Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 159 (CHH)

Vijay Soni v. V. Pardesi Ram

2014-04-11

PRITINKER DIWAKER

body2014
JUDGMENT : PRITINKER DIWAKER, J. 1. This appeal arises out of the award dated 30.9.2003 passed by Third Additional Motor Accidents Claims Tribunal, Raipur (hereinafter referred to as 'the Tribunal') in Claim Case No. 134 of 1999 whereby in an injury case compensation of Rs. 39,785/- had been awarded in favour of the injured-claimant. Facts of the case, in brief, are that on 7.4.1996 when the injured-claimant Vijay Soni was riding his motor cycle, he was dashed by a truck bearing registration No. MP 23-D 6454 (hereinafter referred to as 'offending vehicle'), as a result of which Vijay Soni sustained a number of injuries. He was immediately taken to the Mission Hospital, Tilda and considering his serious condition, he was referred to higher medical centre in Sector-9, Bhilai where he remained till 16.5.1996. 2. A claim case was filed by the injured-claimant through his next friend Heeramani Soni (wife of the injured-claimant) claiming compensation of Rs. 15,00,000/-, inter alia, pleading that in the said accident he has suffered severe head injuries, his jaw was broken and likewise he also sustained injuries on other parts of his body. At the relevant time, injured-claimant was working as a peon in the District Cooperative Central Bank. Branch-Hathband, Raipur and thereby getting salary of Rs. 6,110/- per month, on account of the accident he has lost complete vision of his right eye, whereas vision of his left eye has also been substantially reduced to 6/18; he remained in coma for about one month, he has completely lost his memory, and considering his physical condition he was compulsorily retired from the bank by giving him three months' salary and now he is on the road. It was further pleaded in the claim petition that the injured-claimant was maintaining his old mother, father, wife, three minor daughters and a son. At the time of accident, the offending vehicle was being driven rashly and negligently by respondent No. 1, owned by respondent No. 2 and duly insured with respondent No. 4. A criminal case was registered against the driver and during the course of trial, the driver has accepted his guilt, for which he was duly punished by the competent court. 3. Respondent Nos. 1 and 2 did not file their written statement and also remained absent, hence they were proceeded ex-parte. A criminal case was registered against the driver and during the course of trial, the driver has accepted his guilt, for which he was duly punished by the competent court. 3. Respondent Nos. 1 and 2 did not file their written statement and also remained absent, hence they were proceeded ex-parte. However, the respondent No. 3, insurance company, contested the case and denied its liability on usual grounds, such as there was negligence on the part of the injured-claimant, the driver of the offending vehicle was not having valid and effective driving licence, valid fitness certificate and permit. 4. By the impugned award the Tribunal has awarded a meagre sum of Rs. 39,785/- to the claimant holding that claimant has failed to prove the factum of permanent disability suffered by him in the accident to the extent of 75 per cent. According to the Tribunal, the doctor has not stated as to on what basis the said permanent disability certificate was issued by him. Further, the Tribunal has disbelieved some of the medical documents on the ground that on those documents name of the doctor has not been mentioned. It has also disbelieved the expenditure incurred by the claimant for repair of his motor cycle on the ground that no such evidence has been adduced by the claimant and has awarded Rs. 34,785/- towards medical expenses and Rs. 5,000/- towards pain and suffering suffered by the claimant. 5. Contention of learned counsel for the appellant-claimant is as under: (i) that the impugned award appears to be a mockery of judicial system where the Tribunal has utterly failed to consider the evidence adduced by the claimant and has granted a sum of Rs. 39,785/- only, which in the facts and circumstances of the case appears to be very much on the lower side; (ii) that from the medical certificates, Exhs. 39,785/- only, which in the facts and circumstances of the case appears to be very much on the lower side; (ii) that from the medical certificates, Exhs. P3 and P13, it is apparent that a number of injuries were sustained by the claimant including head injury and the claimant had lost his one eye in the said accident and vision of second eye was also substantially reduced to 6/18; (iii) that the claimant was working as a peon in the bank and immediately after the accident he was removed from service by giving him three months' salary and as such, though the claimant has suffered 75 per cent permanent disability, but loss of his earning capacity is 100 per cent; and (iv) that under the conventional heads also the Claims Tribunal has awarded just Rs. 5,000/- for pain and suffering, ignoring the fact that the claimant must have incurred heavy expenditure towards other heads and would be required to incur expenses in future also for his treatment. 6. On the other hand, learned counsel appearing for the respondents have submitted that the compensation awarded by the Tribunal is just and reasonable and, therefore, requires no interference by this court. 7. Heard learned counsel for the parties and perused the material available on record. 8. The claimant has examined as many as four witnesses in support of his case. R.S. Sinha, AW 1, who is Superintendent of District Cooperative Central Bank, Raipur, where the claimant was working as a peon, has stated that salary of the claimant was Rs. 6,110/- per month and document to this effect is Exh. P1. He has further stated that after the accident, the claimant was compulsorily retired from service by giving him three months' salary and as there is no provision for giving pension to the bank employees, the claimant has not been given any such facility. 9. Hintendra Sharma, AW 2, is an eyewitness to the accident. He has categorically stated that the accident occurred on account of rash and negligent driving of the offending vehicle. 10. Dr. G.D. Agrawal, AW 3, is a Neurosurgeon, who had treated the claimant when he was brought to Sector-9 Hospital, Bhilai. 9. Hintendra Sharma, AW 2, is an eyewitness to the accident. He has categorically stated that the accident occurred on account of rash and negligent driving of the offending vehicle. 10. Dr. G.D. Agrawal, AW 3, is a Neurosurgeon, who had treated the claimant when he was brought to Sector-9 Hospital, Bhilai. He has stated that when the patient/claimant was brought to the hospital, he was unconscious, on CT Scan of his brain being done it was found that there was fracture of left temporal bone and centre bone and he had suffered internal head injury also. Both his jaws and right forearm bone were fractured. Though the claimant was discharged from the hospital on 16.5.1996, even thereafter he continued to come there for his treatment as an outdoor patient and on 1.3.2001 he had examined the claimant and had issued the disability certificate, Exh. P3. According to this certificate, the claimant has lost this memory, there was complete loss of vision in his right eye, diminution of vision in left eye to 6/18, deformity in right wrist and loss of his working capacity was around 75 per cent. He has further stated that even arm of the claimant could not be cured. The claimant was referred to psychiatrist and as per report of the psychiatrist, the claimant had lost his mental ability. He has further stated that the disability suffered by the claimant due to accident cannot be cured in future at any place. 11. Heeramani Soni, AW 4, wife of the injured-claimant, who had filed the claim case on behalf of her husband/claimant, has defined the injuries sustained by her husband. She has stated that in the accident her husband/claimant has lost his memory and has been removed from the job. 12. However, the respondents did not adduce any evidence in support of this case. 13. While assessing the compensation, especially under the Motor Vehicles Act, the Tribunals are statutorily responsible for fixing a compensation which should be just and proper, commensurate with the injury or loss, as the case may be, suffered by the claimants. Although compensation for loss of limbs or life cannot be weighed in golden scales, it has to be kept in mind that compensation is not expected to be a windfall for the victim/claimant. Although compensation for loss of limbs or life cannot be weighed in golden scales, it has to be kept in mind that compensation is not expected to be a windfall for the victim/claimant. It should be 'just' and not a bonanza; not a source of profit, but at the same time, should not be a pittance. There can be no straightjacket formula governing all the cases for measuring the value of human life or limbs in terms of money. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any, of each case. Every method or mode adopted for assessing compensation has to be considered in the background of 'just' compensation which is the pivotal consideration. Though a wide discretion is vested in Claims Tribunal in respect of awarding compensation, but such assessment/determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just' denotes equitability, fairness and reasonableness and non-arbitrariness. If it is not so, it cannot be just. 14. In the case on hand, the Tribunal without proper appreciation of the pleadings and evidence in a mechanical manner has awarded a sum of Rs. 39,785/- which is shocking and disproportionate to the damage suffered by the claimant. The finding recorded by the Tribunal for awarding such compensation is per se erroneous and perverse. 15. Considering the facts and circumstances of the case, in particular the statements of witnesses, medical certificates, Exhs. P3 and P13, and the statement of Dr. G.D. Agrawal, AW 3, the claimant has successfully proved that on account of the accident apart from other injuries he has suffered loss of vision in his right eye and diminution of vision in left eye to the extent of 6/18, his permanent disability is 75 per cent and he has also lost his memory. The claimant has also proved that after the accident he was immediately removed from service by giving him three months' salary. In such a case, though the permanent disability is 75 per cent, but the loss of earning capacity of the claimant is 100 per cent. 16. Claimant has pleaded and proved his monthly income as Rs. 6,110/-, which comes to Rs. 73,320/- per annum. In such a case, though the permanent disability is 75 per cent, but the loss of earning capacity of the claimant is 100 per cent. 16. Claimant has pleaded and proved his monthly income as Rs. 6,110/-, which comes to Rs. 73,320/- per annum. Though multiplier method cannot be mechanically applied to ascertain the future loss of income or earning power, however, depending on various factors such as nature and extent of disablement, avocation of the injured, whether it would affect his or her employment or earning power, the loss of income or earning may be ascertained by applying the same multiplier as provided under the Second Schedule to the Motor Vehicles Act, 1988 (in short 'the Act'). In the present case, as already held supra, the loss of earning capacity of the claimant is 100 per cent. Thus keeping in view this aspect of the case, considering the age of the claimant and his annual income (Rs. 73,320/-) and applying the multiplier of 14, total loss of earning capacity comes to Rs. 10,26,480/-. 17. Undisputedly, the claimant has suffered disability to the extent of 75 per cent, thereby depriving him of reasonable enjoyment in life. He has undergone treatment for a long period and suffered pain and mental agony. It is really difficult to assess the exact amount of compensation for the pain and agony suffered by him. No amount of compensation can restore the physical frame of the claimant. That is why it has been said by the Apex Court in plethora of cases that wherever any amount is determined as compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate, because it is impossible to equate the money with the human suffering and personal deprivations. Money cannot renew a broken and shattered physical frame. 18. Under the facts and circumstances of the case, considering the nature and extent of injury, age of the claimant, the period of his hospitalisation and the fact that even after discharge from hospital he was taking treatment for the injuries suffered in the accident as an outdoor patient, in the opinion of this court the claimant is entitled for compensation in the following manner: 19. In view of what has been discussed above, the injured-claimant is held entitled for compensation of Rs. 12,21,265/- (Rs. 10,26,480 + Rs. In view of what has been discussed above, the injured-claimant is held entitled for compensation of Rs. 12,21,265/- (Rs. 10,26,480 + Rs. 1,94,785) and since the Claims Tribunal has already awarded Rs. 39,785/-, after deducting the same the claimant is entitled for enhancement of Rs. 11,81,480/- with interest at the rate of 6 per cent per annum from the date of filing of claim petition till realization. 20. The insurance company is directed to deposit the entire amount of compensation with the Tribunal within two months from today. 21. As regards disbursement of amount of compensation, the Tribunal shall disburse the amount in favour of the claimant in accordance with the guidelines of the Apex Court in the matter of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, (1994) 2 SCC 176 . In the result, the appeal is allowed and the award impugned is modified to the extent indicated above.