Calcutta High Court (Appellete Side)
Bajaj Allianz General Insurance ... vs Anjali Mondal And Anr on 3 October, 2018
Author: Dipankar Datta
Bench: Asha Arora, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICATION
APPELLATE SIDE
Present : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Asha Arora
CAN 2592 OF 2018
in
F.M.A.T 201 OF 2018
with
C.O.T. 41 of 2018
Bajaj Allianz General Insurance Company Limited
v.
Anjali Mondal and Anr.
For the appellant/cross-respondent : Mr. Rajesh Singh
For the respondent/cross objector : Mr. Ashique Mondal
Heard on: August 21, 2018
Judgment on: October 3, 2018
Dipankar Datta, J. :
1. A five year old child, Biswarup Mandal (hereafter the victim), while returning home after attending a nursery school met with a road accident on 10th May, 2011 at about 11.30 hours. He was dashed by a speeding motorbike, and suffered multiple injuries. A head injury suffered by him was the most severe. Since the place of the accident was near about Egra, a small town in Purba Midnapore district where adequate medical facilities were not available, the parents of the victim perforce had to shift him to the Institute of Neurosciences, Kolkata (hereafter the Institute) on the advice of the Contai Sub-divisional hospital. The victim was treated at the Institute till May 14, 2011, whereafter he was admitted to Medline Nursing Home, Kolkata. Having been treated at the nursing home for another 5/6 days, the victim was finally discharged on May 19, 2011.
2. The parents of the victim, immediately after the accident, did not lodge any complaint with the police. It was almost 33 days after the date of the accident that Egra Police Station F.I.R. No. 92/11 dated June 14, 2011, under Sections 279/338 of the Indian Penal Code was registered on the basis of a written complaint of the father of the victim of even date. In such written complaint, it was alleged that a motorbike bearing registration no.WB-32A/8589 (hereafter the said bike) was responsible for the accident which could have even claimed the life of the victim.
3. A few days thereafter, the mother of the victim (hereafter the claimant) presented an application dated July 8, 2011 before the relevant motor accident claims tribunal (hereafter the tribunal) under Section 166 of the Motor Vehicles Act, 1988 (hereafter the Act) claiming Rs.3,25,000/- as compensation for the victim. While alleging that the said bike had caused the accident and the driver thereof was solely responsible therefor, it was also pleaded as under:
"Due to the impact of the said accidental injuries the victim has totally and permanently lost his working as well as earning capacity and has become permanently disabled and his entire future is under bleak".
In respect of the nature of injuries suffered by the victim, it was pleaded as follows:
"Multiple severe injuries all over the body especially right parietal depressed fracture with overlaying scalp loss and multiple hemorrhage and contusion, causing the victim suffered permanent disablement."
4. Upon notice of the application being served on the owner of the said bike, Sri Nirmalendu Das (hereafter Nirmalendu), and its insurer (the opposite parties, in the proceedings before the tribunal), the application was contested only by the insurer. It obtained leave under Section 170 of the Act to raise all points in defence available to it in law.
5. In all, four witnesses were produced by the claimant, including herself (PW-1), to support the case pleaded in the claim application. On behalf of the insurer, its legal manager entered the witness box to depose.
6. Having considered the oral and documentary evidence adduced by the witnesses, the tribunal rendered its award on December 21, 2017. A finding was returned that the victim suffered multiple injuries because of rash and negligent driving of the said bike, which caused the accident. The said bike having been covered by an insurance policy issued by the opposite party no.2 before it (hereafter the insurer), the tribunal fastened the insurer with the liability of bearing the burden of compensation payable to the claimant. The tribunal thereafter proceeded to compute compensation in a total sum of Rs.3,22,477/- under different heads and directed payment thereof with interest @ 9% per annum from date of filing of the claim application till its realization, within a month from the date of receipt of the copy of the award, failing which the insurer would be liable to pay further interest @ 9% per month from the date of the award till its realization.
7. It is this award that it is under challenge in the present appeal under Section 173 of the Act at the instance of the insurer.
8. The insurer had applied for stay (C.A.N. No. 2592 of 2018), which was placed before us for our consideration on July 10, 2018. Having heard the insurer and the claimant and, prima facie, not being satisfied with the contents of a disability certificate issued by a doctor (PW-4), having diploma in orthopaedics, certifying that the victim suffered 60% disability, and there being no opinion of a doctor having specialization in neurology/neuro sciences, we felt it necessary to have a fresh opinion. The victim after the accident was first treated by the doctors at the Institute and hence, we had requested the director of the Institute to constitute a medical board for examining the victim to assess his present physical condition, with special emphasis as to whether his condition has improved or worsened over the years, and also the extent of physical disability that he may have suffered as a result of the accident. The Institute was requested, while honouring such order, to exempt the parents of the victim from bearing any charges for the medical examination he would have to undergo to facilitate recording of medical opinion, required by us.
9. In compliance with such order, the Institute constituted a multi-member medical board (10 to be precise) comprising of consultant doctors drawn from various fields, i.e., neurology, neuro surgery, paediatrics, opthalmology, psychiatry, psychology and rehabilitation medicine. The victim attended the Institute and each of the consultant doctors individually examined him. The report signed by each of the consultant doctors, inter alia, reveals that the condition of the victim has significantly improved over the years and that his disability status was stated in the following words:
"Due to scalp disfigurement (Partial) and minimal bony gap subsequent to the previous head injury the current disability score according to PWD Act is 10%".
10. Copies of the report were made available to the parties. None took exception to the report.
11. While hearing the application for stay on August 21, 2018, we were informed of a cross-objection having been filed by the claimant (C.O.T. No. 41 of 2018). With the consent of the parties, we have heard the appeal and the cross-objection on its own merits dispensing with all formalities. We propose to dispose of the same together by this common judgment and order.
12. Appearing in support of the appeal, Mr. Singh, learned advocate assailed the award on various grounds.
13. The first ground of challenge was that the said bike was not involved in the accident and hence, the tribunal has erroneously fastened the liability on the insurer to compensate the claimant. Two-fold arguments have been advanced to persuade us accept this ground. Referring to the FIR, it was contended that there is sufficient reason to doubt the bona fides of the parents of the victim. The accident occurred on May 10, 2011 whereas the written complaint giving rise to the FIR is dated June 14, 2011; and, there is no explanation worthy of acceptance as to why the father of the victim waited for so many days to allege that the said bike was involved in the accident. According to him, the reason for the police being belatedly approached would be sufficiently clear from the document at page 106 of the paper-book (Ext.A) titled MEDICAL REPORT TO THE POLICE IN MEDICO LEGAL CASE, generated on May 11, 2011 and signed by Dr. R. Samanta, Paedeatric Neurologist, the medical officer attached to the Institute. Our attention was invited to that part of the document where the history of the accident, as narrated by the father of the victim, has been recorded. There, the registration no. of the offending motor bike was said to be WB-07/7534. It was also brought to our notice that the father of the victim had signed the document, raising a presumption that he had understood what the contents of the 'history of accident' were. It was, therefore, his contention that for the period starting from the date of the accident till a few days before the registration of the FIR, the father of the victim was sure that it was not the said bike but some other motor bike that had caused the accident and only with a view to obtain compensation for the unfortunate victim and to have reimbursement of the expenses incurred for his treatment, story of the said bike having dashed the victim was cooked up.
14. Without prejudice to his earlier contention that the insurer is not liable at all, Mr. Singh advanced two other contentions.
15. The tribunal worked out compensation payable to the claimant on the basis that the extent of the victim's disability is 60%, as certified by PW-4. According to Mr. Singh, the certificate of PW-4 (Ext.14) is totally unreliable since she herself admitted not having any knowledge in the field of neurology and neuro science; and, having regard to the report of the Institute which now certifies that the extent of disability is 10%, compensation may be re-determined taking such percentage into consideration subject of course to our decision on the first ground raised by him.
16. Mr. Singh also contended that the tribunal awarded interest @ 9% per annum as well as penal interest @ 9% per month, which is impermissible in law. According to him, if at all the claimant is entitled to any compensation, the insurer ought not to be saddled with interest for it did not delay the proceedings before the tribunal and also that penal interest can never be awarded.
17. It, was, accordingly prayed that the award of the tribunal holding the insurer liable ought to be set aside and the claim application dismissed.
18. We are of the considered view that the first ground of challenge urged by Mr. Singh being the sheet anchor of his argument, a decision accepting the same may not require us to deal with the other grounds raised by him as well as the cross-objection of the claimant. Let us, thus, proceed to deal with it.
19. A marketing executive of the Institute (PW-2) had proved Ext.A. According to him, Beniapukur Police Station was immediately informed after the victim was admitted for treatment at the Institute.
20. The point of belated registration of the FIR and absence of the registration no. of the said bike in Ext.A was raised before the tribunal too by the insurer. The tribunal dealt with it as follows:
"In this regard on perusal of the documentary evidence adduced by the petitioner it goes to show that on receipt of the FIR in connnection with Egra P.S Case No.92/11 dt.14.06.11 U/S 279/338 IPC, Police entered into thorough investigation and after completion of investigation submitted charge sheet against the driver of the offending vehicle no.WB32A/8589 when the said offending motor cycle as well as its connected papers and the driving licence of the accused were seized. Accordingly what has come under thorough police investigation, that cannot be negated by any initial paper issued by the institute of Neuro Sciences, Kolkata containing another number of vehicle alleged to have been involved in the accident. The fater of the victim giving the said information at the very initial stage was very much involved with the medical treatment of his dying minor son than to give proper informtion about the vehicle number involved. Accordingly, the said information contained in the paper of the institute Neuro Science, Kolkata (Exbt.A) cannot be taken into an account as sacrosanct keeping in view the serious head injury and lacerated injury over the body of his minor son. Considering the above documentary evidence on record I have no hesitation to hold that the injured Biswarup Mondal, the minor son of the petitioner sustianed serious head and lacerated body injury due to the accident caused by the offending vehicle no.WB32A/8589 on 10.05.11 at 11:30 hours on Ramnagar Egra Road due to rash and negligent driving on the part of the driver of the said offending vehicle."
The question is, should we uphold this finding of the tribunal.
21. As can be seen from the above extract, investigation of the FIR culminated in submission of police report (charge-sheet) under section 173 of the Code of Criminal Procedure. The charge-sheet dated July 31, 2011 (Ext.2) is part of the paper-book (at pgs.58-60). It appears therefrom that the accused is Nirmalendu, who surrendered in court on June 22, 2011. In terms of the charge-sheet, he was driving the said bike at the time the accident occurred. From the seizure list (a part of Ext.3) at pg.61 of the paper-book, it appears that the said bike was seized from one Anjan Kumar Maity but Nirmalendu is the registered owner thereof. The driving licence of Nirmalendu was also seized vide a separate seizure list (other part of Ext.3) at pg.62. That Nirmalendu would stand trial, in view of the aforesaid, is not in doubt. We have not been informed of the fate of the trial; hence we cannot assume that Nirmalendu has been acquitted.
22. Bearing these in mind, we had to look for the evidence of Nirmalendu. As has been noted earlier, Nirmalendu did not contest the claim application. We also learnt from Mr. Singh that the insurer did not produce Nirmalendu as a witness to support its case that the said bike was not involved in the accident. What would be the effect of Nirmalendu not deposing as a witness for himself and on behalf of the insurer, therefore, has to be considered.
23. Nirmalendu could have given the best evidence to controvert the claim/evidence of the claimant that the said bike, being driven in a rash and negligent manner, caused the accident in which the victim suffered the injuries, and thus persuade the tribunal to hold otherwise. Such evidence was not given. Even the insurer was at liberty to produce Nirmalendu as its witness to avoid its liability under the policy of insurance that Nirmalendu had bought from it. If such evidence were given by Nirmalendu on behalf of the insurer that the said bike was not involved in the accident, it would have opened up an opportunity for the claimant to subject Nirmalendu to cross-examination for eliciting the truth. It was not the case of the insurer that Nirmalendu was colluding with the claimant and staying away from deposing in Court, hence summons ought to be issued to him asking him to appear and depose. In the absence of Nirmalendu giving evidence, the provision in section 114 of the Evidence Act, 1872 is attracted. An adverse inference has to be drawn that had Nirmalendu given evidence before the tribunal, the same instead of assisting the insurer would have supported the claimant's case and that is precisely the reason as to why Nirmalendu did not appear to support its case.
24. In Vidyadhar v. Mankikrao reported in AIR 1999 SC 1441, the Supreme Court observed in regard to the action of a party deciding not to appear as a witness and to offer himself for cross-examination, in the following words :
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bom 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case AIR 1927 PC 230 (supra). The Allahabad High Court in Arjun Singh v. Birender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
25. Considering the decision in Vidyadhar (supra) and a previous decision reported in AIR 1968 SC 1413 (Gopal Krishnaji Ketkar v. Mohamed Haji Latif), a coordinate Bench of this Court in its decision reported in MANU/WB/0172/2009 (The New India Assurance Co. Ltd. V. Mita Samanta), in circumstances (where the involvement of the offending truck in an accident was disputed) almost similar as the present one, held as follows :
"16. The aforesaid principle applies with greater force when a party does not dispute the statement made in the pleading of the other side and decides to remain ex parte. We are quite conscious that in the proceedings for compensation under the under the Motor Vehicles Act, when the offending vehicle is insured, the owner the vehicle may not be interested to appear at the witness box in spite of the fact that he is a party to the proceedings. For that reason, the legislature has incorporated the provision contained in Section 170 of the Act permitting the Insurance Company to contest the proceedings on all points. Once such leave is granted, it is the duty of the Insurance Company to summon the owner of the vehicle to appear as a witness for disputing the allegation of the claimants. If the Insurance Company after taking leave of the Tribunal under Section 170 of the Act, decides not to lead anu evidence by summoning the relevant witnesses including the party whose liability it has undertaken, its position in law will be just like the party who is afraid of appearing in the witness box to face the cross-examination of the claimants. It is presposterous to suggest the Court will hold against the claimants notwithstanding the fact that in spite the allegation of rashness or negliegence against the driver, the driver or the owner of the vehicle is deliberately avoiding the Court and the claimants are unable to cross-examine the owner against the whom the compensation is claimed or the errant driver whose identity has been disclosed in a civil proceding.
17. Therefore, the Insurance Company in spite of taking leave under Section 170 of the Act having failed to summon the owner of the driver of the vehicle to disprove the allegation of the claimants of the involvement of the vehicle concerned or the rash and negligent driving, the Court is left with no other alternative but to accept the allegation of the claimants unless there is either admission of the claimants or their witness about non-involvement of the vehicle or about the contributory negligence of the victim in the accident or there exists other evidence of unimpeachable nature given by the uninterested witness showing falsity of the allegation of the claimants. In this case, there is no such admission or evidence of that nature. In this case, the driver has been charge sheeted and thus, there is no reason why the Insurance Company in spite of taking leave under Section 170 of the Act should not summon the said driver to give evidence for disclosing the truth. We are unable to presume collusion between the driver and the claimants when the driver has been indicted in the criminal proceedings. It will be a travesty of justice in the facts of the present case to disbelieve the eyewitness of the claimants when the owner the driver are neither appearing nor are they even summoned by the Insurance Company even after taking leave under Section 170 of the Act to face cross-examination at the instance of the claimants."
26. Applying the law laid down in Mita Samanta (supra) here, the conclusion is irresistible that although Mr. Singh was successful in creating a ring of doubt about the involvement of the said bike by referring to Ext.A and belated information of the accident given to Egra Police Station by the victim's father, such doubt stands completely effaced having regard to the insurer's failure in electing not to defend the claim application in a manner that the law permitted it to defend.
27. There is one other aspect that cannot be ignored. A legal executive of the insurer (OPW-1) was examined by it to defend the claim on the ground that the said bike was falsely implicated as the offending bike. In the evidence of the OPW-1 on affidavit, a part of paragraph 4 reads as follows:
"I have been informed by our Ld. Advocate about the documents filed by claimant in this case with their evidence as well as the evidence laid by them and as such I came to know that the witness from Institute of Neuroscience has been examined as P.W. 2 in this case and during his deposition he admitted that intimation was duly given to the Beniapukur P.S. regarding admission of the victim in connection with being injured by Road Traffic Accident. During evidence the said witness also produced copy of such intimation given to police and from the said document it is clear that not the alleged offending motor cycle bearing Registration number WB 32 A 8589 but another motor cycle bearing Registration no. WB 07 7534 was actually involved in the alleged accident. The said document was also earlier procured by the investigator appointed by us after receipt of summons isued by your Honour in connection with this case and the said investigator also collected the aforesaid document during his course of investigation. However as the said document is already in the case record, as I have been intimated by our Ld. Advocate on record, I am not filing the same again. Therefore, I most respectfully submit that the alleged offending vehicle was not at all involved in the alleged accident and the same has been falsely implicated in this case. Therefore we are not at all liable to pay any compensation to the claimant."
28. It is clear from the above evidence that the insurer had appointed an investigator in connection with the claim case and in course of investigation Ext.A had been collected by him. Strangely, the insurer did not bring on record the report of investigation prepared by its own investigator. If indeed the investigator had collected materials to establish that it was not the said bike which caused the accident, the same would definitely have been produced as a piece of evidence to have the claim application rejected. In such an eventuality, the claimant could have had the opportunity to cross-examine the said investigator. That the report was withheld from the tribunal gives us reason to believe that had it been placed before it, the insurer would have been placed in a disadvantageous position and, thus, it was not produced. The ratio of Mita Samanta (supra) applies here too, to negate Mr. Singh's contention.
29. That apart, no discussion on the point of delayed FIR would be complete without a reference to the decision in (2011) 4 SCC 693 (Ravi v. Badrinarayan). It was held there as follows:
"17. It is well settled that delay in lodging the FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
18. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so the contents of the FIR should also be scrutinised more carefully. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences.
19. Lodging of FIR certainly proves the factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be a variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.
20. In the case in hand, the Claims Tribunal as well as the High Court, committed grave error in not appreciating the mental agony through which Suresh was passing, whose son was severely injured. In the light of the aforesaid discussion, we are of the considered opinion that MACT as well as the High Court committed error in coming to the conclusion that lodging the FIR belatedly would result in dismissal of the claim petition."
30. The claimant in course of the proceedings before the tribunal had proved the discharge summary, advices, reports of investigation and final bill of the Institute (Ext.10 collectively). The report that was placed before us reveals that the victim was discharged on 'Risk Bond' on May 14, 2011 with a diagnosis of road traffic accident with 'Head Injury (Right parietal depressed fracture with overlying scalp loss)'. He had also undergone 'wound debribement with depresed fracture fragments of skull bone excision, dural tear repair, Ear (Pinna) repair'.
31. Having regard to the severe injury that the victim had suffered coupled with the examinations, investigations and surgical operations that were conducted soon after his admission at the Institute, one has to make a realistic assessment of the psychological condition of the victim's parents immediately after the accident and till such time they could reasonably be assured that the victim was out of danger. Contai Sub-Divisional Hospital where the victim was first taken referred him to any of the State hospitals mentioned in the card (Ext.8) for admission. Initial refusal of a hospital to admit an emergency patient, irrespective of his/her age, is sufficient to create fear, agony, distress and despair in the minds of the patient party that all is not too well with him/her. The anxiety, stress, trauma, emotions, etc. associated with a road accident of the present nature involving the life of a (child) victim, which the parents had to encounter on the fateful day, are understandable. Probability of the parents becoming nervous wrecks cannot be ruled out. Taking a child of 5 years to a place approximately 150 kms away must have taken its toll on the father of the victim. In such circumstances, to pin him down to what he said the day following the accident regarding the registration no. of the motor bike responsible for the accident, as recorded in Ext. A, would be most unfair. That apart, evidence on record is sufficient to establish that the victim had to be shifted from the Institute to a nursing home wherefrom he was discharged 10 days after the accident. Return of normality in the minds of the parents of the victim as well as gradual improvement of the victim's health must have taken a few weeks' time after such discharge from the nursing home. Bearing in mind the guiding principles laid down in Ravi (supra), we have no hesitation in rejecting Mr. Singh's contention that belated information given to the police must be viewed with suspicion eroding the credibility of the claim.
32. The Supreme Court in its decision reported in MANU/SC/0577/2009 (Bimla Devi v. Himachal Road Transport Corporation), relied on by Mr. Mondal, has observed that strict proof of an accident by a particular bus/vehicle in a particular manner may not be possible and it would be sufficient if the claimants establish their case on the touchstone of preponderance of probability. We are also reminded of another decision reported in 2011 (2) T.A.C. 1 (S.C.) (Kusum Lata v. Satbir) where caution has been sounded that in a case relating to motors accident claims, the claimants are not required to prove the case as is required to be done in a criminal trial.
33. The father of the victim while disclosing the history of the accident to the doctor referred to the registration no. of a motor bike other than the said bike but later, it did transpire that the said bike was involved resulting in its reference being given in the written complaint as the offending bike as well as in the claim application. In course of investigation by the police, the involvement of the said bike also transpired. That apart, neither could the insurer dislodge the version of PW-1 that the said bike caused the accident, nor did the insurer produce the report of the investigator appointed by it. Having regard to the materials before the tribunal, a conclusion on facts that the said bike was probably the offending bike could have been and was rightly reached.
34. Mr. Singh placed reliance on a decision of the Supreme Court of recent origin, reported in 2018 (1) T.A.C. 355 (SC) (Anil v. New India Assurance Co. Ltd.), to contend that false cases claiming compensation should not be encouraged by the tribunals and the high courts. We have perused the decision and find that on the facts before Their Lordships, the conclusion was inescapable that the tribunal had failed to notice certain "disturbing facts" which the relevant High Court correctly noticed, leading to reversal of the award of the tribunal. The Supreme Court, agreeing with the High Court, upheld the decision under challenge before it.
35. There was indeed a disturbing fact here but for the reasons discussed above, we have no hesitation to spurn Mr. Singh's contention that the said bike was not involved in the accident.
36. Having answered the first and substantial question arising for our decision thus, and bearing in mind that the said bike was covered by a policy issued by the insurer, we hold that the insurer cannot avoid its liability under such policy; hence, it is liable to bear compensation payable to the claimant.
37. The next question centres round the compensation that could be considered "just" on facts and in the circumstances. Pressing the cross-objection, Mr. Mondal claimed Rs.7,97,477/- (Rs.3,00,000/- each for pain, suffering and trauma, and loss of amenities of life and marriage prospects of the victim, Rs.72,477/- for medical expenses, Rs.1,00,000/- for future treatment and Rs.25,000/- for transportation and litigation costs).
38. Law has been settled by the Supreme Court in its decision reported in MANU/SC/0878/2013 (Mallikarjun v. Divisional Manager, National Insurance Co. Ltd.) that a minor can have no income and thus, compensation can be awarded under non-pecuniary heads. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. In addition, the other permissible heads for working out compensation would be to reimburse actual expenses incurred for treatment/future treatment, transportation, assistance of attendant, etc. Such decision has been followed by the Supreme Court in its subsequent decision reported in 2014 ACJ 2550 (SC) (Kiran v. Sajjan Singh). We would be guided by these decisions in re-determining compensation payable to the claimant.
39. In paragraph 12 of the decision in Mallikarjun (supra), it has been held that though it is difficult to have an accurate assessment of compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various high courts, appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, inter alia, if the disability is above 10% and upto 30% to the whole body, Rs. 3 lakh and for permanent disability upto 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick. Insofar as the victim in that case before the Supreme Court is concerned, he had suffered 18% disability and, thus, the Court proceeded to award Rs.3,00,000/- on account of pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, etc.
40. The victim here has been certified by the Institute to be disabled to the extent of 10% for the purposes of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1993. There is also a finding that over the last few years there has been significant improvement in his health condition. If the Institute had certified his disability as more than 10%, the claimant in terms of the said decision would be entitled to Rs.3,00,000/- without much argument. It is because of 10% disability certified by the Institute that Mr. Singh has contended that the claimant, under the head of the victim's disability, is not entitled to anything more than Rs.1,00,000/-.
41. For two reasons, we find ourselves unable to agree with Mr. Singh. The Supreme Court has held in Mallikarjun (supra) that for disability to the extent of 10%, compensation should be Rs.1,00,000/-, unless there are exceptional circumstances to take a different yardstick. A different yardstick is available for application in the facts and circumstances of the present appeal. The report of the Institute is categorical that the victim's physical condition has significantly improved over the years. It is quite possible that the extent of disability, which was more previously, by gradual improvement of the physical condition of the victim due to his growing age and/or treatment or otherwise, has reduced and is presently at 10%. We do not consider that the extent of disability assessed by the Institute falling short of 10.1% would be sufficient to deprive the claimant of the sum of Rs.3,00,000/-. There is one other weighty reason. The victim in course of proceedings was present before us on one occasion. We noticed the deep scar present over the right parietal without growth of hair, leading to a disfigurement of sorts and making his appearance somewhat different from a child of his age. Considering that the victim will have to bear this scar for the rest of his life, we consider it appropriate to award a sum of Rs.3,00,000/- towards pain, suffering and trauma and Rs.1,00,000/- towards loss of amenities of life and prospect of marriage. In addition thereto, the claimant shall be entitled to Rs.1,00,000/- for future treatment of the victim, Rs.72,477/- towards reimbursement of medical expenses and Rs.25,000/- for transportation and litigation costs, i.e., in all a sum of Rs.5,97,477/-.
42. What remains is the question of awarding interest @ 9% by the tribunal. It could be true that the insurer did not prolong the proceddings before the tribunal; however, it has not been shown either that the claimant prolonged the proceedings. Having regard to the provision in section 171 of the Act, we hold that the tribunal was justified in awarding interest @ 9% per annum from the date of filing of the claim application. Mr. Singh's contention, accordingly, stands rejected.
43. In compliance with an order dated June 14, 2018 passed by a coordinate Bench, the insurer has secured Rs.5,34,014/- apart from making the statutory deposit of Rs.25,000/-.
44. The Registrar General is directed to release Rs.5,69,014/- (Rs.5,34,014/- + Rs.25,000/-), together with accrued interest, in favour of the claimant as early as possible of an approach being made in this behalf by her, in accordance with law. However, it shall be ensured that requisite court fees are deposited by the claimant before such release.
45. The insurer shall credit Rs.28,463/- in the bank account of the claimant by electronic fund transfer, together with interest @ 9% per annum on Rs.75,000/- (Rs.5,97,477/- - Rs.3,22,477/-) from the date of filing of the claim application till date of payment in terms of this order, within 2 months of service of a certified copy thereof. The claimant, while serving copy of the certified copy of this order shall inform the insurer the particulars of her bank account to facilitate such fund transfer.
46. With the aforesaid modification of the impugned award, the appeal as well as the cross-objection stands disposed of. The interlocutory application too stands disposed of. There shall be no order for costs.
(ASHA ARORA, J.) (DIPANKAR DATTA, J.)