Jammu & Kashmir High Court
Mohan Lal vs Oriental Insurance Co. Ltd. on 5 April, 2007
Equivalent citations: 2008(1)JKJ354
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. This is a claimant's appeal filed against the judgment and order dt. 22nd of March 2006, passed by a learned Single Judge of this Court in CIMA No. 71/05.
2. The facts in brief be noticed as under:
Appellant Mohan Lal a Naik in the Indian Army was on his way from Udhampur to Jammu on his Motorcycle along with his wife on 11th of Dec. 2000, when he was hit by a truck bearing No. JK02J 7387. In he said accident, the appellant sustained severe head injury and also fracture of both the bones of right forearms. As a result of the disability which was assessed at 100%, the appellant lost his service. Appellant filed a claim petition under Section 166 of the Motor Vehicles Act before the Motor Accidents Claims Tribunal, Jammu (hereinafter referred to as Tribunal), claiming an amount of Rs. 71 lacs as compensation. The Tribunal decided the claim petition of the appellant vide its order dt. 30th of June'2004 and awarded an amount of Rs. 13,80,400 as compensation under different heads as under:
1. Loss of future income : Rs. 10,80,000/-
2. Speacialdiet : Rs. 10,000/-
3. Expenses on attendant : Rs. 2,88,000/-
4. Cost of wheel chair : Rs. 14, 400/-
5. Pain and suffering : Rs. 20, 000/-
6. Loss of amenities & pleasure of life : Rs. 40,000/-
Total Rs. 13.08,400/-
3. Respondent-Insurance Company preferred an appeal bearing CIMA No. 71/05 against the aforesaid award passed by the Tribunal, which came to be decided by a learned Single Judge of his Court vide judgment impugned dt. 22nd of March 2006, whereby the learned Single Judge has modified the award by reducing the future loss of income from Rs. 10,08,000/- as awarded by the Tribunal to Rs. 07,84,000/- by making 1/3rd deduction. However, the multiplier was enhanced from 12 to 14. The total awarded amount as per the judgment impugned is now Rs. 11,56,400. It has further been ordered that the Insurance Company shall be liable to pay interest on the awarded amount @9% per annum, except on the amounts mentioned in items No. 1,2 and 3 pendente lite i.e. Loss of income, Loss of Special diet and expenses on attendant. The claimant appellant is not satisfied with the order passed by the learned Single Judge so far as it relates to making of 1/3rd deduction from future loss of income. It is against this modification made by the learned Single Judge vide judgment impugned, the appellant has preferred this appeal.
4. We have heard learned Counsel for the parties and perused the record.
The issue involved in this appeal is whether in the case of an injury, when a court or Tribunal makes assessment by applying multiplier, 1/3rd deduction from future loss of income is permissible?
5. The learned Single Judge while ordering 1/3rd deduction has placed reliance on , Surjit Singh v. Waryam Singh and Anr. 1995 AC 366, R.D. Hattangadi v. Pest Control India Pvt. Ltd. and Ors. and 2005 AC 1131, New India Assurance Co. Ltd. v. Charlie and Anr.
6. In Waryam Singh's case (supra), the injured was a child of 4 years of age who had suffered permanent disability of 100%. In the said ease, no law has been laid down that from the assessed compensation, 1/3rd is to be deducted. In R.D. Hattangadi's case, their Lordships of the Supreme Court in para 9 of the judgment, observed as under:
Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damage's are those which the victim has actually incurred and which are capable of being calculated in terms of money: whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations, In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (Hi) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (Hi) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life,
7. It was further observed in para 10 as under-
...No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury 'so far as money can compensate' because it is impossible to equate the money with the human suffering or personal deprivations. Money cannot renew a broken and shattered physical frame.
8. In the aforesaid case also, no deduction was ordered to be made. In Charlies case, referred to above, on which reliance has been placed by the learned Single Judge, in para 6, it has been observed as under-
6. What wouldbe the percentage of deduction for personal expenditure cannot be governed by any rigid ride or formula by universal application. It would depend upon circumstances of each case. In the instant case the claimant was nearly 37 years of age and was married. Therefore, as rightly contended by learned Counsel the appellant, 1/3rd deduction has to be made for personal.
9. In , Nagesha v. M.S. Krishna and Anr. a three Judges Bench enhanced the award from Rs. 2,85,000 to Rs. 6,00,000. In this case, the injured had suffered 95% permanent disability and no deduction was ordered to be made from the future loss of income. In paragraphs 4 and 5 of the judgment, it was observed as under:
4. The adequate compensation in the present case has to be determined taking into account the admitted facts and the requirements of the appellant on account of the permanent disability suffered by him. It is also clear that he requires medical attention for the rest of his life and constant care of some other person even for his ordinary needs. These are the facts which are too obvious to require adducing of any evidence since these are the evident facts.
5. In our opinion, on an assessment of the overall requirement of the appellant for the remaining life, the amount of 'compensation should he adequate to provide for the same according to the current money value. We are satisfied that an amount of Rs. 6,00,000/- in all is the appropriate compensation which should he awarded to the appellant.
10. There is a difference between an injury and death case. In the case of an injured claimant that too having suffered 100% permanent disability, for his personal expense, no amount can be deducted under the head "future loss of income" as the future income is to be increased and the value of the money is to depreciate. More over, an injured having suffered 100% permanent disability has to live on medicines and wholly dependant on some one who is to look after him for there meaning life. Therefore, whether for personal expenses, any amount is to be deducted or not depends upon the nature of the case and injury suffered. The amount of compensation is to be fixed on taking into account the facts of the case and the requirement of the victim on account of permanent disability suffered by him. Generally when a person suffers cent percent disability, no deduction should be made from the amount allowed for future loss of income, as it is likely to work harshly to the victim but again it depends on the facts and circumstances of a particular case. The guiding factors which apply in this behalf in the case of death, may not be relevant in a disability case. No general principle can be laid down for the same.
11. We have considered the facts and circumstances of the present case. In view of the nature of injury and disability suffered by the victim, we do not find any such deduction should he made in the present ease. The learned Single Judge while ordering 1/3rd deduction enhanced the multiplier from 12 to 14 by taking into consideration the uncertainty of life but in our view, the multiplier adopted by the learned Tribunal was reasonable.
12. For the reasons mentioned above (and following the decision of the Larger Bench of the Apex Court in Nagesha's case (1998 ACJ 467), supra, where no deduction was ordered lo be made), this appeal is allowed.
13. The judgment impugned passed by the learned Single Judge is set aside act the award passed by the learned Tribunal is upheld. The amount shall be paid to the appellant-claimant in terms of the award passed by the learned Tribunal.