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2012 DIGILAW 482 (GAU)

Oriental Insurance Company Ltd. v. Mracha Mog

2012-04-19

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This appeal under Section 173 of M.V. Act, 1988 is directed against judgment and award dated 25.02.2000, passed by learned Single Member, Motor Accident Claims Tribunal, Agartala, in case No. TS (MAC) 190 of 1999. Heard learned counsel, Mr. K. Bhattacharjee for the appellant and learned counsel, Mr. S.K. Datta for claimant respondent No. 1. Respondent Nos. 2 and 3 (owners of the offending vehicle) have chosen to remain absent. 2. BRIEF FACT: Respondent No. 1, Mracha Mog, claimed compensation of Rs. 11,60,000/- for the injury sustained by him due to motor vehicle accident occurred on 27.03.1992 involving vehicle No. TRL-6058 (Canter Truck). The averments made by the claimant in the claim petition is that on 27.03.1992, he was on way to his house on foot through Agartala-Silachari Road, and at about 01.00 pm, at a place named Gulmani Para, on the road, the offending vehicle TRL-6058, being driving rashly and negligently, knocked him down and as a result he sustained severe fracture injury on the shaft of femur and pelvis and also suffered injuries on other parts of the body. He was shifted to Karbook Hospital after the accident from where he was referred to Natunbazar Hospital, wherefrom on 30.03.1992, he was again referred to G.B. Hospital and was under treatment in G.B. Hospital from 30.03.1992 to 09.07.1992. Even after discharge from the hospital he continued treatment privately. He was a cultivator by profession and was aged about 30 years and used to earn Rs. 2,000/- per month. He alleged that the accident occurred due to rash and negligent driving of the vehicle and he became permanently disabled due to the accident, and therefore, claimed compensation as aforesaid. 3. Respondent Nos. 1 and 2, the owners of the alleged offending vehicle, submitted written statement denying the averments made in the claim petition and further stated that the vehicle was insured with the Oriental Insurance Company, covering the risk on the date of accident and, so liability of payment of compensation should be borne by the Insurance Company. 4. Respondent Nos. 3 and 4, the Oriental Insurance Company, also contested the case by filing written statement denying the averments made in the claim petition but did not deny the factum of the insurance, covering the risk on the date of accident. 5. 4. Respondent Nos. 3 and 4, the Oriental Insurance Company, also contested the case by filing written statement denying the averments made in the claim petition but did not deny the factum of the insurance, covering the risk on the date of accident. 5. The claimant initially filed the case before the Motor Accident Claims Tribunal at Udaipur on 22.03.1993 and it was registered as TS (MAC) 11 of 1993 before the Single Member, Motor Accident Claims Tribunal, Udaipur (District & Sessions Judge, Udaipur). The respondents appeared before the Tribunal at Udaipur and submitted written statement as aforesaid. Issues were also accordingly framed. In the year 1995, the claimant petitioner filed COP No. 25 of 1995 before the High Court, seeking transfer of the claim case from the Motor Accident Claims Tribunal at Udaipur to the Motor Accident Claims Tribunal at Agartala, and by order dated 21.02.1995, passed in COP No. 25 of 1995, the case was transferred to the Court of Single Member, MACT at Agartala (District & Sessions Judge) and the case was re-numbered as TS(MAC) No. 190 of 1999 in the Motor Accident Claims Tribunal, Agartala. It appears that after the case record was received by the Motor Accident Claims Tribunal at Agartala, issues were framed afresh based on the pleadings of the parties. Following are the two issues framed: 1. Whether Petitioner sustained injury in a vehicular accident on 27.3.92 due to rash and negligent driving of vehicle No. TRL 6058? 2. Whether the Petitioner is entitled to get compensation if so, what should be the amount of compensation and who shall be held liable for payment? 6. In course of trial, the claimant examined himself as PW.1 and in support of his case, he produced a disability certificate along with a copy of G.D. entry and discharge certificate of G.B. Hospital, which were marked as Exbt.1 series and also produced a copy of the certificate issued by the O/C Ailmara Police Outpost. Respondents adduced no oral evidence. Record shows that respondent Nos.1 and 2 produced a copy of Insurance Certificate in respect of the offending vehicle, which was marked as Exbt. A. The Tribunal decided both the issues in favour of the claimant (respondent No. 1) and awarded compensation of Rs. 1,00,000/- towards cost of treatment, Rs. 25,000/- towards pain and sufferings, Rs. 2,88,000/- towards loss of income, totaling Rs. 4,13,000/-. 7. A. The Tribunal decided both the issues in favour of the claimant (respondent No. 1) and awarded compensation of Rs. 1,00,000/- towards cost of treatment, Rs. 25,000/- towards pain and sufferings, Rs. 2,88,000/- towards loss of income, totaling Rs. 4,13,000/-. 7. The Tribunal directed the Insurance Company to make payment of compensation with 12% interest thereon from the date of presentation of the petition i.e. 22.03.1993. 8. Respondent Nos.2 and 3 i.e. the owners of the vehicle did not challenge the judgment and award made by the Tribunal. The Insurance Company, being aggrieved and dissatisfied with the award, filed the present appeal. 9. It is submitted by learned counsel, Mr. Bhattacharjee that the Insurance Company was allowed to take all defence in the case since the owners of the vehicle failed to make an effective defence before the Tribunal, and therefore, the Insurance Company has a right to challenge the award taking all defence and such submission has not been objected by the learned counsel of the claimant-respondent No. 1. 10. According to law, the Insurance Company has a very limited scope to challenge the award, but in the circumstances of this case where the owners of the vehicle remained absent and did not take effective defence and where the Insurance Company was allowed to take all defence, this Court heard the learned counsel for the Insurance Company as well as the claimant-respondent No. 1 on all points. 11. Learned counsel, Mr. Bhattacharjee challenged the judgment on two counts. Firstly, that claimant produced a disability certificate issued by the Government Department, which shows that the claimant suffered 14% disability. Neither the Medical Officer, who treated the claimant nor any member of the Medical Board, was examined by the claimant to prove the extent of disability of the claimant but the Tribunal taking into consideration that disability certificate has held the claimant petitioner as hundred percent disable and awarded compensation accordingly, which was not just. The second contention of learned counsel is that the claimant filed the case himself before the Motor Accident Claims Tribunal at Udaipur on 22.03.1993 but he took no step for early disposal of the case, and subsequently, on his prayer the case was transferred to the Motor Accident Claims Tribunal at Agartala in the year 1999. The second contention of learned counsel is that the claimant filed the case himself before the Motor Accident Claims Tribunal at Udaipur on 22.03.1993 but he took no step for early disposal of the case, and subsequently, on his prayer the case was transferred to the Motor Accident Claims Tribunal at Agartala in the year 1999. It was for the lapse of the claimant-petitioner, the case could not be disposed of at an early date but the Tribunal awarded abnormal interest @12% per annum from 22.03.1993 i.e. the date of filing the case at Udaipur. The claimant cannot be held entitled to the interest from that date in any manner. For his failure, since the case could not be disposed of within a reasonable time, if at all any compensation is awarded that may carry simple interest at minimum bank rate and the interest @12% per annum is abnormal and therefore liable to be interfered. 12. The accident is proved and it is not also disputed/challenged by the appellant. Claimant-petitioner stated that he sustained fracture injury on the shaft of femur and pelvis. He stated that he became permanently disabled. Disability certificate (Exbt.1 series) shows that he suffered only 14% permanent disability. The Tribunal considered that 14% disability as 100% disability but in support of such decision the Tribunal assigned no reason at all. Exbt.1 series also consists of discharge certificate of G.B. Hospital, which shows that the claimant was under treatment from 30.03.1992 to 09.07.1992 as an indoor patient in the hospital. The Tribunal awarded a total compensation of Rs. 1,00,000/- towards cost of treatment. While a person was under treatment for more than three months in the hospital as an indoor patient, though there is no paper produced regarding the cost of treatment incurred by the claimant respondent, I think, the amount of compensation for the purpose of treatment may be considered as adequate and just compensation. 13. For the pain and sufferings, as I find, the Tribunal awarded a lump-sum compensation of Rs. 25,000/-. No compensation awarded towards inconvenience, hardship, discomfort, etc. which the young petitioner has suffered and may continue to suffer in future. 13. For the pain and sufferings, as I find, the Tribunal awarded a lump-sum compensation of Rs. 25,000/-. No compensation awarded towards inconvenience, hardship, discomfort, etc. which the young petitioner has suffered and may continue to suffer in future. In the case of R.D. Hattangadi vs. M/s Pest Control (India) Pvt. Ltd. & Ors., reported in AIR 1995 SC 755 , (1995) 1 SCC 551 , the Apex Court held thus: Broadly speaking 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 upto 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. 14. Considering the nature of injury, the period of treatment and considering the disability certificate and other factors, such as income and profession of the injured, I think for mental and physical shock and for the sufferings already suffered and likely to suffer in future, and for all inconvenience, hardship and discomfort of future life, compensation of Rs. 25,000/- awarded by the Tribunal is at a very lower side and cannot be termed as adequate and just. The amount is, therefore, increased to a lump-sum amount of Rs. 50,000/-. 15. The Tribunal has taken a view that the claimant petitioner suffered permanent disability in respect of his earning capacity but in support thereof there is no evidence at all. The disability certificate simply shows that the claimant-petitioner suffered 14% disability. The amount is, therefore, increased to a lump-sum amount of Rs. 50,000/-. 15. The Tribunal has taken a view that the claimant petitioner suffered permanent disability in respect of his earning capacity but in support thereof there is no evidence at all. The disability certificate simply shows that the claimant-petitioner suffered 14% disability. There is nothing as to what was the percentage of disability towards loss of earning capacity. No medical evidence adduced. No expert evidence also adduced to show the extent of loss of earning capacity because of the injury sustained by the claimant-petitioner. Under such circumstances, the compensation assessed by the Tribunal cannot be said to be a just and reasonable compensation on that score. In the case of Syed Basheer Ahamed & Ors. vs. Mohd. Jameel & Anr., reported in 2009 AIR SCW 493, the Apex Court held thus: The expression "which appears to be just" in S. 168 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 dependents 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. 16. In the case of Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. : (2009) 6 SCC 121 : AIR 2009 SC 3104 , the Apex Court 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. Learned counsel, Mr. It is not intended to be a bonanza, largesse or source profit. 17. Learned counsel, Mr. Datta submits that taking into consideration the disability certificate and the evidence of the claimant the Tribunal has made some guess work and some hypothetical consideration to ascertain the reasonable amount of compensation. He has submitted that while the petitioner was a cultivator and/or a labour and while he suffered fracture injury on the shaft of femur and pelvis, he should be considered as 100% disable. I am sorry to agree with the learned counsel in the absence of any such cogent expert evidence. No doubt, some sorts of guess work, some hypothetical consideration has to be made in every such claim cases but for having such guess work some sorts of cogent and material evidence must be placed before the Court or Tribunal. In the absence of any such evidence, I am sorry to accept the submission made by the learned counsel. In the case of R.D. Hattangadi(supra), the Apex Court has held that in every such case where 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 standard. In the case of General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas & Ors. reported in (1994) 2 SCC 176 , the Apex Court has held, "Much of the calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but a bad master" since there are so often many imponderables. In every case "it is the overall picture that matters", and the court must try to assess as best as it can the loss suffered. 18. Taking into consideration the principles laid down by the Apex Court, I have considered the case of the claimant and the points raised by the Insurance Company. Here I would like to refer the case laws 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. Here I would like to refer the case laws 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. 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. 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. (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). 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. 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. 19. In the case in hand, it is very difficult to ascertain the percentage of economic loss or the loss of earning capacity taking into consideration the 14% physical disability certificate issued by the Disability Board in respect of the petitioner. In the absence of any such cogent evidence, applying the guess work based on the evidence what is on record, we may at best say that the petitioner suffered 14% economic loss or loss of earning capacity because of the injury. According to the claimant petitioner, his income was Rs. 50/- per day. So, monthly income was Rs. In the absence of any such cogent evidence, applying the guess work based on the evidence what is on record, we may at best say that the petitioner suffered 14% economic loss or loss of earning capacity because of the injury. According to the claimant petitioner, his income was Rs. 50/- per day. So, monthly income was Rs. 1,500/- and yearly income, therefore, stands at Rs. 18,000/-. A reasonable multiplier of 16 may be applied since the petitioner might be between 30 to 35 years of age at the time of accident. So, the total loss of income stands at Rs. 2,88,000/- and so far a hypothetical loss of income or economic loss as considered above, we may at best allow 14% of the above amount towards loss of income of the petitioner and the amount stands at Rs. 40,320/-. This amount may be said to be a reasonable and just amount towards loss of income for the disability suffered by the petitioner. Regarding payment of interest, as I find, the Tribunal awarded interest from the date of presentation of the claim petition before the Tribunal at Udaipur i.e. from 22.03.1993. On perusal of the L.C. records, it appears that after filing of the case before the MACT at Udaipur, for the negligence of the petitioner, the case could not be disposed of at an early date and the petitioner himself, later on, prayed for transfer of the case from the MACT at Udaipur to the MACT at Agartala and the case was registered at Agartala on 20.04.1999. So the petitioner at best may be entitled to get interest w.e.f. 20.04.1999. The petitioner cannot claim the interest before that since it was for the fault of the petitioner that the case could not be disposed of. The rate of interest @12% per annum, as allowed by the Tribunal also seems to be unreasonable. Regarding grant of interest we may follow the ratio of decision of the Apex Court in the case of Sanjay Batham vs. Munnalal Parihar & Ors. reported in 2011 ACJ 2869, K.R. Madhusudhan vs. Administrative Officer & Ors. reported in 2011 ACJ 743 , Leela Gupta vs. State of U.P. & Ors. reported in 2010 ACJ 2717, wherein the Apex Court directed payment of interest @9% per annum. The petitioner, therefore, may be entitled to get interest @9% per annum from 20.04.1999. 20. reported in 2011 ACJ 2869, K.R. Madhusudhan vs. Administrative Officer & Ors. reported in 2011 ACJ 743 , Leela Gupta vs. State of U.P. & Ors. reported in 2010 ACJ 2717, wherein the Apex Court directed payment of interest @9% per annum. The petitioner, therefore, may be entitled to get interest @9% per annum from 20.04.1999. 20. Accordingly, it is hereby ordered that the claimant petitioner i.e. the respondent No. 1 is entitled to get Rs. 1,90,320/- (rupees one lakh ninety thousand three hundred twenty) as compensation and the appellant-Insurance Company is responsible to make payment of the said compensation with 9% interest thereon from 20.04.1999 and the payment should be made within 45 days from today, failing which it shall carry interest @12% per annum. The amount, if any already paid in the meantime, shall be excluded form the amount as calculated above. Send back the L.C. records along with a copy of the judgment. A copy of the judgment may be made available to the parties concerned for compliance.