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2017 DIGILAW 786 (HP)

Kapil Kumar v. Chhotu Ram

2017-07-11

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. - The claimant is the appellant, who aggrieved by the inadequacy of compensation awarded to him by the learned Motor Accident Claims Tribunal, has filed the instant appeal for enhancement. 2. The appellant filed a petition for claiming compensation under Section 166 of the Motor Vehicle Act on account of having sustained injuries in an accident, which took place on 21.11.2008. It is averred that while the appellant was proceeding on his motorcycle at a very slow speed on the left side of the road, then at a place known as ''Kali Matti'', Parwanoo, one Tipper bearing registration No. HP-15-7005 came from wrong side and struck against the motorcycle of the appellant. The accident was caused due to the rash and negligent driving of respondent No.1. The appellant sustained multiple grievous injuries besides other grievous/serious injuries in whole body, which resulted in permanent disability of 68% with low I.Q. with right occulomotor and abducent cranial nerve paresis with diplopia. 3. Since the driver, owner and insurance company have not filed any appeal, therefore, it is not necessary to refer to in detail the defence raised by them, suffice it to say that respondents No. 1 and 2 in their reply had denied that the accident is an outcome of Tipper being driven by respondent No.1 in a rash and negligent manner. Whereas, respondent No. 3 - Insurance Company raised usual stereo type defence regarding maintainability, driver of offending vehicle not having valid and effective driving licence nor valid registration certificate, route permit and fitness certificate at the time of the accident. It was further pleaded that the insured had breached the terms and conditions of the insurance policy and that there was a collusion between the petitioner and respondents No. 1 and 2. 4. The learned Tribunal below on 25.2.2010 framed the following issues: "1. Whether the petitioner injured Kapil Kumar received injuries in an accident caused due to rash and negligent driving of respondent No.1 while driving the vehicle of respondent No. 2 ? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled and from whom?.OPP 3. Whether the vehicle was being plied in violation of the terms and conditions of the insurance policy including driving licence and respondent No.3 is not liable to pay the compensation? OPR-3. 4. Relief. 5. OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled and from whom?.OPP 3. Whether the vehicle was being plied in violation of the terms and conditions of the insurance policy including driving licence and respondent No.3 is not liable to pay the compensation? OPR-3. 4. Relief. 5. After recording the evidence and evaluating the same, the learned Tribunal below allowed the claim petition filed by the appellant by awarding a sum of Rs. 7,16,700/-along with interest at the rate of 7.5% per annum to be paid by respondents No. 1, 2 and 3 jointly and severally and since the offending vehicle was insured with respondent No.3, therefore, the award amount was directed to be indemnified by it. 6. Mr. V.S. Chauhan, learned counsel for the appellant has assailed the award mainly on three accounts : (i) Inadequacy of amount awarded to the appellant under pain and suffering; (ii) No amount granted for a period of six months during which the claimant/appellant admittedly remained out of duty and; (iii) Avenues of future promotions etc. not taken into consideration. 7. On the other hand, learned counsel for the respondents would support the award and claimed that the same is in tune and in conformity with law. I have heard learned counsel for the parties and gone through the material placed on record carefully. 8. What would be the mode and manner of awarding damages in case where the claimant has sustained serious injuries in a vehicular accident, was considered recently by this Court in Mast Ram vs. Yogesh Azta and others (2017) Vol.1, Latest HLJ (HP) 745 and it was observed as under: "23. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) Loss of earning of profit up to the date of trial; (iii) other material loss. 24. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) Loss of earning of profit up to the date of trial; (iii) other material loss. 24. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) .Inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." 25. Therefore, quantification of damages divided under different heads must be very carefully observed by the courts while awarding compensation to the victims of motor-vehicle accidents. It is extremely essential for the courts to consider the two main components of damages i.e. both pecuniary and non-pecuniary damages as per the guidelines laid down by the Hon''ble Supreme Court so that the just and reasonable compensation is awarded to the injured. 26. In Phillips vs. Western Railway Co. 1874 (4) QBD 406, Field, J., while emphasizing that damages must be full and adequate, held thus: "You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. (The plaintiff) can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered." Besides, the Tribunals should always remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure". The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what the contemporary society would deem to be a fair sum, such as would allow the wrongdoer to "hold up his head among his neighbours and say with their approval that he has done the fair thing", should be kept in mind by the court in determining compensation in personal injury cases. 27. In the case of Mediana, 1900 AC 113, Lord Halsbury held: "Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case; how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident....But, nevertheless, the law recognizes that as a topic upon which damages may be given." 28. In H.West & Son Ltd. vs. Shephard, 1958 (65) ACJ 504 (HL, England), Lord Morris in his speech observed as under: "Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.". 29. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.". 29. In Ward vs. James, (1965) 1 AIIER, 563, Lord Denning while speaking for the Court, laid down the following three basic principles to be followed in such like cases: Firstly, accessibility: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good." 30. In Perry vs. Cleaver, 1969 ACJ 363 (HL, England), Lord Morris of Borth-y-Gest held thus: "To compensate in money for pain and for physical consequences is invariably difficult but no other process can be devised than that of making a monetary assessment." 31. In Concord of India Insurance Co. Ltd. vs. Nirmala Devi, 1980 ACJ 55 (SC), the Hon''ble Apex Court held: "The determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales." 32. Mc Gregor on Damages, 14th Edn., para 1157, referring to heads of damages in personal injury actions states: "The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Mc Gregor on Damages, 14th Edn., para 1157, referring to heads of damages in personal injury actions states: "The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have sub-divided the nonpecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life." 33. The principles for determining the compensation in case of permanent and partial disability have been exhaustively dealt with by referring to the relevant case law on the subject in Raj Kumar vs. Ajay Kumar, (2011) 1 SCC 343 in the following words: "Assessment of future loss of earnings due to permanent disability 6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person''s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person''s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (''Disabilities Act'' for short). The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (''Disabilities Act'' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra vs. New India Assurance Co.Ltd., 2010(10), SCC, 254 and Yadava Kumar vs. D.M., National Insurance Co. Ltd., 2010 (8) SCC 341 )." (i) Pain and Suffering: 9. The learned Tribunal below has awarded a paltry sum of Rs. 25,000/- under this head, that too, after coming to a conclusion that the appellant had suffered multiple injuries including fracture injuries. It would be noticed that as per the statement of Dr. Surinder Singh PW-6 for the injuries sustained by the appellant, he had to be hospitalized where he had to undergo surgery for multiple injuries and even after being discharged, he was still required to take follow up treatment. The disability certificate Ext.PW-6/G issued in favour of the appellant by the competent authority shows that he had suffered 68% permanent disability and has been described to be a case of head injury with low I.Q. with right occulomotor. 10. In Dinesh Singh vs. Bajaj Allianz General Insurance Company Limited and another (2014) 9 SCC 241 , the Hon''ble Supreme Court awarded a sum of Rs. 10. In Dinesh Singh vs. Bajaj Allianz General Insurance Company Limited and another (2014) 9 SCC 241 , the Hon''ble Supreme Court awarded a sum of Rs. 1,20,000/- towards "pain and agony" and the claimant therein had sustained loss of hearing. Whereas, in the instant case, I see no reason for awarding any lesser amount under this head Accordingly, the appellant is held entitled to Rs. 1,20,000/- instead of Rs. 25,000/- as awarded by the learned Tribunal. (ii) Salary of six months: 11. PW-3 Purshotam Ram, Field Officer, M/s M.S.S. Services Pvt. Ltd., Parwanoo, where the appellant had been working had categorically stated that during the period when the appellant remained under treatment from the date of accident upto 30.4.2009, he was not paid the salary. There is no evidence contrary to what has been stated by PW-3 and, therefore, the appellant is held entitled to the salary of six months. The appellant admittedly was drawing a salary of Rs. 7863/- and, therefore, is held entitled to an amount of Rs. 47,178/- ( Rs. 7863 x 6) under this head. (iii) Avenues of promotions: 12. Adverting once again to the statement of PW-3, it would be noticed that he in no uncertain terms has stated that the salary of the coworkers of the appellant had been increased to Rs. 3,000/- to Rs. 4,000/-, therefore, obviously the appellant would be entitled to this enhanced salary. However, the mode and manner in which the learned Tribunal below has assessed the loss in para 14 of the award is clearly contradictory to law. Para 14 of the award reads thus: "14. The petitioner is also entitled for compensation for his loss of income as his salary has been proved to be Rs. 7863/- as per the statement of PW-3 Purshotam Ram, Field Officer to the concern of the petitioner and out of this income ^rd is to be deducted as his personal expenditure and thereby it comes to Rs. 5242/-. Therefore, taking into consideration the permanent disability suffered by the petitioner as per the permanent disability certificate Ex.PW-6/G to the extent of 68% the loss of income proportionately to percentage of his disability comes to Rs. 3565/- per month and Rs. 3565 x 12 = Rs. 42,780/- per annum. 5242/-. Therefore, taking into consideration the permanent disability suffered by the petitioner as per the permanent disability certificate Ex.PW-6/G to the extent of 68% the loss of income proportionately to percentage of his disability comes to Rs. 3565/- per month and Rs. 3565 x 12 = Rs. 42,780/- per annum. Since the age of the petitioner at the time of the accident has been proved to be 40 years, thereby it is just and appropriate to apply the multiplier of 15 and as such the total loss of income comes to Rs. 42,780 x 15 = Rs. 6,41,700/- and as such in total the petitioner is entitled for compensation of Rs. 50,000/- + 25,000/- + 6,41,700/- = Rs. 7,16,700/- including interim compensation if any with interest at the rate of 7.5% per annum against the respondents No. 1, 2 and 3 being joint and several liability to be indemnified by the respondent No.3, insurer of the Tipper bearing No. HP-15-7005. Hence, all the three issues are held in favour of the petitioner and against the respondents No. 1, 2 and 3." 13. It has come on record that the salary of the co-workers of the appellant had been enhanced by Rs. 3,000/- to Rs. 4,000/-. The learned Tribunal below has erred in applying the multiplier and by making necessary deductions therein while computing the loss suffered in an injury case, whereas it was required to work out the actual loss caused to the appellant over the number of years and only then arrive at a conclusion. Admittedly, the appellant was 40 years of age at the time of the accident and, therefore, a multiplier of 15 would be appropriate to the facts of the instant case. 14. Since the co-workers of the appellant have admittedly been given hike of Rs. 3,000/-to Rs. 4,000/-, I deem it proper to compute the loss of income of the appellant on account of the accidental injuries sustained by him as Rs. 4,000/- per month and in this manner the appellant would be entitled to Rs. 4,000/- x 12 x 15 = Rs. 7,20,000/- 15. In view of the aforesaid findings, the appellant would now be entitled to a sum of Rs. 1,20,000/- + Rs. 47,178/- + Rs. 7,20,000/- = Rs. 8,87,178/-. 16. In addition to the aforesaid, I find that the learned Tribunal below has only granted 7.5% interest which is unduly low. 4,000/- x 12 x 15 = Rs. 7,20,000/- 15. In view of the aforesaid findings, the appellant would now be entitled to a sum of Rs. 1,20,000/- + Rs. 47,178/- + Rs. 7,20,000/- = Rs. 8,87,178/-. 16. In addition to the aforesaid, I find that the learned Tribunal below has only granted 7.5% interest which is unduly low. This Court in CWP No. 933 of 2011, titled The New India Assurance Company Ltd. vs. Jagdish Lakhanpal and others, decided on 22.3.2016, has elaborately considered this aspect in the following manner: Interest: "57. Learned counsel for the petitioner has laid challenge to the grant of interest, that too, from the date of filing of the petition till date of actual deposit and has further questioned the rate at which such interest has been awarded i.e. 9% per annum. 58. It is vehemently argued by learned counsel for the petitioner that though the petition had been filed on 26.2.2000, it was on account of in action and negligence on part of the claimant that issues could only be framed on 4.11.2008 and thereafter additional issues were framed on 25.8.2009 and therefore, in such circumstances, no interest could have been awarded for the aforesaid period or else that would amount to granting premium to the claimant for his own inaction and negligence. 59. Section 171 of the Motor Vehicles Act provides for grant of interest in cases arising out of compensation under the Motor Vehicles Act, which reads thus:- "171. Award of interest where any claim is allowed. Where any claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf." The aforesaid provision provides for awarding of simple interest on the compensation awarded at such rate and from such date, not earlier than the date of making the claim, as it may specify in this behalf. The interest is not awarded for the damage done. Interest is awarded to the claimant for being illegally kept away from the due money, which ought to have been paid to him. Conversely, the claimant cannot claim interest as a matter of right for the proved delay, inaction or negligence on his part. 62 . The interest is not awarded for the damage done. Interest is awarded to the claimant for being illegally kept away from the due money, which ought to have been paid to him. Conversely, the claimant cannot claim interest as a matter of right for the proved delay, inaction or negligence on his part. 62 . Now coming to challenge laid with respect to the rate of interest, it would be noticed that the recent trend of the Hon''ble Supreme Court clearly indicates that instead of awarding 7 or 8%, as is canvassed by the learned counsel for the petitioner, it has been awarding interest @ 9% per annum. Here I need only refer to a recent judgment of the Hon''ble Supreme in Jakir Hussein vs. Sabir (2015) 7 SCC 252 , wherein it was held:-"20. As regards the rate of interest to be awarded on the compensation awarded in this appeal, we are of the view that the Tribunal and the High Court have erred in granting interest @ 7% p.a. and 8% p.a., respectively on the total compensation amount instead of 9% p.a. by applying the decision of this Court in MCD vs. Uphaar Tragedy Victims Assn. (2011) 14 SCC 481 . Accordingly, we award the interest @ 9% p.a. on the compensation determined in the present appeal." 17. In view of the above, the appeal is partly allowed and the appellant is now held entitled to the amount of compensation of Rs. 8,87,178/- instead of Rs. 7,16,700/- as awarded by the learned Tribunal below alongwith 9% interest per annum from the date of petition to actual payments. The enhanced amount of compensation alongwith interest, as aforesaid, be deposited by respondent No.3 - Insurance Company within a period of eight weeks. Pending application(s) if any, also stands disposed of.