Himachal Pradesh High Court
Reliance General Insurance Company ... vs Ishwar Singh & Others on 23 April, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.43 of 2018
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Date of Decision: 23.04.2018
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Reliance General Insurance Company Limited ....Appellant.
Versus
Ishwar Singh & others ..........Respondents.
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the Appellant
r : Mr. Jagdish Thakur, Advocate.
For the respondents : Mr. O.C.Sharma, Advocate, for
respondent No.1.
Mr. Shriyek Sharda, Advocate, for
respondents No.2 & 3.
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Sandeep Sharma, J(Oral)
Instant appeal is being taken up for final disposal at pre-
admission stage with the consent of the learned counsel representing the parties.
2. Being aggrieved and dissatisfied with the impugned award, dated 4.7.2017, passed by the learned Motor Accident Claims Tribunal-II, Solan (camp at Nalagarh), District Solan, Himachal Pradesh, in MAC Petition No.22-NL/2 of 2014, whereby learned Tribunal below while allowing the petition under Section 166 of the Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 28/04/2018 22:52:50 :::HCHP -2-Motor Vehicles Act,1988, having been preferred by respondent No.1 (for short 'claimant'), saddled the appellant-Insurance Company with liability to pay compensation to the tune of `9,90,658/-alongwith .
interest at the rate of 8% per annum from the date of filing of the petition till deposit of award amount by insurance company, appellant-Insurance Company has approached this Court by way of instant proceedings, with a prayer to quash and set-aside the impugned award, dated 4.7.2017, passed by the learned Motor Accident Claims Tribunal.
3. Briefly stated facts, as emerge from the record are that the claimant filed a claim petition under Section 166 of the Motor Vehicles Act ( for short 'Act'), seeking therein compensation to the tune of `25,00,000/- on account of the injuries sustained by him in the motor vehicular accident. On 8.3.2014, at around 6:00 PM, at place Harraipur, Police station, Baddi, District Solan, Himachal Pradesh, when the petitioner was standing with his motorcycle bearing registration No. HP-12A-4594 in front of Dogra vegetable shop, a tipper bearing registration No.HP-12F-0980, being driven by respondent No.2 came from Chunri road and hit the motorcycle of the petitioner, as a consequence of which, one leg of the petitioner was crushed. Claimant alleged that the accident occurred due to the rash and negligent driving of respondent No.2. Claimant further claimed that on account of the injuries suffered by him, he remained ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP -3- admitted for four days at PGI, Chandigarh, whereafter he remained admitted in the hospital at Nalagarh w.e.f.12.3.2014 to 19.4.2014, and in this process, he spent huge amount towards his treatment.
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Claimant also claimed that at the time of the accident, he was studying in 12th class and doing part time work by selling milk and doing agriculture work. Unfortunately, in this accident, his left ankle was amputated and he was unable to appear in examination.
Claimant further claimed that in view of the injuries sustained by him, he is not able to get service in army, Police Department etc. and as such, he has lost his future earnings.
4. Respondents No.1 and 2 by way of separate reply refuted aforesaid claim of the claimant and denied that the accident took place due to rash and negligent driving of respondent No.2.
Appellant-Insurance Company while refuting the claim of the claimant, claimed that respondent No.2 was driving the offending truck without having valid and effective driving licence and as such, Insurance Company is not liable to indemnify the insured. Appellant-
Insurance Company also denied that the accident took place due to rash and negligent driving of respondent No.2. Appellant-Insurance Company also denied the factum with regard to permanent disability to the extent of 70% suffered by the claimant in the accident.
5. Learned Tribunal below on the basis of the evidence adduced on record by the respective parties, held claimant entitled ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP -4- to compensation to the tune of `9,90,658/- alongwith interest at the rate of 8% per annum jointly and severally against the respondents from the date of filing of petition till the deposit of award amnount by .
the appellant-insurance company. In the aforesaid background, appellant-Insurance Company has approached this Court by way of instant proceedings.
6. Mr. Jagdish Thakur, learned counsel representing the appellant-Insurance company, while referring to the impugned award, strenuously argued that same is not sustainable in the eye of law, being contrary to the evidence available on record and as such, same deserve to be quashed and set-aside. Mr. Thakur, further contended that bare perusal of the impugned award, clearly suggest that learned Tribunal below has not appreciated the evidence in its right perspective, as a consequence of which, erroneous findings to the detriment of the Insurance company have come on record and as such, same being contrary to the evidence deserves to be quashed and set-aside. Mr. Thakur, contended that as per own case set up by the claimant he was studying in 12th class at the time of the accident and as such, it is not understood that on what basis learned Tribunal below came to the conclusion that monthly income of the claimant was `6,000/- per month. He further stated that it is well settled principle of law that in the absence of documentary evidence, if any, with regard to the income, Tribunal ought to have taken into ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP -5- consideration minimum wages, prevalent at the time of the accident, as prescribed by the Government to assess the income. He further stated that in the year, 2014, the minimum wages of the unskilled .
worker were not more than `3600/- per month and as such, learned Tribunal below erred in taking income of the claimant as `6000/-
instead of `3600/- and as such, impugned award is liable to be quashed and set-aside.
7. Mr. Thakur, further contended that otherwise bare perusal of the evidence available on record, nowhere suggest that the claimant successfully proved on record that he at the relevant time was studying in 12th class. Learned counsel further contended that though certificate placed on record, suggests that the claimant suffered 70% permanent disability with respect to lower left leg, but if the statement of Doctor is read in its entirety, it nowhere suggests that whole body has become dysfunctional on account of the injuries suffered by the claimant in the accident. He further stated that not even a single word has been suggested to the Doctor, who has proved the disability certificate, that due to this disability what amount of loss can be there to the respondent and as such, learned Tribunal below erred in substituting its own opinion, which is not permissible under the law. While referring to the Schedule-1 of the Employee's Compensation Act, 1923, Mr. Thakur, contended that otherwise also as per the schedule, percentage of loss of earning ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP -6- capacity could not be more than 60% on account amputation below middle thigh and as such, award made in this regard, being excessive, deserve to be modified/rectified, in accordance with law.
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Lastly, Mr. Thakur, contended that learned Tribunal below also erred in awarding interest at the rate of 8% on the awarded amount from the date of filing of the claim petition, whereas same ought to have been from the date of the award. In this regard, he placed reliance upon the judgment rendered by this Court in Lal Singh versus Himachal Road Transport Corporation and another, 2006 ACJ 482.
8. Mr.O.C.Sharma, learned counsel representing respondent No.1-claimant, while supporting the impugned award, contended that there is no illegality and infirmity in the impugned award, passed by the learned Tribunal below and as such, same deserve to be upheld.
While refuting the aforesaid contentions put forth on behalf of the appellant-Insurance company, Mr. Sharma, strenuously argued that the evidence available on record, clearly suggest that the claimant successfully proved on record that at the time of the accident, he was studying in class 12th and on account of the injuries suffered by him, he lost future prospect of his being recruited in Army, Police and other Government job and as such, learned Tribunal below rightly awarded just and fair amount of compensation while assessing the future loss of earning.
::: Downloaded on - 28/04/2018 22:52:50 :::HCHP -7-9. Mr. Sharma, while placing reliance upon the judgment passed by the Hon'ble Apex Court in V.Mekala versus M. Malathi and another, (2014)11 Supreme Court Cases 178, contended that learned .
Tribunal below has not committed any illegality, while taking income of claimant as `6000/- because in similar case of student, Hon'ble Apex Court has taken income of student as `10,000/- per month. Mr. Sharma, further contended that amount of compensation awarded qua other heads i.e. pain and sufferings and future discomfort i.e. `20,000/- and `10,000/- awarded by the learned Tribunal below, is on very lower side and same needs to be enhanced adequately by taking note of the fact that the claimant has lost his one foot in the unfortunate accident. He further contended that learned Tribunal below has also failed to award adequate amount for loss of amenities. While placing reliance upon the judgment rendered by Hon'ble Apex Court in Ranjana Prakash and others versus Divisional Manager and another, (2011) 14 Supreme Court cases 639, Mr. Sharma, contended that this Court enjoys vast power to enhance the amount of compensation even in the appeal preferred by the Insurance company, if it comes to the conclusion that the learned Tribunal below has not awarded just and fair compensation.
10. After having carefully heard the arguments advanced by the learned counsel representing the parties and perused the record;
this Court finds considerable force in the argument of Mr. Jagdish ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP -8- Thakur, learned counsel for the appellant-Insurance company that claimant has not led on record specific evidence to prove his income.
No doubt, claimant has claimed that he was studying in class 12th at .
the time of the accident and was doing part time work by selling milk, but no evidence has been led on record in this regard. Needless to say, learned Tribunal below in the absence of specific evidence, if any, led on record by the claimant with regard to his income, ought to have assessed income on the basis of minimum wages prevalent at the time of the accident. In this regard reliance is placed upon the judgment rendered by Hon'ble Apex Court in Govind Yadav versus New India Assurance Company Limited,2012(1) ACJ 28, wherein it has been held as under:-
"17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as helper and was getting salary of Rs.
4,000/- per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer. Learned Tribunal then proceeded to determine the amount of compensation in lieu of loss of earnings by assuming the appellant's income to be Rs. 15,000/- per annum. On his part, the learned single Judge of the High Court assumed that while working as a cleaner, appellant may have been earning Rs. 2,000/- per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP -9- minimum wages payable to a worker were Rs.3,000/- per month. Therefore, in the absence of other cogent evidence, Tribunal and the High Court should have determined the amount of compensation in lieu of loss .
of earnings by taking the appellant's notional annual income as Rs. 36,000/- and the loss of earnings on account of 70 percent permanent disability as Rs.25,200/- per annum.
The application of multiplier of 17 by the Tribunal, which was approved by the High Court, will have to be treated as erroneous in view of the judgment in Sarla Verma V. Delhi Transport Corporation 2009 ACJ 1298(SC). In para 21 of that judgment, the court has indicated that if the age of the victim of an accident is 24 years, then the r appropriate multiplier would be 18. By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earnings would be Rs.4,53,600/-".
11. Reliance is also placed upon the judgment passed by this Court in Smt. Pappi Devi and others versus Kali Ram and others, Latest HLJ2008 (Himachal Pradesh) 1440, which reads as under:-
"6. It has come in the statement of claimant Smt. Kala Devi (PW-1) that the deceased while working as a labourer and also selling milk was having an income of Rs. 4000/- per month. Importantly, there is no cross-examination on this point at all. But the fact of the matter, is that no documentary evidence has been placed on record to prove the income. This is the only evidence with regard to income of the deceased on record.::: Downloaded on - 28/04/2018 22:52:50 :::HCHP
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7. It has come on record that the deceased was illiterate and working as a labourer. In my view, his income determined by the Tribunal i.e. Rs.50/- per day, is on the lower side. Taking the deceased to be employed as a .
daily wager, the minimum wages paid by the government in the year, 2001 to the labourers was more than Rs.70/- per day. This is not disputed at the Bar. Therefore, the same can be made the basis for determining the income of the deceased. Thus, the monthly income of the deceased is determined as Rs.70x30 Rs.2100/- and after deducting 1/3rd of the amount i.e. Rs.700/- for the purpose of dependency is determined as Rs.1400/-."
12. r Mr. O.C.Sharma, learned counsel representing respondent No.1-claimant, fairly admitted that at the time of the accident, minimum wages of unskilled worker in Himachal Pradesh was `170/- and as such, annual income of the claimant, if is assessed on the basis of the minimum wages, comes out to `5100/- per month.
13. Having carefully perused the evidence led on record by the claimant in support of his claim that he suffered 70% permanent disability on account amputation of his leg, this Court is not inclined to agree with the contention having been made by learned counsel representing the appellant-Insurance company that claimant was not able to prove that on account of disability suffered by him, he was totally incapacitated. No doubt, PW-4, Dr. Amarjeet, has stated in his cross-examination that disability of the person is not qua whole body, which is mentioned in Ex.PW4/A, but that is not sufficient to conclude ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP
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that claimant has not suffered permanent disability to the extent of 70%, which otherwise duly stands proved on record. Similarly, this Court taking note of age of the claimant, who at that relevant time .
was 20 years of age, sees no illegality in applying multiplier of '18'.
In view of the aforesaid findings returned by the learned Tribunal below, amount awarded qua future loss of income of the claimant needs to be re-assessed at `5100/- on the basis of monthly income.
Monthly income of the claimant is assessed at `5100/-. Since, the claimant has suffered 70% permanent disability, therefore, his monthly loss of income comes to `3570/-(`5100x70 ÷ 100), which comes to `42,840/- (3570x12) per annum. Total loss of future income of the claimant comes to `7,71,120/-(`42,840x18).
14. As far as amount awarded by learned Tribunal below on account of attendant charges, medical expenses and taxi bills i.e. `10,000/-, `32958 and `10,500/- is concerned, there appears to be no illegality because same is totally based upon the documentary evidence adduced on record by the claimant and as such, need not to be re-assessed. The Hon'ble Apex Court in Ranjana Prakash case (supra) has held that amount of compensation can be enhanced even in the appeal preferred by the Insurance Company, if court comes to the conclusion that learned Tribunal below has not awarded just and fair compensation. It would be profitable to reproduce following para of the judgment herein:-
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"Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections.
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This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 CPC can be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, alongwith the owner, even though the claimants had not challenged the non-grant of relief against the insurer."
15. Having perused the evidence available on record, especially disability suffered by the claimant in the unfortunate accident, this Court is persuaded to agree with Mr. O.C. Sharma, learned counsel representing the claimant that learned Tribunal below has not awarded adequate compensation on account of pain and suffering and future discomfort and inconvenience and as such, this Court deems it proper to enhance the same from `20,000/- and `10,000/- to `1, 00,000/- each under the aforesaid heads.
16. Consequently, in view of the aforesaid modifications made hereinabove, now the respondent-claimant shall be entitled to following amount:-
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Loss of future loss of income = ` 7,71,120/-
Attendant charges = `10,000/-.
Pain and suffering = `1,00,000/-
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Future discomfort and = `1,00,000/-
Inconvenience
Medical expenses = `32958/-
Taxi bills =10,500/-
Total ` 10,24,578/-
17. In the case at hand, interest has been awarded by the learned Tribunal below from the date of filing of the claim petition.
Mr. Jagdish Thakur, learned counsel for the appellant-Insurance company, while placing reliance upon the judgment rendered by this Court in Lal Singh case (supra), contended that learned Tribunal below has erred in awarding interest at the rate of 8% on the amount relating to loss of future income and future medical expenses from the date of filing of claim petition, rather same was to be awarded from the date of the award by the Tribunal. In the aforesaid judgment, referred hereinabove, Co-ordinate Bench of this Court while modifying the award passed by the learned Tribunal, though held entitled claimant to compensation of `4,34,000/-, but held him entitled to interest at the rate of 9% per annum on an amount of `2,15,000/-, from the date of filing of the petition. But, as far as amount awarded on account of loss of future income and future medical expenses, Court held that the claimant will be entitled to the ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP
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interest of 9% per annum from the date when the petition was decided by the learned Tribunal.
18. Mr. O.C. Sharma, learned counsel representing the .
claimant, while placing reliance upon the judgment rendered by the Hon'ble Apex Court in Amresh Kumari versus Niranjan Lal Jagdish PD.
Jain and others, (2015)4 Supreme Court cases 433, contended that the claimant is entitled to interest, as awarded by the learned Tribunal from the date of filing of the petition not from the passing of the award. Mr. Sharma, also placed reliance upon the judgment passed by Hon'ble Apex Court in Reliance General Insurance Company Limited versus Shalu Sharma and others (2018)2 Supreme Court Cases 753 and contended that the claimant is entitled to interest at the rate of 9% qua the compensation awarded to him on account of future loss of income from the date of filing petition.
19. Having perused the judgments, referred hereinabove, this Court sees no reason as to why interest at the rate of 8% cannot be awarded from the date of filing of the petition. In all the aforesaid judgments, Hon'ble Apex Court has awarded interest at the rate of 9% from the date of filing of the petition. At this stage, it would be profitable to reproduce para No.4-5 of the judgment herein below:-
"4. The judgment of a Constitution Bench of this Court in National Insurance Com. Ltd. V. Pranay Sethi ( 2017)16 SCC 680, settles the issue. The deceased was self-employed. In ::: Downloaded on - 28/04/2018 22:52:50 :::HCHP
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such a case, future prospects cannot be denied. The grant must be in accordance with the following principle set down in the judgment :( SCC para 59.4) " 59.4. In case the deceased was self-employed or on a .
fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded and the necessary method of computation. The established income means the income minus the tax component."
Since, the deceased 42 years of age, an addition of 25% on the ground of future prospects would be warranted instead of 30% computed by the Tribunal.
5. The Tribunal has held that the annual income of the deceased on the basis of the income tax returns for 2010- 2011, 2011-2012 and 2012-2013 would be Rs. 1, 81,500. Adding a component of 25% for future prospects the income would stand at Rs., 2,26,875. Deducting an amount of one fourth towards personal expenses, the loss of dependency per annum works out to Rs. 1,70, 156. Applying a multiplier of 14, the total loss of dependency would work out to Rs. 23,82,187. The Tribunal has awarded a sum of Rs.3,14,335 towards medical expenses. An addition of Rs. 70,000/- would be required to be made in terms of the decision in Pranay Sethi, on account of the conventional heads of loss of estate (Rs.15,000), loss of consortium (Rs.40,000) and funeral expenses (Rs.15,000). Hence, the total compensation is quantified at Rs.27,66,522 on which the claimants would be entitled to interest @9% p.a. from the date of filing of the claim petition. The apportionment shall be carried out in terms of the award of the Tribunal. We order accordingly."
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20. Leaned counsel representing the claimant also placed reliance upon the judgment rendered by Hon'ble Apex Court .
in S. Thangaraj versus National Insurance Company Limited (2018)3 Supreme Court Cases 605; wherein it has been held as under:-
"8. On perusing the record it is evident that the injuries sustained by the appellant are indeed of a serious nature. As a result of the multiple fractures sustained by him, the appellant has lost complete sensation below the abdomen. Evidently he cannot work anymore as load man. In these circumstances, the assessment of disability at 70% is incorrect. On a realistic view of the matter, the nature of the disability must be regarded as being complete. In the circumstances, we find no reason or justification for the deduction of an amount of Rs. 2,91,600/- by the Tribunal (Rs.9,72,000 minus Rs.6,80,400). The amount so deducted must be restored and is rounded off to Rs.3,00,000. Moreover, we are of the view that the appellant is entitled to interest @ 9% per annum from the date of the claim petition."
21. From the bare reading of aforesaid judgment, It is quite apparent that Hon'ble Apex Court while adding 20% for future prospects, modified the award and held claimants entitled to interest at the rate of 9% per annum from the date of filing of the claim petition.
22. Leaving everything aside, Section 171 of the Motor Vehicles Act, which is reproduce herein below, itself mandates for awarding simple interest on the awarded amount from the date of making the claim i.e. filing of the petition.
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"171. Award of interest where any claim is allowed:- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be .
paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."
23. Consequently, in view of the detailed discussion made hereinabove and law laid down by the Hon'ble Apex Court, present appeal is partly allowed and the impugned award passed by the learned MACT below is modified to the aforesaid extent only. Present appeal is disposed of, so also pending applications, if any.
23rd April, 2018 (Sandeep Sharma),
(Shankar) Judge.
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