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2013 DIGILAW 1107 (RAJ)

Ashok Kumar Sankhala v. Pooran Singh

2013-05-29

ALOK SHARMA

body2013
JUDGMENT 1. - This Civil misc. appeal under Section 173 of Motor Vehicles Act, 1988 (hereinafter 'the Act of 1988') has been filed against the award dated 06.12.2000, passed by the learned Judge, MACT, Jaipur District Jaipur (hereinafter 'the learned Tribunal') granting to the appellant-claimant (hereinafter 'the claimant') a sum of Rs. 6,58,000/- as compensation in the aggregate along with interest @ 12% per annum thereon from the date of the application under Section 166 of the Act of 1988 till the date of payment in respect of grievous injuries suffered by the claimant in a motor accident of 23.07.1997 between a jeep, bearing registration No.RJ-14-9082, in which the claimant was travelling and the offending truck, bearing registration No.HR-47-4246, driven by Subhash Chandra, owned by Pooran Singh and insured with the Oriental Insurance Co. Ltd. (hereinafter 'the Insurance Company'). The claimant is dissatisfied with the quantum of the award and hence this appeal. 2. The facts of the case are that while travelling in a jeep, bearing registration No.RJ-14-9082, on the way from Mahala to Jaipur, truck bearing registration No.HR-47-4246, driven rashly and negligently, crushed head long into a jeep in which the claimant was travelling resulting in grievous injuries to him. The claimant's spine and neck suffered fractures. The claimant was confined to the hospital between the trauma ward and the rehabilitation and research centre for over three months and finally finding that nothing better could be done with regard to the paraplegia suffered by the claimant, he was advised to go home. 3. On the claim, filed by the claimant under Section 166 of the Act of 1988, in spite of notice, the driver and the owner of the offending truck, bearing registration No.HR-47-4246, remained ex-parte. The Insurance Company with which the offending truck was insured i.e. the Oriental Insurance Co. Ltd., however took routine defences such as not being notified of the accident by the insured entailing a violation of terms and conditions of the insurance policy entitling the Insurance Company to be absolved of its liability. It was also mechanically stated that the driver of the offending vehicle did not have a proper and valid driving licence similarly entitling the Insurance Company to avoid its liability. It was also mechanically stated that the driver of the offending vehicle did not have a proper and valid driving licence similarly entitling the Insurance Company to avoid its liability. It was alternatively prayed that in any event the Insurance Company was not absolved for the reason of its defences aforesaid, from the facts on record, the Tribunal ought to find contributory negligence of the driver of the jeep bearing registration No.RJ-14-9082 for the accident of 23.07.1997 and apportion compensation payable between the owners and insurers of the two vehicles involved in the accident. On the basis of the claim petition and reply thereto filed by the Insurance Company, the learned Tribunal framed five issues -loosely translated - which were as under : (i) whether the accident of 23.07.1997 near Thikaria between Bagru and Jaipur on National Highway No.8 was caused by the rash and negligent driving of the driver of the offending truck No.RH-47-4246 resulting from which the claimant sustained grievous injuries. (ii) whether at the time of accident of 23.07.1997, the driver of the offending truck was in the employment of the owner thereof and had a valid driving licence. (iii) to what amount, the claimant was entitled to as compensation for the injuries suffered by him in the accident of 23.07.1997 and to what extent from each of the defendants impleaded in the claim petition. (iv) whether the preliminary objections raised by the Insurance Company with regard to it being entitled to absolved of its liability for payment of compensation in respect of the accident of 23.07.1997 were liable to be sustained. (v) final relief. 4. After taking into consideration the oral and documentary evidence on record, the learned Tribunal decided issue Nos.1 and 2 in favour of the claimant. On the evidence on record on issue No.3, the learned Tribunal found that the claimant (now the appellant before this Court) was entitled to be compensated in a sum of Rs. 6,58,000/- in aggregate both on count of pecuniary and non-pecuniary damages along with interest @ 12% per annum from the date of filing of the claim petition till the date of payment. It found that the owner and the driver of the offending truck and the Insurance Company thereof were jointly and severely liable to pay the compensation found payable to the claimant. 5. It found that the owner and the driver of the offending truck and the Insurance Company thereof were jointly and severely liable to pay the compensation found payable to the claimant. 5. The claimant is however dissatisfied with the award dated 06.12.2000 and submits that the compensation awarded by the Tribunal is not just entitling the claimant to enhancement thereof in the context of the claim for Rs. 50,55,000/- as agitated in the claim petition. 6. Mr. S.K. Tiwari, appearing for the claimant, has submitted that the learned Tribunal has not awarded adequate and just compensation to the claimant primarily for the mental trauma and the physical agony suffered by him. It has been submitted that the learned Tribunal has been niggardly in the award of compensation and failed to take into consideration that the claimant having suffered paraplegia would be required to be compensated for an attendant to help him to discharge his routine daily activities which he was found on medical evidence to be unable to undertake on his own for the rest of his life. It has been submitted that the claimant also ought to have been granted compensation by the learned Tribunal under the head of future medical expenses and also enhanced compensation on account of loss of amenities and loss of expectation of life. It has been submitted that in this view of the matter, the compensation granted by the learned Tribunal under its award dated 06.12.2000 should be suitably enhanced. Reference has been made to the judgment of the Hon'ble Supreme Court in the case of Kavita v. Deepak and Ors., [2012 (4) TAC 733 (SC) : AIR 2012 SC 2893 . 7. Mr. Virendra Agrawal, appearing for the Insurance Company, has submitted that the award amount of Rs. 6,58,000/- plus interest to the claimant earning Rs. 2,000/- p.m. is quite just and adequate and hence the appeal be dismissed. 8. Heard the counsel for the claimant and the Insurance Company. Perused the impugned award and considered the claim in the present appeal for enhancement of compensation. 9. The object of a petition under Section 166 of the Act of 1988 is to determine just compensation. The Tribunals under the Act of 1988 and the appellate courts while ensuring that compensation determined is just have also to be alive to ensuring that the compensation is not a windfall. 9. The object of a petition under Section 166 of the Act of 1988 is to determine just compensation. The Tribunals under the Act of 1988 and the appellate courts while ensuring that compensation determined is just have also to be alive to ensuring that the compensation is not a windfall. The courts are required to strike a balance between the inflated and unreasonable demands of a victim and the disinclination of the tortfeasor/indemnifier such as an Insurance Company to pay even reasonable sums. A correct assessment of just compensation should however eschew emotion and a pragmatic view with reference to the facts and evidence of a case should be taken by the courts in arriving at a just compensation. 10. In the context of the aforesaid principles culled out from a series of judgments of the Hon'ble Supreme Court, a very dispassionate approach to the compensation determinable in respect of cases of grievous injuries in motor accident cases is to be undertaken. The Hon'ble Supreme Court has held that in a case of injuries resulting from motor accident, the courts ought to take into consideration award of damages both on account of pecuniary and non-pecuniary loss. The damages on account of pecuniary loss include expenses of hospitalisation, medicines, transportation to and from hospitals/clinics, nourishing food to facilitate recovery and miscellaneous expenditure as also loss of earning which the injured has suffered resulting from the injuries and would not have otherwise been deprived of, but for the injuries. Loss of earning would include loss of earning during the period of treatment and loss of future earning on account of permanent disability. Non-pecuniary damages would include future medical expenses, damages for pain, suffering and trauma as a consequence of the injuries, loss of amenities and/or loss of prospectus of marriage and loss of expectation of life (shortening of normal longevity). In the case of Kavita (Supra), the Hon'ble Supreme Court has held that in ordinary cases of injuries in motor accidents compensation should be awarded only for expenses relating to trauma, hospitalisation, medicines, transportation, nourishing food, medical expenses and actual loss of earning which the injured claimant suffered during the treatment when he was perforce out of work. In the case of Kavita (Supra), the Hon'ble Supreme Court has held that in ordinary cases of injuries in motor accidents compensation should be awarded only for expenses relating to trauma, hospitalisation, medicines, transportation, nourishing food, medical expenses and actual loss of earning which the injured claimant suffered during the treatment when he was perforce out of work. It has been held that only in cases of serious injuries where there is specific medical evidence corroborating the claim of the claimant, additional compensation is liable to be granted for loss of future earning on account of permanent disability, future medical expenses, loss of amenities, prospectus of marriage and loss of expectation of life. 11. In the context of the aforesaid enunciated legal position, a look at the award dated 06.12.2000, passed by the learned MACT, Jaipur, would indicate that the claimant, who has suffered paraplegia as a result of damage to his spine in the accident of 23.07.1997, has been granted Rs. 1 lakh for medicines as compensation and a sum of Rs. 4,08,000/- for loss of income on the basis of his age of 21 years, claimed income of Rs. 2,000/- per month and the multiplier of 17 in the context of his age. It is to be noted from the evidence that it has not been established that the claimant, working at the time of accident as an artisan engaged in cutting and polishing of precious stone was unable to continue the said trade even while working from home or otherwise. Paraplegia suffered by the claimant does not entail the paralysis of upper body and consequently there is no reason for this Court to believe that the claimant would have lost all of his future earning capacity even in the context of 100% disability waist downwards. In this context, award of Rs. 4,08,000/- as compensation to the claimant for loss of future earning with reference to use of a multiplier of 17 on the multiplicand of monthly income of Rs. 2,000/- (2000X12) appears to be reasonably generous. 12. Aside of the pecuniary damages, the claimant has been granted Rs. 1 lakh by the learned Tribunal as compensation for the trauma from the injuries suffered and a sum of Rs. 50,000/- for the trauma from physical pain. The pecuniary and non-pecuniary damages aggregate to sum of Rs. 6,58,000/- including Rs. 2,000/- (2000X12) appears to be reasonably generous. 12. Aside of the pecuniary damages, the claimant has been granted Rs. 1 lakh by the learned Tribunal as compensation for the trauma from the injuries suffered and a sum of Rs. 50,000/- for the trauma from physical pain. The pecuniary and non-pecuniary damages aggregate to sum of Rs. 6,58,000/- including Rs. 25,000/- earlier paid to the claimant under "no fault liability" under Section 140 of the Act of 1988. The learned Tribunal further also directed that the remainder sum of Rs. 6,33,000/- (aside of Rs. 25,000/- for no fault liability already paid) would carry interest @ 12% per annum from the date of filing of the claim petition till the date of payment. To safeguard the claimant from prodigious spending, the Tribunal has directed that five fixed deposits in the amount of Rs. 20,000/- be kept in the name of the claimant for a period of 1 to 5 years and a sum of Rs. 4 lakhs be kept in fixed deposit for a period of 12 years. The claimant has been entitled to monthly interest on the FD of Rs. 4 lakhs. 13. In my considered opinion, in the context of the award dated 06.12.2000, the learned Tribunal however appears to have overlooked the fact that in view of paraplegia suffered by the claimant as established from the evidence of AW-4 and AW-5, Dr. Navnendra Mathur and Dr. Vishvapriya, respectively, the claimant ought to have been entitled to compensation on account the need of an attendant to help him sustain his day to day normal routine activities and also for compensation on account of loss of prospectus of marriage. In my considered opinion, ends of justice would be served in the facts of the case, in the event the claimant were to be granted in the aggregate - for the above two heads - an additional compensation of Rs. 1,50,000/-. 14. Consequently, I would partly allow this civil misc. appeal and direct that aside of the compensation determined by the learned Tribunal, Jaipur under its award dated 06.12.2000, the claimant would also be entitled to an additional compensation of Rs. 1,50,000/-. The said additional compensation be paid to the claimant within a period of three months from the date of presentation of a certified copy of this order. appeal and direct that aside of the compensation determined by the learned Tribunal, Jaipur under its award dated 06.12.2000, the claimant would also be entitled to an additional compensation of Rs. 1,50,000/-. The said additional compensation be paid to the claimant within a period of three months from the date of presentation of a certified copy of this order. In the event the said compensation is not paid within a period of three months, the claimant would be entitled to recovery thereof along with interest thereon @ 12% per annum from the date of this order till the date of payment. 15. The Civil misc. appeal accordingly stands partly allowed as aforesaid.Appeal partly allowed. *******