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2024 DIGILAW 605 (JHR)

Laxmi Devi v. Jay Prakash Singh

2024-06-21

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard Mr. Shiwam Lath, learned counsel appearing for the appellant and Mr. Ajay Kumar Pathak, learned counsel appearing for respondent no.3- insurance company. 2. The appellant, being aggrieved with the judgment and award dated 21.09.2015 passed by the learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No.86 of 2007, has preferred this miscellaneous appeal. 3. The appellant-claimant has filed the Compensation Case No.86/2007 under Section 166 of Motor Vehicles Act for compensation of Rs.5,00,000/- on account of motor vehicle accidental injuries besides the interest. The claimant's case before the learned Tribunal was that on 29.09.2001, the claimant-Laxmi Devi was travelling by Bus No. BPV-9039 from village Bhandra to Ranchi and the driver of the bus tried to overtake a bus in high speed, as a result of which, it capsized in the left side of road causing grievous injuries to several passengers including the claimant. The injured passengers were immediately rushed to Rajendra Institute of Medical Science (RIMS), Ranchi for their treatment. It was further alleged that due to spinal injuries, the claimant was unable to move and became crippled and was fully dependent on others and she was unable to perform her normal works. The claimant has incurred huge expenditure in her treatment and rehabilitation and the attending doctors have opined that she might not fully recover. It was also alleged that the accident occurred due to rash and negligent driving by the driver of the offending bus and the claimant is entitled for compensation of Rs.5,00,000/- on account of motor vehicle accidental injuries. In this background, the said compensation case was filed. On the basis of fardbeyan of Shafique Ansari, a case being Itki P.S. Case No.22/2001 dated 29.09.2001 was registered against the driver of bus bearing No. BPV-9039 for the offence under Section 279/337/338 of the Indian Penal Code and after investigation, charge-sheet was submitted against Somra Oraon, the driver of offending bus under the aforesaid sections. 4. Mr. On the basis of fardbeyan of Shafique Ansari, a case being Itki P.S. Case No.22/2001 dated 29.09.2001 was registered against the driver of bus bearing No. BPV-9039 for the offence under Section 279/337/338 of the Indian Penal Code and after investigation, charge-sheet was submitted against Somra Oraon, the driver of offending bus under the aforesaid sections. 4. Mr. Shiwam Lath, learned counsel appearing for the appellant submits that the learned Tribunal has awarded the claim of compensation to the tune of Rs.1,36,200/- along with interest @ 7% per annum from the date of the award/judgment dated 21.09.2015 and the insurance company of the offending vehicle was directed to pay the said amount along with interest within 30 days from the date of the award/judgment, failing which, the claimant was put at liberty to realize the same through the process of the Court. He submits that the learned Tribunal has erred in giving such finding as the amount awarded by the learned Tribunal is on lesser side. He submits that only on the basis of surmises and conjectures, the said finding was given by the learned Tribunal. He further submits that the learned Tribunal has erred in not considering the permanent disability certificate of 20% issued by the Primary Health Centre, Lohardaga. He submits that the learned Tribunal has wrongly discarded the said certificate only on the ground that there is no certificate of any Civil Surgeon. He also submits that in the treatment, the expenditure of more than Rs.3,50,000/- was made and the learned Tribunal has awarded the meager amount. He submits that the learned Tribunal has only awarded sum of Rs.25,000/- for future medical expenses instead of allowing sum of at least Rs.5,00,000/-. He submits that for the damages for pain, suffering and trauma, the learned Tribunal has awarded only Rs.50,000/- and for loss of amenities, sum of Rs.25,000/- only has been awarded. He submits that the learned Tribunal has erred in coming to the finding that this appellant-claimant has stated before the learned Tribunal in her evidence that she is moving without support of any artificial machine. On these grounds, he submits that the awarded amount is required to be enhanced. 5. Mr. He submits that the learned Tribunal has erred in coming to the finding that this appellant-claimant has stated before the learned Tribunal in her evidence that she is moving without support of any artificial machine. On these grounds, he submits that the awarded amount is required to be enhanced. 5. Mr. Ajay Kumar Pathak, learned counsel appearing for respondent no.3-insurance company opposed the prayer on the ground that the learned Tribunal has rightly come to that finding and there is clear-cut finding and the award has already been satisfied in favour of the appellant-claimant by the insurance company. He submits that the learned Tribunal has discarded the said certificate of 20% disability on the ground that the certificate was not issued by the Civil Surgeon. According to him, there is no need of any enhancement in the case. 6. The L.C.R. has been called by the earlier order by the Coordinate Bench of this Court. In the evidence, the appellant-claimant has stated before the learned Tribunal that she was not able to even sit properly and in the spinal cord, she was supported with artificial machine. The exhibits on the record further suggest that the appellant-claimant was treated in Nagarmal Modi Seva Sadan, Ranchi as well as Rajendra Institute of Medical Sciences (RIMS), Ranchi, whereas, the learned Tribunal has come to a conclusion that no document is on the record to suggest that the appellant-claimant was treated in Nagarmal Modi Seva Sadan Ranchi as well as Rajendra Institute of Medical Sciences (RIMS), which is contradictory finding of the learned Tribunal. 7. With regard to disability, the Hon'ble Supreme Court has considered whether permanent disability caused, has any adverse effect on the earning capacity of the claimant in the case of Sandeep Khanuja v. Atul Dande and another, reported in (2017) 3 SCC 351, wherein, in paragraph 14, it has been held as under: “14. The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, MACT approached the issue in the right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of MACT, on the application of the aforesaid test, is erroneous. In this sense, MACT approached the issue in the right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is not impaired. Such a conclusion was justified if the appellant was in the employment where job requirement could be to do sitting/table work and receive monthly salary for the said work. An important feature and aspect which is ignored by MACT is that the appellant is a professional Chartered Accountant. To do this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is not only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did not go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of compensation with the adoption of multiplier method, as held by this Court in Yadava Kumar v. National Insurance Co. Ltd:- “9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Ltd:- “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. 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.” 8. In the case of Raj Kumar v. Ajay Kumar and another, reported in (2011) 1 SCC 343 , the Hon’ble Supreme Court has held that where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation for loss of future earnings would depend upon the impact and effect of the permanent disability on his earning capacity. 9. It is well settled principle that a person must not only be compensated for his physical injury, but also for the non pecuniary losses which he has suffered due to the injury. The claimant is entitled to be compensated for his inability to lead a full life and enjoy those things and amenities which he would have enjoyed, but for the injuries. 10. Admittedly, Exts. X and X/17 are medical certificates issued by Dr. R. Prasad of Primary Health Centre saying that there is 20% disability of the appellant-claimant and admittedly, that doctor was not examined, however, the said Health Centre is a Government Centre and the doctor of that Centre has issued that certificate. In that view of the matter, the certificate cannot discarded. 11. R. Prasad of Primary Health Centre saying that there is 20% disability of the appellant-claimant and admittedly, that doctor was not examined, however, the said Health Centre is a Government Centre and the doctor of that Centre has issued that certificate. In that view of the matter, the certificate cannot discarded. 11. The method of assessing future prospect has been considered by the Hon'ble Supreme Court in the case of Jithendran v. New India Assurance Co. Ltd. & another, reported in (2021) SCC OnLine SC 983, wherein in paragraph 22, it has been held as under: “22. As noted earlier, the impact on the earning capacity for the claimant by virtue of his 69% disability must not be measured as a proportionate loss of his earning capacity. The earning life for the appellant is over and as such his income loss has to be quantified as 100%. There is no other way to assess the earning loss since the appellant is incapacitated for life and is confined to home. In such circumstances, his loss of earning capacity must be fixed at 100%. As his monthly income was Rs.4,500/-, adding 40% future prospect thereto, the monthly loss of earning is quantified as Rs.6,300/-. We therefore deem it appropriate to quantify Rs.13,60,800/- (Rs.6,300 x 12 x 18) as compensation for 100% loss of earning for the claimant. Accordingly, under this head, the amount awarded by the High Court is enhanced proportionately.” 12. In view of the above, in the present appeal, the doctor has not been examined and considering the medical certificate issued by the Primary Health Centre, which suggests that 20% deformity, that can be assessed to the tune of 15% for the future prospect. Accordingly, future prospect shall be calculated @ 15% and in view of that, that head is raised to the tune of Rs.1,00,000/- and the learned Tribunal has awarded in that head only Rs.50,000/-. 13. In light of the documents, which are on the record, the Court finds that so far as medical expenses are concerned, that finding of the learned Tribunal is not required to be interfered as correctly that finding has arrived at by the learned Tribunal. 14. The appellant-claimant will be entitled for Rs.10,000/- under the Conveyance head and Rs.15,000/- under Special Diet. 14. The appellant-claimant will be entitled for Rs.10,000/- under the Conveyance head and Rs.15,000/- under Special Diet. The appellant-claimant will also be entitled for Rs.75,000/- under Pain and Suffering head, however, the learned Tribunal has awarded the sum of Rs.50,000/- only. The learned Tribunal has awarded Rs.25,000/- under the head of Loss of disability and disfigurement, which is required to be raised by Rs.50,000/-. 15. In view of the above facts, the impugned award/judgment dated 21.09.2015 passed in Compensation Case No.86 of 2007 by the learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi is modified to the above extent. The appellant-claimant will be entitled to the aforesaid modified amount from the date of filing of the said compensation case, whereas, the learned Tribunal has allowed it from the date of the award. 16. It is made clear that if the award is already satisfied, the same shall be deducted and rest amount shall be paid by the insurance company to the appellant-claimant within eight weeks from the date of receipt/production of a copy of this order. 17. It is further made clear so far as other direction of the learned Tribunal is concerned, the same is kept intact. 18. Accordingly, this appeal is disposed of. Pending I.A., if any, is also disposed of. 19. Let L.C.R. be transmitted back to the learned Court concerned.