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2016 DIGILAW 3017 (PNJ)

Neelam Rani v. Anish Kumar

2016-10-21

RAJ MOHAN SINGH

body2016
JUDGMENT Mr. Raj Mohan Singh, J.:- Appellant-claimant has filed this appeal for enhancement of compensation awarded by the Motor Accident Claims Tribunal, Bathinda (for short ‘Tribunal’). 2. Claimant-appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation on account of injuries suffered by her in a vehicular accident which took place on 23.04.2011. 3. Claimant was 38 years of age at the time of accident. Appellant is a house wife and claimed that she rendered services to the family which can be computed in terms of Rs.6000/- per month. On 23.04.2011, she was a pillion rider on scooter driven by Mehak. At about 10:30 p.m, when they reached near Bharat Nagar at Bibi Wala Road, Bathinda, then the offending motorcycle came from opposite direction which was rashly and negligently driven by respondent No.1 and struck against the scooter. Claimant suffered multiple injuries. The husband of the claimant was following the injured. Injured was taken to hospital. On account of head injury, she was referred to Bharat Brain Hospital, Bathinda. Thereafter, she was referred to Dayanand Medical College and Hospital, Ludhiana for treatment. Claimant claimed an amount of Rs.40,00,000/- along with interest as compensation besides claiming Rs.25,000/- as litigation expenses. 4. Under issues No.1 and 2, Tribunal held that the accident in question took place due to rash and negligent driving of the driver of the offending vehicle. The injured-claimant suffered permanent disability to the tune of 30 %. Dr. H.S. Hayer, Medical Officer, Civil Hospital, Bathinda proved the disability certificate issued to the claimant. Tribunal also noticed that respondent No.1 was minor as per birth certificate Ex.R4. No evidence was led under issue No.3 in respect of petition being bad for non-joinder of necessary parties i.e. owner and insurer of the scooter. The onus of this issue was on the respondents, but they preferred to lead no evidence, rather the issue was not pressed at the time of arguments before the Tribunal. Issue was accordingly decided against the respondents. Under issue No.4, Tribunal noticed that respondent No.1 was the minor driver of the offending motorcycle and respondent No.2 was the registered owner, as per registration certificate Ex.R1. The date of birth of respondent No.1 was 19.06.1995 as per birth certificate Ex.C4. The accident took place on 23.04.2011. Issue was accordingly decided against the respondents. Under issue No.4, Tribunal noticed that respondent No.1 was the minor driver of the offending motorcycle and respondent No.2 was the registered owner, as per registration certificate Ex.R1. The date of birth of respondent No.1 was 19.06.1995 as per birth certificate Ex.C4. The accident took place on 23.04.2011. Therefore, respondent No.1 was proved to be minor and was not competent to possess any driving licence. Issue No.4 was accordingly decided against respondents No.1 and 2 and the same was decided in favour of Insurance Company. 5. Tribunal calculated the compensation on the basis of disability incurred by the claimant-appellant as well as the actual expenses incurred towards medical treatment. In view of bills relating to medical treatment of the claimant, the total expenditure in terms of Ex.C5 to Ex.120 was found to be Rs.3,49,901/-. The amount was rounded off to the tune of Rs.3,50,000/-. An amount of Rs.50,000/- was awarded towards pain and suffering, transportation and special diet. In this way, total amount of compensation to the tune of Rs.4,00,000/- was awarded to the claimant. The liability was fastened upon the Insurance Company at the first instance with a recovery right from respondent No.2. The amount of compensation was ordered to be paid along with interest @ 6 % per annum from 12.09.2011 when the respondents put in appearance in the case. It was also directed that in case the respondents No.2 and 3 failed to satisfy the award within 2 months from the passing of the same, rate of interest to the tune of 9 % per annum would accrue from the date of award. Counsel fee was also assessed to be Rs.3000/- by the Tribunal. 6. I have heard learned counsel for the parties. 7. In case of injury, the heads under which compensation is to be awarded are:- (1) Expenses relating to treatment, hospitalization, medicines, transportation, special diet and miscellaneous expenses. (2) Loss of earning and other gain which the injured would have got had he not been injured. This head includes:-loss of earnings during period of treatment and loss of future earnings on account of permanent disability. (3) Future medical expenses. (4) Non-pecuniary damages/general damages are also required to be assessed towards pain, suffering and trauma as consequent of the injuries. (5) Loss of amenities in life including loss of marriage prospects. This head includes:-loss of earnings during period of treatment and loss of future earnings on account of permanent disability. (3) Future medical expenses. (4) Non-pecuniary damages/general damages are also required to be assessed towards pain, suffering and trauma as consequent of the injuries. (5) Loss of amenities in life including loss of marriage prospects. (6) Loss of expectation of life i.e. shortening of longevity of life. 8. In Govind Yadav Vs. New India Insurance Company Limited, [2011(6) Law Herald (SC) 4841] : 2011 (4) RCR (Civil) 817, the Hon’ble Apex Court after considering all pros and cons in detail assessed the compensation in case of permanent disability of the injured. 9. In K. Suresh Vs. New India Assurance Company Limited and another, [2012(6) Law Herald (SC) 4744] : 2013(1) RCR (Civil) 312, the Hon’ble Apex Court held that in case of permanent disability, the injured is entitled to grant of compensation towards permanent disability as well as loss of earning capacity. The determination of compensation for loss of earning capacity on the basis of multiplier method was held to be proper. In determination of compensation, some guess work and hypothetical considerations based on sympathy can be worked out, but ultimate determination has to be viewed with some objective standards. There cannot be a flight in fancy. The award should correspondent to reasonableness and should be in consonance with conventional sum. The endeavour should be to award just compensation keeping in view the suffering of the injured person. 10. In S. Manickam vs. Metropolitan Transport Corporation Ltd, [2013(4) Law Herald (SC) 3356] : 2013(3) RCR (Civil) 696, it was ruled by the Hon’ble Apex Court that the determination of just compensation cannot be equated to a bonanza. It has to be based on application of fair and equitable principles. Reasonable approach should be adopted. Compensation towards permanent disability and loss of earning capacity, both were endorsed to the effect that the victim is entitled to separate claims towards permanent disability as well as loss of earning capacity. 11. In G. Ravindranath @ R. Chowdary Vs. It has to be based on application of fair and equitable principles. Reasonable approach should be adopted. Compensation towards permanent disability and loss of earning capacity, both were endorsed to the effect that the victim is entitled to separate claims towards permanent disability as well as loss of earning capacity. 11. In G. Ravindranath @ R. Chowdary Vs. E. Srinivas and another, [2013(5) Law Herald (SC) 3655] : 2013(3) RCR (Civil) 934, the Hon’ble Apex in case of grievous injuries of the injured in pelvic region ruled that in case of nature of injury, rendering the injured to be impotent, adequate compensation has to be awarded towards all heads like expenses incurred in treatment including hospitalization, future medical expenses towards hospitalization, medicines, attendant charges etc, pain suffering and trauma, loss of amenities, prospects of marriage, loss of expectation of life and loss of future earning. In aforesaid case, the Hon’ble Apex Court awarded a sum of Rs.20.20 lacs. 12. In case of Rekha Jain Vs. National Insurance Company Ltd., 2013(3) RCR (Civil) 996, the Hon’ble Apex Court in case of 30% disability of face of a film actress held that in the circumstances of the case, the disability should be treated to be 100% functional disability. Loss was assessed on multiplier method keeping in view the age of the victim. As against compensation of 2 lacs assessed by the Tribunal, the Apex Court assessed the compensation of Rs.42,50 lacs. 13. In case of Neerupam Mohan Mathur Vs. New India Assurance Company, [2013(4) Law Herald (SC) 3422 : 2013(3) Law Herald (P&H) 2486 (SC)], it was held by the Hon’ble Apex Court that in case of permanent disability on account of amputation of limb, compensation towards non pecuniary damages has to be awarded. In the said case, on account of amputation of one arm, the services of the claimant were terminated by the employer. There was loss of 100% earning capacity of the claimant. The order of High Court in assessing 70% loss of income was upheld by the Apex Court. An amount of Rs.1 lac towards pain, suffering and trauma was assessed. An amount of Rs.2 lacs was assessed towards loss of amenities and additional amount of Rs.1 lac was assessed towards loss of expectation of life i.e. shortening of the normal longevity. 14. An amount of Rs.1 lac towards pain, suffering and trauma was assessed. An amount of Rs.2 lacs was assessed towards loss of amenities and additional amount of Rs.1 lac was assessed towards loss of expectation of life i.e. shortening of the normal longevity. 14. In case of Yadava Kumar Vs The Divisional Manager, National Insurance Company Ltd. and another, [2010(6) Law Herald (SC) 3818] : 2010(4) RCR (Civil) 155, the Hon’ble Apex Court highlighted that a distinction has to be drawn between the damages and compensation. Damages are given for injuries which the injured suffered, whereas compensation is to be paid for atonement of the injury caused and to put back the injured as far as possible in the same manner, as if injury has not taken place. Court should be liberal in determination of quantum of compensation to be paid to the victim towards future loss of income and other heads. 15. In case of housewife the criteria specified in clause(6) of Second Schedule referred to Section 163-A of the Motor Vehicles Act, 1988 (for short ‘the Act’) has to be looked into. The contribution made by the wife to the family is invaluable and cannot be computed in terms of money. In evaluating notional income of deceased housewife, 1/3rd deduction towards personal expenses while computing dependency of the family is not to be made in view of Paramjit Singh vs. Dilbag Singh @ Bagga, [2013(3) Law Herald (P&H) 2730 (DB)] : 2014(4) RCR (Civil) 895 (DB). 16. In the instant case, the claimant was a house wife at the time of accident. Her monthly income was pleaded to be Rs.6000/- per month. There was no evidence in rebuttal regarding the income, even otherwise, this Court is of the considered view that the income of the injured cannot be assessed less than Rs.6000/- per month. Compensation on account of permanent disability and loss of income on account of loss of permanent disability are to be distinctly appreciated. Compensation towards permanent disability can be assessed by awarding an amount of Rs.2000/- per percentage of permanent disability. In this way as against the 30% permanent disability, an amount of Rs.60,000/- would be just and appropriate to meet out this head. Loss of income on account of permanent disability is required to be answered with multiplier method. The income of the injured was found to be Rs.6000/-. In this way as against the 30% permanent disability, an amount of Rs.60,000/- would be just and appropriate to meet out this head. Loss of income on account of permanent disability is required to be answered with multiplier method. The income of the injured was found to be Rs.6000/-. 30% loss on account of permanent disability would come out to be Rs.1800/- per month and Rs.21,600/- per annum. The age of the injured was 38 years at the time of accident and as per ratio laid down in Smt. Sarla Verma Vs. Delhi Transport Corporation, [2009(3) Law Herald (SC) 2107] : 2009 (3) RCR (Civil) 77, multiplier of 15 would be just and appropriate. In this way, the loss of income on account of permanent disability would come out to be Rs.3,24,000/-. Tribunal has awarded a consolidated amount of Rs.50,000/- towards pain and suffering, transportation and special diet which in considered opinion of this Court is on the lower side. Keeping in view the hospitalization of the injured and nature of injury on her person and pain and suffering suffered by her on account of injuries, it would be just and appropriate to enhance the amount of Rs.50,000/- to 1,00,000/- under the aforesaid heads. Medical expenses would remain the same as given by the Tribunal i.e. 3,50,000/-. In this way, total amount of compensation would come out to be Rs.8,34,000/-. 17. In view of above, the amount of compensation is worked out as under:- Sr. No. Heads Amount awarded by the Tribunal Amount assessed in appeal Difference 1 Medical expenses 3,50,000/- 3,50,000/- Nil 2 Permanent disability, Loss of income on account of permanent disability Nil 3,84,000/- (60,000 towards permanent disability + 3,24,000 towards loss ofincome on account of permanent disability) 3,84,000/- 3 Pain and suffering, transportation and special diet 50,000/- 1,00,000/- 50,000/- 4 Total compensation 4,00,000/- 8,34,000/- 4,34,000/- 18. The enhanced amount i.e. 4,34,000/- shall carry same rate of interest as well as direction given by the Tribunal. 19. With the aforesaid modification, the present appeal stands disposed of.