Heard Shri Anurag Srivastava, learned counsel for the appellant and Shri Anchal Mishra, learned counsel appearing for the respondent no.4 Insurance Company.
Under challenge is the award dated 18.11.2014 passed by the Motor Accident Claim Tribunal / Additional District Judge, Court No.3, Lucknow in Claim Petition No.325 of 2013 (Rajib Kumar Dutta @ Rajeev Kumar Dutta Vs. Om Narain Singh & others) whereby a sum of Rs.5000/= has been awarded in respect of injuries suffered by the claimant.
Learned counsel for the appellant while assailing the award has submitted that the appellant was 45 years of age and met with an accident which led to his loosing his leg which was amputated and he suffered 65% permanent disability. It is urged that the Tribunal while deciding issue no.6 relating to the quantum of compensation has merely awarded a sum of Rs.5000/= on the ground that since the amount spent by the appellant on his treatment has been reimbursed by his employer, under such circumstance, only a sum of Rs.5000/= has been awarded towards mental agony.
It is further submitted that the manner in which the award has been passed ignoring the settled principle regarding assessment of compensation in cases of non-pecuniary damages where a person looses his limb and scarred for life and is not able to enjoy the daily amenities, pleasures of life as well as being dependent has not been considered. Accordingly, the award is bad and deserved to be enhanced.
Learned counsel for the respondent-Insurance Company submits that in so far as the appellant is concerned, he has not suffered any loss of income for the reason that there has been no adverse impact on his earning capacity as he is an employee of the Bank of Baroda and is governed by settled pay scales which he is already drawing.
As far as the expenditure incurred by the appellant on his medical treatment is concerned, the same has also been reimbursed and for the said reason, he has not suffered any loss on that count as well. It is urged that under the aforesaid circumstances, there is no error which has been committed and the appeal deserves to be dismissed.
The Court has heard the learned counsel for the parties and also perused the record.
Briefly, the facts giving rise to the instant appeal are, that on 04.04.2013 at around 6.10 A.M. the appellant was riding his motorcycle bearing number U P 35/B-314 and was going towards his office. As he had reached Bhawna Complex near the Ring Road Jankipuram, Engineering College Crossing, the offending vehicle bearing number U P 32 D M/0777 which was being driven rashly and negligently by Manoj Kumar (respondent No.3) hit the motorcycle as a result the appellant sustained grievous injuries. He was initially hospitalized at Base Hospital in Cantt. where his right leg from below his knee was amputated. It is in view of the aforesaid injuries sustained that a claim petition bearing No.325 of 2013 was filed. The same was contested by the owner of the vehicle as well as Insurance Company.
The Tribunal after exchange of the pleadings, framed six issues. As far as the issue nos.1 to 5 are concerned, there is no dispute since neither of the respondents have challenged the award dated 18.11.2014. Thus, the aforesaid finding in respect thereto have attained finality. The only challenge is to issue no.6 made by the claimant himself to seek enhancement of the award dated 18.11.2014. The Tribunal while dealing with issue no.6, noticed that the appellant had furnished invoices regarding his treatment to the tune of Rs.3,75,000/= and as per the appellant himself the aforesaid amount was reimbursed by his employer.
Considering this aspect of the matter and also holding that there has been no loss occasioned to the claimant in terms of the earning capacity, hence under the head of mental agony a sum of Rs.5000/= has been awarded. It is this finding which is primarily under challenge.
Considering the submissions made by the learned counsel for the parties, apparently it is a difficult task for a Tribunal or for a Court to determine what compensation is to be awarded in case a person sufferes injuries. In the instant case, the appellant is a 45 years old person who has lost his right leg below his knee. The record indicates that he has been working in the Bank of Baroda and has a stable service, however, merely because the amount spent by the appellant towards his medical expenditure has been reimbursed by the employer does not give rise to any inference that the injured did not sustain any other loss. It is also to be noticed that a person approaches the Tribunal only once. The Tribunal also has to see that it is not only the immediate expenditure which has been incurred is to be reimbursed but considering the kind of loss suffered by the injured is to be noticed. In the instant case where the appellant has lost his limb. It is necessary also to factor the condition which he may have to face in future. There is the aspect of trauma a person suffers where he looses his limb and this cannot be equated in terms of money but nevertheless a balance has to be created so that as far as possible pain and agone of a person can be mitigated.
Considering this aspect of the matter as well as drawn strength from the decision of the Apex Court in the case of Kajal Vs. Jagdish Chand and others reported in 2020 (4) SCC page 413. The relevant paras-6 and 26 of the said report is being reproduced as under:-
"6. It is impossible to equate human suffering and personal deprivation with money. However, this is was the act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her lift. They should not be just token damages.
26. Coming to the non-pecuniary damages under the head of pain, suffering, loss of amenities, the High Court has awarded this girl only Rs.3,00,000/-. In Mallikarjun Vs. Divisional Manager, the National Insurance Company Limited and Ors., this Court while dealing with the issue of award under this head held that it should be at least Rs.6,00.000/-, if the disability is more than 90%. As far as the present case is concerned, in addition to the 100% physical disability the young girl is suffering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine month old child. This is a case where departure has to be made from the normal rule and the pain and suffering suffered by this child is such that no amount of compensation can compensate."
This Court is of the view that the amount of Rs.5000/= has granted by the Tribunal towards mental agony is absolutely unjustified.
Taking note of the fact that the appellant shall be deprived of a normal life and shall remain dependent and would require assistance for his movement and shall also be deprived of normal pleasure of life, his self independence gets compromised and it may also create complication in years to come once he starts aging, hence considering the facts and circumstances, this Court is of the opinion that ends of justice can be served by directing the respondent no.4 to pay an additional sum of Rs.3.50 lacks to the appellant towards the head of mental pain and suffering also for assistance and future medical needs so that the total amount payable to the appellant shall be Rs.3.55 (three lacs fifty five thousand only) The award dated 18.11.2014 shall stand modified to the aforesaid extent. The aforesaid amount of Rs.3.55 lacs shall be paid by the respondent-Insurance-Company to the appellant within a period of six weeks from today alongwith the interest @ 6% per annum from the date of claim petition till the date of its actual payment. Any amount paid shall be deducted from the aforesaid amount.
The appeal is partly allowed. Costs are made easy. The record of the Tribunal shall be remitted back within a period of one week.
Order Date :- 28.7.2021 ank