Punjab-Haryana High Court
Harish Kumar Chawla vs State Of Haryana And Others on 30 September, 2010
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.3281 of 1996 (O&M)
Date of decision:30.09.2010
Harish Kumar Chawla ....Appellant
versus
State of Haryana and others ...Respondents
II. Cross Objection No.67-CII of 1997 in/and
FAO No.3093 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Joginder Kumar and others ...Respondents
III. FAO No.3094 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Jaswant Singh and others ...Respondents
IV. FAO No.3095 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Smt. Lalli and others ...Respondents
V. FAO No.3096 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Jaswant Singh and others ...Respondents
VI. FAO No.3097 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Karambir and others ...Respondents
FAO No.3281 of 1996 (O&M) -2-
VII. FAO No.3098 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Harish Kumar Chawla and others ...Respondents
VIII. FAO No.3099 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Amarjit Singh and others ...Respondents
IX. FAO No.3100 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Smt.Meera Bai and others ...Respondents
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X. FAO No.3102 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Upneet and others ...Respondents
XI. FAO No.3103 of 1996 (O&M)
State of Haryana and others ....Appellants
versus
Amarjit Singh and others ...Respondents
XII. FAO No.130 of 1997 (O&M)
Upneet ....Appellant
versus
State of Haryana and others ...Respondents
FAO No.3281 of 1996 (O&M) -3-
XIII. FAO No.131 of 1997 (O&M)
Amarjit Singh and another ....Appellants
versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Kunal Garg, AAG, Haryana.
Mr. Parveen Hans, Advocate, for the landowners.
Mr. Gautam Bhardwaj, Advocate, for Mr. N.K.Khosla,
Advocate, for United India Insurance Company.
Mr. Rajiv Trikha, Advocate, for the appellant(s) in FAO
Nos.130 and 131 of 1997.
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1. Whether reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the reporters or not ?
3. Whether the judgment should be reported in the digest ?
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K.Kannan, J.
1. In all these batch of cases, the fact of accident, the issue of negligence and the tenability of the respective claims as determined by the Tribunal, are not in challenge. The State is in appeal disputing the quantum awarded in the various cases. There is also an appeal for enhancement at the instance of a claimant for injuries sustained in the accident. The cases that deal with the death and the compensation awarded will be taken up first and the cases relating to injuries will be taken up next.
2. FAO Nos.3095, 3096, 3099 and 3100 of 1996 are appeals by the State for compensation awarded in death cases. FAO No.131 of 1997 FAO No.3281 of 1996 (O&M) -4- is an appeal by the claimants for enhancement which is subject of appeal in FAO No.3099 of 1996.
3. FAO No.3095 of 1996 relates to death of a driver of a truck, who was 28 years of age. The claimants were the widow, minor daughter and mother. The income adduced before the Tribunal was that deceased was earning Rs.2,000/- and the Tribunal took the extent of dependency to be Rs.1,350/- per month, provided a multiplier of 16 and awarded a compensation of Rs.2,59,200/-. The entire assessment seems wholly correct for a person, who was aged 28 years and whose income was less than Rs.40,000/- per annum, even the scale of compensation under Schedule-II would require an adoption of a multiplier of 18. Instead of adopting a multiplier as enjoined under Schedule-II and if the prescription under Sarla Verma and others Versus Delhi Transport Corporation and another-2009 ACJ 1298 were to be applied, the multiplier would have been 17 and even then the compensation that would be arrived would be in excess of Rs.2,59,200/- which the Tribunal has awarded. The compensation adopting a multiplier of 18 would have yielded a sum of Rs.2,92,136/-. However, I still do not make any intervention since there is no appeal by the claimant. The appeal is dismissed.
4. In FAO No.3096 of 1996, the deceased was a graduate bachelor, aged 25 years. The claimants were his parents. The Tribunal took the extent of dependency at Rs.1,700/- per month for five years, assessed Rs.1,02,200/- and reduced the multiplicand further by another 1/3rd and took the dependency at Rs.570/- and adopted a multiplier of 11. FAO No.3281 of 1996 (O&M) -5- The Tribunal was perhaps attempting to split the number of years' purchase into the time when the contribution could be more for a period of 6 years and how it could have fallen to 1/3rd with the prospect of marriage in future. All told, the Tribunal awarded Rs.1,77,240/-. Courts have either attempted to provide for a lower value of multiplier depending on the age of the claimants or increase deduction for personal consumption to 50% and adopt the same multiplier as applicable to the age of the deceased. Either by application of Schedule-II, taking a 1/3rd deduction and providing for a multiplier of 17 or providing a deduction of 50% and taking a multiplier of 18 as per Sarla Verma would yield to amounts in the range of Rs.2,90,000/- which is more than the amount awarded by the Tribunal. In this case also there is no scope for interference in appeal. The appeal is dismissed.
5. In FAO No.3099 of 1996 and FAO No.131 of 1997 the deceased was a housewife, aged 36 years and the claim was filed by the husband, minor daughter and father. The Tribunal awarded a lump sum amount of Rs.1 lakh. The value of the householder's service cannot be denied and in a recent judgment of the Hon'ble Supreme Court in Arun Kumar Agarwal and another Versus National Insurance Company and others- 2010 RAJ 262, the Court referred to the fact that a householder's service has to be quantified and has also made reference to a judgment of the Division Bench of Madras High Court in National Insurance Company Versus Minor Deepika -2009 (6) MLJ 1005 that held that the wife's contribution must be taken at least 50% of the husband's earnings. The Hon'ble Supreme Court has itself taken the FAO No.3281 of 1996 (O&M) -6- value of a householder's service at Rs.3,000/-. Even if the appropriate deduction were to be made and a multiplier under Schedule-II were to be applied, it should have been 16 and under the decision of the Sarla Verma, it should have been 15. The compensation would be again more than Rs.1 lakh and the amount awarded by the Tribunal cannot be said to be high.
6. In this case, there is a claim for enhancement of compensation. If we provide for 1/3rd deduction for the wife for personal expenses and take the contribution to the family to be Rs.2,000/-, the yearly dependency will be Rs.24,000/- and if a multiplier of 16 were to be applied, the amount of compensation would be Rs.3,84,000/-. I will provide for another Rs.16,000/- towards conventional heads of claim for loss of consortium to the husband at Rs.5,000/-, for loss of love and affection to a minor daughter at another Rs.5,000/-. The compensation payable would be payable would be Rs.4 lakhs. The amount in excess of what has been determined by the Tribunal shall attract interest at 6% from the date of the petition till the date of the payment.
7. The increase in the compensation now accorded shall go only to the husband and the minor daughter and not to the father of the deceased. Since the accident has taken place in the year 1992 and more than 18 years have elapsed, there shall be no requirement for retaining any portion of the amount and the same is recoverable by the claimants immediately. FAO No.3099 of 1996 is dismissed and FAO No.131 of 1997 is allowed to the above terms.
8. FAO No.3100 of 1996 pertains to the deceased, who was 40 FAO No.3281 of 1996 (O&M) -7- years of age and was said to be a labourer. The claimants were the widow, two minor sons and a minor daughter. The Tribunal has assessed the income at Rs.1,500/- per month and took the annual contribution to the family at Rs.12,000/- and adopted a multiplier of 16 to arrive at a compensation of Rs.1,92,000/-. If the amount were to be reassessed in the manner provided by the decision in Sarla Verma, the deduction would be 1/4th and the multiplier applicable would be 15. The compensation payable would be Rs.2,22,500/- if due provisions were also to be made for loss of consortium at Rs.10,000/-, funeral expenses at Rs.5,000/- and loss of estate at Rs.5,000/-. There is, therefore, no requirement for intervention in appeal and the appeal is dismissed.
9. The claim relating to injuries arise under the remaining appeals in FAO Nos.3093, 3094, 3097, 3098, 3102 and 3103 of 1996. The appeals for enhancement at the instance of the claimants have arisen in FAO No.3281 of 1996 which is connected to FAO No.3098 of 1996 and the claim in FAO No.130 of 1997 is for enhancement that is connected to FAO No.3102 of 1996.
10. In FAO No.3093 of 1996 and Cross Objection No.67-CII of 1997, the claimant had fracture of femur and had been hospitalized for 24 days. The doctor had assessed the disability to be 30%. He was said to be a shopkeeper and he gave evidence to the effect that he was unable to run the business after injuries. The Tribunal had provided for Rs.15,000/- towards medication, special diet and attendant charges, Rs.30,000/- towards permanent disability and Rs.7,500/- towards loss of income. The doctor's evidence referred to shortening of the limb and that FAO No.3281 of 1996 (O&M) -8- special shoes had to be used in order to reduce the shortening. He has stated that the disability was permanent. Yet another doctor, who had admitted the claimant in his hospital on 04.10.1992 gave evidence about the surgical treatment through operation, and said that the fracture had united and that he had advised him rest for 4/5 months for healing. The medical bills produced were Mark-A/4 to Mark-A/53. The contention of the learned counsel appearing for the State is that there was no proof that he was running a shop and that he was earning Rs.1,500/- to be assessed for loss of income at Rs.7,500/-. I cannot accept this contention for the Tribunal has taken only a minimum income that would have been possible and had provided for loss of earning for five months which was stated to be the period of rest even by the doctors. The medical bills had been produced and he had undergone a surgery as an inpatient and hospitalized for more than three weeks. The Tribunal awarded Rs.1,500/- under three heads for medical expenses, special diet and attendant. It cannot be said to be high. The disability was permanent and for 30% disability, the Tribunal had awarded Rs.30,000/-. It is definitely not a scientific assessment and appropriate method of assessing a compensation for permanent disability would be to provide for non- pecuniary damages of pain and suffering, loss of amenities of life and shortening of expectation of life. It should have also provided for loss of earning capacity that had resulted on account of disability. The attempt must be to translate the extent of disability to the loss that could have been occasioned by fall in his income earning capacity. If these heads were to be taken, it cannot fall less than Rs.30,000/-. This incidentally FAO No.3281 of 1996 (O&M) -9- appears to be also the issue. In this Court, during the years of the relevant period of accident in 1990s, through judicial pronouncements the practice had been to provide for a minimum of Rs.1,000/- for every percentage of disability. The overall compensation granted at Rs.52,500/- cannot be excessive in the light of evidence adduced. The appeal challenging the award is dismissed. There is no representation for the cross appellant and it is dismissed for default.
11. In FAO No.3094 of 1996, the claimant complained of fracture of the right tibia and he had undergone hospitalization for a period of three days. A medical certificate was produced to show that his disability was not in excess of 20%. The doctor, who gave certificate, was not examined. The Tribunal itself doubted the validity of the certificate and the assessment of disability in the manner made. The Tribunal awarded compensation of Rs.30,000/- without assessing the amount payable under each head of compensation that would require to be addressed in case of injury. The discharge summary from the hospital showed that he had fracture of tibia and fracture of the ribs. He was admitted on 05.10.1992 and discharged on 16.10.1992. Even after 12 days of hospitalization, he had been advised to take drugs for another period of 10 days. The contention of the learned counsel for the State is that he had been hospitalized only for three days is factually incorrect. The claimant must have suffered enormous paid on account of fracture of the ribs and fracture of the leg. I would provide for Rs.7,500/- towards pain and suffering for each fracture and take the amount at Rs.15,000/- for the two fractures that he had suffered. He had been in the hospital for FAO No.3281 of 1996 (O&M) - 10 - two weeks and he should have been spent an amount not less than Rs.10,000/-. If provisions were also to be made for attendant for a period of two weeks at Rs.1,000/- and for transportation expenses another Rs.2,000/- and yet another Rs.1,000/- for special diet, the hospital and other sundry expenses would have been caused another Rs.15,000/-. If I were to make the provision for loss of income and also the amount can only be in excess of Rs.30,000/-. I cannot subject this award to any reduction. FAO No.3094 of 1996 shall require to be dismissed.
12. FAO No.3097 of 1996 is for injuries suffered that was said to have caused fracture of the left shaft of femur. The case summary shown that he had been admitted in the hospital on 03.10.1992 and discharged on 12.10.1992. K-nailing had been done by surgical reduction of the fracture. The Tribunal had awarded Rs.15,000/- towards medication, Rs.50,000/- towards pain and suffering and provided for loss of income at Rs.7,200/- for six months.
13. The contention of the learned counsel appearing for the State is that there was no disability certificate and no doctor had been examined to speak about the actual disability suffered by the claimant. For 12 days of hospitalization with surgical treatment, I would provide for Rs.15,000/- towards pain and suffering and also provide for medical expenses as awarded by the Tribunal at Rs.15,000/-. I would also accept the assessment made by the Tribunal towards loss of income for six months and take the loss to be Rs.7,200/-. The total amount would be Rs.37,200/-. With no proof available as to the nature of employment or FAO No.3281 of 1996 (O&M) - 11 - how the disability is likely to impact his earning capacity, the Tribunal ought not to have awarded Rs.72,200/-. The amount of compensation shall be scaled down to Rs.37,200/- only.
14. The appeal is allowed in part modifying the award in the manner referred to above.
15. FAO No.3098 of 1996 is at the instance of the State and FAO No.3281 of 1996 is for a claim for enhancement by the claimant. The claimant adduced evidence to the effect that he had suffered a fracture of shaft of femur and bones of both his legs had been fractured. He had been in the hospital for more than 43 days and the doctor had assessed his disability at 45%. The Tribunal had awarded Rs.25,000/- towards medical, attendant and special diet charges, determined Rs.45,000/- as compensation for disability and Rs.25,000/- towards pain and suffering. Doctor Harish Chander was examined as PW17, who stated that it was a case of old injuries and that the injuries could be the result out of a motor accident. Evidently, he was making an opinion of how the injury could be resulted by an accident and the learned counsel points it out to show that there was no definite proof that the injury was only due to the accident. I cannot accept this contention, for, the hospital record showed that he had been admitted on the same date of the accident and he had been discharged on 14.11.1992. There was no other intervening incident to cause an accident or to doubt that the injury was on account of the accident.
16. The doctor had given evidence to the effect that his fracture of shaft femur had been reduced with k-nailing and there had been FAO No.3281 of 1996 (O&M) - 12 - mal-union of fracture of his leg and shortening of right lower limb with fracture mandible with difficulty in opening the mouth with limitation of movements on the right knee and weakness of medial aspect of left hand. The nature of injuries were serious enough to merit consideration for larger amount for pain and suffering. I would accord for the fracture of the shaft femur for each of the fractures at Rs.7,500/- and also provide for a prolonged treatment of over six months with the fracture of mandible that created the difficultly in opening the mouth for another amount of Rs.25,000/-. In all, I would assess the compensation for pain and suffering to be Rs.40,000/-. For medical expenses, attendant and special diet, the Tribunal has provided for Rs.25,000/-, which I shall retain. The doctor had not spoken about any permanent disability but the Tribunal had provided for Rs.1,000/- for every percentage of disability. I retain the same and I do not want to subject to any further reduction. It is not possible to assess from the evidence of the doctor or the evidence of the claimant himself as to whether the disability could have affected his earning capacity. With no better particulars available, I will subject the award for injuries to an increase by another Rs.25,000/- in the manner indicated above and the increase will attract interest at 6% from the date of the petition till the date of payment. The appeal in FAO No.3098 of 1996 by the State shall stand dismissed and FAO No.3281 of 1996 is partly allowed to provide for additional compensation in the manner indicated above.
17. FAO NO.3102 of 1996 is for injury of three year old child, who had suffered an amputation of left foot. Before the Tribunal, FAO No.3281 of 1996 (O&M) - 13 - medical bills to the tune of Rs.3,949/- were provided and the Tribunal had assessed the disability at 80%. The Tribunal provided Rs.15,000/- as expenses for medical treatment, attendant, special diet and transportation. I retain the same. The Tribunal awarded compensation of Rs.1 lakh towards disability. I would provide for Rs.25,000/- towards pain and suffering and Rs.50,000/- for loss of prospect of marriage, Rs.50,000/- for loss of amenities of life and another Rs.2 lakhs for loss of earning capacity. In all, the amount that would become payable would be Rs.3,25,000/-. The amount of compensation determined at Rs.1,15,000/- shall stand increased to the above extent and the increased amount shall be paid with interest at 6% from the date of petition till date of payment. The appeal in FAO No.3102 of 1996 is dismissed and the appeal in FAO No.130 of 1997 is allowed to the above extent.
18. FAO No.3103 of 1996 is for injury to the claimant, who had suffered a fracture of mandible of left side and upper left central and lateral incisor missing. He had been hospitalized for a period of three days and his disability was assessed at 8%. The evidence was that the claimant had the benefit of free treatment at the Army hospital at Delhi. The claimant was incidentally the father of the child, whose leg had been amputated and the husband of the person, who had died in the accident. For the fracture of mandible of left side, I would provide for Rs.7,500/- and for loss of two teeth, I would provide for Rs.7,500/- for each tooth. In all, towards the pain and suffering, I would provide for Rs.22,500/-. Even if the treatment was free, I would provide for special diet at Rs.5,000/- and provide for another Rs.5,000/- towards transport FAO No.3281 of 1996 (O&M) - 14 - expenses. No special disability is known to have been suffered but the amount determined falls short of the amount assessed by the Tribunal by a marginal sum only and, therefore, I would make no intervention for any reduction of the award. I maintain the award and dismiss the appeal filed by the State.
19. I place my appreciation for the counsel for the State, Shri Kunal Garg in providing to me a neat tabulation giving all the details of the age, status, income injuries and the evidence adduced by the parties. There was certain amount of fairness in the whole presentation of the case and I value the assistance of the counsel in the manner that was rendered to the Court.
(K.KANNAN) JUDGE 30.09.2010 sanjeev