Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 1090 (ALL)

AJUL KUMAR (MINOR) v. RAJENDRA

2015-05-04

KRISHNA MURARI, PRATYUSH KUMAR

body2015
JUDGMENT : PRATYUSH KUMAR, J. 1. The instant appeal filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 1988 Act'), is directed against the judgment and award dated 25.9.2006 passed by Shri O.P. Agrawal, Motor Accident Claims Tribunal/Special Judge (E.C. Act), Jhansi in MACP No.312 of 2004 (Ajul Kumar v. Rajendra Prasad), seeking enhancement of the compensation amount. 2. Briefly stated the said claim petition was filed on behalf of appellant/claimant (hereinafter referred to as 'appellant') under Section 166 of the 1988 Act stating therein that the appellant was aged about 14 years, he was a student of Class VII. On 8.12.2003 at about 11 A.M. in front of Community Health Centre (CHC), Bangara, P.S. Ualdan, District Jhansi when the appellant was returning from Barat Pura on Tractor No. UP-93-J-9829, the driver of the tractor drove the tractor rashly and negligently and dashed with trolley attached with Escort Tractor No. U.P.-93-F-3622, in the accident three fingers of the appellant were severed. First, the appellant was treated at CHC, Mauranipur, thereafter at Medical College, Jhansi. On the treatment Rs. 30,000/- were spent. The appellant was a very brilliant student, after completion of studies he could have joined a very good service and earned a handsome amount, now he was physically disabled. Neither he would get any service nor he would be able to do any private business. Request has been made that a sum of Rs. 6,55,000/- along with interest be awarded against the driver, owner and insurer of the offending Tractor No. No. UP-93-J-9829. 3. Respondent/opposite party filed a written statement, whereby admitted the ownership of the said tractor. Other averments of the claim petition had been denied. In the additional pleas it has been stated that the respondent had purchased the tractor for agricultural purposes. It was never used for carrying any marriage party. No FIR about the accident had been lodged. The appellant has filed the claim petition on a concocted story, he has not suffered any permanent disability. 4. On the pleadings of the parties, two issues were framed during the final hearing, respondent absented and the learned tribunal recorded ex parte evidence. Hira Lal, PW-1, Yogendra Kumar Soni, PW-2 were examined. Thereafter, impugned judgment and award have been passed and appellant has been awarded Rs. 15,000/- as compensation along with 5% simple interest per annum. 5. 4. On the pleadings of the parties, two issues were framed during the final hearing, respondent absented and the learned tribunal recorded ex parte evidence. Hira Lal, PW-1, Yogendra Kumar Soni, PW-2 were examined. Thereafter, impugned judgment and award have been passed and appellant has been awarded Rs. 15,000/- as compensation along with 5% simple interest per annum. 5. Aggrieved with the judgment and award, the appellant have preferred the present appeal learned counsel Sri Vinod Kumar Soni, Advocate for the appellant has been heard at length. 6. On behalf of appellant, it has been argued that inadequate compensation has been awarded, 40% disability has not been taken into consideration. He submits that proper medical and other expenses have not been reimbursed, no amount has been added in the head of future prospects and physical pain and mental suffering. The impugned judgment and award are against material on record and law, they deserve to be set aside. 7. In support of the above arguments, learned counsel for the appellant has referred the following cases; 1. Sarla Verma and others v. Delhi Transport Corporation and another, 2009 Law Suit (SC) 613. In reference to determine of amount of compensation. 2. Neerupam Mohan Mathur v. New Indian Assurance Company, 2013 Law Suit (SC) 550. In reference to disability vis-a-vis loss of earning capacity. Before we start appreciating the arguments, we would like to refer the relevant paras whereupon reliance has been placed. In Sarla's Verma's case (supra) reliance has been placed and para nos. 17 and 24 of the report, they are quoted hereinunder:- "17. The Motor Vehicle Act, 1988 was amended by Act 54 of 1994, inter alia inserting Section 163-A and the Second Schedule with effect from 14.11.1994. Section 163A of the MV Act contains a special provision as to payment of compensation on structured formula basis, as indicated in the Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs. 3,000/- to Rs. 40,000/-. It does not specify the quantum of compensation in case the annual income of the deceased is more than Rs. 40,000/-. But it provides the multiplier to be applied with reference to the age of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs. 3,000/- to Rs. 40,000/-. It does not specify the quantum of compensation in case the annual income of the deceased is more than Rs. 40,000/-. But it provides the multiplier to be applied with reference to the age of the deceased. The table starts with a multiplier of 15, goes upto 18, and then steadily comes down to 5. It also provides the standard deduction as one-third on account of personal living expenses of the deceased. Therefore, where the application is under section 163A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is not specified with reference to the annual income of the deceased, or is more than Rs. 40,000/-, by applying the formula : (? x AI x M), that is two-thirds of 20 the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation. Several principles of tortious liability are excluded when the claim is under section 163A of MV Act. There are however discrepancies/errors in the multiplier scale given in the Second Schedule Table. It prescribes a lesser compensation for cases where a higher multiplier of 18 is applicable and a larger compensation with reference to cases where a lesser multiplier of 15, 16, or 17 is applicable. From the quantum of compensation specified in the table, it is possible to infer that a clerical error has crept in the Schedule and the 'multiplier' figures got wrongly typed as 15, 16, 17, 18, 17, 16, 15, 13, 11, 8, 5 & 5 instead of 20, 19, 18, 17, 16, 15, 14, 12, 10, 8, 6 and 5. Another noticeable incongruity is, having prescribed the notional minimum income of non-earning persons as Rs. 15,000/- per annum, the table prescribes the compensation payable even in cases where the annual income ranges between Rs. 3000/- and Rs. 12000/-. This leads to an anomalous position in regard to applications under Section 163A of MV Act, as the compensation will be higher in cases where the deceased was idle and not having any income, than in cases where the deceased was honestly earning an income ranging between Rs. 3000/- and Rs. 12,000/- per annum. Be that as it may. 24. This leads to an anomalous position in regard to applications under Section 163A of MV Act, as the compensation will be higher in cases where the deceased was idle and not having any income, than in cases where the deceased was honestly earning an income ranging between Rs. 3000/- and Rs. 12,000/- per annum. Be that as it may. 24. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died 26 on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could rely upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scale subsequent to the death and before 27 the final hearing should be taken note of for the purpose of determining the income for calculating the compensation." 8. In Neerupam Mohan Mathur case (supra) reliance has been placed on paragraph nos. 12 & 13 of the report, they are quoted hereinunder:- "12. The question regarding "Assessment of future loss of earnings due to permanent disability" was considered by this Court in Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 , wherein this Court held as follows: "8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 9. But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 9. 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% of the left lower limb, it is not the same as 45% 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% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). 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%. 10. 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, the 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% as the permanent disability, will hold that there is 45% 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. 11. 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. 11. What requires to be assessed by the Tribunal is the effect of the permanent 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 the 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. and Yadava Kumar v. National Insurance Co. Ltd.)" 13. In the present case, the percentage of permanent disability has not been expressed by the Doctors with reference to the full body or with reference to a particular limb. However, it is not in dispute that the claimant suffered such a permanent disability as a result of injuries that he is not in a position in doing the specialised job of designing, refrigeration and air conditioning. For the said reason, claimant's services were terminated by his employer but that does not mean that the claimant is not capable to do any other job including the desk job. Having qualification of B.SC degree and Post Diploma in Mechanical Engineering he can perform any job where application of mind is required than any physical work." 9. The appellant is not aggrieved with the finding recorded by the learned tribunal on issue no.1. His grievances relate to amount of compensation, on the ground that disability has been erroneously disbelieved and proper medical and other expenses have not been reimbursed and further no amount has been added on account of future prospects etc. The appellant is not aggrieved with the finding recorded by the learned tribunal on issue no.1. His grievances relate to amount of compensation, on the ground that disability has been erroneously disbelieved and proper medical and other expenses have not been reimbursed and further no amount has been added on account of future prospects etc. In paragraph no.5 of the impugned judgment, learned tribunal has noted that a disability certificate issued by the Medical Superintendent showing 40% permanent disability had been produced but the doctor who issued it, had not been examined. 10. Without examining of the doctor whether the learned tribunal was justified in not accepting percentage of permanent disability, it is to be seen by us. However, there is un-controverted oral evidence that the appellant had lost three fingers of his left hand due to accident. In the Workmen's Compensation Act, 1923, such loss of fingers has been quantified as 30% physical disability. Though according to the ratio laid down Neerupam's case (supra) there is a difference between physical difficulty and loss of earning capacity. Here, we have to judge whether the disability suffered by the appellant has resulted in any loss of earning capacity to the appellant. At the time of accident, the appellant was student, wherefore for loss of earning capacity, we have to look for his future. Apart from Government job, a person not having full use of two hands would find it difficult to persuade any private employer to take him into employment, at the same salary, which the employer is usually paying to other persons. Keeping in view this fact, we are of the opinion that in the present case, the loss of earning capacity suffered by the appellant be determined commensurate with the physical difficulty suffered by him. Thus the appellant had suffered 30% physical disability. Without examination of doctor there remains uncertainty whether disability is result of the injuries sustained during the accident. However, in the present case this uncertainty does not exist because oral evidence connects the disability with the accident. 11. Now the question arises what should be income of the appellant. Being non earner, the income of the appellant has to be determined notionally. In the II Schedule amount of Rs. 15,000/- per annum has been provided for the purpose. The Hon'ble Apex Court in the case of Laxmi Devi v. Mohd. 11. Now the question arises what should be income of the appellant. Being non earner, the income of the appellant has to be determined notionally. In the II Schedule amount of Rs. 15,000/- per annum has been provided for the purpose. The Hon'ble Apex Court in the case of Laxmi Devi v. Mohd. Babar, AIR 2008 SC 1850 has raised this notional income from Rs. 15,000/- to Rs. 36,000/- per annum. For computation of compensation it has to be reduced according to the loss of earning capacity, i.e., 30%, which comes to Rs. 10,800/-. 12. There is a controversy whether future prospects can be added in the income of the person who is self-employed or employed on fixed wages. In Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (3) AWC 2138, it has been held in paragraph nos. 11 & 24 that for such person future prospects would not be admissible for addition to income. The Hon'ble Apex Court in the case of National Insurance Company v. Puspa decided on 2.7.2014, SLP (C) 8058 of 2014, has referred the matter to a Larger Bench and till the Larger Bench decides the matter, directed to follow the principles laid down in Sarla Verma's case (supra) in paragraph no. 24. In view of this legal position, we are of the opinion that no addition to national income of the appellant on account of future prospects can be made. To this extent, we reject the argument advanced on behalf of appellant. At the time of accident, the appellant was aged about 14 years. According to the II Schedule of the 1988 Act, in the present matter appropriate multiplier will be applicable. 13. According to Sarla Verma's case (supra) the multiplier 20 will be applicable in the present case, thus amount of compensation on account of loss of earning capacity is calculated as below:- Rs. 10,800 x 20= Rs. 2,16,000.00 14. In the paper book, no bills, vouchers, receipts have been filed. Documentary evidence does not reveal any expenses made on the treatment. Only Yogendra Kumar Soni, PW-2 has deposed that he had incurred Rs. 30,000 in the treatment of son, i.e., appellant. This statement is uncontroverted, therefore, believed, it is held that Rs. 30,000/- should be awarded to the appellant in the head of medical expenses. 15. Documentary evidence does not reveal any expenses made on the treatment. Only Yogendra Kumar Soni, PW-2 has deposed that he had incurred Rs. 30,000 in the treatment of son, i.e., appellant. This statement is uncontroverted, therefore, believed, it is held that Rs. 30,000/- should be awarded to the appellant in the head of medical expenses. 15. The appellant has not been examined in the present case on this account, no compensation for physical pain and mental suffering has been granted by the learned tribunal. Non examination of appellant is material in this regard and we are of the opinion that while not awarding any amount in these heads, the learned tribunal has committed no error. In view of the above, we are of the opinion that impugned judgment and award contain many legal and factual errors and deserve to be set aside and the claim petition is deserved to be allowed to the extent that the appellant will be compensated by Rs. 3,78,000/- by the respondents. 16. Appeal is allowed. Impugned judgment and award dated 25.9.2006 is set aside and the claim petition is allowed ex parte to the extent that appellant will be entitled to get Rs. 3,78,000/- along with 7% simple interest per annum on the awarded amount as compensation payable by the respondent. The respondent is directed to pay the awarded amount within 30 days from the date of judgment. During the minority period of the appellant, the awarded amount would be invested in a fixed deposit scheme. After attaining majority, the appellant will be at liberty to withdraw the awarded amount along with interest.