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Himachal Pradesh High Court · body

2016 DIGILAW 448 (HP)

Om Parkash v. Dilawar Singh (deceased)

2016-04-08

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 29th December, 2009, passed by the Motor Accident Claims Tribunal, Una, (for short, the Tribunal), in Claim Petition No.22 of 2007, titled Om Parkash vs. Dilawar Singh and others, whereby compensation to the tune of Rs.8,00,000/-, with interest at the rate of 9% from the date of the award till payment, came to be awarded in favour of the claimant and the insurer was saddled with the liability, (for short, the impugned award). 2. The insurer, the driver and the owner/insured have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them. 3. It may also be placed on record that Mr.Amit Singh Chandel, Advocate, stated that during the pendency of the appeal, respondent No.1 (driver) had passed away. His statement is taken on record. There is no need to bring on record the legal representatives of the said respondent at this stage since the factum of insurance is admitted and the findings returned on issue No.1 are not in dispute. 4. In view of the mandate of Sections 169 and 176 of the Motor Vehicles Act, 1988, (for short, the MV Act), the State of Himachal Pradesh has framed the Himachal Pradesh Motor Vehicles Rules, 1999, (hereinafter referred to as the Rules). Rule 232 of the Rules ibid provides as under: “232. The Code of Civil Procedure to apply in certain cases:- The following provisions of the First Schedule to the Code of Civil Procedure, 1908 shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30 ; Order IX ; Order XIII ; Rule 3 to 10 ; Order XVI, Rules 2 to 21 ; Order XVII ; Order XXI and Order XXIII, Rules 1 to 3. Section 169 and 176 (b).” 5. Thus, it is clear from the above quoted Rule that the provisions of Order 22 of the CPC have not been made applicable to the proceedings under the MV Act. 6. Accordingly, respondent No.1 is deleted from the array of respondents. The Registry is directed to make necessary correction in the cause title with red ink. 7. Thus, it is clear from the above quoted Rule that the provisions of Order 22 of the CPC have not been made applicable to the proceedings under the MV Act. 6. Accordingly, respondent No.1 is deleted from the array of respondents. The Registry is directed to make necessary correction in the cause title with red ink. 7. Feeling aggrieved and dissatisfied with the impugned award, the claimant has challenged the impugned award by the medium of instant appeal on the ground of adequacy of compensation. 8. Thus, the only question needs to be determined in this appeal is – Whether the amount awarded by the Tribunal is adequate? 9. To answer the above question, it is necessary to give a brief account of the facts of the case. 10. The claimant filed the Claim Petition under Section 166 of the M.V. Act, wherein it was pleaded that on 12th March, 2007, at about 12.10 p.m., when he was standing alongside the road at Jaijon Mor, truck bearing No.HP-23A 5151, being driven by respondent No.1 rashly and negligently, came from Ghaluwal side and run over the claimant as a result of which he sustained injuries in his left leg, was taken to district hospital Una, fromwhere was referred to PGI Chandigarh. It has also been alleged that the left leg of the claimant was completely crushed in the accident as a result of which it had to be amputated above the knee joint. FIR bearing No.52/07 under Sections 277, 337 and 338 Indian Penal Code at Police Station, Haroli was also registered. It was further alleged that the claimant also took treatment from Gulati Hospital, Hoshiarpur, HIM Bones and Joints Care Hospital, Gagret and Bharaj Life Care Hospital, Hoshiarpur. Thus, the claimant sought compensation to the tune of Rs.1.5 crore, as per the break-ups given in the Claim Petition. 11. Respondents resisted the claim petition by filing replies. 12. On the pleadings of the parties, the following issues came to be framed: “1. Whether the petitioner received injuries due to rash and negligent driving of respondent No.1 while driving truck No.HP-23A-5151 owned by respondent No.2? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. On the pleadings of the parties, the following issues came to be framed: “1. Whether the petitioner received injuries due to rash and negligent driving of respondent No.1 while driving truck No.HP-23A-5151 owned by respondent No.2? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the respondents No.1 and 2 had violated the terms and conditions of the insurance policy and respondent 3 is not liable to pay the compensation? OPR 4. Relief.” 13. In order to prove their claim, the parties have led their respective evidence. The Tribunal, after scanning the evidence, has held that the driver of the offending truck, namely, Dilawar Singh, had driven the truck rashly and negligently and had caused the accident. The said findings of the Tribunal are not in dispute. Accordingly, the findings returned on issue No.1 are upheld. 14. Before issue No.2 is taken up, I deem it proper to deal with issue No.3. To prove the said issue, the onus was on respondent No.3/insurer, in which it has failed. The Tribunal while deciding the said issue against the insurer, has specifically recorded that the insurer had led no evidence to prove the said issue. Moreover, the insurer has not challenged the findings recorded by the Tribunal. Accordingly, the findings returned on issue No.3 are also upheld. 15. Coming to issue No.2, which pertains to the quantum of compensation, admittedly, the claimant has sustained 80% disability, which is permanent in nature and remained admitted in the hospital for a pretty long time. 16. The Apex Court in R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755 , Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, 2010 AIR SCW 6085, Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, 2011 AIR SCW 4787 and Kavita versus Deepak and others, 2012 AIR SCW 4771, has clearly laid down the principles as to how compensation has to be awarded in cases where the claimants have suffered permanent disability and how the assessment is to be made. 17. The claimant has placed on record income tax returns for the assessment years 2006-07 and 2007-08, which do disclose that the total income of the deceased for the said years was Rs.17,16,913 and Rs.9,46,432/-, respectively. 17. The claimant has placed on record income tax returns for the assessment years 2006-07 and 2007-08, which do disclose that the total income of the deceased for the said years was Rs.17,16,913 and Rs.9,46,432/-, respectively. In addition, the claimant has also proved on record that various works stood allotted in his favour for the years 2008-09 and 2009-10. However, after considering the fact that the work of a contractor is full of uncertainties, the Tribunal assessed the monthly income of the claimant to be Rs.20,000/-, which is upheld. 18. The claimant had suffered 80% permanent disability in his left leg, which stands amputated above knee, qua which disability certificate has been proved on record as Ext.PW-1/C. The question is whether the disability suffered by the claimant has affected the earning capacity of the injured in future and if so, to what extent. 19. PW-1 Dr.Indu Bhardwaj has proved the disability certificate and has also stated that because of this disability, the injured would not be able to walk on uneven surfaces. However, she has not given the details of what is the effect of the disability on the earning capacity of the injured. Still, it is clear that the accident had definitely shattered the physical frame of the claimant. The claimant has to walk for the whole of his life on crutches, which would definitely affect the earning capacity of the claimant. The claimant would not be in a position to perform the job of contractor as he would have been performing prior to the accident. The accident has rendered the claimant unable to work even as a labourer and pursue any other profession. 20. The Tribunal, after discussing the pleadings and the evidence, has awarded a sum of Rs.5,60,000/- to the claimant under the head future loss of earning. How the Tribunal made this assessment is not spelled out in the impugned award. Therefore, keeping in view the profession of the claimant and the injury sustained by him, it can safely be inferred that the permanent disability suffered by the claimant has affected his earning capacity. 21. After exercising the guess work and while keeping in view the expert evidence, it can be held that the disability suffered by the claimant as a result of the accident has affected 50% of the earning capacity of the claimant/injured, i.e. 50% of Rs.20,000/-, which comes to Rs.10,000/- per month. 22. 21. After exercising the guess work and while keeping in view the expert evidence, it can be held that the disability suffered by the claimant as a result of the accident has affected 50% of the earning capacity of the claimant/injured, i.e. 50% of Rs.20,000/-, which comes to Rs.10,000/- per month. 22. The age of the claimant/injured was 40 years. Therefore, in view of the dictum of the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, read with Schedule-II attached to the M.V.Act, multiplier 14 was applicable. Accordingly, multiplier 14 is applied. 23. Thus, the claimant/injured is held entitled to Rs.10,000 x 12 x 14 = Rs.16,80,000/-, under the head ‘loss of future earning’. 24. In the instant case, the claimant has proved on record that he remained admitted in the hospital for a considerable period. After the discharge from the hospital, the claimant would also have remained confined to the bed. Such period of confinement to the bed, by exercising guess work, can be said to be not less than six months and during this period, the claimant can be said to have not earned a single penny. Accordingly, he is also held entitled to Rs.20,000/- x 6 = Rs.1,20,000/- under the head ‘loss of income during the said period. 25. The claimant/injured, as discussed hereinabove, remained admitted in the hospital and thereafter, was confined to the bed for a considerable long period. The claimant suffered 80% permanent disability and became handicapped for whole life. The accident has also shattered the physical frame of the claimant. Thus, the claimant suffered a lot and has to suffer throughout his life. 26. Accordingly, I am of the opinion, that the claimant is also entitled to Rs.50,000/- under the head ‘ pain and sufferings undergone’ and Rs.50,000/- under the head ‘future pain and sufferings’. 27. The claimant, at the time of accident, was 40 years of age and because of the permanent disability suffered by him to the extent of 80%, he would face hardships throughout his life, which may also result in frustration and mental stress. Therefore, the claimant is also entitled to Rs.1.00 lac under the head ‘loss of amenities of life’. 27. The claimant, at the time of accident, was 40 years of age and because of the permanent disability suffered by him to the extent of 80%, he would face hardships throughout his life, which may also result in frustration and mental stress. Therefore, the claimant is also entitled to Rs.1.00 lac under the head ‘loss of amenities of life’. 28. The claimant has specifically pleaded in the Claim Petition that he remained admitted in the hospital and had to spend Rs.80,000/- for medical expenses, transportation charges etc. However, keeping in view the facts of the case and the evidence led, I deem it proper to award Rs.50,000/- under the head ‘medical expenses, transportation charges, attendant charges and special diet’. 29. Keeping in view the nature of injuries sustained by the claimant, which has resulted into 80% permanent disability, the claimant may have to undergo medical check-ups/treatment, at intervals, throughout his life. Thus, supposedly, I deem it proper to award Rs.50,000/- under the head ‘future medical treatment’. 30. Having glance of the above discussion, the claimant is awarded Rs.21,00,000/-, under different heads as under: i) Loss of future earning capacity : Rs.16,80,000/- ii) Loss of income during the period of hospitalization and confinement to bed : Rs.1,20,000/- iii) Medical expenses, special diet, attendant charges and transportation charges: Rs.50,000/- iv) Future medical treatment : Rs.50,000/- v) Pain and sufferings undergone: Rs.50,000/- vi) Future pain and sufferings : Rs.50,000/- vii) Loss of amenities of life: Rs.1,00,000/-. 31. The amount shall carry interest at the rate of 7.5% per annum from the date of passing of the impugned award, till deposit. 32. In view of the above discussion, the appeal is allowed and the amount of compensation is enhanced. The insurer is directed to deposit the enhanced amount within a period of six weeks from today and on deposit, the Registry is directed to release the entire amount, alongwith interest, in favour of the claimant, after proper identification.