M. P. Singh alias Mahendra Pal Singh Chhatwal v. Srikant Yadav
2018-07-17
ASHA ARORA, DIPANKAR DATTA
body2018
DigiLaw.ai
JUDGMENT : 1. The appellant calls in question the judgment and award dated July 25, 2015 passed by the Motor Accident Claims Tribunal, South 24-Parganas in MAC Case No.178 of 1999, registered on his application under section 166 of the Motor Vehicles act, 1988 (hereafter the Act). By the impugned award, the tribunal awarded Rs.8,55,000/- in favour of the appellant as compensation, without interest, payable by the insurance company which had insured the offending trailer. 2. It was alleged in the claim application by the appellant that while he was riding pillion on a motorbike owned by his friend, who was the driver thereof, the trailer dashed such motorbike on June 29, 1998 at the junction of A.J.C. Bose Road and Kiddirpore Road. As a result of the impact, the appellant was thrown off the motorbike and he became unconscious. He regained his consciousness at S.S.K.M. Hospital, Kolkata, where he was shifted. The appellant required prolonged treatment and in the process, he incurred an expense of Rs.13,00,000/- approximately, yet, he was not fully cured. In fact, an orthopaedic surgeon [a retired professor and former Head of the Department of Orthopaedic, Calcutta National Medical College and Hospital] certified that the appellant had suffered 100% permanent disability. Alleging that he was earning Rs.5000/- per month from his family business of motor spare parts and that he was 24 years of age on the date of the accident, the appellant claimed Rs.20,00,000/- on account of compensation. 3. As has been noted above, the tribunal awarded Rs.8,55,000/- under the following heads : (i) Rs.2,55,000/- towards loss of earning; (ii) Rs.5,00,000/- towards medical expenses; (iii) Rs.50,000/- towards loss of pain, suffering and trauma; and (iv) Rs.50,000/- towards loss of amenities and enjoyment of life. 4. Appearing in support of the appeal, Mr. Ghosh, learned advocate contended that the tribunal grossly erred in calculating loss of earning capacity and in not awarding the entire amount of Rs.13,00,000/- that the appellant had claimed on account of medical expenses incurred by him. He further contended that the tribunal did not award any amount towards future medical treatment of the appellant who, as a result of the accident, has been confined to bed for all times to come and is not even in a position to sit or walk independently.
He further contended that the tribunal did not award any amount towards future medical treatment of the appellant who, as a result of the accident, has been confined to bed for all times to come and is not even in a position to sit or walk independently. Reliance was placed on the decision in Govind Yadav –vs.-New India Insurance Company Limited reported in (2011) 10 SCC 683 , wherein the parameters for award of compensation in a case of personal injury suffered by an accident victim were delineated. Next, it is contended that the tribunal did not award any amount towards future earning prospect of the appellant. Reliance has been placed on the decision in National Insurance Company Ltd. –vs.- Pranay Sethi & Ors., reported in (2017) 6 WBLR (SC) 308. Finally, non-grant of interest on the amount awarded as compensation has been assailed. Referring to the decision of the Supreme Court in Alok Shankar Pandey –vs.- Union of India reported in AIR 2007 SC 1198 and a coordinate Bench decision of this Court in Kohinur Begum –vs.-New India Assurance Co. Ltd. & Anr. reported in AIR 2008 CAL 84 , he prayed for grant of interest @8% per annum from the date of filing of the claim application till payment. 5. Mr. Pahari, learned advocate representing the insurance company vehemently opposed the contentions raised by Mr. Ghosh. According to him, the bills on which the appellant had relied on were not admitted into evidence in a manner known to law. Therefore, the learned Judge was right in awarding Rs.5,00,000/- on account of reimbursement of medical expenses instead Rs.13,00,000/-. According to Mr. Pahari, Govind Yadav (supra) was delivered on November 1, 2011 and, therefore, the learned Judge of the tribunal did not have the benefit of looking into such decision on the date the award was rendered. It has also been brought to our notice that the accident in Govind Yadav (supra) happened on November 14, 2004 i.e. almost 6½ years after the accident in the present case and, therefore, the quantum awarded on account of pain, suffering and trauma as well as loss of amenities and enjoyment of life ought not to be awarded at par with what has been awarded in Govind Yadav (supra). Insofar as loss of future earning prospect and non-grant of interest is concerned, Mr.
Insofar as loss of future earning prospect and non-grant of interest is concerned, Mr. Pahari has, in his usual fairness, left the issues to the discretion of the Court. 6. We have heard learned advocates for the parties and perused the materials-on-record. 7. What strikes our conscience is the fact that the victim’s statements in course of examination-in-chief and cross-examination had to be recorded by an advocate commissioner appointed by the tribunal. This corroborates the plea of the victim having been rendered physically disabled to walk and come to the court for recording of his evidence. Had it been a case of amputation of a foot, use of prosthetic limb could have facilitated the victim to at least come to court. This is a worse case where without even loss of any limb, the appellant is confined to the bed practically for the whole of his life. This is a factor that ought to be borne in mind while we decide the appeal. 8. Although the appellant in course of his examination-in-chief had claimed earning of Rs.5000/- per month, the income-tax return filed by him showed that he was earning Rs.15,000/- per annum. Such amount was reckoned for the purpose of calculating the loss of earning of the appellant. We do not see reason to hold that the tribunal erred in calculating the amount of compensation payable to the appellant under such head. We, accordingly, hold that Rs.2,55,000/- was rightly calculated by the tribunal. 9. However, Pranay Sethi (supra) lays down that compensation on account of future prospect would be available in case of a victim who was self-employed, - if he is below the age of 40 years, 40% of his established income ought to be considered for determining compensation. We, thus, work out loss of earning capacity to be Rs.3,57,000/-. 10. It is true that the decision in Govind Yadav (supra) was delivered in the year 2011 where the Supreme Court awarded an amount of Rs.2,00,000/-towards future treatment of the accident-victim. Considering the evidence of the orthopaedic surgeon, who had examined the appellant immediately after he had suffered injury in the relevant accident, we are of the considered view that since he has been deprived of the ability to even sit and walk independently, he would require medical treatment in the future.
Considering the evidence of the orthopaedic surgeon, who had examined the appellant immediately after he had suffered injury in the relevant accident, we are of the considered view that since he has been deprived of the ability to even sit and walk independently, he would require medical treatment in the future. Taking a cue from the decision in Govind Yadav (supra), we are of the considered opinion that a sum of Rs.2,00,000/- towards future treatment would serve the ends of justice. 11. Next, we take up the point of reimbursement of medical expenses. Out of a claim of Rs.13,00,000/-, the tribunal awarded Rs.5,00,000/-. The reason assigned by the tribunal has not particularly impressed us. The Indian Evidence Act strictly does not apply, although the principles are applied to the extent practicable. Here we are faced with a case where a young man has suffered personal injury for which the claim for compensation has been made. As noted above, the appellant cannot move independently. To insist for strict proof is to place him in a real disadvantageous position. Under section 168 of the Act, the compensation should be just, that is, a fair and reasonable sum which should not either be a bonanza or a pittance. In our view, interest of justice would be sufficiently served if we allow a further sum of Rs.5,00,000/- on account of reimbursement. 12. We are further of the considered view that on account of pain, suffering and trauma as well as the fact that the appellant because of his present physical condition would be deprived of all facilities which he would have otherwise enjoyed had he not met with the accident, a consolidated sum of Rs.2,50,000/-would meet the ends of justice. 13. That apart, having regard to the decision of the Division Bench of this Court in Niva Devi –vs.- New India Insurance Company Limited reported 2014 (2) TAC 864 (CAL), the appellant would be entitled to interest @ 7.5% per annum on the total sum of Rs.13,07,000/- [Rs.3,57,000 + 5,00,000 + 2,00,000 + 2,50,000] to be computed by the insurance company from the date of filing of the claim application till payment is made. 14. It is reported to us that in terms of an interim order passed in the appeal, the appellant has withdrawn Rs.8,55,000/-.
14. It is reported to us that in terms of an interim order passed in the appeal, the appellant has withdrawn Rs.8,55,000/-. He shall, therefore, be entitled to the balance sum of Rs.4,52,000/- (Rs.13,07,000 – Rs.8,55,000) with interest @ 7.5% per annum on Rs.13,07,000/-in terms of this order which the insurance company shall credit his bank account by electronic fund transfer within two months from date of receipt of a certified copy of this judgment and order. To facilitate compliance of this order, we direct the appellant to furnish to the insurance company within a week from date the particulars of his bank account in which the balance sum is to be credited. 15. With the aforesaid modification of the impugned award, the appeal stands disposed of. There shall be no order for costs. 16. Photostat certified copy of this order, if applied for, be furnished expeditiously.