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2012 DIGILAW 882 (HP)

New India Assurance Company v. Sukh Dev Singh

2012-11-26

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud,J. The Insurance Company challenges the award of the learned Motor Accident Claims Tribunal, Bilaspur granting compensation to the extent of Rs.4,24,811/- alongwith interest at the rate of 12% per annum from the date of filing the petition till its realization.Each head of compensation has been challenged by the Insurance Company. 2. The accident, out of which this appeal arises, took place on 27.4.1998 when the petitioner was driving a H.R.T.C. bus No.HP-24-4538 from Mandi to Bilaspur.When he reached near Sungal, another bus No.HP-23-2912, coming from the opposite direction, collided with the H.R.T.C. bus causing accident. The petitioner was rushed to the District Hospital, Bilaspur, whereafter to PGI, Chandigarh for further treatment. He remained admitted in PGI, Chandigarh from 27.4.1998 to 21.5.1998 where he was subjected to two surgeries and sent back to Zonal Hospital, Mandi. He remained admitted there from 30.5.1998 to 2.7.1998 and during this period his right leg was operated and amputated below the knee. The petitioner cannot work as a driver and has been appointed as a helper in the HRTC. 3. The learned Tribunal on the question of quantum holds that the petitioner was working as driver which task obviously cannot perform after having undergone amputation. It was admitted by the claimant that he was working as a helper and his pay was protected on the last pay drawn as driver, but, he would not be entitled to any increment in future. He would also not be getting any increment thereafter. The salary of a helper is less than that of a driver. The learned Tribunal awards a sum of Rs.48,811/- as loss suffered for seven months leave when he was undergoing surgery at PGI and Mandi, Rs.200/- per year as the increment loss, holding that the petitioner was 51 years old and would have retired at the age of 58 years he would have got seven increments of Rs.200/- per year which would add up to Rs.67,200/-. Rs.32,800/- was the loss on account of dearness allowance. The petitioner was getting Rs.3,000/- per month overtime allowance which he had proved vide Ex.PC, copy of certificate issued by Himachal Road Transport Corporation showing payment of overtime allowance. The learned Tribunal awarded Rs.1,500/- per month as overtime allowance and taking this for seven years a sum of Rs.1,26,000/- was awarded. A lump sum amount of Rs.1,50,000/- was awarded for pain and suffering. 4. The learned Tribunal awarded Rs.1,500/- per month as overtime allowance and taking this for seven years a sum of Rs.1,26,000/- was awarded. A lump sum amount of Rs.1,50,000/- was awarded for pain and suffering. 4. What has been urged before me is that the Tribunal has been remiss in making this assessment. The disability was only qua one portion of the body and not regarding his whole earning capacity, as such, the claimant has been re-employed and in this eventuality cannot be said to have suffered any loss on account of pain and suffering and the other amounts awarded are not supported by any of the evidence. 5. Adverting to the evidence on record which is in the nature of statement of PW-1 Dr.Harish Behl. He states that he was posted as Orthopedics Surgeon at Zonal Hospital, Mandi and he has performed the amputation. He was also a member of the Board of Doctors who examined him and certified his disability. His categoric statement is that he cannot perform any driving work. There is no effective cross-examination of this witness. 6. The claimant appeared as PW-2 and stated that he was 51 years of age. He worked as a driver till the date of his accident, whereafter he remained hospitalized in PGI, Chandigarh and Zonal Hospital, Mandi, where his right leg was operated and amputated below the knee. He had put on leave for 205 days. On the date of accident he was getting Rs.6973/- per month as salary and after joining his duties he was asked to work as a helper in the workshop of HRTC at Bilaspur on the salary of helper to which he would be entitled in future though his pay has been protected to Rs.6400/- per month. The scale of pay of a helper is lower than that of a driver. He will not get any increment as his salary was protected to Rs.6400/- which is more than a salary of a helper and will not be entitled to any increment. He was getting overtime allowance of Rs.3,000/- per month which he proved vide Ex.PC, overtime certificate. In addition, he has proved on record salary certificate Ex.P1 alongwith other documents. He will not get any increment as his salary was protected to Rs.6400/- which is more than a salary of a helper and will not be entitled to any increment. He was getting overtime allowance of Rs.3,000/- per month which he proved vide Ex.PC, overtime certificate. In addition, he has proved on record salary certificate Ex.P1 alongwith other documents. In cross-examination he states that at present he is suffering a loss of Rs.200/- per month on account of loss of increment however, on his retirement he would be suffered at Rs.800/- per month on account of such loss. 7. What was urged before me was that the assessment is highly excessive. In Govind Yadav vs. New India Assurance Co.Ltd., 2012 ACJ 28, the Supreme Court considers the entire case law with respect to the principles for award of damages for injuries/ disablement and holds:- “10. The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term `compensation’ used in Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act’) would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clientsare either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses’ make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. They contest the claim petitions by raising all possible technical objections for ensuring that their clientsare either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses’ make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of compensation in such cases should invariably include pecuniary and non-pecuniary damages. In R.D. Hattangadi v. Pest Control (India) Private Limited (1995) 1 SCC, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsbury’s Laws of England, 4th Edition, Volume 12 (page 446) and observed: “9. 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 are 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 and 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. In the same case, the Court further observed: “(12) In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, 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.” 15. In our view, the principles laid down in Arvind Kumar Mishra v.New India Assurance Co.Ltd., 2010 ACJ 2867 (SC) and Raj Kumar v. Ajay Kumar, 2011 ACJ 1 (SC), must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” (pp.31-32 & 35) 8. Adverting to the facts of the present case, there can be no doubt that the petitioner has been totally disabled for performing his duties as a driver at which post he was employed and for which avocation he was strange. It is undisputed that he is now working to a lower post of helper which ofcourse would take care of his basic need of reignment and shelter but would definitely put him to loss so far as earning overtime and increment to his pay scale as driver are concerned. On the submission that for pain and suffering learned Tribunal has awarded excessively high, I cannot accept this submission considering that the claimant has been put through pain for a period about seven months. 9. In these circumstances, I find no merit in this petition which is dismissed.