Calcutta High Court (Appellete Side)
Mr. Krishanu Banik ... For The vs M/S. Pest Control (India) Pvt. Ltd on 11 February, 2020
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
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8 11.02.2020 F.M.A. 660 of 2003
SB Ct. No. 9
In Re : Srikanta Dutta
Mr. Krishanu Banik ... For the Appellant
Mr. S.N. Ganguly ....For the Respondent No. 2
Mr. Rajesh Singh .... For the Respondent No. 1
The matter is taken up subject to the undertaking by Mr. Banik to file Affidavit of service during the course of the day. If not, then the order passed today shall stand recalled, and the appeal shall stand dismissed. Mr. Rajesh Singh, learned counsel seeks to enter appearance on respondent no. 1. He undertakes to file his Vakalatnama within the course of this week, if necessary, then in the department.
This is an appeal from an award dated 10.07.2000 passed in M.A.C. Case No. 29/292(A) of 2000/1997 passed by the learned Judge, Special Court (E.C. Act) - cum - Motor Accident Claims Tribunal, Burdwan.
By the said award the learned Tribunal was pleased in a case where the claimant appellant lost vision in one eye to award the grand sum of Rs.60,550/- rounded off to Rs.61,000/- with interest @ 12 per cent only if there was default in payment of the same within three months from the date thereof.
The said award has been challenged by Mr. Banik, learned counsel appearing for the Claimant / Appellant inter alia on the basis of the following grounds;
I. For that the Learned Tribunal Judge erred in law and fact in awarding the compensation of Rs.61,000/- towards the claimant who suffered permanent partial disablement in the motor vehicle accident which took place on 11.01.1997 at 3-30 p.m. on New Durgapur Express High Way Road near Ajhapur within P.S.
- Jamalpur, District - Burdwan and as such the impugned award 2 is bad in law and the same is liable to the enhanced. II. For that the Learned Tribunal Judge was wrong in not assessing the pecuniary and non pecuniary damages towards the claimant as per guidelines of the Hon'ble Court as well as other Hon'ble High Courts in India including this Hon'ble Court and as such the impugned award is bad in law and the same is liable to be enhanced.
III. For that the Learned Tribunal Judge was wrong in not assessing the special as well as general damages towards the claimant who suffered permanent disability in his person by the said motor accident and as such the impugned award is bad in law and the same is liable to be enhanced.
IV. For that the Learned Tribunal Judge was wrong in not assessing the compensation on the heads of mental expenses and future medical expenses and as such the impugned award is bad in law and the same is liable to be enhanced. VI. For that the Learned Tribunal Judge was wrong in not awarding the interest @12% per annum over the total awarded amount from the date of filing of the claim application and as such the impugned award is bad in law and the same is liable to be enhanced.
Even though the finding as to the loss of income has also been impugned, it was very fairly submitted by Mr. Banik that this was a formal challenge and he is not seriously challenging this since the Learned Tribunal has correctly assessed the loss of income.
On the face of if a person loses vision in one eye, then under the Employees Compensation Act there is 40 % permanent partial disability. In such case while the learned Tribunal has correctly assessed the pecuniary compensation, I am afraid and in this I agree with with Mr. Banik that the finding as to special 3 damages or non pecuniary compensation to the tune to Rs.12,000/- in wholly without any discussion and contrary to the materials on record and thus the said conclusion cannot be sustained.
Why does the person get non pecuniary compensation? The answer is to be found in paragraph 9 of a judgement of R.D. Hattangadi, Appellant vs. M/S. Pest Control (India) Pvt. Ltd. and others, Respondents reported in AIR 1995 Supreme Court Cases 755. It reads 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-pecunioary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e.on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
What hopelessness is there in the life of a victim who had only the other day seen life in stereovision and vivid colour, who 4 has been rendered incapable of doing so for ever! The mono vision that he has now, after the accident and proximately caused by it, not only robbed him of perspective and the experience of nuances of light and shadow, but also of the ineffable sense of well being which being able to see with both eyes brings. That apart there is frustration, there is essence of hopelessness and a feeling of disability including the inability to see from one eye which makes him less than perfect for the job of a khalasi in a truck or passenger vehicle and all those hundreds of things which are comprised in paragraph 9 of R.D. Hattangadi's case (supra).
I have seen from the materials on record that the Claimant / Appellant had lost the vision of right eye completely and for this he was not able to work in the post which naturally makes him feel useless and that this has rendered him frustrated and helpless, in terms of the judgement in R.D. Hattangadi's case (supra).
If a man used to earn Rs.30 per day and had employment for 22 days of a month he would have Rs.660/- per month which would come to Rs.7920/- per year. Rounding it off to Rs.8000/- this would have been his annual income. From 1997 he has been unable to work. The claim petition was filed on 05.06.1997 and it took until July 2000 to be decided finally. So for three years waited is eagerly to find out the fate of his plaintive cry for justice. He was given only Rs.12,000/- for non-pecuniary compensation. Taking his annual income to be Rs.7920/- rounded off Rs.8000/- per years in three years he would have got at least Rs.24,000/- as wages in three years.
Mr. Banik submits that since this could not be called permanent employment throughout the month, the judgement in the case of National Insurance Co. Ltd. vs. Pranay Sethi and 5 others reported in 2017 ACJ 2700 would be applicable, and this grants him 40 per cent of the additional income since his age was 37 at the time of accident. The multiplier in terms of Sarala Verma and Others vs. Delhi Transport Corporation and Another reported in 2009 ACJ 1298 would be 15.
I find that that the sum given for medical treatment being Rs.1000/- is too little considering the bills submitted by the Appellant, which, though all of them were not made exhibits. He submits that under the Motor Vehicles Act, 1988, where the learned tribunal exercises inquisitorial jurisdiction, the fact that all the medical documents were not made exhibits, does not prevent the tribunal from considering them for the purpose of assessing reasonable compensation on the ground of medical expenses as long as they were filed with the deposition of the claimant, which was done in this case.
Mr. Banik learned Advocate also referred to the Judgement of M.L Subbaraya Setty vs. M.L. Nagappa Setty from Indiankanoon, a net based law resource, for the proposition that under the provision of Motor Vehicles Act 1988 there is no restriction that compensation can be awarded only upto the amount claimed by the Claimant. In an appropriate case where from the evidence brought on record the Tribunal or the Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal or Court may pass such award subject only to the condition that it should be just compensation. I have increased the amount of compensation to more than Rs.1 lakh as claimed on consideration of the above proposition, since as appears from this judgment, I consider it just compensation.
Mr. Banik submits that in the case of Sarala Verma (supra) will be applicable for the purpose of considering the multiplier whereas Pranay Sethi's Case (supra) would be 6 applicable for considering future prospects and he has given to the following chart as reasonable compensation taking the non- pecuniary damages compensation to Rs.1 lakh which would roughly be the amount that I was arriving at through a procedure of considering such medical bills which were placed on record, the consideration of what he had lost, the frustration, the stress, the helplessness as aforesaid.
Mr. Singh, for the respondent no. 1 has strenuously opposed the submissions of Mr. Krishanu Banik and submitted that it was not given by the Tribunal and for which there is insufficient evidence on record. This Court ought not to pass any award especially it is more than the amount claimed and no modification of the award is warranted.
With respect to Mr. Singh, his objections are not well founded. He could not deny that the learned tribunal did not at all consider the facts of the case in their proper perspective and that Rs.12000 for loss of vision in one eye was too little by way of non-pecuniary compensation and nor could he satisfy me why the medical documents were not considered, even though the learned tribunal was exercising inquisitorial jurisdiction. Therefore, his objections fail.
The multiplier and the percentage of the income as shall appear from the chart appended thereto.
Annual Income - Rs. 26,400/- (Monthly Income - Rs. 2200/- ) Future 40% -- Rs. 10, 560/-
Total -- Rs. 36,960/-
40% of Rs. 36,960/- = 14,784/-
Use of multiplier 15 = 2,21,760/-
Non-pecuniary
Damages = 1,00,000/-
Total = 3,21,760/-
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Thus, I come to a total of Rs. 3,21,760/-. The learned Tribunal has decided that the rate of interest would be 12% per annum (simple) which discretion it has, which I do not want to interfere with, though I cannot for my life ascertain why the discretion was so exercised by the learned tribunal to have made it payable only in the case of default in payment. There is no finding that the hearing of the claim case was delayed due to any reason attributable to the appellant. Thus there is no justification not to make the interest payable from the date of filing of the claim case. Hence, I believe that the interest should be payable from June 5, 1997, when the case was filed.
This sum I have arrived at as above, is on the basis of the materials on record and the chart given by Mr. Banik on the same basis and I consider it just compensation for the purposes of Section 166 of the Motor Vehicles Act, 1988.
This has to be reduced by the sum of Rs.61,000/- i.e. (Rs.3,21,760/- - Rs. 61,000/- = Rs.2,60,760/-) already paid by the Respondent no. 1 to find out how much is to be paid by the respondent no. 1 on count of principal. There shall, therefore, be an award for a sum of Rs.3,21, 760/- after crediting the amount of Rs.61,000/- has already paid together with interest @ 12% per annum (simple) from June 5, 1997, the date of filing of the claim case. The amount shall be paid within three months from the date of communication of this order alongwith the particulars of the bank account of the appellant, to the Respondent No. 1.
The amount shall be paid to the appellant through its bank account whose particulars shall be given to the respondent no. 1 by the appellant through Mr. Banik within fourteen days from date.
The appeal therefore succeeds and is allowed, to the extent as mentioned above. There shall be no order as to costs. 8 (PROTIK PRAKASH BANERJEE, J.)