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2014 DIGILAW 343 (CHH)

Kamal Kumar Miri v. Ramratan Sahu

2014-09-11

GOUTAM BHADURI

body2014
Order Goutam Bhaduri, J. 1. This is an appeal by the claimant/injured against the award dated 20.04.2011 passed in Claim Case No. 95/2009 by the Court of First Additional Motor Accident Claims Tribunal, Raipur, whereby as against the claim of Rs. 7,15,000/-, total award of Cr. A. No. 2,19,800/- was passed. 2. The brief facts, as was pleaded by the claimant, are that on 27.03.2009 at about 9 O'clock the claimant was going from Bilaspur to Raipur on his Minidor bearing registration No. C.G. 04/3379. At that relevant time, the Scorpio vehicle bearing No. K.L. 19/1333 which was coming from Raipur towards Bilaspur in a rash and negligent manner lost his control and leaving its side dashed the vehicle of the applicant. By such impact, three persons died on the spot while the applicant was severely injured. The applicant/claimant was immediately admitted to the CIMS Hospital, Bilaspur, and the report was made at Police Station - Nandghat. It was pleaded that the offending vehicle was being driven by the non-applicant No. 1, Ramratan Sahu and was owned by T. Chillan, the non-applicant No. 2, and was insured with the non-applicant No. 3. It was stated that by such impact the applicant sustained severe multiple injuries on his right leg and at four places the rod was inserted while on the left leg fracture was caused. It was further stated that by such impact of accident, the applicant had sustained severe injuries on his waist and head. It was further stated that the applicant was initially admitted to the CIMS Hospital and thereafter, he was shifted to Hospital at Devendra Nagar, Raipur and there he was admitted for 1½ months. It was further submitted that at the time of accident the applicant was earning Rs. 6000/- per month and because of the accident due to physical injury, he has completely lost his capacity to earn. Thereby, an amount of Rs. 7,15,000/- was claimed. 3. In reply to the averments of the claim petition, the non-applicant No. 1 & 2 had stated that no accident had occurred but on the false averments the case has been filed. Likewise, the non-applicant No. 3, the insurance company, stated in their reply that at the relevant time though the vehicle was insured but the accident did not happened. 4. The learned Tribunal after examining all the evidence has passed an award of Rs. Likewise, the non-applicant No. 3, the insurance company, stated in their reply that at the relevant time though the vehicle was insured but the accident did not happened. 4. The learned Tribunal after examining all the evidence has passed an award of Rs. 2,19,800/-, out of which Rs. 1,10,000/- was given for medical, special diet & conveyance expenses, Cr. A. No. 10,000/- was awarded for pain & suffering, Rs. 9000/- was awarded for loss of future earning and Rs. 40,800/- was awarded on the head of pecuniary loss and for non-pecuniary loss Rs. 50,000/- was awarded; thereby total amount of Rs. 2,19,800/- was awarded. 5. The learned counsel appearing on behalf of the claimant/applicant would submit that the occupation of the applicant was Driver. He further stated that according to the Doctor who has been examined in this case, the applicant has completely lost his capacity to earn as a driver and therefore the functional disability was to the extent of 100%. He would further submit that the Doctor has categorically stated that due to non-union of the bone applicant had become disable and he has to move with the support. In such context, he would submit that it will amount to 100% loss of earning capacity as driver. He therefore contended that award of compensation to the extent of Rs. 40,800/- is too meager and prays for suitable enhancement and re-computation of the same. 6. No representation is made on behalf of the respondents, despite the matter being passed over suo moto for six times for 3 days. 7. I have heard the learned counsel appearing for the appellant and perused the documents on record. 8. No appeal has been preferred by any of the respondents. There is no challenge as to the finding about the rash and negligent driving which has been held by the learned Tribunal. In absence of such challenge, the said finding is affirmed. 9. Further, I have gone through the entire papers and perusal of the statement of the applicant would reveal that he has stated that he was working as driver and was getting a salary of Rs. 6,000/- per month. He has further stated that after the accident, he is not able to discharge his job as he sustained 50% permanent disability. This witness has exhibited two documents i.e., certificate of disability, which is marked as Ex. P-168 and Ex. P-169. 6,000/- per month. He has further stated that after the accident, he is not able to discharge his job as he sustained 50% permanent disability. This witness has exhibited two documents i.e., certificate of disability, which is marked as Ex. P-168 and Ex. P-169. In both the certificate, the photograph of the claimant is also attached wherein in one photograph it is shown that he is standing with the support of a person and in other photograph, he is shown to be standing with the support of Crutch. The photograph shows that the left leg of the claimant/applicant is totally distorted and had appears to be defunct. 10. Now on examination of the statement of Dr. P.K. Gupta (AW-2), he has stated that he had examined the applicant and according to him, the permanent disability was to the extent of 50%. Further, he has stated that for such disability to the leg, the applicant could not move without a support, as the bones had not united and also he will not be able to drive the vehicle properly. In the cross-examination, the witness has stated that he himself has treated the applicant and because of the non-union of the bone, the disability was found to be 50%. He further stated that the disability caused because of gangrene of the bone and the leg had become stiff. Therefore, on such statement of the Doctor as also the examination of disability certificate along-with photograph which is marked as Ex. P-168, it reveals that the permanent disability was caused to the extent of 50%. 11. It is a settled law that the compensation in personal injury cases should be determined under the following heads. 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). 12. (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). 12. Here the evidence would go to show the nature of injury, which is corroborated by the medical evidence and therefore loss relating to future medical expenses, loss of amenities, loss of expectation of life become predominant. Certainly the loss cannot be measured at all the time in terms of money but if an individual is disabled as a result of road accident, the cost of treatment, care and rehabilitation is likely to be high. Therefore, the award of compensation made by the learned Tribunal whether is just and reasonable or whether the claimant is entitled to enhance compensation, it has to be determined in view of the evidence as has been discussed herein before. Here the evidence is on record that the appellant/claimant has produced substantive evidence to prove that as a result of accident, he had suffered the disability resulting thereby he cannot move without support of attendant and the Doctor has also fortified the same. 13. The Hon'ble Supreme Court in case of Govind Yadav vs. New India Insurance Company Limited, (2011) 10 SCC 683 while considering the principles under which the pecuniary compensation is to be granted has held in para 11 as under: "11. 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." 14. 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." 14. The Hon'ble Supreme Court while adjudicating the quantum of compensation has reiterated the law laid down in Raj Kumar vs. Ajay Kumar & Another, (2011) 1 SCC 343 and has held that 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. 15. Therefore, keeping these principles, the award made by the learned Tribunal is reassessed. As per the pecuniary loss is concerned, the evidence is on record that the claimant could not join his duties for 3 months and the learned Court below has granted a pecuniary loss of Rs. 9,000/- by arriving at a finding that the income of the claimant was Rs. 3,000/- per month. In opinion of this Court considering the evidence such amount of income of Rs. 3,000/- per month is also affirmed. Therefore the amount of loss on the basis of income per month to assessed to Rs. 9,000/- appears to be correct. On account of medical expenses, the learned Tribunal has granted Rs. 1,10,000/-. The same is also found to be based on the evidence and accordingly considering the evidence on record, the same is also maintained. 16. Now coming to the loss of future earning on account of permanent disability, it has been stated that the applicant cannot perform his job of driver, which is also evident from the disability certificate and the photograph as also from the statement of the applicant and the doctor. 16. Now coming to the loss of future earning on account of permanent disability, it has been stated that the applicant cannot perform his job of driver, which is also evident from the disability certificate and the photograph as also from the statement of the applicant and the doctor. Therefore, for the loss of future earning as driver, it could be taken to be loss to the extent of 100%, however, the Court cannot ignore the fact that apart from driving, the applicant can adopt other profession and therefore considering the same that the applicant can resort to other avocation, the permanent disability is not computed as 100% functional disability. Instead considering the functional disability, it is computed to 50% as that of permanent disability. It has been held that the applicant was earning Rs. 3,000/- per month. Therefore, the annual income would come to Rs. 36,000/- and taking the totality the functional permanent disability to the extent of 50%, the amount of loss is computed to Cr. A. No. 18,000/-. The evidence is on record that at the time of accident the applicant was aged about 27 years. Therefore, following the law laid down in Smt. Sarla Verma & Others vs. Delhi Transport Corporation & Another, (2009) 6 SCC 121 , the multiplier of 17 would be applicable. Therefore, the future loss is computed to Rs. 3,06,000/. 17. Considering the nature of injury and the disability, the expenses of future medical cannot be ruled out. Therefore, on the future medical expenses, I deem it proper to further grant an amount of Rs. 25,000/-. Now for non-pecuniary damages, the learned Court has granted Rs. 10,000/- for pain & suffering and trauma. Under this head, considering the nature of injury & suffering of appellant, I deem it proper to reassess the same as Rs. 25,000/-. The learned Tribunal has granted Rs. 50,000/- for loss of amenities, which appears to be just and proper and the same is not disturbed. Therefore, the entire assessment is reassessed as under: (i) Loss of earning during treatment Rs. 9,000/- (ii) For medical expenses (as awarded) Rs. 1,10,000/- (iii) For pain & suffering Rs. 25,000/- (iv) Loss for future earning Rs. 3,06,000/- (v) Loss of amenities (as awarded) Rs. 50,000/- Total Rs. 5,00,000/- Thus the total compensation will be Rs. 5,00,000/-. After deducting Rs. 2,19,800/- as awarded by the Tribunal, the enhancement would be Rs. 2,80,200/-. 9,000/- (ii) For medical expenses (as awarded) Rs. 1,10,000/- (iii) For pain & suffering Rs. 25,000/- (iv) Loss for future earning Rs. 3,06,000/- (v) Loss of amenities (as awarded) Rs. 50,000/- Total Rs. 5,00,000/- Thus the total compensation will be Rs. 5,00,000/-. After deducting Rs. 2,19,800/- as awarded by the Tribunal, the enhancement would be Rs. 2,80,200/-. 18. In the result, the appeal is allowed. The claimant will be entitled to the said sum of Rs. 2,80,200/- in addition to what is already awarded by the Claims Tribunal with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of realization. No order as to costs. Appeal allowed.