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Madhya Pradesh High Court · body

2025 DIGILAW 501 (MP)

Neeraj Kumar Sahu v. Ashok Kumar Jain

2025-08-14

HIMANSHU JOSHI

body2025
ORDER : HIMANSHU JOSHI, J. The instant Miscellaneous Appeal assails the correctness of award dated 27.07.2001 passed by Second Additional Motor Accident Tribunal, Tikamgarh, in Claim Case No.26/2001, whereby learned Tribunal had awarded a sum of Rs.1,49,635/- towards compensation; the same was in respect of a road accident which occurred on 30.09.1997 in which the appellant?/claimant was injured resulting into amputation of his one leg. 2. It is undisputed that on 30.09.1997, when the appellant/claimant was standing besides the shop of one Sumat Chandra Jain situated at village- Bamhouri Barana, he met with an accident due to rash and negligent driving of respondent No.2 who was driving the truck bearing Registration No.MP- 15-D-4475. The said offending vehicle, on the date of accident, was owned by respondent No.1 and insured with respondent No.3. On the date of accident, the appellant/claimant was a minor aged about 08 years only. He had filed a claim petition against the respondents before learned Tribunal through his natural guardian (father) for realization of compensation of Rs.9,34,300/-, but learned Tribunal awarded only Rs.1,49,635/- with interest @ 9% per annum. 3. It is contended by learned counsel for the appellant/claimant that learned Tribunal did not consider the aspect that as a result of the accident, the appellant became permanently disabled as his right leg had to be amputated and on account of such injury, he is unable to discharge even his daily routine activities. The appellant/claimant has become more than 50% disabled; his future earning capacity has also been affected. He has further contended that learned Additional Motor Accident Claims Tribunal erred in passing the impugned award, by not assessing the quantum of award properly. The appellant/claimant deserves to be awarded more amount under all the heads. In the light of various judgments passed by the Hon'ble Supreme Court, the amount under the head of 'Future Prospects' should also be granted in favour of the appellant. With the aforesaid submissions, he has prayed for allowing the appeal. 4. Per contra, learned counsel for respondent No.1 has submitted that respondent No.1 is the owner of the offending vehicle and a formal party in the instant appeal as the liability is upon respondent No.3/Insurance Company. 5. With the aforesaid submissions, he has prayed for allowing the appeal. 4. Per contra, learned counsel for respondent No.1 has submitted that respondent No.1 is the owner of the offending vehicle and a formal party in the instant appeal as the liability is upon respondent No.3/Insurance Company. 5. Learned counsel for respondent No.3 has submitted that in fact, taking into consideration the relevant factors for assessing the claim at the relevant point of time, the compensation awarded by learned Tribunal is just and proper, has prayed for dismissal of appeal. 6. I have heard the submissions advanced by learned counsel for the parties and also perused the material available on record. 7. The learned Tribunal has awarded the compensation as shown in the table below - Head Compensation Amount awarded by MACT P.D./Injuries (Rs.15,000/- notional income per annum with multiplier of 15 on 50% disability 1,13,000/- Pain and Suffering 10,000/- Medical Expenses 8,635/- Attendant Expenses 3,000/- Special Diet 5,000/- Transport 10,000/- Total Award Amount 1,49,635/- 8. The sum and substance of the contentions of learned counsel for the appellant/claimant is that learned Tribunal did not assess the quantum in different heads properly and no amount has been awarded under the head of "Future Prospects". 9. Before proceeding to consider the appeal on merits, it would be useful to refer to the judgment of the Hon'ble Supreme Court passed in the case of Raj Kumar vs. Ajay Kumar & Another [ (2011) 1 SCC 343 ] wherein the general principles relating to compensation in injury cases; assessment of loss of future earnings on account of permanent disability; assessment of compensation in injury cases, have been discussed at length. The relevant paragraphs of the said judgment are extracted as under: "5. The provision of the Motor Vehicles Act, 1988 (“the Act”, for short) makes it clear 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 the 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. The court or the 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. [See C.K. Subramania Iyer v. T. Kunhikuttan Nair [ (1969) 3 SCC 64 : AIR 1970 SC 376 ] , R.D. Hattangadi v. Pest Control (India) (P) Ltd. [ (1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Baker v. Willoughby [ 1970 AC 467 : (1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)]. 6. 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 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 difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. 7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses—Item (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. Assessment of future loss of earnings due to permanent disability. 8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily fu nctions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Disabilities Act”, for short). The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Disabilities Act”, for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 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 there 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 earnings 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. 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. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. [ (2010) 10 SCC 254 : (2010) 3 SCC (Cri.) 1258: (2010) 10 Scale 298 ] and Yadava Kumar v. National Insurance Co.Ltd. [(2010) 10 SCC 341: (2010) 3 SCC (Cri.) 1285: (2010) 8 Scale 567 )]. 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 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 pe rmanent 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. xxx xxx xxx 19. We may now summarize the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors." 10. Applying the aforesaid principles to the instant case, this Court shall now deal with the merits of the matter and in order to determine the justifiability of awarded amount, this Court has to see as to whether learned Tribunal has rightly assessed the notional income of injured/claimant or not ? 11. On perusal of the impugned award, it appears that learned Tribunal has assessed the notional income of injured as Rs.15,000/- per annum, though the award is silent on the point as to where from learned Tribunal assessed such notional income, however, as argued by the parties, by applying the Second Schedule given under the Motor Vehicles Act, 1988 [for short 'the Act, 1988'], that outlines the compensation structure for third-party fatal accidents and injury cases and according thereof, the notional income has to be considered for compensation to those who had no income prior to accident for disability in non-fatal accidents for non-earning persons would be Rs.15,000/- per annum, learned Tribunal has assessed the notional income of injured/minor claimant. 12. Now, the question which arises before this Court is as to whether in the claim proceedings initiated under Section 166 of the Act, 1988, the guidelines given in Second Schedule referred under Section 163-A, would be applicable or not? 13. Recently, the Hon'ble Supreme Court in the case of Thangavel & Ors. Vs. The Managing Director, Tamil Nadu State Transport Corporation Limited [Civil Appeal No. 3595 of 2024], while dealing with the case relating to minor (though deceased) has held as under :- "5. There is no straight jacket formula as to the income to be adopted in the case of children when they suffer injuries or succumb to death, in a motor vehicle accident. In fact, the Tribunal had considered a Division Bench decision which adopted the income of Rs.5,000/- per month for a 9-year old. There is no straight jacket formula as to the income to be adopted in the case of children when they suffer injuries or succumb to death, in a motor vehicle accident. In fact, the Tribunal had considered a Division Bench decision which adopted the income of Rs.5,000/- per month for a 9-year old. The High Court does not give any reasoning to deviate from the said monthly income adopted by a Division Bench and merely adopts the income as per Schedule II. SScchheedduullee IIII iiss aapppplliieedd iinn ccaasseess where the claim is made under Section 163A of the Act, which proceeds on a ‘no fault liability’. In the present case a claim under Section 166 of the Act was preferred and there was negligence found on the driver of the offending vehicle. (Emphasis Supplied)" 14. In the case at hand, the claimant was minor at the time of accident and had filed a claim petition through his guardian under Section 140 r/w Section 166 of the Act, 1988, and there was negligence found on the part of the driver of offending vehicle and the vehicle being insured, liability has been fixed upon the Insurance Company. Since, the present case does not fall under the category of 'no fault liability' case, therefore, the applicability of Second Schedule is ousted. If a minor child is injured/killed in an accident and the claim is filed under Section 166 of the Act, 1988, learned Tribunal will assess the child's potential future income (notional income) and apply the appropriate multiplier and future prospects to arrive at the compensation amount. If the claim is filed under Section 163-A of the Act, 1988, and the child's income is within the specified limit, then the structured formula of Second Schedule will be applied. Therefore, this Court is of the considered opinion that the notional income assessed by learned Tribunal is not proper and the same deserves to be re-assessed by this Court. 15. The incident occurred in the year 1997, when the injured was aged about 08 years and studying in class-3 and undisputably, he was assisting his father who used to run a grocery shop. On perusal of record, apparently the claimant had failed to lead any evidence in respect of assessing future notional income of the injured child. 16. 15. The incident occurred in the year 1997, when the injured was aged about 08 years and studying in class-3 and undisputably, he was assisting his father who used to run a grocery shop. On perusal of record, apparently the claimant had failed to lead any evidence in respect of assessing future notional income of the injured child. 16. In the case of Kishan Gopal & Another vs. Lala & Others reported in 2014 (1) SCC 244 , a minor child aged about 10 Years died in a road accident. The claimant of that case also preferred the claim under Section 140 r/w Section 166 of the Motor Vehicle Act, wherein the Tribunal rejected the claim and the rejection was affirmed by the concerned High Court. The Hon’ble Supreme Court set-aside the findings given by learned Tribunal as well as the High Court and referring the Second Schedule of the Act, 1988, accepted the notional income of child as Rs.30,000/- observing as under:- "We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non- earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/-." 17. However, in the above referred judgment, the Hon'ble Supreme Court did not enter into the applicability of Second Schedule of the Act, 1988, for the claim filed under Section 166 of the Act, 1988. 18. Applying the observations made by Hon'ble Supreme Court in the Case of Kishan Gopal (supra) so far as it relates to assessment of notional income in respect of minor child who met with an accident after the year 1994, is concerned, this Court thinks it appropriate to assess the notional income of the injured/claimant as Rs.30,000/- in place of Rs.15,000/- per annum. By applying the legal principles laid-down in the case of Sarla Verma Vs. Delhi Transport Corporation reported in AIR 2009 SC 3104 , the multiplier of 15 can be applied, thus, Rs.30,000 x 15=Rs.4,50,000/- and after considering the 50% disability, the amount would come to Rs.2,25,000/- . By applying the legal principles laid-down in the case of Sarla Verma Vs. Delhi Transport Corporation reported in AIR 2009 SC 3104 , the multiplier of 15 can be applied, thus, Rs.30,000 x 15=Rs.4,50,000/- and after considering the 50% disability, the amount would come to Rs.2,25,000/- . The appellant having 50% permanent disability, in the light of the judgment passed in the case of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 SCC 680 , since the injured was considered as self-employed on a fixed notional income, an addition of 40% of the established income is warranted where the injured was below the age of 40 years and thus, the amount comes to Rs.3,15,000/-. 19. So far as the amount awarded under the head of 'pain and sufferings' is concerned, learned Tribunal has awarded only Rs.10,000/- and this Court noted that at the time of accident, the claimant was aged about only 08 years studying in class-3. The claimant sustained grievous injuries on his leg resulting into amputation thereof. The claimant has suffered considerable physical agony and mental trauma due to the accident and the subsequent medical treatment. This pain and suffering has certainly adversely impacted the quality of life and routine functioning during the life time and shattered his dreams. While deciding the amount in the head of pain and suffering, this Court cannot loose sight that it is well recognized that the element of pain and suffering is not confined merely to physical injury but also encompasses mental anguish, trauma, and the stress associated with delayed access to justice. In the present case, the prolonged pendency of the matter has also exacerbated the claimant’s sufferings. 20. Taking into account the nature and extent of injuries, period of hospitalization and treatment, medical reports and age of the claimant as well as precedents in similar cases, an amount of Rs.1,00,000/- is hereby awarded under the head of 'Pain and Sufferings'. This amount might not be sufficient but, is considered to be fair and just compensation for the non-pecuniary loss endured by the claimant as a result of the accident occurred in the year 1997. 21. Further, this Court also does not feel agreement with the awarded amount by learned Tribunal towards Attendant Expenses i.e. Rs. 3000/-, Special Diet i.e. Rs.5000/- and transportation i.e. Rs.10,000/- and directs to reassess the compensation as under :- Head Compensation Amount in Rs. 21. Further, this Court also does not feel agreement with the awarded amount by learned Tribunal towards Attendant Expenses i.e. Rs. 3000/-, Special Diet i.e. Rs.5000/- and transportation i.e. Rs.10,000/- and directs to reassess the compensation as under :- Head Compensation Amount in Rs. P.D./Injuries (30,000 notional income per annum with multiplier of 15 on 50% disability with 40% future prospects 3,15,000/- Pain and Sufferings 1,00,000/- Medical Expenses 8,635/- Attendant Expenses 15,000/- Transport 15,000/- Total Award amount 4,68,635/- Thus , the difference in compensation is as under:- MACT This Court 1,49,635/- 4,68,635/- 22. The aforesaid compensation shall carry interest @ 6% per annum from the date of filing of the claim petition till realization. 23. In the result, the judgment and award passed by the Tribunal is modified by enhancing the award of compensation awarded to the appellant herein from Rs. 1,49,635/- to Rs.4,68,635/- which shall carry interest @ 6% per annum from the date of filing of claim petition till realization. The amount shall be deposited by respondent No.3/ Insurance Company within a period of six weeks from the date of receipt of certified copy of this judgment. On deposit of the said amount, the Tribunal shall disburse the same to the appellant/claimant herein. 24. With the aforesaid observations and directions, the appeal is allowed.