Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 1530 of 2006
Appellant :- Km. Renu
Respondent :- Addl. Manager National Insurance Co. Ltd. And Ors.
Counsel for Appellant :- Kamlesh Kumar Tiwari,Hari Pratap Gupta
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the appellant and Sri Komal Mehrotra for the respondent–insurance company. None appears for the owner.
2. This appeal, at the behest of the claimant, challenges the order dated 27.03.2006 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Gorakhpur (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 539 of 2003 awarding a sum of Rs. 54,515/- with interest at the rate of 5 per cent for the injuries suffered by the claimant–appellant.
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. It is submitted by learned counsel for appellant has cited three judgment F.A.F.O. No. 497 of 2012 decided on 10.10.2017, Apex Court judgment in Kumaresh Vs. Divisional Manager, National Insurance Co. Ltd, 2011 (4) T.A.C. 28 (S.C.) and Sapna Vs. United India Insurance Co. Ltd and another, 2008 (3) T.A.C. 7 (S.C.) and has contended that amount of Rs.54,515/- with 5% rate of interest could not have been the compensation where there is amputation of little finger of left leg of 14 years old girl. Doctors have certified that there is 50% disability even if we consider that disability to result into 20% functional disability. The amount awarded is to bigger, Rs.25,000/- under the head of pains and suffering for amputation and marriage prospects and Rs.25,000/- additional under the head of other heads. The said amount was carry 9% rate of interest. Rs.1500 x 20% functional loss + 50% future loss + Rs.25000/-
5. It is submitted by learned counsel for the appellant that the she was 14 years little girl. It is submitted that the amount awarded also requires to be disturbed and the amount cannot be refused for future prospects of injured in light of the following:- Sanjay Kumar Vs. Ashok Kumar and another, (2014) 5 SCC 330;
(i) Syed. Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735;
(ii) V. Mekala Vs. M. Malathi and another, (2014) 11 SCC 178; and
(iii) Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011.
6. It is submitted by Sri Komal Mehrotra, 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 been decreased and, therefore, cannot be more than what has been assessed by the Tribunal. He could not point out that the additional amount under the head of future prospects has not to be added as per the judgment in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343. It has not been shown by counsel for the respondent that the said amount cannot be enhanced though there is amputation of little finger of left leg. The amount awarded under other heads is also not required to be enhanced is submitted by counsel for the respondent.
7. I am supported in my view 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.”
8. The rate of interest will have to be enhanced and I am unable to accept the submission of Sri Sri Komal Mehrotra, learned counsel for the respondent, that the Rules will apply. A 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 have interpreted the Rules, which has been followed by this Court time and again, will enure for the benefit of the appellant and, therefore, the rate of interest would be 9% as held in catena of decisions of this High Court and recently in FAFO No.1343 of 2002, decided on 15.3.2019 by the undersigned.
9. 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.
10. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be 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.
11. This Court is thankful to both the counsels to see that this very old matter is disposed of.
Order Date :- 30.4.2019 Shubhankar