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2023 DIGILAW 36 (JK)

Utam Chand v. Union of India

2023-02-10

RAJNESH OSWAL

body2023
JUDGMENT : Rajnesh Oswal, J. 1. This Civil Miscellaneous Appeal has been preferred by the appellant against the award dated 14.07.2015 passed by the Presiding Officer, Motor Accidents Claims Tribunal (2nd Additional District Judge), Jammu (for short the Tribunal), on the ground that the learned Tribunal has not granted sufficient compensation to the appellant as the appellant had incurred more than 15.00 lacs on his treatment and further that a meagre compensation has been awarded to the appellant under the head of “pain and suffering” where in fact his marriage prospects have been shattered. The appellant has also placed on record the medical bills for an amount of Rs. 11,793.35/- to demonstrate that the appellant has been still under treatment and medication. 2. Mr. L.K. Sharma, learned senior counsel appearing for the appellant vehemently argued that the insufficient compensation has been awarded to the appellant under the head “pain and suffering” and further that no compensation has been awarded to the appellant on account of loss of marriage prospects and even future medical expenses for an amount of Rs. 1,80,000/- including the expenses of attendant and transport are very meagre. 3. Mr. Suneel Malhotra, learned CGSC representing respondent No. 1 vehemently argued that the appellant is a Government teacher and no financial loss has occasioned to the appellant as such, there is no impropriety in the award as sufficient compensation has been awarded to the appellant. 4. Heard and perused the record. 5. From the record, it transpires that the appellant was a victim of road accident that occurred on 30.11.2010 and because of injuries suffered by him, the appellant filed a claim petition, through his father, under section 166 read with section 140 of the Motor Vehicle Act for seeking compensation of Rs. 1,52,70,000/- on account of loss of income, for pain and suffering, medical expenses and expenses for the attendant. The petition was contested by the respondent No. 1. Learned Tribunal after considering the evidence of the appellant and the respondent No. 1, vide award dated 14.07.2015 awarded the compensation of Rs. 16,03,932/- under the following heads: 1. Medical and Misc Expenses Rs. 13,23,932/- 2. Future Medical expenditure including attendant and transport Rs. 1,80,000/- 3. Pain and suffering Rs. 1,00,000/- Total Rs. 16,03,932/- 6. The appellant had examined his father and three other witnesses namely Raj Kumar, Sohan Lal and Dr. 16,03,932/- under the following heads: 1. Medical and Misc Expenses Rs. 13,23,932/- 2. Future Medical expenditure including attendant and transport Rs. 1,80,000/- 3. Pain and suffering Rs. 1,00,000/- Total Rs. 16,03,932/- 6. The appellant had examined his father and three other witnesses namely Raj Kumar, Sohan Lal and Dr. Lalit Andotra in support of his claim whereas the respondent No. 1 has also examined one witness i.e. respondent No. 2. 7. The contention of the appellant in this appeal is that insufficient compensation has been awarded to him. Dr. Lalit Andotra, who was examined by the appellant has stated that the appellant was examined by the Board and he was one of the members of the Board. The Board was of the opinion that the appellant had post head injury residual deficit amounting to 25% permanent disability and the said disability was lifelong. 8. Thus, the appellant had successfully proved that he was suffering from 25% disability which was post head injury residual deficit. With this disability, the appellant cannot lead a normal life. The appellant has also undergone surgery firstly at Bee Enn Charitable Hospital and thereafter at DMC, Ludhiana, the fact duly proved by the appellant as mentioned in the award. The appellant has undergone great trauma not only for reason of suffering injury but also because of the subsequent surgeries as such, this Court is of the considered view that a sum of Rs. 1,00,000/- granted to the appellant as compensation on account of pain and suffering is on the lower side and rather a sum of Rs. 3,00,000/- should have been awarded to the appellant on account of pain and suffering. 9. Further from the award, it is evident that no compensation has been awarded to the appellant on account of loss of prospects of marriage and amenities as such, a sum of Rs. 2,00,000/- is required to be awarded to the appellant under this head as well. The appellant has placed on record the bills amounting to Rs. 11,793.35/- to demonstrate that he is still under treatment. 10. So far as compensation of Rs. 1,80,000/- on account of “future medical expenses including attendant and transport” is concerned, the same too appears to be on lesser side and the compensation under the head of “future medical expenses including attendant expenses” is required to be enhanced to Rs. 3,00,000/- in lump sum. 10. So far as compensation of Rs. 1,80,000/- on account of “future medical expenses including attendant and transport” is concerned, the same too appears to be on lesser side and the compensation under the head of “future medical expenses including attendant expenses” is required to be enhanced to Rs. 3,00,000/- in lump sum. In Master Ayush vs. Reliance General Insurance Co. Ltd. 2022 SCC Online SC 375, while considering the issue compensation for injuries suffered by the child of 5 years in vehicular accident, Hon'ble Apex Court has observed and held as under: “11. As per the medical certificate produced by the appellant, with Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches, the appellant can perform independent ambulation. Therefore, the condition of the appellant is not entirely comparable to Kajal who was confined to bed with mental age of 9 months' old child. The appellant herein is not able to move his both legs and had complete sensory loss in the legs, urinary incontinence and bowel constipation and bed sore. 12. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e. Rs. 10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs. 2 lakhs as conveyance charges. 13. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs. 2 lakhs as conveyance charges. 13. No compensation is warranted to be payable under the heading “food and nourishment or towards loss of childhood” as it stands subsumed in the compensation assessed under the other different heads. In view of the judgment in Kajal and other principles of determination of compensation, the amount payable would be as under: Head Amount A Loss of future earnings due to the Permanent Disability for life (3700+1480=5180) x 12 x 18 Rs. 11,18,880/- B Medical expenses Rs. 5,74,000/- C Future medical expenses i.e. towards purchase of 2 devices Rs. 10,00,000/- D Pain, suffering and Loss of amenities Rs. 10,00,000/- E Loss of Marriage prospects Rs. 3,00,000/- F One Attendant charges (3700x12x18)=7,99,200/- rounded off Rs. 8,00,000/- G Conveyance charges Rs. 2,00,000/- Total Rs. 49,92,880/- Rounded off Rs. 49,93,000/- 11. So far as the claim of the appellant with regard to the future prospects of service career is concerned, this Court does not find any impropriety as the learned Tribunal has returned the finding that the appellant is regularly getting his salary, so there is no monetary loss to the appellant. The bills amounting to Rs. 11,793.35/- are covered under the Head “future medical expenses.” 12. In view of the above, the present appeal is partly allowed and the award dated 14.07.2015 is modified and the respondent No. 1 is directed to pay the compensation of Rs. 21,23,932/- under the following heads: 1. Medical and Misc. Expenses Rs. 13,23,932/- 2. Future Medical expenditure including attendant and transport Rs. 3,00,000/- 3. Pain and suffering Rs. 3,00,000/- 4. Loss of prospects of marriage and amenities Rs. 2,00,000/- Total 21,23,932/- 13. The respondent No. 1 shall deposit the whole amount, if not already deposited, with the Registry of this Court along with up-to-date interest in terms of the award passed by the learned Tribunal within a period of thirty days. The interim award, if any, already paid to the appellant be deducted from the award. After deposit of the foresaid award, the same be released in favour of the appellant.