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Tripura High Court · body

2019 DIGILAW 49 (TRI)

Subhash Chandra Sukladas v. Debasish Dey

2019-09-09

SANJAY KAROL

body2019
JUDGMENT Sanjay Karol, J. 1. The present appeal is preferred against the Award T.S. (MAC) 370/2008 dated 05.09.2017 passed by Ld. Member, MAC Tribunal, Court No. 1, West Tripura, Agartala. 2. The facts of the case are not disputed and therefore this Court has briefly culled out the same, necessary for disposal of the case as below: 3. On 09.11.2007 appellant-claimant Subhash Chandra Sukla Das was going to Amtali from Agartala by a vehicle bearing No. TR-01-4267. The vehicle was running at a high speed and in a rash and negligent manner and when it reached near Amtali Bazar it ended up in a head on collision with another vehicle bearing No. TR-01-F-0609, as a result whereof, appellant-claimant sustained a fracture of his right leg. Appellant-claimant was admitted to GBP Hospital, Agartala where he was treated as an indoor patient from 09.11.2007 to 15.12.2007. Due to the said accident appellant-claimant suffered a permanent disability to the extent of 60%. 4. The appellant-claimant filed a claim petition for compensation before the appropriate MAC Tribunal, the MAC Tribunal, by award dated 05.09.2017, awarded compensation of Rs. 3,25,000/-, with interest at 6% per annum from the date of impleading the opposite party No. 1, Shri Debasish Dey, i.e. 03.10.2012 till date of realization (within six weeks from the date of judgment), failing which at the rate of 8% per annum. The actual amount of compensation calculated was Rs. 6,05,000/- but the Ld. Tribunal came to the conclusion that as the accident occurred due to the negligence of the drivers of both the vehicles, liability to pay compensations lie with the owners of both the vehicles (i.e. 50% each) and since name the owner of TR-01-0609 was struck off, the appellant-claimant would be entitled to only 50% of the compensation i.e. Rs. 3,02,500/- as against the present respondent, Shri Debasish Dey to be paid by his insurer i.e. the National Insurance Company Ltd. (the respondent No. 2 herein). 5. Being aggrieved and dissatisfied, the appellant-claimant has challenged the impugned award dated 05.09.2017 in T.S. (MAC) 370 of 2008 passed by Tribunal seeking increase in compensation. 6. Mr. 3,02,500/- as against the present respondent, Shri Debasish Dey to be paid by his insurer i.e. the National Insurance Company Ltd. (the respondent No. 2 herein). 5. Being aggrieved and dissatisfied, the appellant-claimant has challenged the impugned award dated 05.09.2017 in T.S. (MAC) 370 of 2008 passed by Tribunal seeking increase in compensation. 6. Mr. Ashish Nandi, learned counsel for the claimant-appellant, while assailing the legality and correctness of the impugned award of the Claim Tribunal, puts forth following issues to be considered by this Court: (i) that the tribunal while deciding compensation in the instant case has ignored to include/not considered properly pecuniary (special damages) as well the non-pecuniary (general damages); (ii) that the tribunal has wrongly applied the multiplier while calculating the future loss of income. It ought to have been 16 instead of 15; (iii) that the rate of interest on compensation given by the Ld. Tribunal should have been 9% per annum instead of 6% per annum. Also, the Ld. Tribunal has committed a serious mistake by awarding the rate of interest w.e.f. 03.10.2012 (i.e. from the date of impleading the present respondent No. 1) instead of from the date of filing of the claim petition; (iv) that the Ld. Tribunal has failed to apply properly and wrongly interpreted the principle of composite negligence. 7. The principles with regard to determination of just compensation contemplated under the Motor Vehicle Act, 1988 are well settled. Injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as (i) loss of earning; (ii) expenses on treatment which may include medical expenses, transportation, special died, attendant charges etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. The damages can be pecuniary as well as non-pecuniary, but all have to be assessed on monitory terms. 8. Before this Court ventures into the nitty-gritty of this case it would be pertinent to look into various aspects/factors which should be considered while deciding the amount of compensation in a cases of injuries sustained in a motor vehicle accident. 9. The damages can be pecuniary as well as non-pecuniary, but all have to be assessed on monitory terms. 8. Before this Court ventures into the nitty-gritty of this case it would be pertinent to look into various aspects/factors which should be considered while deciding the amount of compensation in a cases of injuries sustained in a motor vehicle accident. 9. The Apex Court in Raj Kumar v. Ajay Kumar and Others, reported in (2011) 1 SCC 343 has held that "the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Also it further held that 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 earning (and other gains) which the injured would have made had he not been injured, comprising: (a) loss of earning during the period of treatment; (b) loss of future earning on account of permanent disability and (c) 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. In routine personal injury cases, compensation will be awarded only under heads (i), (ii) and (a) and (iv). 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. In routine personal injury cases, compensation will be awarded only under heads (i), (ii) and (a) and (iv). It is only 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. .............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......." 10. It is clear from the impugned judgment that the amount awarded by the Tribunal was made up of Rs. 15,000/- towards medical expenses, Rs. 20,000/- for pain and suffering and Rs. 5,40,000/- towards loss of future earnings. The tribunal has also awarded Rs. 30,000/- for amputation of big toe of right leg. For calculating the loss of future earnings, the tribunal took the guesswork for deciding the monthly income of the appellant-claimant as a driver of LMV at the relevant time i.e. Rs. 3,000/- per month and the percentage of disability (60%) shown in disability certificate to be the physical disability and considered 100% disablement for earning purposes. The tribunal arrived at loss of future earnings Rs. 36,000/- per annum. By applying a multiplier of 15, it quantified at Rs. 5,40,000/- as the loss of future earnings. In total the claimant-appellant was held entitled to a sum of Rs. 6,05,000/- as compensation. 11. The learned counsel has submitted that the learned Tribunal has failed to apply the correct multiplier while calculating future loss of income. It should have applied 16 instead of 15. Since the claim petition was filed under Section 166 of the Motor Vehicle Act and not under Section 163A of the said Act, the tribunal was rightly guided by the judgment of Sarla Verma & Others vs. Delhi Transport Corp. & Another, reported in (2009) 6 SCC 121 and applied the multiplier 15 correctly. The Apex Court Arvind Kumar Mishrav. New India Assurance Co. & Another, reported in (2009) 6 SCC 121 and applied the multiplier 15 correctly. The Apex Court Arvind Kumar Mishrav. New India Assurance Co. Limited reported in (2010) 10 SCC 254 , has taken similar view regarding applicability of "principle of multiplier" in injury cases. 12. As pointed out by the learned counsel that "future medical expenditure", "loss of amenities and future discomfort in life" "the cost of attendant of the appellant-claimant during treatment" has not been taken into consideration by the tribunal while deciding the amount of compensation. 13. The accident took place on 09.11.2007 in which the appellant-claimant sustained a fracture of his right leg and on that very date the claimant was taken to the GBP Hospital, Agartala. He remained admitted there till 15.12.2007. During the course of his treatment, toe of his right leg was amputated. Though the medial bill was not exhibited but the tribunal, on the basis of discharge receipt issued by the Hospital, awarded the claimant Rs. 15,000/-, as cost of medical expenses. As far as this part of the compensation is concerned, there is no dispute and in fact, this Court feels that keeping in view the nature of injury Rs. 25,000/- can be awarded for the cost of his treatment. 14. Since there is no dispute that the appellant-claimant remained in hospital from 09.11.2007 to 15.12.2007. He would have been attended to at least by two attendants round the clock. The accident took place in the year 2007 and therefore, it the cost of each attendant is taken to be Rs. 250/- per day, the cost of two attendants comes to Rs. 500/- and for 37 days the cost of attendants itself works out to Rs. 9,250/- which is rounded off to Rs. 10,000/-. 15. It has been argued by Mr. Nandi, learned counsel for the appellant-claimant that no amount has been paid for future medical expenses. On the other hand, Mr. Chowdhury, learned counsel for the respondent insurance company, urges that there is no proof of future expenses. 16. Amputation of any body part develops complications which require further treatment as has happened in the case of the claimant. Therefore, some amount at least should have been awarded for future medical expenses. Taking aforesaid factor into consideration, he is awarded a sum of Rs. 50,000/- for future medical treatment. 16. Amputation of any body part develops complications which require further treatment as has happened in the case of the claimant. Therefore, some amount at least should have been awarded for future medical expenses. Taking aforesaid factor into consideration, he is awarded a sum of Rs. 50,000/- for future medical treatment. While awarding this amount, this Court is guided by the law laid down by the Apex Court in Sanjay Batham v. Munnalal Parihar and Others, reported in (2011) 10 SCC 665 and Nagappa vs. Gurudayal Singh and Others, reported in (2003) 2 SCC 274 . In Nagappa the Apex Court has explained the provision of future medical expenses as under: "23. However, it is to be clearly understood that M.V. Act does not provide for passing of further award after final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, Tribunal/Court should consider such eventuality and fix compensation accordingly. No one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fair guess-work after taking into account increase in the cost of medical treatment." 17. Coming to the head of non-pecuniary damages under the head of pain and suffering and loss of amenity of life, again this Court is of the view that the tribunal has acted miserly in awarding the compensation. The tribunal awarded Rs. 20,000/- to the claimant for pain and suffering. Normally in a case of fracture of the leg even Rs. 15,000/- to Rs. 20,000/- may be a reasonable amount. However, as discussed earlier, this is a case where the claimant had to undergo operation for amputation of toe and was still under treatment even after discharge from the hospital. Therefore, under these circumstances, an amount of Rs. 20,000/- is very low. One can hardly imagine the suffering undergone by a person whose limb is amputated. In fact, the loss of limb or the pain and suffering undergone by the appellant-claimant cannot be compensated. Therefore, he is awarded a sum of Rs. Therefore, under these circumstances, an amount of Rs. 20,000/- is very low. One can hardly imagine the suffering undergone by a person whose limb is amputated. In fact, the loss of limb or the pain and suffering undergone by the appellant-claimant cannot be compensated. Therefore, he is awarded a sum of Rs. 40,000/- for pain and suffering. In addition thereto, the claimant is entitled to loss for future disability etc. even if we ignore the disability certificate the fact remains that claimant cannot walk without crutch any further and therefore, he is awarded a sum of Rs. 50,000/- for loss of amenities, future disability etc. 18. Thus, the total compensation is assessed and enhanced as under: Expenses Awarded by the tribunal Awarded by this Court Medical expenses Rs. 15,000/- Rs. 25,000/- Cost of Attendants NIL Rs. 10,000/- Future medical expenses NIL Rs. 50,000/- Future loss of income Rs. 5,40,000/- Rs. 5,40,000/- For amputation of toe Rs. 30,000/- Rs. 30,000/- Pain and suffering Rs. 20,000/- Rs. 40,000/- Loss of amenities NIL Rs. 50,000/- Total Rs. 6,05,000/- Rs. 7,45,000/- 19. Further, it has been contended by the learned counsel that rate of interest awarded is on lower side. The learned tribunal should have awarded at the rate of 9% instead of at 6%. On bare reading of Section 171 of the Motor Vehicles Act, 1988 it can be seen that grant of interest is a discretionary power vested with the tribunal a claimant cannot claim it as a matter of right. Though such discretion must be exercised judicially but no strait-jacket formula can be provided. What is important is that, considering the fact and circumstances of the case, it must be fair and reasonable. The Apex Court in Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Another, reported in (2003) 3 SCC 148 , has opined as follows: "6. The question as to what should be rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time. 18. The question as to what should be rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time. 18. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering loss of future income, loss of enjoyment of life etc., into consideration." 20. It has also been highlighted that the rate of interest as awarded by the learned tribunal was given effect from 03.10.2012 (i.e. from the date of impleading the present respondent) and not from the date of claim petition filed before the tribunal on 18.09.2008 It is true that no one can claim interest before the date of claim petition but it is also true that the tribunal is not bound to award it from the date of petition. "How much to be awarded" and "from when to be awarded" lies with the discretion of the tribunal. The respondent in the instant case was impleaded on 03.10.2012 and it would be injustice if the interest is awarded from the date of petition. As such, to this extent there can be no interference. 21. However, there is one mistake which needs to be corrected. There cannot be any interest by way of default. Hence, the respondent herein is liable to pay interest at uniform rate of 9% from the date of the impleadment till the date of payment. 22. Coming to the next issue as contended by the learned counsel that while fastening liability upon the present respondent, the learned tribunal failed to apply/interpret the principle of composite negligence properly. As per the impugned order of the tribunal, the accident occurred due to negligence of the drivers of both the vehicles and thus, owners of both the vehicles would be liable to compensate the appellant-claimant. But, the learned tribunal has decided that the present respondent would be liable to pay the only up to the extent of 50% of the whole compensation amount. 23. But, the learned tribunal has decided that the present respondent would be liable to pay the only up to the extent of 50% of the whole compensation amount. 23. The law on contributory/composite negligence has been elaborately explained in Pawan Kumar and Others v. Harkishan Dass Mohan Lai and Others, reported in (2014) 3 SCC 590 : The distinction between the principles of composite and contributory negligence has been dealt with in Winfield & Jolowicz on Tort (Chapter 21) (15th Edition, 1998). It would be appropriate to notice the following passage from the said work:- "WHERE two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiff's advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role......." The question of whether there is one injury can be a difficult one. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous......." 8. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous......." 8. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in TO. Anthony (SCC p.) followed in K. Hemlatha & Ors. (SCC p. 751) Para 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted herein below: "6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 24. As per the judgment of the learned tribunal the accident occurred due to the composite negligence of the drivers of both the vehicles. Hence, it erred in deciding that liability to pay compensation lies with both the owners of vehicles (i.e. 50% each) and since the name of the owner of TR-01-F-0609 was struck off (on the ground that his vehicle was not insured), the appellant-claimant would be entitled to 50% of the compensation only (i.e. Rs. 3,02,500/-) as against the present respondent (Shri Debasish Dey). It would be pertinent to mention here that on perusal of the record, the striking off the name of the owner of TR-01-F-0609 was done because his vehicle was different than the vehicle mentioned in the FIR and was not involved in any accident on the relevant date (on p. 26-29 of the paper book). Moreover, it is a settled law on the point that in case of composite negligence the liability on joint tortfearsors are joint and several. The aggrieved can sue all or any one of them jointly or severally. 25. Moreover, it is a settled law on the point that in case of composite negligence the liability on joint tortfearsors are joint and several. The aggrieved can sue all or any one of them jointly or severally. 25. Reiterating the aforementioned position of law on composite/contributory negligence the Apex Court in Khenyei v. New India Assurance Company Limited and Others, reported in (2015) 9 SCC 273 has also discussed that who and how much will pay in case of composite negligence: (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings. 22.(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award." The tribunal has erred in its judgment that the present respondent i.e. the insurer would be liable only up to the extent of 50% of the total compensation. In light of the Khenyei he will be liable to pay the whole amount of compensation." 26. In light of the Khenyei he will be liable to pay the whole amount of compensation." 26. In view of the above discussion, the impugned judgment is modified and it is declared that the claimant-appellant shall be entitled to total compensation as assessed/quantified. He shall also be entitled to interest at the rate of 9% per annum from the date of filing of the petition i.e. 18.09.2008 till realization. The present respondent No. 2 is directed to pay the enhanced amount of compensation to the appellant with interest at the rate of 9% within a period of 2(two) months from today. 27. Mr. S. Datta Choudhury, learned counsel for the respondent-insurer, states that if the claimant-appellant were to supply the details of the bank account, the insurer would directly remit the amount within a period of two months from today, in terms of the present judgment. Mr. Ashish Nandi, learned counsel for the claimant-appellant, states that the particulars shall be handed over to Mr. S. Datta Choudhury, learned counsel for the respondent-insurer, within one week. 28. In view of above, the appeal is disposed of in the aforesaid terms.