Allahabad High Court
National Insurance Co. Ltd. vs Smt. Manju Shukla And 4 Others on 16 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 802
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Reserved on 17.07.2019 Delivered on 16.01.2020 Court No. - 34 (1) Case :- FIRST APPEAL FROM ORDER No. - 1020 of 2017 Appellant :- National Insurance Co. Ltd. Respondent :- Smt. Manju Shukla And 4 Others Counsel for Appellant :- Kuldip Shanker Amist Counsel for Respondent :- Rakesh Bahadur, Sudhakar Pandey (2) Case :- FIRST APPEAL FROM ORDER No. - 1859 of 2017 Appellant :- Smt. Manju Shukla Deceased And Another Respondent :- National Insurance Co. Ltd. And 3 Others Counsel for Appellant :- V.P. Mishra,S. Pandey,Sudhakar Pandey Counsel for Respondent :- Ajeet Singh Rana, Nripendra Mishra, Rakesh Bahadur (3) Case :- FIRST APPEAL FROM ORDER No. - 342 of 2015 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Manju Shukla And 3 Others Counsel for Appellant :- Rakesh Bahadur Counsel for Respondent :- V.P. Mishra,Sudhakar Pandey Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. First Appeal From Order No. 1020 of 2017 (hereinafter referred to as "FAFO-1") has been filed by defendant- Insurance Company under Section 173 of Motor Vehicles Act, 1988 (hereinafter referred to as "Act, 1988") challenging judgement and award dated 29.09.2014 passed by Sri Ashwani Kumar Singh, Additional District Judge, Court No. 1, Ballia/ Presiding Officer, Motor Accidents Claims Tribunal, Ballia (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition (hereinafter referred to as "MACP") No. 57 of 2010 awarding compensation of Rs. 72,47,000/-, payable 50 per cent by appellant-Insurance Company, namely, National Insurance Company Limited (hereinafter referred to as "Insurer-1") and remaining 50 per cent by New India Assurance Company Limited (hereinafter referred to as "Insurer-2") impleaded as respondent-3 in this appeal. Tribunal has also awarded 8 per cent interest on the amount of compensation which is to be computed from 11.06.2010, i.e., the date on which application for compensation was filed, till the date of payment. Respondent-1, who is claimant-respondent, is now substituted by respondent- 1/1, since died during litigation. Respondent-2, Maruti Bhai, is the owner of Truck No. MH 15G 4212 while respondent-4 Ahmad Jalil Shekh is the owner of Qualis bearing registration No. MH 04BN 1138.
2. First Appeal From Order No. 342 of 2015 (hereinafter referred to as "FAFO-2") has been filed by New India Assurance Company Limited i.e. Insurer-2 against the same award and grounds taken therein are also similar as taken in FAFO-1.
3. First Appeal From Order No. 1859 of 2013 (hereinafter referred to as "FAFO-3") is claimant's appeal which has also come up against same award being dissatisfied with quantum of compensation awarded therein and seeks enhancement of compensation to Rs. 1,12,50,000/-.
4. In FAFO-1, Sri Kuldip Shanker Amist, Advocate has appeared for appellant i.e. Insurer-1, Sri Sudhakar Pandey, Advocate has appeared for claimant-respondent and Sri Rakesh Bahadur, Advocate has appeared for respondent-3, i.e., Insurer-2.
5. In FAFO-2, Sri Rakesh Bahadur, Advocate, has appeared for appellant, i.e., Insurer-2, Sri Sudhakar Pandey, Advocate, has appeared for claimant-respondent and Sri Kuldip Shanker Amist, learned counsel for respondent-2 i.e. Insurer-1
6. In FAFO-3, Sri Sudhakar Pandey, Advocate, has appeared for claimant-appellant; Sri Rakesh Bahadur, Advocate, has appeared for for respondent-3, i.e., Insurer-2; and, Sri Kuldip Shanker Amist, learned counsel for respondent-1, i.e., Insurer-1.
7. Since all these appeals having arisen from common judgement and award, they are similar. Therefore, we briefly describe the facts as under.
8. On 15.09.2009 at 07:00 AM, Smt. Manju Shukla wife of Arvind Kumar Shukla went for darshan of Sai Baba at Shirdi (State of Maharashtra) along with her relatives in a vehicle Toyota Qualis being registration No. MH 04BN 1138. When they reached at village Kokan, P.S. Sangamner, District Ahmednagar, a Truck No. MH 15G 4212 which was being driven rashly and negligently by its Driver, collided with Toyota Qualis vehicle causing serious injuries to Smt. Manju Shukla and other passengers. Injured were taken to Tambe Hospital, Sangamner and report was also lodged in P.S. Sangamner. Smt. Manju Shukla sustained injuries on head and went in Coma-II stage. She remained admitted in Tambe Hospital from 15.09.2009 to 08.10.2009 and during treatment, she underwent several testings and medical examinations. As her situation could not be controlled, she was referred to Kokilaben Dhirubhai Ambani Hospital where she was admitted on 08.10.2009 and remained under treatment upto 20.05.2010. During period of treatment, husband of Smt. Manju Shukla and others, who were taking care, resided there by hiring rooms in hotel. She was discharged on 20.05.2010 and brought to her home at Ballia where she was given treatment at Gaurav Nursing Home, Tikampur, run by Dr. D. Rai. She was treated there till 06.06.2011. In the evening at around 06:00 PM on 06.06.2011, when she was at home, she breathed her last and was declared dead by Dr. D. Rai. At the time of accident, Smt. Manju Shukla was in family way having 2 months and 15 days foetus which was terminated due to accident as per Doctor's report. Claimant was working as Business Development Manager in Tata AIG Life Insurance Company. At the time of death, Smt. Manju Shukla was age of about 26 years.
9. During her life time, Smt. Manju Shukla filed Claim Petition No. 166 of Act, 1988 vide application dated 11.06.2010. At the time of filing of aforesaid claim petition, she was undergoing treatment and in the stage of Coma-II at Kokilaben Dhirubhai Ambani Hospital. After her death, claim petition was amended and her husband Arvind Kumar Shukla was impleaded as claimant- 1/1. He sought compensation of Rs. 1,12,50,000/- and its description was given as under:
22. Amount of compensation claimed by Claimant-Respondent.
1.
Towards loss of earning of deceased and future prospects.
Rs. 15,00,000/-
2. Expenses towards treatment of deceased.
Rs. 40,00,000/-
3. Expenses likely to occur in future, in case she was surviving.
Rs. 20,00,000/-
4. Expenses towards conveyance and on relatives during treatment of deceased.
Rs. 25,00,000/-
5. Expenses towards Food Supplements, like milk, fruits, etc., given to deceased during treatment.
Rs. 10,00,000/-
6. Claim towards pains and suffering suffered by deceased and relatives on account of injuries sustained in the accident.
Rs. 10,00,000/-
7. Claim towards loss of consortium, love and affection.
Rs. 2,00,000/-
8. Expenses towards funeral and other rituals.
Rs. 50,000/-
Total Rs. 1,12,50,000/-
10. Contesting the claim, Insurer-1 filed written statement through Senior Divisional Manager, Branch at Mau denying the facts stated in various paragraphs of claim petition in general. The objection taken is that claimant Arvind Kumar Shukla has no right to maintain said petition; Death of Smt. Manju Shukla on 06.06.2011 was not admitted to Insurer-1; no report was registered with regard to her death in P.S. Sangamner, District Ahmednagar in the context of accident in question; Claim of compensation under various heads is exaggerated, artificial and not payable; documents in evidence submitted before Tribunal in a sealed box having been sent by Insurer-1 are not acceptable; no evidence was adduced to show that deceased was in family way; facts regarding admission of patient at Tambe Hospital and Kokilaben Dhirubhai Ambani Hospital are fictitious; when deceased being a housewife, there is no question of loss of earning and entire claim is fictitious; earlier notices were issued when injured's claim was allowed but since she has not died, fresh notice must have been issued.
11. A separate written statement was filed by New India Assurance Company Limited, i.e. Insurer-2, wherein it also denied facts stated in the claim petition. In additional pleas, it was stated that claim is excessive and exaggerated; Claimant has no right to file claim petition and not entitled for any compensation; Claim petition was not maintainable at Ballia; Entire negligence causing accident was that of Truck Driver and, therefore, Insurer-2, Insurer of vehicle Toyota Qualis, was not liable to pay any compensation. Copy of written statement of Insurer-2 is at page- 63 of paper book in FAFO-3.
12. Defendant-2 in claim petition, i.e., Sri Maruti Bhai, owner of Truck No. MH 15G 4212, in his written statement though denied the facts stated in claim petition but in additional pleas, he admitted that accident occurred on 15.09.2009 at 07:00 AM at Nasik-Shani Shingnapur road near village Kokar, P.S. Sangamner, District Ahmednagar but pleaded that it was due to negligence of Driver of vehicle Toyota Qualis and not of Truck Driver, therefore, he was not liable to pay any compensation. He also admitted that his Truck No. MH 15G 4212 is insured with Insurer-1 vide Policy No. 311500/31/04/630002877 effective from 05.05.2009 to 04.05.2010 and, therefore, liability, if any, would be that of Insurer-1. It was also pleaded that Driver driving Truck was having a valid Driving Licence and all other documents were also in order.
13. Defendant-4 Sri Ahmed Zalil Shekh, owner of Toyota Qualis bearing no. MH 04BN 1138 also filed a written statement which is at page 74 of paper book in FAFO-3. In general, facts stated in claim petition were denied by him though he admitted that he is the owner of Toyota Qualis No. MH 04BN 1138. In additional pleas, he challenged the right of claimant to file claim petition against him. He claimed that there was no negligence on the part of Driver of Toyota Qualis and in any case, it was duly insured with Insurer-2 on the date of accident vide Policy No. 11060/31/00/01/00024833 effective from 28.12.2008 to 27.12.2009 and, therefore, liability, if any, is that of Insurance Company.
14. On the basis of respective pleadings, Tribunal formulated following seven issues:-
^^1- D;k Jherh eatw 'kqDyk dh vksj ls muds ifr vjfoUn dqekj 'kqDyk dks izLrqr ;kfpdk ;ksftr djus dk vf/kdkj gS\ 2- D;k fnukad 15-09-09 dks izkr% dky 7-00 cts ukfld 'kfu flaxMkiqj jksM ij xzke dksdm Fkkuk laxeusj ftyk vgenuxj egkjk"V~ ds vUrxZr dfFkr nq?kZVuk esa fyIr okgu V~d la[;k ,e0,p0 15th0 4212 o okgu Dokfy'k la[;k ,e0,p0 04ch0,u0 1138 ds pkydksa us vius vius okguksa dks rsth o ykijokgh ls pykdj ,d nwljs dks VDdj ekjh] ftlls okgu la[;k ,e0,p0 04ch0,u0 1138 ij lokj Jherh nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd ykbZlsUl ugha Fkk\ 3- D;k nq?kZVuk esa fyIr okgu la[;k ,e0,p0 15 th0 4212 ds pkyd ds ikl nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd ykbZlsUl ugha Fkk\ 4- D;k nq?kZVuk esa fyIr okgu la[;k ,e0,p0 04ch0,u0 1138 ds pkyd ds ikl nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd ykbZlsUl ugha Fkk\ 5- D;k nq?kZVuk esa fyIr okgu la[;k ,e0,p0 15 th0 4212 foi{kh la[;k&3 fn U;w bfUM;k bU';ksjsUl dEiuh fyfeVsM ls chfer Fkk\ 6- D;k nq?kZVuk esa fyIr okgu la[;k ,e0,p0 04ch0,u0 1138 foi{kh la[;k&1 us'kuy bU';ksjsUl dEiuh fyfeVsM }kjk chfer FkkA 7- vuqrks"k\** "1 . Whether Arvind Kumar Shukla has a right to file the instant petition on behalf of his wife Smt Manju Shukla?
2 . Whether on 15.9.09 at 7 am, on Nashik Shani Shignapur Road, in Village Kakau, P.S. Sangamner, Distt Ahmedabad, Maharashtra, drivers of Truck no MH 15G 4212 and Qualis no MN 04BN 1138 speedily and recklessly drove and thus rammed their respective vehicles into each other, as a result of which Smt Manju aboard vehicle no MH 04BN 1138 sustained serious injuries and consequently died during her treatment ?
3 . Whether driver of vehicle no M.H.15 G4212, involved in accident, did not have a valid and effective driving license on the date of accident?
4 . Whether driver of vehicle no. MH 04BN 1138, involved in accident, did not have a valid and effective driving license on the date of accident?
5 . Whether vehicle no M.H.15 G4212 involved in accident was insured with respondent no 3 The New India Insurance Company Limited?
6 . Whether vehicle no. MH 04BN 1138 involved in accident was insured with respondent no 1 The National Insurance Company Limited?
7. Relief?"
(English Translation by Court)
15. After amendment of claim petition, Insurers- 1 and 2 both filed their written statements and thereafter six more issues were framed as under:-
^^1- D;k fnuakd 15-09-09 dks izkr% dky 7-00 cts ukfld 'kfulaxkjiqj jksM ij xzke dksdM Fkkuk laxeusj ftyk vgenuxj] egkjk"V~ ds vUrxZr dfFkr nq?kZVuk esa fyIr okgu V~d la[;k ,e0,p0 15 th0 4212 o okgu Dokfy'k la[;k ,e0,p0 04ch0,u0 1138 ds pkydksa us vius vius okgu dks rsth o ykijokgh ls pykdj ,d nwljs dks VDdj ekj fn;k ftlls okgu la[;k ,e0,p0 04ch0,u0 1138 ij lokj Jherh eatw 'kqDyk dks xEHkhj pksVsa vk;h] ftlds ifj.kkeLo:i nkSjku bykt mldh e`R;q gks x;h\ 2- D;k nq?kZVuk esa fyIr okgu la[;k ,e0,p0 15 th0 4212 ds pkyd ds ikl nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd ykbZlsUl ugha Fkk\ 3- D;k nq?kZVuk esa fyIr okgu la[;k ,e0,p0 04ch0,u0 1138 ds pkyd ds ikl nq?kZVuk dh frfFk ij oS/k ,oa izHkkoh pkyd ykbZlsUl ugha Fkk\ 4- D;k nq?kZVuk esa fyIr okgu la[;k ,e0,p0 15 th0 4212 foi{kh la[;k&3 fn U;w bfUM;k bU';ksjsUl dEiuh fyfeVsM ls chfer Fkk\ 5- D;k nq?kZVuk esa fyIr okgu la[;k ,e0,p0 04ch0,u0 1138 foi{kh la[;k&1 us'kuy bU';ksjsUl dEiuh fyfeVsM }kjk chfer FkkA 6- vuqrks"k\** " 1. Whether on 15.9.09 at 7 am on Nashik Shani Shignapur Road in Village Kakau, PS Sangamner, Distt Ahmedabad, Maharashtra, the drivers of Truck no M.H. 15G 4212 and Qualis no MH 04BN 1138 speedily and recklessly drove and thus rammed their respective vehicles into each other, as a result of which Smt Manju aboard vehicle no MH 04BN 1138 sustained serious injuries and consequently died during her treatment ?
2 . Whether driver of vehicle no M.H.15 G4212, involved in accident, did not have a valid and effective driving license on the date of accident?
3 . Whether driver of vehicle no. MH 04BN 1138, involved in accident, did not have a valid and effective driving license on the date of accident?
4 . Whether vehicle no M.H.15 G4212, involved in accident, was insured with respondent no 3 The New India Insurance Company Limited?
5 . Whether vehicle no. MH 04BN 1138, involved in accident, was insured with respondent no 1 The National Insurance Company Limited?
6. Relief?"
(English Translation by Court)
16. In support of claim, claimant adduced oral evidence by deposing himself as PW-1; Sri Kedar Chaudhary as PW-2; Kumari Sudha Shukla as PW-3; Dr. Dadan Rai as PW-4; Dr. Rajendra Bhau as PW-5; Sri Ravi Ranjan as PW-6; Sri Avinash Srivastava as PW-7 and Sri Bhola Nath as PW-8. The written evidence comprised of First Information Report (hereinafter referred to as "FIR"), Insurance Cover Note of both vehicles, Driving License, permit, fitness certificate, medical bills, certificate issued by Chief Medical Officer regarding permanent disability of Smt. Manju Shukla to the extent of 100 per cent, appointment letter of claimant-respondent, document about his salary and various bill vouchers showing expenditure incurred on the treatment of Smt. Manju Shukla.
17. After examining evidence, Tribunal held that both tortfeasing vehicles were insured with respective Insurance Companies; both Drivers possessed valid Driving License and vehicles have other requisite documents like Fitness Certificate, Registration Certificate etc., and these facts are duly proved. The factum of accident was also found proved. Thereafter, it examined expenditure incurred on treatment of Smt. Manju Shukla and on the basis of medical bills and other documents, it held that Rs. 55 to 56 lacs were spent by husband of deceased; she was in the stage of Coma-II during the period of treatment since after accident; being a housewife, her notional income was assessed at Rs. 4,500/- per month which comes to Rs. 54,000/- per annum. Applying multiplier of 18, her total income comes to Rs. 9,72,000/- and thereafter deducting 1/3, it was reduced to Rs. 6,48,000/-. Further, Tribunal added 50 per cent for future prospects as per Rules 220A and 220B added in U.P. Motor Vehicles Rules, 1998 (hereinafter referred to as "Rules, 1998") vide UP Motor Vehicles (Eleventh Amendment) Rules, 2011 (hereinafter referred to as "Amendment Rules, 2011") and this comes to Rs. 9,72,000/-. It allowed Rs. 10,000/- towards loss of estate; Rs. 10,000/- towards loss of consortium and Rs. 5,000/- towards funeral expenses. Tribunal also awarded compensation of Rs. 9,97,000/- plus Rs. 55 lacs towards medical expenses and a sum of Rs. 5,00,000/- towards pain and mental torture, since deceased suffered 100 per cent permanent disability and remained in Coma-II stage for about one year nine months. Thus, total compensation of Rs. 72,47,000/- was awarded. Thereafter, it held that both vehicles were equally responsible for said accident and, therefore, held Insurers- 1 and 2 liable to pay equal amount of compensation and has accordingly directed both to pay 50 per cent each towards compensation out of total compensation of Rs. 72,47,000/- awarded by Tribunal along with 8 per cent interest to be computed from the date of filing of application i.e. 11.06.2010 till actual payment.
18. Sri Rakesh Bahadur, learned counsel appearing for Insurer-2 contended that Drivers were not examined and, therefore, it could not have been proved that accident was due to rash and negligent driving by both the Drivers; there is no finding recorded by Tribunal on the point of negligence; medical expenses as per evidence adduced, were much less than what was actually claimed and awarded by Tribunal, therefore, award in question is bad in law to that extent; deceased was a house-wife, therefore, claimant-husband cannot be said to be dependent upon her and, hence, there was no loss of dependency for awarding any compensation.
19. Adopting his argument, Sri K.S. Amist, Advocate submitted that amount of medical expenses awarded by Tribunal is highly excessive. Referring to Ground-20, he urged that as per documents adduced by claimant, total amount of medical expenses comes to Rs. 26,60,344/- though Rs. 55 lakhs has been awarded by Tribunal which is apparently perverse; no future prospects could have been allowed by relying on Rule 220A added by Amendment Rules, 2011 with effect from 26.09.2011 as accident took place on 15.09.2009 and said Rule was not available on that date.
20. Learned counsel for Claimant in support of his claim for enhancement of compensation contended that Tribunal has awarded only 8 per cent interest though it ought to be 12 per cent and that too, should have been awarded from the date of accident and not from the date of claim petition. He further submits that due to long duration of treatment of deceased, Claimant has to leave his job and sustained serious financial scarcity but no compensation under this head has been awarded; the amount of compensation awarded under the head of loss of estate, love and affection and financial expenses are also meagre and not consistent with law laid down by Supreme Court; for termination of pregnancy due to accident, Claimant was entitled for appropriate compensation but Tribunal awarded only Rs. 2,50,000/- under the said head which is quite inadequate; assessment of notional income of Rs. 4,500/- per month is inadequate, unjust and meagre and it should have been real, just and much higher.
21. On the arguments raised by learned counsel for parties as noticed above and perusal of record, the points for determination which have arisen in these appeals are formulated as under:-
(i) Whether non-examination of Drivers would affect the findings of Tribunal in any manner on the issue of rash and negligence driving.
(ii) Whether Tribunal has erred in law in allowing future prospects and has rightly followed Rule 220A or no future prospects were awardable ?
(iii) Whether Rule 220A could have been relied for determination of just compensation ?
(iv) Whether notional income of deceased has been determined by Tribunal rightly or it needs be increased as claimed by Claimant or reduced as claimed by Insurers-1 and 2 ?
(v) Whether amount of compensation awarded by Tribunal towards medical expenses and for treatment is excessive, based on no evidence or it is on the lower side as claimed by Claimant or is justified and warrants no interference ?
(vi) Whether loss of employment of Claimant on account of long duration Coma-II stage of deceased, running for about 21 months, termination of pregnancy etc., deserves to be awarded any amount of compensation and non-consideration and non-award of any amount on this aspect by Tribunal is erroneous ?
(vii) Whether amount of compensation awarded under the head of loss of estate, love and affection, funeral expenses etc., is just, valid, adequate or needs be increased ?
22. Before coming to aforesaid issues, evidence as adduced before Court below and admitted or proved, may be re-collected at this stage.
23. With regard to Insurance of Truck No. MH 15G 4219, Sri Vinod Kumar Sinha, Development Officer of Insurer-1 appeared as DW-1 and proved that vehicle was insured with Insurer-1 and had a valid period of insurance from 05.05.2009 to 04.05.2010.
24. Similarly, in respect of Insurance of Toyota Qualis, Sri Ashok Kumar, Assistant Manager of Insurer-2 appeared in person and proved insurance of said vehicle with Insurer-2.
25. Giving details of documents which have been considered by Tribunal for awarding Rs. 55,00,000/- towards expenses on treatment, medicines and other incidental expenses, it has referred to a list of 32 documents as under:-
S.No. Paper No. No. of Bills/ Vouchers Expenses towards Amount in Rs.
1.
GA-70 40 Care Pharma (Medical and General Stores) Rs. 26,887.57/-
2. GA-71 1 Tambe Hospital at Sangamner Rs. 2,44,800.00/-
3. GA-72 7 Shri Siddheshwar Medicals Rs. 6,522.00/-
4. GA-73 5 C.T. Scan Center Pvt. Ltd.
Rs. 8,100.00/-
5. GA-74 4 Blood Bank Rs. 1620.00/-
6. GA-75 3 Ambulance Rs. 800.00/-
7. GA-76 50 Care Pharma (Medical and General Stores) Rs. 71,472.16/-
8. GA-77 4 Care Pharma (Medical and General Stores) Rs. 79,087.00/-
9. GA-78 1 Fooding and lodging Rs. 1,82,800.00/-
10. GA-80 102 Hospital: Kokilaben Dhirubhai Ambani Rs. 19,25,483.00/-
11. GA-81 21 Hospital: Kokilaben Dhirubhai Ambani Rs. 17,25,483.00/-
12. GA-82 4 Bina Nurses Bureau Rs. 25,943.00/-
13. GA-83 3 Medicines Rs. 4,785.00/-
14. GA-84 1 Hotel Divya International 10.10.09 to 20.5.10 Rs. 2,66,400.00/-
15. GA-86 9 Radhika Travels 13.09.09 to 20.05.10 Rs. 9,65,200.00/-
16. GA-87 96 Fooding at Sharma Veg Fast Food 08.10.09 to 31.10.09 Rs. 45,264.00/-
17. GA-88 120 Fooding at Sharma Veg Fast Food 1.11.09 to 30.11.09 Rs. 59,858.00/-
18. GA-89 124 Fooding at Sharma Veg Fast Food 1.12.09 to 31.12.09 Rs. 62,047.00/-
19. GA-90 124 Fooding at Sharma Veg Fast Food 1.1.10 to 31.1.10 Rs. 64,495.00/-
20. GA-91 112 Fooding at Sharma Veg Fast Food 1.2.10 to 28.2.10 Rs. 56,153.00/-
21. GA-92 124 Fooding at Sharma Veg Fast Food 1.3.10 to 31.3.10 Rs. 63,748.00/-
22. GA-93 120 Fooding at Sharma Veg Fast Food 1.4.10 to 31.4.10 Rs. 61,047.00/-
23. GA-94 80 Fooding at Sharma Veg Fast Food 1.5.10 to 20.5.10 Rs. 41,337.00/-
24. GA-95 90 Medicine at Sri Ram Medical Store Rs. 67,422.00/-
25. GA-96 10 Medicine at Sri Ram Medical Store Rs. 4,848.00/-
26. GA-97 8 Agrawal Surgical Emporium Rs. 17,449.00/-
27. GA-98 20 Gaurav Nursing Home Rs. 3,87,050.00/-
28. GA-99 2 Surgery and Pathology Rs. 3,850.00/-
29. GA-135 6 Bed Charge of Gaurav Nursing Home Rs. 1,75,800.00/-
30. GA-136 6 X-Ray and Pathology of Gaurav Nursing Home Rs. 13,350.00/-
31. GA-137 14 Medicine at Sri Ram Medical Store Rs. 6,727.00/-
32. GA-138 5 Agrawal Surgical Emporium Rs. 6,257.00/-
26. Before examining points for determination as formulated above, we find it appropriate to have a glimpse of statutory provisions and the purpose and objective for which Act, 1988 makes provisions for compensation in case of death or injury sustained by a person in a motor accident as that will be a guiding factor in examining the various questions raised in these appeals.
27. It is also evident from record that initially application for compensation was filed by Smt. Manju Shukla through her representative, having sustained serious injuries leading her to Coma-II stage. From the date of accident and during her treatment, lot of expenses were incurred by her husband. Admittedly, application was filed under Section 166 of Act, 1988 by Smt. Manju Shukla. Subsequently, after her death, necessary amendments were made and husband of deceased Smt. Manju Shukla became Claimant. The relevance of application having been filed under Section 166 of Act, 1988 is for a reason. In fact, in Act, 1988, there are three provisions whereunder compensation can be awarded to a victim or his/ her legal heirs as the case may be.
28. Chapter X, having Sections 140 to 144, deals with the provisions relating to "liability without fault", in certain cases. Provisions under this Chapter have been given overriding effect by virtue of Section 144. Section 140(1) provides, where death or permanent disablement has resulted to a person from an accident arising out of use of a motor vehicle or motor vehicles, owner/owners of vehicle shall, jointly and severely, be liable to pay compensation, in respect of such death or disablement, in accordance with said section. Sub-section (2) provides a fixed amount of Rs. 50,000/- in case of death and Rs. 25,000/- in case of permanent disablement. In order to attract Section 140 there is no necessity or requirement to show that accident took place due to rash and negligent driving of tortfeaser vehicle. It recognizes principle of "no fault liability". The amount awardable thereunder is fixed by legislature itself. Liability is that of owner. Insurer does not come into picture when claim is made under Section 140. This "no fault liability" envisaged in Section 140 is distinct from the "rule of strict liability". In other words, liability under Section 140 is a statutory liability. If an amount under Section 140 has been paid and thereafter claim is made under Section 166, amount paid under Section 140 is liable to be deducted from final amount of compensation awarded by Tribunal. The amount under Section 140 being a fixed/crystallized amount, same has to be considered as part of estate of deceased as held in Smt. Manjuri Bera vs. The Oriental Insurance Company Ltd. and another, AIR 2007 SC 1474.
29. Liability under Section 140 has to be borne by owner if vehicle was not insured or there was a breach of conditions of insurance. Though Section 140 makes owner of vehicle responsible for payment of compensation but if vehicle is insured, it is always open to owner to make Insurer liable to pay amount of compensation for the reason that once vehicle is covered under the terms of policy, it is for Insurer to make payment of liability of owner to the extent indicated in policy, be it under Section 166 or Section 140 of Act, 1988.
30. In the scheme of Act, 1988, Chapter X, by virtue of Section 140, contemplates quick relief to a victim by awarding a fixed amount of compensation, if death or permanent disability has resulted from an accident arising out of use of a motor vehicle and for this purpose there is no requirement of pleading or establishing that death or permanent disablement was due to any wrongful act, negligence or default of owner of vehicle.
31. Section 141 declares that right to claim compensation under Section 140 is in addition to any other right to claim compensation on the principle of "fault liability" but it only excludes right to claim compensation under Section 163A. In other words, if a compensation is claimed under "no fault liability" then either it can be an application under Sections 140 or 163A and not both. This is what has also been clarified in The Oriental Insurance Co. Ltd. etc. vs. Hansrajbhai V.Kodala and others, 2001(5) SCC 175.
32. Section 142 classifies injuries which are considered "permanent disablement" for the purpose of Chapter X of Act, 1988.
33. By virtue of Section 143 of Act, 1988, benefit of "no fault liability" under Chapter X has also been extended to a workman to claim compensation in respect of death or permanent disablement either by approaching Workman Compensation Commissioner under Workmen's Compensation Act, 1923 (hereinafter referred to as the "Act, 1923") or Tribunal under Act, 1988, by filing application under Section 140 of Act, 1988.
34. Next provision under Act, 1988 is Section 161 read with Section 163, which is a special provision for compensation in case of a hit and run motor accident where identity of vehicle/ tortfeaser is not ascertainable despite reasonable efforts for the purpose. In this regard Section 163 empowers Central Government to make a scheme for payment of compensation in hit and run accident cases and subject to such scheme, Section 161(3) provides compensation of fixed sum of Rs. 25,000/- in case of death and Rs. 12,500/- in case of grievous injuries.
35. Initially when Act, 1988 was enacted there was no provision for compensation in case of "no fault liability" based on a structured formula which provides scope for determination of compensation. By Act 54 of 1994, and w.e.f. 14.11.1994, Section 163A was inserted making special provision for payment of compensation on structured formula. This Section commences with a "non-obstente" clause and overrides provisions of Act, 1988 or any other law for the time being in force or instrument having force of law. It says that owner of vehicle or authorized Insurer shall be liable to pay compensation as indicated in Second Schedule in case of death, to legal heirs and in case of permanent disablement, to the victim, as the case may be. Explanation to Section 163A(1) incorporates by Reference, meaning of "permanent disability" as provided in Act, 1923 to the word "permanent disablement" used under Section 163A of Act, 1988. For claiming compensation under Section 163A(1) claimant is not required to plead or establish that accident occurred due to any wrongful act, neglect or default on the part of owner of vehicle concern or of any other person.
36. There is a note appended to Second Schedule of Act, 1988, raising a legal fiction stating that injuries deemed to result in permanent total disablement/ permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule First under Act, 1923. In para 5 of Second Schedule of Act, 1988, provisions of First Schedule of Act, 1923 have been incorporated by reference. To attract Section 163A and to claim compensation thereunder, one has to establish factum of accident, age of deceased/ injured, as the case may be and his/her income. Broadly, these are the only relevant factors to be brought before Tribunal for determining compensation under Section 163A.
37. However, while determining compensation, Tribunal has to consider relevant factors and it cannot be expected to go by a ready reckoner as held in U.P. State Road Transport Corporation and Ors. vs. Trilok Chandra and others, 1996(4) SCC 362.
38. Next provision relating to compensation is Chapter XII, i.e., Section 166 read with Section 165.
39. State Government has empowered by Section 165(1) to constitute one or more Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving death of, or bodily injury, to persons, arising out of use of motor vehicles or damages of any property of a third party so arising or both.
40. Section 166 provides that an application for compensation arising out of an accident of the nature specified in Section 165(1) may be made and these are:
"(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be."
41. Section 168 requires Tribunal to determine amount of compensation which appears to it, "just" after giving opportunity to parties including Insurer.
42. Application under Section 166 can be filed by heirs and legal representatives of victim, in case of death, and it is not relevant, whether they are financially dependent upon the victim or not. Further no other person can apply for compensation under Section 166, if he/she does not come within the term "legal representative" even if he or she is proved to be financially dependent upon the victim.
43. Term "legal representative" has not been defined in Act, 1988, therefore, Court can look into Section 2(11) of Code of Civil Procedure (hereinafter referred to as the "CPC") defining "Legal Representatives".
44. In Smt. Manjuri Bera vs. The Oriental Insurance Company Ltd. (supra) Court held that under Section 2(11) CPC, "legal representative" means a person who in law represents the estate of deceased person and includes any person who inter-meddles with the estate of deceased and where a party sues or is sued in a representative character, the person to whom estate devolves on the death of party so suing or sued.
45. Section 166 contemplates application for compensation which is commonly called as "claim on fault liability". The inter relationship of Sections 163A and 166 was considered in Deepal Girishbhai Soni and others vs. United India Insurance Co. Ltd. 2004(5) SCC 385. Court said that Section 163A is for grant of immediate relief and award made thereunder would be in full and final settlement of claim. It is not interim in nature. Amount of compensation payable thereunder is not to be altered or varied in any other proceedings unlike the amount paid under Section 140 which can be set off against a higher compensation.
46. In Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and another, 2009(6) SCC 121 it was held, where application is filed under Section 163A of Act, 1988, it is possible to calculate compensation on the structured formula basis even where compensation is not specified, with reference to annual income of deceased if it is not more than Rs. 40,000/-, by applying the formula; (2/3 x AI x M), i.e., two-thirds of the annual income multiplied by multiplier applicable to the age of deceased would be compensation. Several principles of tortious liability are excluded when claim is under Section 163A of Act, 1988 but when application is under Section 166, Tribunal is under a statutory obligation to determine "just" amount of compensation.
47. Section 168 contemplates determination of "just compensation". 'Just' means, fair, reasonable and equitable amount accepted by legal standards. "Just compensation" does not mean perfect or absolute compensation. "Just compensation" principle requires examination of particular situation obtaining uniquely in an individual case.
48. When compensation is to be determined on an application under Section 166, various heads under which damages are to be assessed, have to be looked into by Tribunal and not by merely determining income and applying multiplier.
49. We may consider some broad aspects in the context of injury/ disability and death separately.
Bodily Injury/Disability
50. Here damages are broadly in two categories, i.e., pecuniary damages and special damages. Pecuniary damages are those which victim has actually incurred and which are capable of being calculated in terms of money. Pecuniary damages may include: (i) medical attendance; (ii) loss of earning profit upto the date of trial; (iii) other material loss.
51. Non-pecuniary damages are such which are incapable of being assessed by arithmetical calculation. They may include; (i) damages for mental and physical shock, pain 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; (iii) 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.
Death
52. In the case of death, for the purpose of compensation claimant(s) must establish: (i) age of deceased; (b) income of deceased; and, (c) number of dependents. Thereupon Tribunal assesses loss of dependency by considering: (i) additions/deductions to be made for arriving at income; (ii) deductions to be made towards personal living expenses of deceased; and, (iii) multiplier to be applied with reference to the age of deceased.
53. For the time being, the multiplier which has to be applied has been settled by Court in Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation (supra) and the same reads as under:
Age Group Multiplier 15-20 - 18 21-25 - 18 26-30 - 17 31-35 - 16 36-40 - 15 41-45 - 14 46-50 - 13 51-55 - 11 56-60 - 9 61-65 - 7 Above 65 - 5
54. In the case of employed deceased, future prospects are also to be taken into consideration to determine loss of dependency. There are some authorities which provide that compensation under the head of future prospect can be allowed even to self employed persons. Presently this question is pending before a Larger Bench on a reference made in Shashikala and others vs. Gangalakshmamma and others, 2015(9) SCC 150. Besides, under following heads also due compensation needs to be awarded.
(i) Love and affection (to be considered separately for wife, children and parents)
(ii) Loss of estate
(iii) Loss of consortium
(iv) Funeral expenses
55. In case of death of a housewife, Courts have referred to certain additional heads which should be considered to assess pecuniary value of housewife. In Mehmet vs. Perry, (1977) 2 All ER 52, following heads were stated for grant of damages after assessing pecuniary value of a housewife's services:
"(a) Loss to the family of the wife's housekeeping services.
(b) Loss suffered by the children of the personal attention of their mother, apart from housekeeping services rendered by her.
(c) Loss of the wife's personal care and attention, which the husband had suffered, in addition to the loss of her housekeeping services."
56. This judgment has been referred to with approval in Arun Kumar Agrawal and another Vs. National Insurance Company Limited and others, 2010(9) SCC 218.
57. Besides above, there are two general heads which are applicable to all category of cases, namely, (i) litigation expenses and (ii) interest.
58. Tribunal has to consider quantum of compensation in the light of discussion made above considering the facts of the case and it is a statutory duty of Tribunal to determine a just compensation which must be allowed to claimant.
59. In R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and others, 1995(1) SCC 551 it was observed that process of determination of amount of compensation involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused but all aforesaid elements have to be viewed with objective standards. Process of determination involves a reasonable estimate and a justifiable guess work on the part of Tribunal. In the nature of claims involving fatal accident cases, what is required is determination of "what would have been" and not "what actually is". However, approach has to be pragmatic and sympathetic. Court is expected not only to take fortuitous circumstances and good possibilities of future, the advantages in favour of deceased as well as dependents but also the unexpected misfortunes that may happen. Taking all these aspects into account, a fair and justifiable conclusion, striking a fair balance, tranquilised with a sympathetic chord, but devoid of all emotionalism, sensationalism and melodramatic blood and thunder, has to be arrived at by Tribunal. These factors with some minor modification may apply in the case of permanent disability also.
60. Broadly it has been observed that in deciding, what damages should be awarded to a claimant, same should be tested on three principles, first, that the award should be moderate, just and fair and it should not be oppressive to respondent, second, award should not be punitive, exemplary and extravagant and third, as far as possible similar cases must be decided similarly so that community of public at large may not carry the grievance of discrimination.
61. The question of determination of compensation directly came up before Supreme Court in Raj Kumar Vs. Ajay Kumar and another, 2011(1) SCC 343. Therein, claimant sustained fracture of both bones of left leg and fracture of left radius in a motor accident on 01.10.1991. Tribunal awarded compensation under the heads of loss of future earning, pain and sufferings, loss of earning during period of treatment, medical expenses, conveyance and special diet. He was awarded total compensation of Rs. 94,700/- and 9% interest. His appeal for enhancement was rejected by Tribunal and ultimately went in appeal to Supreme Court. It observed that scheme of Act, 1988 shows that award must be "just", which means that compensation should, to the extent possible, fully and adequately restore 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. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. It 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. The heads under which compensation needs be awarded in "personal injury" cases are detailed in para 6 of the judgment in Raj Kumar Vs. Ajay Kumar (supra) and it reads as under:
"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-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 (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 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 expectation of life."
62. "Disability" refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. "Permanent disability" refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of period of treatment and recuperation, after achieving maximum bodily improvement or recovery which is likely to remain for remainder life of injured. Permanent disability can be either partial or total. "Partial permanent disability" refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. "Total permanent disability" refers to a person's inability to perform any avocation or employment related activities as a result of the accident.
63. The percentage of disability certified in medical terms has been considered and Courts have observed that percentage of disability in respect of a part of body does not mean the same percentage with respect to whole body and it may be different. Para 9 of judgment in Raj Kumar Vs. Ajay Kumar (supra) said as under:
"9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%." (emphasis added)
64. Court also castigated that Tribunals wrongly assume that percentage of permanent disability is same in terms of percentage of loss of future earning capacity. The two aspects are different. Relevant observations in para 10 of the judgment in Raj Kumar Vs. Ajay Kumar (supra) are reproduced as under:
"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation." (emphasis added)
65. Court also held that in some cases that where evidence and assessment shows that percentage of loss of earning capacity as a result of permanent disability is approximately the same as percentage of permanent disability then in such a situation, said percentage of permanent disability for determination of compensation may be adopted but it is not always. It is in this context Court further said that in order to determine, whether there is any permanent disability and if so the extent of such disability, a Tribunal should consider, and decide, with reference to evidence:
"(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person."
66. It was also observed that ascertainment of the effect of permanent disability on actual earning capacity involves three steps. First is to ascertain what activities claimant could carry on inspite of permanent disability and what he could not do as a result of permanent disability. The second is to ascertain claimant's avocation, profession and nature of work before accident, as also his age. The third step is to find out whether claimant is totally disabled from earning any kind of livelihood or despite permanent disability, claimant could still effectively carry on activities and functions, which he was earlier carrying on and whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
67. The role of Tribunal was elaborated by observing that it is not a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Tribunal does not function as a neutral umpire as in a civil suit. It is an active explorer and seeker of truth who is required to hold an enquiry into the claim for determining 'just compensation'. Tribunal should take an active role to ascertain the true and correct position so that it can assess 'just compensation'. Court also observed that when a doctor gives evidence about percentage of permanent disability, Tribunal must find out whether such percentage of disability is functional disability with reference to whole body or whether it is only with reference to a limb. In para 19 of the judgment in Raj Kumar Vs. Ajay Kumar (supra) Court summarized the principles in respect of "permanent disability" and assessment of compensation and in para 20 it gives certain illustrations in regard to assessment of loss of future earning. Same are reproduced as under:
"19. We may now summarize 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 percentage 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-claimant or who 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.
(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 of loss of future earnings is explained below with reference to the following illustrations:
Illustration 'A': The injured, a workman, was aged 30 years and earning Rs. 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/-
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: (5400x17) 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 is assessed at 60%. He was 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 Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:
a) Annual income before the accident Rs. 36,000/-
b) Loss of future earning per annum (75% of the prior annual income) Rs. 27,00/-
c) Multiplier applicable with reference to age 17
d) Loss of future earnings: (27,000x17) 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. 42,000/-
c) Multiplier applicable (25 years) 18
d) Loss of future earnings: (42,000x18) 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).
68. A three Judge Bench considered the question of "just compensation" in a case of permanent disability in Sanjay Verma Vs. Haryana Roadways, 2014(3) SCC 210. Court observed that besides determination of damages under the head "loss of income" and "medical expenses", Tribunal must also award compensation under the head "future treatment" and "pain and sufferings" and where there is requirement of an attendant, cost of attendant should also be included in award of compensation.
69. In Syed Sadiq and others Vs. Divisional Manager, United India Insurance Company Ltd., 2014(2) SCC 735, claimant sustained injuries in a road accident on 14.02.2008 to lower end of right femur and his right leg was amputed. Medical certificate, verified 24% disability to upper limb and 85% to lower limb. Claimant therein was a Vegetable Vendor. Tribunal allowed compensation treating disability of whole body at 30%, which was enhanced by High Court to 65%. Supreme Court said that a Vegetable Vendor might not require mobility to the extent that he sells vegetables at one place but the occupation of vegetable vending is not confined to selling vegetables from a particular location. It rather involves procuring vegetables from whole-sale market or farmers and then selling it in retail market. This often involves selling vegetables in cart which requires 100% mobility. Court said that even if it is presumed that vegetable vending by claimant involved selling vegetables from one place, claimant would require assistance with his mobility in bringing vegetables to market place which otherwise would be extremely difficult for him with an amputated leg. Court further observed that in manual labour cases, loss of limb is often equivalent to loss of livelihood. In that case Court upheld disability of 85% since claimant was capable to earn his livelihood once he is brought in market place.
70. In Rajan Vs. Soly Sebastian and another, 2015(10) SCC 506 claimant was a driver and in a road accident sustained injury causing blurred vision. Doctor certified body disability to the extent of 60%. High Court treated disability to the extent of 100% since it was not possible for claimant to earn his livelihood by working as driver and there was a total permanent disablement to the extent of 100% in respect of earning capacity. Supreme Court also upheld permanent disability with regard to earning capacity as 100%.
71. In Sanjay Kumar Vs. Ashok Kumar and another, 2014(5) SCC 330 claimant sustained injuries resulting in amputation of right thigh. As per Entry 18 in Part II of Schedule I of Act, 1923, loss of earning capacity was assessed as 70% and Tribunal determined compensation accordingly. Claimant was an Embroider, a skilled workman. Court upheld 70% disability and loss of earning capacity. One more aspect was added that claimant may need assistance in order to travel and move around, regular check-ups and will most likely use a crutch to walk, all of which will incur expenses. It is also a factor which is bound to cause loss of marriage prospects, which is a major loss, keeping in mind the young age of claimant. Thus under the head of loss of future prospect, Court awarded compensation separately at Rs. 75,000/-. It was also observed that amputation, i.e., loss of a limb causes a profusion of distress and claimant has to deal with same for rest of his life. He might have to deal with discrimination and stigma in society due to the fact that he is an amputee. Claimant, therefore, was also allowed compensation of Rs. 1,00,000/- towards loss of amenities. The injury has permanently disabled claimant, reducing his enjoyment of life and full pursuit of all activities he was engaged in, prior to accident.
72. In matter of death, of late, usual award of compensation under the heads "loss of life" and "loss of consortium" is to the extent of Rs. 100000/- under each head; and in respect of loss of love, it is for each category of legal representative, i.e., children behind wife. Under the head of "funeral expenses", 25,000/- is being awarded very frequently. Interest is being allowed at the rate of 9%. Some of the recent authorities in this regard are, Kanhsingh Vs. Tukaram, 2015(1) SCALE 366; Kalpanaraj and others Vs. Tamil Nadu State Transport Corporation, 2015(2) SCC 764; Asha Verman and others Vs. Maharaj Singh and others, 2015(4) SCALE 329; and, Jitendra Khimshanker Trivedi and others Vs. Kasam Daud Kumbhar and others, 2015(4) SCC 237.
73. Now, in the backdrop of statutory provisions as also the precedents discussed above, we now proceed to consider points for determination formulated above in detail.
74. Coming to question-(i), regarding non-examination of Drivers, we find that owner of Truck No. MH 15G 4212 was impleaded as defendant-2 and owner of vehicle Toyota Qualis bearing no. MH 04BN 1138 was impleaded as defendant-4 in the claim petition. Kaleem Babu was driving vehicle Toyota Qualis while Madhukar Ramchandra Vikram was driving tortfeasing Truck. Defendant-2 i.e. owner of Truck before Tribunal while admitting the factum of accident, causing injuries to passengers of Toyota Qualis, stated in paras - 3 and 5 of his written statement that accident took place due to negligence of Driver of Toyota Qualis and not that of Driver of Truck. Similarly, owner of Toyota Qualis in his written statement while admitting accident, pleaded in para-5 that Driver of Truck was negligent and rash in driving which caused accident and there was no negligence on the part of Driver of Toyota Qualis.
75. Insurer-1 in its written statement dated 28.08.2010 initially disputed the very factum of accident and the same stand was taken in additional written statement also. Insurer-2 also in written statement, initially disputed the very factum of accident and claimed that no such accident took place. In the additional written statement dated 13.03.2012 filed by Insurer-2, it reiterated its stand that no such accident took place as is evident from para-3 of additional written statement. There was no pleading at all either on the part of Insurer- 1 or Insurer-2 that accident had taken place not on account of rash and negligent driving of the Drivers but despite of all precautions, unfortunate incident has occurred.
76. Thus, with regard to the factum that there was rash and negligent driving by Drivers or not, no such plea was taken by Insurers- 1 and 2, both, either in their written statements or additional written statements.
77. On the contrary, owners of two tortfeasing vehicles admitted the factum of accident but pleaded that driving of vehicle was rash and negligent on the part of Driver of vehicle other than the one owned by each of them. Meaning thereby, owners of tortfeasing vehicles admitted that accident took place and also admitted that there was rash and negligent driving by Driver. The only difference is that Truck owner pleaded it to be on the part of Driver of Toyota Qualis while owner of Toyota Qualis pleaded it to be on the part of Driver of Truck. That being so, there was no onus on the part of claimant to show that accident has taken place due to rash and negligent driving since this fact, as it is, was not objected or otherwise pleaded by Insurers- 1 and 2 and owners of two tortfeasing vehicles admitted the factum of rash and negligent driving but levelled allegations against each other's Drivers. Thus, there was no initial burden on Claimant to prove the factum of rash and negligent driving and on the contrary, it was for the defendants i.e. owners of two tortfeasing vehicles to adduce evidence in support of their plea that rash and negligent driving was attributable to the Driver of another vehicle than the one owned by them which they failed. That being so, Tribunal has affixed liability upon both the vehicles and since both vehicles were insured with Insurers- 1 and 2, respectively, responsibility has been directed to be shared by both Insurance Companies.
78. In view of above pleadings and discussion, we are clearly of the view that non-examination of Drivers in the case in hand, could not have rendered claim for compensation by claimant not maintainable and for this reason alone, it cannot be said that judgment and award in question is erroneous in any manner. Question-(i), therefore, is answered against Insurers- 1 and 2 i.e. appellants- 1 and 2 in FAFOs- 1 and 3.
79. Now, we come to Questions- (ii) and (iii) which, in our view, can be dealt with together.
80. Certain provisions of Act, 1988 have conferred power upon State Government concerned to make Rules on the subjects stated under aforesaid provisions. Relevant provisions of Act, 1988, in this regard, we may refer in brief as hereunder:-
81. Section 28 confers power of making rules upon State Government for the purpose of carrying into effect provisions of Chapter II other than the matters specified in Section 27. Chapter II, contemplates provisions of licensing of drivers of motor vehicles. In sub-section (2) of Section 28 certain specific subjects are mentioned but the same are also in the context of licensing of connected matters therewith.
82. Similarly, Section 38 confers power upon State Government to make rules for the purpose of carrying into effect provisions of Chapter III. Sub-section (2) specifies certain subjects which also relates to matters concerned with Chapter III which deals with provisions of licensing of conductors of stage carriages.
83. Then comes Section 65 which confers similar power upon State Government for framing rules for carrying into effect the provisions of Chapter IV relating to registration of motor vehicles.
84. Next is Section 95 which confers power upon State Government to frame rules as to Stage Carriages and Contract Carriages and conduct of passengers in such vehicles. This Section 95 is part of Chapter V which contains provisions relating to control of transport vehicles.
85. Section 96 confers power upon State Government to frame rules for the purpose of carrying into effect, provisions of Chapter V.
86. Section 107 confers power to frame rule for carrying into effect the provisions of Chapter VI which deals with special provisions relating to State transport undertakings.
87. Section 111 confers power upon State Government to frame rules regulating construction, equipment and maintenance of motor vehicles and Trailers, with respect to all matters other than the matters specified in sub-section (1) of Section 110. This Section 111 is part of Chapter VII which contains provisions of construction, equipment and maintenance of motor vehicles.
88. Section 138 confers power to frame rules upon State Government for the purpose of carrying into effect the provisions of Chapter VIII which contains provisions relating to control of traffic.
89. Section 176 is the only relevant provision which takes into its ambit Sections 165 to 174 which are part of Chapter XII relating to Claims Tribunal. Section 176 reads as under:
"176. Power of State Government to make rules.--A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:--
(a) the form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such applications;
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;
(d) the form and the manner in which and the fees (if any) on payment of which an appeal may by preferred against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be, prescribed."
90. Lastly, it is Section 213 which is part of Chapter XIV, i.e., "Miscellaneous". Section 213 confers power upon State Government to establish a Motor Vehicles Department and appoint officers therefor as it thinks fit.
91. In exercise of powers under Sections 28, 38, 65, 95, 96, 107, 111, 138, 176, 213 of Act, 1988 read with Section 21 of General Clauses Act, 1897 (hereinafter referred to as "Act, 1897), Governor of Uttar Pradesh in supersession of all existing Rules on the subject, promulgated the Rules, 1998. Initially, only Rule 220 of Rules, 1998 was available on the statute book with reference to judgement and award of compensation and read as under:-
"220. Judgement and award of compensation - (1) The Claims Tribunal, in passing orders, shall record concisely in judgement the findings on each of the issues framed and the reasons for such finding and make an award, specifying the amount of compensation to be paid by the insurer or in the case of a vehicle exempted under sub-section (2) or (3) of Section 146 by the owner thereof and shall also specify the person or persons to whom compensation shall be payable.
(2) Where compensation is awarded to two or more persons under sub-rule (1) the Claims Tribunal shall also specify the amount payable to each of them.
(3) The Claims Tribunal may, while disposing of claims for compensation, make such orders regarding costs and expenses incurred in the proceeding as it thinks fit."
92. Subsequently, vide Amendment Rules, 2011 published in U.P. Gazette Extraordinary dated 26.09.2011, an amendment was made in Rules, 1998 and Rules 220A and 220B were inserted therein.
93. Admittedly, aforesaid Rules 220A and 220B, neither were in existence when accident took place i.e. 15.09.2009 nor when application for compensation under Section 166 of Act, 1988 was filed by Smt. Manju Shukla herself on 11.06.2010 nor on the date when she died on 06.06.2011 resulting in amendment of application and substitution of husband of deceased as claimant 1/1. Thus, it can be said that Rules 220A and 220B may not have been invoked by Tribunal while adjudicating claim in hand for the reason that there is nothing on record to show that Rules 220A and 220B were given any retrospective effect.
94. Even otherwise, we find that aforesaid Rules only recognize various Heads of damages/compensation which are to be considered for award of compensation by Tribunal and simultaneously it has also quantified amount under certain heads. Considering the aforesaid Rules, a Division Bench of this Court in National Insurance Company Limited Vs. Lavkush and Others 2017 (4) ALJ 391 and III (2018) ACC 319 (All.) has held that statutory obligation of determination of just compensation is that of Tribunal and it cannot be checked and controlled by way of subordinate legislation. This Court, therefore, has held that above Rules at best can be taken as guidelines with respect to award of compensation under different heads but cannot control the obligation of Tribunal to determine just compensation. The amount to be determined by Tribunal has to be considered by Tribunal independently without being hazed by any extraneous material or subordinate legislation and, therefore, Rule 220A cannot control determination of amount of compensation to be awarded by Tribunal. The relevant observations made by this Court in paras - 81, 85 and 86 of the judgement read as under:-
"81. In the light of aforesaid concept of determination of compensation which should be "just" and having been held, a statutory obligation of Tribunal, we find it difficult to accept that such statutory obligation of Tribunal can be restricted, checked or controlled by subordinate delegated legislation, by making a rule, specifying a particular amount and excluding scope of determination of "just compensation" under respective heads for which rule is framed."
"85. As we have already noted that under Section 176 of Act, 1988, power of framing rules in the context of Sections 165 to 174 has been conferred but subjects specified nowhere talks of fixation of amount towards compensation by way of rule, on the part of State Government. When Act contemplates and confers this power upon Tribunal, since compensation has to be determined by process of adjudication, it cannot be said that by fixing certain amount towards compensation under different heads by State Government by framing rule, it has exercised its power to carry out performance of relevant provisions of Act. On the contrary, it runs otherwise. Since there is no challenge to the rules in the case in hand, therefore, we find it appropriate to read Rule 220A, at the best, as a guideline, but ultimate adjudication/ determination has to be made by Tribunal, on the question of amount of compensation which is "just" and payable to claimant.
86. Section 168 confers power upon Tribunal to determine "just" compensation. We are of the view that State Government in exercise of rule framing power cannot control, and exclude scope of determination by Tribunal of "just compensation" under various heads. The attempt of rule making authority in controlling function of Tribunal making a rule, is beyond its competence and would render such Rules ultra vires of Section 168. Hence, in order to read rules in question in harmony, we have no option but to hold that Rule 220A of U.P. Rules, 1998 lays down only a guideline with respect to award of compensation under different heads but ultimate authority is that of Tribunal to determine and award appropriate compensation which is "just". (Emphasis added)
95. We, therefore, answer questions- (ii) and (iii) partly in favour of Insurers- 1 and 2, i.e. appellants of FAFOs- 1 and 3 to the extent that Tribunal ought not to have referred to Rules 220A and 220B in the present case for awarding compensation under any head and instead it ought to have guided itself by law already settled some of which has been referred and discussed above.
96. However, we make it clear that simply for the reason that deceased was a house-wife, it cannot be said that no compensation for future prospects could have been allowed. On this aspect, issue has now been settled by a Constitution Bench in National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680 wherein Court in para-59 has answered issues considered by it giving its conclusions as under:-
"59. In view of the aforesaid analysis, we proceed to record our conclusions:-
(59.1) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(59.2) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(59.3) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(59.4) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(59.5) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(59.6) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(59.7) The age of the deceased should be the basis for applying the multiplier.
(59.8) 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 aforesaid amounts should be enhanced at the rate of 10% in every three years." (Emphasis added)
97. In view of above judgement in Pranay Sethi and others (supra), an addition of 40 per cent of established income will have to be applied since the age of deceased was 26 years i.e. below 40 years at the time of death.
98. Now, we proceed to consider question-(iv). Tribunal has assessed notional income of deceased who was admittedly a house-wife at Rs. 150/- per day observing that she was an young lady, well-educated and belong to a good family. For assessing above income, he accepted the above contention advanced on behalf of claimant-appellant in FAFO-2 that even a labour, employed in employment scheme under Mahatma Gandhi National Rural Employment Guarantee Act earn wages of Rs. 150/- per day and, therefore, no income lower than that can be assessed in respect of deceased. Consequently, Tribunal has held monthly income of deceased as Rs.4,500/- and concurrently annual income of Rs.54,000/-. Thereafter, Tribunal has allowed a deduction of 1/3rd of the income towards personal expenses and that is how, the multiplicant has been computed to arrive at compensation as Rs. 6,48,000/-.
99. Learned counsel for Claimant-Appellant in FAFO-2 contended that notional income of deceased has been taken on much lower side but when pointed out, could not dispute, that it is the contention of claimant-appellant himself which has been accepted by Tribunal to determine income at Rs. 150/- per day. That being so, we find no reason to allow claimant-appellant to change his stand before this Court in appeal to claim higher notional income. As we have already noticed above, in case of death of a house-wife, in order to assess pecuniary value of services rendered by a house-wife, Court has upheld determination of pecuniary value after considering following aspects :-
(a) Loss to the family of wife's housekeeping services.
(b) Loss suffered by children of personal attention of their mother, apart from housekeeping services rendered by her.
(c) Loss of wife's personal care and attention suffered by husband in addition to loss of housekeeping services.
100. Here family consisted of a large number of members i.e. Sri Shiv Kumar Shukla (father-in-law), Smt. Shashikala Shukla (mother-in-law), Kumari Sudha Shukla (sister-in-law - nand) etc. All of them have suffered loss of household services as also love and affection and care in different capacities in the family i.e. daughter-in-law, sister-in-law, wife etc. In the claim petition, though claimant-appellant stated that pecuniary value of services rendered by Smt. Manju Shukla worth about Rs. 10,000/- per month but he did not render any evidence so as to prove the same but instead pleaded before Tribunal that pecuniary value/ notional income of deceased should not be less than Rs. 150/- per day and the same has been accepted by Tribunal. In that view of the matter, we find no reason to take a different view and we hold that notional income of deceased determined by Tribunal warrants no interference. Question-(iv) is, therefore, answered against claimant-appellant in FAFO-2.
101. Now, we come to question-(v). Tribunal has referred to various documents and oral deposition of various witnesses and thereafter has awarded Rs. 55,00,000/- towards expenses incurred by claimant on the treatment of deceased. Here, we find a few misreading on the part of Tribunal. Medical bill i.e. Paper No. Ga-82 is shown to be of Rs. 25,00,943/- but as a matter of fact, it is of only Rs. 25,943/-, therefore, about Rs. 24,75,000/- has been read excess in the said document and to this extent, finding of Tribunal is apparently perverse.
102. We, therefore, ourselves have examined the documents and prepared chart as aforesaid. Serial Nos. 10 to 13 (Paper Nos. GA-80 to GA-83) and 24 to 32 (Paper Nos. GA-95 to GA-99 and GA-135 to GA-138) refers to various payments made to hospitals, medical stores for purchase of medicines etc. and employment of nursing staff. Further, a close scrutiny of Paper Nos. GA-80 and GA-81 shows that GA-80 contains details of various expenses incurred in the treatment of deceased at Kokilaben Dhirubhai Ambani Hospital at Mumbai and it is for Rs. 19,25,483/- whereas GA-81 contains receipts of payment made to said Hospital, therefore, both cannot be taken together since amount of expenses shown in GA-80 are same as GA-81 which contains receipts of payment to those expenses. Therefore, GA-81 has also to be excluded. It leaves only following documents of expenses towards medical treatment:-
S.No. Paper No. No. of Bills/ Vouchers Expenses towards Amount in Rs.
1.
GA-80 102 Hospital: Kokilaben Dhirubhai Ambani Rs. 19,25,483.00/-
2. GA-82 4 Bina Nurses Bureau Rs. 25,943.00/-
3. GA-83 3 Medicines Rs. 4,785.00/-
4. GA-95 90 Medicine at Sri Ram Medical Store Rs. 67,422.00/-
5. GA-96 10 Medicine at Sri Ram Medical Store Rs. 4,848.00/-
6. GA-97 8 Agrawal Surgical Emporium Rs. 17,449.00/-
7. GA-98 20 Gaurav Nursing Home Rs. 3,87,050.00/-
8. GA-99 2 Surgery and Pathology Rs. 3,850.00/-
9. GA-135 6 Bed Charge of Gaurav Nursing Home Rs. 1,75,800.00/-
10. GA-136 6 X-Ray and Pathology of Gaurav Nursing Home Rs. 13,350.00/-
11. GA-137 14 Medicine at Sri Ram Medical Store Rs. 6,727.00/-
12. GA-138 5 Agrawal Surgical Emporium Rs. 6,257.00/-
Total Rs. 26,38,964.00/-
Total : Twenty Six Lakh Thirty Eight Thousand Nine Hundred Sixty Four only
103. Learned counsel for Insurers contended that only the amount which have actually been incurred towards medical treatment, as above, could have been allowed by Tribunal and that is only Rs. 26,38,964/-. Hence, award of compensation of Rs. 55,00,000/- towards expenses incurred on the treatment of deceased by Tribunal is patently erroneous. We find it difficult to accept above submission. Whenever there is a permanent disability, it has been held that pecuniary damages may include (i) medical attendance; (ii) loss of earning profit upto the date of trial; (iii) other material loss.
104. Courts have also held that non-pecuniary damages may also include: (i) damages for mental and physical shock, pain 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; (iii) damages for the loss of expectation of life, (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life etc.
105. Facts of the case, which have been considered by Tribunal and not disputed before us, if summarized, show that claimant, deceased and other family members started their journey from Mumbai to Shirdi, travelling in tortfeasing vehicle Toyota Qualis on 15.09.2009 at 07:00 AM. Due to cruel hands of destiny, they met with ill-fated vehicle which collided with a Truck causing injuries to passengers in vehicle Toyota Qualis. Deceased suffered serious injuries and went in Coma-II stage. She was immediately admitted in Tambe Hospital at Sangamner, Maharashtra where she remained admitted from 15.09.2009 to 08.10.2009. She underwent various medical examinations including CT Scan etc. Her condition deteriorated at Tambe Hospital, Sangamner and, therefore, she was referred to Kokilaben Dhirubhai Ambani Hospital. She was taken by ambulance to Hospital at Mumbai where she was admitted on 08.10.2009 and remained there for about seven and a half months i.e. 20.05.2010. Total expenses incurred at Kokilaben Dhirubhai Ambani Hospital, Mumbai are Rs. 19,25,483/-. Since deceased was in Coma on the date of accident itself, she could not have undertaken her care, therefore, she had to be looked after by qualified nurses. Her family members were also supposed to be present for general medical care and arranging treatment. For this purpose, bills of Bina Nurses Bureau, Mumbai (Paper No. GA-82) was produced and claimant also produced various bills of Hospital where he and his family members during the period of treatment of deceased at Sangamner as also Mumbai, incurred expenses towards fooding, lodging, travelling etc. On 20.05.2010, deceased while lying in Coma-II stage was discharged and it is quite common that family members could not be expected to take care of deceased at a distant place from their parental residence i.e. Ballia for a very long time. Therefore, they brought her to Ballia and got admitted at Gaurav Nursing Home, Tikampur under the treatment of Dr. D. Rai. In the aforesaid local Hospital, she remained admitted for almost more than an year and 15 days and died on 06.06.2011. Pecuniary damages in such case of fatal injuries and disability are inclusive and cover all the expenses which have been incurred not only in actual medical treatment i.e. Doctor fee, Hospital fee, testing fee, medicines cost etc. but also expenses incurred for hiring nursing services, expenses incurred by persons present to take care of the injured for the entire period. It will also include boarding, lodging and travelling expenses, if any, by persons taking care of injured in the Hospital and also the expenses incurred during shifting of injured from one place to another. Such expenses cannot be excluded from the total amount of compensation to be awarded to claimant. Therefore, expenses proved by claimant through documents i.e. Paper Nos. GA-75, GA-78, GA-84 and GA-86 to GA-94 cannot be excluded from the amount of compensation and Tribunal having allowed the same, in our view, has proceeded rightly. The total amount proved by aforesaid documents, as expenses incurred by claimant-appellant comes to Rs. 49,46,601.57/-.
106. Therefore, we answer question-(v) holding that under the head of medical expenses, treatment, medical care etc., Tribunal erred in awarding Rs. 55,00,000/- and the same should have been Rs.49,46,602/- (round off).
107. Now, we come to question- (vi). This issue involves three aspects:-
(a) Loss of employment by claimant for getting involved/ engaged in the care and treatment of his wife who remained in Coma-II stage for almost 21 months.
(b) Loss of foetus due to termination of pregnancy in accident.
(c) Pain, shock, disability etc., suffered by deceased during the period, she was in Coma-II stage for about 21 months.
108. Evidence has come on record that claimant Arvind Kumar Shukla was appointed as Business Development Manager in Tata AIG Life Insurance Company Limited, Mumbai vide appointment letter dated 17.09.2008 on a monthly salary of Rs. 25,833/-. Within one year of appointment, the ill-fated accident took place on 15.09.2009 whereafter claimant got engaged in the treatment and care of his wife who was under Coma-II stage and lost his job. It is evident from record and evidence that Smt. Manju Shukla having gone under Coma-II stage on the date and time of accident itself, did not come out of it and in that condition she died on 06.06.2011. Statement of PW-2 Kedar Chaudhary proves that she was brought from Mumbai to Ballia when she was in Coma-II stage. He was also travelling in tortfeasing vehicle Toyota Qualis and an eyewitness to the accident. He has stated that it was a head-on collision between two vehicles.
109. The loss of job of claimant is directly attributable to the accident in question. Fatal injuries suffered by deceased and her continuous treatment ran for about 21 months. In our view, above loss was liable to be taken into consideration for awarding just compensation to claimant since it was directly attributable to the accident in question and injuries suffered by deceased. Claimant has stated that he was capable of saving about Rs. 15,000/- per month. If some margin is allowed to be discounted, at least loss of saving of Rs. 10,000/- per month can be awarded. Thus, in our view, Rs. 2,10,000/-, in lump sum, should have been awarded to claimant for loss of employment.
110. The second aspect is termination of pregnancy. Appellant-PW-1 and Sudha Shukla-PW-3 have stated that deceased was pregnant at the time of accident. Nothing has been brought to our notice from the statement of above witnesses to dislodge the truth of above statement of said witnesses who being family members could have such information and their evidence is quite natural on this aspect. Tribunal has followed the judgement of Delhi High Court in Prakash and Others vs. Arun Kumar Saini and Another 2010 (3) TAC 114 whereby a lump sum of Rs. 2,50,000/- was awarded for termination of foetus in accident. We find no reason to defer from above view and, therefore, uphold the award of Rs. 2,50,000/- on this aspect.
111. Then we come to third aspect i.e. pain, shock etc., suffered by deceased during the period of 21 months when she remained in Coma. Under this head, Tribunal has awarded a lump sum amount of Rs. 5,00,000/-. In our view, this amount is much inadequate and unjust. A young lady, not only suffered pain, mental shock etc., but lost unborn child, went under trauma, remaining in Coma for about 21 months. Her condition was such that Doctors declared her 100 per cent disabled during the above period of 21 months. What she suffered, may not be weighed very accurately in terms of money, still we are of the view that sufferings had continued for almost 21 months i.e. one year and nine months. Thus, the head of mental shock, pain etc., a sum of Rs. 10,00,000/- would have been appropriate to be awarded and we order accordingly. Question-(vi) is, therefore, answered by holding that for loss of job, a sum of Rs. 2,10,000/-; for loss of pregnancy Rs. 2,50,000/- as awarded by Tribunal and for pain and shock etc. a sum of Rs. 10,00,000/- deserves to be awarded.
112. Then, we come to question-(vii). Here, we do not find much difficulty in answering the same for the reason that a Constitution Bench in National Insurance Company Limited vs. Pranay Sethi (supra) has directed that reasonable amount on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should have been awarded. Court itself has awarded Rs. 40,000/-, Rs. 15,000/- and Rs. 15,000/-, respectively under the aforesaid heads.
113. Further in Malarvizhi and Others Vs. United India Insurance Company Limited and Another (Civil Appeal No. 9196-97 of 2019 @ SLP (C) Nos. 9630-31 of 2019) decided on 09.12.2019, Court has awarded under the head of loss of love and affection Rs. 50,000/-.
114. In view of above, we hold that claimant-appellant of FAFO-2 is entitled for compensation in the heads of loss of dependency Rs.6,48,000/-; future prospects Rs.2,59,200/-; medical expenses of medical care and medical attendants etc. Rs.49,46,602/-; loss of profit (loss of employment), termination of pregnancy and mental pain, shock etc. Rs.14,60,000/- and loss of love and affection Rs.1,20,000/-. Total comes to Rs.74,33,802/-. and it is accordingly awarded.
115. Judgment and award dated 29.09.2014 passed by Tribunal is accordingly modified to the above extent and in respect of all other aspects, it is confirmed.
116. All the three appeals are accordingly partly allowed.
117. In view of divided success, cost is made easy.
Order Date :- 16.01.2020 Siddhant Sahu