Love Kishore and Anr v. Raj Kaushlya Bhatia and Ors

N THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 208 FAO-1555-2007 (O&M) Date of Decision: October 01, 2024 Love Kishore and another ......Appellants Vs. Raj Kaushlya Bhatia and others ......Respondent(s) CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA Present: Mr. Namit Sharma, Advocate for the appellants. Mr. Suvir Dewan, Advocate for respondent No.3-Insurance Company ---- SUDEEPTI SHARMA J. (ORAL) The present appeal stems from an accident which took place in the year 2004, with considerable time having passed while the instant appeal remains pending final adjudication. The case file has been partially burnt due to fire incident which took place in this Court in the year 2011 resulting in the facts being rendered illegible and unreadable.

¶2Notwithstanding this, the appellant has filed the present appeal solely seeking an enhancement of the compensation awarded by the learned Tribunal. In the instant case the learned Tribunal had conclusively determined the issue of the accident in question and held the respondents liable to pay the amount of compensation.

¶3Upon enquiry by this court, the parties to the appeal stated that they do not possess a complete brief of the instant case and unable to assist the Court

¶4In the light of the facts and circumstances and considering partial loss/destruction of the case file as well as the absence of complete papers book, this Court is deciding the present appeal based on the remaining available records.

¶1The present appeal has been preferred against the award dated

21.12.2006 passed in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Karnal (for short, 'the Tribunal') for enhancement of compensation granted to the claimants/appellants. FACTS NOT IN DISPUTE

¶2The brief facts of the case are that on 19.3.2004, claimants Love Kishore, Sanjay Kumar and Satya Singh alongwith wife of Satya Singh had gone to Masooree Public School to leave her as she was to join as Vice Principal in the school, in a car bearing registration No.HR-05-K-3621 owned and driven by Love Kishore claimant. After dropping wife of Satya Singh in the school, they started their return journey in the said car from Masooree. The car was being driven at a moderate speed observing the traffic rules and on the due left hand side of the road. When the said car reached in the area of Chhutmal Pur within the area of police Station Fatehpur, District Saharanpur, then, a TATA Tanker bearing registration No.UP-11-H-0422 (hereinafter referred to as 'offending vehicle') came from the opposite side being driven rashly and negligently with full speed by respondent No.1-Heera. The tanker's driver, without caring the traffic rules and right of other road users, started overtaking a bus which was going ahead of the tanker and in the said process applied a sudden brakes and due to the applying of the sudden brakes, the tanker, which was on full speed, could not be controlled by its driver and the said tanker slipped and skited to some extent and thereafter struck with the car of the claimants and then turned turtle. All the persons travelling in the car suffered injuries and were shifted to the hospital of District Saharanpur (UP) but the police in connivance with the owner of the offending vehicle lodged a DDR with twisted facts.

¶3Upon notice of the claim petition, respondents appeared and denied the factum of accident/compensation.

¶4From the pleadings of the parties, the Tribunal framed the following issues:-

(1) Whether Love Kishore, Sanjay Kumar Ganhotra and Satya Singh have received injuries in the motor vehicular accident, took place due to the rash and negligent driving of tanker bearing No. UP-11-H-0422 being driven by respondent No.2 ? OPP.

(2) If so, whether the claimants are entitled to receive the compensation for the injuries received by them, if so to what amount and from whom?OPD

(3) Whether the petition is not maintainable in the present form? OPD

(4) Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident, if so its effect? OPR

(5) Whether the vehicle in question was being plied in violations of the terms and conditions of the insurance policy, if so its effect ?OPR3

(6) Relief.

¶5After taking into consideration the pleadings and the evidence on record, the learned Tribunal awarded compensation to the tune of Rs.40,000/- alongwith interest @ 7.5% per annum. Hence, the claimants/appellants filed the I attest top trhee sacecnurta cay panpdeal for enhancement of compensation awarded by the Tribunal. SUBMISSIONS OF THE COUNSELS FOR THE PARTIES

¶6The learned counsel for the claimants-appellants contend that the compensation awarded by the learned Tribunal is on the lower side.

i) Further compensation granted for pain and suffering and medical expenses is on lower side. Further, no amount was granted for future prospectus. Therefore, he prays that the present appeal be allowed and compensation should be enhanced as per latest law.

¶7Per contra, learned counsel for respondent No.3-Insurance Company, vehemently argues on the lines of the award and contends that the Ld. Tribunal had rightly passed the award.

¶8I have heard learned counsel for the parties and perused the whole record of this case.

¶9A perusal of the award indicates that no disability certificate was proved by the claimant-Love Kishore that he had suffered permanent disability. However, Ex.P-11 (copy of Medico Legal Report), shows that the claimant-Love Kishore received five injuries due to accident. Further compensation granted for pain and suffering, special diet and transportation charges is also on lower side.

¶10A perusal of the award further reveals that with respect to claimant No.2-Sanjay Kumar, no disability certificate was proved by claimant No.2 (supra) to substantiate the claim of permanent disability. Nevertheless, Ex. P-40 (Copy of Medico Legal Report) shows that claimant-Sanjay Kumar has suffered four injuries in the accident. Further compensation granted for pain and suffering, special diet and transportation charges is also on lower side.

¶11Therefore, the award requires indulgence of this Court. SETTLED LAW ON COMPENSATION

¶12Hon'ble Supreme Court has settled the law regarding grant of compensation with respect to the disability. The Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343, has held as under:- General principles relating to compensation in injury cases

¶5The provision of the Motor Vehicles Act, 1988 ('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 damages 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 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. (See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467).

¶6The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, 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. xxx xxx xxx xxx

¶19We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

¶20The assessment of loss of future earnings is explained below with reference to the following Illustration 'A' : The injured, a workman, was aged 30 years and earning Rs. 3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows: a) Annual income before the accident : Rs. 36,000/-. b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (5400 x 17) : Rs. 91,800/- Illustration 'B' : The injured was a driver aged 30 years, earning Rs. 3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows : a) Annual income prior to the accident : Rs. 36,000/- . b) Loss of future earning per annum (75% of the prior annual income) : Rs. 27000/-. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/- Illustration 'C' : The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows : a) Minimum annual income he would have got if had been employed as an Engineer : Rs. 60,000/- b) Loss of future earning per annum (70% of the expected annual income) : Rs. 42000/- c) Multiplier applicable (25 years) : 18 d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/- [Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)].

¶13Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following aspects:-

(A) Deduction of personal and living expenses to determine multiplicand;

(B) Selection of multiplier depending on age of deceased;

(C) Age of deceased on basis for applying multiplier;

(D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation;

(E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed or fixed salary. The relevant portion of the judgment is reproduced as under:- " Therefore, we think it seemly to fix reasonable sums. It 2024.11.14 14:26 seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."

¶14Hon'ble Supreme Court in the case of Erudhaya Priya Vs. State Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:- " 7. There are three aspects which are required to be examined by us:

(a) the application of multiplier of '17' instead of '18'; The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ 2700 (SC). In para 46 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age group of 15-25 years, the multiplier has to be '18' along with factoring in the extent of disability. The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be '18' and not '17'.

(b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract below the principle set out in the Jagdish (supra) in para 8: "8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:

(i) Pain, suffering and trauma resulting from the accident;

(ii) Loss of income including future income;

(iii) The inability of the victim to lead a normal life together with its amenities;

(iv) Medical expenses including those that the victim may be required to undertake in future; and

(v) Loss of expectation of life." [emphasis supplied] The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident. In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 1½ years from August 2011 to January 2013. The nature of injuries had been set out as under: "Nature of injury:

(i) compound fracture shaft left humerus

(ii) fracture both bones left forearm

(iii) compound fracture both bones right forearm

(iv) fracture 3rd, 4th & 5th metacarpals right hand

(v) subtrochanteric fracture right femur

(vi) fracture shaft femur

(vii) fracture both bones left leg We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 13 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 61(iii), considering the age of the appellant, would be 50% of the actual salary in the present case.

(c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish's case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court. CONCLUSION

¶8The result of the aforesaid is that relying on the settled principles, the calculation of compensation by the appellant, as set out in para 5 of the synopsis, would have to be adopted as follows: Heads Awarded Loss of earning power Rs. 9,81,978/- (Rs.14,648 x 12 x 31.1/100 Future prospects (50 per Rs.4,90,989/-Sonia Arora cent addition) Medical expenses including Rs.18,46,864/- transport charges, nourishment, etc. Loss of matrimonial Rs.5,00,000/- prospects Loss of comfort, loss of Rs.1,50,000/- amenities and mental agony Pain and suffering Rs.2,00,000/- Total Rs.41,69,831/- The appellant would, thus, be entitled to the compensation of Rs. 41,69,831/- as claimed along with simple interest at the rate of 9% per annum from the date of application till the date of payment.

¶15In view of the above, the present appeal is allowed and award dated

21.12.2006 is modified. Accordingly, as per the settled principles of law as laid down by Hon'ble Supreme Court as mentioned above, the appellant/claimant-Love Kishore is held entitled to the enhanced amount of compensation as calculated below:-Sr. Heads Compensation Awarded No. 1 Pain and Sufferings Rs.25,000/-2 Special diet Rs.10,000/-3 Medical expenses Rs.22,927/-4 Transportation charges Rs.5,000/-5 Attendant Charges Rs.10,000/-6 Loss of income during period of Rs.12,000/-treatment 7 Total Compensation Rs.84,927/-8 Amount Awarded by the Rs.40,000/-Tribunal Sonia Arora 9 Enhanced amount Rs. 44,927/-

¶16Further, the appellant/claimant-Sanjay Kumar is held entitled to the enhanced amount of compensation as calculated below:-Sr. Heads Compensation Awarded No. 1 Pain and Sufferings Rs.25,000/-2 Special diet Rs.10,000/-3 Medical expenses Rs.10,000/-4 Transportation charges Rs.5,000/-5 Attendant Charges Rs.10,000/-6 Loss of income during period of Rs.12,000/-treatment 7 Total Compensation Rs.72,000/-8 Amount Awarded by the Rs.20,000/-Tribunal 9 Enhanced amount Rs. 52,000/-

¶17So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nadu State Transport Corporation (2022) 5 Supreme Court Cases 107, the amount so calculated shall carry an interest @ 9% per annum from the date of filing of the claim petition, till the date of realization.

¶18Respondent-Insurance Company is directed to deposit the enhanced amount alongwith interest with the Tribunal within a period of two months from the date of receipt of copy of this judgment. The Tribunal is directed to disburse the same to the appellants-claimants in their bank account. The appellants-claimants are directed to furnish their bank account details to the Tribunal.

¶19Disposed off accordingly.

¶20Pending applications, if any, also stand disposed of. (SUDEEPTI SHARMA) JUDGE October 01, 2024 sonia arora Whether speaking/non-speaking : Speaking