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Himachal Pradesh High Court · body

2014 DIGILAW 228 (HP)

Chandra Wati v. Tek Chand

2014-03-21

MANSOOR AHMAD MIR

body2014
JUDGMENT Mansoor Ahmad Mir, Acting Chief Justice. Appellant has questioned the award, dated 20th May, 2006, passed by the Motor Accident Claims Tribunal (III) Shimla, (hereinafter referred to as "the Tribunal"), in MAC Petition No. 55-S/2 of 2005/02, titled as Smt. Chandra Wati versus Sh. Tek Chand and others, whereby compensation to the tune of ` 3,00,000/- came to be awarded in favour of the claimant-appellant and against respondent No. 3-Oriental Insurance Company, with interest @ 7.5% per annum from the date of the claim petition till its realization, (for short "the impugned award"), on the ground of adequacy. 2.Rajneesh Tandon/owner/insured, Tek Chand/driver of the offending vehicle and Oriental Insurance Company Ltd./insurer have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them. It is worthwhile to mention herein that even they have not filed cross-objections to the appeal. Thus, the only question to be determined in this appeal is: whether the compensation awarded is adequate or inadequate? Brief Facts: 3.In order to determine the issue, it is necessary to give a flash back of the case, the womb of which has given birth to the instant appeal. 4.Smt. Chandra Wati/claimant/injured has invoked jurisdiction of the Tribunal, in terms of the mandate of Chapter-XII, contained in Motor Vehicles Act, 1988, (for short "the Act"), being victim of the vehicular accident, for grant of compensation to the tune of ` 11,45,350/- with interest @ 12% per annum, as per the break-ups given in the claim petition. 5.The claimant/appellant has pleaded in the claim petition that driver Rajneesh Tandon has driven vehicle-bus bearing registration No. HP-02-8314, rashly and negligently on 30th July, 2001, in which she was traveling and caused accident near Kararaghat, at about 10.45 a.m. She sustained injuries, which rendered her permanently disabled. FIR No. 37/2001, under Sections 279, 337 and 338 of the Indian Penal Code was registered in Police Station, Darlaghat. She has further stated that she has suffered multiple grievous injuries, fracture of back bone and spinal joint dislocation, which has made her life miserable. She is not in a position to walk and move for domestic works and even to urinate. She was under treatment in Government Primary Health Centre, Darlaghat, was referred to IGMC, Shimla and then to PGI Chandigarh and remained admitted in PGI for four days. She is not in a position to walk and move for domestic works and even to urinate. She was under treatment in Government Primary Health Centre, Darlaghat, was referred to IGMC, Shimla and then to PGI Chandigarh and remained admitted in PGI for four days. She was under treatment of so many doctors and has spent about `1,18,500/- on her medical treatment and has to incur `1 ,40,000/- for her future treatment. She had to engage an attendant. 6.The respondents contested the claim petition on the grounds taken in their objections Following issues came to be framed by the Tribunal on 25.7.2003: 4. Whether the vehicle in question was being driven in violation of the provisions of the M.V. Act and terms and conditions of insurance policy, if so, its effect?OPR-3 5. Relief." 7.Claimant examined her witnesses and also appeared herself in the witness box.Respondents also examined their witnesses. 8. After scanning the evidence, the Tribunal made the impugned award and awarded compensation to the tune of `3,00,000/- with interest @ 7.5% per annum to the claimant from the date of the petition till its realization. Issues No. 1, 3 & 4 9.The findings returned on these issues are not in dispute and have not been questioned either by the insurer/Insurance Company or insured/owner or driver. Thus, the findings returned by the Tribunal on these issues are upheld.Issue No. 2 10.The insurer, insured/owner and driver have not questioned the findings returned on this issue, but only the claimant has questioned it, so far adequacy of compensation is concerned. 11.The claimant has proved by leading oral as well as documentary evidence that she became victim of the vehicular accident, suffered multiple grievous injuries, fracture of spinal cord and became permanently disabled, which has made her life miserable and dependant. The Tribunal, no doubt, held that the claimant/petitioner, who is suffering from 45% permanent disability, has lost the charm of her life; undergone shooting pain; had to employ an attendant and has to suffer through out her life. It is apt to reproduce para-10 of the impugned judgment herein below: "10. The above discussed evidence suggests that the petitioner suffered 45% disability with respect to her whole body and according to PW2 Dr. D.C. Chauhan the petitioner will have to dependent on others throughout her life and will have to suffer great pain. It is apt to reproduce para-10 of the impugned judgment herein below: "10. The above discussed evidence suggests that the petitioner suffered 45% disability with respect to her whole body and according to PW2 Dr. D.C. Chauhan the petitioner will have to dependent on others throughout her life and will have to suffer great pain. According to the petitioner now she has employed one attendant to look after her to whom she pays a sum of ` 1500/- P.M. To support her contention she examined PW4 Smt. Chinta who proved the salary receipts Ex P6 to P32 and has stated that she had been getting salary at the rate of ` 1500/- P.M. from the petitioner." 12.The Tribunal also held that the petitioner is entitled to ` 75,000/- under the head of medical expenses and transport charges. 13.It is astonishing and shocking to note that the Tribunal, without thrashing and marshaling out the facts of this case, granted compensation to the claimant, as per the judgment of this Court in Nirmala Devi versus HRTC reported in Latest HLJ 2003, 504, which is an eye opener for the said judge, how casually he has dealt with the case. 14.I have gone through the impugned award. The Tribunal has awarded a meager amount while ignoring the injuries suffered by the claimant/victim and affect of the said injuries, which has made her life miserable and dependant throughout her life. The said injuries also destroyed her matrimonial home, snatched the amenities and charm of her life and she has to be dependent on others throughout her life. She has undergone pain and suffering and has to undergo it forever. Not only this, it has also affected her privacy. 15.Now, the question is how to grant compensation in such injury cases. The concept of granting compensation is outcome of Law of Torts. The Tribunals, while examining a case of an injured and awarding compensation to him/her, have to do some guess work, sympathetically, keeping in view the fate and physical frame of the injured/victim. 16.The Apex Court in case titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755 , had discussed all aspects and laid down guidelines how a guess work is to be done and how compensation is to be awarded under various heads. 16.The Apex Court in case titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755 , had discussed all aspects and laid down guidelines how a guess work is to be done and how compensation is to be awarded under various heads. It is apt to reproduce paras 9 to 14 of the judgment hereinbelow: "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 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 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 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. 10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the 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 sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. 11. Money cannot renew a broken and shattered physical frame. 11. In the case Ward v. James, 1965 (1) All ER 563, it was said: "Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best they can and give him what they think is fair. No wonder they find it well- nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money." 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 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 standards. 13. This Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376 , in connection with the Fatal Accidents Act has observed (at p. 380): "In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable." 14. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said :-"Non-pecuniary loss : the pattern.Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said :-"Non-pecuniary loss : the pattern.Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases." 17.The said judgment was also discussed by the Apex Court in case titled as Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, reported in 2010 AIR SCW 6085, while granting compensation in such a case. It is apt to reproduce para-7 of the judgment hereinbelow: "7. 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 in so far 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 some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases - and that is now recognized mode as to the proper measure of compensation - is taking an appropriate multiplier of an appropriate multiplicand." 18.The Apex Court in case titled as Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011 AIR SCW 4787 also laid down guidelines for granting compensation. It is apt to reproduce paras 8 & 9 of the judgment hereinbelow: "8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper. 9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case." 19.The Apex Court in case titled as Kavita versus Deepak and others, reported in 2012 AIR SCW 4771 also discussed the entire law and laid down the guidelines how to grant compensation. It is apt to reproduce paras 16 & 18 of the judgment herein below: "16. It is apt to reproduce paras 16 & 18 of the judgment herein below: "16. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , this Court considered large number of precedents and laid down the following propositions: "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 or the 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. The heads under which compensation is awarded in personal injury cases are the following:"Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, 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 earning 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). (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." 17 .................. 18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, 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 inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses." 20.Admittedly, the claimant/victim was a house wife, who was maintaining her family, domestic home, looking after cows and selling milk; her income was about `5,000/- per month and was of the age of 55 years at the time of accident. This fact is not denied by the other side nor there is a rebuttal. 21.Even otherwise, a domestic wife is the backbone of a home, maintaining the domestic home and takes all steps to keep her husband, children and other family members united, in good health and joyous mood. If anyone has to engage a helper for domestic help, the minimum wages which has to pay, is not less than `3,000/- per month plus clothing and food. She has not only been deprived of the income from domestic work, but also lost her income by maintaining cows and selling milk. If anyone has to engage a helper for domestic help, the minimum wages which has to pay, is not less than `3,000/- per month plus clothing and food. She has not only been deprived of the income from domestic work, but also lost her income by maintaining cows and selling milk. It is unrebutted, as discussed by the Tribunal in the impugned award, that she has become permanently disabled, helpless, hapless and a burden on others, has to suffer 45% permanent disability throughout her life and has lost her income, which was about `5,000/- per month. The Tribunal also held that due to her dependency on others, she engaged a helper, to whom she is paying `1500/- per month. She has produced that lady Smt. Chinta as a witness, who has proved and stated that she is receiving `1 500/- per month from the claimant as wages. 22.The Tribunal awarded `75,000/- under the head of pain and suffering, which is too meager, while taking the physical frame of the claimant and other factors in consideration and in view of the judgments of the Apex Court, referred hereinabove, read with the judgment of the Apex Court in case titled as Nizam's Institute of Medical Sciences versus Prasanth S. Dhananka & others, reported in 2009 AIR SCW 3563. 23.Keeping in view the ratio and guidelines laid down in the judgments of the Apex Court, supra read with the facts of this case, I deem it proper to award `3,00,000/- to the claimant under the head of pain and suffering. 24.The Tribunal has awarded `75,000/- under the head of medical expenses while taking note of Nirmala Devi's case, supra. Neither the insurer nor insured has questioned the same.Though, the claimant has claimed `1,18,000/- under the head of medical expenses. I am of the considered view that `75,000/- under the head of medical expenses is just and proper. 25.The Tribunal has lost sight of the fact that she has to undergo treatment and pain throughout her life. She was also entitled for compensation under the head of future treatment and some guess work was required to be done, which the Tribunal has not done. Keeping in view the discussion made hereinabove and the ratio laid down in the judgments of the Apex Court, supra, I deem it proper to grant `75,000/- under the head of expenses on future treatment. Keeping in view the discussion made hereinabove and the ratio laid down in the judgments of the Apex Court, supra, I deem it proper to grant `75,000/- under the head of expenses on future treatment. 26.The Tribunal has awarded `75,000/- for loss of enjoyment of life, which is also too meager. The Tribunal has lost sight of an important fact that the injured-claimant is not in a position to walk, urinate and enjoy matrimonial relationship. It has affected her ravishly throughout her life. So, keeping in view the judgments of the Apex Court, supra, the minimum amount to which the claimant is entitled and which I deem proper to grant, under the head of loss of amenities and enjoyment of life, is `1 ,50,000/-. 27.It is averred in the claim petition that the claimant was of 55 years of age at the time of accident.This fact is not disputed and medical record also disclosed that she was 55 years of age at the time of accident. 28.Keeping in view the ratio laid down by the Apex Court in case titled as Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex Court in case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR (SCW) 3120, multiplier of 8' is applied, which is just and proper for ascertaining the loss of future income and for payment of charges under the head of dependency. Thus, the claimant is entitled to ` 5,000 x 12 = `60,000/- x 8 = `4,80,000/- under the head of future income and `1500 x 12 = `1 8,000 x 8 = `1 ,44,000/- under the head of wages of helper. 29.The petitioner is also entitled for transport charges.Though, she has produced some bills amounting to `8300/-.Admittedly, she had to go from Darlaghat to Shimla when she was referred to IGMC, Shimla and thereafter, from Shimla to Chandigarh when she was referred to PGI, Chandigarh and must have spent a lot of money on transport. After doing the guess work, the claimant is held entitled to at least `20,000/- under the head of transport charges. After doing the guess work, the claimant is held entitled to at least `20,000/- under the head of transport charges. 30.I have delivered a similar judgment, while I was Judge of the High Court of Jammu and Kashmir, in which case, I have dealt with and discussed almost all law applicable, at that time. That case is titled as United India Insurance Company Limited versus Radhika & others, CIMA No. 213/2008, decided on 17.3.2010. Keeping in view ratio laid down in the said judgment, the claimant is also entitled to claim charges under the head of special diet and other charges. So, I deem it proper to grant at least `1 0,000/- under the head of special diet. 31.Thus, the claimant is entitled to `3,00,000/- under the head of pain and suffering; `75,000/- under the head of expenses on medical treatment; `75,000/- under the head of expenses on future treatment; `1 ,50,000/- under the head of loss of amenities and enjoyment of life; `4,80,000/- under the head of future income; `1 ,44,000/- under the head of wages of helper; `20,000/- under the head of transport charges and `10,000/- under the head of special diet, total amounting to ` 12,54,000/- with interest at the rate of 7.5% per annum from the date of the claim petition till its realization, except ` 4,80,000/- under the head of future income, ` 75,000/- under the head of expenses on future treatment and `1 ,44,000/- under the head of wages of helper. The claimant is also entitled to interest @ 7.5% per annum on the rest amount, i.e. `4,80,000/-under the head of future income, ` 75,000/- under the head of expenses on future treatment and `1 ,44,000/- under the head of wages of helper, total amounting to `6,99,000/-, from the date of the impugned award, i.e. 20th May, 2006, till its realization. 32.The enhanced amount be deposited within 60 days before the Registry of this Court. 33.The amount of compensation is enhanced and impugned award is modified. Appeal is allowed, as indicated above.