Punjab-Haryana High Court
Hari Sharan Sharma vs Darshan Singh And Ors on 5 November, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
FAO-2810-2006
2006 (O&M) -1-
423
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO
FAO-2810-2006 (O&M)
Date of Decision : 05.11.2024
Hari Sharan Sharma (since deceased through his LRs) ....Appellant
VERSUS
Darshan Singh and Ors. ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Sandeep Kumar, Advocate for
Mr. G.C.Shahpuri, Advocate for the appellant.
Mr. Gopal Mittal, Advocate for
Mr. R.C.Gupta, Advocate for respondent No.3 - Insurance Co.
-.-
SUDEEPTI SHARMA,
SHARMA J. (Oral)
1. The present 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 24.03.2006 under Section 166 of the Motor Vehicles Act, 1988, whereby, the claimant/appellant was awarded a compensation of Rs.75,000/-
Rs. along with interest @ 6% per annum. FACTS NOT IN DISPUTE
2. Brief facts of the case are that the appellant is a resident of Rajpura. There was a marriage of his brother-in-law's brother law's son at village Dulladi and he had come to attend the same. On 09.12.2003, the appellant along with his brother brother--in-
law Sohan Lal Sharma had had gone for a morning walk and when they were returning to the house after the morning walk and when at about 7.45 am the appellant reached near Chakarbarty Petrol Pump on Nabha Nabha-Malerkotla Malerkotla Road, within the revenue limits of village Dulladi, then a Tata Sum Sumo o bearing registration No. TRIPTI SAINI 2024.11.19 15:11 I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -2- UP-16-0367 0367 (hereinafter referred to as 'the offending vehicle'), driven by respondent No.2, rashly and negligently, so as to endanger human life, came from behind and struck against the appellant from behind, as a result of which, the appellant fell on the ground and suffered fracture of left femur i.e. hip joint of the left side. The left femur i.e hip joint of left side of the appellant was totally damaged and it had to be replaced by performing operation. The occurrence was witnessed by Sohan Lal Sharma son of Krishan Dayal of village Dulladi, who was following the appellant. The matter was reported to the police and FIR No.183 dated 09.12.2003 under Sections 279/337 and 338 IPC, Police Sta Station tion Sadar Nabha was got registered, tered, in which the offending vehicle was taken into police possession and was taken on superdari from the court by respondent No.1. Respondent No.2 driver of the offending vehicle was arrested by the police and he has been sent up for the trial to the Court.
Court. He is facing trial before the Court. As a result of the accident, the appellant suffered 40% permanent disability. He spent Rs.3 lacs on his treatment, medicines, special diet, die , fare charges etc. and he is still under treatment.
3. Upon notice of the he claim petition, respondents appeared and denied the factum of accident/compensation.
accident
4. From the pleadings pleading of the parties, the Tribunal framed the following issues:-
1. Whether claimant had suffered injuries on account of rash and negligent driving of Tata Sumo bearing registration No.UP-16-0367 0367 by respondent No.2 o.2 on 09.12.2003 as alleged?
OPP TRIPTI SAINI 2024.11.19 15:11 I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -3-
2. Whether the claimant is entitled to the amount of compensation, if so to whatt amount and from whom? OPP
3. Whether respondent No.2 was not holding a valid driving licence at the time 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 to the tune of Rs.75,000 75,000/-
along with interest @ 6% per annum.. Hence the claimant/appellant filed the present appeal for enhancement of compensation awarded by the Tribunal. SUBMISSIONS OF LEARNED COUNSELS FOR THE PARTIES
6. Learned counsel for the claimant-appellant claimant appellant contends that the appellant suffered 40% permanent disability due to this accident. He further contends that the amount assessed by the learned Tribunal is on the lower side and the Tribunal has erred in awarding Rs.75,000/-
Rs.75,000/ lumpsum as compensation. He further contends that the claimant (since deceased) was working as Junior Engineer and was drawing a salary of Rs.16,506/-
Rs.16,506/ per month and the Tribunal has not considered his income while assessing the compensation. He further contends that no amount was granted for future prospects and multiple was not taken into consideration while granting the compensation. He therefore prays that the present appeal be allowed and the amount of compensation com be enhanced.
7. Per contra, learned for the respondent respondent-Insurance Company argues that the learned Tribunal vide award dated 24.03.2006 has rightly assessed the amount of compensation. Therefore, he prays for dismissal of the present appeal.
8. I have heard learned counsel for the parties and perused the whole record of this case.
TRIPTI SAINI 2024.11.19 15:11 case I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -4-
9. A perusal of the award indicates that claimant (since deceased) had suffered 40% permanent disability as per Ex.A. A perusal of the award further reveals that thee claimant was working as Junior unior Engineer ngineer and as per salary certificate issued by Executive Engineer, Mechanical Drainage, Division Rajpura, Rajpur his monthly income was Rs.16,506/-
Rs.16,506/ per month. Income after deducting of the tax payable Rs.300/-, Rs.300/ his net monthly income comes out to be Rs.16,206/ Rs.16,206/-.. Moreover, with respect to determination of enhanced amount of compensation, the record contains evidence of hospital admission, the claimant's earning and expenses incurred for medical treatment and hospitalization. Con Consequently, sequently, this Court shall adjudicate the compensation, in accordance with the documented evidence on record. Therefore, the award requires inference by this Court. SETTLED LAW ON COMPENSATION
10. Hon'ble Supreme Court has settled the law regarding gran grantt of compensation with respect to the disability. The Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343 343,, has 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 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 have to assess the TRIPTI SAINI 2024.11.19 15:11 damages objectively and exclude from consideration any speculation I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -5-
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 injury, but also for the loss which he suffered as a result of such injury.
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). TRIPTI SAINI 2024.11.19 15:11
(vi) Loss of expectation of life (shortening of normal longevity). I attest to the accuracy and integrity of this document
FAO-2810-2006 2006 (O&M) -6- 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 of the claimant, that compensation will be gra granted nted 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 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 reference 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 percentag percentagee of permanent disability (except in a few cases, where 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 or who o examined him subsequently to assess the extent of his 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. TRIPTI SAINI 2024.11.19 15:11 I attest to the accuracy and integrity of this document
FAO-2810-2006 2006 (O&M) -7-
(iv) The same permanent 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.
20. The assessment 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 th thee 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 continue continued d 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 ith 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 terminated from his job as he could 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 TRIPTI SAINI 2024.11.19 15:11 I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -8- Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation 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
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/ 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
(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 TRIPTI SAINI 2024.11.19 15:11 I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -9- Sections 166, 163-A 163 A and 168 of the Motor Vehicles Act, 1988, on the following aspects:-
(A) Deduction of personal and living expenses to determine multiplicand;
(B) Selection of multiplier depending on age of deceased; (C) Age of deceased on basis for applying multiplier; (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and 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, ore, 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 iting 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 nhancement should be at the 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: TRIPTI SAINI 2024.11.19 15:11
under:-
I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -10-
" 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 judgment in National Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ 2700 (SC).
(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 '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 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 M & 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 TRIPTI SAINI 2024.11.19 15:11 I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -11- award of compensation. The award of compensation must cover among ng others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(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 logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident.
In the factual contours of the present case, if we examine the disability certificate, it shows the admission/h admission/hospitalization ospitalization 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 TRIPTI SAINI 2024.11.19 15:11
(iv) fracture 3rd, 4th & 5th metacarpals right hand I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -12-
(v) subtrochanteric fracture right femur
(vi) fracture shaft femur
(vii) fracture both bones left leg 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 respondent 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. Furthe Further, r, it has been opined in para 13 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and nd 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 principles with regard to future prospects must also be applied in the case of the appellantt 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 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 TRIPTI SAINI 2024.11.19 15:11 down the interest rate during the course of hearing to 9% in I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -13- view of the judicial pronouncements including in tthe he Jagdish's Jagdish case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once 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/- as claimed along with simple interest at the rate of 9% per annum from the date of application till the ddate of payment.
TRIPTI SAINI 2024.11.19 15:11 I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -14- CONCLUSION :-
13. In view of the law laid down by the Hon'ble Supreme Court in the above referred to judgments, the present appeal is allowed. The award dated 24.03.2006 is modified accordingly. The LRs of appellant-claimant claimant is entitled to the enhanced amount of compensation as per the calculations made here here-under:--
Sr. Heads Compensation Awarded
No.
1. Income Rs.16,206/
Rs.16,206/-
2. Future Prospects 50% Rs.8,103/
Rs.8,103/-(50% of 16,206)
3. Annual Income Rs.2,91,708/
Rs.2,91,708/-
4. Loss of future earning per Rs.1,16,683/ Rs.1,16,683/- (40% of 2,91,708) annum 40% disability
5. Multiplier 13 Rs.15,16,881/ Rs.15,16,881/-
(1 (1,16,683x13x12) 6 Attendant Charges Rs.70,000/ Rs.70,000/-
7 Pain and sufferings Rs.75,000/ Rs.75,000/-
8 Nutrition & Special Diet Rs.50,000/ Rs.50,000/-
9 Medical Rs Rs.34,462/
10. Transpiration Rs.30,000/ Rs.30,000/-
11 Loss of amenities of life Rs.1,00,000/ Rs.1,00,000/-
12 Total Compensation Rs.18,76,343/ Rs.18,76,343/-
13. Compensation awarded by Rs.75,000/ Rs.75,000/-
the Tribunal Enhanced Compensation Rs.18,01,343/ Rs.18,01,343/-
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 amount so calculated shall carry an interest @ 9% per annum from the date of filing of claim petition till the date of realization realization.
TRIPTI SAINI 2024.11.19 15:11 I attest to the accuracy and integrity of this document FAO-2810-2006 2006 (O&M) -15-
15. The Insurance Company is directed to deposit the enhanced amount of compensation along with interest with the Tribunal within a period of two months from the date of receipt of certified copy of this judgment. Since the appellant died during the pendency of the appeal, therefore, his LRs were brought on record, who are now entitled to receive the amount of compensation in equal sshares. The Tribunal is further directed to disburse the amount of compensation along with interest in the account of LRs of claimant/appellant.
llant. The LRs of claimant/appellant /appellant are directed to furnish their bank account details to the Tribunal.
16. Disposed of accordingly.
17. Pending applications, if any, also stand disposed of.
November 05,, 2024 (SUDEEPTI SHARMA)
tripti JUDGE
Whether speaking/non-speaking
speaking/non speaking : Speaking
Whether reportable : Yes/No
es/No
TRIPTI SAINI
2024.11.19 15:11
I attest to the accuracy and
integrity of this document