Hon'ble Ashok Pal Singh,J.
(Delivered by Hon'ble Ashok Pal Singh,J.)
1. The instant appeal under section 173 of the Motor Vehicles Act, 1988 (in short 'the Act') has been preferred by the appellant against the Judgment and award dated 30-11-2011 passed by the Motor Accident Claims Tribunal/District Judge, Hardoi in M.A.C. Case No. 265 of 2009 for enhancement of compensation.
2. The appellant became a victim of road accident which occurred on 14-07-2009 when he was hit from behind while going on a cycle by a Pick-up bearing No. U.P.-15 X 9574 belonging to respondent no. 1. As a result of the accident, the appellant received fracture in his right leg. He was immediately taken to P.H.C. Madhoganj for treatment from where due to his condition being serious, he was referred to the District Hospital, Hardoi. However, due to non availability of the specialist doctor at the said hospital, he was then taken to Kunti Nursing Home where he was provided first aid treatment and referred to Lucknow. On 15-07-2009, he was admitted to King George Medical College Trauma Centre, Lucknow, where a surgical operation was performed on his injured leg. He remained admitted in the hospital for about one month and six days. After that also, his treatment continued at Lucknow. When no improvement took place, he was again admitted to the hospital. This time he was admitted in Vivekanand Poly Clinic at Lucknow where he underwent another surgical operation and to save his life his injured leg was amputated. According to the disability certificate issued by the Chief Medical Officer, Hardoi, the appellant suffered 70% disability. It was stated by the appellant before the Tribunal that at the time of accident, his age was 52 years and the accident was caused due to rash and negligent driving of the Pick-up. During the treatment for period of one month and six days at King George Medical College and Trauma Centre, Lucknow, nearly an amount of Rs. 1.20 lakh was spent. Further, an amount of Rs. 30,000/-was spent on his treatment in Vivekanand Poly Clinic. In all, nearly an amount of Rs. 2,00,000/- was spent on his treatment which is still continuing. It was also stated by the appellant that at the time of his accident, he being a farmer was doing agricultural work and also keeping buffaloes and doing the dairy business. His total earning was about Rs. 4,000/- per month. As a result of the amputation of his right leg, he was no longer in a position to walk without support and had been rendered incapable to pursue his agricultural & dairy work personally and to earn his livelihood. The claim petition was filed by the appellant under section 166/168 of the of the Act.
3. After considering the evidence produced by the parties, the Tribunal held that the accident had taken place due to rash and negligent driving of the Pick-up. The disability received by the appellant on the basis of disability certificate of Chief Medical Officer,Hardoi was held to be 70%. It was further held that at the time of the accident, age of the appellant was 52 years, but, as regards the income of the appellant, the Tribunal declined to accept the same as Rs. 4,000/- per month. It observed that except for his own statement, no other reliable evidence had been produced by the appellant either to prove that he was keeping buffaloes or doing any dairy business and having an earning of Rs. 4,000/- per month. It held his notional income to be Rs. 15,000/- per annum.
4. Having considered appellant's age at the time of accident to be 52 years, the disability to be 70% and notional income to be Rs. 15,000/- per annum, the Tribunal by applying multiplier of 11, calculated the loss of future earning of the appellant to be Rs. 1,65,000/-. Thus, loss of future earning was assessed as Rs. 1,15,500 (Rs. 1,65,000 x 70/100). In addition to this, the Tribunal held the appellant to be entitled for Rs. 15,000/- for medical expenses, Rs. 5,000/- for special diet and Rs. 5,000/- for pain and suffering. In this manner, a total sum of Rs. 1,40,500/- was awarded as compensation by the Tribunal to the appellant under the impugned award alongwith 6% per annum interest from the date of filing of the claim petition till the date of its payment.
5. Dissatisfied with the aforesaid amount of compensation awarded by the Tribunal, the appellant has preferred the present appeal as already stated herein above for its enhancement. No cross appeal has been filed against the impugned award by the respondents.
We have heard learned counsel for the parties and perused the record.
6. In Sri Laxman @ Laxman Mourya Versus Divisional Manager, Oriental Insurance Co. Ltd. & Anr., 2012(1) T.A.C. 376 (S.C.) while considering the plight of the survivors of the road accidents, very emphatically, Hon'ble Supreme Court in para 8 of its report observed as under :-
"The personal sufferings of the survivors of the road accidents and those who are disabled in such accidents are manifold. Sometime they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term 'compensation' used in Section 166 of the Motor Vehicles Act, 1988(for short, the Act') would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless."
7. The present case seems to be a case where required sensitiveness towards the plight of the road victim is found lacking on the part of the Tribunal. While awarding compensation, the Tribunal appears to have failed to take into account the necessary factors which have to be kept in mind while determining the amount of compensation in the case of personal injury.
8. In the case of Raj Kumar Versus Ajay Kumar, (2011) 1 SCC 343, emphasizing the need of awarding just compensation, Hon'ble Supreme Court while laying down the principles of assessment has categorized the damages payable to a victim as pecuniary or special damages and non pecuniary or general damages. Hon'ble Supreme Court in the said case (Supra) after considering some of the precedents observed as under :-
"The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding demages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the 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
(vii) 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)
9. It is clear that in the case of personal injury, efforts must be made to award just and fair compensation not only for the physical injury and expenses in treatment, but, also for the pain, suffering and trauma caused to the victim because of the accident. Victim's loss of earning, his inability to lead a normal life and enjoy amenities, which he would have enjoyed for the disability caused due to the accident, should also be taken into account while doing so.
10. In the light of aforesaid discussions, first of all, we find it extremely difficult to accept the notional income of the appellant to be Rs. 15,000/- per annum as assessed by the Tribunal. It appears that merely because the appellant was unable to lend support to his own statement of keeping buffaloes and doing the dairy business, it was held by the Tribunal that he had failed to prove any income to him. However, it appears that while doing so, the Tribunal overlooked a very crucial fact that the appellant was a farmer and in support thereof not only his statement on oath was available, but, he had also filed his Jot Bahi, which indicates that he is having an area of 0.672 hectares of agricultural land.
11. Much emphasis has been given by learned counsel for the respondents that an agriculturalist cannot be equated with a skilled labour. The argument advanced by learned counsel for the respondents seems to be misconceived. The profession of an agriculturalist itself requires scientific knowledge in view of recent development in the field. Knowledge, ability and experience collectively requires for a better production or outcome in the agriculture work. Hence, an agriculturist cannot be equated with unskilled labour.
12. Black's Law Dictionary (Ninth Edition) defines the words 'skill, 'ordinary skill' and 'reasonable skill' as under :-
"Skill. Special ability and proficiency; esp., the practical and familiar knowledge of the principles and processes of an art, science, or trade, combined with the ability to apply them appropriately, with readiness and dexterity. Skill is generally considered more than mere competence. It is a special competence that it not a part of the reasonable person's ordinary equipment, but that results from aptitude cultivated through special training and experience.
Ordinary Skill. The skill of a typical person who performs a given task or job.
Reasonable Skill. The skill ordinarily possessed and used by persons engaged in a particular business.
It also defines unskilled work as under :-
Unskilled work:- Work requiring little or no judgment, and involving simple tasks that can be learned quickly on the job.
13. The New Lexicon Webster's Dictionary of the English Language defines the word 'skill' as under :-
Skill(skil)n. ability to do something well, esp. as the result of long practical experience [a particular technique, the work calls for various skills[tact, to manage a person with skill] .
14. Hon'ble Andhra Pradesh High Court in a case reported in AIR 1989 Andhra Pradesh 56, Challa Ramaiah and another Versus Desu Guruvaiah, while considering the provisions contained in Order 21, Rule 66 of the Code of Civil Procedure considered the explanation no. 4 and placed an agriculturist or a labourer or a domestic servant at par. The court has further held that word 'skilled' includes some training or experience in work which requires skill. Relevant portion from the Judgment of Andhra Pradesh High Court in the case of Challa Ramaiah (Supra) is reproduced as under :-
5. The finding of the learned District Munsif is that the judgment-debtor is eking out his livelihood as a mason. It is contended that as the trial Court found that the judgment-debtor (petitioner) is a mason he is entitled for the benefits of Section 60(1)(c) read with Explanation 4 of the C.P.C. and his residential house should not be attached and sold in execution of a decree and the trial Court ought to have dismissed the Execution Petition. In the Proviso, wages includes bonus and 'labourers' includes "skilled", "unskilled" or "semi-skilled". Neither in Section 60(1)(c) nor in Explanation 4 it has been mentioned that skilled, unskilled or semi-skilled labourer limited to only agricultural labourer. The amendment reads as follows : --
"an agriculturist or a labourer or a domestic servant."
By using the word 'or' in between 'agriculturist' and 'labourer' we must, construe that the intention is that the benefit is not only restricted to agricultural labourers but to labourers also. If we take the word 'labourer' coupled with Explanation 4, it can safely be held that it applies to skilled, unskilled or semi-skilled labourers and they are entitled to the benefits of Section 60(1)(c) read with Explanation 4 of the C.P.C.
6. A "labourer" is a person who earns his daily bread by personal manual labour, or in occupations which require little or no art, skill or previous education.
7. According to Random House Dictionary, the word "skilled" means having skill; trained or experienced in work that requires skill. "Semi-skilled" means having or requiring more training and skill than unskilled labour but less than skilled labour. In Webster Dictionary, the meaning of the word "mason" is given as follows : (1) Person whose work is building with stone, brick etc., (2) Stone cutter. According to Chamber's Dictionary, a mason means "one who cuts, prepares, and lays stones a builder in stone." A mason by virtue of the nature of the work that has been done by him, can be termed as a skilled labourer.
15. Hon'ble Supreme Court in a case reported in (1992) 1 Supreme Court Cases 76, Chandrakant Mani Lal Shah and Another Versus Commissioner of Income Tax, Bombay-II while considering the meanings of labour and skill held as under :-
" 22..............Whether or not skill and labour would squarely fall within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo- real and incorporeal etc. may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity. This capacity is in its very nature an individual achievement and normally varies from individual to individual. It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity. Achievement of an object or goal is a benefit. This benefit accrues in favour of the individual possessing and utilising the capacity. Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual."
16. Hon'ble Supreme Court in another case reported in 2004 (1) Supreme Court Cases 755, Ahmedabad Pvt. Primary Teachers' Assn. Versus Administrative Officer and Others while considering the provisions contained in Section 2(e) of Payment of Gratuity Act, 1972, relying upon the definition given in Black's Law Dictionary of the words 'skilled', 'semi skilled' and unskilled, observed as under :-
22. In construing the above mentioned three words which are used in association with each other, the rule of construction noscitur a sociis may be applied. The meaning of each of these words is to be understood by the company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: 'that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it'. [See Principles of Statutory Interpretation by Justice G.P. Singh (8th Ed.), Syn.8 at pg.379].
23. The word 'unskilled' is opposite of the word 'skilled' and the word 'semi-skilled seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The word 'unskilled' cannot, therefore, be understood dissociated from the word 'skilled' and 'semi-skilled' to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the Legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided."
17. In view of the dictionary meaning as well as the interpretation given by Hon'ble Supreme Court keeping in view some statutory provisions, an agriculturist cannot be treated as an unskilled labour. A reasonable skill is required from him to discharge his/her obligation for better output. Although the work of an agriculturist may not have become highly technical keeping in view every day scientific development in the field, yet, in this scientific era, it requires scientific decision for sowing and reaping the crops and managing affairs upto the stage of sale of food-grains in the markets. Hence, in the absence of any proof of income from an agriculturist, his notional income for the purpose of payment of compensation may be treated at par with the income of a skilled person.
18. Considering the nature of work and specialization, a farmer, in our view, is a skilled person. He by no means of imagination can be equated with an ordinary labourer. In today's scenario keeping in the ground realities, the rising inflation and price index, monthly income of an ordinary labour has been held to be not less than Rs. 3,000/- per month by Hon'ble Supreme Court (Laxmi Devi's case). In such a situation, even if a person is a marginal farmer, his notional monthly income at the minimum rate of earning, cannot be treated at the same pedestal as that of an ordinary and unskilled labour.
19. In view of above, if the victim is an agriculturist or a farmer in the absence of any cogent proof of his income, his notional income must be held to be Rs. 4,000/- per month. i.e. Rs. 48,000/- per annum for the purpose of calculating the compensation.
20. In Mohan Soni Versus Ram Avtar Tomar and Others, 2012 (1) T.A.C. 385 (S.C.), their Lordships of Hon'ble Supreme Court as regards the loss of income in a road accident, where the victim's one leg had been amputated observed in para 7 of the report as under :-
"7. On hearing Counsel for the parties and on going through the materials on record, we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule 1 of the Workmen's Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But, in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller."
21. In view of above decision of Mohan Soni (Supra), we are of the view that in the present case considering the appellant's position to be that of a marginal farmer, his loss of earning capacity may be not less than 80% and that compensation for the loss of his future earning, must therefore be calculated on that basis.
22. The amount awarded by the Tribunal to the appellant of Rs. 15,000/- as lump sum amount under the head of treatment expenses and Rs. 5,000/- under the head of pain and sufferings also appears to have no rational basis. Considering the nature of injury the evidence made available and the period for which the appellant had to remain under treatment, we are of the view that he is entitled to receive Rs. 1,00,000/- each under the aforesaid two heads.
23. On the basis of aforesaid discussion, calculation for loss of earning by using the same multiplier as used by the tribunal would be Rs. 48,000 x 11 = Rs. 5,28,000/ x 80/100 = Rs. 4,22,400/-. After adding Rs. 1,00,000/- in each of two heads for treatment expenses and pain and sufferings and Rs. 5,000/- for special diet, the total amount of compensation payable to the appellant is assessed to be Rs. 6,27,400/-.This amount would carry 6% per annum simple interest from the date of filing of the claim petition till the date of its payment.
24. The appeal is accordingly allowed. The appellant shall be entitled for compensation of an amount of Rs. 6,27,400/- alongwith interest @ 8% per annum from the date of filing of the claim petition till the date of its payment.
Let the entire compensation in terms of present Judgment be deposited by the insurance company-respondent no. 3 before the Tribunal within a period of two months and the Tribunal shall release the same immediately thereafter within next two months. The respondent no. 3 shall be at liberty to adjust the amount if any already paid or deposited.
No order as to costs.
Dated: March 25th 2014.
AKS