Punjab-Haryana High Court
Mandeep Kaur vs Balraj Singh And Others on 19 September, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:134841
FAO-2051-2007
2007 (O&M) -1-
218
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO
FAO-2051-2007 (O&M)
Date of Decision : 19.09.2024
Mandeep Kaur ....Appellant
Versus
Balraj Singh Gill and another ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr.H.S. Dhandi, Advocate
Mr
for the appellant(s).
appellant
Mr. R.C. Kapoor, Advocate
for the respondent No.2-Insurance
Insurance Company.
-.-
SUDEEPTI SHARMA,
SHARMA J.
1. The instant appeal has been preferred by the claimant/appellant for
enhancement of compensation awarded by the learned Motor Accident Claims
Tribunal, Patiala (for short, 'the Tribunal') vide award dated 08.03.2007 under
Section 166 of the Motor Vehicles Act, 1988,, whereby the claimant/appellant was
awarded compensation of Rs.55,000/-
Rs. along with interest @ 9% per annum.
FACTS NOT IN DISPUTE
2. Brief facts of the case are that on 29.6.2003, Mandeep Kaur - appellant was going alongwith her husband Kulwinder Singh on motor-cycle cycle No.CH-03A-3444, 3444, as pillion rider from their village Tasauli to Gurdwara Fatehgarh Sahib. At about 5.00 p.m.,, when they were returning to their village 1 of 15 ::: Downloaded on - 19-10-2024 21:38:34 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -2- from Fatehgarh Sahib and reached near village Chuni Kalan, after crossing village Badali Ali Singh, a Maruti Car bearing No. PB PB-10-AK-6541 6541 (Temp) driven by respondent No.1 rashly and negligently, in a zig zag manner, without blowing any horn came from the opposite side.. On seeing the said car coming from the opposite side, Kulwinder Singh slow down his motor cycle and turned it on the kacha berm of the road on its left side, but the driver of the car struck the car against the motor otor cycle ycle of Kulwinder Singh. Due to this accident, Kulwinder Sing Singh and Mandeep Kaur fell down and suffered multiple grievous injuries. Their motor otor cycle was also badly damaged. Mandeep Kaur suffered injuries on her left leg, head and other parts of the body. It is further stated that the accident had taken place due to rash and negligent driving of respondent No.1 while driving the car No. PB-10-AK AK-
6541 (Temp.). Mandeep Kaur was brought to PGI, Chandigarh along with her h husband (Kulwinder Singh) where they remained admitted till 14.07.2003.. On the next day, police officials offi came and obtained the signatures of Kulwinder Singh on some blank papers and had taken no legal action against the driver of the car, rather a false DDR No.11 dated 30.6.2003 was recorded recorded. She spent about Rs.
80,000/- on n her treatment and Rs. 30,000/-
30,000/ more are likely to spend on n her further treatment. She remained under pain and agony and has become permanently disabled. She used to earn Rs. 5000/-
5000/ per month from embroidery and sewing. Her profession was also ruined. She had to keep attendant for herself during her treatment.
3. On notice of the claim petitions, pet respondent respondents appeared and denied the factum of compensation.
4. From the pleading of the parties, the Tribunal framed the following issues:-
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"1. Whether claimant had suffered injuries on account of rash and negligent driving of Car bearing Registration No.PB-
No.PB 10-PB-6186 6186 by respondent No.1 on 29.6.2003, as alleged ?
2. Whether the claimant is entitled to grant of compensation, if so, to what amount and from whom? OPP
3. Whether respondent No.1 was not holding a valid driving licence at the timee of alleged accident, if so its effect ? OPR
4. Relief."
5. After taking into consideration the pleadings and the evidence on record, the learned Tribunal awarded compensation of Rs.55,000 Rs.55,000/- along with interest @ 9% per annum.
annum Hence the claimant/appellant filed the present appeal for enhancement of compensation awarded by the Tribunal. SUBMISSIONS OF THE COUNSEL FOR THE PARTIES
6. The learned counsel counsel for the claimant claimant-appellant contends that the amount assessed by the learned Tribunal is on the lower side.
He further contends that the appellant suffered permanent disability on her left leg to the extent of 5% and the disability certificate is produced on record as Ex.P-25.
25.
He further contends that appellant has spent Rs.80000/ Rs.80000/- on medical treatment but the learned Tribunal has granted only Rs.21733/ Rs.21733/- which is on the lower side.
He further contends that the Tribunal has awarded Rs.5000/ Rs.5000/- for pain and suffering and Rs.25000/-
Rs.25000 for the permanent disability, which is also on the lower side.
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7. Per contra, learned for the respondent respondent-Insurance Company argues that the learned Tribunal vide award dated 08.03.2007 has rightly assessed the amount of compensation.
8. I have heard learned counsel for the parties and perused the whole record of this case.
case
9. The income of the appellant to be assessed as Rs.2500/ Rs.2500/- per month in accordance with the minimum wages prescribed for unskilled workers in the State of Punjab.
SETTLED LAW ON COMPENSATION
10. Hon'ble Supreme Court has settled the law regarding grant of compensation with respect to the disability. The Apex Court in the case of Raj 343,, has Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343 held as under:-
General principles relating to compensation in injury cases
5. The 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 adequat 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 ha have ve 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 inj injury, ury, but also for the loss which he 4 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -5-
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).
6. The 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 Non-pecuniary 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 (shorteni (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 5 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -6- 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 expectat expectation of life.
xxx xxx xxx xxx
19. We 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 refe reference rence 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, whe where re 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 injured-claimant claimant or who examined him subsequently to assess the extent of hhis is 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 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.
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20. The 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/-
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/ 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 3000/-
is assessed at 60%. He was terminated from his job as he ccould ould 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/ 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 7 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -8-
d) Loss of future earnings : (27000 x 17) : Rs 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)].
11. Hon'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 163 A and 168 of the Motor Vehicles Act, 1988, on the following aspects:-
(A) Deduction of personall and living expenses to determine multiplicand;
(B) Selection of multiplier depending on age of deceased;
8 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -9- (C) Age of deceased on basis for applying multiplier; (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral funeral expenses, with escalation; (E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed self employed or fixed salary.
The relevant portion of the judgment is reproduced as under:
under:-
" Therefore, we think it seemly to fix reasonable sums. It 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 fact-centric centric or quantum-
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 th thee 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."
12. Hon'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' '18';
The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgmen judgmentt in National Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ 9 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -10- 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 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.
ompensation. 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;
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(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 perman 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
11 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -12- 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 respon respondent dent 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 (sup (supra) ra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration.
We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid pri principles nciples 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 ara 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 uring 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 12 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -13- the claim was confined to 9% in line with the interest rates applied by this Court.
CONCLUSION
8. The 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/- 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/-
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.
13. In view of the above, the present appeal is allowed and award dated 08.03.2007 is modified. Accordingly, as per the settled principles of law as laid 13 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -14- down by Hon'ble Supreme Court as mentioned above, tthe appellant - claimant is held entitled to the compensation amount as calculated below below:
Sr. Heads Compensation Awarded
No.
1 Income Rs.
Rs.2500/-
2 Future Prospects 40% Rs.
Rs.1000/- (40% of 2500)
3 Annual Income Rs.
Rs.42000/- (2500+1000 x 12)
4 Loss of future earning per Rs.2100/
Rs.2100/- (42000/-x5%)
annum @ 5%
5 Multiplier (17) Rs.
Rs.35,700/- (2100 x 17)
5. Medical Rs.
Rs.80,000/-
6 Attendant Charges Rs.
Rs.10000/-
7 Transportation Rs.1
Rs.10000/-
8 Pain and Sufferings Rs.
Rs.15,000/-
9 Special diet Rs.
Rs.5,000/-
11 Loss of amenities Rs.
Rs.20,000/-
12 Total Compensation Rs.
Rs.1,75,700/-
Amount Awarded by the Rs.
Rs.55000/-
Tribunal
Enhanced amount Rs.
Rs.1,20,700/-
14. So 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 Nandu State Transport Corporation (2022) 5 Supreme Court Cases 107, the appellant-claimant claimant is granted the interest @ 9% per annum on the enhanced amount from the date of filing of claim petition till the date of its realization.
realization
15. The Insurance Company is directed to deposit the enhanced amount of compensation along with with interest with the Tribunal within a period of two months from today. The Tribunal is further directed to disburse the enhanced amount of 14 of 15 ::: Downloaded on - 19-10-2024 21:38:35 ::: Neutral Citation No:=2024:PHHC:134841 FAO-2051-2007 2007 (O&M) -15- compensation along with interest in the accounts of the claimant/ claimant/appellant.. The claimant/appellant /appellant is directed to furnish her bank account details to the Tribunal.
16. Pending applications, if any, also stand disposed of.
September 19,, 2024 (SUDEEPTI SHARMA) A.Kaundal JUDGE
Whether speaking/non-speaking speaking/non speaking : Speaking Whether reportable : Yes/No 15 of 15 ::: Downloaded on - 19-10-2024 21:38:35 :::