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2016 DIGILAW 233 (RAJ)

Oriental Insurance Co. Ltd. v. Bhagchand Jain

2016-02-10

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerender Singh Siradhana, J. 1. The above noted two appeals are directed against the same award dated 10th February, 2010, and therefore, have been taken up for final adjudication at this stage with the consent of the learned counsel for the parties by this common order. 2. Briefly, the skeletal material facts are that the claimant-Bhagchand suffered severe injuries in an accident on 20th July, 2006, while he was travelling in a car with his friend and the car was hit by the offending truck, which was driven negligently and carelessly. A report of the accident was entered in the daily diary (Roznamcha) on 21st July, 2006. The claimant-Bhagchand suffered severe injuries and was discharged on 30th July, 2006, and lodged an FIR of the accident on 8th January, 2007. 3. It is pleaded case of the claimant-Bhagchand that the proceedings were drawn for the accident against an unknown truck and the claim petition was also instituted accordingly. However, having learnt about the registration number of the offending vehicle, the amended claim petition was filed on 6th November, 2007. The Tribunal on consideration of the pleadings of the parties and evidence adduced made the claim of compensation vide impugned award dated 10th February, 2010, for an amount of Rs. 5,35,022 (Rupees five lac thirty five thousand twenty two), with interest @ 8% per annum provided the amount of compensation was paid within two months of the award and failure to do so would attract interest have at the rate of 9%. The Insurance Company has preferred the appeal assailing the findings arrived at by the Tribunal on issue number 1, stating that the truck with the registration number RJ-21-GA-04945, has been falsely implicated in the accident only for the purpose of the claim for the FIR of the accident was lodged almost after six months. 4. Learned counsel for the appellant-Insurance Company, Mr. R.P. Vijay, reiterating the pleaded facts and grounds of the memo of appeal asserted that the delay in lodging of the FIR leads to conclusion that the vehicle insured by the appellant-Insurance Company has been falsely implicated after a due deliberation. The award has not been challenged on any other grounds. 4. Learned counsel for the appellant-Insurance Company, Mr. R.P. Vijay, reiterating the pleaded facts and grounds of the memo of appeal asserted that the delay in lodging of the FIR leads to conclusion that the vehicle insured by the appellant-Insurance Company has been falsely implicated after a due deliberation. The award has not been challenged on any other grounds. The claimant-Bhagchand has preferred the connected appeal with the prayer for enhancement of the amount of compensation awarded for the Tribunal fell in gross error in not awarding any compensation on account of 'future prospects'. 5. Learned counsel for the claimant-Bhagchand referring to the opinion of the Hon'ble Supreme Court in the recent pronouncement in the case of Sanjay Kumar v. Ashok Kumar & Anr., (2014) 5 SCC 330 , asserted that damages under the non-pecuniary heads have not been allowed, and thus, the Tribunal committed gross error in not awarding just compensation as contemplated under Section 166 of the Motor Vehicles Act, 1988 (for short, 'Act of 1988'). According to the learned counsel, the delay caused in the lodging of the FIR cannot be a ground to defeat the claim of the claimant-appellant for it is a case of hit and run, and the Tribunal committed no error in declining the defence of the Insurance Company. In support of his arguments he has placed reliance on the opinion of the Hon'ble Supreme Court in the case of Kusum Lata & Ors. v. Satbir & Ors., (2011) 3 SCC 646 . 6. I have heard the learned counsel for the parties and with their assistance perused the materials available on record and the impugned award as well as gave my thoughtful consideration to the rival submissions at Bar. 7. In the case of Kusum Lata (supra), the Hon'ble Supreme Court under the para 5 and 8, held thus:- "When the matter came up before the Tribunal, the Tribunal in its award dated 14.6.2006 framed three issues for adjudication. Of those three issues, since the Tribunal came to a finding against the appellants on the first issue, the other findings of the Tribunal in the second and third issue were, according to Tribunal, of no avail of the appellants. Of those three issues, since the Tribunal came to a finding against the appellants on the first issue, the other findings of the Tribunal in the second and third issue were, according to Tribunal, of no avail of the appellants. On the first issue the Tribunal came to a finding that the involvement of the offending vehicle being temp No. HR-34-8010 has not been proved and since on this issue the Tribunal's finding went against the appellants, no compensation was awarded. On an appeal filed against the said award, the High Court by the impugned judgment dated 21.5.2010 also affirmed the finding of the Tribunal. 8. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such material strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural." 8. Indisputably, the accident occurred on 20th July, 2006, at midnight around 12.30 P.M. while the Santro car was hit by the offending truck. The injured was taken to the hospital and was treated. As a result of severe injuries, the claimant-appellant has suffered fracture in backbone, fracture of L7, cervical bone of the neck, which has resulted into paralysis and 50% permanent disability. The Tribunal assessed the income of the claimant-appellant as Rs. 92,220/- (Rupees ninety two thousand two hundred twenty), on the basis of income tax return. Taking into consideration the statement deposed by the claimant-appellant that the firm which was engaged in the business of marble-stone trading is still operational and also taking note of the fact that subsequent to the accident the income tax returns of the business conducted by the firm, were not filed; reduced the income assessed by 25%. Taking into consideration the statement deposed by the claimant-appellant that the firm which was engaged in the business of marble-stone trading is still operational and also taking note of the fact that subsequent to the accident the income tax returns of the business conducted by the firm, were not filed; reduced the income assessed by 25%. Applying the multiplier of 15, the Tribunal concluded the total loss of income as Rs. 3,45,825/- (Rupees three lac forty five thousand eight hundred twenty five). 9. Learned counsel for the claimant-appellant is aggrieved of non-inclusion of the future prospects and even if 25% of the amount of Rs. 23,055/- was to be added to the annual income that would have been an amount of just and proper compensation. The submission appears to be of some substance. 10. Accordingly, adding 25% of Rs. 23,055/- as claimed, for the loss of income on account of future prospects; the total amount is required to be enhanced accordingly. Thus, according to the computation and assessment made by the learned counsel for the claimant-appellant the award of compensation needs to be enhanced by an amount of Rs. 86,456/-, on account of 'future prospects'. 11. In the case of Raj Kumar v. Ajay Kumar & Anr., (2011) 1 SCC 343 , the Hon'ble Supreme Court succinctly explained the guidelines and heads for awarding compensation in cases of disability due to a motor accident, holding thus:- "6. 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. 7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses Item (ii) depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages Items (iv), (v) and (vi) involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss future earnings on account of permanent disability Item (ii)(a)." 12. From a glance of the impugned award it is evident that compensation of an amount of Rs. 9,000/-, on account of mental agony, pain and suffering; has been awarded, which appears to be on a lower side and deserves to be enhanced to Rs. 1,00,000/- deducting the amount of 9,000/- already paid. For loss of amenities an amount of Rs. 50,000/- needs to be awarded. 13. Accordingly, the compensation awarded vide impugned award dated 10th February, 2010, is enhanced to Rs. 86,456+91,000+50,000=2,27,456 (Rupees two lac twenty seven thousand four hundred fifty six), along with interest at the rate of 8% per annum from the date of institution of the claim petition i.e. February 2007, till the actual payment. The appellant-Insurance Company shall pay the enhanced compensation within two months from the date of receipt of a certified copy of this order. 14. The appellant-Insurance Company shall pay the enhanced compensation within two months from the date of receipt of a certified copy of this order. 14. The appeal of the claimant-Bhagchand is accordingly disposed off. 15. The appeal preferred by the Insurance Company is dismissed. No costs.