Hon'ble Arvind Kumar Tripathi (II),J.
(Delivered by Hon. Arvind Kumar Tripathi-II,J) These two First Appeal From Orders have been filed against the same award of the Motor Accident Claims Tribunal dated 14.03.1997 passed by M.A.C.T./First Additional District Judge, Agra, in a Motor Accident Claim Petition No.433 of 1995. First Appeal From Order No. 519 of 1997 has been filed by New India Assurance Co. Ltd. challenging the award of compensation amount being on higher side. First Appeal From Order No. 754 of 1997 has been filed by the claimant Saurabh Agarwal claiming further enhancement of the compensation amount.
With the consent of the parties, these two F.A.F.Os. have been heard together and are being decided by a common judgement.
As per the claim petition No. 433 of 1995 Saurabh Agarwal s/o Suresh Chand Agarwal, aged about 14 years on the date of accident, was a student of class 10th . On 28.04.1995 at about 12.45 P.M. he was returning from his school on a bus, the driver was driving the vehicle rashly and negligently, all of a sudden, due to rash and negligent driving of the driver of the bus, the bus jumped on the road, due to which Saurabh Agarwal fell down from the bus and his both legs were crushed beneath the tyres of the bus and the driver and conductor of the bus fled away abandoning the bus at the place of occurrence. The claimant was admitted in nursing Home of Dr. K.K. Pruthi, Vijay Nagar Colony, Agra. After that he was shifted in G.G. Nursing Home Sanjay Place, Agra and then after doctors advice, he was sent to Batra Hospital, Delhi. He was operated several times and his left leg was amputated above the left knee. He is still under going treatment in Vandana Nursing Home, Kamla Nagar, Agra. It has been alleged that he was a healthy young boy and due to this accident his health has deteriorated and he is unable to move and lost his career and lost the prospects of earning livelihood. By filing his claim petition, an amount of Rs. 23,50,000/- was claimed.
O.P. No. 1, who is the owner of the bus filed his written statement, wherein he has admitted paragraphs 9, 10, 11, 15, 16, 17, 19 and 23 of the claim petition, thus admitting place, date and time of accident, ownership of the bus and insurance of the bus. It was further averred in the written statement that the accident did not occur due to rash and negligent driving of the driver, but the claimant himself was negligent. He was standing near the door of the bus and despite the warning given by the conductor, did not sit on the vacant seat and due to that he fell down from the bus.
Insurance Company has filed their written statement taking all the possible defences including non-joinder of the driver of the vehicle involved in the accident, no information was given to the insurance company by the opposite party as provided under section 158 (6) of the Motor Vehicle Act. They have not been supplied copy of the FIR, charge-sheet, site plan, Technical Inspection Report, Injury Report etc. It was also averred that the liability of the insurance company will arise only upon the documentary proof satisfying the conditions under which the vehicle was being driven, under the provisions of Motor Vehicle Act in terms of policy of insurance such as valid and effective driving license R.C. etc. The tribunal, after going through the pleading of the parties has framed the following issues:-
1. Whether the accident took place on 28.04.95 at about 12.45 P.M. due to rash and negligent driving of the bus No. UP -80-H-9008, by its driver, due to which Saurabh Agarwal received injuries.
2. To what amount of compensation the claimant is entitled and from whom?
3. Relief.
The claimant has examined himself as P.W. 1 and his father as P.W. 2. Opposite parties have not examined any witness. Claimant has filed bills for the treatment as per list 14C to 122C, 160G, 171G 138G and 140G. Opposite party No. 1 has filed photocopy of permit, Registration certificate of insurance policy and driving license as per list 138G. Insurance Company has filed certified copy of policy per list 168G. The tribunal has after going through the evidence and documentary evidence awarded Rs. 9,25,000/- along with interest @ 12% per annum from the date of filing of the petition till the date of actual payment. The tribunal has allowed following amount under the following heads:-
1. Rs. 300,000/- as expenses on medical treatment, special diet and expenses of attendant engaged with the claimant.
2. Rs. 2,50,000/- for physical and mental pain agony and suffering and loss of future amenities.
3. Rs. 1,50,000/- for engagement of a helper to assist him in future.
4. Rs. 2,25,000/- for loss of earning.
It was argued from the side of insurance company that it is an injury case and the amount awarded is on the higher side. It was also argued that while calculating the loss of future earning, notional income has been considered, but 1/3 deduction has not been applied. The amount awarded for medical expenses is in excesses of the bills produced. The amounts awarded under the head of physical and mental agony and future maintenance are exorbitant. It was also argued that it has not been proved by the claimant that the bus was being driven rashly and negligently. It was also argued that rate of interest is also excessive.
For enhancement of compensation it was argued that the amount awarded is much less as injured was 14 years of the age at the time of accident. His left leg was amputated above knee and right leg was also crushed. He has to engage an assistant for his daily movement. The Tribunal has not awarded any amount for future expenses for treatment and loss of prospects of marriage.
Before entering into the merits of respective argument, it is note worthy that the owner of the bus has admitted the place and time of the accident. He has also admitted that the claimant was travelling in the bus. The only dispute raised by the owner opposite party no. 1 in his written statement is that the claimant was standing near the door, despite repeated warnings of the conductor, so the claimant himself was negligent. Though no issue has been framed, but the opposite party has not been able to prove this fact as oral evidence of the conductor and the driver have not been adduced.
Claimant has examined himself as P.W. 1. He has stated that the bus was over crowded with the passengers. He was standing in the bus along with other passengers as there was no vacant seat. This statement takes care of the averment made by the owner in his written statement, that the claimant was wilfully standing near the door. Learned Tribunal has rightly held that the accident took place due to rash and negligent driving of the driver of the bus.
In case of Laxman alias Laxman Mourya vs. Divisional Manager, Oriental Insurance Co. Ltd & another, 2012 AIR SCW 361,the Apex court has held that:-
11. In Raj Kumar vs. Ajay Kumar (2011) 1 SCC 343, the Court considered some of the precedents and held:
"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. 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.
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."
12. The ratio of the above-noted judgements is that if the victim of an accident suffers permanent or temporary disability then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earning and victim's inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."
Considering the above guidelines it has to be seen as to whether the quantum of award is excessive or adequate or inadequate.
As regards the quantum it has been stated on oath by P.W. 1 and his father that firstly he was taken to the nursing home of Dr. Pruthi at Vijay Nagar, thereafter, he was taken to G.G. Nursing Home, Sanjay Place, Agra. Thereafter, on doctor's advise he was shifted to Batra Hospital, Delhi and remained admitted for about one month where left leg was amputated above the knee. There is a medical bill of Batra Hospital which is of Rs. 1,7780/- This bill is for the period of 29.04.1995 to 26.05.1995. Apart from that the medical bills of several medical shops have also been filed. This amount does not find place in the final bill of Batra Hospital and research Center Delhi, so considering the bills of hospital and treatment, it cannot be said that the amount of Rs. 3,00,000/- on account of medical bills and expenses is towards higher side.
In the light of guidelines given in several decisions of the Apex Court we have considered whether the compensation awarded to the claimant is just or he is entitled to higher compensation under any of the following heads.
1. Loss of earning and other claims due to the accident.
2. Loss of future earning on account of disability.
3. Expenses for future programme.
The tribunal has awarded 2,25,000/- as loss of future earning. It is to be noted that at the time of accident the tribunal has fixed his notional income to be Rs. 15,000/- per annum. No deduction has been made for personal expenses.
In case of Santosh Devi vs. National Insurance Company Ltd. and others 2012 AIR SCW 2892, The Apex Court has held that it will be impossible for a person whose monthly income is Rs. 15,00/- to spend 1/3rd on himself leaving 2/3rd for the family consisting of 5. Ordinarily, such a person would at best, spend 1/10th of his income on himself. In the instant case, claimant was non earner, so all his personal expenses would have been met by his parents. In view of this while considering notional income in a matter of non earner person deduction of 1/3rd is not a thumb rule and the tribunal correctly not deducted 1/3rd from his notional income. Tribunal has considered that due to his injuries and the disability, it is not possible for him to earn anything in future. In view of this, the tribunal has rightly not deducted any amount and granted 2,25,000/- as future loss of earning. There is no illegality in this account.
It has been argued from the side of claimant that future prospects has not been considered in awarding the compensation. They have relied upon the decision of Santosh Devi vs. Insurance Company Ltd. (supra). The principle laid down in that case, is not applicable in the case of present claimant, because in that case the future prospects have been considered for the persons, who are self employed or who are employed on a fixed salary without provision for annual increment. In the instant case, the claimant is 14 years boy and his earning is nothing. In these circumstances, we are of the view that the tribunal has rightly not considered the future earning prospects of the claimant.
The tribunal has awarded Rs. 1,50,000/- for need of sevak for future. There is evidence that the claimant is unable to move on his own. Considering the age of the claimant, we feel that this amount is not excessive.
Rs. 2,50,000/- has been awarded for loss of physical and mental agony, pain and loss future amenities of the claimant, this amount is also not excessive.
Claimant argued that the tribunal has not awarded any amount for future expenses on medical treatment and also for loss of prospects of marriage and loss of expectation of life.
As regards future expenses for treatment is concerned, no expert evidence regarding need for future treatment has been filed by the claimant. The doctor, who treated the claimant, has also not been examined to show that the boy will require future treatment also. Learned counsel for the claimant has relied upon the decision of Apex Court in Laxman's case (supra), in where Apex Court has held that the financially weaker strata of the society victim, generally fail to engage competent lawyer for effective prosecution for their case, so the court is empowered to give amount of compensation for future treatment by some guess work. In this case, it is not the case of claimants that they are financially weak and due to this they were not able to engage a better competent lawyer. In view of this, we do not find any merit in this argument advanced by the claimant's counsel that the tribunal should have awarded some amount for future treatment; relied upon case does not help the claimant.
The Apex Court has in Laxman's case (supra) has held that in serious cases of injuries, loss of prospects of marriage is also to be considered. The tribunal has not considered this aspect while awarding the compensation. Claimant was 14 years of age, and for a young man amputation of left leg above knee and also disability shall certainly adversely affect his marriage prospects and the claimant is entitled to some amount on this account.
Considering the entire facts and circumstances of the case, we are of the view that the claimant is entitled to Rs. 100,000/- for loss of prospects of marriage in addition to what the claim has been awarded by the tribunal.
The tribunal has awarded 12% interest on the awarded amount which is excessive as per counsel for the Insurance Company. The accident is of the year 1995, we also feel that the rate of interest is excessive and simple interest @ 9% per annum on the award will be proper.
From the above discussion, we are of the view that F.A.F.O. 519 of 1997 and F.A.F.O No. 754 of 1997 both are liable to be partly allowed. The claimant is entitled to 10,25,000/- as compensation and he is also entitled to simple interest @ 9% per annum from the date of filing of the petition till the date of actual payment.
The new India Assurance Company is directed to pay the increased amount within a period of two months from the date of this judgment if earlier award has been satisfied otherwise claimant will be entitled to get interest @ 9% per annum on enhanced amount from the date of filing of the petition till the date of actual payment.
(Arvind Kumar Tripathi-II,J) (Prakash Krishna,J) Order Date :- 18.10.2012 v.k.updh.