Rajasthan High Court - Jaipur
Premnarayan S/O Sh. Shivlal vs Mukul Mishra S/O Dr. Sudhakar Mishra ... on 2 June, 2023
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2023/RJJP/011262] (1 of 10) [CMA-4955/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 4955/2019
Premnarayan S/o Sh. Shivlal, B/c Jatav, R/o Village Jahanagar,
Morda, Tehsil Todabheem, District Karauli
----Appellant
Versus
1. Mukul Mishra S/o Dr. Sudhakar Mishra, R/o A 15,
Mahaveer Udhyan, Bajaj Nagar, Jaipur (Driver Of The
Vehicle)
2. Smt. Charu Mishra W/o Mukul Mishra, R/o A 15,
Mahaveer Udhyan, Bajaj Nagar, Jaipur (Owner Of The
Vehicle)
3. L And T General Insurance Company Limited, Opposite
Bmw Showroom, Tonk Road, Jaipur And Sixth Floor, Ct-2,
Plot No. 177 Cst Road, Santakruj, Mumbai 400098 Cover
Note No. 51013150043562 Valid From 26.05.2015 To
25.05.2016 And Hdfc Ergo Insurance Company Limited, 2
C 98, Third Floor Upasana Tower, Subhash Marg, C-
Scheme, Jaipur Through Manager (Insurance Company Of
The Vehicle)
----Respondents
For Appellant(s) : Mr. Kamal Gupta
For Respondent(s) : Mr. C.S. Jodha
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Judgment
02/06/2023
1. This is the claimant's appeal for enhancement of the compensation awarded by the learned Motor Accident Claims Tribunal No.2, Jaipur Metropolitan, Jaipur (for short, "the (Downloaded on 11/11/2023 at 05:46:10 PM) [2023/RJJP/011262] (2 of 10) [CMA-4955/2019] Tribunal") vide award dated 01.05.2019 passed in Claim Case No.1065/2015.
2. The appellant injured claimed compensation of Rs.28,00,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act of 1988') for the injuries sustained in the motor accident on 08.09.2015.
3. Learned Tribunal on a close scrutiny of the entire evidence led before it held that appellant Premnarayan sustained injuries in the motor accident on 08.09.2015 and the accident occurred due to rash and negligent driving of the driver of the offending vehicle Car bearing registration No. RJ14-CJ-9830 and as the offending vehicle, on the date of the accident, was insured with respondent No.3 - Insurance Company, the Insurance Company was liable to pay compensation to the claimant.
4. Learned Tribunal assessed the income of the injured at Rs.5,382/- per month and by applying a multiplier of 17 computed compensation of Rs.2,42,755/- towards the loss of income and considering the permanent disability as 22.11% awarded a sum of Rs.3,85,147/-, the break up of which is as under:-
Medical Expenses Rs.38,392/-
Permanent Disability Rs.2,42,755/-
Hospital Expenses Rs.4,000/-
Physical and Mental Agony Rs.50,000/-
Nutrition and Transportation Rs.50,000/-
Expenses
Total Compensation Rs.3,85,147/-
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[2023/RJJP/011262] (3 of 10) [CMA-4955/2019]
5. Learned Tribunal also awarded interest @ 7.5% per annum from the date of filing claim petition.
The appellant has challenged the impugned award on the following grounds:-
(A) Learned Tribunal has wrongly assessed the income of the injured considering him semi-skilled labour and applying the prevalent rates on the date of occurrence as per the Notification of the Labour Department, whereas, the appellant was earning Rs.15,000/- per month.
(B) The award under the head of physical pain and mental agony is inadequate considering the fact that the claimant sustained a permanent disability of 22.11%, received grievous injuries and remained admitted in the Hospital for 8 days.
(C) The interest awarded to the tune of 7.5% per annum is inadequate and the claimant is liable to get 12% interest on the awarded money.
6. Learned counsel for the appellant also contended that despite recording the fact regarding disability of the claimant to ply the vehicle in future and loss of earning capacity, learned Tribunal did not asses the future prospects and awarded a meager award under the head of pain & sufferings.
7. Learned counsel for the Insurance Company justified the compensation awarded to the appellant under the various heads and prayed for dismissal of the appeal.
Analysis:-
8. Whether the learned Tribunal has wrongly assessed the income of the injured considering him semi-skilled labour and (Downloaded on 11/11/2023 at 05:46:10 PM) [2023/RJJP/011262] (4 of 10) [CMA-4955/2019] applying the prevalent rates on the date of occurrence as per the Notification of the Labour Department, whereas the appellant was earning Rs.15,000/- per month?
9. On the above fact, the claimant failed to prove his monthly income as Rs.15,000/- per month. Apart from oral evidence, no credible proof was produced indicating his income as Rs.15,000/- per month.
10. In the absence of income proof, learned Tribunal considered him a driver and after taking notice of the prevalent rates applicable for the daily wagers computed his monthly salary as Rs.5,382/- per month applicable for semi-skilled workers.
11. As per the Labour Department Notification issued from time to time under Section 3 of the Minimum Wages Act drivers plying Light Motor Vehicles and Heavy Motor Vehicles fall in the category of Skilled Labours. Learned Tribunal though considered him a driver but placed the claimant in the category of Semi Skilled Labour. The above view of the leaned Tribunal is not in accordance with the Notifications issued under the relevant Act. Learned Tribunal ought to have considered the appellant in the category of Skilled Labour while assessing the monthly income of the appellant. Therefore, on that account, the compensation awarded to the appellant needs to be altered.
12. Admittedly the appellant suffered injuries due to a vehicular accident on 08.09.2015 and at the relevant time, the minimum wages prescribed for the skilled labours were Rs.5,642/- per month. Therefore, considering that due to the accident injured suffered 22.11% permanent disability and at the relevant time his (Downloaded on 11/11/2023 at 05:46:10 PM) [2023/RJJP/011262] (5 of 10) [CMA-4955/2019] age was 29 years, by applying multiplier of 17 the modified damages under the head of permanent disability comes as :
Rs.5642X12x17x22.11/100=2,54,480/-.
13. Whether award under the head of physical pain and mental agony is inadequate considering the fact that the claimant sustained a permanent disability of 22.11%, received grievous injuries and remained admitted in the Hospital for 8 days and the claimant is entitled to get the amount under the head of future prospects?
Future Prospects:-
14. Under the head of physical and mental agony, learned Tribunal awarded a sum of Rs.50,000/- lump sum after considering the fact that the claimant has suffered a permanent disability of 22.11%, received two fractures in his limbs and remained in the hospital for eight days. Learned Tribunal did not award any amount under the head of future prospects.
15. Before dealing with the above facts, it would be relevant to refer to the judgment of Hon'ble Apex Court rendered in the matter of M.R. Krishna Murthy vs. The New India Insurance Company Limited (Civil Appeal No 2476-2477/2019, decided on 05.03.2019), wherein, Hon'ble Apex Court after elaborately dealing with the various judgments passed by the Hon'ble Supreme Court enunciated the following principles for assessing the damages and future prospects:-
"From the conjoint reading of the aforesaid judgment, inter alia, following principles can be culled out which would be relevant for deciding the instant appeal:-
(I) In those cases where the victim of the accident is not an earning person but a student, while assessing the compensation for loss of future earning, the focus of the (Downloaded on 11/11/2023 at 05:46:10 PM) [2023/RJJP/011262] (6 of 10) [CMA-4955/2019] examination would be the career prospect and the likely earning of such a person in future. For example, where the claimant is pursuing a particular professional course, the poser would be: what would have been his income had he joined a service commensurating with the said course. That can be the future earning.
(II) There may be cases where the victim is not, at that stage, doing any such course to get a particular job. He or she may be studying in a school. In such a case, future career would depend upon multiple factors like the family background, choice/interest of the complainant to pursue a particular career, facilities available to him/her for adopting such a career, the favourable surrounding circumstances to see which would have enabled the claimant to successfully pick up the said career etc. If the chosen field is employment, then the future earning can be taken on the basis of salary and allowances which are payable for such calling. In case, career is a particular profession, the future earning would depend on host of other factors on the basis of which chances to achieve success in such a profession can be ascertained.
(III) There may be cases like Oriental Insurance Company Limited vs. Deo Patodi & Ors. : (2009) 13 SCC 123 where even a student, the claimant would have made earnings on part-time basis or would have received offer for a particular job. In such cases, these factors would also assume relevance.
(IV) After ascertaining the likely earning of the victim in the aforesaid manner, the nature of injuries and disability suffered as a result thereof would be kept in mind while determining as to how much earning has been affected thereby. Here, impact of injuries on functional disability is to be seen. In case of death of victim, it would result in total loss of earning. In the case of injuries, the nature of disability becomes important. Such an exercise was undertaken in the case of N. Manjegowda."
16. Further Hon'ble Apex Court in the matter of Civil Appeal Nos.9070-9071/2022 (Arising out of Special Leave Petition (Civil) Nos. 481-482 of 2019) Mohd. Sabeer @ Shabir Hussain vs. Regional Manager, U.P. State Road Transport Corporation held that:-
"It is a well-settled position of law that in the cases of permanent disablement caused by a motor accident, the claimant is entitled to not just future loss of income, but also future prospects. It has been reiterated by this Court in multiple instances that "just compensation" must be interpreted in such a manner as to place the claimant in the same position as he was before the accident took place."(Downloaded on 11/11/2023 at 05:46:10 PM)
[2023/RJJP/011262] (7 of 10) [CMA-4955/2019] In that case, Hon'ble Apex Court awarded the future prospects to the injured as compensation whilst applying 40% as an addition as per the law laid down in the case of National Insurance Company Ltd. v. Pranay Sethi & Ors. : SLP (Civil) No.25590/2014, decided on 31.10.2017.
17. In light of the above, the matter requires consideration of whether, under the head of future prospects, the appellant is entitled to get just compensation.
18. Learned Tribunal after evaluating the nature of injuries caused, the source of income, family liabilities, nature of the job, and capacity to work in the future to the appellant concluded that:-
"21- vc iz"u gS fd ;kph dks ikSf'Vd vkgkj] [kkus&ihus dh en esa D;k jkf"k fu/kkZfjr dh tkosA bl laca/k esa ;kph dks lEiw.kZ "kjhj dh 22-11 izfr"kr LFkkbZ fu;ksZX;rk dkfjr gqbZ gS ftlls ;kph dks "kkjhfjd o ekufld lUrki gqvk gSA ;kph vkWVksfjD"kk pykus dk dk;Z djrk FkkA vkWVksfjD"kk pykus dk dk;Z esgur dk dk;Z gksrk gSA ftlds fy, g'Viq'V ,oa QqfrZyk gksuk vR;f/kd vko";drk gksrh gSA ijUrq mDr fu%"kDrrk ds pyrs og vc mDr dk;Z djus esa iw.kZ :i ls vleFkZ gSA mldks ikjhokfjd ftEesnkfj;ksa dh orZeku esa o rkmez fuoZgu djus esa ijs"kkuh gksxhA mls Hkfo'; esa Hkh fpfdRlk nokbZ;ksa ij gksus okys O;;] iksf'Vd vkgkj dh vko";drk jgsxhA mDr pksVksa ds pyrs ;kph dks iksf'Vd Hkkstu] nw/k bR;kfn [kk| inkFkksZa dh vko";drk jgh gksxh RkFkk Hkfo'; esa Hkh vko";drk jgsxhA ;kph dks dkfjr pksVksa ds pyrs Hkfo'; esa Hkh bZykt dh vko";drk jgsxh blls bUdkj ugha fd;k tk ldrk gSA mDr nq?kZVuk ds pyrs dkfjr pksVksa ,oa ÝsDpj ds dkj.k og vc vius nSfud fØ;kdyki vkfn ds dk;ksZa dks fu;fer :i ls djus esa l{ke ugha gS] vr% ;kph ikSf'Vd vkgkj] [kkus&ihus] ifjogu O;; ,oa Hkfo'; esa nokbZ;ksa ij fd;s tkus okys O;; dh en esa 50]000@& : fu/kkZfjr fd;s tkrs gSaA"
19. The above conclusion of the learned Tribunal is not been controverted by the respondent Insurance Company. Therefore, in my considered opinion, learned Tribunal ought to have allowed the compensation to the appellant under the head of future prospects (Downloaded on 11/11/2023 at 05:46:10 PM) [2023/RJJP/011262] (8 of 10) [CMA-4955/2019] also but the learned Tribunal after the specific finding did not award any compensation under the above head.
20. Applying the analogy of Pranay Sethi's case (supra) the appellant falls in the classification of 40% for computing the compensation under the head of future prospects. After taking into consideration the loss of income due to Permanent Disability the amount under the head of future prospects is computed as follows:-
Rs.2,54,480x40/100=1,01,792/-
NON-PECUNIARY COMPENSATION :-
21. Hon'ble Apex Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd. : 5 (1995) 1 SCC 551 while dealing with the different heads of compensation in injury cases held that:-
"Broadly speaking while fixing the 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 attendance; (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 the 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 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."
22. Learned Tribunal under the non-pecuniary head awarded Rs.50,000/- towards the head of loss and suffering. In my view, (Downloaded on 11/11/2023 at 05:46:10 PM) [2023/RJJP/011262] (9 of 10) [CMA-4955/2019] the awarded amount is just and reasonable looking at the injuries suffered by the appellant.
23. Whether the interest awarded to the tune of 7.5% per annum is insufficient and the claimant is liable to get 12% interest on the awarded money?
24. The Nationalized Banks are now granting interest at the rate varying in between 7% to 7.50% on fixed deposits for more than one year up to three years. The rate of interest depends upon the rate of inflation and the supply and demand of credit. As per the RBI Guidelines presently, no bank is offering more than 7.5% as interest on the FDR. Therefore, in my view, the learned Tribunal has awarded a just interest over the compensation amount. Hence this Court does not find any inadequacy in the interest component awarded to the appellant.
25. On the basis of the abovementioned facts and analysis, this Court is of the opinion that the just compensation to be awarded to the claimant/appellant under different heads ought to be as under:-
Loss Of Earning Capacity due to Rs.2,54,480/-
Functional Disability Future Prospects Rs.1,01,792/- Medical Expenses Rs.38,392/- Hospital Charges Rs.4,000/-
Diet and transportation charges Rs.50,000/-
Pain and suffering Rs.50,000/- TOTAL Rs.4,98,664
26. In view of the aforesaid facts and circumstances, the impugned judgment is liable to be modified as above and the claimant/appellant is entitled to get compensation of (Downloaded on 11/11/2023 at 05:46:10 PM) [2023/RJJP/011262] (10 of 10) [CMA-4955/2019] Rs.4,98,664/- instead of Rs.3,85,147/- awarded by the learned Tribunal. On the enhanced amount of compensation i.e. Rs.1,13,517/- the appellant would be entitled to get interest @ 7.5% per annum from the date of making the claim petition as per the terms of Tribunal.
27. The Insurance Company is directed to deposit the enhanced amount of compensation after computing the amount already deposited (in terms of the impugned award dated 01.05.2019) alongwith the above interest in the saving bank account of appellant through learned Tribunal within a period of one month from the date of this judgment.
28. Consequently, the appeal stands allowed.
(PRAVEER BHATNAGAR),J ASHWINI KUMAR CHOUHAN /680 (Downloaded on 11/11/2023 at 05:46:10 PM) Powered by TCPDF (www.tcpdf.org)