Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 849 (GAU)

Gregory Vanlalfinga v. Lalbiaktluangi

2017-06-28

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. C. Lalramzauva, learned senior counsel assisted by Ms. Juliana Lalhmangaihi, counsel for the appellant. Also heard Mrs. Dinari T. Azyu, learned counsel for the respondent No. 2. None appears for the respondent No. 1. 2. The Order dated 08.07.2016 passed by this Court states that service is complete against the respondent No. 1. As such, the matter is being heard and disposed of ex-parte the respondent No. 1. 3. The appellants' case in brief is that he had met with an accident while travelling from Guwahati to Aizawl by Tata Sumo No. MZ01-C 8169 (Maxi-cab) belonging to the respondent No. 1. The accident took place on 24.08.2012 at around 3:30 A.M at Nongsning Village, in East Jaintia Hills District, Meghalaya. The vehicle driven by one Lalhlimpuia, fell down a deep gorge and the appellant suffered spinal injury in the accident, which resulted in the appellant being fully paralyzed. The doctor's certificate states that the appellant suffered from 100% permanent disability. 4. The appellant thereafter filed a claim petition before the learned MACT, Aizawl under Section 166 of the MACT Act, 1988 and the same was registered as MACT Case No. 47/2014. 5. The learned MACT, Aizawl thereafter passed Judgment & Award dated 08.04.2016 in MACT Case No. 47/2014, wherein it awarded the appellant the total compensation amount of Rs. 30,76,038/-. 6. The appellants' counsel submits that the compensation awarded by the Tribunal is not "just compensation" and accordingly, the appellant has made a challenge to the impugned Judgment & Award dated 08.04.2016 on the ground that the learned Tribunal has not taken the multiplier of 18 while calculating the compensation amount payable to the appellant. Secondly, the learned Tribunal has not considered/calculated the future prospects of the appellant. The third ground of challenge made by the appellants is that the learned Tribunal has not given any compensation for non-pecuniary damages. 7. Mrs. Dinari T. Azyu, learned counsel for the respondent No. 2 submits that the appellant has not made the driver of the accident vehicle a party before the learned MACT and also before this Court. She submits that as the driver of the accident vehicle is a necessary party, the matter should be remanded back to the learned MACT for a fresh trial, after impleading the driver of the accident vehicle. 8. She submits that as the driver of the accident vehicle is a necessary party, the matter should be remanded back to the learned MACT for a fresh trial, after impleading the driver of the accident vehicle. 8. The counsel for the respondent No. 2 also submits that as per the second schedule of the MV Act, the proper multiplier to be applied in the case of a person between the ages of 21 to 25 years is 17. As such, there was no infirmity with the learned Tribunal having adopted the multiplier 17, while calculating the compensation payable to the appellant. 9. The counsel for the respondent No. 2 also submits that as the appellant is getting his disability pension, there is no loss made by the appellant and as such, there is no requirement of calculating the future prospects of the appellant. The counsel for the respondent No. 2 also submits that non-pecuniary damages cannot be quantified and would have to depend upon the facts of each case. 10. I have heard the learned counsels for the parties. 11. The admitted facts of the case is that the appellant was a passenger in the Maxi Cab which fell down deep gorge. It is also an admitted fact that the appellant sustained 100% permanent disability due to the damage caused to his spinal cord by the accident. It is also an admitted fact that the appellant, who was serving in the 19th Assam Rifles was earning Rs. 22,179/- per month. However, after the accident, the appellant had been given a disability pension of Rs. 7,408/- per month. The learned Tribunal took the income of the appellant at Rs. 14,771/- per month, after deducting Rs. 7,408/- disability pension. The break-up of the compensation awarded to the appellant by the learned Tribunal is reproduced below: Loss of income = 14,771X12X17X100 100 = Rs. 30,13,284.00 (1) Medical expenditure = Rs. 62,754/- Total = Rs. 30,76,038.00 12. 7,408/- per month. The learned Tribunal took the income of the appellant at Rs. 14,771/- per month, after deducting Rs. 7,408/- disability pension. The break-up of the compensation awarded to the appellant by the learned Tribunal is reproduced below: Loss of income = 14,771X12X17X100 100 = Rs. 30,13,284.00 (1) Medical expenditure = Rs. 62,754/- Total = Rs. 30,76,038.00 12. In the case of Sarla Verma (Smt) & Others v. Delhi Transport Corporation & Another, reported in (2009) 6 SCC 121 , the Apex Court has made a chart with regard to the multiplier indicated by the Apex Court in (i) General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (MRS) & Others, reported in (1994) 2 SCC 176 (2) U.P State Road Transport Corporation & Others v. Trilok Chandra & Others, reported in (1996) 4 SCC 362 and (3) New India Assurance Co. Ltd v. Charlie & Another, reported in (2005) 10 SCC 720 (for claims under Section 166 of the MV Act), in juxtaposition with the second schedule for claims under Section 163 A of the MV Act. 13. The Apex Court in Sarla Verma (Supra) has held that the multiplier to be used should be the one reflected in column 4 of the chart, which is the multiplier made by the Apex Court in Trilok Chandra (Supra) and as clarified in New India Assurance Co. Ltd v. Charlie (Supra), i.e. the multiplier should be 18 for persons between the ages of 21 to 25 years. As per para 42 of the Judgment of the Apex Court in Sarla Verma (Supra), and keeping in mind the age of the appellant at the time of the accident, i.e. 22 years, this Court holds that the multiplier to be applied would have to be 18. 14. In the case of Sanjay Verma v. Haryana Roadways, reported in 2014 3 SCC 210 , the Apex Court has awarded compensation for non pecuniary damages, like future treatment, pain and suffering, mental agony etc. The Apex Court has also held in Sanjay Verma (Supra) that monetary compensation for pain and suffering is at best palliative, which would have to be determined on a case to case basis. 15. The Apex Court has also held in Sanjay Verma (Supra) that monetary compensation for pain and suffering is at best palliative, which would have to be determined on a case to case basis. 15. In the case of Santosh Devi v. National Insurance Company Limited & Others, reported in (2012) 6 SCC 421 and in Rajesh & Others v. Rajbir Singh and Others, reported in (2013) 9 SCC 54 , the Apex Court has held that in cases of the deceased victim of the accident being below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. In the present case, the appellant was 22 years at the time of the accident. 16. In the case of Sanjay Kumar v. Ashok Kumar & Another, reported in (2014) 5 SCC 330 , the Apex Court has granted loss of future prospects to the accident victim, as his loss of earning capacity was assessed at 70%, due to permanent disability suffered by the appellant of that case. 17. In view of the above, it is quite apparent that even persons who have permanent disability are also entitled to be given compensation for loss of future prospects of income. Accordingly, in view of the law laid down by the Apex Court, there must be an addition of 50% to the actual income of the appellant while computing future prospects. 18. In the case of Sanjay Kumar (Supra), the Apex Court has reiterated the guidelines and heads for awarding compensation for personal injury, as laid down by the Apex Court in Raj Kumar v. Ajay Kumar and Another reported in (2011) 1 SCC 343 . Para 12 of Sanjay Kumar (Supra) states as follows: "12. Further, in Raj Kumar v. Ajay Kumar, this Court has succinctly explained the guidelines and heads for awarding compensation in cases of disability due to a motor accidents. The relevant paragraphs are extracted below: "6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made he had 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. (ii) Loss of earnings (and other gains) which the injured would have made he had 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). 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. (vii) Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actual and are easily ascertainable from the evidence. Award under the head of future medical expenses-Item (iii)-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 posses some difficulty is the assessment of the loss of future earnings on account of permanent disability-Items (ii)(a)." 19. Keeping in mind the amount of compensation awarded for non-pecuniary damages by the Apex Court in Raj Kumar (Supra) and Sanjay Kumar (Supra), this Court awards the following compensation for non-pecuniary damages: (1) Pain and suffering and mental agony = Rs. 3 Lakhs. (2) Loss of marriage prospects = Rs. 1 Lakh. (3) Future treatment = Rs. 2 lakhs. (4) Loss of expectation of life (shortening of normal longevity) = Rs. 1.5 Lakhs. 20. 3 Lakhs. (2) Loss of marriage prospects = Rs. 1 Lakh. (3) Future treatment = Rs. 2 lakhs. (4) Loss of expectation of life (shortening of normal longevity) = Rs. 1.5 Lakhs. 20. In the case of Jitendra Khimshankar Trivedi and Others v. Kasam Daud Kumbhar and Others reported in (2015) 4 SCC 237 , the Apex Court has held that in terms of Section 168 of the MV Act, the Courts/Tribunals are to pass awards determining the amount of compensation which is fair and reasonable and accepted to be such by legal standards. It is on these lines that the present appeal is being disposed of. Accordingly, the compensation payable to the appellant will be as follows: 1 Loss of income = 14,771X12X18X100 100 = Rs. 31,90,536/- 2 Loss of future prospects @ 50% = Rs. 14771X12X18 2 = Rs. 15,95,268/- 3 Medical expenditure = Rs. 62,754/- 4 Pain and suffering and mental agony = Rs. 3 Lakhs. 5 Loss of marriage prospects = Rs. 1 Lakh. 6 Future treatment = Rs. 2 lakhs. 7 Loss of expectation of life (shortening of normal longevity) = Rs. 1.5 Lakhs. Total = Rs. 55,98,558/- 21. The respondent No. 2 is directed to deposit the above amount of Rs. 55,98,558/-, minus the amount already paid, with interest as directed by the learned MACT, Aizawl with the MACT, Aizawl, for onward disbursement to the appellant. 22. The appeal is accordingly allowed to the extent indicated above. 23. The impugned Judgment & Award dated 08.04.2016 passed in MACT Case No. 47/2014 by the learned MACT, Aizawl, is accordingly modified. 24. Send back the L.C.Rs.