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2012 DIGILAW 432 (HP)

Ramesh Negi v. Pawan kumar

2012-08-14

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. The injured-claimant feeling aggrieved by the impugned award dated 25.3.2010 passed in MAC Petition No. 46-S/2 of 2008, has filed the instant appeal seeking enhancement of compensation decided by the learned Tribunal, whereby his petition was allowed and a compensation of Rs. 2,22,500/- was awarded for the injuries sustained by him in the motor vehicular accident which was ordered to be paid jointly and severally by the respondents herein with interest @ 9% per annum. The said amount was inclusive of interim compensation if any paid, u/s 140 of the Motor Vehicles Act, in short "the Act". The appellant herein is an Advocate. He was aged about 45 years at the time of accident. On 17th January, 2008, he was driving Maruti Van bearing registration No. HP-13-1919 and while going to his native village alongwith his father and others persons, around 4 P.M. near Gumma, a Balero Camper bearing registration No. HP-10B-0226 owned by respondent Pawan Kumar being driven in a high speed by respondent No. 2 Chauhan Singh rashly and negligently hit the aforesaid Maruti Van causing multiple injuries to the appellant and his father. The appellant was immediately rushed to I.G.M.C. Shimla for his treatment. FIR No. 10/08 was lodged to cover-up story creating a defence by respondent No. 2, whereas, respondent No. 2 was solely responsible for the accident in question, thus, because of said accident, he sustained 40% permanent disability of his left leg, which affected his legal profession and supervisory control on his orchard and landed property. 2. The claim was resisted and contested by the respondents. Respondent No. 2 imputed allegations of rash and negligent driving by the appellant of his Maruti Van. The learned Tribunal after framing the issues held an inquiry and came to the conclusion that it was a case of a contributory negligence as per allegations in the FIR, to the extent of 50% of both the parties, thus assessed the compensation under different heads as follows:-- 3. Since it was held to be a case of contributory negligence to the extent of equal proportion, the amount aforesaid was slashed by half and the appellant was awarded Rs. 2,22,500/- with interest as aforesaid with cost quantified at Rs. 1,000/-. 4. Since it was held to be a case of contributory negligence to the extent of equal proportion, the amount aforesaid was slashed by half and the appellant was awarded Rs. 2,22,500/- with interest as aforesaid with cost quantified at Rs. 1,000/-. 4. Shri B.M. Chauhan, learned Counsel for the appellant laid his stress that since the amount for pain and suffering as well as loss of amenities of life was on the lower side, it deserves to be increased considerably and further that keeping in view the permanent disability for actual and estimated future loss of income it should have been on a higher side. 5. Contra Shri G.C. Gupta, learned Senior Advocate duly assisted by Shri Pawan Sharma, Advocate submitted that the actual and future loss of income was already assessed on the higher side and the amount under the head of pain and suffering, loss of amenities of life can be adjusted under the head of future income, thus requires no enhancement. 6. In the instant case, Ext.PW4/A was lodged by HC Baldev Singh, not by the 2nd respondent as alleged. HC Baldev Singh while on duty came across the accidental site and noticed that both the vehicles were in the same condition in the middle of the road after the accident, the width of which was 12 on Pacca portion and 2' on the Kacha portion on both sides. According to PW4 the challan was filed in the Court against both the drivers for their trial, but however, later on, their prosecution was withdrawn, the reasons thereof are neither known nor elucidated. 7. The appellant has imputed the allegation of rash and negligence driving on respondent No. 2, whereas the stand of respondent No. 2 is vice-versa. From the contents of FIR Ext.PW4/A, which is unrebutted, the contributory negligence is writ large as none of them took reasonable care for the safety of each other, while driving their respective vehicles, thus both of them become blamed, as a part and author of their respective wrongs. Therefore, in my opinion, learned Tribunal rightly concluded that there was fault of both the drivers for causing the accident to the equal extent. Therefore, the appellant is rightly held entitled to a sum of 50% of the total damages assessed by the learned Tribunal. 8. Next is with respect to the inadequacy of the compensation to the appellant. Therefore, in my opinion, learned Tribunal rightly concluded that there was fault of both the drivers for causing the accident to the equal extent. Therefore, the appellant is rightly held entitled to a sum of 50% of the total damages assessed by the learned Tribunal. 8. Next is with respect to the inadequacy of the compensation to the appellant. The provision of the Act makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately to 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. Thus, it is required 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. 9. It is settled that the compensation which is awardable is for pecuniary and non-pecuniary damages to the injured. As far as damages for pain and suffering and trauma as a consequence of the injuries and the loss of amenities and the expectation of life are concerned, it involves determination of lump sum amounts with reference to circumstances such as age, nature of injury or deprivation or disability suffered by the claimant and the effect thereof on the future loss of the claimant. 10. Insofar as pain and suffering and amenities are concerned, the learned Tribunal assessed Rs. 25,000/- under each head on the basis of evidence adduced but further enhancement is not justified. Regarding actual loss and future income, the standard of evidence led before the learned Tribunal is required to be appreciated. 11. 10. Insofar as pain and suffering and amenities are concerned, the learned Tribunal assessed Rs. 25,000/- under each head on the basis of evidence adduced but further enhancement is not justified. Regarding actual loss and future income, the standard of evidence led before the learned Tribunal is required to be appreciated. 11. In fact, the percentage of the economic loss, that is, the percentage of loss of earning capacity, in most of the cases arising from a permanent disability would be different from the percentage of the permanent disability. It is wrong to assume that in all cases, a particular percentage of a permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 40% permanent disability will hold that there is 40% loss of future earning capacity. In many cases equating the percentage of loss of earning capacity to the extent of permanent disability would result in award of either too low or too high a compensation. In Raj Kumar Vs. Ajay Kumar and Another, (2011) 1 SCC 343 the Apex Court summarize the principle as follows:-- 19. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 12. Further, the apex Court in National Insurance Co. Ltd. Vs. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 12. Further, the apex Court in National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, (2007) 2 SCC 349 held that the loss of earning capacity is not a substitute for the percentage of physical disability. It is one of the factors taken into consideration. Similarly in Swaran Singh Vs. Achhar Singh and Others, (2011) 3 TAC 341], this Court had already taken a view that the percentage of disability cannot be equated to loss of earning capacity. In para-7 of the said judgment, it observed as under:-- 7. Percentage of disability suffered by an injured does not necessarily translate to the same amount of percentage in terms of loss of earning capacity. A person may be doing a desk job. Both his legs may be amputated. His physical disability may be assessed at 80-90% but his loss of earning capacity if he is in organized employment may be nil because he continues to work in the same-job. However, when a person who is trained to do a particular type of work suffers an injury whereby hp cannot perform the work which he is trained to do; even a small disability may translate to a much higher loss in earning capacity. One can give the example, of a painter where even the loss of two fingers may virtually reduce his earning capacity to nil. The Tribunals cannot follow a pedantic and just translate the percentage of disability into equivalent loss of earning capacity. What is the loss in earning capacity must be decided keeping in view the nature of injuries as well as the nature of the job which the claimant was performing. There can be no exact formula for assessing the loss of earning capacity but the Tribunal must while awarding just compensation take a reasonable and pragmatic view of the matter. 13. Further in para-8, the Supreme Court in Raj Kumar's case supra, held as follows:-- 8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. 13. Further in para-8, the Supreme Court in Raj Kumar's case supra, held as follows:-- 8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 14. In the instant case, the appellant has also placed on record copy of Jamabandi qua his share in the landed property and also the income tax acknowledgement Ext.PW2/B for the assessment year 2006-2007 wherein his income from business and profession has been shown to be Rs. 1,96,000/ - and the income tax acknowledgement Ext.PW2/D was submitted on 28.5.2009 i.e. much after the accident and his gross income has been shown as Rs. 3,14,886.59 paise as against Rs. 2,99,600/- of the previous year. Thus, the learned Tribunal took the note of the fact that the appellant being an Advocate had to face difficulties while working, especially in the hilly terrains, to which the appellant belongs and assessed an amount of Rs. 3,14,886.59 paise as against Rs. 2,99,600/- of the previous year. Thus, the learned Tribunal took the note of the fact that the appellant being an Advocate had to face difficulties while working, especially in the hilly terrains, to which the appellant belongs and assessed an amount of Rs. 3 lacs on actual loss of income and also on future loss of income and after apportionment it comes to Rs. 1,50,000/-. 15. Further the statement of PW3 Dr. Ravinder Mokta, who was a member of the Disability Board needs to be noticed. He stated that the appellant suffered 40% permanent disability with regard to old operative compound fracture, patella of the knee joint with fracture of both the bones lower third of left leg bone. According to him, though, his locomotor was impaired, yet the appellant could do not desk work comfortably. Thus, applying the above legal principles and considering the work, the appellant being an Advocate and supervising his landed property, the functional disability is assessed at 10% even taking his income as Rs. 25,000/ - per month as stated by him. The loss of income comes to Rs. 2500/- per month or say Rs. 30,000/- per annum. Since the appellant was 45 years of age at the time of accident, the multiplier of 10 would be just and proper in view of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , thus the functional disability comes to Rs. 3 lacs and is rightly awarded by the learned Tribunal. Therefore, on the strength of evidence on record, no further enhancement is called for. Thus, the appeal sans merit as such dismissed and also the pending applications, if any.