Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 325 (GAU)

Ratan Sukla Das v. Sankari Chakraborty

2012-03-12

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This appeal, under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment & award, dated 28.09.2004, passed by learned single Member, Motor Accident Claims Tribunal, (Court No.4), West Tripura, Agartala, in Case No.TS.(MAC)125/2001. 2. Heard learned counsel, Mr. S K Datta, for the appellant-petitioner and learned counsel, Mr. D K Biswas for the respdt. Nos.2 and 3, the National Insurance Company. None appears for the respdt. No.1. 3. Brief fact, so far it is necessary for disposal of this appeal, is that the appellant was travelling with a Commander Jeep vehicle bearing No.TR-01-2112, on way to his house at Agartala and he was sitting in the rear side of the Jeep vehicle. At about 10.00 AM when the vehicle reached AD Nagar, near Drop Gate, on Agartala-Bishalgarh road, another jeep vehicle bearing No.TR-01-3625 being driven most rashly and negligently coming from backside, violently dashed the backside of vehicle No.TR-01-2112 with which he was travelling and as a result, he sustained crush injury in his left leg. He was taken to GB Hospital and was under treatment as an indoor patient from 09.01.2001 to 22.01.2001. The Medical Board of GB hospital referred him to SSKM hospital, Kolkata for further and better treatment and accordingly, he went to Kolkata and since no seat was available at SSKM hospital he went to Bhattacharjee Orthopedic and Related Research Centre Pvt. Ltd., at Narayanpur, P.O. Rajarhat, West Bengal and was treated there till 08.03.2001. He spent about Rs.2,50,000/- for the purpose of treatment. Because of the injury he suffered permanent disability and the Medical Board certified him as an orthopedically (Locomotor) handicapped person to the extent of 30%. He was a 'Mason' by profession and he used to earn Rs.3,000/- per month and because of the accident he lost his income and for the purpose of his profession he became permanently disabled. 4. It is the definite case of the petitioner that the accident occurred for rash and negligent driving of the vehicle No.TR-01-3625 and the vehicle with which he was travelling i.e. TR-01-2112 had no fault in the accident. After the accident West Agartala PS Case No.10/2001 under Sections 279 and 338 of IPC and Police Investigation was taken against the offending vehicle. 5. Respdt. After the accident West Agartala PS Case No.10/2001 under Sections 279 and 338 of IPC and Police Investigation was taken against the offending vehicle. 5. Respdt. No.1, the owner of the alleged offending vehicle, submitted written statement admitting the accident but denied rash and negligent driving of the vehicle. It is stated that vehicle No.TR-01-3625, belonged to the respondent was on way to Agartala from Sonamura and at about 10.00 AM when the vehicle crossed Milan Chakra another Commander Jeep vehicle No.TR-01- 2112 coming from backside with a high speed overtook the vehicle of the respondent and went in front of it and near Drop Gate, the said vehicle No.TR-01-2112 was trying to overtake a Bus vehicle and while that Bus vehicle was allowing side to a taxi coming from opposite direction, at that time the said Commander Jeep No.TR- 01-2112 suddenly stopped by pushing brake without showing any sign to alert the vehicle behind it and as a result, vehicle No.TR-01-3625 of the respondent knocked the back footboard of vehicle No.TR-01-2112. The said vehicle No.TR-01-2112 was overloaded with passengers and some passengers were standing on the footboard of the vehicle and as a result, the petitioner, who was standing on the footboard, sustained injury in his foot. There was no rashness or negligence on the part of the vehicle No.TR-01-3625 and that one Swapan Debnath was the driver of the vehicle having with valid driving license and the vehicle was insured with National Insurance Company covering the risk on the date of accident and there were also other valid documents and therefore, liability, if any, should be borne by the insurance company. It has also been stated that the accident occurred for the rash and negligent driving of the vehicle No.TR-01-2112. 6. Respondent Nos.2 and 3, the National Insurance Company also contested the case by filing written statement denying all the averments made in the claim petition but did not deny the factum of insurance of the vehicle covering the risk on the date of accident. 7. 6. Respondent Nos.2 and 3, the National Insurance Company also contested the case by filing written statement denying all the averments made in the claim petition but did not deny the factum of insurance of the vehicle covering the risk on the date of accident. 7. The Tribunal considering the pleadings of the parties framed following issues : (i) Whether the claimant-petitioner sustained injuries in a road traffic accident occurred on 09.01.2001 at about 10.00 hours at A.D. Nagar, near Drop Gate on Agartala- Bishalgarh road under West Agartala Police Station due to rash and negligent driving of both vehicles No.TR-01- 2112 (Commander Jeep) and TR-01-3625 (Commander Jeep) or by one of the aforesaid vehicles; (ii) Is the claimant-petitioner entitled to get any compensation; (iii) If so, what should be the amount and who is liable to pay the compensation? 8. In course of trial, the claimant-petitioner examined himself as PW.1 and in support of his case he has proved the cash memos, certified copy of FIR of police case, air tickets, certificate of reference made by the Medical Board and those were marked as Ext.1 series. He has also produced a disablement certificate, issued by the Medical Board of GB Hospital and that has marked as Ext.2. In support of his case he has also examined another witness, PW.2, Prangour Das. 9. Opposite parties adduced no evidence. 10. O.P No.1 submitted documents of the vehicle including copy of the driving license and the insurance certificate but taken no step to formally prove the same. 11. The Tribunal decided the issues in favour of the petitioner and awarded compensation of Rs.81,533/- towards cost of treatment and Rs.1,94,000/- towards loss of income totaling Rs.2,75,933/-. 12. The accident is admitted. FIR was lodged against the alleged offending vehicle No.TR-01-3625 belonged to respdt No.1. The respdt though alleged that other vehicle was with fault but adduced no evidence in support thereof. The petitioner produced certified copy of the charge sheet, submitted by police, after investigation of the case, which shows that the offending vehicle belonged to the respdt.No.1 was held responsible for the accident and driver of that vehicle has only been charge sheeted. Further, regarding the injury suffered by the petitioner, respdt. No.1, owner of the alleged offending vehicle, did not raise any point. Further, regarding the injury suffered by the petitioner, respdt. No.1, owner of the alleged offending vehicle, did not raise any point. No evidence also adduced to controvert the evidence of the petitioner regarding the injury suffered by him due to the accident. Under such circumstances, finding of the Tribunal that the petitioner suffered injury due to the accident and the petitioner suffered disability to the extent as certified by the Medical Board has remain unrebutted. 13. It has been submitted by learned counsel, Mr. Datta that the Tribunal only considered the cost of treatment and the loss of income but did not award any compensation towards nonpecuniary or special damages. He has also submitted that the compensation awarded towards loss of income is also not adequate since for the purpose of his profession the appellant-petitioner became 100% disabled though the Medical Board certified him as physically disabled to the extent of 30%. 14. On the other hand, appearing on behalf of respondent insurance company, learned counsel, Mr. Biswas, has submitted that the Tribunal mechanically assessed compensation taking into consideration the loss of income to the extent of 30% considering the disability certificate but it will not be wise to hold that the disability to the extent of 30% for the injury in left leg cannot be held to be sufficient to cause loss of income to the extent of 30%. Therefore, even if no compensation was awarded towards nonpecuniary damages, the total compensation what is awarded by the Tribunal may be accepted as sufficient. 15. It is true that the Tribunal did not award any compensation on non-pecuniary damages. The Tribunal was supposed to consider both pecuniary and non-pecuniary damages, suffered by the petitioner and grant "just compensation", fair, adequate and reasonable. 16. The Apex Court in the case of Sarala Verma Vs. DTC reported in (2009) 6 SCC 121 has held that the compensation awarded does not become "just compensation" merely because the Tribunal considers it to be just. "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source profit. 17. "Compensation" is a return for the loss or damage sustained. It is not intended to be a bonanza, largesse or source profit. 17. "Compensation" is a return for the loss or damage sustained. Justice requires that it should be equal in value, although not alike in kind. "Amends" is a return for something that is followed in ourselves or towards others. "Satisfaction" is that which satisfies the individual requiring it, given for personal injuries, and may be made either by a return or otherwise, according to disposition of the person to be satisfied. 18. In the case of Sayed Basheer Ahmed & Ors Vs. Mohd. Zameel reported in AIR 2009 SCW 493 the Apex Court has held thus : 9. Section 168 of the Act enjoins the Tribunal to make an award determining "the amount of compensation which appears to be just." However, the objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression "which appears to be just" vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation. Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependants of the deceased and the compensation to be awarded to them. In nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards. 19. In the case of R D Hattangadi Vs. M/s Pest Control (India) Pvt. Ltd. and Others reported in AIR 1995 SC 755 the Apex Court has categorically held that the compensation in cases of injuries should be assessed and awarded both on pecuniary damages and special damages. The Court held thus : 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. The Court held thus : 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 is capable of being calculated in terms of money; 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 non-pecuniary damages are concerned, they may include; (i) damages for mental and physical shock, pain 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 longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. 20. In the recent case of Govind Yadav Vs. New India Assurance Co. Ltd. reported in 2012 ACJ 28 (SC) the Apex Court directed all Tribunals and High Courts to follow the principles laid down in the cases of Arbind Kr. Misra Vs. New India Assurance Co. Ltd. 2010 ACJ 2867 (SC) and Rajkumar Vs. Ajay Kumar reported in 2011 ACJ 1 (SC), while determining the quantum of compensation payable to the victims of accident who are disabled either permanently or temporarily. 21. In the case of Arbind Kumar Mishra (supra) the Apex Court held thus : We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. 22. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. 22. In the case of Raj Kumar (supra) the Apex Court held thus : The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court of Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned....... (5) The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special damages. (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : (a) Loss of earnings during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b) (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 23. In the case of Raj Kumar(supra) the Apex Court further held that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity, in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earning (by applying the standard multiplier used to determine the loss of dependency). 24. In the case of Reshma Kumari V. Madan Mohan reported in (2009) 13 SCC 422 the Apex Court held thus : The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This court cannot also lose sight of the fact that in given cases, as for example, death of the only son to a mother, she can never be compensated in monetary terms. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (situation) the nature of employment was such that he might not have continue in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guesswork may be inevitable. That may be so. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification: his past performance but also other relevant factors, namely the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this court in Oriental Insurance Co. Ltd. V. Jashuben 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration. One of the incidental issues which has also to be taken into consideration in inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries, in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard and fast rule, however, can be laid down therefor. 25. In course of argument, learned counsel of the appellant-petitioner did not express any dissatisfaction towards the quantum of compensation awarded on the head "cost of treatment". He has, however, submitted that no compensation awarded for future treatment. No hard and fast rule, however, can be laid down therefor. 25. In course of argument, learned counsel of the appellant-petitioner did not express any dissatisfaction towards the quantum of compensation awarded on the head "cost of treatment". He has, however, submitted that no compensation awarded for future treatment. In support of his contention learned counsel could not show any evidence on record that the petitioner has to undergo further treatment for injury and for such treatment the petitioner is required to spend further amount in future. Under such circumstances, no compensation is payable for future treatment. 26. Regarding quantum of compensation towards loss of income, it appears that Tribunal has taken an easy course of determining the compensation taking into consideration the percentage of disability suffered by the petitioner as certified by the Medical Board. Ext.2 is the disability certificate, which shows that the certificate is valid for 5(five) years and Board certified the petitioner suffering from post traumatic deformity in left foot and toe to the extent of 30% which is permanent physical disability. In the note just below the certificate it is mentioned that the condition is non-progressive likely to be improved and reassessment is not recommended/recommended after a period of 5 years. No medical expert was examined by the petitioner to clarify before the Tribunal about the extent of loss of income for the injury sustained by him. 27. The petitioner was a 'Mason' by profession and according to him, he used to earn Rs.3,000/- per month. The disability suffered by him is in left foot and normally a mason is required to work mainly with his two hands and disability to the extent of 30% in left foot cannot make a person 100% disable for the profession. Anyway, the petitioner, since it appears, was a Mason and considering his physical and financial condition the Tribunal held him as disable to the extent of 30% perhaps out of sympathy. In the case of R D Hatangadi (supra), the Apex Court has held that in the very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. But all the aforesaid elements have to be viewed with objective standards. In the case in hand, taking into consideration the monthly income of the petitioner to an amount of Rs.3,000/-, multiplied with a multiplier of 18 and taking 30% of the total amount as loss of income, on the part of the petitioner, for the rest of his life and that amount can in no way be said to be inadequate or unjust in the facts and circumstances of this case. Therefore, I find nothing to add further in the amount already ascertained towards loss of income. 28. Admittedly, the petitioner was hospitalized for more than 3(three) months for the purpose of treatment at Agartala and at Kolkata. He definitely suffered tremendous pain and sufferings during the course of treatment but surprisingly the Tribunal did not award a single farthing towards pain and sufferings. Considering the nature of injury, period of hospitalization and other attending factors a lumpsum amount of Rs.50,000/- is awarded towards loss of mental and physical shock, pain and sufferings already suffered by the petitioner. The petitioner is a young man of 26 years and because of the crush injury suffered in his left leg he will have to face inconvenience, hardship and discomfort of his normal life and also in his day to day works, as a Masson and for this he should be adequately compensated and on that score a lumpsum amount of Rs.75,000/- is awarded as compensation. 29. Learned counsel, Mr. Datta, has further submitted that the Tribunal allowed 6% interest from the date of presentation of the petition which is most inadequate and below the standard fixed by the Hon'ble Apex Court and this Court in various case laws. He has referred the cases of Sanjoy Batham Vs. Munnalal Parihar and Ors. reported in 2011 ACJ 2869 (SC); K. R. Madhusudhan and Ors. Vs. Administrative Officer and Ors reported in 2011 ACJ 743 (SC); the case of Leela Gupta and Ors Vs State of Uttar Pradesh and Ors. reported in 2010 ACJ 2717 (SC); the case of Dr. Mrs. K. R. Tandon Vs Om Prakash and Another reported in 1999 ACJ 1299(SC) and the case of Dibyalata Konwar Vs. New India Assurance Co. Ltd. and Others reported in 2009 ACJ 237(SC). 30. reported in 2010 ACJ 2717 (SC); the case of Dr. Mrs. K. R. Tandon Vs Om Prakash and Another reported in 1999 ACJ 1299(SC) and the case of Dibyalata Konwar Vs. New India Assurance Co. Ltd. and Others reported in 2009 ACJ 237(SC). 30. Considering the submissions made by learned counsels and after going through the decisions of the Apex Court and this Court, as mentioned above, I think, it will be appropriate to direct the insurance company to make payment of interest @ 9% per annum from the date of presentation of the petition before the Tribunal. Accordingly, the judgment & award, passed by the learned Member, Motor Accident Claims Tribunal, Agartala in case No.TS(MAC)125 of 2001, is liable to be interfered and is modified to the extent of payment of compensation on the head nonpecuniary damages and in respect of interest over the amount of compensation. 31. The petitioner, in addition to what already awarded by the Tribunal, is further entitled to get Rs.50,000/- + 75,000 = Rs.1,25,000, as compensation and the total amount of compensation including the amount awarded by the Tribunal, shall carry interest @ 9% per annum from the date of presentation of the petition before the Tribunal and the total amount should be paid by the respdt., National Insurance Company, within 60 (sixty) days from today, failing which, the amount shall carry 12% per annum. The amount if any paid in the meantime shall be excluded. 32. Send back the LC records along with a copy of this judgment. Copy of the judgment may also be made available to the learned counsel of the petitioner and the respdts. for compliance. 33. With the above observations and directions, the appeal stands disposed of.