Jagdish Kumar v. Arvind and Ors

IN T

Jagdish Kumar

Arvind @ Ravin

CORAM : HON

Present: Mr for

Mr SUDEEPTI SH

1.

The enhancement of Tribunal, Hisar Section 166 of t awarded compen FACTS NOT IN

2.

Bri Kumar alongwi City Hansi. The bearing registrat was being driven against the petit and received ser below knee join

THE HIGH COURT OF PUNJ AT CHANDIGA

-.-

FA

Da

Versus nder and others

N'BLE MRS. JUSTICE SUDE r.Ajay Jain, Advocate the appellant. r. Ravinder Arora, Advocate for t -.-

HARMA, J. e instant appeal has been prefe f compensation awarded by th r (for short, 'the Tribunal') vid the Motor Vehicles Act, 1988, w nsation of Rs.1,09,000/- along w N DISPUTE ief facts of the case are that th one Purshotam Dass was go ey were on foot. When they we tion No.HR 38-C/2182 came fro n by the respondent No.1 in a ra tioner from front side, as a resul rious and grievous injuries on va nt was crushed by the said truck.

JAB AND HARYANA ARH

AO-1944-2007 (O&M) ate of Decision : 19.10.2024

....Appellant

....Respondents EEPTI SHARMA the respondent-Ins. Co. erred by the claimant/appellant he learned Motor Accident Clai de award dated 01.03.2007 un whereby the claimant/appellant w with interest @ 6% per annum. on 23.11.2001, petitioner Jagd ing for walk from his residence ere on B.T. Road, a Tata-709 tru om the opposite side. The said tru ash and negligent manner and stru lt of which, the petitioner fell do arious parts of his body. His left After the accident, the injured w

for ims nder was dish e to uck uck uck own leg

taken to Genera him. Since inju Chawla Nursing Nursing Home, also took treatm of mandible. FI registered about have spent Rs.1 required for fur loss, pain and ag claimed that he premises, the pe interest @ 18% insurer of the of

3.

Up the factum of co

4.

Fro issues:-

al Hospital, Hansi by Purshotam uries of the petitioner were seri g Home, Hisar. The petitioner Hisar for treatment and he was ment from Dental Care Centre, P IR No.617 dated 17.12.2001 un t this accident at Police Station C 1,00,000/- on his treatment and rther treatment and that due to t gony, permanent disability, loss e used to earn Rs.8,000/- per m etitioner sought sum of Rs.5,00,0 per annum and costs of the proc ffending truck. on notice of the claim petition, ompensation. om the pleading of the parties, "1. Whether Jagdish Kumar accident which occurred o negligent driving of Tata-7 C/2182 by Arvind Kumar Ra

¶2Whether the issue No.1 is claim compensation, if so t OPP

m Dass where first aid was given ious, therefore, he was referred was got admitted in the Chaw operated upon there. The petitio Pushpa Complex, Hisar for fract nder Section 279 and 338 IPC w City Hansi. The petitioner claim pleaded that Rs.50,000/- more the accident, he suffered pecuni of earnings etc. The petitioner a month from his business. On th 000/- as compensation together w ceedings from the driver, owner , respondents appeared and den the Tribunal framed the follow r petitioner received injuries in on 23.11.2001 due to rash a 709 being registration No.HR avinder respondent No.1? OPP s proved, the claimant is entitled to what amount and from who

n to d to wla oner ture was s to are iary also hese with and nied wing an and 38-d to om?

5.

Aft record, the lear interest @ 6% p enhancement of SUBMISSIONS

6.

The amount assessed

He the extent of 3 disability certifi

He Rs.39000/- for m

He transportation an for permanent d

¶3Whether this petition i with respondent No.1 and 2 t

¶4Whether the vehicle w valid and effective driving OPR-3

¶5Whether the vehicle w and conditions of insurance p

¶6Relief "" ter taking into consideration th rned Tribunal awarded compen per annum. Hence the claimant/a f compensation awarded by the T S OF THE COUNSEL FOR T e learned counsel for the clai d by the learned Tribunal is on th further contends that the appella 30% as result of post traumatic cate is produced on record as Ex further contends that the le medical expenses which is also o further contends that the Trib nd special diet; Rs.10,000/- for disability, which is also on the low

is filed by the petitioner in collus to claim compensation? OPR-3 was not driven by a person hold licence at the time of accide was driven in contravention of ter policy? OPR-3 he pleadings and the evidence nsation of Rs.1,09,000/- alongw appellant filed the present appeal Tribunal. HE PARTIES imant-appellant contends that he lower side. ant suffered permanent disability c deformity of left ankle and x.P-26. arned Tribunal has granted o on the lower side. bunal has awarded Rs.10000/- pain and suffering and Rs.50,00 wer side.

sion ding ent? rms on with for y to only for 00/-

7.

Per the learned Trib of compensation

8.

I h record of this ca

9.

A p businessman ea was adduced by is to be assessed prescribed for u awarded by the and permanent interference of t SETTLED LAW

10.

Ho compensation w Kumar Vs. Aja held as under:- Gen

¶5ma com res awa wro

r contra, learned for the responde bunal vide award dated 01.03.20 n. have heard learned counsel for ase. perusal of the award shows th arning Rs.8000/- per month. H y the claimant in this regard. Th d as Rs.2050/- per month in acc unskilled workers in the State Tribunal for transportation charg disability are on the lower sid this Court. W ON COMPENSATION n'ble Supreme Court has set with respect to the disability. T ay Kumar and Another (2011) neral principles relating to comp The provision of the Motor Ve kes it clear that the award mpensation should, to the exte tore the claimant to the position arding damages is to make goo ong done as far as money can

ent-Insurance Company argues t 007 has rightly assessed the amo the parties and perused the wh hat the claimant was stated to However, no documentary evide herefore, the income of the claim cordance with the minimum wa of Haryana. Further the amo ges, special diet, pain and suffer de. Therefore, the award requ ttled the law regarding grant The Apex Court in the case of ) 1 Supreme Court Cases 343, mpensation in injury cases Vehicles Act, 1988 ('Act' for sho must be just, which means t ent possible, fully and adequa prior to the accident. The objec od the loss suffered as a result n do so, in a fair, reasonable a

that ount hole be nce mant ages ount ring ires t of Raj has ort) that tely ct of t of

equ dam or disa be suff com tho inju hav Ltd

¶6inju Pec

(i) tran

(ii) ma

(iii) Da

(iv) inju

uitable manner. The court or mages objectively and exclude f fancy, though some conjecture ability and its consequences, is compensated for the physical inj ffered as a result of such inju mpensated for his inability to le ose normal amenities which he uries, and his inability to earn a ve earned. (See C.K. Subramoni 70 Supreme Court 376, R.D. H d., 1995 (1) SCC 551 and Baker v The heads under which com ury cases are the following : cuniary damages (Special Dama Expenses relating to treatm nsportation, nourishing food, an Loss of earnings (and other ga de had he not been injured, comp

(a) Loss of earning during th

(b) Loss of future earnings on ) Future medical expenses. N mages) ) Damages for pain, suffering an uries.

tribunal shall have to assess from consideration any speculat e with reference to the nature inevitable. A person is not only njury, but also for the loss which ury. This means that he is to ead a full life, his inability to en e would have enjoyed but for as much as he used to earn or co ia Iyer v. T. Kunhikuttan Nair, A Hattangadi v. Pest Control (Ind v. Willoughby, 1970 AC 467). mpensation is awarded in perso ages) ment, hospitalization, medicin nd miscellaneous expenditure. ains) which the injured would h mprising : he period of treatment; n account of permanent disabilit Non-pecuniary damages (Gene nd trauma as a consequence of

tion e of y to h he be njoy ould AIR dia) onal nes, ave ty. eral

(v)

(vi) In r und whe of t hea acc am exp

19.

(i) A res

(ii) who loss ear disa evid sam

(iii) sub evid

Loss of amenities (and/or loss of ) Loss of expectation of life (shor routine personal injury cases, c der heads (i), (ii)(a) and (iv). It ere there is specific medical ev the claimant, that compensation ads (ii)(b), (iii), (v) and (vi) rel count of permanent disability, enities (and/or loss of prosp pectation of life. xxx

xxx We may now summarise the pr All injuries (or permanent disab ult in loss of earning capacity. The percentage of permanen ole body of a person, cannot b s of earning capacity. To put it d rning capacity is not the same ability (except in a few cases, w dence, concludes that percentag me as percentage of permanent d ) The doctor who treated an inju bsequently to assess the extent of dence only in regard the extent

of prospects of marriage). rtening of normal longevity). compensation will be awarded o t is only in serious cases of inju vidence corroborating the evide n will be granted under any of lating to loss of future earnings future medical expenses, loss pects of marriage) and loss xxx

xxx rinciples discussed above : bilities arising from injuries), do nt disability with reference to e assumed to be the percentage differently, the percentage of loss e as the percentage of perman where the Tribunal on the basis ge of loss of earning capacity is disability). ured-claimant or who examined h of his permanent disability can g of permanent disability. The loss

only ury, ence f the s on s of of not e of s of nent s of him give

ear Tri

(iv) of l nat fac

¶20wit Illu ear evid inju per how bec gra Illu is a lon and

rning capacity is something tha ibunal with reference to the evide ) The same permanent disability loss of earning capacity in diffe ture of profession, occupation ctors. The assessment of loss of fu th reference to the following ustration 'A' : The injured, a w rning Rs. 3000/- per month at th dence, the permanent disability ury was 60% and the consequ rson was quantified at 30%. wever assessed by the Tribunal cause the claimant is continue ade. Calculation of compensation a) Annual income before the b) Loss of future earning per (15% of the prior annual inc c) Multiplier applicable with d) Loss of future earnings : ( ustration 'B' : The injured was a 00/- per month. His hand is amp assessed at 60%. He was termi nger drive. His chances of gettin d even if he got any job, the sala

at will have to be assessed by ence in entirety. may result in different percenta ferent persons, depending upon or job, age, education and ot uture earnings is explained bel workman, was aged 30 years a he time of accident. As per Docto of the limb as a consequence of uential permanent disability to The loss of earning capacity l as 15% on the basis of eviden ed in employment, but in a low n will be as follows: e accident : Rs. 36,000/-. r annum come) : Rs. 5400/-. h reference to age : 17 (5400 x 17) : Rs. 91,800/- a driver aged 30 years, earning putated and his permanent disabi inated from his job as he could ng any other employment was bl ary was likely to be a pittance. T

ages ther low and or's f the y is nce, wer Rs. ility d no leak

Tri 75% Illu Eng two The inc ass cap wil a) M hav Eng b) L (70 c) M d) L [No hyp act

11.

Ho Ltd. Vs. Pranay

ibunal therefore assessed his lo %. Calculation of compensation a) Annual income prior to th b) Loss of future earning per (75% of the prior annual inc c) Multiplier applicable with d) Loss of future earnings : ( ustration 'C' : The injured w gineering student. As a result of o months, his right hand was a e permanent disablement was as capacitated to pursue his chose sistance of a servant throughout pacity was also assessed as 70% ll be as follows : Minimum annual income he wou ve got if had been employed as a gineer

Loss of future earning per annum 0% of the expected annual incom Multiplier applicable (25 years) Loss of future earnings : (42000 ote : The figures adopted in pothetical. The figures in Illust tuals taken from the decision in A n'ble Supreme Court in the case y Sethi &Ors. [(2017) 16 SCC

oss of future earning capacity will be as follows : e accident : Rs. 36,000/- . r annum come) : Rs. 27000/-. h reference to age : 17 (27000 x 17) : Rs. 4,59,000/- was 25 years and a final y of the accident, he was in coma amputated and vision was affect ssessed as 70%. As the injured w en career and as he required t his life, the loss of future earn %. The calculation of compensat uld an

: Rs. 60,000/-m me) : Rs. 42000/-

: 18 x 18) : Rs. 7,56,000/- n illustrations (A) and (B) tration (C) however are based Arvind Kumar Mishra (supra)]. e of National Insurance Compa C 680] has clarified the law un

y as year for ted. was ning tion are on any

Sections 166, 1 aspects:-

(A) mu

(B)

(C)

(D) esta

(E) age The

12.

Ho Express Tran. C

63-A and 168 of the Motor Ve ) Deduction of personal an ultiplicand; ) Selection of multiplier depen ) Age of deceased on basis for ) Reasonable figures on con ate, loss of consortium and funer ) Future prospects for all cate es: with permanent job; self-emp e relevant portion of the judgmen " Therefore, we think it seems to us that reasonabl namely, loss of estate, loss o should be Rs.15,000, Rs.40 The principle of revisiting principle. But the revisit sho centric. We think that it wou we have quantified should b every three years and the en 10% in a span of three yea because that will bring in heads." n'ble Supreme Court in the ca Corpn. Ltd. 2020 ACJ 2159, has

ehicles Act, 1988, on the follow nd living expenses to determ nding on age of deceased; r applying multiplier; nventional heads, namely, loss ral expenses, with escalation; egories of persons and for differ ployed or fixed salary. nt is reproduced as under:-t seemly to fix reasonable sums le figures on conventional hea of consortium and funeral expen 0,000 and Rs.15,000 respectiv the said heads is an accepta uld not be fact-centric or quantu uld be condign that the amount t be enhanced on percentage basis nhancement should be at the rate ars. We are disposed to hold n consistency in respect of th ase of Erudhaya Priya Vs. St s held as under:-

wing mine of rent s. It ads, nses ely. able um-that s in e of d so ose

" 7

(a) age Ins effe Tra gro fac for con app

(b) disa

com Jag Kha bel

¶7There are three aspects which the application of multiplier of The aforesaid increase of m e of the appellant as 23 years re urance Company Limited v. Pr 00 (SC). In para 46 of the said ectively affirmed the multiplier m e table in the case of Sarla V ansport Corporation and Anothe oup of 15-25 years, the multi ctoring in the extent of disability. The aforesaid position is not the respondent State Corpora nclusion that the multiplier to pellant has to be '18' and not '17 Loss of earning capacity of ability of 31.1% In respect of the aforesa mpensation on what is stated to gdish v. Mohan & Others, 20 anuja v. Atul Dande & Another low the principle set out in the Ja "8. In assessing the compens need to be borne in mind. A temporary disability occasio

are required to be examined by f '17' instead of '18'; multiplier is sought on the basis elying on the judgment in Natio ranay Sethi and Others, 2017 A d judgment, the Constitution Ben method to be used as mentioned Verma (Smt) and Others v. De er, 2009 ACJ 1298 (SC) . In the a iplier has to be '18' along w

t really disputed by learned coun ation and, thus, we come to o be applied in the case of 7'. of the appellant with perman aid, the appellant has claim o be the settled principle set ou 018 ACJ 1011 (SC) and Sand r, 2017 ACJ 979 (SC). We extr agdish (supra) in para 8: sation payable the settled princip victim who suffers a permanent ned by an accident is entitled to

us: s of onal ACJ nch d in elhi age with nsel nent med t in deep ract ples

jud mu qua disa disa occ und

award of compensation. The among others, the following

(i) Pain, suffering and tra

(ii) Loss of income includ

(iii) The inability of the vi with its amenities;

(iv) Medical expenses incl required to undertake

(v) Loss of expectation of The aforesaid principle has dgment, i.e. the Sandeep Khanu ltiplier method was logically so antify the loss of income as ability suffered in an accident. In the factual contours of th ability certificate, it shows th casions for various number of 11 to January 2013. The natur der: "Nature of injury:

(i) compound fracture sha

(ii) fracture both bones lef

(iii) compound fracture bo

(iv) fracture 3rd, 4th & 5th

award of compensation must co aspects: auma resulting from the accident ding future income; ictim to lead a normal life toget luding those that the victim may in future; and f life." [emphasis supplied] also been emphasized in an ear uja case (supra) opining that ound and legally well established a result of death or perman he present case, if we examine he admission/hospitalization on days over 1½ years from Aug re of injuries had been set out aft left humerus ft forearm th bones right forearm h metacarpals right hand

over t; ther y be rlier d to nent n 8 gust

(v) subtrochanteric fractu

(vi) fracture shaft femur

(vii) fracture both bones lef We have also peruse petition showing the curren though it is stated by learne Corporation that the same w Be that as it may, this is the the nature of injuries itself been opined in para 13 of S while applying the multipl advancement in life and c consideration. We are, thus, unequivo in the contention of the app with regard to future prospec of the appellant taking the p quantification of the same National Insurance Co. Ltd para 61(iii), considering th 50% of the actual salary in th

(c) The third and the last as 12% In respect of the afo down the interest rate durin

ure right femur ft leg ed the photographs annexed to nt physical state of the appella ed counsel for the respondent St was not on record in the trial co e position even after treatment a f show their extent. Further, it Sandeep Khanuja case (supra) t lier method, future prospects career are also to be taken i ocally of the view that there is m pellant and the aforesaid princip cts must also be applied in the c permanent disability as 31.1%. T on the basis of the judgment d. case (supra), more specifica he age of the appellant, would he present case. spect is the interest rate claimed resaid, the appellant has wate ng the course of hearing to 9%

ant, tate urt. and has that on into erit ples case The t in ally d be d as ered % in

Rs. per

view of the judicial pronoun case (supra). On this aspect dispute raised by the learne the claim was confined to applied by this Court. CONCLUSION

¶8The result of the afores principles, the calculation of set out in para 5 of the syno follows:

Heads Loss of earning power (Rs.14,648 x 12 x 31.1/100 Future prospects (50 per cent addition) Medical expenses including transport charges, nourishment, etc. Loss of matrimonial prospects Loss of comfort, loss of amenities and mental agony Pain and suffering Total The appellant would, thus, 41,69,831/- as claimed along w r annum from the date of applica

ncements including in the Jagdis t, once again, there was no seri ed counsel for the respondent o 9% in line with the interest ra said is that relying on the sett f compensation by the appellant, opsis, would have to be adopted Awarded Rs. 9,81,978/- Rs.4,90,989/- Rs.18,46,864/- Rs.5,00,000/- Rs.1,50,000/- Rs.2,00,000/- Rs.41,69,831/- be entitled to the compensation with simple interest at the rate of ation till the date of payment.

sh's ious nce ates tled , as d as n of f 9%

RELIEF:

¶13In view of the above, the present appeal is allowed and award dated

01.03.2007 is modified.

¶14Accordingly, as per the settled principles of law as laid down by Hon'ble Supreme Court as mentioned above, the appellant - claimant is held entitled to the enhanced compensation amount as calculated below: Sr. Heads Compensation Awarded No. 1 Income Rs.2050/- 2 Future Prospects 25% Rs.512/- (25% of 2050) 3 Annual Income Rs.30744/- (2050+512 x 12) 4 Loss of future earning per Rs.9223/- (30744/-x 30%) annum @ 30% 5 Multiplier (13) Rs.1,19,899/- (9223 x 13)

¶5Medical Rs.39000/-6 Attendant Charges Rs.20,000/-7 Transportation Rs.15,000/-8 Pain and Sufferings Rs.30,000/-9 Special diet Rs.30,000/-11 Loss of amenities of life Rs.50,000/-Total Compensation Rs.3,03,899 /-Rs.1,09,000/- Amount Awarded by the Tribunal Enhanced amount Rs.1,94,899/-

¶15So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5 Supreme Court Cases 107, the appellant-claimant is granted the interest @ 9% per annum on the enhanced amount from the date of filing of claim petition till the

16.

The compensation al from today. The compensation a claimant/appella Stayed amount b

17.

Pen

19.10.2024 A.Kaundal

Whether s

Whether r

e Insurance Company is directed long with interest with the Tribu e Tribunal is further directed to along with interest in the accou ant is directed to furnish his ba by this Court, if any, shall also b nding applications, if any, also st

speaking/non-speaking : Speakin reportable

: Yes/No

d to deposit the enhanced amoun unal within a period of two mon o disburse the enhanced amount unt of the claimant/appellant. T ank account details to the Tribun be released to the appellant. tand disposed of. (SUDEEPTI SHARMA) JUDGE ng

nt of nths t of The