Calcutta High Court (Appellete Side)
Kuntal Kundu vs National Insurance Company Limited & ... on 18 August, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
1
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Partha Sakha Datta
F.M.A. No. 858 of 2005
Kuntal Kundu
Versus
National Insurance Company Limited & Anr.
For the Appellant/Petitioner: Mr Krishanu Banik.
For the Respondent/Opposite Party: Mr Rajesh Singh.
Heard on: 14.07.2008.
Judgment on: 18th August, 2008.
Bhaskar Bhattacharya, J.:
2 This appeal is at the instance of a claimant and is directed against the award dated 25th August, 2004 passed by the Motor Accident Claim Tribunal, Third Court, Howrah in M.A.C.C. No.390 of 2002 thereby disposing of an application under Section 166 of the Motor Vehicles Act by directing the Insurance Company to pay a sum of Rs.3,25,000/- as compensation which is inclusive of Rs.25,000/- already received by him in a proceeding under Section 140 of the Act.
Being dissatisfied, the claimant has come up with the present appeal. Mr Banik, the learned advocate appearing on behalf of the appellant, contends before us that although it has been well established from the materials on record that in view of rash and negligent manner of driving of the offending vehicle, his client was injured and that the extent of permanent disablement has been found to be seventy percent and at the same time, the Tribunal having found that the yearly income of the appellant was Rs.56,875/- as per income tax return being Exbt.-5 and that he was aged 34 years at the time of accident, the Tribunal below erred in law in assessing the amount of Rs.3,25,000/- as compensation by not following the Second Schedule of the Motor Vehicles Act when the Tribunal found that the offending vehicle was fully responsible for the accident.
3
Mr Singh, the learned advocate appearing on behalf of the Insurance Company has opposed the aforesaid submissions of Mr Banik and has contended that although his client has not preferred any appeal against the award impugned and has already paid that amount, his client has the right to support the ultimate conclusion arrived at by the Tribunal thereby assessing the amount of compensation at Rs.3,25,000/-. According to Mr Singh, in this case, the victim had suffered merely fracture and for that reason, he got an amount of Rs.3,25,000/- which was more than sufficient. Mr Singh contends that the medical certificate indicating the disablement to the extent of seventy percent was not admissible in evidence, as the members of the Medical Board, which issued the certificate, did not appear at the witness box to support the conclusion mentioned in the certificate. In other words, Mr Singh disputes the extent of disablement of the claimant.
Therefore, the only question that arises for determination in this appeal is whether the Tribunal below was justified in fixing the amount of compensation at Rs.3,25,000/- in spite of its finding that the claimant was aged 34 years and that his income was Rs.56,875/- per annum and that the extent of disablement was seventy percent as indicated in the disablement certificate. In other words, the question is whether the learned Tribunal was justified in not applying the multiplier method as indicated in the Second Schedule of the Motor Vehicles Act, 1988 to the facts of the present case.
4
After hearing the learned counsel for the parties and after going through the provisions contained in Section 166 of the Act, we find that in the proceedings under Section 166 of the Act, the tribunal is required to assess the "just" compensation for the injury or the death of a person, as the case may be, involved in an accident where the negligence of the driver of any offending motor vehicle is the cause. While Section 163A of the Act has been enacted notwithstanding the provision of Section 166 of the Act, its application is limited only to the circumstances mentioned therein and the main difference between the two provisions is that in a proceeding under Section 163A of the Act, the applicant is not required to prove the negligence of the driver of the offending vehicle, but in a proceeding under Section 166 of the Act, the proof of negligence of the driver of the vehicle responsible is essential. The other important requirement of Section 163A is that the victim involved in the accident must not have annual income of more than Rupees forty thousand. (See: Deepal Girish Bhai Soni and others vs. United India Insurance Company Ltd. reported in A.I.R. 2004 SC 2107).
However, the law relating to assessment of the amount of compensation enacted by the legislature intended for a victim having a limited income of Rupees forty thousand per annum and that too, without proving the negligence of the driver of the offending vehicle, cannot be the same in case of a victim having unlimited income where the claimant has undertaken the burden of proving the negligence of the driver of the offending vehicle. Therefore, the Second Schedule 5 of the Motor Vehicles Act, 1988 in terms cannot apply to the proceedings under Section 166 of the Act. However, in a proceeding under Section 166 of the Act, if a claimant fails to prove negligence of the offending vehicle, the Tribunal can convert such proceeding to one under Section 163A of the Act if the claimant avers and prove that the income of the victim was below Rupees forty thousand.
Nonetheless, there is no two opinions that the assessment of compensation by applying the multiplier method is also a recognised way of calculation of the assessment of just compensation but its application is limited only to the fatal accidents because the said method involves ascertainment of loss of dependency and capitalizing the same by appropriate multiplier. What is in essence the object of the multiplier method has been summarised by the Apex Court in the case of General Manager, Kerala State Road Transport Corporation vs. Mrs. Susamma Thomas and others reported in A.I.R. 1994 SC 1631 in the following way:
"The multiplier represents the number of years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000/-. If a sum of Rs. 1,00,00/- is invested at 10% annual interest, the interest' will take care of the dependency, perpetually. T he multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rupees 10,000/- would be 20. Then the multiplier, i.e., the number of years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be 6 made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up."
Therefore, in a proceeding under Section 166 of the Act relating to death of the victim, the Tribunal is entitled to apply the multiplier method in the true sense of the term as pointed out by the Apex Court above after taking into consideration the rate of the present-days-bank-interest but not the chart given in the Second Schedule incorporated in the Act in the year 1994.
As pointed out by the Apex Court in the case of R.D. Hatangadi vs. M/S Pest Control (India) Pvt. Ltd. reported in A.I.R. 1995 SC 755 the mode of assessment of compensation in a non-fatal case should be as follows:
"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 is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and 7 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."
The said principles have been further clarified by a decision of a bench consisting of three judges in the case of Lata Wadhwa vs. State of Bihar reported in A.I.R. 2001 SC 3218 in the following terms:
"In examining the question of damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be taken into account. In case of pecuniary damages, loss of earning or earning capacity, medical, hospital and nursing expenses, the loss of matrimonial prospects, if proved, are required to be considered. In the case of Non Pecuniary losses, loss of expectation of life, loss of amenities or capacity for enjoying life, loss or impairment of physiological functions, impairment or loss of anatomical structures or body tissues, pain and suffering and mental suffering are to be considered. But for arriving at a particular figure on each of the aforesaid head, the claimant is duty bound to produce relevant materials, on the basis of which, a determination could be made, as to what would be the best compensation."
The only instance where the Apex Court has applied multiplier method in case of a non-fatal injury is the one in the case of New India Assurance Co. Ltd. vs. Charlie and another reported in A.I.R. 2005 SC 2157, where the victim 8 suffered 100% disablement and the Apex Court was of the opinion that "in case, where the injured has suffered 100%, the logic applicable to a deceased can, in appropriate cases, taking note of all relevant factors be reasonably applied."
Therefore, apart from the cases where the injured applicant is successful in bringing his case under the purview of Section 163A of the Act, there is no scope of application of the Second Schedule of the Act in assessing the compensation of damages for the injury suffered. In the case before us, the claimant has asserted that his annual income is much higher than Rupees forty thousand and thus, there is no scope of application of the Second Schedule to the facts of the present case.
In a proceeding under Section 166 of the Act, if the negligence of the offending vehicle fully or partially is proved, the Tribunal is required to assess the damages in proportion to the negligence of the offending vehicle found by the Tribunal. In other words, if the offending vehicle is fully responsible for the injury or the death, the full compensation should be paid by the owner of the vehicle or the Insurance Company, if insured, depending upon the terms of the insurance agreement. Similarly, if more than one vehicle are involved, the damages will be divided between the owners or the Insurers of those vehicles in proportion to their respective negligence. If, on the other hand, there is some contributory negligence on the part of the victim, the damages actually suffered by him would be reduced by that percentage of the contributory negligence. In this case, the tribunal itself found that there was no contributory negligence of the appellant 9 and that the rash and negligent driving of the offending vehicle was wholly responsible for the injury caused to the appellant.
Applying the aforesaid principles to the facts of the present case we now propose to decide whether the Tribunal was justified in limiting the compensation to Rs.3,25,000/-.
After hearing the learned counsel for the parties and after going through the materials on record, we find that at the time of accident in the month of December 2001, the deceased was aged 32 years 11 months as it appears from the Certificate of passing Madhyamik Examination issued the Board of Secondary Education (Exbt.-6). It has been proved from the Income Tax Return (Exb.t-5) that his net income at the time of accident was Rs.56,875/- a year. He had his own business in the name of Hard & Soft. He has asserted in his evidence-in-chief that after the accident he could not continue with the said business and that he spent Rs.1 lakh for the medical treatment. He has further stated that he sustained severe fracture injuries on his right leg, left shoulder, waist, and that even at the time of deposition he was unable to walk without a stick and could not work without the help of other person and that the treatment was continuing. He had also produced disability certificate issued by the Howrah General Hospital, which was marked as Exbt.-3 indicating that his permanent disability extended to 70%. In cross-examination, no suggestion was given disputing the aforesaid statements made in the examination-in-chief and at the 10 same time, no objection was raised in marking those documents as Exhibits. Even no suggestion was given to him disputing the genuineness of those documents or the contents thereof. It is needless to mention that no evidence was adduced on behalf of the Insurance Company in rebuttal although the Tribunal gave permission under Section 170 of the Act. The only suggestions given to the appellant in cross-examination were that 'the bus was not plying in a heavy speed, that the driver of the vehicle was not responsible for the accident and that he was not entitled to get any compensation as prayed for by the appellant'.
In our opinion, in the face of such uncontroverted evidence, it has been well established that till the hearing of the claim application after about three years from the date of accident, he had spent a sum of Rs.1,00,000/- for his medical treatment and that his business was closed from which he earned a net annual income of Rs.56,875/- at the time of accident. It further appears that he is unable to walk without stick, and without the assistance of somebody, he cannot do any work. No suggestion was even given that he was continuing with his business notwithstanding his injury. The Government Hospital has certified his permanent disability to be to the extent of 70%. Therefore, the fact that he has actually suffered at least the loss of the net annual income of Rs.56,000/- from his business for the three years until the trial has been established. There is no denial of the fact that he spent Rs.1,00,000/- for the medical treatment and such treatment is continuing. After adjustment of the medical expenditure, only an additional sum of Rs.2,25,000/- has been awarded by the Tribunal. If we award just the three year's loss of net income from the business in addition to 11 the medical expenses of Rs.1,00,000/-, the amount comes to Rs.1,00,000/- + Rs.1.68 lakh = Rs.2,68,000 which is the amount of loss actually proved to have been suffered till the trial. The appellant having limited his total claim to Rs.5,00,000/- only, we are of the view that the additional sum of Rs.2,32,000/- should also be awarded to compensate the future loss, the pain and the mental suffering as well as the physical inconvenience suffered by a young man of 32 years. We cannot lose sight of the fact that at the rate of Rs.56,000/- per annum, only four-year's future loss from the business comes to Rs.2,24,000/-. Therefore, the claim of the appellant was most moderate and there was no just reason to refuse such claim in its entirety.
Mr Singh, the learned advocate appearing on behalf of the Insurance Company laboriously contended before us that we should not believe the contents of the disability certificate unless the Doctor who signed such document was examined and that in the absence of the documentary evidence we should discard the claim of expenditure of Rs.1,00,000/- towards his medical treatment. In this connection, Mr Singh relied upon a decision of a Single Judge of this Court (one of us) in the case of Sudhir Bhuiya vs. National Insurance Company Limited reported in 2005(1) T.A.C. 66 (Cal) in support of his contention that even if the disability certificate is marked as Exhibit its contents are not admissible in evidence unless the author of the document is examined. In that case, a medical certificate given by the Doctor of the Government Hospital was sought to be proved as public document without calling any witness simply by filing the same. The Tribunal did not allow such prayer and the matter came up before this Court 12 in Revision under Article 227 of the Constitution of India. In that context, one of us sitting singly did not interfere with the order of the Tribunal on the ground that as the petitioner therein did not intend to lead any evidence to show that the said certificate was really issued by the said Hospital, the Tribunal rightly refused to mark the said document. In the case before us, the appellant in his evidence-in-chief specifically tendered the said certificate and the same along with others was marked as Exhibit without objection. We have already pointed out that even no suggestion was given in cross-examination disputing either the contents or the genuineness of those documents. It is now a settled law that if a document is marked as Exhibit on consent without reservation, the contents are not only evidence but are taken as admitted the result being that the contents cannot be challenged either by way of cross-examination or otherwise. However, in respect of the documents which are marked Exhibit on formal proof being dispensed with, the contents are evidence although the party admitting does not accept the truth of the contents and is free to challenge the contents by cross- examination or otherwise. (See: M/S Lionel Edwards Limited vs. State of West Bengal reported in A.I.R. 1967 Cal 191). In the case before us, even if we hold that the documents were marked as Exhibits not on consent but on the formal proof being dispensed with, the Insurance Company was free to cross-examine the appellant on the question of the veracity of the contents thereof or even could lead evidence of rebuttal. However, having failed to take any of those steps at the trial, the Insurance Company now cannot contend before the Appellate Court that the contents of those documents were not proved. If such objection was 13 raised at the trial, the appellant could even examine the Doctor who issued the certificate so that he could face the cross-examination of the Insurance Company. We, thus, find no substance in the said contention of Mr Singh. Similarly, no suggestion having been given to the claimant to his statement that he spent Rs.1,00,000/- for the treatment, the Insurance Company is now precluded from raising the point that no document was produced in support of his claim. If such dispute was raised, the claimant could bring other witnesses to substantiate the claim of expenditure and even prove the documents in support of his claim. It is not the law that such claim can be proved only by documentary evidence even if there is no denial of the claim by oral evidence. The claimant himself appeared before the Tribunal and asserted that he was not even in a position to do any work without the help of others and such statement was not disputed having regard to his condition visible before the Court and the disablement certificate proved without objection. In such a situation, the total expenditure of Rs.1,00,000/- for the treatment in course of three years cannot be unreasonable so as to disbelieve the same as an absurd one.
Mr Singh also relied upon the decision of the Apex Court in the case of the Divisional Controller, K.S.R.T.C. vs. Mahadeva Shetty and another reported in A.I.R. 2003 SC 4172 in support of his contention that the amount of compensation fixed by the Tribunal should not be enhanced any further. In the said decision, the Supreme Court was dealing with a case where the claimant, a mason by profession, having monthly income of Rs.3,000/- became paraplegic because of the accident. He was hospitalised for seven weeks and thereafter, was 14 discharged. He had no permanent job and in such circumstances, the Tribunal awarded a sum of Rs.2.2 lakh as compensation. On an appeal, the High Court enhanced the same to Rs.6.25 lakh. On an appeal filed by the owner of the vehicle, the Apex Court fixed the same to Rs.4.45 lakh along with interest @ 9% p.a. In our opinion, if a mason having no permanent job earning about Rs.3,000/- a month was found to be entitled to Rs.4.5 lakh, there is no reason why the appellant having a business of his own and an income tax assessee having 70% disablement should not be given Rs.5,00,000/- when it has been proved that he had already spent Rs.1,00,000/- for his treatment and till the trial held after three years, he was unable to run his business from which he had net yearly income of Rs.57,000/-. The following observations of the Court in the said decision will rather support the appellant:
"It has to be kept in view that the Tribunal constituted under the Act as provided in S. 168 is required to make an award determining the amount of compensation which to it appears to be 'just'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has be to be borne in mind that the compensation is not expected to be a wind fall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be 15 a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just"
compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191)." Again, in paragraph 18 of the judgement, the Supreme Court gave guidelines in assessing the amount for the mental pain and sufferings in the following terms:
"A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident through his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. While fixing compensation for pain and suffering as also for loss of amenities of life the features like his age, marital status and unusual deprivation he has undertaken in his life has to be reckoned."16
The principles laid down by the Apex Court, if applied, to the facts of the present case, the sum of Rs.5,00,000/- cannot be held to be in appropriate. We, thus, find that the decisions cited by Mr Singh do not help his client in anyway.
We, therefore, find that the Tribunal below, without any basis, arrived at the figure of Rs.3.25 lakh as the total compensation payable to the appellant. We, accordingly, set aside the award impugned and enhance the same to Rs.5,00,000/-. The appellant will also be entitled to get interest at the rate of 8% per annum from the date of filing of the application until actual payment of the amount. It is needless to mention that the running of interest will stop from the date of deposit of the money by the Insurance Company.
( Bhaskar Bhattacharya, J. ) I agree.
( Partha Sakha Datta, J. )