Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 290 of 1993 Appellant :- Km.Kiran Respondent :- Upsrtc Counsel for Appellant :- Al Jaiswal Counsel for Respondent:- Standing Counsel
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel Sri Al Jaiswal for the appellant and learned Standing counsel for the respondent. None appears for the owner.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 31.08.1992 and 08.09.1992 passed by Motor Accident Claims Tribunal, Allahabad, (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 125 of 1988 awarding a sum of Rs. 3,000/- with interest at the rate of 9 per cent for the injuries suffered by the claimant – appellant, who has amputation on his lower limb.
3. The accident is not in dispute. The issue of negligence is decided in favour of the appellant herein. The Insurance Company has not challenged the liability imposed on them by the Tribunal. The only issue to be decided is the quantum.
4. Learned counsel for the petitioner submits that on the date of accident is 22.02.1988 when she got fracture in her back bone and many other injuries in various parts of body. She was got medically examined again after two and half years by the same Orthopedic Surgeon (Dr. M.S. Upadhya) and his certificate dated 13.08.1990 is “examined Km. Kiran thoroughly she is a case of old United fracture of right public bone superior ramnus with complaint of pain during walking”. This report conclusively proves that the appellant suffered from “Permanent Disability” which includes abnormal or no functioning of any limb of the body. Put inspite of this medical evidence, the learned Tribunal erred in holding otherwise. In case of Permanent disability, the minim award prescribed is Rs.12,000/- u/s 140 of the M.V. Act 1988 but the learned Tribunal wholly erred in doing otherwise.
5. It is submitted by learned counsel for appellant that the Tribunal has awarded Rs.3,000/- only as total compensation. It is submitted that the income of the injured should have been considered. She was 13 years of age and shocked to the tragic death of the brother.
6. It is submitted by learned counsel for the respondent, that no future income loss can be granted as the income of the claimant has not been shown to have decreased. The additional amount under the head of future prospects has to be added as per the judgment in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343.
7. Counsel for the respondent has further submitted that amount requires to be added as per Uttar Pradesh Motor Vehicles Rules, 1998 (hereinafter referred to as 'Rules') and the interest cannot be paid as prayed by the claimant namely 18 % and it should be at 7 % on the enhanced amount and the amount which has already been awarded.
8. It is submitted that the injured should be held to be earning Rs.900/- per month meaning thereby Rs.10,800/- per annum even if we consider the judgment of the Apex Court in Raj Kumar (supra).
9. By the Division Bench Judgement in FIRST APPEAL FROM ORDER No. - 199 of 2017 (National Insurance Company Limited, Lucknow Versus Lavkush and another) decided on 21.3.2017 and the said judgment has been ordered to be circulated.
39. Section 168 contemplates determination of "just compensation". 'Just' means, fair, reasonable and equitable amount accepted by legal standards. "Just compensation" does not mean perfect or absolute compensation. "Just compensation" principle requires examination of particular situation obtaining uniquely in an individual case.
40. When compensation is to be determined on an application under Section 166, various heads under which damages are to be assessed, have to be looked into by Tribunal and not by merely determining income and applying multiplier.
41. We may consider some broad aspects in the context of injury/ disability and death separately.
Bodily Injury/Disability
42. Here damages are broadly in two categories, i.e., pecuniary damages and special damages. Pecuniary damages are those which victim has actually incurred and which are capable of being calculated in terms of money. Pecuniary damages may include: (i) medical attendance;
(ii) loss of earning profit upto the date of trial;
(iii) other material loss.
43. Non-pecuniary damages are such which are incapable of being assessed by arithmetical calculation. 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. At the age of 13, she saw the death of her youg brother. He was a student of B.A. The tribunal has absolutely not considered any of these fractures and has mechanically awarded a sum of Rs.3,000/- with 7% rate of interest. It is true that disability certificate is not produced but the documents which have been produced will go to show that she has suffered physical disability which were permitted this Court to award additional amount of Rs.25,000/-.
11. The facts would permit this Court to award a sum of Rs.25,000/- under all heads to the minor, as she had fractured of right pubic bone she saw the death of her brother and the traumatic condition continue till date.
12. The rate of interest will have to be 9% from the date of filing of the claim petiton till judgment of the tribunal and 6% thereafter. In view of the judgment of the Division Bench of Lucknow Bench in F.A.F.O. No. 199 of 2017 (National Insurance Company Limited Vs. Lavkush and another) decided on 21.3.2017 which has been followed by this Court time and again and which will enure for the benefit of the appellant. However, I am in agreement with counsel for the respondent that after the appeal is filed and is kept pending, the rate of interest requires to be decreased.
13. No other grounds are urged orally when the matter was heard.
14. In view of the above, the appellant shall be entitled to a sum of Rs.25,000/- with interest as hereinabove claimable from all the respondents jointly and severally. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be recalculated and deposited with interest at the rate of 9% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount be deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.
15. This Court is thankful to both the counsels to see that this very old matter is disposed of.
16. The appeal is partly allowed.
Order Date :- 26.8.2019
A.N. Mishra