Himachal Pradesh High Court
Master Arsh vs The Hrtc And Another on 16 October, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 459 of 2011 a/w FAO No. 460 of 2011, FAO No. 462 of 2011 and FAO No. 433 of 2011.
Judgment reserved on 9th October, 2015.
.
Date of decision: 16th October, 2015.
FAO No. 459 of 2011.
Master Arsh .....Appellant.
Versus
The HRTC and another ...Respondents
FAO No. 460 of 2011.
Master Arsh .....Appellant.
of
Versus
The HRTC and another ...Respondents
FAO No. 462 of 2011.
Rajesh Diptart .....Appellant.
Versus
The HRTC and another ...Respondents
FAO No. 433 of 2011.
HRTC .....Appellant.
Versus
Rajesh Dipta ...Respondent.
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. Whether approved for reporting ?1 Yes.
For the appellant(s): Mr. B.M Chauhan, Advocate for the appellants, except FAO No. 433 of 2011.
Mr. Jagdish Thakur, Advocate, for the appellant in FAO No. 433 of 2011.
For the respondent(s): Mr. B.M. Chauhan, Advocate, for the respondent in FAO No. 433 of 2011.
Mr. Jagdish Thakur, Advocate for HRTC.
Nemo for other respondents.
____________________________________________________ 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.
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FAO No. No. 459 of 2011 and 460 of 2011.
These two appeals are outcome of a .
vehicular accident, which was caused by driver Misar Lal, while driving HRTC Bus No. HP-07-0747, rashly and negligently on 16.11.2009 at about 4 p.m. in the area of Rukhltu wherein Master Arsh sustained of multiple injuries because his left arm was crushed. His mother Smt. Anjali Devi sustained injuries and rt succumbed to the injuries on 23.11.2009, constraining master Arash minor to file claim petition through his guardian on his behalf and sought compensation, as per the break-ups given in the claim petition No. 7-S/2 of 2010 and in Claim Petition No. 8-S/2 of 2010, Master Arsh Dipta and Rajesh Dipta husband of Ajlai Devi and father of Arsh has sought grant of compensation as per the break ups given in that Claim Petition.
2. Both the claim petitions were resisted and contested by the respondents and following issues came to be framed in the Claim Petitions as follows:
::: Downloaded on - 15/04/2017 19:13:14 :::HCHP -3-1. Claim Petition No.7-S/2 of 2010.
"1. Whether the petitioner suffered injuries due to rash and negligent driving of HRTC bus No. HP-07-0747 by its driver Misar Lal?
....OPP .
2. If issue No. (i) is proved in affirmative, to what amount of compensation the petitioner is entitled to? ...OPP
3. Relief."
2. Claim Petition No. 8-S/2 of 2010.
of "1. Whether Smt. Anjali Dipta had died due to rash and negligent driving of HRTC bus No. rt HP-07-0747 by its driver Misar Lal?
....OPP
2. If issue No. (i) is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from whom?
...OPP
3. Relief."
3. Parties led evidence.
4. The Tribunal, after scanning the evidence, awarded compensation to the tune of Rs.3,45,000/-
along with interest @ 8% per annum with costs to the tune of Rs.5,000/- in Claim petition No. 7-S/2 of 2010 decided on 1.10.2011 and in Claim petition No. 8-S/2 of 2010 decided on 28.9.2011, Rs.3,36,000 along with ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP -4- interest @ 9% per annum with Rs.3000/- as cost, was awarded in favour of claimants.
5. Both these awards are impugned in these .
appeals. Thus, I deem it proper to determine both these appeals by this common judgment.
6. Respondents have not questioned the impugned awards on any ground. The claimants have of filed the appeals for enhancement of compensation thus, there is no dispute viz-a-viz issue No.1. The only rt issue to be determined in these appeals is whether in both the cases, the amount awarded is adequate or otherwise.
7. I have gone through the pleadings, record and the impugned awards. I am of the considered view that in both the cases, the impugned awards merit to be enhanced for the following reasons.
8. In Claim Petition No. 7-S/2 of 2010, it is specifically averred that the claimant is entitled to compensation to the tune of Rs.20 lacs, as per the break-ups given in the claim petition. The Tribunal, after examining the pleadings and documents, granted the compensation as follows:
::: Downloaded on - 15/04/2017 19:13:14 :::HCHP -5-(i) Medical Expenses, past and prospective Rs.20,000/-
(ii) Conveyance Charges Rs.5,000/-
.
(iii) Services of attendant Rs.10,000/-
(iv) Pain and suffering Rs.5,000/-
(v) Future income Rs.3,00,000/-
(vi) Costs Rs.5,000/-
9. The Tribunal has discussed in para 14 of of the impugned award in Claim Petition No. 7-S/2 of 2010 that Dr. Ravinder rt Mokta has appeared in the witness-box as PW4 and proved the disability certificate Ext. PW4/A and petitioner has suffered 40% permanent disability. The Tribunal has not kept in mind the factum, which is to be kept in mind, while assessing the compensation. The Tribunal has to assess the compensation by a guess work.
10. The Apex Court in case titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755, had discussed all aspects and laid down guidelines how a guess work is to be made and how compensation is to be awarded under various heads.::: Downloaded on - 15/04/2017 19:13:14 :::HCHP -6-
11. The said judgment was also discussed by the Apex Court in case titled as Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, .
reported in 2010 AIR SCW 6085.
12. This Court in FAO No. 317 of 2011 titled Oriental Insurance Company versus Padama Devi and others, decided on 18.9.2015, FAO No. 18 of of 2009 titled Managing Director HPMC Nigam Vihar vs. Naresh Kumar and others decided on 14.8.2015 rt and FAO No. 72 of 2008 titled Anil Kumar versus Sh.
Nittin Kumar and others decided on 10.7.2015 has also laid down the same principles.
13. The apex Court in Mallikarjun versus Divisional Manager, National Insurance Co. Ltd.
and another reported in (2014) 14 SCC 396 has also discussed that what should be the amount of compensation as per the percentage of disability. It is apt to reproduce para 12 of the said judgment herein:
"12.Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP -7- on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent .
disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick."
14. Admittedly, the claimant has suffered 40% permanent disability, is not disputed by any party. The of claimant has placed on record the medical bills to the tune of Rs.18,000/-. He has to undergo treatment till he rt is alive because he has to go for grafting and other things and, at least, Rs.50,000/- should have been awarded under the head "Medical expenses for future."
Accordingly, it is held that the claimant is entitled to Rs.50,000/- for "future medical treatment" and also Rs.18,000/-, as medical expenses, as awarded by the Tribunal.
15. The Tribunal has discussed in para 15 of the impugned award that the services of the attendant was required and assessed Rs.5,000/- for "conveyance charges" which is too meager. The claimant remained in the hospital for a pretty long time and had to undergo ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP -8- for grafting and other follow up treatment. Rs.20,000/-
under this head, by a guess work, should have been granted, and is accordingly, granted under the head .
"conveyance charges".
16. The Tribunal has granted only Rs.10,000/-
under the head "attendant charges". Admittedly, the claimant was attended upon for three months. A of minimum of Rs.10000/- per month is to be granted for the charges of attendant. Thus, Rs.30,000/- under the rt head "attendant charges" are awarded, instead of Rs.10,000/- as awarded by the Tribunal.
17. In para 18 of the impugned judgment the Tribunal has discussed that the claimant has suffered 40% permanent disability, which has shattered his life for ever and his future prospects has become bleak.
The said findings have not been questioned by any party. By a guess work, it can be said that the minimum income of the injured is to the tune of Rs.6000/- per month and disability assessed is 40%.
He has lost, at least, Rs.2400/- per month. The age of the injured was 6 years and multiplier of "13" was applicable keeping in view the 2nd schedule of the ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP -9- Motor Vehicles Act, for short "the Act" read with Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC .
3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120.
18. Thus, the claimant is held entitled to of Rs.2400x12x13= Rs.3,74,400/-.
19. The Tribunal has awarded only Rs.5000/-
rt under the head "pain and suffering." The claimant has to suffer pain and suffering throughout his life. At least Rs.50,000/- is to be awarded as per the latest judgment of the apex Court and is accordingly awarded Rs.50,000/- under the head "pain and suffering".
20. The Tribunal has not awarded any amount under the head "loss of amenities of life". Thus Rs.50,000/- is awarded under the head "loss of amenities of life".
21. Thus in all, the claimant is held entitled to Rs.3,74,000/- + Rs.50,000/- +Rs. 20,000+Rs.30,000/-+ Rs.50000/-+Rs.50,000/-+Rs.18000/- i.e,. total ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP
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Rs.5,92,000/- along with 7.5% interest from the date of the impugned award till its realization.
22. Accordingly, FAO No. 459 of 2011 is .
allowed and the amount of compensation is enhanced as indicated hereinabove.
23. Now coming to Claim Petition No. 8-S/2 of 2010 subject matter of FAO No. 460 of 2011. The of deceased was a house wife. Claimant No.2 husband of the deceased has been deprived of his matrimonial rt home. Son Arsh Dipta has lost love and affection of his mother and in case, the petitioner had to engage a labourer for maintaining house hold goods and performing domestic functions, minimum expenses of Rs.4500/- per month can safely be assessed. Thus, it is held that the minimum income the claimant has lost was Rs.4500/- per month. After deducting 1/3rd, the claimant has lost source of dependency to the tune of Rs.3000/- per month. The age of the deceased was 26 years at the time of accident and the multiplier of "14"
was applicable in view of the 2nd schedule of the Act read with Sarla Verma and Reshma Kumari's cases referred to supra. The claimant is entitled to ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP
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Rs.3000x12x14= Rs.5,04,000/- and also under the following heads as follows:
(i) Loss of estate Rs.10,000/-
.
(ii) Funeral expenses Rs.10,000/-
(iii) Loss of consortium Rs.10,000/=-
(iv) Loss of love and affection Rs.10,000/-
Total Rs.5,44,000/-
of
24. Thus, FAO No. 460 of 2011 is also allowed and the amount of compensation is enhanced to rt Rs.5,44,000/- along with interest @ 7/5% per annum from the date of claim petition till its realization, as indicated hereinabove.
FAOs No.433/2011 and 462 of 2011
25. These two appeals are also outcome of the same accident, thus, I deem it proper to determine both these appeals together.
FAO No. 462/2011.
26 The claimant had filed claim Petition No. 9- S/2 of 2010, before the Tribunal, for the grant of compensation to the tune of Rs.20,00,000/-, as per the break-ups given in the claim petition, on the ground that he is a contractor and had been earning ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP
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Rs.15,000/- per month from all sources. It is averred that on 16.11.2009, he and his family had been on way from Shimla to their house in HRTC Bus No. HP-07- .
0747. The Bus driver had been driving the Bus rashly and negligently with the result vehicle had gone down the highway in the area of Rukhltu due to which the claimant suffered multiple injuries in right ankle joint.
of He remained admitted in IGMC Shimla w.e.f.
17.11.2009 till 21.11.2009.
27. rt In view of the findings returned in FAOs No. 459/2011 and 460 of 2011, above, the findings returned by the Tribunal on issue No. 1 are upheld.
Thus, the only question to be determined in this appeal is whether the amount awarded is adequate or otherwise.
28. I have gone through the findings recorded in paras 14 to 20 of the impugned award. While going through the said findings, one comes to an inescapable conclusion that the compensation amount is inadequate for the following reasons.
29. The claimant has examined Dr. Ravinder Mokta as PW3 and Dr. L.R. Verma, as PW4, the ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP
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relevant portion of their statements have been recorded in paras 14 and 15 of the impugned award.
The claimant has suffered 20% permanent disability .
because he sustained injuries on his right ankle joint. It has affected his movement throughout his life thereby has affected his income as a labourer. Virtually he cannot work as labourer. While keeping in view the of ratio laid down by the apex Court in R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, rt reported in AIR 1995 SC 755, and other cases, referred to supra, in paras 10 to 13, it can be safely said that the claimant has lost source of income to the tune of Rs.5000/- per month. He has suffered 20% permanent disability. Thus, by a guess work, it can be said that the claimant has lost source of income to the tune of Rs.2000/- per month. The claimant was 34 years of age at the time of accident and the multiplier of "11" is applicable keeping in view the 2nd schedule of the Motor Vehicles Act, for short "the Act" read with Sarla Verma and Reshma Kumari's cases referred to in para 17 of this judgment. Thus, the claimant is entitled to Rs.2000x12x11=Rs.2,64,000/-.
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30. The claimant is also held entitled to compensation under the head "pain and suffering" to the tune of Rs.50,000/- and under the head "loss of .
amenities of life" Rs.50,000/-. The claimant is awarded Rs.12000/- for medical treatment, Rs.3000/- as attendant charges and Rs.10,000/- under the head "loss of income" for two months during the treatment.
of Accordingly, the claimant is held entitled to Rs.2,64000/- + Rs.50,000/-+ Rs.50,000/-+ Rs12000/-
rt +Rs.3000/-+Rs.10,000/-. Total Rs.3,89,000/-.
31. Viewed thus, the appeal is allowed and the amount of compensation is enhanced to Rs.3,89,000/-
along with interest @ 7/5% per annum from the date of claim petition till its realization, as indicated hereinabove.
FAO No. 433 of 2011.
32. Keeping in view the findings returned hereinabove; the appeal filed by the appellant is not maintainable. As such dismissed.
33. The owner-HRTC Department is directed to deposit in all the cases, the entire amount, minus the amount already deposited, in the Registry within six ::: Downloaded on - 15/04/2017 19:13:14 :::HCHP
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weeks from today and on deposit, the Registry is directed to release the same in favour of the claimants in all the appeals, strictly, in terms of the conditions .
contained in the impugned award, through payee's cheque account. The amount already deposited be also released in favour of the claimants in all the appeals.
of
34. Viewed thus, all the appeals stand disposed of, as indicated hereinabove.
35. rt Send down the records forthwith.
October 16, 2015. (Mansoor Ahmad Mir) (cm Thakur) Chief Justice.
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