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2014 DIGILAW 31 (JK)

New India Assurance Co. Ltd. v. Pushpa Devi

2014-02-03

JANAK RAJ KOTWAL

body2014
1. This is an appeal in a Motor Accident Claim case. 2. Heard. I have perused the record. 3. On 16.11.2003, Govind Ram (now deceased) was hit by a Bus bearing registration No. JK02D-8559 at Akhnoor. He suffered multiple injuries, which caused him 65 per cent permanent disability. He filed a claim for compensation under section 166 of the Motor Vehicle Act (for short the Act) before the learned Motor Accident Claims Tribunal, Jammu (for short the Tribunal). The Tribunal after inquiry, vide judgment and order dated 27.06.2008 found that accident had occurred due to negligence of the driver of the offending bus and awarded a compensation of Rs. 6, 72, 926 to the claimant. Since the offending bus was insured with the appellant-Insurance Company for third party risk so the Tribunal imposed liability of satisfying the award on the appellant. Appellant has assailed the judgment and order passed by the Tribunal in this appeal. Claimant/respondent No. 1 passed away during pendency of the appeal and his legal representatives have been impleaded as respondents in his place. 4. Appellant's grievance against the impugned judgment is limited only to the quantum of compensation awarded by the learned Tribunal. It has been contended that compensation awarded by the learned Tribunal is highly excessive and inflated. Mr. R. K. Gupta, learned senior counsel, appearing on behalf of the appellant submitted that monthly income of the claimant has been wrongly taken as Rs. 6,000, which should have been taken as Rs. 4,000 only. No deduction on account of personal expenses of the claimant has been made. Compensation of Rs. 58,126, under the head `medical expenses', has been awarded without any material on record. Learned counsel would say further that compensation of Rs. 50,000/ each under the heads "pain and sufferings" and "loss of amenities" is excessive. Learned counsel argued that under the schedule appended to section 163-A of MV Act, permissible compensation for pain and suffering in a case of grievous injury is Rs. 5,000/ only, whereas no compensation for loss of amenities of life is provided under the schedule. Besides, Mr. R. K. Gupta contended that since it was a case of personal injuries, with the death of the injured/claimant, the claim for non-pecuniary damages has abated and compensation to that extent cannot be paid to the legal representatives. Dilating his point, Mr. 5,000/ only, whereas no compensation for loss of amenities of life is provided under the schedule. Besides, Mr. R. K. Gupta contended that since it was a case of personal injuries, with the death of the injured/claimant, the claim for non-pecuniary damages has abated and compensation to that extent cannot be paid to the legal representatives. Dilating his point, Mr. Gupta would say that legal representative of the deceased claimant are not entitled to receive non pecuniary damages under the award. He would also say that the legal representatives of deceased claimant are entitled to receive only loss to estate suffered by the deceased, that is, the compensation under the head "medical expenses" and loss of earnings up to the time of the death of the deceased. Mr. Gupta placed reliance upon S. Vykumtam (died) per L.Rs. v. G. Naryana and others, 2008 ACJ 40. 5. Per contra, Mr. D. K. Khajuria, ld. Counsel earlier appearing for the claimant and after his death for his legal representatives, supported the award. He submitted that the rate of compensation, whatsoever, provided under schedule to section 163-A of MV Act is not applicable to the claim under section 166 of the Act. Mr. Khajuria also sought to project that learned Tribunal rather has assessed the compensation on lower side and has wrongly applied multiplier of 11 against prescribed multiplier of 15. Mr. Khajuria in support of his submissions also referred to the cross objections filed by the claimant. Mr. Khajuria also submitted that question of abetment does not arise in an appeal by the Insurance Company against the deceased claimant who has earned the award in his favour. 6. Before taking up the question relating to the fairness of the amount of compensation awarded by the learned Tribunal, question relating to the abatement raised on behalf of the appellant needs to be taken first. 7. I have accorded my consideration to rival contentions in this regard and perused the case law relied upon by Mr. Gupta, learned counsel for the petitioner. 8. Contention raised by Mr. Gupta seems bit illogical and is hardly attracted to the facts and circumstances of the present case. Question of survival of relief/abetment of relief sought by an injured/claimant in a Motor Accident claim after his death would arise in the claim petition. Gupta, learned counsel for the petitioner. 8. Contention raised by Mr. Gupta seems bit illogical and is hardly attracted to the facts and circumstances of the present case. Question of survival of relief/abetment of relief sought by an injured/claimant in a Motor Accident claim after his death would arise in the claim petition. It can also arise in an appeal filed by the claimant because for that the appeal would be treated as continuation of the claim petition. The question arising in that case would be to what extent the claim survives the death of the injured and to what extent it abates. The position, however, would be different after passing of the award in favour of the injured. With the passing of the judgment/award by the Claims Tribunal in favour of an injured/claimant the award amount becomes payable to him immediately after the date of judgment/award. The amount therefore, became part of his estate, which is inheritable by his legal representatives after his death. 9. In this case, the payment under the award got postponed due to filing of the appeal by the Insurance Company so, but for the modification in the award amount in appeal, appellant cannot derive any benefit due to death of the deceased by invoking the concept of abetment of relief. Since the entire award amount has become a part of the estate of the deceased (claimant) and is inheritable by his legal representatives so cause of action in the appeal survives in favour of his legal representatives, who, therefore, have already been substituted as appellants in his place. 10. On this question, it is useful to refer to the case law in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankuty Nair, 1986 ACJ 440(SC). That case pertained to a suit for deformation in which as per section 306 of the Indian Succession Act read with Rules 1 and 11 of order 22 of the Code of Civil Procedure, cause of action does not survive the death of the appellant. Their Lordships of the Supreme Court have held: "7. That case pertained to a suit for deformation in which as per section 306 of the Indian Succession Act read with Rules 1 and 11 of order 22 of the Code of Civil Procedure, cause of action does not survive the death of the appellant. Their Lordships of the Supreme Court have held: "7. Where a suit for defamation is dismissed and plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff. 9. The position, therefore, is that had the appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the district court, the appeal would have equally abated because his suit had been dismissed by the trial court. Had he, however, died during the pendency of the second appeal filed by the respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As, however, High Court allowed the second appeal and dismissed the suit, the present appeal by special leave must abate because what the appellant was seeking in this appeal was to enforce this right to sue for damages for defamation. This right did not survive his death and accordingly the appeal abated automatically on his death and his legal representative acquired no right in law to be brought on the record in his place and stead." 11. In S. Vykumtam (supra) relied upon by Mr. This right did not survive his death and accordingly the appeal abated automatically on his death and his legal representative acquired no right in law to be brought on the record in his place and stead." 11. In S. Vykumtam (supra) relied upon by Mr. Gupta, the appeal was filed by the claimant who was aggrieved of award of compensation of Rs. 10,000 by the Tribunal as against the Rs. 40,000 claimed by him for injuries sustained by him. The claimant had died during pendency of his appeal before the High Court and question of abetment had arisen thus. Finding recorded by the High Court of Andhra Pradesh after referring to some case law including Melepurath Sankunni Ezhuthassan (supra) is as under: "8. In the light of the views expressed by this court referred to supra, this court is of the considered opinion that the legal representatives of the injured even after the death of the injured during the pendency of this appeal are entitled to further prosecute the appeal, to the specified extent of loss of estate and nothing far and nothing beyond. In the light of the facts and circumstances and also in view of the evidence adduced by the parties, both oral and documentary, this court is satisfied that it would be just and reasonable to fix Rs. 5,000 in addition to Rs. 10,000 already granted and as far as the enhanced amount of Rs. 5,000 is concerned, the appellants are entitled to only 7.5 per cent per annum interest." 12. The finding recorded by the High Court of Andhra Pradesh though lays down correct position of the law but would not apply to the case in hand because here the appeal is against the award passed in favour of the deceased claimant and not an appeal by the deceased. 13. Having held as above, the question as regards the fairness of the quantum of compensation awarded by the Tribunal is now taken up. Learned Tribunal has awarded compensation as per below Pecuniary damages Loss on account of permanent disability Rs. 5, 14,000/ Medical expenses Rs. 58,126/ Non-pecuniary damage Pains and sufferings Rs. 50,000/ Amenities of life Rs. 50,000/ Total Rs. 6, 72,926/ 14. Learned Tribunal has awarded compensation as per below Pecuniary damages Loss on account of permanent disability Rs. 5, 14,000/ Medical expenses Rs. 58,126/ Non-pecuniary damage Pains and sufferings Rs. 50,000/ Amenities of life Rs. 50,000/ Total Rs. 6, 72,926/ 14. It needs to be clarified that what has been covered under the head "loss on account of permanent disability" by the Tribunal as a matter of fact is the compensation for loss of future earnings due to the disability suffered by the claimant. 15. It is well settled that an injured victim of an accident is to be compensated for the loss of future earnings to be suffered on account of the bodily permanent disability suffered by him. Equally it is well settled that the percentage of the loss of future earnings on account of physical disability cannot be equated with the percentage of the disability of the body. Generally percentage of the loss of earning capacity and thereby the future earnings will be less than the percentage of disability though in some cases it may be higher than the percentage of disability. It is also well settled that percentage of disability of a particular limb (part of the body) cannot be equated with the percentage of disability of the whole body as the disability of the whole body generally is less than that of a particular limb (part of the body). 16. The assessment of future loss of earnings on account of the permanent disability of body has been discussed in detail and principle laid down by the Supreme Court recently in Raj Kumar v. Ajay Kumar and others, 2011 ACJ 1 . It is useful to refer and quote some important extracts from the judgment. In para 7 of the reporting in 2011 ACJ 1 , Their Lordships have observed: "7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45 per cent of the left lower limb, it is not the same as 45 per cent permanent disability with reference to the whole body. When a disability certificate states that the injured has suffered permanent disability to an extent of 45 per cent of the left lower limb, it is not the same as 45 per cent permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60 per cent permanent disability of the right hand and 80 per cent permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140 per cent (that is 80 per cent plus 60 per cent). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100 per cent." 17. In para 8, Their Lordships have observed: "8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45 per cent as the permanent disability, will hold that there is 45 per cent loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently 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 earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation [(see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. -- 2010 ACJ 2867 (SC) and Yadava Kumar v. Divisional Manger, National Insurance Co. Ltd. - 2010 ACJ 2713 (SC)]" 18. In para 10 Their Lordships have laid down a guiding principle for ascertaining the effect of the permanent disability of the body on the actual earning capacity, which needs to be followed by all the Tribunals. This reads: "10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability [sic disability] (this is also relevant for awarding compensation under the head loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60 per cent. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to driver or do carpentry." 19. Their Lordships in that case also dealt with the manner in which medical evidence as regards the disability has to be dealt with. In this regard, in para 12, their Lordships have held that "if a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with respect to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with respect to a limb, Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage." 20. In para 12, Their Lordship have observed: "The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed 14 local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability." 21. On evaluation of the evidence led by the claimant including the evidence of the doctors, PWs Dr. Lovi Padha, Associate Professor, Department of Orthopaedic, ASCOMS, Jammu and Dr. J. P. Singh, Associate Professor and HoD of Neuro Surgery, ASCOMS, Jammu and the Medical/Disability Certificate (Ex.PW-JPS) the learned Tribunal has found that the petitioner was 45 years old, he was a carpenter by profession and has taken his monthly income as Rs. 6,000/. 22. Having perused record on the Claim file, in particular the evidence adduced by the claimant, no reason is discernible for accepting appellant's contention that claimant's income as Rs. 6,000 has not been correctly fixed by the ld. Tribunal. As against the evidence that the claimant was a carpenter and was earning Rs. 7,000 to 8,000 per month, learned Tribunal has taking his monthly income as Rs. 6,000/. Neither the claimant's evidence has been rebutted by the appellant nor could it be convincingly explained by the learned counsel for the appellant as to how taking monthly income of a carpenter as Rs. 6,000 can be said to be on the higher side. Perusal of the impugned judgment and award at its page No. 5 would reveal that the learned Tribunal has taken note that claimant has been totally disabled and his neurological and orthopaedic deficit amounts to 65 per cent. Having taken the monthly income of the claimant as Rs. 6,000 can be said to be on the higher side. Perusal of the impugned judgment and award at its page No. 5 would reveal that the learned Tribunal has taken note that claimant has been totally disabled and his neurological and orthopaedic deficit amounts to 65 per cent. Having taken the monthly income of the claimant as Rs. 6,000, learned Tribunal has rightly reduced it propionate to the disability and has accordingly assessed the monetary loss suffered by him at Rs. 3900 per month and while applying multiplier of 11, calculated the yearly loss of Rs. 5, 14, 800. 23. No reason that loss of earning capacity suffered by the claimant would have been less than the percentage of disability suffered by him is discernible from the evidence/material available on record. On the other hand it could have been argued on behalf of the claimant that given the nature of injury/disability and having regard to his occupation, the loss of earning capacity might have been more than the extent of disability, which, however, has not been contended. Appellant's contention in this regard is, therefore, liable to be rejected. 24. Contention that no deduction on account of personal expenses of the claimant has been made is devoid of any merit. In determining the compensation for loss of future earnings, the income of the injured is reduced, having regard to the extent of disability and the occupation of the injured. Question of making deduction towards personal expenses need not be made because the injured nonetheless is alive and has to incur personal expenses. 25. It has been noticed that the learned Tribunal though, while awarding compensation for treatment expenses has not referred to evidence/material in this regard but sufficient material in this regard has been found available on the Claim file, which also contains a statement showing expenses of Rs. 58,126/- which is supported by copies of the bills. No material in rebuttal is available on the file. Compensation awarded under this head by the learned Tribunal, therefore, cannot be disturbed. 26. As regards the compensation under the heads pain and suffering and loss of amenities of life, contention of appellant cannot be accepted. To say precisely, schedule 2nd in MV Act applies to the payment of compensation sought on the basis of structural formula envisaged under section 163-A MV Act and not to a claim under section 166. 26. As regards the compensation under the heads pain and suffering and loss of amenities of life, contention of appellant cannot be accepted. To say precisely, schedule 2nd in MV Act applies to the payment of compensation sought on the basis of structural formula envisaged under section 163-A MV Act and not to a claim under section 166. Having perused the material on claim file including material as regards nature of injury suffered and treatment under gone by the claimant, appellant's contention that compensation awarded under these two heads is on higher side has not been found convincing. 27. Claimant (deceased, respondent No. 1) in his cross objections (Cross Appeal No. 09/2009) has assailed the application of the multiplier of 11 by the learned Tribunal. It is contended that claimant was in the age group of 40-45, so applicable multiplier was 15. Contention, however, is not tenable. Learned Tribunal has found that the claimant was 45. This means that he had completed 45 years and was, therefore, in the age group of 46-50. Applicable multiplier for this age group as per Sarla Verma's case is 13. Multiplier is required to be scaled down keeping in view the uncertainty of life and lump sum payment is to be made. Learned Tribunal, therefore, was correct in applying the multiplier of 11. 28. For all what has been said and discussed above, appeal is dismissed as without any merit. Likewise the cross appeal is also dismissed. 29. Award amount, if deposited in this court be paid to the claimant in consonance with the judgment and order of the learned Tribunal. 30. Record of the Tribunal be remitted back along with a copy hereof.