Heard Sri Gopesh Tripathi, learned counsel for the appellant as well as Ms. Pooja Arora, learned counsel appearing for the respondent-Insurance Company.
The instant appeal under Section 173 of the Motor Vehicles has been preferred by the claimant-appellant seeking enhancement of the award made by the MACT/ADJ, Ist, Raebareli in MACP No. 233 of 1999 whereby on account of an accidental injury case merely a sum of Rs. 27,000/- has been awarded by the Claims Tribunal by means of its award dated 12.07.2004.
The submission of the learned counsel for the appellant is that The Tribunal has grossly erred in failing to consider the large number of documents which were brought on record which clearly established the chronological link as far as the sustenance of injury on account of the accident occurred on 12.03.1998, continuous treatment which went on till October, 1999 and the documents which substantiated the expenditure incurred towards the aforesaid treatment which has not been considered. It has further been submitted that the Tribunal has also erred in not considering the grant of special damages while the Tribunal had already held that the appellant had suffered 10% disability and thus once having arrived at the aforesaid finding, it was incumbent upon the Tribunal to have considered the documents towards grant of amount for the medical expenditure incurred as well as special damages which have not been considered and awarded a meager sum, consequently, the award stand vitiated.
Ms. Pooja Arora, learned counsel for the Insurance Company submits that the award passed by the Tribunal is just and proper. To elaborate her submissions, she has stated that the claimant was required to prove the documents filed by him in order to substantiate his case regarding the expenses and expenditure incurred on his treatment. The Tribunal noticed that thought the documents were filed but the same were not proved, accordingly, there is no error in the assessment of the compensation since the claimant himself did not prove his own documents.
It has further been submitted that in light of the decision rendered by the Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another 2011 (1) ACJ 1 (SC) wherein the mode and manner of assessment of compensation in so far as the injury cases are concerned have been dealt with by the Apex Court and it has been held that in order to seek compensation towards disability it is for the claimant to prove the same and in the instant case since the claimant failed to do so, therefore, the claimant is not entitled to any enhancement and as such the award passed by the Claims Tribunal is just and proper and requires no interference from this Court.
The Court has considered the submissions of the learned counsel for the parties and has also perused the record.
Before dealing with the aforesaid submissions, certain facts giving rise to the above appeal may be noted hereinafter, first:-
It is the case of the claimant-appellant that on 12.03.1998 at around 04:00 PM when the claimant was going towards Lalganj from Raebareli on the Jeep bearing No. UP33 D 8788 and while the aforesaid Jeep reached between Ataura and Mubarakpur at that time the aforesaid Jeep dashed against a tree on the road which was solely on account of the rash and negligent driving of the Jeep driver which resulted in grievious injuries to the claimant. It was further pleaded that the claimant received injuries on his left hand and left foot while another passenger of the Jeep namely Ashok Kumar Vajpayee died on the spot. While the claimant was taken to the District Hospital thereafter he was referred to a Higher Center at Lucknow where he had consulted certain doctors and was also admitted in the Nursing Home from 13.03.1998 to 31.05.1998 where he was operated on his left hand and foot. He could not be completely cured and later he was discharged thereafter again he was referred to Life Line Hospital at Lucknow where again he was operated and in this manner the claimant was operated thrice and ultimately it led to shortening of his leg for which he also got a disability certificate. He had pleaded that he was preparing for the competitive examinations of CPMT, CBSC, U.P. Public Service Commission and State Public Service Commission. Apart from the fact that because of the aforesaid injuries, his career has been ruined and that he had to spent a sum of Rs. 1,50,000/- over his treatment of his leg and hand. The aforesaid Claim Petition was registered as 233 of 1999.
The Claim Petition came to be contested both by the owner of the Jeep as well as the Insurance Company who filed their separate written statements. The owner denied that the accident had occurred on account of rash and negligent driving and further took a plea that since the vehicle in question was duly insured and the driver also had an effective and valid driving license, accordingly, if any award is made, the same ought to be indemnified by the Insurance Company. The Insurance Company raised a plea regarding the validity of the insurance policy and its defence rested primarily on the ground that in case if the policy conditions are violated then the Insurance Company may not be made liable for the award.
That after the exchange of pleadings the Tribunal framed three issues. The claimant filed the documentary evidence and the Tribunal while dealing with issue no. 1 it found that the statement of the claimant-witnesses remained un-rebutted, inasmuch as, no witness was examined on behalf of the opposite parties and in light of the un-controverted statement, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving which resulted in injuries sustained to the claimants. While dealing with issue no. 2 it found that the vehicle was duly insured and its driver was also possessing a valid and effective driving license, however, while assessing the compensation, the Tribunal has relied upon the certificate issued by the Chief Medical Officer, Raebareli wherein it was indicated that the claimant had suffered 10% disability due to shortening of his left leg by 2 centimeters. Since, admittedly the claimant was preparing for the competitive exams, accordingly, the notional income of Rs. 1,500/- per month was taken and applying the appropriate multiplier it assessed the compensation to be payable to the claimants to Rs. 27,000/- after accounting for 10% disability. It is this award dated 12.07.2004 which has been assailed on the ground which has already been mentioned hereinafter.
This Court upon considering the submissions of learned counsel for the parties and on perusal of the record finds that as far as the accident is concerned it is not disputed that the same occurred on 12.03.1998 while dealing with issue no. 1, the finding has been returned by the Tribunal to the effect that the accident occurred on account of the rash and negligent driving of the Jeep driver of the vehicle bearing No. UP 33 B 8788. The Tribunal while considering the documentary evidence has taken note of the fact that the claimant had filed documents issued by the Public Service Commission, the admit card of the CPMT as well as of the Union Public Service Commission which clearly indicated that the claimants was pursuing his career in medicine and was preparing for his competitive examination which were to be held shortly.
The learned counsel for the appellant has submitted that since on account of the aforesaid accident he could not appear for these examinations and his career has been ruined.
Learned counsel for the appellant has drawn the attention of the Court to the documents which relate to the discharge slip issued by the District Hospital at Raebareli. The claimant had filed a large number of documents which are in the nature of cash invoices for the purposes of medicines purchased which relate to the period of March 1998 to October, 1999. The aforesaid documents also relate to the invoices which had been issued at Lucknow, Kanpur as well as Raebareli.
The submission of the learned counsel for the appellant is that since he did not get specialized treatment at Raebareli, therefore, he was referred to a Higher Centre at Lucknow where he consulted Dr. Sanjay Kumar Singh. It is also the case of the claimant that he also took consultancy from Suraj Medical in Kanpur from Dr. Sanjay Singh.
The learned counsel has also drawn the attention of the Court to the various pathological reports as well as a report dated 20.04.1999 and on the strength of the aforesaid documents it has been urged that the claimant had suffered a fracture in his leg and he was operated thrice. Since he could not get proper relief, therefore, he remained under care and meditation of the various doctors for the entire period of March, 1998 to October, 1999 and as such he had brought on record all the documents including the prescriptions, the reports of the pathology as well as certificates issued by the treating doctors to indicate that the claimant had spent and paid money towards his treatment and this aspect of the matter has been completely ignored by the Tribunal while assessing the compensation.
Per contra, Ms. Pooja Arora has submitted that though these documents were filed on the record, yet it was the duty of the claimant to have proved the same and since he was unable to do so, therefore, the aforesaid documents have been rightly discarded by the Claims Tribunal.
Considering the aforesaid submissions, this Court finds that as far as the injury cases are concerned a person is entitled to the compensation which can be bifurcated under the two heads (i) pecuniary damages (ii) non-pecuniary damages. As far as the compensation towards the pecuniary damages is concerned, all such amounts which can be calculated arithmetically, which may be towards the expenses relating to treatment, hospitalization, medicines, transportation, any further apparatus which may be required by the injured for his improved life, coupled with the area regarding loss of earning which the injured could have earned had he not been made a victim of the accident including towards future loss on account of permanent disability as well as future medical expenses which may be necessitated on account of the said injury. As far as the second head is concerned, this includes non-pecuniary damages which relate to the damages towards pain and suffering, loss of amenities which may affect a quality life of a person and also may include loss of expectancy of life referable to cases where the injury may have resulted in shortening of the normal longevity.
The aforesaid principles have also been considered and held by the Apex Court in the case of Raj Kumar Vs. Ajay Kumar (supra). In case, if the principles as laid down in the aforesaid decisions of the Apex Court are applied in the present case, it would indicate that though the Tribunal has considered the disability to be 10 % and thereafter it has taken the notional income of the injured who was preparing for his competitive exams at that relevant time has assessed the compensation of Rs. 27,000/- i.e. only under one of the heads as referred to under the general heads of pecuniary damages. Once the Tribunal noted that the claimant suffered injuries in the aforesaid accident and also took the disability certificate into consideration and, therefore granted the benefit of 10% of disability, hence it does not sound to reason that why the Tribunal did not award an appropriate sum towards the pecuniary damages which was incurred by the claimant towards his expenditure on his treatment. In light of the large number of the documents which have been filed which also finds mention in paragraph 18 of the decision rendered by the Tribunal that the claimant had filed a lot of documents yet it ignored to consider the same merely on the ground that the claimant did not examine any doctor to prove the same. Once, the Tribunal had considered the claimant having suffered injuries on account of the accident and had granted him the benefit of 10% of the disability then it ought to have taken a holistic view and consider the invoices, the prescriptions, pathological reports which all related to the period of March, 1998 to October, 1999. There was a statement made by the claimant that he was under treatment of the aforesaid doctors and the name of the doctors are mentioned in his oral evidence were the same who had issued the certificates, prescriptions slips as well as once who have recommended for the various pathological tests.
In light of the above, it could not be said that the aforesaid documents could be brushed aside as a whole. It is true that in order to claim the entire amount as claimed by the claimant to the tune of Rs. 1.5 lakhs towards his expenditure on his treatment the claimant ought to have led the better evidence, however, the fact remains that the claimant was subjected to cross-examination and it was not contradicted that he has not suffered the injuries or that he had not spent any amount towards his treatment.
In view of the above, this Court is of the view that considering the fact that the claimant suffered injuries and at 10% disability and in light of the documents which was brought on record, they could not have been brushed aside altogether and apparently, considering the same, the Court finds that a sum of Rs. 50,000/- ought to be granted towards the medical expenditure which was made by the claimant.
The Court also taken into consideration the fact that the Tribunal has not granted any sum towards the non-pecuniary damages and it has ignored the fact that the claimant was a young man who has a future ahead of him and the fact that he has suffered disability of shortening of his legs by 2 centimeters which affects his normal gait and also may have an impact on his future quality of life and as such taking a holistic view and in light of the aforesaid the Court finds that a sum of Rs. 35,000/- be awarded to the claimant towards the non-pecuniary damages.
In light of the above, this Court finds that the claimant is entitled to an additional sum of Rs. 85,000/- apart from the amount which has already been provided by the Claims Tribunal in its award dated 12.07.2004.
In light of the findings given above, the appeal is partly allowed. The claimant shall be entitled to a total sum of Rs. 1,12,000/- and the amount already paid to the claimant under the award shall be adjusted. The amount shall carry interest at the rate of 6% per annum from the date of its application till the date of its actual payment.
It has been informed that the awarded amount along with up to date interest was already paid to the claimant in the year 2004 and the amount already awarded shall be adjusted from the total sum as determined above.
With the aforesaid, the appeal stands partly allowed. There shall be no order as to costs.
The record shall be remitted to the Tribunal concerned within a period of 2 weeks from today.
[Jaspreet Singh, J.] Order Date: 27.11.2019 Asheesh