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2015 DIGILAW 1470 (PNJ)

Dina Nath Dhiman v. Jaswinder Singh

2015-08-17

RITU BAHRI

body2015
JUDGMENT : Ritu Bahri, J. The present appeal has been preferred by the injured/claimant-appellant (for short 'the appellant'), seeking enhancement of the amount of compensation awarded by the learned Motor Accident Claims Tribunal, Jagadhari (for short, 'the Tribunal') to the tune of Rs. 4,59,500/- along withe interest @ 9 per cent from the date of filing of the petition till the amount is deposited in the Court, vide impugned award dated 06.05.2005. 2. On 22.05.2003 at about 11 P.M. when the petitioner was going to Khera Mandir, Jagadhari from his house along with his brother Pawan Kumar, who was riding his own scooter and reached near Rao Bearing Store, Jagadhari, a truck bearing No. HR30-2805 driven by respondent No.1 in a rash and negligent manner came from the turn of Jesic Colony, hit the motorcycle was dragged with the front wheel of the truck resulting into serious injuries on the body. He was taken to Kohli Hospital Jagadhari from where on the next date i.e. 26.02.2003, he was taken to J.P. Hospital, Yamuna Nagar. Thereafter, he was again shifted to Indraprastha Apollo Hospital, New Delhi where he remained admitted w.e.f 26.02.2003. 3. The learned counsel for the appellant contends that the Tribunal has erred in awarding the compensation to the appellant to the tune of Rs. 4,59,500/- only, as the appellant had suffered 80% disability (P-1) and in this regard, P.W.1 Dr. Deepak Jain and P.W.2 Dr. Sandeep Gupta, Medical Officers have admitted the factum of disability of the appellant but in their statement, they stated that the disability certificate has been issued for the purpose of income tax. In view of this statement, the Tribunal assessed the disability of the appellant to 50% in view of Workmen Compensation Act. Further, the tribunal has only awarded Rs. 2,55,500/- with regard to the medical bills. 4. To give force to its contention, reference has been made to a Hon'ble the Supreme Court of India in a case of Govind Yadav v. The New India Insurance Co. Ltd., 2011(4) RCR (Civil) 817 wherein a claimant who was working as a helper met with an accident and his leg was amputated resulting in 70% permanent disability. Since, he could not prove his salary, his salary was taken at Rs. 3000 per month and his notional annual income comes to Rs. Ltd., 2011(4) RCR (Civil) 817 wherein a claimant who was working as a helper met with an accident and his leg was amputated resulting in 70% permanent disability. Since, he could not prove his salary, his salary was taken at Rs. 3000 per month and his notional annual income comes to Rs. 36000/- and loss of earning on account of 70% permanent disability came at Rs. 25,200/- per annum and multiplier of 18 was applied. Further Rs. 2 lacs was awarded towards future treatment and Rs. 1.50 lacs towards pain and suffering and trauma and further Rs. 1.50 lacs towards loss of amenities. In para 17, 18, 19 and 20 of the judgment, it has been observed as under :- "17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant has pleaded that at the time of accident he was working as Helper and was getting salary of Rs. 4,000/- per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer. The Tribunal then proceeded to determine the amount of compensation in lieu of loss of earning by assuming the appellant's income to be Rs. 15,000/- per annum. On his part, the learned Single judge of the High Court assumed that while working as a Cleaner, the appellant may have been earning Rs. 2,000/- per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time minimum wages payable to a worker were Rs. 3,000/- per month. Therefore, in the absence of other cogent evidence, the Tribunal and the High Court should have determined the amount of compensation in lieu of loss of earning by taking the appellant's notional annual income as Rs. 36,000/- and the loss of earning on account of 70% permanent disability as Rs. 36,200/- per amnnum. The application of multiplier of 17 by the Tribunal, which was approved by the High Court will have to be treated as erroneous in view of the judgment in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 . 36,000/- and the loss of earning on account of 70% permanent disability as Rs. 36,200/- per amnnum. The application of multiplier of 17 by the Tribunal, which was approved by the High Court will have to be treated as erroneous in view of the judgment in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 . In para 42 of that judgment, the Court has indicated that if the age of the victim of an accident is 24 years, then the appropriate multiplier would be 18. By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earning would be Rs. 4,53,600/-. 18. The award made by the Tribunal for future medical expense was wholly inadequate. In Nagappa v. Gurudayal Singh (2003) 2 SCC 274 , this Court considered whether it was permissible to award compensation in instalments or recurring compensation to meet the future medical expenses of the victim. After noticing the judgment of M. Jagannadha Rao, J. (as he then was) in P. Satyanarayana v. I. Babu Rajendra Prasad, 1988 ACJ 88 (AP), the Judgment of the Division Bench of the Kerala High Court in Valiyakathodi Mohd. Koya v. Ayyappankadu Ramamoorthi Mohan, 1991 ACJ 140 (Kerala), this Court observed : "In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, the appellant would be 1 required to have some sort of operation and also change the artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lakh is awarded as an additional compensation, the appellant would be in a position to meet the said expenses from the interest of the said amount." After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limbs ha substantially increased. Therefore, it will be just and proper to award a sum of Rs. 2,00,000/- to the appellant for future treatment. Therefore, it will be just and proper to award a sum of Rs. 2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the lost of artificial limbs, fees of the doctor and other ancillary expenses. 19. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the Tribunals and the Courts to make a precise assessment o the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and socials stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the 1 purpose of fixing the amount of compensation. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs. 1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg. 20. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. the prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life." 5. In the facts of the present case, as per disability certificate Ex.P1, the disability has been assessed at 80%. the prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life." 5. In the facts of the present case, as per disability certificate Ex.P1, the disability has been assessed at 80%. The statement of P.W.1 and P.W.2 that the disability for the purpose of Income Tax, is rejected, as the appellant had suffered so many injuries and had to be hospitalized for about a month and further his leg had been amputated. Further, some of the medical bills (Ex P2, 13, 21 and 22) could not be proved by the appellant and the Tribunal has rightly awarded Rs. 2,55,500/-, as the appellant had only proved medical bills (Ex P8 P10 and P11 and P14 to P-20). Reference at this stage can be made to a statement of P.W.4 Raj Kumar Goel, Income Tax Practitioner who produced income tax returns Ex P3 and Ex P4 showing income of the appellant at Rs. 1,22,293/- for the year 2002-03 and Rs. 1,30,743/- for the year 2003-04. This shows that the appellant was earning Rs. 11,000/- per month approximately. 6. In view of the above mentioned judgment, the compensation is re-assessed as under :- HEAD COMPENSATION AMOUNT Salary Rs. 8000 per month Annual Salary Rs. 8000x12 = Rs. 96000/- Loss on account of disability 96000x85% disability = Rs. 81600/- Multiplier of 14 81600 x 14 = 11,42,400/- Future treatment Rs. 2,00,000/- Pain and sufferings Rs. 1,50,000/- Loss of amenities Rs. 1,50,000/- Medical treatment Rs. 2,55,500/- TOTAL COMPENSATION AWARDED :- Rs. 18,97,900/- ENHANCED AMOUNT OF COMPENSATION 18,97,900-4,59,500 = Rs. 14,38,400/- 7. The enhanced amount of compensation of Rs. 14,38,400/- shall be payable within a period of two months from the date of receipt of certified copy of this order. The enhanced amount of compensation shall carry interest @ 9% per annum from the date of filing of the claim petition, till its realization, in view of the judgment of Hon'ble the Supreme Court in a case of Kumari Kiran through her father Harinarayan v. Sajjan Singh and others, 2015 (1) SCC 539 . Remaining conditions of disbursal of amount shall remain unaltered. 8. Accordingly, the award stands modified to the above extent and the present appeal is partly allowed.