Rajinder v. Manoj Kumar and Anr

IN T

Rajinder Manoj Kumar an

CORAM : HON

Present : Mr.

Mr.

Mr.

Mr SUDEEPTI SH

1.

The enhancement of Tribunal, Bhiwa Section 166 of t awarded a comp FACTS NOT IN

2.

Bri other persons w driven by respo proximity of v No.HR-26B-805 and negligent m

THE HIGH COURT OF PUNJ AT CHANDIGA -.-

FA

Da

VERSUS nd Others

N'BLE MRS. JUSTICE SUDE Akash Vashisht, Advocate and Akinchan Aggarwal, Advocate V.Ram Swaroop, Advocate for r. Vikrant Rana, Advocate for res -.- HARMA, J. (Oral)

e present appeal has been prefe f compensation awarded by th ani (for short, 'the Tribunal') v the Motor Vehicles Act, 1988, w pensation of Rs.7,000/- along wit N DISPUTE ief facts of the case are that on 1 was travelling in a tempo bearing ondent No.5, at a moderate sp village Balkara, the offending 57, driven by respondent No.1, f manner, dashed against the temp

JAB AND HARYANA ARH AO-3924-2006 (O&M) ate of Decision:-06.11.2024

....Appellant

....Respondents EEPTI SHARMA for the appellant. respondent No.3. spondent Nos. 4 to 6. erred by the claimant/appellant he learned Motor Accident Clai vide award dated 12.05.2006 un whereby, the claimant/appellant w th interest @ 9% per annum.

14.05.1999, the appellant alongw registration No.HR-39-6543, be peed. When they reached in TATA Sumo bearing registrat from the opposite direction in a r po. As a result, all the occupa

for ims nder was with eing tion rash

sustained injurie in critical condi legally examine

3.

Up written statemen

4.

Fro issues:-

5.

Aft record, the learn with interest @ appeal for enhan SUBMISSIONS

6.

Lea awarded by the claimant/appella

es. The appellant was taken to ition, he was referred to PGIM d. FIR No.108, dated 14.05.199 on notice of the claim petition nt denying the factum of acciden om the pleadings of the parties,

¶1Whether the accide

14.05.1999 due to rash or n vehicle tempo No.HR-39-65 resulting into inquiry to Rajin

¶2If issue No.1 is proved to compensation, if so to wha

¶3Whether the responde vehicle possessed a valid an date of accident? OPR

¶4Relief. ter taking into consideration th ned Tribunal awarded compensa @ 9% per annum. Hence the c ncement of compensation award S OF LEARNED COUNSELS arned counsel for the appellant/ learned Tribunal is on the lowe ant has placed on record Disabil

General Hospital, Bhiwani. Be S, Rohtak, where, he was medi 99 was also lodged in this regard n, respondents appeared and fi nt/compensation. the Tribunal framed the follow ent in question took place negligent driving of the offend 543 on the part of respondent N nder? OPP d, whether the petitioner is entit at amount and from whom? OPP ent No.1 – driver of the offend nd effective driving licence on he pleadings and the evidence ation to the tune of Rs.7,000/- alo laimant/appellant filed the pres ed by the Tribunal. S FOR THE PARTIES /claimant contends that the amo er side. He further contends that lity Certificate Mark P-1 issued

eing ico- . filed wing on ding No.1 tled P ding on ong sent ount

Civil Surgeon, permanent disa consideration, t failed to examin that the claiman month as per S Tribunal has err the appellant/cl contends that transportation ch and compensatio

7.

Per at the very out Section 173 of t of the Tribunal i that in the instan thereby, preclud

8.

I h record of this ca

9.

So the maintainabil 2006 has already

¶13erro rem

Bhiwani, which shows that the ability. However, the learne the Disability Certificate by h ne doctor who issued the disabil nt was employed in Army and w Salary Certificate Mark P-3. He red in granting a meager amoun aimant for injuries, he sustaine Tribunal has not granted an harges, etc. Therefore, he prays on be enhanced as per latest law r contra, learned counsel for res tset, contends that the present the Motor Vehicles Act, 1988, a if the amount awarded is less tha nt case, the amount awarded by ding the right to appeal. have heard learned counsel for ase. far as the contention of respon lity of present appeal is concern y dealt with the same question an

It is a well-settled pr ors committed by legal counse medy, should not operate to

e appellant/claimant suffered 5 ed Tribunal has not taken i olding that the appellant/claim ity certificate. He further conte was drawing salary of Rs.6962/- e further contends that the learn nt of Rs.7,000/- as compensation ed due to the accident. He furt ny amount towards special d that the present appeal be allow . spondent No.3-Insurance Compa appeal is not maintainable un as no appeal shall lie from an aw an Rs.10,000/-. He further conte the Learned Tribunal is Rs.7,00 the parties and perused the wh ndent-Insurance company regard ned, this Court in FAO No.5270 nd held as under:- rinciple that procedural lapses el, such as invoking an incorr the detriment of a claiman

50% into mant nds per ned n to ther diet, wed any, nder ward nds 00/- hole ding 0 of s or rect nt's

sub ben Cou pro of pro this clai

¶14Ord inh app

¶15pre ena sub not rein mot

¶16just app reaf exp pre

10.

The titled as Kamles present appeal in

11.

A p meager amount

bstantive right to seek enhanced neficial statute like the Motor V urt has consistently underscor ocedural technicalities, including Evidence and the Civil Proc oceedings under the Motor Vehi s remedial legislation is to ensu imants.

This court further obs der XLI Rule 33 of the Code of erent powers to ensure the end peal as a revision.

Such an exercise of di ecedents and resonates with actment of the Motor Vehicle bstantive justice over procedural t only adheres to the principle nforces the legislative purpose o tor accidents.

In light of the foregoin t and proper to invoke its inher peal into a revision petition. By affirms its commitment to deliver peditious and fair, thereby safeg eventing undue delay or denial of erefore, in line with the preced sh @ Sonia Vs. Bhola Singh a nto Civil Revision. perusal of the award shows that L of compensation to the appella

compensation, particularly unde Vehicles Act. The Hon'ble Supre red that the strict adherence g the rigid application of the Ru cedure Code, is inapplicable icles Act. The primary objective ure prompt and equitable justice serves that under Section 107 a Civil Procedure, 1908, it posses ds of justice is met by treating iscretion is firmly rooted in judic the legislative intent behind es Act, which seeks to priori l formalities. By doing so, this co es of equity and fairness but a of expediting relief to the victims ng considerations, this court find rent powers to convert the pres exercising this discretion, the co ring justice in a manner that is b guarding the claimant's rights a f relief." dent set in FAO No.5270 of 20 and others, this Court converts Ld. Tribunal has erred in grantin ant. A perusal of the award furt

er a eme to ules to e of e to and sses cial itize ourt also s of ds it sent ourt both and ng a

shows that the a from the Disabi Tribunal erred b that no doctor w award further s monthly income Army. Theref Rs.7,000/- by ta

12.

A p multiplier meth was granted fo Therefore, the a SETTLED LAW

13.

Ho compensation w Kumar Vs. Aja held as under:- Gen

¶5ma com res awa wro equ

appellant suffered 50% permanen lity Certificate placed on record by not taking into consideration t was examined to prove the Disa shows that as per Salary Cert e was Rs.6962/- per month and fore, this Court assess a mon aking into consideration salary ce perusal of the award further show od while granting compensation or future prospects, special die award requires indulgence of this W ON COMPENSATION n'ble Supreme Court has set with respect to the disability. T ay Kumar and Another (2011) neral principles relating to comp The provision of the Motor Ve kes it clear that the award mpensation should, to the exte tore the claimant to the position arding damages is to make goo ong done as far as money can uitable manner. The court or

nt disability and the same is evid d as Mark P-1, however, the learn the Disability Certificate by hold ability Certificate. A perusal of tificate Mark P-3, the appellan d claimant was employed in Ind nthly income of the appellant ertificate. ws that the Tribunal has not appl n and no amount of compensat et and transportation charges s Court. ttled the law regarding grant The Apex Court in the case of ) 1 Supreme Court Cases 343, mpensation in injury cases Vehicles Act, 1988 ('Act' for sho must be just, which means t ent possible, fully and adequa n prior to the accident. The objec od the loss suffered as a resul n do so, in a fair, reasonable a tribunal shall have to assess

dent ned ding nt's dian as lied tion etc. t of Raj has ort) that tely ct of t of

dam or disa be suff com tho inju hav Ltd

¶6inju Pec

(i) tran

(ii) ma

(iii) Da

(iv) inju

(v)

mages objectively and exclude f fancy, though some conjecture ability and its consequences, is compensated for the physical inj ffered as a result of such inju mpensated for his inability to le ose normal amenities which he uries, and his inability to earn a ve earned. (See C.K. Subramoni 70 Supreme Court 376, R.D. H d., 1995 (1) SCC 551 and Baker v The heads under which com ury cases are the following : cuniary damages (Special Dama Expenses relating to treatm nsportation, nourishing food, an Loss of earnings (and other ga de had he not been injured, comp

(a) Loss of earning during th

(b) Loss of future earnings on ) Future medical expenses. N mages) ) Damages for pain, suffering an uries. Loss of amenities (and/or loss of

from consideration any speculat e with reference to the nature inevitable. A person is not only njury, but also for the loss which ury. This means that he is to ead a full life, his inability to en e would have enjoyed but for as much as he used to earn or co ia Iyer v. T. Kunhikuttan Nair, A Hattangadi v. Pest Control (Ind v. Willoughby, 1970 AC 467). mpensation is awarded in perso ages) ment, hospitalization, medicin nd miscellaneous expenditure. ains) which the injured would h mprising : he period of treatment; n account of permanent disabilit Non-pecuniary damages (Gene nd trauma as a consequence of of prospects of marriage).

tion e of y to h he be njoy ould AIR dia) onal nes, ave ty. eral

(vi) In r und whe of t hea acc am exp

19.

(i) A res

(ii) who loss ear disa evid sam

(iii) sub evid ear Tri

) Loss of expectation of life (shor routine personal injury cases, c der heads (i), (ii)(a) and (iv). It ere there is specific medical ev the claimant, that compensation ads (ii)(b), (iii), (v) and (vi) rel count of permanent disability, enities (and/or loss of prosp pectation of life. xxx

xxx We may now summarise the pr All injuries (or permanent disab ult in loss of earning capacity. The percentage of permanen ole body of a person, cannot b s of earning capacity. To put it d rning capacity is not the same ability (except in a few cases, w dence, concludes that percentag me as percentage of permanent d ) The doctor who treated an inju bsequently to assess the extent of dence only in regard the extent rning capacity is something tha ibunal with reference to the evide

rtening of normal longevity). compensation will be awarded o t is only in serious cases of inju vidence corroborating the evide n will be granted under any of lating to loss of future earnings future medical expenses, loss pects of marriage) and loss xxx

xxx rinciples discussed above : bilities arising from injuries), do nt disability with reference to e assumed to be the percentage differently, the percentage of loss e as the percentage of perman where the Tribunal on the basis ge of loss of earning capacity is disability). ured-claimant or who examined h of his permanent disability can g of permanent disability. The loss at will have to be assessed by ence in entirety.

only ury, ence f the s on s of of not e of s of nent s of him give

(iv) of l nat fac

¶20wit Illu ear evid inju per how bec gra Illu is a lon and

) The same permanent disability loss of earning capacity in diffe ture of profession, occupation ctors. The assessment of loss of fu th reference to the following ustration 'A' : The injured, a w rning Rs. 3000/- per month at th dence, the permanent disability ury was 60% and the consequ rson was quantified at 30%. wever assessed by the Tribunal cause the claimant is continue ade. Calculation of compensation a) Annual income before the b) Loss of future earning per (15% of the prior annual inc c) Multiplier applicable with d) Loss of future earnings : ( ustration 'B' : The injured was a 00/- per month. His hand is amp assessed at 60%. He was termi nger drive. His chances of gettin d even if he got any job, the sala

may result in different percenta ferent persons, depending upon or job, age, education and ot uture earnings is explained bel workman, was aged 30 years a he time of accident. As per Docto of the limb as a consequence of uential permanent disability to The loss of earning capacity l as 15% on the basis of eviden ed in employment, but in a low n will be as follows: e accident : Rs. 36,000/-. r annum come) : Rs. 5400/-. h reference to age : 17 (5400 x 17) : Rs. 91,800/- a driver aged 30 years, earning putated and his permanent disabi inated from his job as he could ng any other employment was bl ary was likely to be a pittance. T

ages ther low and or's f the y is nce, wer Rs. ility d no leak

Tri 75% Illu Eng two The inc ass cap wil a) M hav Eng b) L (70 c) M d) L [No hyp act

14.

Ho Ltd. Vs. Pranay

ibunal therefore assessed his lo %. Calculation of compensation a) Annual income prior to th b) Loss of future earning per (75% of the prior annual inc c) Multiplier applicable with d) Loss of future earnings : ( ustration 'C' : The injured w gineering student. As a result of o months, his right hand was a e permanent disablement was as capacitated to pursue his chose sistance of a servant throughout pacity was also assessed as 70% ll be as follows : Minimum annual income he wou ve got if had been employed as a gineer

Loss of future earning per annum 0% of the expected annual incom Multiplier applicable (25 years) Loss of future earnings : (42000 ote : The figures adopted in pothetical. The figures in Illust tuals taken from the decision in A n'ble Supreme Court in the case y Sethi & Ors. [(2017) 16 SCC

loss of future earning capacity will be as follows : e accident : Rs. 36,000/- . r annum come) : Rs. 27000/-. h reference to age : 17 (27000 x 17) : Rs. 4,59,000/- was 25 years and a final y of the accident, he was in coma amputated and vision was affect ssessed as 70%. As the injured w en career and as he required t his life, the loss of future earn %. The calculation of compensat uld an

: Rs. 60,000/-m me) : Rs. 42000/-

: 18 x 18) : Rs. 7,56,000/- n illustrations (A) and (B) tration (C) however are based Arvind Kumar Mishra (supra)]. e of National Insurance Compa C 680] has clarified the law un

y as year for ted. was ning tion are on any

Sections 166, 1 aspects:-

(A) mu

(B)

(C)

(D) esta

(E) age The

15.

Ho Express Tran. C

63-A and 168 of the Motor Ve ) Deduction of personal an ultiplicand; ) Selection of multiplier depen ) Age of deceased on basis for ) Reasonable figures on con ate, loss of consortium and funer ) Future prospects for all cate es: with permanent job; self-emp e relevant portion of the judgmen " Therefore, we think it seems to us that reasonabl namely, loss of estate, loss o should be Rs.15,000, Rs.40 The principle of revisiting principle. But the revisit sho centric. We think that it wou we have quantified should b every three years and the en 10% in a span of three ye because that will bring in heads." n'ble Supreme Court in the ca Corpn. Ltd. 2020 ACJ 2159, has

ehicles Act, 1988, on the follow nd living expenses to determ nding on age of deceased; r applying multiplier; nventional heads, namely, loss ral expenses, with escalation; egories of persons and for differ ployed or fixed salary. nt is reproduced as under:-t seemly to fix reasonable sums le figures on conventional hea of consortium and funeral expen 0,000 and Rs.15,000 respectiv the said heads is an accepta uld not be fact-centric or quantu uld be condign that the amount t be enhanced on percentage basis nhancement should be at the rate ars. We are disposed to hold n consistency in respect of th ase of Erudhaya Priya Vs. St s held as under:-

wing mine of rent s. It ads, nses ely. able um-that s in e of d so hose

" 7

(a) age Ins effe Tra gro fac for con app

(b) disa

com Jag Kha bel

¶7There are three aspects which ) the application of multiplier of The aforesaid increase of m e of the appellant as 23 years re urance Company Limited v. Pr 00 (SC). In para 46 of the said ectively affirmed the multiplier m e table in the case of Sarla V ansport Corporation and Anothe oup of 15-25 years, the multi ctoring in the extent of disability. The aforesaid position is not the respondent State Corpora nclusion that the multiplier to pellant has to be '18' and not '17 Loss of earning capacity of ability of 31.1% In respect of the aforesa mpensation on what is stated to gdish v. Mohan & Others, 20 anuja v. Atul Dande & Another low the principle set out in the Ja "8. In assessing the compens need to be borne in mind. A temporary disability occasio

are required to be examined by f '17' instead of '18'; multiplier is sought on the basis elying on the judgment in Natio ranay Sethi and Others, 2017 A d judgment, the Constitution Ben method to be used as mentioned Verma (Smt) and Others v. De er, 2009 ACJ 1298 (SC) . In the a iplier has to be '18' along w

t really disputed by learned coun ation and, thus, we come to o be applied in the case of 7'. of the appellant with perman aid, the appellant has claim o be the settled principle set ou 018 ACJ 1011 (SC) and Sand r, 2017 ACJ 979 (SC). We extr agdish (supra) in para 8: sation payable the settled princip victim who suffers a permanent ned by an accident is entitled to

us: s of onal ACJ nch d in elhi age with nsel nent med t in deep ract ples

jud mu qua disa disa occ und

award of compensation. The among others, the following

(i) Pain, suffering and tra

(ii) Loss of income includ

(iii) The inability of the vi with its amenities;

(iv) Medical expenses incl required to undertake

(v) Loss of expectation of The aforesaid principle has dgment, i.e. the Sandeep Khanu ltiplier method was logically so antify the loss of income as ability suffered in an accident. In the factual contours of th ability certificate, it shows th casions for various number of 11 to January 2013. The natur der: "Nature of injury:

(i) compound fracture sha

(ii) fracture both bones lef

(iii) compound fracture bo

(iv) fracture 3rd, 4th & 5th

award of compensation must co aspects: auma resulting from the accident ding future income; ictim to lead a normal life toget luding those that the victim may in future; and f life." [emphasis supplied] also been emphasized in an ear uja case (supra) opining that ound and legally well established a result of death or perman he present case, if we examine he admission/hospitalization on days over 1½ years from Aug re of injuries had been set out aft left humerus ft forearm th bones right forearm h metacarpals right hand

over t; ther y be rlier d to nent n 8 gust

(v) subtrochanteric fractu

(vi) fracture shaft femur

(vii) fracture both bones lef We have also peruse petition showing the curren though it is stated by learne Corporation that the same w Be that as it may, this is the the nature of injuries itself been opined in para 13 of S while applying the multipl advancement in life and c consideration. We are, thus, unequivo in the contention of the app with regard to future prospec of the appellant taking the p quantification of the same National Insurance Co. Ltd para 61(iii), considering th 50% of the actual salary in th

(c) The third and the last as 12% In respect of the afo down the interest rate durin

ure right femur ft leg ed the photographs annexed to nt physical state of the appella ed counsel for the respondent St was not on record in the trial co e position even after treatment a f show their extent. Further, it Sandeep Khanuja case (supra) t lier method, future prospects career are also to be taken i ocally of the view that there is m pellant and the aforesaid princip cts must also be applied in the c permanent disability as 31.1%. T on the basis of the judgment d. case (supra), more specifica he age of the appellant, would he present case. spect is the interest rate claimed resaid, the appellant has wate ng the course of hearing to 9%

ant, tate urt. and has that on into erit ples case The t in ally d be d as ered % in

Rs. per

view of the judicial pronoun case (supra). On this aspect dispute raised by the learne the claim was confined to applied by this Court. CONCLUSION

¶8The result of the afores principles, the calculation of set out in para 5 of the syno follows:

Heads Loss of earning power (Rs.14,648 x 12 x 31.1/100 Future prospects (50 per cent addition) Medical expenses including transport charges, nourishment, etc. Loss of matrimonial prospects Loss of comfort, loss of amenities and mental agony Pain and suffering Total The appellant would, thus, 41,69,831/- as claimed along w r annum from the date of applica

ncements including in the Jagdis t, once again, there was no seri ed counsel for the respondent o 9% in line with the interest ra said is that relying on the sett f compensation by the appellant, opsis, would have to be adopted Awarded Rs. 9,81,978/- Rs.4,90,989/- Rs.18,46,864/- Rs.5,00,000/- Rs.1,50,000/- Rs.2,00,000/- Rs.41,69,831/- be entitled to the compensation with simple interest at the rate of ation till the date of payment.

sh's ious nce ates tled t, as d as n of f 9%

16.

The award dated 12. would be as foll Sr. No.

¶1Inco

¶2Futu

¶3Ann

¶4Los annu

¶5Mul Atte Pain Nut Tran Los

Tota

Com

Enh

17.

So Court in Dara S and R.Valli and Supreme Court per annum from

18.

The compensation al from the date o disburse the am

e result of the aforesaid is that r .05.2006 is modified and the cal lows:- Heads ome Rs ure Prospects 50% Rs nual Income Rs s of future earning per um 50% Rs ltiplier 16 Rs endant Charges Rs n and sufferings Rs trition & Special Diet Rs nsportation Charges Rs s of amenities of life Rs al Compensation Rs mpensation awarded by Tribunal Rs hanced Compensation Rs far as the interest part is conce Singh @ Dhara Banjara Vs. Shy d Others VS. Tamil Nandu State t Cases 107, the amount so calc m the date of filing of claim petiti e Insurance Company is directed long with interest with the Tribu of receipt of copy of this judg mount of compensation along

relying on the settled principles, lculation of enhanced compensat Compensation Awarded s.7,000/- s.3,500/- (50% of 7000) s.1,26,000/- (10500 x 12) s.63,000/- (50% of 1,26,000) s.10,08,000/-(63,0000 x 16) s.50,000/- s.2,50,000/- s.50,000/- s.30,000/- s.1,50,000/- s.14,88,000/- s.7,000/- s.14,81,000/- erned, as held by Hon'ble Supre yam Singh Varma 2019 ACJ 31 te Transport Corporation (2022 culated shall carry an interest @ ion till the date of realization. d to deposit the enhanced amoun unal within a period of two mon gment. The Tribunal is directed with interest in the account

tion eme 2) 5 9% nt of nths d to

claimant/appella details to the Tri

19.

In

18.07.2024 by th current schedule days from the da

20.

Dis

21.

Pen

November 06, 2 tripti

Whethe

Whethe

ant. The claimant/appellant is di ibunal. view of the order passed in his Court, the insurance compan ed fees to Mr. V. Ram Swaroop ate of receipt of copy of this judg sposed of accordingly. nding applications, if any, also st 2024

er speaking/non-speaking : Speak er reportable

: Yes/N

irected to furnish his bank acco n FAO No.1682 of 2007 da ny is hereby directed to disburse p, Advocate within a period of gment. tand disposed of. (SUDEEPTI SHARMA) JUDGE king

ount ated