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2019 DIGILAW 893 (CAL)

NATIONAL INSURANCE CO. LTD. v. MEGHNATH GHARA

2019-09-27

HARISH TANDON, SUBHASIS DASGUPTA

body2019
JUDGMENT : Harish Tandon, J. - This appeal is at the instance of Insurance Company challenging an award dated 16.08.2013 passed by Motor Accident Claims Tribunal,2nd Fast Track Court, Tamluk in MACC no. 104 of 2013 disposing of an application U/s 166 of the Motor Vehicles Act awarding a compensation of Rs.5,83,000/- along with 6% simple interest from the date of filing of application if such compensation is paid within one month from the date of the order, in default, interest would be payable at the rate of 9% till recovery. The facts so unfurled are that the claimant while going to his relatives house from his residence by riding a cycle through NH-41 was dashed from behind by the offending vehicle as a result, he sustained multiple injuries in the right side of his eye, leg and all over the body. The victim was taken to a nearby hospital at Tamluk and was later on advised to be shifted to SSKM hospital at Calcutta. 2. It is not in dispute that the victim was under treatment from 20.01.2011 to 29.01.2011 and claimed to have spent more or less Rs.1,00,000/- for her treatment. The accident occurred at 5:00 P.M on 20th January,2011 and the complaint was lodged with the police station on 22nd January 2011. The claimant was nineteen years of age at the time of such accident and was working as a mason earning Rs.250/- per day. 3. It is further stated that the driver of the offending vehicle was driving rashly, negligently and recklessly and no contributory negligent can be attributed to the claimant. The Insurance Company resisted the claim taking a plea of negligence on the part of the claimant and also non-involvement of the offending vehicle. The claim is further resisted on the plea of delayed lodging of a FIR. 4. In the backdrop of the aforesaid pleadings the matter went in trial and the claimant being a first witness ( P.W.1) not only corroborated the statement made in the claim petition but also submitted the disability certificate issued by the medical board evincing the permanent disability to the extent of 60%. The nature of the disability could be revealed from the disability certificate to be quadriparesis and speech abnormality from head injury. In column 7 thereof it is indicated that he needs walking aid. The nature of the disability could be revealed from the disability certificate to be quadriparesis and speech abnormality from head injury. In column 7 thereof it is indicated that he needs walking aid. The occurrence of the incident is proved by the eye-witness who was cited as second witness by the claimant and nothing could transpire from the cross-examination of the Insurance Company. One of the doctor who signed the disability certificate was called as third witness by the claimant who explained the cause of disability and its extent. There is no witness cited by the Insurance Company and the claim petition was decided on the basis of the available materials on record. 5. The Tribunal construed the disability certificate and the extent of disability and held that the claimant have suffered a cent percent loss of income and proceeded to assess the compensation both pecuniary and non-pecuniary. 6. The challenge to the award is primarily founded on solitary ground when the disability certificate indicates the permanent disability to the extent of 60%, the Tribunal wrongly proceeded to treat the disability said person in determining the compensation. 7. To elaborate the aforesaid ground of challenge the Learned Advocate for the Insurance company submits that the claimant could not prove that because of such permanent disability he has lost the prospect of earning and, therefore, the Tribunal erred in assessing such permanent disability at cent percent. On the other hand the claimant also challenged a portion of the findings of the Trial Court in cross-objection filed under Order 41 Rule 22 of the code to the extent of the multiplier applied by the Tribunal. According to the Learned Advocate of the claimant considering the age of the claimant multiplier 19 should have been suitably applied instead of 16 as per the judgment of the Apex Court in case of Sarla Verma & Ors-Vs Delhi Transport Corporation and another, (2009) 6 SCC 121 . 8. It is no gain saying that the question of payment of compensation for accidents assumes great importance because of a steep rise therein not only in our country but globally. In the formative stage the theory of payment of compensation was primarily linked with the tortious liability when the compensation used to be awarded only when an injury or damage was caused by some one's fault. In the formative stage the theory of payment of compensation was primarily linked with the tortious liability when the compensation used to be awarded only when an injury or damage was caused by some one's fault. Subsequently the injury caused by some one's fault is construed as some one' s negligence and carelessness entitling the person to claim damages as actionable one irrespective of the kind of activity out of which the damage arose in case of a tort it was a primary duty of the claimant to show that the adversary was negligent and there was a complete failure on its part to take the reasonable care and precaution which is expected from a common man. 9. In order to bring clarity and uniformity in assessment of the compensation the adequate provision was incorporated in the Motor Vehicles Act,1988 where the Tribunals were bestowed with the powers to assess and determine the compensation which should be just to the extent possible restoring the claimant to the position prior to the accident fully and adequately. The provisions were aimed to make the good law suffered as a result of the accident as far as the money can do in fair, reasonably and equitable manner. The role of the Court should not be such to find lacunae or defeat the claim on hyper technicalities but to assess the damage objectively though with some conjectures in relation to the nature of disability and its consequences are inevitable sufficient care, precaution and reasonable approach are required to be taken by the Tribunal by awarding adequate compensation for inability to lead full life, enjoy basic amenities which he would have enjoyed but for such accident is deprived. 10. Above all, inability to earn what he is expected to do prior to the accident should also be taken into account. The Supreme Court in case of R.D. Hattangadi Vs- Pest Control ( India ) Pvt. Ltd & Ors., (1995) WBLR 127 (SC) held that the damages should be assessed not only on pecuniary basis but on nonpecuniary as well in these words:- "9. 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. 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 is 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 upto the date of trial ; (iii) other material loss. So far nonpecuniary damages are concerned, they may include ( i) damages for mental and physical shock, pain 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. 10. It cannot be disputed that because of the accident the appellant who was an active practicing lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said payable for any injury suffered during an accident, the object is to compensate such injury " so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame." 11. That is why it has been said payable for any injury suffered during an accident, the object is to compensate such injury " so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame." 11. What can be seen from the scheme of the provisions relating to compensation under the Motor Vehicles Act that it is some what less difficult to asses and determine the compensation in case of fatal accident i.e., death but in case of personal injury causing partial and permanent disability to a certain extent the object is to put the claimant into a position that of the date prior to accident as far as money can do. In case of a disability or personal injury sometimes it becomes difficult to assess just compensation and it is an onerous duty of the Tribunals or the Courts to determine reasonable and in equitable manner. The reliance can be placed to a decision of the Supreme Court in case of Arvind Kumar Mishra Vs- New India Assurance Company Limited and Another, (2010) 10 SCC 254 wherein it is held:- " 9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. 10. In some cases for personal injury, the claim could be in respect of lifetime's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases and that is now recognised mode as to the proper measure of compensation- is taking an appropriate multiplier of an appropriate multiplicand." 12. It would not be proper to ignore the enlightening observations made in case of Raj Kumar Vs- Ajay Kumar and Another, (2011) 1 SCC 343 where the Apex Court held that in case of personal injuries the assessment of compensation should be both on pecuniary and non-pecuniary damages in these words: "6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. ii) Loss of earnings ( 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 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. 7. Assessment of pecuniary damages under Item (I) and under Item (ii) (a) do not pose much difficult as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expensesItem (iii)- depends upon specific medical evidence regarding need for further treatment and cost thereof. 7. Assessment of pecuniary damages under Item (I) and under Item (ii) (a) do not pose much difficult as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expensesItem (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 poses some difficulty is the assessment of the loss of future earnings on account of permanent disability-Item (ii)(a). We are concerned with that assessment in this case." 13. In the said report the Apex Court further held that the Tribunal should not mechanically apply the percentage of permanent disability as percentage of economic loss or loss of earning capacity in these words:- "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 thee 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 earinings would depend upon the effect and impact of such permanent disability on his earning capacity. 10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earinings 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, the 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. 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." 14. In paragraph 13 and 14 of the said judgment the Court held:- "13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (I) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding , on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity." 15. What can be gathered from the aforesaid observations made in the above impugned decision that the percentage of permanent disability cannot be taken as criterion for the percentage of loss of earning capacity or loss of earning. What is required to be seen is whether the claimant who suffered personal injury was still able to continue with his avocation and such disabilities do not impair his earning capacity. It therefore depends upon the nature of the person and the nature of his avocation and, therefore, each case is required to be judged separately . 16. The nature of the disability certificate issued by the medical board is required to be seen carefully. It therefore depends upon the nature of the person and the nature of his avocation and, therefore, each case is required to be judged separately . 16. The nature of the disability certificate issued by the medical board is required to be seen carefully. Sometimes the disability in a particular limb of the body may lead to 40 or 50 % of permanent disability but if it does not impair the work efficiency because of the special nature of job it may not entitle him to claim compensation as there was no loss of earning capacity. However, he may be awarded compensation under the non-pecuniary damages because of the sufferance by pain and deprivation to lead a normal life. 17. If the percentage of disability impairs the capability to earn because of the special nature of job and the skill required therefor, the Tribunals / Court can proceed to treat such disability as cent percent in awarding the compensation. 18. In the instant case the claimant was a mason and was earning his livelihood as mosaic stone setter. The disability certificate produced before the Trial Court indicates a permanent disability to the extent of 60% and the nature of disability is shown as quadriparesis and speech abnormality from head injury. The doctor who deposed in the case explains the meaning of the medical term " quadriparesis" as weakness in action of four limbs i.e., both arms and both legs. The cause for quadriparesis can be seen as damage to nervous system due to an injury or another medical condition. A person with quadriparesis experiences weakness and a partial loss of functions of the limbs and faces difficulty in controlling the muscles in the affected body parts The symptom of the quadriparesis is that when the nerves signals from the brain along with the spine to the muscles in four limbs are disturbed. The said symptom is caused by the damage to the nervous system due to injury. It is admitted in the instant case that the claimant suffered grievous injury by the accident and have been diagnosed to have suffered for quadriparesis and, therefore, suffers a weakness in four limbs. The said symptom is caused by the damage to the nervous system due to injury. It is admitted in the instant case that the claimant suffered grievous injury by the accident and have been diagnosed to have suffered for quadriparesis and, therefore, suffers a weakness in four limbs. A skilled laborer who sets mosaic tiles and earns livelihood on daily basis normally has to work continuously for several hours which not only requires constant movements of four limbs but also the strength to withhold the weight of those tiles because of such weakness he cannot earn his livelihood as a skilled laborer and, therefore, we find no reason to hold that his disability is to the extent of 60% and not cent %. 19. We, therefore, do not find any merit in the aforesaid contention of the appellant. 20. The appeal is thus dismissed. 21. Now we take the cross-objection filed by the claimant challenging the multiplier applied by the Trial Court. 22. Admittedly the claimant was nineteen years of age at the time of such accident. 23. The Apex Court in case of Sarala Verma ( supra) held:- " We therefore hold that the multiplier to be used should be as mentioned in Column(4) of the Table above(prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18(for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." 24. In view of the above the Tribunal erred in applying multiplier 16 instead of 18 and, therefore, we feel that the cross-objection is required to be allowed. 25. Accordingly, the impugned award is modified to the extent that the compensation payable to the petitioner shall be Rs.36,000 x 18 = Rs. 6,48,000/- along with that for the medical expenses he may be awarded another Rs.4,500/- @ Rs.500/- per day and for his pain and suffering another Rs. 2,500/- may be awarded. So, calculating all the above compensation, the total compensation will be Rs. 6,55,000/-. 26. The aforesaid amount shall carry interest at the rate of 9% per annum from the date of filing of the main application till the recovery. 27. The appeal is accordingly disposed of. 2,500/- may be awarded. So, calculating all the above compensation, the total compensation will be Rs. 6,55,000/-. 26. The aforesaid amount shall carry interest at the rate of 9% per annum from the date of filing of the main application till the recovery. 27. The appeal is accordingly disposed of. 28. It has been informed to us that the Insurance Company has already deposited the amount awarded in the impugned award with the Registrar General of this Court inclusive of the statutory deposit of Rs.25,000/- and the same has been invested in a short-term fixed deposit carrying interest. 29. Liberty is granted to the claimant/respondent to apply before the Registrar General for release of the said amount and if such application is made, the Registrar General shall disburse the said amount to the claimant by issuing a cheque earmarking that the same shall be encashed in the individual bank account of the said claimant, the details whereof shall be furnished by the Advocate-on-record of the said claimant/respondent. 30. In case of any shortfall, the balance amount shall be credited in the bank account of the claimant/respondent by the appellant's Insurance Company within four weeks from date provided the particulars and details of the said amount is furnished by 1st October,2019. 31. I agree.