around the wrist joint. The doctor has assessed the disability at 33% in respect of the right upper limb and 21% towards left upper limb and 20% in respect of the whole body, which prevents the appellant from painting in view of multiple injuries sustained by him. 13. The Hon'ble High Court while granting compensation refused to award any amount towards loss of future earning. Though that point was specifically urged before the Hon'ble High Court, the Hon'ble High Court refused any compensation towards loss of future earning by, inter alia, holding that: "We are of the view that the said submission has no force for the reason that the appellant has not produced an iota of document to substantiate his stand." We are unable to agree with the aforesaid view of the High Court. 14. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW.2 is quite adequate, amply demonstrate that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. 15. It goes without saying that in matters of determination of compensation both the tribunal and the court are statutorily charged with a responsibility of fixing a "just compensation". It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of "just compensation" obviously suggests application of fair and equitable principles and a reasonable approach on the part of the tribunals and the courts. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of "just compensation" obviously suggests application of fair and equitable principles and a reasonable approach on the part of the tribunals and the courts. This reasonableness on the part of the tribunal and the court must be on a large peripheral field. Both the courts and the tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result becomes just and equitable (see Helen C. Rebello vs. Maharashtra SRTC5). 16. This Court also held that in the determination of the quantum of compensation, the court must be liberal and not niggardly inasmuch as in a free country law must value life and limb on a generous scale (see Hardeo Kaur vs. Rajasthan State Transport Corpn. 6). 17. The High Court and the Tribunal must realise that there is a distinction between compensation and damages. The expression compensation may include a claim for damages but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation. 18. Going by these principles, as we must, this Court is constrained to observe that in this case the approach of the High Court in totally refusing to grant any compensation for loss of future earning is not a correct one. 19. This Court could have remanded the matter to the High Court for assessment of compensation on the aforesaid lines but the accident took place in March 2003 and a remand to the High Court for determination of compensation will further delay the matter. 19. This Court could have remanded the matter to the High Court for assessment of compensation on the aforesaid lines but the accident took place in March 2003 and a remand to the High Court for determination of compensation will further delay the matter. Therefore, to shorten the litigation, and having regard to this Court's power under Article 142 of the Constitution to do complete justice between the parties, this Court itself assessee the compensation as follows: "Therefore, in the present case, the loss of future income may be calculated using the multiplier method as follows: Income of the appellant (as accepted by the High Court) is `3000 p.m. Therefore, the yearly income is `36000. Multiplier according to age (30 years) as per Schedule is 17. Thus, the total comes to: `36000 x 17 = 6,12,000. Percentage of disablement is 20%. Therefore, loss of future earnings would come to 1,22,400." If this is added to the compensation provided by the High Court in other categories the total compensation comes to `1,22,400 + 72,000, that is, `1,94,400. 20. This Court, therefore, grants a lump sum of rupees two lakhs by way of compensation plus 8% interest as granted by the High Court. The appeal is allowed to the extent indicated above. There will be no order as to costs." 8. The claimant was 36 years of age at the time of accident and the Tribunal determined the income of the claimant to be Rs. 9,000/- per month on the basis of the evidence produced by the claimant. As per the Second Schedule appended with the Motor Vehicles Act, the Tribunal applied the multiplier of 16. The Tribunal on the basis of the different disability certificates produced by the claimant and considering the evidence determined the permanent disability of the claimant at 28.5. per cent. By applying the multiplier of 16 the claimant has been awarded compensation in the sum of Rs. 4,92,480. I am in agreement with the finding of the Tribunal in awarding compensation in the amount of Rs. 4,92,480 for the permanent disability to the extent of 28.5 determined by the Tribunal. 9. The claimant produced Ex. 128 to Ex. 765 medical expenses bill in the amount of Rs. 9,00,000/- (rupees nine lac). The Tribunal on the basis of actual medical expenses bill awarded Rs. 9,00,000/- to the claimant. This amount also cannot be said to be unreasonable. 10. 9. The claimant produced Ex. 128 to Ex. 765 medical expenses bill in the amount of Rs. 9,00,000/- (rupees nine lac). The Tribunal on the basis of actual medical expenses bill awarded Rs. 9,00,000/- to the claimant. This amount also cannot be said to be unreasonable. 10. For future expenses on treatment to be incurred by the claimant the Tribunal awarded Rs. 1,50,000/-. This amount cannot be said to be unreasonable. 11. The claimant went to Hissar, Pondicheri, Madaras, Jaipur and other places and for going to these places Hospital and travelling expenses the Tribunal awarded Rs. 50,000/-. This amount cannot be said to be unreasonable. 12. The claimant went to Hissar, Pondicheri, Madaras, Jaipur and other places along with one assistant and for going to these places Hospital and travelling expenses the Tribunal awarded Rs. 50,000/- to the claimant for the amount incurrent on assistant. This amount cannot be said to be unreasonable. 13. The claimant went to Hissar, Pondicheri, Madaras, Jaipur and other places for treatment purposes and on account of pain etc. for the purposes of treatment the MACT awarded a sum of Rs. 1,50,000/- . This amount cannot be said to be excessive. 14. The claimant on account of loss of income claimed Rs. 90,000/-. The Tribunal awarded Rs. 90,000/- on account of loss of income. This amount also cannot be said to be excessive. 15. The Tribunal awarded a sum of Rs. 50,000/- for nutritional food. This amount also cannot be said to be excessive. 16. Overall a sum of Rs. 19,32,4800/- were awarded to the claimant. I have gone through the findings of the Tribunal and in my opinion as per the decision of the Apex Court and as per the provisions of the Motor Vehicles Act the Tribunal rightly awarded the amount of Rs. 19,32,4800/-. rounded of to Rs. 19,33,000/-. 17. The appeal filed by the insurance company against the award dated 16.11.2006. deserves to be dismissed. 18. In view of the above this misc. appeal is rejected and the award dated 16.11.2006 passed by Motor Accidents Claim Tribunal and Special Court (Communal Riots) Jaipur in Claim Case No. 814/2004 (465/1997) stands confirmed. The parties are directed to bear their own costs.