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2016 DIGILAW 814 (RAJ)

Satya Narain v. Harphool Singh

2016-06-02

G.R.MOOLCHANDANI

body2016
Hon'ble MOOLCHANDANI, J.—This appeal is directed questioning correctness of award dated 04.12.2002 passed by Motor Accident Claims Tribunal, Ratangarh (Churu) in Claim Case No.52/2000, by which the Tribunal has passed an award of Rs.2,95,450/-. 2. Learned counsel for the appellant has contended that the claimant suffered multiple injuries and fractures of left leg and thus, suffered a permanent disability to the tune of 90%. He was 34 years of age at the time of accident and was earning Rs.4000/- per month from making silver & gold jewellery and was a skilled workman but the Tribunal has passed a meagre award of Rs.2,95,450/- by computing income contrary to the evidence adduced, whereas the employer was also produced in evidence testified the salary having been paid to the victim but the Tribunal ignored that evidence, the Tribunal ought to have assessed the monthly income of the appellant-injured at Rs.4000/- per month. Even the damages towards hospitalization has also been given in lower side and loss of income on the basis of permanent impairment has also not been quantified properly. The claimant is unfit to undertake regular work, despite the Tribunal has not awarded appropriate compensation. Hence, appeal be allowed and the award be modified as prayed. In support of his submissions, learned counsel for the appellant placed reliance on judgments of Hon'ble Supreme Court in K. Suresh vs. New India Assurance Co. Ltd. & another, 2012 ACJ 2694 and Arvind Kumar Mishra vs. New India Assurance Co. Ltd. & another, 2010 ACJ 2867 . Learned counsel for the insurance-company submitted that there is no reason to enhance the compensation since the Tribunal has awarded correct compensation and no interference is needed. 3. Brief facts of the case relating to the accident which may be noted relates to incident of 29.02.2000. While appellant-claimant Satya Narain was travelling in Jeep No.RJ23-T-0006, it met with an accident, dashing with a stationary tractor-trolley stationed on left side of the road, which caused injuries to the claimant and he had to undergo treatment and remained admitted in hospital from 01.03.2000 to 30.04.2000, subsequently from 19.06.2000 to 26.06.2000. The claimant sustained several injuries on his body, ultimately, a permanent disability of 90% was caused in left leg of the injured claimant. 4. The claimant sustained several injuries on his body, ultimately, a permanent disability of 90% was caused in left leg of the injured claimant. 4. The Tribunal did pass an award of Rs.2,95,450.95 and compensation awarded under different heads is as under: PARTICULARS COMPENSATION AMOUNT Loss of future income, computed on the basis of Rs.70/- per day, with loss of 25% i.e. Rs.70x25%=Rs.17.50x30=Rs.525 per month x12= Rs.6300 per year and this amount calculated for 30 years i.e. Rs.6300x30=Rs.1,89,000 Rs. 1,89,000/- 3 simple injuries, Rs.1000/- for each injury Rs. 3000/- Grievous injury (stomach) Rs. 5000/- Pain and suffering Rs. 10,000/- Medical expenses Rs. 18,550.95 Conveyance for treatment Rs. 2000/- Future medical expenses Rs. 5000/- Expenses on hospitalization Rs. 20,400/- Extra nourishment Rs. 2,000/- Disability Rs. 30,000/- Loss of income for 5 months Rs. 10,500/- Total Rs. 2,95,450.95 5. On examining the evidence regarding income of the appellant, it has been found that the injured Satya Narain has said that he was getting Rs.4000/- per month and was engaged as a skilled labour in making of gold & silver jewellery and was employed by Shiv Bhagwan Soni. Employer Shiv Bhagwan Soni has also been examined as AW2, he has stated that Satya Narain was engaged by his firm as a workman making gold jewellery and he used to pay Rs.4000/- per month to him. He has further stated that Satya Narain met with an accident on 29.02.2000 and as a result of accidental injury, he is not able to work any more. Shiv Bhagwan has narrated that he himself used to earn Rs.4000-5000 per month. On the basis of this evidence, the Tribunal has decided the income of injured Satya Narain to be Rs.70/- per day, which appears to be logical and on this basis, monthly income of the injured comes to Rs.2100/-. 6. In Subulaxmi vs. M.D., Tamil Nadu State Transport Corporation (2012) 10 SCC 177 = 2013(1) RLW 128 (SC), Hon'ble Supreme Court has held as follows: “5. At the outset, it is requisite to be stated that the facts as have been adumbrated are not in dispute. Therefore, first we shall advert to the issue whether the High Court was justified in awarding compensation on a singular head relating to permanent disability and loss of future earning. In K. Suresh vs. New India Assurance Co. At the outset, it is requisite to be stated that the facts as have been adumbrated are not in dispute. Therefore, first we shall advert to the issue whether the High Court was justified in awarding compensation on a singular head relating to permanent disability and loss of future earning. In K. Suresh vs. New India Assurance Co. Ltd. and Another, 2012(10) SCALE 516 , after referring to Ramesh Chandra vs. Randhir Singh (1990) 3 SCC 723 and B. Kothandapani vs. Tamil Nadu State Transport Corporation Ltd., (2011) 6 SCC 420 = 2011(2) RLW 1826 (SC), this Court expressed the view that compensation can be granted towards permanent disability as well as loss of future earnings, for one head relates to the impairment of person’s capacity and the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself. The Bench also relied upon Laxman vs. Divisional Manager, Oriental Insurance Co. Ltd. and another, 2012 ACJ 191 (AIR 2012 SC (Civ) 383: 2012 AIR SCW 361) wherein it has been laid down thus:- “The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident. Thus, the view expressed by the High Court on this score is not sustainable.” 7. In R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd – AIR 1995 SC 755 , Hon'ble Supreme Court has held: “....while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non-earning persons is to take the notional income as Rs. 15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc” 8. Appellant-claimant Satya Narain was 35 years of age at the time of the accident and he has narrated that - ^^eSa cSB ugha ldrk] lkS ldrk gwaA eSa py fQj Hkh ugha ldrkA esjs nksuksa gkFkksa esa ?kksM+h ysdj pyrk gwaA tks FkksM+h&2 nwj :d dj pyuk iM+rk gS vkSj pyus ls esjs nnZ Hkh Hk;adj gksrk gSA ;g ,DlhMsaV thi MªkbZoj lqjs'k dqekj dh xyrh ls gqvk FkkA vc eSa dqN dke ugha dj ldrkA eSa vc csjkstxkj gwaA igys eSa lksus pkanh ds xgus x<+us dk dkjhxj FkkA^^ He further stated that - ^^esjh fodykaxrk ds laca/k esa esfMdy tkap djok;h Fkh tks rhu MkDVjksa us dh ftldk izek.k i= esa yk;k gwa tks izn'kZ 106 o mlds lkFk feyk i= izn'kZ 107 gSA izn'kZ 106 ij MkDVjksa ds gLrk{kj o eksgj gS tks ih-ch-,e- vLirky ljdkjh ds gS buds }kjk fn;k x;k gSA^* 9. Doctor Rajnish Sharma, AW4 has also been examined. Doctor Rajnish Sharma, AW4 has also been examined. He too has stated that - ^^v/kh{kd] ih-ch-,e- vLirky ds vkns'k Øekad 538 fnukad 25-6-2001 ds rgr xfBr esfMdy cksMZ ds lnL; dh gSfl;r ls eSaus Jh lR;kukjk;.k iq= Jh Hkkuhjke lksuh dh tkap dh FkhA tkap esa mlds cka;s dqYgs ds fMLyksds'ku] cka;s ?kqVus ds V[kuh ds ÝsDpj o ck;sa fVfc;k ds ÝsDpj ds dkj.k nk;sa dqYgs esa [kjkch vk xbZ Fkh o ck;sa dqYgs] ck;sa ?kqVus dh pky esa deh vk xbZ Fkh ftldh otg ls og fcuk lgkjs ds py ugha irk FkkA cksMZ dh jk; esa bl deh dks 90 izfr'kr LFkkbZ fu'kDrrk vkadk x;kA^ In his cross-examination, this witness has stated that on the medical parameters the disability has been observed to be 90%. He has also stated that Satya Narain is not able to work sitting on the floor and has further stated that Satya Narain's hip joint cannot become normal. 10. The Tribunal has worked out quantum of pecuniary damages by deducing a hypothetical loss of income of 25%, whereas the appellant has sustained permanent injury to the tune of 90% and the loss ought to have been assessed on this basis itself. In Master Mallikarjun vs. Divisional Manager, National Insurance Company Ltd and another ( AIR 2014 SC 736 = 2013(4) RLW 3224 (SC)), Hon'ble Supreme Court has laid down law relating to grant of compensation based on percentage of disability for children notionally. There are several uncertainties of life, which are always unforeseen so the applicable multiplicand could be scaled down to arrive at an equitable and reasonable sum of compensation. Pondering upon all these uncertainties, age of the appellant and bygone period of accident, an enhancement of 30% of income prospectively under future prospects needs to be further applied and multiplicand of 12 appears to be logical. As such, the appellant-claimant appears to be entitled for the following compensation: S. No. PARTICULARS COMPENSATION AMOUNT 1 Pecuniary loss with 30% future prospects – Rs.70x30%= Rs.91, Rs.91x30=Rs.2730 per month Rs.2730x12=Rs.32760 p.a., Applying multiplicand of 12 it comes to Rs.32760x12= Rs. Rs.3,93,120/- Rs. 3,93,120/- 2 Medical expenses Rs. 18,550.95 rounded off to 18550/- 3 Pain & suffering Rs. 50,000/- 4 Special/nutritious diet Rs. 5000/- 7 Transportation Rs. 5000/- Total Rs. 4,71,670/- 11. Rs.3,93,120/- Rs. 3,93,120/- 2 Medical expenses Rs. 18,550.95 rounded off to 18550/- 3 Pain & suffering Rs. 50,000/- 4 Special/nutritious diet Rs. 5000/- 7 Transportation Rs. 5000/- Total Rs. 4,71,670/- 11. The impugned award dated 04.12.2002 passed by the learned Motor Accident Claims Tribunal, Ratangarh (Churu) in Claim Case No.52/2000 is modified accordingly as above. The appellant-claimant will be entitled to get total compensation of Rs.4,71,670/- along with interest at the rate of 9% per annum from the date of the petition. Interim compensation or any amount deposited earlier is to be adjusted towards final sum of compensation. The respondents are directed to deposit the enhanced compensation with interest as decided aforesaid within two months from the date of receipt of certified copy of this judgment. Appellant is free to receive the amount of compensation from the Tribunal. The appeal is allowed in aforesaid terms.