HON'BLE ARVIND KUMAR TRIPATHI (II), J.
(Delivered by Hon'ble Arvind Kumar Tripathi-(II), J.) Heard learned counsel for the appellant and learned counsel for the opposite parties.
The First Appeal From Order has been filed against the judgment and award dated 18.11.2005 passed by Motor Accident Claims Tribunal/ Additional District Judge, Fast Track Court No. 13, District Sultanpur in Claim Petition No.174 of 2004 between Radhey Shyam Tiwari Vs. Sukhdev Raj Bhar & Ors., by which the claim petition of Radhey Shayam Tiwari was partly allowed and a compensation to the tune of Rs. 1,0,9000/= was granted. Appellant has prayed for enhancement of compensation of amount.
The Claim Petition No.174 of 2004 arises out of an accident which took place on 27.1.2004 at about 10.00 a.m. while complainant was coming to Sultanpur from his residence Amethi, District- Sultanpur along with his friend Harish Chandra Singh. As soon as the motor cycle reached Amahat square then a Tata Qualish U.P.32 A X 9798 being driven rashly and negligently and coming from the side of Jaunpur hit motor cycle in which both rider and pillion rider of the motor cycle were injured. Claimant received fracture injuries in his right leg and thigh and other bones were also fractured. He was admitted to District Hospital Sultanpur. The first information report was lodged on the application of the claimant. He was operated several times and iron rod was inserted in his leg. He was bed ridden at least four months and his treatment is continuing. By filing this claim petition, compensation to the tune of Rs. 12, 87,000/= along with interest was claimed.
Owner and the driver of the offending vehicle were served but did not appear before the Tribunal so; the claim petition proceeded ex parte against them.
Opposite party no.3 United India Insurance Company Limited submitted its written statement denying the insurance and was also averred that in absence of FIR, Charge-sheet, site plan, postmortem report, registration certificate, tax paid certificate, permit and insurance, it was not possible for them to file proper written statement and the petition is not maintainable. It was also averred that no documents regarding treatment was produced, it was the duty of the petitioner to prove that the offending vehicle was being driven negligently and he was not under influence of any intoxicating drugs, the driver of the vehicle was not having proper and effective driving licence, the owner and driver of the motor cycle and owner and insurer of the motor cycle have not been made party.
From perusal of the pleading of the parties following issues were framed by the Tribunal;
1.) Whether the accident took place near Amethi Chauraha on 27.1.2004 at about 10.00 a.m. by rash and negligent driving of the vehicle Tata quails U.P.32AX9798 due to which petitioner/ claimant became injured and has received several fracture injuries?
2.) Whether the papers of the vehicle were not valid on the date of accident as has been stated in written statement?
3.) Whether the Tata Qualis was insured with opposite party no.3 and was valid on the date of accident and vehicle was being plied under the conditions of insurance?
4.) Whether the petition is bad for non joinder of parties i.e. owner and insurer of the vehicle U.P.44 F 1935 as has been mentioned in the written statement ?
5.) Whether opposite party no.3 is entitled to get benefit of Section 149, Section 170 and 64 B.B Insurance Act, 1939 of Motor Vehicles Act and Insurance Act respectively?
6.) What compensation claimant's is entitled and from him?
Petitioner has filed copy of FIR, copy of Charge-sheet, copy of injury report, registration certificate of the shop, photostat copy of disability certificate and driving licence along with papers relating to treatment and purchase of medicine. Apart from that claimant has examined himself as P.W.1 and Awdesh Prasad Pandey as P.W. 2.
No oral and documentary evidence has been filed from the side of opposite party. The tribunal below has gone through the evidence of the parties and allowed the claim petition and directed Insurance Company to pay Rs. 1,0,9000/- along with 6% simple interest from the date of filing of the petition and till date of actual payment. Feeling aggrieved by the lesser amount awarded as compensation, this F.A.F.O. has been filed for enhancement of compensation.
We have heard, Sri M.E.Khan learned counsel for the petitioner, and Sri Shishir Pradhan, learned counsel for opposite party no.3 The main contention of learned counsel for the appellant is regarding quantum of compensation. It was argued that evidence regarding disability of the petitioner to the tune of 50% was on record still a lump sum amount of Rs. 40,000/- has been awarded, which is not in accordance with law. It has also been argued that though medical bills have been filed of much more amount but only Rs. 30,000/- has been awarded.
Learned counsel for the respondent has argued that the disability certificate can be used to show the per centage of disability only so no further amount can be granted for loss of future income.
In the case of R.D. Hattangadi Vs. Pest Control (India) Private Ltd. (1995) 1 SCC page 551, Apex Court while dealing with the case involving claim of compensation under the Motor Vehicles Act, 1939 referred to the judgment of the Court of Appeal in Ward Vs. James (1965) 1 AII E R 563, Halsbury's Law of England, 4th Edition, Volume 12 (page 446): and observed.
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and 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."
In case Nizam's Institute of Medical Science Vs. Prasanth S. Dhanank (2009) 6 SCC 1, the three Judge Bench of Apex Court made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.
At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity." (emphasis supplied) In Case of Reshma Kumari Vs. Madan Mohan (2009) 13 SCC page 422 Apex Court reiterated that the compensation awarded under the Act should be just and also identify the factors which should be kept in mind while determining the amount of compensation.
In Raj Kumar V. Ajay Kumar (2011) 1 SCC 343, Apex Court has classified the heads under which compensation is awarded in personal injury cases are 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." (emphasis supplied) Apex Court in case of Govind Yadav Vs. New India Insurance Company Ltd. [2012 (30) LCD 1663] has held that the principle laid down in Arvind Kumar Mishra Vs. New India Assurance Company Ltd. and Raj Kumar V. Ajay Kumar (supra) must be followed by all the tribunals and the High Court in determining the quantum of compensation payable to the victims of the accident who are disabled either permanently or temporary.
We shall now consider whether the compensation awarded to the appellant is just and reasonable or he is entitled to enhanced compensation under any of the following heads;
i.) Loss of earning and other gains due to injuries.
ii.) Loss of future earning on account of permanent disability.
iii.) Future medical expenses.
iv.) Compensation for pain suffering and trauma caused due to which permanent disability.
v.) Loss of amended including loss of prosperity of marriage.
vi.) Loss of expectation of life.
From perusal of the tribunal award of the tribunal reveals that he has been granted Rs. 30,000/- for medical expenses, Rs. 10,000/- for future medical, Rs. 20,000/- for loss of mental pain or agony, Rs. 4000/- for special diet, Rs. 5000/- for loss of damage to the motorcycle and Rs. 40,000/- sump sum for loss of future earning.
Though, the tribunal has determined the amount of earning of the claimant to be Rs. 3000/- per month but has not considered the loss of earning on account of 50% permanent disability.
From perusal of the record reveals that a Photostat copy of the disability certificate has been filed which is paper no.22C-84. There is no endorsement of the Insurance Company whether it has been admitted or not admitted. This is attested by Medical Officer P.S. Jandaha which is admissible in view of the disability has been issued under the office of Chief Medical Officer.
We are of the view that disability certificate is relevant and can be ready in evidence. The claimant who has been examined as P.W.1 has also stated that he has filed the disability certificate.
He has further stated that prior to accident he was doing work of cycle repairing or selling the parts of the cycle but after the accident he was unable to do the work of repairing the cycle.
In view of above, we find that loss of earning which has awarded by the tribunal this two meager and is without any basis. The amount of compensation in lieu of loss of earning should have been calculated taking the appellant's annual income and loss of earning on account of 50% permanent disability as Rs.18,000/- per annum. The age of the claimant was 29 years at the time of accident so, in view of the judgment of Sarla Verma Vs. Delhi Transport Corporation 2009(6) SCC 121 the multiplier of 17 should have been adopted.
Thus, we held that the compensation payable to the appellant in lieu of loss of earning would be Rs. 18,000 x 17 =3,06,000/-.
From perusal of the record it reveals that there are bills filed in respect of the hospital expenses to the tune of Rs. 71,770/-. Learned Tribunal has awarded only Rs. 30,000/- only, it should have been Rs. 71, 770/-
The rest of the amount granted by the tribunal are confirmed as there is no evidence on record to show that what future medical expenses are to be incurred and whether there is loss of prospectus of marriage, loss of expectation of life.
In the result, the appeal is liable to be allowed. The impugned judgment and the award of the tribunal is also liable to be modified. It is clarified that the appellant is entitled to total compensation of Rs. 3 06,000/+ Rs. 71,770/+ Rs. 10,000/+ Rs.20,000/+ Rs.4000/+ Rs. 5000/- total compensation of Rs. 4,16,770/-(Rupees. Four lakh sixteen thousand seven hundred seventy only) Consequently, the appeal is allowed it is decreed that the appellant is entitled to get compensation of Rs.4,16,770/-( Rupees Four lakh sixteen thousand seven hundred seventy only) along with interest @ 6% per annum from the date of filing of the claim petition till the date of realization. Respondent No. 3 is directed to pay balance amount of compensation with interest within a period of three month from the date of judgment, failing which the claimant shall be entitled to get it recover through the Tribunal.
(Devi Prasad Singh, J.) (Arvind Kumar Tripathi (II), J) Order dated :- 27th November, 2012.
Subodh/-