Gujarat High Court
New India Assurance Co. Ltd. And Ors. vs Josnaben @ Jashuben Vallabhbhai And ... on 27 March, 2008
Author: D.H. Waghela
Bench: D.H. Waghela
JUDGMENT D.H. Waghela, J.
1. These groups of appeals under Section 173 of the Motor Vehicles Act, 1988 ("the Act", for short) are preferred from the common judgment and award dated 16.09.2004 of Motor Accident Claims Tribunal (Aux.), Surendranagar in total 33 claim petitions. Basic facts of the cases are that, on 13.9.1996 at about 4.00 a.m., all the injured claimants and three deceased victims of the accident were returning from their pilgrimage in the luxury bus No. GJ-3T-9475 which dashed against the truck No. MIU 8331 coming from opposite direction. An ambassador car bearing No. GJM 7065 also dashed with the luxury bus from behind at that time. The insurance companies concerned were Oriental Insurance Co. Ltd., New India Assurance Co. Ltd. and National Insurance Co. Ltd. in relation to the bus, truck and car respectively. Since the insurance companies insuring the bus and the truck have filed appeals in various claim petitions and joined the original claimants and the other insurers as party-respondent, they are referred hereinafter by the name of the insurance company and the claimants are addressed as such. The Oriental Insurance Co. Ltd. has been aggrieved by apportionment of 70% of the liability for payment of compensation and the New India Assurance Co. Ltd. has preferred appeals to dispute even 30% of the liability apportioned to it as also to challenge the quantum of compensation awarded to the claimants in each of the appeals.
2. Arguing the appeals on behalf of Oriental Insurance Co. Ltd., learned Counsel Ms.Megha Jani, appearing with Ms.Anushree Kapadia, submitted that the Tribunal had, in the impugned award, clearly recorded the finding that the accident was a case of composite negligence and relied upon FIR at Exh.72 and Panchnama at Exh.73 for arriving at that conclusion. However, only on the ground that the bus was stated to have been damaged approximately to the extent of Rs. 1,35,000/- and the offending truck was assessed to have been damaged to the extent of Rs. 55,000/-, negligence on the part of the driver of the luxury bus was assessed to be 70% and the driver of the truck was assessed to be responsible to the extent of 30%. It was submitted that the basis for fixing responsibility of the drivers of both the vehicles and consequently fixing the financial liability of paying compensation by the insurance companies also on that basis was irrational and arbitrary. Learned Counsel Ms.Jani relied upon decision of Division Bench of this Court in Gujarat State Road Transport Corporation v. Gurunath Shahu 1989 ACJ 394 as quoted in Amarsi Jugabhai Driver v. Vijyaben Hemantlal Dhulia 1996 (3) GLR 8493. It was observed in the latter judgment that it would always be better to sue all joint tort-feasors in one proceeding. It would not only enable the Tribunal to apportion negligence between the joint tort-feasors, but would also facilitate the task of claimants in recovering the amount of compensation awarded and in appropriate cases directions can always be issued by the Tribunal to joint tort-feasors to share the liability of paying compensation in proportion to negligence established on the record of the case. Recent judgment of Allahabad High Court in U.P.State Road Transport Corporation v. Rajani and Ors. 2007 ACJ 1771 was relied upon for the proposition that while directing payment of compensation to the victims or legal representatives of deceased of motor accident arising out of composite negligence of two motor vehicles, it was duty of the Claims Tribunal to apportion and specify the respective liability of owners or drivers or insurers of vehicles involved in the accident to the extent of damage contributed by them provided they were impleaded and heard by the Claims Tribunal. It was, however, also observed in para 32 of the judgment that there can be no scope for doubt to hold that when an accident takes place on account of composite negligence of two or more motor vehicles, the claimant was entitled to proceed against all or any of the joint tort-feasors for full compensation for the injuries suffered or death caused as the liability of joint tort-feasors was joint and several.... In a case where all the joint tort-feasors have been brought on record, it is needless to say that Tribunal is under statutory duty to specify the amount which shall be paid by driver or owner or insurer of the vehicles involved in the accident. It was also pointed out from recent judgment of the Supreme Court in Bijoy Kumar Dugar v. Bidyadhar Dutta and Ors. that when vehicles had a head-on collision, drivers of both the vehicles should be held responsible for having contributed equally to the accident.
3. Learned Counsel Ms.Bhaya, appearing for New India Assurance Co. Ltd., insurer of the truck, submitted that, in the facts of the present case, driver of the bus was entirely responsible for the accident insofar as greater damage was suffered by the bus and no brake-marks were seen at the time of making of the panchnama. Learned Counsel relied upon the panchnama at Exh.73 to submit that, immediately after registration of offence, the bus was found to have been extensively damaged on its right- hand-side and the truck was lying on its side on the left-hand-side of the road after such impact that its front wheels and axle were detached from the body.
4. It could be seen from plain reading of language of Section 168 of the Act that the Claims Tribunal was required to hold an inquiry into the claims and make an award determining the amount of compensation which appears to it to be just and also specify the person or persons to whom compensation shall be paid and, in making the award, it has to specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Thus, where more than one party is held responsible for paying compensation, it is necessary that the Tribunal specifies the amount required to be paid by each party. However, it is also well-settled that, in case of composite negligence, the liability is normally not apportioned as both the wrong doers are held jointly and severally liable for the loss. It is recently held by Division Bench of this Court in Kusumben Vipinchandra Shah v. Arvindbhai Narmadashankar Raval that, as held in Gujarat State Road Transport Corporation v. Gurunath Shahu (supra), the finding given by the Tribunal in such a case regarding apportionment of liability would be tentative for the purpose of subsequent proceeding which might be filed by the defendant tort-feasor against the other joint tort-feasor who was not a party to the first proceeding. But such tentativeness for the purpose of contribution between two joint tort-feasors did not at all affect the right of the plaintiff-claimant to recover full damages from the defendant tort-feasor against whom the first proceeding was filed.
5. Unfortunately, in the facts of the present case, no evidence whatsoever is led on behalf of the defendants before the Tribunal, none of the drivers of any of the vehicles involved in the accident entered the box and the Tribunal was left with no alternative but to rely only upon the complaint Exh.72 lodged by one of the passengers of the bus and the panchnama Exh.73 which hardly threw any light even on the distance at which both the vehicles were found from their respective correct side of the road. In such circumstances, there is no escape from the conclusion that the accident was attributable to the drivers of both vehicles and it was a case of composite negligence. It could also not be gainsaid that assessing the proportion of negligence on the part of driver of either of the vehicles on the basis of the extent of damage suffered by the vehicle was obviously illogical. Under such circumstances, the Tribunal ought to have held the drivers and consequently the insurance companies of both the vehicles to be jointly and severally liable for payment of compensation. As for apportionment of liability inter se between two insurance companies, in absence of any clear evidence or indication of liability of one driver being greater than the other, both the insurance companies were required to contribute equally the amounts of compensation due to the claimants, even as the claimants would have liberty to recover the full amount of compensation from either of the insurance companies. The submission that driver of the car which dashed with the bus from behind could also be held partly responsible for damage and the compensation was wholly devoid of any basis or substance. Therefore, the appeals preferred by the Oriental Insurance Company are required to be partly allowed.
6. Even as the Oriental Insurance Co. Ltd. is, by the impugned award, held to be liable for paying 70% of the amounts of compensation, it has not challenged the quantum of compensation in any of its appeals. But quantum of compensation has been the bone of contention between New India Assurance Co. Ltd. and the claimants. Learned Counsel Ms.Bhaya, appearing for the insurer of the truck, vehemently argued that, in each of the claim petitions from which the appeals were preferred, the amount of compensation was on the higher side and required to be substantially reduced in the interest of justice. The quantum of compensation was defended by learned Counsel Ms.Amrita Ajmera, appearing for the claimants in each appeal. The rival contentions in each claim petition are discussed hereunder with reference to the number of each appeal.
7. However, it was generally submitted on behalf of the appellant-insurance company that in all the claim petitions made under the provisions of Section 166 of the Act, multiplier higher than the ones prescribed under Section 163-A and the Second Schedule of the Act could not have been applied; and, in absence of cogent and proper evidence of income of the deceased or injured victims of the accident, the Tribunal ought not to have assessed monthly income at higher rates. It was also submitted that assessment of higher income and higher prospective income without any evidence in that regard multiplied by higher multiplier had resulted in each case into award of unreasonable amounts of compensation which were required to be reduced. It was conceded that each appeal was restricted to challenging only a part of the award.
8. Learned Counsel Ms.Bhaya relied upon recent Division Bench decision dated 30.11.2006 of this Court in First Appeal No. 1069 of 2006 wherein it is held that compensation under the head of conventional amount for loss of expectation of life falling under the broader head of loss to the estate should be Rs. 25,000/- and the compensation to the surviving spouse under the head of conventional amount for loss of consortium should be Rs. 15,000/-.
8.1 Decision of the Supreme Court in T.N. State Transport Corporation Ltd. v. S.Rajapriya and Ors. was relied upon to show that in case of the victim aged 38 years and receiving salary of Rs. 56,208/- per annum, multiplier was reduced from 16 to 12 by the Supreme Court. Division Bench judgment of this Court in United India Insurance Co. Ltd. v. Virambhai Ranchhodbhai Patel and Ors. was relied upon to submit that value of the services rendered by the deceased wife to the family was put by the Tribunal at Rs. 2,250/- and it was upheld by this Court. A recent decision of the Supreme Court in United India Insurance Co. Ltd. v. Jashuben decided on 14.02.2008 was relied upon for the propositions as under:
16...In Black's Law Dictionary, "compensation" is shown as equivalent in money for a loss sustained; or giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; or recompense in value for some loss, injury or service especially when it is given by statute. It means when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value....
25. We, therefore, are of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and, thus, the approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002.
It may be noted here that, in the aforesaid case, Division Bench of this Court had taken into consideration revision of pay effective from 1.1.1997 while the accident had taken place on 23.6.1994.
8.2 Learned Counsel thus sought reduction of the amount of compensation awarded in each case mainly on the grounds of it being excessive, unsupported by positive evidence of income or prospective income; higher multiplier having been applied and less than one-third of income of the deceased having been deducted towards his own expenditure.
9. As against that, learned Counsel Ms.Amrita Ajmera, appearing for the claimants, generally submitted that, in each of the claim cases, the Tribunal had relied upon deposition of the claimants who were subjected to cross-examination by the appellant and, in absence of documentary evidence of income, the amounts of income were suitably reduced. It was submitted that in case of labourers and artisans, housewives or agriculturists, the survivors may not always be in a position to produce documentary evidence of income of the deceased, but the undisputed fact of the deceased being a bread-winner maintaining a large family should be the basis of presuming income at the minimum rates prevailing in the market for such unskilled or semi-skilled laborers. She also submitted that in case of people belonging to lower strata of society with low level of literacy and income, it would be wholly unrealistic to presume in every case that one-third income of the deceased would have been spent by the deceased on himself while the other members of a large family might be suffering deprivation of even basic amenities of life.
9.1 Learned Counsel relied upon judgment of the Supreme Court in Lata Wadhwa v. State of Bihar , as quoted in Division Bench judgment of this Court in New India Assurance Co. Ltd. v. Babubhai Dipubhai Chauhan , wherein it is also observed:
Apart from earning by the deceased, role of the housewife in running a house is not that of rendering services as a slave. Her contribution to keep family together, providing household services besides matrimonial duties cannot be treated lightly. It has got nothing to do with the earning capacity of the husband which is an addition to what is taken care of by the housewife. No matter what the status of the family may be, contribution of the housewife towards household may be treated to be at minimum Rs. 3,000/- p.m. 9.2 Judgment of the Apex Court in Supe Dei v. National Insurance Co. Ltd. 1 (2005) ACC 63 (SC) was relied upon for the following observations:
8. While considering the question of just compensation payable in a case all relevant factors including the appropriate multiplier are to be kept in mind. The position is well settled that the Second Schedule under Section 163-A to the Act which gives the amount of compensation to be determined for the purpose of claim under the section can be taken as a guideline while determining the compensation under Section 166 of the Act....
The following observations were pointed out from recent judgment of the Supreme Court in A.P.S.R.T.C. v. M. Pentaiah Chary
14. We do not, however, intend to lay down a general law. We wish to point out that minimum compensation payable in a case of this nature should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier specified in the Second Schedule cannot and should not be altered but therefor there must exist strong circumstances. In the year 1995, the rate of interest was lower than the rate of interest taken into consideration in Susamma Thomas (supra). Application of multiplicative factor should also be considered from that angle.
Susamma Thomas (supra) or the other decisions relied upon by the learned Counsel do not lay down any law in absolute terms.
9.3 Division Bench of this Court in Ritaben alias Vanitaben v. Ahmedabad Municipal Transport Service 1998 (2) GLH 670 was relied upon for the following propositions laid down therein:
9. It is a settled proposition of law that with a view to award a just and reasonable amount of compensation in a case of fatal injury, it is incumbent upon the Tribunal to consider as to what was the income at the relevant time of the accident and what would have been or probable prospective earnings in the later years of the life. The amount of income prevalent at the relevant time, in absence of any other evidence, is required to be doubled and then divided by half so as to reflect the prospective average income for the purpose of determining the datum figure....
9.4 It was pointed out from the decision in Rakhiya v. Rajendra Singh that, in case of an illiterate rural rustic lady, who was confused during cross-examination, the Madhya Pradesh High Court had observed that, even if the evidence about earning of the deceased was not satisfactory, the Tribunal out to have directed the owner to produce wage record of the deceased. The Court had also taken into account the minimum wages of an unskilled labourer for determining the multiplicand in that case. Recently, in a Division Bench decision dated 31.1.2007 of this Court in First Appeal No. 1254 of 2006 etc., it was observed as under:
19. Coming to the question of awarding compensation, we find that the Tribunal erred in accepting the income of the claimant at Rs. 1200/- per month. There is no dispute that the claimant was working as a Cleaner in the Mini truck on the date of accident. His assertion therefore, that he was being paid a monthly salary of Rs. 1500/- was imminently believable. The Tribunal therefore, ought to have worked out compensation on basis of such income of the claimant. With passage of time and with falling purchasing power of money and general increase in salaries, it would not be unreasonable to accept the average income of the claimant at one and half times that much or Rs. 2150/- per month for the rest of his working span.
9.5 In Gujarat State Road Transport Corporation v. Heirs of deceased Mer Ranmal Bhima 1996 (2) GLH 938, Division Bench of this Court had observed that, when one member of the family departs from this world, the other members in a middle class family would have to spend almost the same amount on overheads like rent and taxes for the house or taxes and other expenses on the house when owned by the family. Looking to the amount which is ordinarily required to be spent on education and upbringing of minor children these days, it cannot now be said that only one unit should be taken for a minor child.
9.6 The following paragraphs from Division Bench judgment of this Court [Coram: P.D.Desai, J. (as His Lordship then was) and M.K.Shah, J.) in Babu Mansa v. Ahmedabad Municipal Corporation 1978 ACJ 485 were referred in support of the award:
28. It is well settled that a person injured by another's wrong is entitled to general damages for non-pecuniary loss such as his pain and suffering, past and future, and his loss of amenity and enjoyment of life. Damages are also recoverable for loss of expectation of life. Damages awarded for pain and suffering and loss of amenities constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the court in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject of large variations in individual cases (see Halsbury's Laws of England; Volume 12, Paragraphs 1146 and 1147 at pages 446 and 447). In the foot-note, the learned authors have pointed out that the age of the injured person may make a considerable difference because, for example, an old lady with a broken and deformed leg will have fewer years to suffer than a young woman with a similar injury. As regards continuing reassessment of awards for non-pecuniary loss, the learned authors have given in the foot-note a comparative assessment of various awards made by the Courts in England for the loss of sight in one eye as an illustration. The pattern, according to the learned authors, has been as follows:
Pound 1500 - 1960 " 2000 - 1961 Between " 2000 - 1965 & 3000 " 3500 - 1971 " 4000 - 1974 to 4500 This analysis shows that the Courts in England have raised the awards in such cases under the head of non-pecuniary loss almost three times within a period of 14 years. This consideration has to be borne in mind even by the Courts in our country while assessing damages, for, as observed by Lawton L.J. in Cunningham v. Harrison 1974 ACJ 218, "conventions, however, change and if judges do not adjust their awards to changing conditions and rising standards of living their assessments of damages will have even less contact with reality than they have had in the recent past or at the present time.
29. ...
30. We cannot conclude the discussion on this subject without referring to the data relating to the fall in the value of money in our country so that the need of periodical reassessment of damages at certain key points is highlighted and the requirement of adjusting awards to changing conditions is realised. The consumer price index numbers for industrial workers -all India General Index- discloses the following state of affairs:
(Base: 1960-100) Month/Year General Index (Annual Average) 1961 104 1965 137 1970 184 1975 321 1976 296 1977 321 January 1978 325 This table illustrates the fall in purchasing power of rupee and, hopefully may be, rising standards of living. From 1961 to 1977 the annual average has almost tripled. Under these circumstances, if we still continue to be governed by the conventional figure adopted in pre-1960 awards, the current awards will have lost contact with reality. The conventional principle providing a broad guideline for the bracket of damages into which a particular injury, having regard to its comparative severity, will fall thus requires to be up-to-dated.
The Apex Court judgment in Nagappa v. Gurudayal Singh and Ors. 2003 (1) GLH 225 was relied upon for the observations made in para 27 thereof which read as under:
27. The dates of accident resulting in similar injuries have great relevance. For example, if a particular conventional sum of (say) Rs. 10,000/- was awarded towards the non-pecuniary damages of loss of expectation of life, loss of amenities and pain and suffering - all put together- in a case of amputation of a leg consequent to an accident in 1970, the award to be made for an identical loss today would have to be upgraded from the 1970 value to its value in 1987, having regard to the erosion of the value of the rupee. This can be done by comparing the cost of living index in 1970 with that in 1987. Charlesworth on Negligence, 6th Edn. 1977, para 14, says, the 'conventional figures' must keep 'pace with the time in which we live'. He says that this can be well illustrated by considering the class of injury resulting (say) in the loss of sight in one eye and the conventional sum lay around 2000 pounds about a quarter of a century ago but today in 1977 it will probably exceed 5000 pounds or it ought to do. Kemp & Kemp on Damages, 1982, Chapter 7, para 7001, say: If a court is seeking to make a comparison with some earlier award (for non-pecuniary losses) and if by the date of the comparison, the currency in which the earlier award was made has declined by, say, 50 per cent, one must surely double the earlier award in order to make a valid comparison. The authors have compiled two tables (at paras 7007 and 7008), one showing the current level of general damages for 'pain and suffering' and 'loss of amenities' in cases of severe injury and the other showing similar earlier years, and have compared whether courts are or are not keeping pace with inflation. The authors ask, why tort-feasors alone, as a class should be excused from paying the value-based price? In Walker v. Johan McLean and Sons Ltd. 1980 ACJ 429 (CA, England), the court found that while the value of the pound fell by 50% between 1957 and 1972 (over a period of 15 years), there was a steeper fall between 1973 to 1978 (within 5 years) when it again fell by 50% (vide Kemp & Kemp's Tables). 'Conventional' figures, if they do not keep pace with inflation, might indeed become 'contemptible'. Kemp & Kemp point out that an award of 16000 pounds in 1879 would be about 500,000 pounds in 1982. After Walker's case (supra), courts in England are carefully adjusting awards for 'pain and suffering' and 'loss of amenities' to keep pace with inflation.
It was pointed out from the judgment in Popatlal Parshottamdas Shah v. Gujarat State Road Transport Corporation, Ahmedabad 1982 (1) GLR 765 that, even quarter of a century ago, high and higher amounts were awarded for pain, shock and suffering and loss of amenities and enjoyment of life. The Division Bench had concluded in that case that awards had varied from Rs. 15,000/- for a single fracture in the right leg coupled with other injuries to Rs. 35,000/- for amputation of both legs above the knee. It was further observed in para 52 that the age of the injured person would necessarily make a considerable difference because the claimant would have lived with post-accident disability for a number of years and it also cannot be overlooked that the claimant would have suffered pain and inconvenience for a prolonged period and undergone extensive medical treatment including several operations.
In the above context, learned Counsel Ms.Ajmera pointed out from the official figures of Consumer Price Index that, while it was around 475 in the year 1982, it had almost quadrupled by the end of 1996 and reached to 1646. It was also argued on the basis of the statistics published by Labour Bureau of Government of India that average of Indian Consumer Price Index (General) for industrial workers (base 1960 = 100) had reached 2534 by the end of the year 2004 after applying the linking factors to the new index of 1982 series. Currently, the index has reached the figure of 3059 (new series, base 2001=100) in January 2008 after applying the official linking factor. The official rate of inflation in consumer price index numbers for industrial workers (base 1982 = 100) has been ranging from 2% to 10%. In the chart of point to point rate of inflation, highest rate of inflation appears to have been registered in July to December, 1998 when it went upto 19.7% in November, 1998.
9.7 Decision of Delhi High Court in Kamla Devi v. Government of NCT of Delhi was relied upon for the following proposition:
17. ...The whole idea behind the quantification of the conventional sum being that its real value should not get eroded through time due to inflation. Thus,a sum of Rs. 50,000 in 1989 may be just and fair but the same sum of Rs. 50,000 in the year 1996 would be worth much less in real terms because of inflation in the intervening years. Thus, if the figure for the conventional sum has to be worked out for 1996, the base figure of Rs. 50,000 as on 1989 has to be enhanced by factoring in the inflation and consequent decline in the real value of the rupee in the intervening years. A good index to work with is the Consumer Price Index for Industrial Workers [CPI (IW)] (Source: Labour Bureau, Government of India). With the base year 1982 (=100), the average CPI (IW) for the year 1989 was 171 and for 1996 it was 3343. Hence, the inflation-corrected value of Rs. 50,000 in 1989 would work out to Rs. 97,660.829 in 1996, which can be rounded off to Rs. 97,700. So in this case, the conventional sum for non-pecuniary loss would be Rs. 97,700.
In the above context, learned Counsel Ms.Ajmera also submitted that, even while making provisions for payment of compensation on structured formula basis, in Section 163-A by its addition by amendment of 1994, the legislature has taken care by inserting Sub-section (3) empowering the Central Government to amend the Second Schedule keeping in view the cost of living from time to time.
Lord Diplock, giving unanimous opinion of the House of Lords in Wright v. British Railways Board (1983) 2 AC 773, (as reproduced in Damages For Personal Injuries And Death by John Munkman, Eighth Edition, at pages 189 and 190) observed:
...It is an important function of the Court of Appeal to lay down guidelines both as to the quantum of damages appropriate to compensate for various types of commonly occurring injuries and as to the rates of interest...such guidelines...should be simple and easy to apply though broad enough to permit allowances to be made for special features of individual cases which make the deprivation to the particular plaintiff...greater or less than the general run of cases involving injuries of the same kind. Guidelines laid down by the appellate court are addressed directly to judges who try personal injury actions; but confidence that trial judges will apply them means that all those who are engaged in settling out of the court the many thousands of claims that never reach the state of litigation...or...do not proceed as far as trial will know very broadly speaking what the claim is likely to be worth....
A guideline as to quantum of conventional damages...is not a rule of law nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change.... But, though guidelines should be altered if circumstances relevant...change, too frequent alteration deprives them of their usefulness in providing a reasonable degree of predictability...and so facilitating settlement of claims without going to trial.
As regards assessment of damages for non-economic loss in personal injury cases, the Court of Appeal creates the guidelines as to the appropriate conventional figure by increasing or reducing awards...by judges...for various common kinds of injuries. Thus, so-called 'brackets' are established, broad enough to make allowance for circumstances which make the deprivation suffered by the individual plaintiff...greater or less than in the general run of cases, yet clear enough to reduce the unpredictability of what is likely to be the most important factor in...settlement of claims. 'Brackets' may call for alteration not only to take account of inflation, for which they ought automatically to be raised, but also, it may be, to take account of advances in medical science which may make particular...injuries less disabling or advances in medical knowledge which may disclose hitherto unsuspected long-term effects....
9.8 Following basic principles contained in para 9 of the judgment of the Supreme Court in R.D.Hattangadi v. Pest Control (India) Ltd. were relied:
9. 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 damages 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 attendant; (ii) loss of earning of profit up to the date of trial; (iii) 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; (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.
After referring to the above observations, Division Bench of this Court has in Mahendrakumar Manilal Patel v. Ramjibhai Dalsibhai Chaudhary observed that, in disablement cases, compensation payable was higher than in fatal cases, since it was the claimant himself who utilized compensation amount and it was he who had to suffer the impact of accident throughout his remaining life. The same bench of this Court in Manohar Madhukar Tambe v. Bhagubhai Liladhar and Ors. 2005 (3) GLH 651 also observed that persons suffering from serious injuries are not expected to maintain accounts of every amount spent during the treatment due to seriousness of illness, therefore, general assessment of such expenditure can be made. And, merely computing the economic loss on the basis of the medical certificate regarding physical disability will amount to turning a blind eye to the reality of actual economic loss. The claimant is going to suffer with physical disability throughout his life, therefore, he will have the disadvantage in every sphere of activity, earning or non-earning. In that case the claimant, aged 15, had suffered compound fracture and hospitalization for two-and-half months after which he remained in bed for four months and was awarded Rs. 15,000/- for pain, shock and suffering, Rs. 12,000/- for medical expenses, attendant and transportation and Rs. 12,600/- for his disability against the claim of Rs. 50,000/-. The appeal was preferred for enhancement by Rs. 10,000/-; but this Court awarded Rs. 50,000/- towards pain, shock and suffering.
10. Since the provisions of Section 168 only empowers the Claims Tribunal to hold an inquiry into the claim and make an award determining the amount of compensation which appears to it to be just, the question of quantum of compensation has to be dealt with in light of the judgments and the principles laid down therein. The following propositions of law emerge from the decisions discussed hereinabove:
(a) While fixing the amount of compensation payable to the victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages would be the amount which the victim would have lost or would stand to lose on account of accidental injuries to or death of a person. Pecuniary damages may include expenses incurred by the victim or the claimant, medical expenses, loss of earning and such other material loss. Non-pecuniary damages would include damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future, compensation for loss of amenities of life, damages for the loss of expectation of life and compensation for the inconvenience, hardship, discomfort, disappointment, frustration and mental stress;
(b) The Tribunal, in order to award just and reasonable amount of compensation, may have to ascertain the amount of income earned by the victim at the time of accident as well as his or her probable prospective earnings in the later years of life. In absence of any other evidence, his income may be doubled and then divided by half so as to reflect the prospective average income for the purpose of determining the future loss of income;
(c) The Tribunal has to bear in mind and give effect to constant fall in the value of money. If the Tribunal fails to adjust its awards to changing conditions and rising standards of living, assessment of damages would have less contact with reality. Particularly conventional figures, if they do not keep pace with inflation, might become contemptible;
(d) The amount of compensation must represent the equivalent value in money for the loss sustained and that equivalence must be as on the date of the order and not on the date of the accident. It is, however, impermissible in law to take into consideration the effect of subsequent revisions in the scale of pay or the scale of pay at the time of retirement of the victim;
(e) While adopting the method of applying proper multiplier, even in the cases under Section 166 of the Act, for the purpose of awarding just compensation, the Second Schedule under Section 163-A of the Act could be referred as a guideline and different multiplier could be adopted for a valid reason;
(f) The value of services rendered by a housewife in all cases may be presumed to be not less than Rs. 3,000/- per month and the earning capacity of the husband of such woman would be irrelevant;
(g) Deduction of one-third of the income of a deceased victim of motor accident is not an inflexible rule but it would depend on the facts and circumstances and lesser amount may be deducted in view of the number of dependents and poor level of income.
(h) Going by the official statistics of Consumer Price Index, just compensation under the head of conventional amount in the year 1982 may have to be quadrupled in the year 1997 and may have to be multiplied five times for the awards made in the year 2004; just to award the same amount in terms of real value. Division Bench of this Court has, after extensive reference to the legal aspect and the amounts awarded in different prior cases thereto, concluded in 1982 that amounts varying from Rs. 15,000/- for a single fracture in the right leg coupled with other injuries to Rs. 35,000/- for amputation of both legs above the knee were being awarded towards pain, shock and suffering and loss of amenities and enjoyment of life. In order to award the same amount of compensation in terms of real value in the year 2004, the figures have to be revised from Rs. 15,000 to Rs. 75,000 & Rs. 35,000 to Rs. 1,75,000. The conventional amount, however, has to be determined after taking into account seriousness of the injury and its aftermath for the remaining life of the victim, duration and type of the treatment undergone and required in future as also the pain, suffering and frustration involved;
(i) Since constant erosion in the purchasing power of money and inflation are relevant factors in determining the amount of compensation under several heads of damages, the Tribunal may have to take into consideration the figures of consumer price index as on the date of accident and at the time of determining the due amount. While loss of earning or loss of dependency benefit would be calculated on the basis of average probable income after considering the prospective future rise in income, it may partly take care of the inflation. But, in case of non-pecuniary or special damages, full effect of erosion in the purchasing power of money has to be reflected by adjusting the figure of compensation on the basis of the consumer price index. Although interest is usually awarded on the total amount of compensation from the date of claim petition which is fixed at the rates prevailing for fixed deposits, it can only compensate for deprivation of the amount due to the claimant by withholding of that amount by the defendant. It cannot fully take care of the constant erosion in the value of purchasing power of money. Therefore, in cases where claim petition remains pending, for whatever reasons, for inordinate period of more than five years, the Tribunal ought to take into account the reality of inflation and erosion in the value of money for determining just amount of compensation.
(j) Since the provisions of Section 163-A prescribe the amounts of compensation along a structured formula on "no-fault liability" basis, where the victim or claimant himself might be responsible for the accident, and provide a broad guideline, the compensation awarded under Section 166, after proof of negligence of someone else, should normally not fall short of the amount prescribed in the Second Schedule of the Act.
11. Dealing with the individual cases in which quantum of compensation is called into question, following data emerges from the record:
a. In First Appeal No. 2854 of 2005 arising from Claim Petition No. 743 of 1996, widow of the deceased (Exh.49) deposed that her husband was aged 36 years and earned Rs. 100/- to Rs. 150/- per day in diamond cutting work. Their family owned 28 acres of agricultural land and they earned additional income of Rs. 30,000/- to Rs. 40,000/- from that source. As against her claim of average income of her husband of Rs. 5,000/- per month, the Tribunal accepted monthly income of Rs. 4,000/-. Due to absence of any documentary proof of income, either from diamond cutting or from agriculture, his future average income was assessed at Rs. 6,000/- and applying multiplier of 16, after deducting Rs. 2,000/- towards personal expenses, the Tribunal found Rs. 7,60,000/- to be due towards dependency benefit. Even a lesser figure of monthly income of Rs. 4,000/- reduced by one-fifth towards personal expenses produced the figure of Rs. 6,14,400/- and adding thereto conventional amount, funeral expenses etc., higher amount of compensation was justified; but the claimant having claimed only Rs. 6,00,000/-, that amount was awarded, according to the Tribunal.
According to the submissions of the appellant, the Tribunal ought to have assessed monthly income at Rs. 2,000/-, applied multiplier of 13 and, even as the award was excessive by Rs. 4,26,960/-, the appeal was restricted to Rs. 1,80,000/-.
It was submitted for the claimant that only minimum wages prevailing in the industry were in fact considered by the Tribunal and application of multiplier of 16 was in consonance with the Second Schedule to the Act. It was also submitted that lesser deduction towards expenses of the deceased himself was justified and proper in view of the number of dependents.
b. In First Appeal No. 2870 of 2005 arising from Claim Petition No. 91 of 1997, the claimant was the same widow as in the above case, but the claim was in respect of injuries suffered by herself in the same accident. She claimed Rs. 1,50,000/- and the Tribunal found the value of her domestic services to be Rs. 2,500/- p.m. Rs. 3,750/- was taken to be the average future monthly value of her household services and applying multiplier of 16, the Tribunal found Rs. 1,22,400/- to be the loss, taking the admitted figure of 17% disability and loss of earning capacity. Adding thereto Rs. 35,000/- as medical expenses against bills for Rs. 32,575/-, Rs. 7,500/- towards actual loss of income for services and Rs. 10,000/- for pain, shock and suffering, total Rs. 1,74,400/- was found by the Tribunal to be due and full amount of Rs. 1,50,000/- as claimed was awarded.
According to the appellant, the value of household services rendered by the claimant ought to have been assessed at Rs. 1,500/- and multiplier of 14 ought to have been applied in view of her age of 34 years. The appeal was restricted to challenging the amount to the extent of Rs. 45,000/-.
It was submitted on behalf of the claimant that value of the services of a housewife has to be taken as Rs. 3,000/- at the minimum and even higher multiplier of 17 would have been justified in the facts of the case and hence there was no scope for further reducing the amount of compensation.
c. In First Appeal No. 2855 of 2005 arising from Claim Petition No. 744 of 1996, the deceased was aged 40 at the time of accident and was earning Rs. 100/- per day in diamond cutting work. His widow deposed at Ex.57 that he was also cultivating agricultural land and claimed his monthly income to be Rs. 5,000/-. The Tribunal assessed average monthly income to be Rs. 4,000/- and deducting one-forth towards personal expenses, applied multiplier of 16 to arrive at the figure of Rs. 5,76,000/-. Adding thereto conventional amount of Rs. 50,000/- and Rs. 10,000/- towards funeral expenses, the claimant was found to be entitled to total amount of Rs. 6,36,000/-; but Rs. 6,00,000/- was awarded in view of the claim.
It was urged for the appellant that the Tribunal ought to have assumed the income of the deceased to be Rs. 2,000/- in absence of any documentary proof of income and multiplier of 14 ought to have been applied so as to arrive at the figure of Rs. 3,00,000/- even as the claim in appeal was restricted to Rs. 1,80,000/-.
Learned Counsel Ms.Ajmera made the same submissions as in First Appeal No. 2854 of 2005 and added that the Tribunal had not considered future prospects of rise in the income of the deceased.
d. In First Appeal No. 2869 of 2005 arising from Claim Petition No. 83 of 1997, the claimant was an injured widow, the value of whose domestic services was claimed to be Rs. 2,500/- per month. Taking her future average income to be Rs. 3,750/- and considering the admitted permanent partial disability of 9% of the body as a whole, the figure of Rs. 337.50 ps. as monthly loss was arrived at. Considering her age of nearly 42 years, multiplier of 10 was applied to arrive at the figure of Rs. 40,500/- under the head of loss of earning capacity. As against the medical bills of Rs. 1,890/-, the Tribunal awarded Rs. 5,000/- towards medical expenses, Rs. 7,500/- under the head of pain, shock and suffering; and Rs. 9,000/- under the head of nutritious food, attendant charges, transportation and loss of earning. Thus, in view of higher total figure of compensation counted as above, the Tribunal allowed the entire claim for Rs. 60,000/-.
The appellant submitted that assumption of income of the claimant was on higher side and multiplier of 8 was required to be applied even as the claim in appeal was restricted to Rs. 18,000/-.
It was submitted for the claimant that value of services of the claimant was considered without adding prospective rise in its value and lesser multiplier of 10, as against 15 under the Second Schedule, was applied by the Tribunal for calculation of future loss of income.
e. In First Appeal No. 2856 of 2005 arising from Claim Petition No. 745 of 1996, the age of deceased Naniben was in dispute as three different versions of her age had come on record. Relying upon judgment in Lata Wadhwa (supra), value of domestic services of a female in the age group of 62-72 years was taken to be Rs. 20,000/- per year and taking Rs. 1,500/- per month as dependency for the claimant, figure of Rs. 1,08,000/- was arrived at by applying multiplier of 6. Adding thereto Rs. 10,000/- towards funeral expenses and Rs. 50,000/- as conventional amount, the Tribunal arrived at the figure of Rs. 1,68,000/- and awarded Rs. 1,50,000/- as claimed.
It was submitted for the appellant that the age of the deceased was assessed by a medical officer at the time of the accident at 68 years and hence multiplier of 2 could have been applied and the value of her services could be assumed to be Rs. 1,500/-. Considering loss of dependency worth Rs. 1,000/-, Rs. 24,000/- could have been awarded at the most towards loss of dependency benefit. The claim in appeal was restricted to Rs. 45,000/-.
It was, however, pointed out on behalf of the claimant that the Tribunal had only considered Rs. 1,500/- as monthly value of her services and multiplier of 6 was applied in view of the age of 56.
f. In First Appeal No. 2857 of 2005 arising from Claim Petition No. 845 of 1996, the claimant woman, aged 38, had sustained permanent disablement to the extent of 10% of the body as a whole. She claimed to be earning Rs. 2,000/- and considering the value of her domestic services, the Tribunal assessed her monthly prospective average income at Rs. 3,000/- and monthly loss to be Rs. 300/-. Applying multiplier of 15, Rs. 54,000/- were found to be due under the head of loss of earning capacity. Adding thereto Rs. 5,000/- towards medical expenses, Rs. 7,500/- for pain, shock and suffering and Rs. 9,000/- for nutritious food, attendant and transportation charges, she was found to be entitled to Rs. 75,500/- and hence total claim restricted to Rs. 50,000/- was allowed in toto.
Learned Counsel for the appellant submitted that multiplier of 13 ought to have been applied to monthly average income or value of her services of Rs. 1,500/-. Although the award was higher by Rs. 30,600/-, the appeal was restricted to Rs. 15,000/- only.
It was pointed out on behalf of the claimant that, even as the claimant was a housewife as well as an agricultural labourer, her income was taken to be Rs. 3,000/- only, without any prospective rise, and multiplier of 15, instead of 16, was applied by the Tribunal.
g. In First Appeal No. 2858 of 2005 arising from Claim Petition No. 846 of 1996, the injured lady, aged 35, was admitted to have suffered permanent partial disability to the extent of 6.5%. Considering Rs. 195/- to be monthly loss of earning capacity and applying multiplier of 16, Rs. 37,440/- was found to be due under the head of loss of earning capacity. Adding thereto Rs. 7,500/- towards pain, shock and suffering, Rs. 5,000/- for medical expenses and Rs. 9,000/- towards nutritious food, attendant charges and transportation etc., total sum of Rs. 58,940/- was found to be due and the claim of Rs. 50,000/- was allowed in toto.
It was argued for the appellant that monthly income or value of services of the claimant was required to be assessed at Rs. 1,500/- and multiplier of 13 ought to have been applied even as the appeal was restricted to Rs. 15,000/-.
It was pointed out on behalf of the claimant that, even as the claimant was a housewife as well as an agricultural labourer, her income was taken to be Rs. 3,000/- only, without any prospective rise, and multiplier of 15, instead of 17 under the Second Schedule of the Act, was applied by the Tribunal.
h. In First Appeal No. 2859 of 2005 arising from Claim Petition No. 847 of 1996, the injured claimant, aged 36, was stated to have lost her faculty of hearing and total disability to the extent of 22% was considered. Against her claim of rendering domestic services and earning Rs. 2,000/- from agricultural labour, the Tribunal assessed the loss of Rs. 180/- per month as 6% of monthly average future income of Rs. 3,000/-. Applying multiplier of 15, figure of Rs. 32,400/- was arrived at and adding thereto Rs. 10,000/- for medical expenses, transportation, attendant charges, nutritious food etc. total compensation of Rs. 42,400/- was awarded.
It was submitted for the insurance company that her income or value of her domestic services ought to have been assessed at Rs. 1,500/- per month and multiplier of 13 ought to have been applied in absence of any conclusive proof of her age; even as the appeal was restricted to Rs. 12,720/- only.
It was submitted on behalf of the claimant that the Tribunal had adopted fixed figure of monthly income of Rs. 3,000/- disregarding future prospects as well as the fact that the claimant was an agricultural labourer as well as a housewife and multiplier of 15, instead of 16, was applied by the Tribunal.
i. In First Appeal No. 2861 of 2005 arising from Claim Petition No. 903 of 1996, the claimant, aged 35 years, deposed that her monthly income as labourer was Rs. 2,000/-. She was certified to have suffered permanent functional disability to the extent of 15% and the parties having agreed to halve it for the purpose of permanent functional disability of 7.5%, the Tribunal came to the figure of Rs. 225/- as monthly loss of earning capacity. Applying multiplier of 15, figure of Rs. 40,500/- was arrived at and adding thereto Rs. 4,000/- towards medical expenses, nutritious food, attendant charges, transportation etc. and Rs. 7,500/- for pain, shock and suffering, she was held to be entitled to Rs. 52,000/- and the entire claim of Rs. 40,000/- was, therefore, allowed.
The appeal was restricted to challenging the liability to the extent of Rs. 12,000/- mainly on the ground that multiplier of 13, instead of 15, was required to be applied to monthly income of Rs. 1,500/-.
It was submitted on behalf of the claimant that the Tribunal had adopted fixed figure of monthly income of Rs. 3,000/- disregarding future prospects as well as the fact that the claimant was an agricultural labourer as well as a housewife and multiplier of 15, instead of 17, was applied by the Tribunal.
j. In First Appeal No. 2862 of 2005 arising from Claim Petition No. 904 of 1996, for the injured woman, aged 38, permanent partial disability was agreed to be 6.5% and considering average prospective monthly income of Rs. 3,000/- and applying multiplier of 13, figure of Rs. 38,420/- was arrived at under the head of loss of earning capacity. As against the claim of Rs. 15,000/- towards medical expenses, nutritious food and prolonged treatment for six months, the Tribunal awarded only Rs. 4,000/- and Rs. 7,500/- for pain, shock and suffering to reach the total figure of Rs. 41,920/-; and the entire claim of Rs. 40,000/- was allowed.
The appellant, having restricted the appeal to Rs. 12,000/-, claimed that multiplier of 10 ought to have been applied to lower figure of income and award of Rs. 7,500/- towards pain, shock and suffering was on higher side.
It was submitted on behalf of the claimant that the Tribunal had adopted fixed figure of monthly income of Rs. 3,000/- disregarding future prospects as well as the fact that the claimant was an agricultural labourer as well as a housewife and multiplier of 13, instead of 16, was applied by the Tribunal.
k. In First Appeal No. 2863 of 2005 arising from Claim Petition No. 905 of 1996, the injured claimant, aged 40, had functional disability to the extent of 13.3%. Taking the permanent partial disability of 6.5% for the body as a whole and applying multiplier of 13 to the average monthly income of Rs. 3,000/-, the figure of Rs. 30,420/- was arrived at. As against the additional claim of Rs. 15,000/- towards medical expenses, nutritious food, attendant charges, transportation and loss of earning, the Tribunal awarded Rs. 4,000/- under all those heads with Rs. 7,500/- towards pain, shock and suffering and reached total figure of Rs. 41,920/- and allowed the claim of Rs. 40,000/- in toto.
Even as the appeal was restricted to Rs. 12,000/-, it was argued for the appellant that lower multiplier to lower monthly income was required to be applied in absence of any reliable evidence of age or income.
It was submitted on behalf of the claimant that the Tribunal had adopted fixed figure of monthly income of Rs. 3,000/- disregarding future prospects as well as the fact that the claimant was an agricultural labourer as well as a housewife and multiplier of 13, instead of 16, was applied by the Tribunal.
l. In First Appeal No. 2864 of 2005 arising from Claim Petition No. 916 of 1996, the injured claimant, aged 34, had deposed that he used to earn Rs. 1,00,000/- from agricultural land out of which his own share was Rs. 25,000/- per year. He relied upon copies of revenue records, Exh.159, 177 and 178. The Tribunal, however, presumed his monthly income to be Rs. 3,000/- and future prospective income to be Rs. 4,500/- per month. He had remained in hospital for 12 days as an indoor patient and due to fracture of skull, he had undergone neuro-surgical treatment for his brain. His claim for hospitalization, injuries and prolonged treatment was supported by documentary evidence at Exhs.113, 114, 115, 140 and 145. He was certified to have fractured spine and his permanent disability was certified to be 25% for the body as a whole. However, parties had agreed to take the disability to be 17% and, accepting that and applying multiplier of 15, the Tribunal arrived at the figure of Rs. 1,37,700/- under the head of loss of earning capacity. As against the claim of Rs. 25,000/- towards medical expenses, nutritious food etc., the Tribunal awarded Rs. 15,000/- and Rs. 6,000/- towards loss of earning for two months. Adding thereto Rs. 2,000/- towards attendant charges and Rs. 10,000/- under the head of pain, shock and suffering and Rs. 2,000/- for transportation, total compensation of Rs. 1,72,700/- was awarded.
It was argued for the appellant that the claimant himself had claimed his income to be Rs. 25,000/- per year and multiplier of only 8 was required to be applied; the amounts awarded under the head of pain, shock and suffering and medical expenses were also on higher side, according to the submission, even as the claim in appeal was restricted to Rs. 51,810/-.
It was submitted on behalf of the claimant that it was really a case for enhancement of compensation since the claimant had suffered serious injuries in skull and dislocation of spine. Therefore, the award under the head of pain, shock and suffering was required to be increased from Rs. 10,000/- to Rs. 15,000/-; and Rs. 25,000/-, instead of Rs. 10,000/-, was required to be awarded towards medical expenses. It was again pointed out that the Tribunal had adopted lower multiplier of 15 as against 17 prescribed under the Second Schedule to the Act.
m. In First Appeal No. 2865 of 2005 arising from Claim Petition No. 917 of 1996, the claimant lady, aged 34 years, was admitted to have suffered permanent partial disability to the extent of 11.5% for the body as a whole and loss of earning capacity was assessed on the basis of monthly average income of Rs. 3,000/- Applying multiplier of 15, figure of Rs. 62,100/- was arrived at. As against the claim of Rs. 60,000/- towards medical expenses, the claimant could produce medical bills for only Rs. 27,188/- and, therefore, the Tribunal awarded Rs. 30,000/- under the head of medical expenses and Rs. 15,000/- under the head of pain, shock and suffering in view of fractures of upper four ribs and humerus bone. Adding thereto Rs. 2,000/- towards attendant charges, Rs. 2,000/- for nutritious food, Rs. 2,000/- for transportation and Rs. 4,000/- for total loss of earning for two months, she was awarded compensation of Rs. 1,17,000/- as against the claim of Rs. 1,50,000/-.
Even as the claim in appeal was restricted to Rs. 35,100/-, it was argued for the appellant that the income and age of the claimant were presumed by the Tribunal without necessary proof and multiplier of 13 ought to have been applied to the monthly income of Rs. 1,500/- for arriving at the proper figure of compensation under the head of loss of earning capacity.
It was submitted for the claimant that she was earning as an agricultural labourer besides rendering household services and her earning as well as value of her services were bound to increase, but that was not considered by the Tribunal and lower multiplier of 15, instead of 17, was applied for arriving at the figure of loss of earning capacity.
n. In First Appeal No. 2866 of 2005 arising from Claim Petition No. 10 of 1997, the claimant, aged 33, claimed his yearly agricultural income to be Rs. 25,000/- against which the Tribunal assumed future average monthly income of Rs. 4,500/-. He had suffered fracture of left radius bone and permanent disability to the extent of 14.2% which was taken to be 7.1% of the body as a whole. Applying multiplier of 15, he was considered to be entitled to Rs. 57,600/- under the head of loss of earning capacity. Adding thereto Rs. 7,500/- for pain, shock and suffering, Rs. 5,000/- for medical expenses, attendant charges, nutritious food, transportation etc., total Rs. 70,100/- was found to be due but, in view of the claim of Rs. 50,000/- only, it was allowed in toto. It was contended for the appellant that average monthly income of the claimant was required to be restricted to Rs. 1,500/- and multiplier of 13 was required to be applied even as the claim in appeal was restricted to Rs. 15,000/-
It was submitted for the claimant that, considering the age to be 33, application of higher multiplier of 17, instead of 15, would have been justified and the amounts awarded towards pain, shock and suffering as well as medical expenses were required to be enhanced in the peculiar facts of the case.
o. In First Appeal No. 2867 of 2005 arising from Claim Petition No. 13 of 1997, the injured lady, aged 45, was presumed to be earning Rs. 3,000/- per month; and in view of permanent disability to the extent of 6.5%, applying multiplier of 12, Rs. 28,080/- was found to be due towards loss of earning capacity. Considering her fracture injury, Rs. 10,000/- for pain, shock and suffering, Rs. 5,000/- for medical expenses and Rs. 6,000/- for nutritious food, attendant charges, transportation etc. were awarded to reach the total amount of Rs. 49,080/- as compensation.
The contention of the appellant was that average monthly income or value of services of the claimant was required to be restricted to Rs. 1,500/- per month and 10 was the appropriate multiplier in view of the age of the claimant even as the appeal was restricted to Rs. 14,724/-.
It was submitted for the claimant that the Tribunal had applied multiplier of 12, instead of 15 prescribed under the Second Schedule, and the amounts of compensation under the head of pain, shock and suffering as well as medical expenses were, in fact, required to be enhanced.
p. In First Appeal No. 2868 of 2005 arising from Claim Petition No. 68 of 1997, the claimant lady, aged 38, had suffered multiple fractures, more than 12 in number, and, considering her permanent disability to the extent of 20% for the body as a whole, the Tribunal awarded Rs. 20,000/- for pain, shock and suffering, Rs. 10,000/- for medical expenses, Rs. 5,000/- for attendant charges, Rs. 5,000/- for nutritious food, Rs. 5,000/- towards transportation charges and Rs. 6,000/- towards loss of earning for three months. The compensation towards loss of earning capacity was calculated on the basis of monthly income of Rs. 3,000/- and, applying multiplier of 15, total compensation of Rs. 1,59,000/- was awarded against the claim of Rs. 2,50,000/-.
The appellant contended that income of the claimant was required to be reduced to Rs. 1,500/- per month and multiplier of 13 was required to be applied even as the claim in appeal was restricted to Rs. 47,700/-.
It was submitted for the claimant that the Tribunal had applied multiplier of 15, instead of 16 prescribed under the Second Schedule, and the amounts of compensation under the head of pain, shock and suffering as well as medical expenses were, in fact, required to be enhanced in view of the multiple fractures and severe pain and prolonged disablement suffered by the claimant.
q. In First Appeal No. 2860 of 2005 arising from Claim Petition No. 894 of 1996, the claimant lady, aged 40, claimed to be earning Rs. 2,000/- per month and to have suffered fracture of pelvis with crush injury on right foot coupled with amputation of 4th and 5th toe. As against the medical certificate of permanent disablement to the extent of 15%, the parties agreed to 7.5% disability for the body as a whole and, applying multiplier of 16, the Tribunal awarded Rs. 43,200/- towards loss of earning capacity. Further Rs. 15,000/- under the head of pain, shock and suffering, Rs. 7,000/- for medical expenses, though no medical bill was produced, Rs. 15,000/- towards nutritious food, attendant charges, transportation charges etc were awarded to reach the total figure of Rs. 80,200/- against the claim of Rs. 2,00,000/-.
According to the appellant, hospital record in respect of the claimant at Ex.145 showed her age to be 46 and taking Rs. 1,500/- as her monthly income and applying multiplier of 14, award of much less amount was justified even as the appeal was restricted to reduction of the amount by Rs. 24,000/-.
It was submitted for the claimant that hospital record could not be relied upon as proof of age as it would have been tentatively mentioned while admitting the patient by someone else. The Tribunal has taken monthly income of the claimant to be Rs. 3,000/- only even as she was earning as an agricultural labourer besides being a housewife. It was also submitted that in view of the serious injuries and prolonged treatment, amounts awarded towards pain, shock and suffering and medical expenses were required to be enhanced.
12. Considering the facts and contentions in each appeal in light of the legal propositions culled out in para 10, it would clearly appear that in the three fatal accident cases in First Appeal No. 2870 of 2005, First Appeal No. 2855 of 2005 and First Appeal No. 2856 of 2005, the Tribunal has, in absence of relevant documentary evidence, disbelieved the alleged income of the deceased and adopted a lower figure of income or value of services of the deceased and adopted conventional figure of Rs. 50,000/-; but has not awarded the full amount due as the claim was restricted to a lower amount. Therefore, even adopting the lesser amount of Rs. 40,000/- as conventional amount in view of the observations of this Court in recent decision dated 30.11.2006 in First Appeal No. 1069 of 2006, no amount was required to be deducted from the final figure of compensation fixed by the Tribunal.
13. In the cases where housewives were injured, the value of their domestic services, even disregarding the claim of actual income by agricultural labour, had to be taken to be Rs. 3,000/- per month under the binding decision of Division Bench of this Court. Therefore, the argument for the insurer that claims of income of such ladies were not substantiated cannot be accepted; although in fact lesser amounts were assessed as their income in the cases under consideration. It was also apparent that, even as the accident had occurred on 13.9.1996 and the award was made on 16.9.2004, erosion in purchasing power and the value of money during the whole period of eight years was not taken into account in considering either the loss of dependency benefit or in assessing the non-pecuniary damages. On the contrary, in most of the cases, even reasonable amount due as on the date of accident were not fully accommodated in the final figure of compensation because of lesser amounts claimed by the claimant. As for the application of multiplier in individual cases, it was seen that, in each of the cases, the multiplier applied by the Tribunal was lower than the multiplier prescribed in the Second Schedule. It was also seen that, in none of the cases, the Tribunal had awarded any amount towards loss of expectation of life or loss of amenities of life. Similarly, the inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life did not find even a mention in the calculation of non-pecuniary damages.
14. Learned Counsel for the appellant was partly justified in submitting that the Tribunal had arbitrarily fixed several amounts under several heads; but the rough and inarticulate assessment of damages clearly appeared in each case to have resulted into award of less than just and reasonable amount of compensation. Therefore, the group of appeals filed by the New India Assurance Co. Ltd. have to be dismissed with cost.
15. In the facts and for the reasons discussed hereinabove, the appeals of the Oriental Insurance Co. Ltd. are partly allowed with the direction that it shall equally share with the New India Assurance Co. Ltd. the liability of paying compensation to the claimants while the liability of both the insurance companies shall be joint and several as far as the claimants are concerned. The amounts paid or deposited by the Oriental Insurance Co. Ltd., in excess of its liability of paying 50% of the total amount of compensation, shall be directly paid to it by the New India Assurance Co. Ltd. There is no order as to costs in the appeals filed by the Oriental Insurance Co. Ltd. The appeals preferred by the New India Assurance Co. Ltd. are dismissed with cost.