Rajasthan High Court - Jodhpur
Pawan Kumar vs Chhaganlal And Ors on 9 January, 2024
[2023:RJ-JD:45039]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 445/2004
Pawan Kumar S/o Shri Kishanji Dhoot, r/o Holi Chowk, Nander
Maharashtra.
----Appellant
Versus
1. Chhaganlal S/o Shri Savalalji Kumhar, r/o Lalmadari, Tehsil
Nathdwara, District Rajsamand. [dropped by order dated
31.10.1996]
2. Smt. Ladkanwar W/o Shri Shantilal Lodha, r/o Holimagra,
Tehsil Nathdwara, District Rajsamand.
3. Smt. Krishna Kumari W/o Shri Bhanwarlal Thathera, r/o
Gujarpura, Tehsil Nathdwara, District Rajsamand.
4. The Oriental Insurance Company Limited, Bapu Bazar, Udaipur
(Rajasthan).
5. Shri Jagdish Chandra S/o Shri Kesavlalji Chouhan through J.K.
Travels, Sahibagh, Ahmedabad [dropped vide order dated
8.2.1996].
----Respondent
For Appellant(s) : Mr. Rishabh Shrimali
For Respondent No.4 : Mr. L.D. Khatri
Insurance Company
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment Judgment Reserved on : 14/12/2023 Judgment Pronounced on : 09/1/2024
1. The challenge in the present appeal is to the award dated 30.8.1999 passed by the Judge, Motor Accident Claims Tribunal, Rajsamand on the file of M.A.C.Case No.71/98 wherein and whereby the claim of the appellant for compensation for injury sustained by the appellant was partly allowed granting a compensation of Rs.3,31,000/- with interest. (Downloaded on 09/01/2024 at 08:45:18 PM) [2023:RJ-JD:45039] (2 of 12) [CMA-445/2004]
2. The present appeal is filed by the claimant aggrieved by the fixation of compensation on lower side.
3. Heard both sides.
4. The contention of the learned counsel for the appellant- claimant is that the Tribunal while assessing the compensation has not followed the established principles of fixation of compensation. The fixation of compensation done by the Tribunal was in violation of such established principles and requires interference of this Court.
5. Learned counsel for the appellant-claimant also contends that the Tribunal, inspite of sufficient medical evidence to indicate that on account of injury, the appellant/injured suffered medical condition of Quadriplegia and the upper and lower limbs were paralyzed and resultant effect on the urinary bladder also. There is uncontrolled urination on account of spinal cord injury.
6. It is also his submission that the injured was in 10 th Class when the accident occurred. On account of the injury he was completely paralyzed and his prospects in education and career have been spoiled and his entire life has become worthless due to Quadriplegia and he requires continuous attendants for the rest of his life.
7. Learned counsel for the appellant-claimant also submits that the Tribunal while fixing the compensation has not considered pain & suffering and the impact of such a medical condition on the rest of the life. There is also loss of marital prospects on account of medical condition created due to spinal cord injury. Therefore, he seeks enhancement of the compensation.
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8. Learned counsel representing the insurance company opposed the enhancement of compensation and interference of this Court in the award impugned. According to him, there is no medical record indicating the percentage of physical disability due to spinal cord injury. Without such a disability certificate the Tribunal cannot come to a conclusion that there is 100% physical disability on account of Quadriplegia. According to him, the Tribunal in the above background has not taken into consideration the disability of the appellant-claimant and such finding of the Tribunal cannot be interfered.
9. It is also submitted that the Tribunal basing on the evidence on record has sufficiently granted the amount towards medical expenditure and the appropriate compensation was granted considering the age of the injured and the medical condition which the appellant-claimant suffers. Such a fixation requires no interference.
10. In the background of the above contentions, the undisputed fact is that the appellant-claimant suffered injury in a road traffic accident. Initially, he was shifted to Udaipur Hospital and, thereafter, due to the seriousness of the condition, the appellant was shifted to Mumbai and the evidence also shows that there is a cervical vertebral contusions were present at C-5 and C-6 and such injuries impacted the cervical spinal cord. Resultantly, the Quadriplegia and upper and lower limbs were impaired and paralyzed and such paralysis also affected the control over the urinary bladder. The evidence also shows that the injured was inpatient for multiple times in Dr. Bacha's Memorial Hospital, Mumbai and also Breach Candy Memorial Hospital and Research (Downloaded on 09/01/2024 at 08:45:18 PM) [2023:RJ-JD:45039] (4 of 12) [CMA-445/2004] Centre in Mumbai. Unfortunately, the appellant-injured could not examine the doctor. It is needless to say that the provisions under the Motor Vehicles Act is a summary procedure and the strict rules of evidence is inapplicable as is held by the Apex Court in catena of judgments. The unchallenged evidence clearly demonstrates that there is a cervical spinal cord injury on account of contusion at C-5 and C-6 of cervical vertebral and that resulted in loss of sensory or motor action on the spinal cord; resulting into the Quadriplegia, which impacted the upper and lower limbs of the appellant-claimant. The evidence also clearly shows that the injured also took treatment for nearly four years in Mumbai in various hospitals, apart from initial treatment at Udaipur hospital. Inspite of such prolonged treatment, the medical condition of the appellant-claimant has not completely improved. Still the injured suffered from Quadriplegia which is of permanent nature and when the physical condition itself is apparent on the face of record, the production of disability certificate is unwarranted.
11. The principles governing the fixation of compensation has been succinctly drawn by the Apex Court in the case of R.D. Hattangadi vs Pest Control (India) Pvt. Ltd., reported in 1995 1 SCC 551, which reads as under:
"9.Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non- pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the (Downloaded on 09/01/2024 at 08:45:18 PM) [2023:RJ-JD:45039] (5 of 12) [CMA-445/2004] 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 physical shock, pain and suffering, already suffered or likely to be suffered in future;
(ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
12. The Apex Court also in the case of Raj Kumar Vs. Ajay Kumar and Another, reported in 2011 1 SCC 343 has indicated the award of compensation under various heads in case of injury, which reads hereunder:
"6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, 6 after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities (Downloaded on 09/01/2024 at 08:45:18 PM) [2023:RJ-JD:45039] (6 of 12) [CMA-445/2004] that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation."
13. A glance of the impugned award shows that the Tribunal apparently ignored the principles governing the fixation of compensation. The Tribunal awarded Rs.30,000/- towards injuries, Rs.1,66,000/- towards medical expenses, Rs.20,000/- towards transportation charges, Rs.30,000/- towards attendant's expenses and Rs. 50,000/- towards loss of education on account of injury. A sum of Rs.10,000/- was granted towards extra diet and Rs.25,000/- towards future medical expenses. Apparently such fixation was not in accordance with the well established principles governing the fixation of compensation in the case of injuries. A reading of the above two judgments of the Apex Court clearly shows that the compensation has to be fixed under the heads of expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, loss of temporary earnings, loss of future earnings, future medical expenses under non-pecuniary damages. Under non-pecuniary damages, the damage is for pain, suffering and trauma, loss of amenities including loss of prospects of marriage and loss of expectation of life.
14. While determining the loss of earnings, the Tribunal is required to consider the percentage of physical disability and its (Downloaded on 09/01/2024 at 08:45:18 PM) [2023:RJ-JD:45039] (7 of 12) [CMA-445/2004] impact on the professional career; consequential loss of earnings and application of multiplier.
15. Expenses relating to treatment, hospitalization, medicines: The evidence on record shows that the injured met with an accident while traveling in a bus. On account of the injury, he became unconscious and went in coma and he was initially shifted to Udaipur hospital. He was under treatment for four days and later shifted to Dr. Bacha's Memorial Hospital, Mumbai and he was under treatment with a neurologist as well as urologist. Subsequently, there is a treatment in Breach Candy Memorial Hospital & Research Centre, Mumbai. The Tribunal granted Rs.1,66,000/- towards medical expenses and while considering such a medical expenditure, the Tribunal ignored certain part of bills and various flimsy grounds. The said grounds found to be untenable. This Court while considering the bills produced by the appellant-claimant is inclined to award a sum of Rs.2,00,000/- towards treatment, hospitalization and medicines.
16. Transportation Charges, Attendant's expenses & Nourishing food: The evidence also shows that on the advice of doctors in Udaipur, the injured was airlifted from Udaipur to Mumbai and the Tribunal disbelieved this claim made by the injured on account of non-production of any evidence relating to airlifting. There is no dispute that the medical condition of the injured was very serious. He was in complete coma and for urgent need of specialized medical treatment, he was shifted to Mumbai. Considering the distance of Mumbai from Udaipur, the claim of the injured that he was airlifted from Udaipur even without such a documentary evidence can be accepted.
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17. The evidence on record also shows that for every three or four months the injured had been going to Mumbai from his native place in Rajasthan and he was inpatient for some time in hospital and was coming back to his native place. These trips continued for a period of four to five years and the Tribunal has only granted a sum of Rs.20,000/- towards transportation charges. Such a fixation appeared to be very meager.
18. The Tribunal also failed to consider proper expenditure towards extra diet. The injured was bed ridden and was under
medication for nearly five years. During this period, he must have incurred huge expenditure for special diet. The Tribunal granted Rs.10,000/- for special diet, which is also on a very lower side. A sum of Rs.1,00,000/- is awarded under transportation charges and extra diet.
19. The Tribunal granted a sum of Rs.30,000/- towards attendant's expenses. The evidence on record shows that the injured suffered complete paralysis of upper and lower limbs and there is uncontrolled urination. He was bed ridden for nearly five years and his claim is that during this period attendant services were invoked by paying Rs.2,000/- per month. The Tribunal ignoring such a reality has granted only Rs.30,000/- towards attendant's expenses which is on the lower side. A sum of Rs.1,20,000/- is awarded under attendant's expenses.
20. Loss of future earnings : The Tribunal has granted Rs.50,000/- towards educational loss and Rs.30,000/- towards injuries without indicating how such fixation was done. While fixing the future loss of earnings, the age, occupation, percentage of physical disability and its impact on the earning disability are (Downloaded on 09/01/2024 at 08:45:18 PM) [2023:RJ-JD:45039] (9 of 12) [CMA-445/2004] the factors to be taken into consideration. In the present case, the injured was in Class 10th when the accident occurred. This means he must be in the age group of 14 to 15 years. The evidence also shows that the injured was studying in a convent school in English medium. He claims to have good academic distinction and he passed with first class in the past educational career. It is his claim that he had good prospects in education and he intended to become a Chartered Accountant. Such a claim appeared to be based on future improbabilities. Admittedly, the injured was a non-earning member when the accident occurred. In a similar instance, the Apex Court in the case of Kajal Vs. Jagdish Chand, reported in 2020(1) MACD(CS) 35 has taken the minimum wages prevailing at the time of accident in the said case and 40% was added towards future prospects in career disagreeing with the fixation of Rs.15,000/- annual income as contained in the Second Schedule of the MV Act. In the said case, the injured was aged 12 years' girl. The year of accident was 2007. The Apex Court fixed income as Rs.6,784/- including future prospects in wages while considering minimum wages prevailing then. In the present case, the accident occurred in 1990, the minimum wages must not be less than Rs.1,500/- to Rs.2,000/- per month and 40% shall be given towards future rise in the income of the injured. Considering these facts, this Court is inclined to adopt the income of the injured as Rs.2500/- per month, which includes monthly wages and future rise in the income. The annual incomes comes to Rs.30,000/- (2500 X 12=30,000). The appropriate multiplier in the present case should be 18, therefore, loss of future earnings comes to Rs.5,40,000/-.
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21. Future Medical Expenses : The medical evidence on record shows that there is a permanent paralysis of upper and lower limb due to vertebral contusion on the cervical spinal cord and this disease is of permanent nature and requires constant medication in the remaining life. The Tribunal has granted only Rs.25,000/- towards medical expenses. Seeing the medical condition and requirement of future medical need considering the age of the injured, this Court is inclined to award a sum of Rs.2,00,000/- towards future medical needs.
22. Non-pecuniary Damages - Pain and Suffering : The Tribunal virtually ignored the pain, suffering and trauma underwent by the injured on account of the injuries at a young age of 14 to 15 years. A sum of Rs.30,000/- was granted towards injuries. This appears to be ignoring practical reality and appropriate compensation should have been awarded towards pain & suffering and trauma underwent by the injured. The evidence clearly demonstrates that for nearly five years the injured was completely bed ridden and he was completely moving from his native place to Mumbai for special medication. The injuries not only impacted lower and upper limbs but also impacted the urinary retention of the urinary bladder. There is uncontrolled urination and this condition was still in continuation at the time of evidence before the Tribunal. The Apex Court in the case of Master Mallikarjun Vs. Divisional Manager, National Insurance Company Ltd. & Ors., reported in 2013 (10) Scale 668 has held that where disability is more than 90% a sum of Rs.6,00,000/- must be awarded under the pain and suffering. The Apex Court in the case of Kajal (cited supra) by considering the (Downloaded on 09/01/2024 at 08:45:18 PM) [2023:RJ-JD:45039] (11 of 12) [CMA-445/2004] above judgment and deviating from such a principle in a peculiar circumstance of the injured girl has granted Rs.15,000/- looking to the medical condition of the girl and the mental faculty of the girl of 6 to 12 years. This Court, considering the above two decisions feels that a sum of Rs.5,00,000/- is just and reasonable considering the year of accident and the fact that there is some improvement in the medical condition of the injured since the evidence of the injured shows that the most affected parts are upper right limb and lower right limb.
23. In the case of Kajal (cited supra) the Apex Court granted Rs.3,00,000/- for loss of marriage prospects. In the present case also, the injured was 14 to 15 years. He suffered complete paralysis of lower and upper limbs and his marital prospects have become very bleak and infact, he has not married. Considering the aforesaid circumstances, a sum of Rs.3,00,000/- is awarded towards loss of marriage prospects. Further, a sum of Rs.3,00,000/- is awarded towards loss of amenities in the remaining life on account of injuries sustained by the injured.
24. Taking into account the above factors, the claimant is entitled to the following amounts:
1. Loss of future earnings 5,40,000/-
2. Treatment, hospitalization & medicines 2,00,000/-
3. Transport charges and extra diet 1,00,000/-
4. Attendant's expenses. 1,20,000/-
5. Future medical needs. 2,00,000/-
6. Non-pecuniary Damages - Pain and Suffering 5,00,000/-
7. Loss of marriage prospects 3,00,000/-
8. Loss of amenities in the remaining life 3,00,000/-
Total amount of compensation 22,60,000/ (Downloaded on 09/01/2024 at 08:45:18 PM) [2023:RJ-JD:45039] (12 of 12) [CMA-445/2004]
25. Accordingly, to the above extent the impugned award is modified. The appeal is partly allowed enhancing the compensation from Rs.3,31,000/- to Rs.22,60,000/-. The enhanced compensation shall carry an interest of 7.5% from the date of filing of the petition till the date of deposition. The amount shall be deposited within 2 months from the date of this judgment.
(MUNNURI LAXMAN),J 1-BhumikaP/NK/-
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