Gujarat High Court
Pradipbhai Labhubhai Dangar vs Balwantsinh Harisinh Solanki on 11 August, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1493/2023 JUDGMENT DATED: 11/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1493 of 2023
With
R/FIRST APPEAL NO. 1494 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy of
3 NO
the judgment ?
Whether this case involves a substantial question of
4 law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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PRADIPBHAI LABHUBHAI DANGAR
Versus
BALWANTSINH HARISINH SOLANKI
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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NEUTRAL CITATION
C/FA/1493/2023 JUDGMENT DATED: 11/08/2023
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 11/08/2023
ORAL JUDGMENT
A] Prelude:
1. The captioned appeals arise out of same set of facts and accident and common judgment and award dated 02.05.2022 passed by the learned Motor Accident Claims Tribunal (Special), Rajkot in Motor Accident Claim Petition Nos. 74 and 75 of 2020 and hence, the same were heard together and are being decided by way of this common judgment.
B] First Appeal No. 1493 of 2023:
2. The First Appeal No. 1493 of 2023 is filed being aggrieved and dissatisfied by the judgment and award in Motor Accident Claim Petition No. 74 of 2018, inter alia contending that the learned Tribunal has committed material illegalities, which has led to gross miscarriage of injustice. The learned Tribunal has not assessed the income of the injured minor claimant as per his academic career. Page 2 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023
NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined The claimant is totally in bedridden condition and though 100% functional disability has been considered by the Tribunal, the amount under the heads of Future Medical Expenses, Pain, Shock and Suffering does not commensurate with the evidence on record and under other heads, the amount has not been assessed in accordance with the disability sustained by the minor and hence, a prayer is made for enhancement of compensation.
3. The facts suggest that on 12.12.2017 at about 5:30 in the evening on Rajkot - Bhavnagar highway, near Gal-kotadi village, Randhir Mehurbhai Dangar was going on motorcycle bearing registration No. GJ-04-AB-7994 along with his younger brother - Shubham Mehurbhai Dangar as a pillion rider and on their way, had parked their motorcycle on the side of the road, while Pradipbhai Labhubhai Dangar had come to meet them and was standing near them. It is stated that when Randhirbhai Mehurbhai Dangar was about to start his vehicle with the pillion rider, suddenly, one bus bearing registration No. GJ-04-Z-0960 belonging to Bindiya Travels came in full speed, in rash and negligent manner and dashed the Page 3 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined motorcycle. In the accident, Randhirbhai and Shubham sustained fatal injuries and died during the course of treatment, whereas, Pradipbhai, who was standing near them, received very serious injuries.
4. Learned advocate Mr. Mohsin M. Hakim for the appellants - claimants submitted that the respondent No. 1 has not examined his driver as a witness nor the insurance company had called the driver of the bus to be examined.
4.1 The learned advocate Mr. Hakim for the appellants has relied upon the decisions of the Hon'ble Supreme Court in i) Kajal v. Jagdish Chand and Others , (2020) 4 SCC 413, ii) Abhimanyu Partap Singh v. Namita Sekhon and Another, (2022) 8 SCC 489 and iii) Master Ayush v. Branch Manager, Reliance General Insurance Co. Ltd., 2022 (7) SCC 738 : 2022 (0) AIJEL-SC 68581 and submitted that the Tribunal ought to have granted appropriate compensation in accordance with the proposition of law as laid down in the decision in Kajal (supra), followed in the subsequent Page 4 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined decisions.
5. Motor Accident Claim Petition No. 74 of 2018 was filed on behalf of injured Pradipbhai Labhubhai Dangar by his father. The age of the said claimant, at the time of accident, was proved to be 16 years, 08 months, who went in coma after the accident. As per the deposition of his father at exh. 38, his son was studying in standard XII Science Stream. The Bona Fide Certificate was produced at exh. 45, Mark sheet of Standard XI at exh. 46 and a copy of Aadhar Card at exh. 49, which showed his date of birth as 08.04.2001. 5.1 The learned advocate for the appellant submitted that after the accident, the injured minor remained in coma and despite several surgeries, he could not recover and his permanent physical disability has been assessed at 95%. It is submitted that Neurosurgeon Dr. Rajendra Trivedi was examined at exh. 89 and as per his deposition, Injury Certificate was given by Dr. Prakash Modha of Gokul Hospital. The evidence, accordingly, suggests that the injured claimant is totally in bedridden condition, if at all was to be brought Page 5 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined for any treatment, he was to be moved on stretcher; both his legs have lost the life and mobility. The injured sustained severe speech problem and has seizure on both hands and he is not even in a position to have his own food nor can independently deal with the daily chores and has to remain dependent on other persons.
6. Learned advocate Ms. Kirti Pathak for the insurance company submitted that the expression 'just compensation' as referred in Section 168 of the Act should neither be a bonanza nor a windfall and simultaneously, should not be a pittance. She submitted that the ratio laid down in the case of Kajal (supra), cannot be made applicable in the present case comparing the age, injuries sustained and the evidence placed on record. She further submitted that the claimant - injured being minor was still studying and was not having any independent income and in that circumstances, no question of future loss of income would arise. Ms. Pathak contended that the claimant has relied upon deposition of witness Dr. Rajendra Trivedi, who had admitted that the injured, while was brought before him for the assessment of permanent disability was in a conscious state and Page 6 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined that doctor, had never given any treatment to the injured, but has only issued the Permanent Disability Certificate. He admits that the treatment papers have not made any mention of paraplegia or quadriplegia injuries, and when the claimant had visited him, he had movements in all the four limbs.
7. The disability has been proved by the evidence of Dr. Rajendra Trivedi. The learned Tribunal, while observing the injury certificate, had also referred to the injuries on neck and vertebra and fracture on legs and fracture on head, which had led to severe hemorrhage. The learned Tribunal had concluded the functional disability of 100%.
7.1 The learned Tribunal has granted the compensation under following heads to the injured claimant:
Head Amount (Rs.) Future Loss of Income 9,07,200/- Actual Medical Expense and Future Medical 15,00,000/- Expense Loss of Amenities of Life and Loss of Enjoyment 1,50,000/- of Life Page 7 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined Head Amount (Rs.) Special Diet, Attendant and Transportation 1,00,000/- Charges Total 28,07,200/- 7.2 The injured was pursuing his education in Science Stream.
The Mark-sheet of Standard XI was produced during the trial. The learned Tribunal, while considering the Future Loss of Income, has assessed the notional income as Rs.36,000/- per annum. In case of Kajal (supra), the facts were to the effect that, Kajal aged 12, was travelling on a tractor with her parents and was hit by a truck which was driven rashly. In the accident, Kajal suffered serious injuries resulting in damage to her brain, and that had caused very serious consequences on her. According to the disability assessment, made by Post Graduate Institute of Medical Education and Research, Chandigarh, because of head injury, Kajal was left with very low IQ and severe weakness in all her four limbs; suffered from severe hysteria and severe urinary incontinence. Her disability was assessed as 100%. The Hon'ble Apex Court, under the facts of the case, to the physical disability of Kajal to be in a bedridden condition, observed that though would grow up to be an adult, but Page 8 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined her mind would remain as of a 9 months' old child and she would not be in a position to understand what is happening all around her. The Apex Court raised a question as to how does one assess the compensation in such a case. While answering, it was observed that no amount of money can compensate this child for the injuries suffered by her. She can never be put back in the same position. However, compensation has to be determined in terms of the provisions of the Motor Vehicles Act, 1988 (the Act). The Act requires determination of payment of just compensation and it is the duty of the Court to ensure that compensation paid is just. The Tribunal had awarded Rs.11,08,501/- and the High Court enhanced the award amount to Rs.25,78,501/-. The compensation was computed by the High Court in following heads:
Head High Court Age 12 Multiplier - Income (taken to be) Rs.15,000/- Disability 100% Loss of income and permanent disability Rs.2,70,000/- compensation Pain, suffering and loss of amenities Rs.3,00,000/- Page 9 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined Head High Court Attendant Charges Rs.3,20,000/- (Rs.2,500 for 44 years) Future medical expenses Rs.2,00,000/- Loss of marriage prospects Rs.3,00,000/- Medical treatment Rs.1,38,501/- Transportation details / special diet Rs.50,000/- Total Rs.25,78,501/- 7.3 Aggrieved by the said award, the case of Kajal was before the
Supreme Court. The Hon'ble Supreme Court, while dealing with the case, has observed regarding the principles with regard to determination of just compensation contemplated under the Act, which are noted to be well settled. It was observed in paragraph 5 of the said decision as under:
"5. The principles with regard to determination of just compensation contemplated under the Act are well settled. Injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as:
(i) loss of earning;
(ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges Page 10 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined etc.,
(iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and
(iv) loss of future earning capacity.
Damages can be pecuniary as well as non-pecuniary, but all have to be assessed in Rupees and Paise."
7.4 The loss of human life and sufferings and individual deprivation cannot be equated with money. While the Act lays down upon the Court to determine the compensation which is to be just and the Court has to make the judicious attempt to award the damage so as to compensate the claim for the loss suffered by the victim. The Court, while assessing the compensation, should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation, the compensation or the damages assessed for personal injuries should be substantial to compensate injured for the deprivation to be suffered throughout his/her life, as observed in Kajal (supra).
7.5 In case of Abhimanyu Partap Singh (supra), the Hon'ble Page 11 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined Apex Court, while dealing with the case of a minor claimant, who was five and a half years of age at the time of accident and whose lower limb was completely paralysed resulting in 100% disability, whose hope to live blissful life was lost due to those injuries, had considered the adequacy of grant of compensation, which was assailed by the claimant by filing an appeal before the High Court. The High Court enhanced the compensation to Rs.23,20,000/-, wherein, the Tribunal had granted total compensation of Rs.9 lakh. While, challenging the adequacy of the grant of compensation by the Tribunal as well as the High Court, reliance was placed on the judgment in Kajal (supra). The Hon'ble Supreme Court observed in paragraph 10 of the said decision to the effect that, "making the payment of compensation for damages would not revive the claimant into his original position. The compensation towards wrongful act in terms of money though cannot be decided by the Court but it may be determined as per the recognized principles, and for that purpose, the Hon'ble Supreme Court had also placed reliance on English judgments and also referred to the decision in R. D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551. The said reference Page 12 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined requires reproduction herein as in cases where the claimants are required to be compensated and when determination of the compensation cannot be met with exact arithmetical calculation, then, the Court is enjoined with the duty to take assistance of comparable awards, in possible comparable injuries to grant just compensation. Relevant paragraphs 10, 11, 12, 13 and 14 are extracted hereunder:
"10. It is not out of place to state, by making the payment of compensation for damages would not revive the claimant into his original position. The compensation towards wrongful act in terms of money though cannot be decided by the Court but it may be determined as per the recognized principles. In the said context, some of the English judgments are relevant, which may specify why the compensation be paid, what should be the basis for determination and what may be the reason for awarding such compensation, applying the uniform methodology for determination of compensation, comparable to the injuries, thereby a person can lead his life, though his physical frame cannot be reversed.
11. In the case of Philipps vs. London & South Western Railway Co. - (1879) LR 5 QBD 78, it was held that by making a payment of compensation for the damages, the Court cannot put back again the claimant into his original position. On the date of determination of the compensation, he is being compensated but he cannot sue again, therefore, the compensation must be full and final while determining the same. In Mediana, In re - 1900 AC 113 (HL), it is said that the determination for an amount of compensation to the damages Page 13 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined is an extreme task. What may be adequate amount for a wrongful act and can it be compensated by money, particularly towards pain and suffering. By an arithmetical calculation, it cannot be decided what may be the exact amount of money which would represent the pain and suffering to a person, but as per recognized principles, damages must be paid. In H. West & Son Ltd. vs. Shephard - 1964 AC 326, it was held that payment of compensation in terms of money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered, however the courts must consider to award sums, which may be a reasonable. Simultaneously, uniformity in the general method of approach is also required. Thereby, possible comparable injuries can be compensated by comparable awards. Lord Denning, while speaking for the Court of Appeal in Ward vs. James - (1966) 1 QB 273 has specified three basic principles i.e. accessibility, uniformity and predictability to be followed in the like cases.
12. In the perspective of Indian law, in the case of R.D. Hattangadi vs. Pest Control (India) (P) Ltd. - (1995) 1 SCC 551, this Court has specified that while determining the compensation for physical injuries, the heads on which the amount of compensation is to be determined, may be of two types, one is of pecuniary damages and another is of non- pecuniary damages. Pecuniary damages include the loss of earning, medical attendance, transport charges and other material loss. The non-pecuniary damages include the expenses for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future, loss of amenities of life, loss of expectation of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life which has been followed in the case of Raj Kumar vs. Ajay Kumar and another - (2011) 1 SCC 343.
13. In the case of Kajal (supra), this Court in case of Page 14 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined permanent disability, to decide the just compensation, the principles have been summarized, whereby the compensation may be awarded in the heads of 'loss of earning', 'medical expenses, transportation, special diet, attendant charges', 'loss or diminution to the pleasures of life by loss of a particular part of the body' and 'loss of future earning capacity', damages, pecuniary as well as non-pecuniary have to be assessed while it is impossible to equate human sufferings and personal deprivation with money. This Court said attendant charges @ Rs.2,500/- p.m. awarded by the High Court is inadequate, however enhanced to Rs. 5,000/- with two attendants, total Rs.10,000/- p.m. for whole life and calculated the compensation applying the multiplier of 18. The Court further said compensation may also be awarded for non-pecuniary damages including pain, suffering, loss of amenities, loss of marriage prospects. Therefore, the compensation on account of injuries, causing 100% disability, looking to the facts of the case at hand, is required to be determined, applying the ratio of the said judgment.
14. The High Court in the impugned order observed that the claimant has now started practice as an advocate, therefore, future loss of earning has been calculated only for 10 years, applying the multiplier of 16, without looking to the facts that claimant cannot perform the work of advocacy similar to the other advocates by attending the cases in different Courts. The attendant charges have been allowed only for 20 years with one attendant. In fact, not only for determination of future loss of earning but for attendant charges also the multiplier method should be followed. The multiplier method has been recognized as most realistic and reasonable because it has been decided looking to the age, inflation rate, uncertainty of life and other realistic needs. Thus, for determination of just compensation to ensure justice with the family of deceased or the injured as the case may be the compensation can be determined applying said method. Therefore, in our view the Tribunal while granting the compensation of future loss as well as earning only for 10 years and attendant charges only Page 15 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined for 20 years was not justified. In fact, the said amount should be determined applying the multiplier method."
7.6 In Abhimanyu Partap Singh (supra), the Hon'ble Apex Court has placed reliance upon the decision in Kajal (supra), to assess the compensation for the disablement suffered by the claimant aged about five and a half years of age.
7.7 In Kajal (supra), the Hon'ble Supreme Court, by placing reliance on the decision in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, had considered the heads under which, the compensation is to be awarded for personal injuries, which is reflected hereunder:
"16. In Raj Kumar v. Ajay Kumar and Others, this Court laid down the heads under which compensation is to be awarded for personal injuries.
"6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured Page 16 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
7.8 While dealing with the aspect of loss of earnings, the Hon'ble Supreme Court in Kajal (supra) found that the way of assessing the future loss of income adopted by the Courts below, of a young girl aged about 12 only on a notional income of Rs.15,000/- per annum was not appropriate way of assessing. The Hon'ble Supreme Court Page 17 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined observed that the young girl after studying, would have worked and earned much more than Rs.15,000/-. Each case has to be decided on its own evidence, but has hold that taking notional income to be Rs.15,000/- per annum, is not at all justified. Materials were shown before the Hon'ble Apex Court for the minimum wages payable to a skilled worker and adding future prospects and applying the multiplier of 18, the loss of earnings was assessed at Rs.14,66,000/-. 7.8.1 In the instant case, the evidence of the father of the claimant reflects that his son is bedridden and in unconscious state and cannot make movement; there was a fracture in the left leg; injuries in the intestine, injury in vertebra and fracture and hemorrhage in the head. He has referred to the Certificate of Disability, issued by Dr. Rajendra Trivedi. He has also referred to the medical bills of Rs.10,75,000/- + Rs.68,192/-. The learned Tribunal has granted Rs.15 lakh under the head of actual medical expenses and future medical expenses. Dr. Rajendra Trivedi was examined at exh. 89. He is a Neurosurgeon, having his practice for about 30 years. While in his deposition, referring to the injury certificate issued by Gokul Page 18 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined Hospital, Rajkot, stated that when the injured claimant was brought before him by his father, he was brought on a stretcher in bedridden position and he has deposed that because of the injuries, he would, throughout his life, not be in a position to do any work and lifelong, would remain bedridden; both his lower limbs have become useless; and could not get married and would require attendant throughout his life to take care of him and in future too, would have to suffer pain and sufferings. The doctor in his evidence had stated that the claimant was having severe difficulty in speech, his pronunciations were unclear, both the hands were having continuous tremors, having difficulty in writing and even in eating; the injured claimant could not stand on his own and for his daily chores, would have to be dependent on the other persons and with the modern technology, probably, the legs could be treated but the estimated cost would be about Rs.20 lakh.
7.8.1.1 In the cross- examination, he has admitted that when the claimant had come for the disability certificate, he was conscious; he had not given any treatment to the claimant. He admitted that in the Page 19 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined treatment papers, there is no reference to paraplegia or quadriplegia and has admitted that when he was given discharge from Gokul Hospital, he was unconscious and there was movement in all the four limbs when he was brought before him, but has also admitted that there were tremors and there was no balance in the limbs and could not on his own, stand or walk nor could eat. As also has admitted that he has not referred in his certificate the percentage of power in his limbs. But has stated that because of imbalance, there was no tone coordination and stated that with the support of others, he could walk and has also stated that because of the injury in the head, there would not be sufficient strength in his body and it would be improbable of having recovery within six months to two years. 7.8.2 In the case of Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343, the Hon'ble Supreme Court in paragraphs 9 to 11 has considered the aspect of assessing the loss of earning capacity with a word of caution to the Tribunal that it should not mechanically apply the percentage of permanent disability as percentage of loss of earning capacity. The relevant observations as reproduced herein Page 20 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined below:
"9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of Page 21 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. D.M., National Insurance Co. Ltd.).
7.8.3 In deciding functional disability, the Tribunal has to decide the extent of effect of such permanent disability, with reference to the evidence on record. In Raj Kumar's case (supra), the Hon'ble Apex Court has underlined three steps involved to ascertain the effect of permanent disability on the actual earning capacity. The necessary three steps finds mention in paragraph 13 of the judgment, which is reflected herein below:
"13. Ascertainment of the effect of the permanent disability Page 22 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
7.8.4 The issue, which was raised by learned advocate Ms. Pathak was with regard to the evidence of doctor stating, that the doctor who had issued the Disability Certificate, is not the one who had treated the claimant. The said aspect has been dealt with in Raj Kumar's case (supra), where, the Apex Court has laid down that the Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Considering the Tribunal as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation', the Hon'ble Page 23 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined Supreme Court has observed that the Tribunal should, therefore, take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. The principles have been summarized in following terms:
"19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).Page 24 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023
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(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
7.8.4.1 Thus, the Tribunal has to assess the loss of earning capacity with reference to the evidence in entirety. Same permanent disability may result in different percentage of loss of earning capacity.
7.8.5 In Jagdish v. Mohan and Others, arising out SLP (C) No. 7739 of 2017, the Hon'ble Supreme Court was considering the case of an appellant, aged about 24 years and the claimant had suffered 90% permanent disability. The evidence suggested that both the hands of the claimant were not effectively working, claimant on his own, was unable to eat food or to answer nature's call and was unable to perform any function. The claimant was a Carpenter. The Hon'ble Supreme Court has laid down the aspect to be considered, Page 25 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined in assessing the compensation where the victim suffers permanent disability occasioned by an accident and who becomes entitled for award of compensation. Such compensation should cover among others, the aspects: (i) Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life.
7.8.6 A reference was made to a decision in Sri Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd., 2011 (12) Scale 658, wherein, the Court had held that:
"The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim's inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."Page 26 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023
NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined 7.8.7 In K. Suresh v. New India Assurance Company Ltd., (2012) 12 SCC 274, the Hon'ble Supreme Court, while referring to the earlier earlier judgments in Ramesh Chandra v Randhir Singh, (1990) 3 SCC 723 and B. Kothandapani v Tamil Nadu State Transport Corporation Limited, (2011) 6 SCC 420, held that the compensation can be granted for disability as well as for loss of future earnings, for the first head, relates to the impairment of a person's capacity, while the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself. 7.8.8 Learned advocate Ms. Pathak had placed reliance upon a decision of Jagdish (supra), (a Three Bench decision), to state that the Tribunal has declined to award any amount towards future treatment, while Hon'ble Supreme Court allowing Rs.3 lakh for future medical expenses, had in all, granted compensation of Rs.25,38,308/- while considering the disability. 7.8.9 It is required to be noted that in Jagdish (supra), though the Tribunal had considered 90% disability, the Hon'ble Supreme Court Page 27 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined had held the disability in toto, while observing in paragraph 11 about the yardstick to be adopted for the compensation, to provide realistic recompense for the pain of loss and the trauma of suffering. Paragraph 11 reads as under:
"11. In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing
- at least in the facts of this case - can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.
The Tribunal has noted that the appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90 per cent. The disability is indeed total. Having regard to the age of the appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the appellant on account of the loss of income, including future prospects, would be Rs. 18,14,400/-. In addition to this amount, the appellant should be granted an amount of Rs. 2 lakhs on account of pain, Page 28 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined suffering and loss of amenities. The amount awarded by the Tribunal towards medical expenses (Rs. 98,908/-); for extra nourishment (Rs. 25,000/-) and for attendant's expenses (Rs. 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The appellant should be allowed an amount of Rs. 3 lakhs towards future medical expenses. The appellant is thus awarded a total sum of Rs.
25,38,308/- by way of compensation. The appellant would be entitled to interest at the rate of 9 per cent per annum on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver jointly and severally which is affirmed. The amount shall be deposited before the Tribunal within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification."
7.8.10 Here, in the case on hand, the Tribunal having heard both the sides and perusing the record has considered 95% physical disability by observing the certificate, that there has been a permanent damage in the neck, vertebra, and fracture on the legs and even a fracture on the head. The doctor who treated the claimant - injured was not examined, Dr. Rajendra Trivedi, Neurosurgeon, gave evidence, who assessed the extent of permanent disability, as noted in Raj Kumar (supra) that evidence to that effect can be relied upon by the learned Tribunal for assessing the loss of earning capacity, which would be with reference to the evidence in entirety. Page 29 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023
NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined The learned Tribunal, here in this case, has evaluated the evidence and observed that though the treatment had been given to the injured, he is still in semi conscious state and he is suffering tremors in his hands and in lower limbs and is not in a position to even look after his daily needs and therefore, had considered 100% functional disability. This Court does not find any reason not to appreciate the assessment so made.
7.9 The learned Tribunal has assessed the notional income of Rs.36,000/-. In the case of Kajal (supra), it was considered that the child would have worked and earned more than the notional income, and her loss of income, was considered on the basis of minimum wages. In the instant case, the injured was studying in Science Stream in standard XI, his disability has been assessed as 100%. The Apex Court, in the case of Kajal (supra), has not found notional income as justifiable and reliance was placed on the materials placed on record of minimum wages payable to the skilled workmen. Here, in this case too, the injured child would have studied further and could have worked and earned. Thus, at least minimum wages of Page 30 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined the semi-skilled workmen on the date of accident being 12.12.2017 could be considered as per the Minimum Wage Schedule prevalent in the State to be assessed as Rs.8,154/- per month. Adding 40% to the future prospects, the amount would come to Rs.11,416/- per month, therefore, the annual income would be Rs.1,36,992/-. By adopting the multiplier of 18, with 100% functional disability, the total amount toward future loss of income would come to Rs.24,65,856/-.
7.10 The claimant minor in a bedridden condition would not be in a position to look after his daily needs where there is lack of mobility in his lower limbs and is facing tremors in hands. In the case of Kajal (supra), the amount under the head of Attendant Charges was awarded by the High Court of Rs.2,500/- per month for 44 years. The Apex Court has observed that, it was not a proper system. Multiplier system is used to balance out various factors and had considered that, when compensation is paid in lump sum, the Court has always followed the multiplier system and had, thus, considered that the multiplier system should be followed not only for Page 31 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined determining the compensation on account of loss of income but also for determining the attendant charges etc. and that system was recognised by the Hon'ble Supreme Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1962 SC 1. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method to ensure better justice between the parties, and the award results for 'just compensation' within the meaning of the Act. Keeping the age of the claimant in mind, the multiplier adopted was 18, having observed that the claimant girl was severely suffering from incontinence, that she did not have control over the bodily functions like passing urine and faeces, under that condition as she grows older, she will not be able to handle her own needs and that, she would require attendant virtually for 24 hours a day, an attendant, who though may not be medically trained but must be capable of handling a child who is bedridden, who would ensure that the child does not suffer from bedsores, Page 32 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined necessity of two attendants was noted. Thus, placing reliance on a notification of the wages for skilled labourer, the cost of one attendant at Rs.5,000/- was assessed and the child Kajal was granted the attendant charges per month as Rs.10,000/- for two attendants, which came to Rs.1,20,000/- per annum. Using the multiplier of 18, the attendant charges for her entire life was assessed as Rs.21,60,000/- to take care of one of the pecuniary damages. 7.11 Here, in the instant case, the child also would be in need of an attendant, who would also be facing the incapacity to deal with his daily needs since he is in paraplegic condition of the lower limbs and suffering tremor in hands. Considering the minimum wages as the time of accident as Rs.8,000/- per month for single attendant, and applying the multiplier of 18, under the head of Attendant Charges, the claimant would be entitled to receive Rs.17,28,000/-. 7.12 The actual medical expense, as proved on record, is Rs.13,34,153/-. The claimant would be in need of future medical treatment, though the doctor examined to prove the disability, is Page 33 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined skeptical about any improvement in physical condition of the claimant, however, there may be conditions that, because of lack of strength in the body, he may suffer some other complications. Further, lying down on bed continuously may lead to bedsores and there may be any further complications which would require medical treatment. Thus, under the head of future medical treatment, this Court deems it fit to grant Rs.3 lakhs.
7.13 No amount can compensate the Pain, Shock and Sufferings undergone by a minor claimant. As held in K. Suresh (supra), there cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Having considered the length of hospitalization and operation and further physical condition, this Court, as a just compensation under the head of loss of pain, sufferings and loss of amenities, grants Rs.3 lakh.
7.14 The claimant has lost prospects of marriage. The doctor had Page 34 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined opined that the claimant would not be in a position to enter into marital relationship and has totally lost the marriage prospects. Accordingly, this Court deems it proper to grant Rs.1 lakh under the said head.
7.15 Keeping in view the longevity, comparing the age of the claimant and need to carry him in vehicles for treatments, and also for the money expended for the transportation during the treatment this Court grants Rs.1 lakh under the head of Special Diet and Transportation. Thus, the total compensation can be computed as under:
Head Amount (Rs.)
Future Loss of Income 24,65,856/-
Actual Medical Expense 13,34,153/-
Future Medical Expense 3,00,000/-
Pain, Shock and Suffering and Loss of Amenities 3,00,000/-
Loss of Marriage Prospects 1,00,000/-
Special Diet and Transportation Charges 1,00,000/-
Attendant Charges 17,28,000/-
Total 63,28,009/-
Award of Tribunal (In MACP No. 74 of 2018) 28,07,200/-
Difference (enhanced amount) 35,20,809/-
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NEUTRAL CITATION
C/FA/1493/2023 JUDGMENT DATED: 11/08/2023
undefined
7.16 Learned advocate Ms. Pathak, having placed reliance upon a decision in Oriental Insurance Co. Ltd. v. Champabati Ray and Others, (2020) 6 Gauhati Law Reports 521, decided on 01.10.2019 and the decision in Oriental Insurance Co. Ltd. v. Malina Basumatary, MANU/GH/1106/2019, decided on 15.11.2019, of the Gauhati High Courts, submitted that no interest on the future prospects can be granted as the same relates to the income which arises in future. In Champabati Ray's case (supra), it was observed that in the case of Khusboo Chirania @ Kanta Chirania v. Kamal Kumar Sovasaria, (2018) 0 Supreme (Gau.) 966 and in the case of Nasima Begum v. Keramat Ali, (2019) 0 Supreme (Gau.) 507, it was stated that no interest on future prospects should be given. While no reason has been enunciated in the above judgments, the Hon'ble Court, in Champabati Ray's case (supra), has found that the reason for the same could be the fact that future prospects is relatable to an income to be received in the future and as such, there cannot be any loss to the claimant for the payment of future prospects, at the time the deceased met with the accident and the reason for awarding interest on the compensation amount, minus the Page 36 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined future prospects is due to the fact that though the loss of dependency starts from the date of the accident and the compensation amount is computed on the date of the award of the Tribunal, interest is awarded to compensate the loss of money value on account of lapse of time, such as time taken for the legal proceedings and for the denial of right to utilize the money when due. The Hon'ble Court, however, found that the future prospects is with regard to the probable income to be received in the future and as such, there is no requirement to compensate the claimant by way of future interest, for the loss that is to occur in the future, as the future is yet to happen. Further, future prospects is given for the entire future and as such, the claimant is getting compensation in a lump-sum under future prospects prior to the occurrence of future event and thus, with regard to the future prospects, the Court was of the view that there cannot be any interest on the future prospects as the same relates to the income in future.
7.17 The concept of future prospective rise in income was considered in the decision in National Insurance Company Limited Page 37 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined v. Pranay Sethi & Ors., (2017) 16 SCC 680. While the issue of future prospective rise in income was urged before the Hon'ble Supreme Court in Sarla Verma and Ors. v. Delhi Transport Corporation and Anr., (2009) 6 SCC 121 and on the contention raised by the parties, the question raised was whether the future prospects can be taken into account for determining the income of the deceased? if so, whether pay revisions that occurred during the pendency of the claim proceedings or appeals therefrom should be taken into account? After dealing with various judgments of the Apex Court, it had been held to adopt a rule of thumb and therefore, the Hon'ble Supreme Court had concluded in paragraph 24 as under:
"11. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize Page 38 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
7.18 On the basis of decision in Sarla Verma and Others (supra), in Pranay Sethi and Others (supra), the Apex Court further deliberated on the concept of future prospective rise in income for self-employed and fixed salaried persons and persons above the age of 50 years, accepting the principle of standardization and to justify the concept of just compensation as provided under Section 168 of the Act, has laid down that the same should be determined on the foundation of fairness, reasonableness, and equitability on acceptable legal standard, as such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. It was held that conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. Having noted the principle of Page 39 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined standardization, it was held that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In paragraphs 58, 59.1, 59.3 and 59.4, it was observed:
"58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.Page 40 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023
NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined xxx 59.1 In view of the aforesaid analysis, we proceed to record our conclusions:
xxx 59.3 While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
7.19 Imponderables and uncertainties have led the Apex Court to adopt rule of thumb to grant prospective rise in income. Further, prospects of medical need and the loss to be suffered because of disability, are to be compensated. The payment of compensation for damages would not revive the claimant into his original position. The compensation towards wrongful act in terms of money though Page 41 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined cannot be decided by the Court, but it may be determined as per the recognized principles by applying the uniform methodology for the determination of compensation. On the date of determination of the compensation, the claimant is being compensated, therefore, the compensation must be full and final while determining the same, as claimant cannot sue again for any future loss, all the future prospective loss has to be determined on the date of judgment and award passed by the Tribunal.
7.20 As per the recognised principles, damages are to be paid. As has been laid down in the judgments referred herein above, money cannot renew a physical frame that has been battered and shattered. Possible comparable injuries can be compensated by comparable awards and three basic principles would be: accessibility, uniformity and predictability to be followed in the like cases. Pecuniary damages include the loss of earning, medical expense, attendance charges, transport charges and other material loss, while, the non- pecuniary damages include the expenses for mental and physical shock, pain and suffering already suffered or likely to be suffered in Page 42 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined the future, loss of amenities of life, loss of expectation of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life which has been followed in the case of Raj Kumar (surpa).
7.21 In R. D. Hattangadi (supra), it is observed as under:
"11. In the case Ward v. James, (1965) 1 All ER 563, it was said:
"Although you cannot give a man so gravely injured much for his 'lost years', you can, however, compensate him for his loss during his shortened span, that is, during his expected 'years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money."
xxx Page 43 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined
14. In Halsbury's Laws of England, 4th Edn., Vol. 12 regarding nonpecuniary loss at page 446 it has been said:
"Non-pecuniary loss: the pattern.- Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases."
7.22 Further, in Pranay Sethi (supra), it is observed as under:
"55. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants Page 44 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra).
The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. We approve the principle of "standardization" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age."
7.23 In R. D. Hattangadi (supra), the case observed of a claimant who had started a practice as an Advocate and the future loss of earning had been calculated only for 10 years, applying the multiplier of 16. The Attendant Charges had been allowed only for Page 45 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined 20 years with one Attendant. It was held that multiplier method was required to be adopted. The multiplier method has been recognized as most realistic and reasonable because it has been decided looking to the age, inflation rate, uncertainty of life and other realistic needs. 7.24 The multiplier method involves the ascertainment of loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The multiplier would be applied to the annual sum for each item of future loss and damage. The annual sum would be the multiplicand. The equation, the multiplier multiplies the multiplicand would yield the total sum of damages for the item of loss and damage concerned, and according to the multiplier theory, the likely future loss is assessed by multiplying the likely loss due to occur every year with a multiplier which indicates a number of years for which the loss is likely to continue. The multiplier is a figure representing the number of years by which, the annual loss (the multiplicand) is multiplied to reflect the period over which, the loss is likely to be suffered.
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NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined 7.25 In a serious case of injury where the compensation is to be granted, where there is specific medical evidence, corroborating the evidence of the claimant, the compensation will be granted under the loss of future earnings on account of permanent disability, for future medical expenses, loss of amenities and loss of prospect of marriage, loss of expectations of life (shortening of normal longevity) as has been held in the decision in Raj Kumar (surpa). The cause for the claimant would get crystallized on the date of filing the petition. The entitlement of future expenses, though decided on the date of judgment and award, is on the cause which arose by filing the petition for compensation.
7.26 The concept of future prospective rise in income considered in the judgments of Pranay Sethi (supra) and the Sarla Verma (supra), is on acceptance of principle of standardization. The rate of interest on the dependency loss and/or future loss of income is to be assessed from the date of claim petition. Section 171 of the Act makes it clear that when any Claims Tribunal allows the claim for compensation under the MV Act, such Tribunal may direct that in Page 47 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined addition to the amount of compensation, simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. Interest awarded is payable on the entire amount awarded, from the date of filing of application till realization.
7.27 In the case of Kajal (supra), by referring to Section 171 of the MV Act, it has been observed:
"Interest
31. xxx Normally interest should be granted from the date of filing of the petition and if in appeal enhancement is made the interest should again be from the date of filing of the petition. It is only if the appeal is filed after an inordinate delay by the claimants, or the decision of the case has been delayed on account of negligence of the claimant, in such exceptional cases the interest may be awarded from a later date. However, while doing so, the tribunals/High Courts must give reasons why interest is not being paid from the date of filing of the petition. Therefore, we direct that the entire amount of compensation including the amount enhanced by us shall carry an interest of 7.5% per annum from the date of filing of the claim petition till payment/deposit of the amount."Page 48 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023
NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined 7.28 Thus, reliance on Gauhati High Court judgment would not be of much assistance to the insurance company. 7.29 Section 149(1) of the MV Act makes it amply clear that once a Certificate of Insurance is issued under Sub-section (3) of Section 147, then despite that the insurer may be entitled to avoid or cancel the policy, it shall pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he was judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of an enactment relating to interest on judgments.
C] First Appeal No. 1494 of 2023:
8. One of the claimant is the father of deceased - Shubham Mehurbhai Dangar, a pillion rider on motorcycle bearing registration No. GJ-04-AB-7994, a minor aged 16 years. Motor Accident Claim Petition No. 75 of 2018 was filed which is under challenge. Elder brother of Shubham too had died in the accident and Motor Accident Page 49 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined Claim Petition No. 76 of 2018 was registered for compensation.
9. Advocate Mr. Hakim has urged the Court to grant compensation in the case of the deceased minor on the proposition of law, laid down in Kajal (supra) and to consider the dependency loss on the basis of the Minimum Wage Schedule and calculation be made following Pranay Sethi (supra) and Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram & Ors., (2018) 18 SCC 130.
9.1 The application of judgment of Kajal (supra) is to the facts when the injured-claimant has suffered permanent disability, leading to functional disability. Disability refers to lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability can be either partial or total. Partial permanent disability refers to a person's mobility to perform all the duties and bodily function 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 disables a person to Page 50 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined perform any avocation or employment related activities as a result of accident and would be almost dependent on other to attend his day to day routine. A case of child, who losses his earning capacity because of total permanent disability, and has to have a life depending on others, for the injured, the concept of pecuniary and non-pecuniary damages has to be considered, while in case of deceased minor, dependency loss has to be assessed keeping in mind the child as a non-earning person.
10. Learned advocate Ms. Pathak has placed reliance on a decision in Meena Devi v. Nunu Chand Mahto @ Nemchand Mahto and Others, 2022 ACJ 2478, where the deceased was falling in the age group of 10-15 years and also in case of Kurvan Ansari @ Kurvan Ali and Another v. Shyam Kishore Murmu and Another, (2022) 1 SCC 317, where, the notional income of the child was considered as Rs.25,000/- and applying the multiplier of 15, dependency loss was calculated as Rs.3,75,000/- and adding Rs.55,000/- in conventional heads, awarded compensation of Rs.4,70,000/-, Advocate Ms. Pathak submitted that identical view has been taken by this Court in Page 51 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined such cases.
10.1 Deceased Shubham, at the time of accident, was a student. His mother had died prior to his death on 02.05.2017. The claimants are his father and sister. The School Leaving Certificate shows date of birth of Shubham as 18.09.2003 and accordingly, his age as considered by the Tribunal is 14 years and 03 months and thus, as laid down in the case of Sarla Verma (supra), multiplier would be
15. The learned Tribunal has considered the notional income as Rs.36,000/-. Adding 40% prospective rise in income, the annual income would assess to Rs.50,400/-. The learned Tribunal has deducted 50% towards personal expenses of the deceased and has granted the amount of Rs.3,78,000/- (Rs.25,200 x 15) by considering the the dependency of Rs.25,200/-.
10.2 In Kishan Gopal and Another v. Lala and Others, 2013 ACJ 2594, it is observed:
"35. The relevant portion of clause No. 6 states as under:Page 52 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023
NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined "6. Notional income for compensation to those who had no income prior to accident-
(a) Non-earning persons - Rs.15,000/- p.a." The aforesaid clause of the Second Schedule to Section 163-A of the MV Act, is considered by this Court in the case of Lata Wadhwa v. State of Bihar while examining the tortuous liability of the tortfeasor has examined the criteria for awarding compensation for death of children in accident between age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs.12,000/- p.a. and multiplier 11 has been applied taking the age of the father and then under the conventional heads the compensation of Rs.25,000/- was awarded. Thus, a total sum of Rs.1,57,000/- was awarded in that case.
36. After noting the submission made on behalf of TISCO in Lata Wadhwa case that the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children is irrecoupable and no amount of money could compensate the parents. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs to which under the conventional heads a sum of Rs.50,000/- should be added and thus total amount in each case would be Rs.2 lakhs.
37. Further, in Lata Wadhwa case it was observed that in so far as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the Company in the said case having regard to Page 53 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined the fact the contribution of the deceased child was taken Rs.12,000/- p.a. appears to be on the lower side and held that the contribution of such children should be Rs.24,000/- p.a.
38. In our considered view, the aforesaid legal principle laid down in Lata Wadhwa case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard.
39. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. DTC, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas, which is referred to in Lata Wadhwa case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants."
10.3 In Kishan Gopal and Another (supra), the Hon'ble Supreme Court, by referring the facts of the case of minor aged about 10 Page 54 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined years, had considered the notional income as Rs.30,000/- by applying multiplier of 15, considered Rs.4,50,000/- as dependency loss and Rs.50,000/- has been considered under the conventional heads for loss of love and affection, funeral expense and last rites, as was held in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, 1994 ACJ 1 (SC), which is referred to in Lata Wadhwa and Ors. v. State of Bihar and Ors., (2001) 1 SCC 197.
11. In Meena Devi v. Nunu Chand Mahto @ Nemchand Mahto and Others, (2023) 1 SCC 204, the Hon'ble Supreme Court, in paragraphs 10 to 13, has observed as under:
"10. Thus relying upon the observation, it is said that in place of issuing any guidelines for determination of compensation in case of death of a child, it may be left open to be decided in the facts and circumstances of each case. In the case of M.S. Grewal (supra), 14 school students died due to drowning in a river. This Court noticing that the students were belonging to upper middle class background, however awarded the compensation to the tune of Rs. 5,00,000/-. Thereafter in the case of Kishan Gopal (supra), a child aged about 10 years died in a road accident took place on 19.7.1992, this Court made departure from the IInd Schedule of M.V. Act and accepted the notional income of Rs. 30,000/-Page 55 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023
NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined in place of Rs. 15,000/- applying the analogy that the value of rupee has come down drastically since 1994 when the notional income of Rs. 15000/- was fixed in IInd Schedule of the MV Act. However accepting the notional income as Rs.30,000/- and as per the age of the parents i.e. 36 years, the loss of dependency was calculated applying the multiplier of 15 at Rs. 4,50,000/- and a sum of Rs. 50,000/- was awarded under conventional heads awarding a total sum of compensation of Rs. 5,00,000/-.
11. Recently in the case of Kurvan Ansari @ Kurvan Ali and Anr. v. Shyam Kishore Murmu and Another, (2022) 1 SCC 317, wherein a child aged about 7 years died in a road accident took place on 6.9.2004, this Court taking notional income as Rs. 25,000/-, applying the multiplier of 15, calculated the loss of dependency as Rs. 3,75,000/- and adding Rs. 55,000/- in conventional heads, awarded Rs. 4,70,000/-.
12. In view of the foregoing decisions, it is apparent that in the cases of child death, the notional income of Rs. 15,000/- as specified in the IInd Schedule of M.V. Act has been enhanced on account of devaluation of money and value of rupee coming down from the date on which the IInd Schedule of M.V. Act was introduced and the said notional income was treated as Rs. 30,000/- in the case of Kishan Gopal (supra) and Rs. 25,000/- in Kurvan Ansari (supra) in age group of 10 and 7 years respectively.
13. Thus applying the ratio of the said judgments, looking to the age of the child in the present case i.e. 12 years, the principles laid down in the case of Kishan Gopal (supra) are aptly applicable to the facts of the present case. As per the ocular statement of the mother of the deceased, it is clear that deceased was a brilliant student and studying in a private school. Therefore, accepting the notional earning Rs. 30,000/- including future prospect and applying the multiplier of 15 in view of the decision of this Court in Sarla Verma (supra), the Page 56 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined loss of dependency comes to Rs. 4,50,000/- and if we add Rs. 50,000/- in conventional heads, then the total sum of compensation comes to Rs. 5,00,000/-. As per the judgment of MACT, lump sum compensation of Rs. 1,50,000/- has been awarded, while the High Court enhanced it to Rs. 2,00,000/- up to the value of the Claim Petition. In our view, the said amount of compensation is not just and reasonable looking to the computation made hereinabove. Hence, we determine the total compensation as Rs. 5,00,000/- and on reducing the amount as awarded by the High Court i.e. Rs. 2,00,000/-, the enhanced amount comes to Rs. 3,00,000/-."
11.1 In Meena Devi (supra), the child died in a road accident was aged about 12 years. The Hon'ble Apex Court after applying the ratio laid down in Kurvan Ansari @ Kurvan Ali & Another (supra), and the principle laid down in Kishan Gopal and Another (supra), accepting the notional earning of Rs.30,000/-, including the future prospect and by applying the multiplier 15, in view of the decision in Sarla Verma (supra), assessed the loss of dependency as Rs.4,50,000/-, and further Rs.50,000/- was added in conventional head, and, thus total compensation of Rs.5,00,000/- was granted. 11.2 This Court considers that the present matter in which the age of deceased minor was 14 years and 03 months at the time of accident, should be placed at the same pedestal, as has been Page 57 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined observed in cases of Kishan Gopal and Another (supra) and Meena Devi (supra). The notional earning of the child including the future prospect is required to be considered as Rs.30,000/- and by applying multiplier of 15 as laid down in Sarla Verma (supra), the loss of dependency is required to be assessed as Rs.4,50,000/-, and Rs.50,000/- is to be granted under conventional heads and thus, this Court considers that in total compensation of Rs.5,00,000/- would be an equitable, just and reasonable compensation for the claimants. The Tribunal has granted compensation of Rs.4,99,000/- and accordingly, the enhanced amount would be Rs.1,000/- (Rs.5,00,000
- 4,99,000/-).
D] Conclusion:
12. For the forgoing observations and discussion, both the appeals succeed and are accordingly, allowed in part. The impugned judgment and award of the Tribunal is hereby modified to the aforesaid extent. The difference amount of Rs.35,20,809/- and Rs.1,000/-, in the respective appeal, shall be deposited within a period of 08 (eight) weeks. The insurance company is directed to Page 58 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023 NEUTRAL CITATION C/FA/1493/2023 JUDGMENT DATED: 11/08/2023 undefined pay the total compensation amount with 7.5% interest per annum, from the date of claim petitions till realization. R&P received, be transmitted back forthwith.
[ Gita Gopi, J. ] hiren /PC-1 Page 59 of 59 Downloaded on : Sun Sep 17 01:14:39 IST 2023