Himachal Pradesh High Court
State Of H.P. vs Chaina Ram And Anr. on 7 March, 1988
Equivalent citations: 1(1989)ACC503
JUDGMENT P.D. Desai, C.J.
1. This appeal filed by the State is directed against an award in the sum of Rs. 2,06,621 made in a motor accident claim petition instituted by the first respondent (the injured claimant). The claimant was aged about 34 at the time of the accident and he suffered permanent disability to the extent of 100% as a result of the injuries received in the course of the accident. He is rendered incapable of doing any work since he is totally confined to bed and needs the assistance even for answering the call of nature. He has lost his job which fetched him an income of Rs. 836.50 per month. His family consists of himself, his wife and three minor children who are totally dependent upon him.
2. The award of the Tribunal, when split-up under the different heads, is as follows :
(1) Rs. 26,126 68 For actual loss of earnings from dated
30.3.1985 (the day next following the day of
the accident to 5-10-1987 (the day on which
the award was pronounced).
(2) Rs. 1,30,494.00 For future loss of earnings by application of
13 years' multiplier.
(3) Rs. 50,000.00 For pain, shock and suffering and for loss
of amenities of life.
3. The injured claimant was employed as helper in the workshop of Mechanical Division No. 1, Himachal Pradesh P.W.D., Dhalli, when the accident took place on March 29,1985 at about 5 P.M. He was travelling alongwith the second respondent (Mechanic, Sub-Division No. 1, Mechanical Workshop, Kamlanagar) in Jeep No. HPS 6784, owned by the appellant and driven by the second respondent at the material time.
4. In paragraphs 7 to 12 of the award, the Tribunal has highlighted the circumstances under which the accident took place and the capacity in which the injured claimant was travelling in the vehicle at the relevant time. The Tribunal has reached the conclusion that the accident occurred owing to the negligence on the part of the second respondent and that the injured claimant was travelling in the vehicle at the material time in the course of his duty as Helper in the workshop. No flaw in the finding recorded accordingly apparent or has been pointed out. The appellant cannot, therefore, escape the liability of pay just compensation.
5. The attack on the award was on the ground that the compensation awarded to the injured claimant is excessive. Two grounds were urged in support of the challenge ; first, the fact that the wife of the injured claimant was given employment by the State on compassionate grounds after the accident ought to have been taken into consideration in assessing the future loss of earnings and, secondly, the multiplier of 13 is on the higher side. None of these grounds has merit.
6. In Arunaben and Ors. v. Mehmoodbhai Imamali Kaji and Ors. 1983 ACJ 409, the main point which arose for consideration before Division Bench of the Gujarat High Court was whether the potential earning capacity or the actual earnings derived from an employment taken up by a widow after the accidental death of her husband was required to be taken into consideration in determining the compensation awardable for the future pecuniary loss. One of the claimants in that case was the widow of an employee of the Gujarat State Road Transport Corporation (GSRTC for short) who died in the course of an accident while on actual duty. Under the General Standing Orders enacted by the GSJRTC, if an employee died or became permanently disabled while in service, one member of the family of such employee could directly apply for a suitable post, when names for filling the vacancy in such post were called for from the Employment Exchange. If and when such application was received, the appointing authority could give a preference to the applicant and appoint him/her straightway in the existing vacancy subject to certain conditions. The widowed claimant had made an application for employment to GSRTC after the death of her husband and she was offered employment, as a special case, as clerk at one of the Depots. The Tribunal took into consideration the wages earned by the widow and effected deduction to the extent of 25% from the amount of compensation assessed as payable. The Division bench, speaking through myself, examined at length the question as to the validity of the deduction, on principle as well as on the basis of decided cases, and came to the conclusion that the deduction accordingly effected from the assessed damages on the ground that some pecuniary benefit was derived on account of the death of the deceased by reason of the fact that the widow of the employee secured employment after the accident was not legal and proper and that it was required to be disallowed. Following the said decision, which covers the ground, the first part of the challenge to the award must be rejected.
7. The compensation is incapable of being regarded as excessive even on the other ground. The assessment of actual loss of earnings to the extent of Rs. 26,126.68 is incapable of being challenged and has rightly not been challenged. The assessment of compensation in the sum of Rs. 1,30,494.00 for the future loss of earnings upon the application of multiplier of 13 is also incapable of being assailed. The injured claimant was aged about 36 when the award was pronounced. He could have looked forward to serve for a period of 22 years more. He could have further looked forward to the pensionary benefits at full rates after superannuation. He could also have hopefully looked forward to chances of future improvement or advancement in career and to the augmentation of income. Having regard to the loss of employment and the permanent disability to the extent of 100% resulting from the accident injuries, all this is lost to him, he is rendered incapable of earning even a farthing. The choice of multiplier of 13 cannot be regarded as incorrect or excessive under such circumstances.
8. The award in the sum of Rs. 50,000.00 for pain, shock and suffering and for the loss of amenities of life also cannot be regarded as excessive. Taking into consideration the particular circumstances of the injured claimant, including his age and the unusual deprivation he has suffered, an award in the aforesaid sum is fully justified.
9. Even assuming, however, that it is possible to take the view that the compensation assessed for the future loss of earnings by the application multiplier of 13 is somewhat on the higher side, it cannot be over-looked that no damages have been awarded in the present case for the services to be provided by a third party (including a close relative), which will be reasonably required by the injured claimant for the rest of his life, because of his physical needs attributable to the accident and that the excess amount of compensation; if any, is liable to be setoff against the same.
10. In Bharat Premjibhai v. Municipal Corporation Ahmedabad and Anr. , A Division Bench of the Gujarat High Court, speaking through myself, had an occasion to consider this aspect. It was there held that damages are awardable even for gratuitous services rendered to an injured claimant by a close relative as a result of the requirements arising out of disability sustained on account of the accident injury. Damages are awardable in such a case on the principle that the plaintiff's loss is the existence of the need for those nursing services. The value of such loss for the purposes of damages or, to put it differently, for the purpose of the ascertainment of the amount of his loss, is the fair and reasonable cost of supplying those needs. The injured claimant herein was, therefore, entitled to be compensated for such loss. The fact that no such claim was specifically advanced in the claim petition is irrelevant so long as the fact that such voluntary services were rendered is proved and they total awarded amount does not exceed the total amount claimed. In view of the fact that the injured claimant herein would require voluntary services of a family member for the duration of his life, which could be reasonably expected to be atleast 35 years from the date of the accident, and if the reasonable costs of providing those services are taken into consideration, the award would appear to be on the lower side rather than excessive.
11. For the foregoing reasons, the appeal fails and it is summarily dismissed.
12. Let a notice issue to the first respondent (the injured claimant)' returnable before the Registrar for the settlement of the usual draft order for the investment of the amount deposited in the Registry and for passing the consequential orders.