Rama Shanker v. Anil Kumar and Ors

IN T

Rama Shanker Anil Kumar and

CORAM : HON

Present: Mr

Mr

for

Mr

for SUDEEPTI SH

1.

The enhancement of Tribunal, Farida Section 166/140 was awarded a annum. FACTS NOT IN

2.

Bri appellant was g 21/4, Mathura R Sector -24, Fari caution, car be being driven by

THE HIGH COURT OF PUNJ AT CHANDIGA -.-

FA Da

VERSUS d Others

N'BLE MRS. JUSTICE SUDE r. Jashan Sekhon, Advocate for r. Shiv Kumar, Advocate the appellant. r. Vishal Aggarwal, Advocate the respondent-Insurance Co. -.- HARMA, J. (Oral)

e present appeal has been prefe f compensation awarded by th abad (for short, 'the Tribunal') 0 of the Motor Vehicles Act, 198 compensation of Rs.1,00,000/- N DISPUTE ief facts of the case are that on going on his cycle to attend his d Road, Faridabad, from his hou idabad. When he was crossing aring registration No.HR-26M-y respondent No.1 rashly and neg

JAB AND HARYANA ARH AO-4643-2006 (O&M) ate of Decision : 11.11.2024

....Appellant

....Respondent EEPTI SHARMA erred by the claimant/appellant he learned Motor Accident Cla vide award dated 29.5.2006 un 88, whereby, the claimant/appell - along with interest @ 7.5% n 17.10.2004 at about 9.30 p.m duty in M/s Starwire India Limi use situated at Azad Nagar Jhug the GT Road with proper care -3226 came from Ballabgarh s gligently and hit the appellant. D

for ims nder lant per ited ggi, side

to this accident, bone besides inj after first aid, h Hospital, Delhi,

09.11.2004 and were also applie operation of his sum of Rs.50,0 He is now not in

18.04.2004 was Penal Code at P

3.

Up the factum of ac

4.

Fro issues:-

, appellant sustained fracture on juries on his head. He was remo he was taken to ESI Hospital, , where he remained admitted operation of his leg and hand w ed. Still, he is under treatment an leg as the first operation could n 000/- on his treatment and h n a position to do his job as Main s also got registered under Sec olice Station Sector 7, Faridabad on notice of the claim petition, ccident/compensation. om the pleadings of the parties,

¶1Whether the alleged a on the person of petition too driving of Opel Car bearing No.1? OPP

¶2If issue No.1 is proved to compensation and if so ho

¶3Whether the petition is

¶4Whether the driver o No.1) was not holding a vali if so its effect. OPR-3

n his right leg, right hand, shoul oved to B.K.Hospital, Faridabad Faridabad and then to Safdarj for the period from 18.10.2004 was conducted. Stitches on his h nd doctors have advised for seco not succeed. He has already spen huge amount is still to be spe ntenance Fitter. FIR No.466, da ctions 279, 337, 338 of the Ind d, regarding the said accident. , respondents appeared and den the Tribunal framed the follow accident resulting into the injur ok place due to rash and neglig g No.HR-26M-3226 by respond d, whether the petitioner is entit ow much and from whom?OPP s not maintainable? OPR of the car in question (respond id and effective driving licence

lder ang 4 to head ond nt a ent. ated dian nied wing ries gent dent tled

5.

Aft record, the learn along with inte present appeal f SUBMISSIONS

6.

Lea suffered serious injuries on his h Tribunal for pai on the lower transportation c therefore, prays be enhanced.

7.

Per the learned Trib of compensation

8.

I h record of this ca

9.

A p permanent injur that the appel

08.11.2004. Re Hospital Farida compensation w

¶5Relief.

ter taking into consideration th rned Tribunal awarded compens erest @ 7.5% per annum. Henc for enhancement of compensation S OF LEARNED COUNSELS arned counsel for the claimant-ap s injuries i.e. fracture on right leg head. He further contends that t in and suffering, future medical side. He further contends t charges, attendant charges and that the present appeal be allow r contra, learned for the responde bunal vide award dated 29.05.20 n. Therefore, he prays for dismis have heard learned counsel for ase. perusal of the record shows tha ry on account of accident. A pe lant remained admitted in th cord further reveals that the ap abad to Safdarganj Hospital, was awarded for transportation

he pleadings and the evidence sation to the tune of Rs.1,00,00 ce the claimant/appellant filed n awarded by the Tribunal. S FOR THE PARTIES ppellant contends that the appell g and right shoulder's bone besi the amount assessed by the learn treatment and for loss of incom that no amount was granted for loss of amenities of life. ed and the amount of compensat ent-Insurance Company argues t 006 has rightly assessed the amo ssal of the present appeal. the parties and perused the wh at the appellant does not suffer erusal of the record further reve he hospital from 18.10.2004 ppellant has transferred from E Delhi. Further no amount n, attendant charges and loss

on 00/- lant ides ned e is for He, tion that ount hole any eals to EST of

amenities of lif medical treatme award requires i SETTLED LAW

10.

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

¶5ma com res awa wro equ dam or disa be suff com tho inju hav

fe. Moreover, compensation gra ent and for loss of income is o interference by 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 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

anted for pain and suffering, fut on the lower side. Therefore, 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 n prior to the accident. The objec od the loss suffered as a resul n do so, in a fair, reasonable a 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

ture t of Raj has ort) that tely ct of t of tion e of y to h he be njoy ould

Ltd

¶6inju Pec

(i) tran

(ii) ma

(iii) Da

(iv) inju

(v)

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

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. 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.

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 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

dia) onal nes, ave ty. eral f the only ury, ence f the s on s of

19.

(i) A res

(ii) who loss ear disa evid sam

(iii) sub evid ear Tri

(iv) of l nat fac

¶20wit Illu ear evid

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 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

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 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

not e of s of nent s of him give s of ages ther low or's

inju per how bec gra Illu is a lon Tri 75% Illu Eng two The

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 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

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 loss 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

y is nce, wer Rs. ility d no leak The y as year for ted.

inc ass cap wil a) M hav Eng b) L (70 c) M d) L [No hyp act

11.

Ho Ltd. Vs. Pranay Sections 166, 1 aspects:-

(A) mu

(B)

(C)

(D) esta

(E) age The

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 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

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 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:-

ning tion are on any nder wing mine of

12.

Ho Express Tran. C " 7

(a) age Ins effe Tra gro fac

" 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 ye because that will bring in heads." n'ble Supreme Court in the ca Corpn. Ltd. 2020 ACJ 2159, has

¶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.

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:- 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

s. It ads, nses ely. able um-that s in e of d so hose tate us: s of onal ACJ nch d in elhi age

for con app

(b) disa

com Jag Kha bel jud

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 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

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 award of compensation must co aspects: auma resulting from the accident ding future income; ctim 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

nsel nent med t in deep ract ples t or over t; ther y be

mu qua disa disa occ und

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

(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

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 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

d to nent n 8 gust t as ant, tate urt. has that

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 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

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% 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

into erit ples case The t in ally d be d as ered % in sh's ious nce ates tled t, as

Rs. per CONCLUSION

13.

In above referred

29.05.2006 is m enhanced amoun Sr. No.

¶1Futu

¶2Los

¶3Tran

¶4Los

¶5Atte

¶6Pain

¶7Spe

¶8Med

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 mental agony Pain and suffering Total The appellant would, thus, 41,69,831/- as claimed along w r annum from the date of applica N view of the law laid down by to judgments, the present app modified accordingly. The app nt of compensation as per the cal Heads ure treatment Rs s of income Rs nsportation charges Rs s of Amenities of life Rs endant Charges Rs n and sufferings Rs cial Diet Rs dical Expenses Rs

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. the Hon'ble Supreme Court in peal is allowed. The award da pellant-claimant is entitled to lculations made here-under:-Compensation Awarded s.30,000/-s.50,000/-s.30,000/-s.30,000/-s.15,000/-s.40,000/-s.20,000/-s.30,000/-

n of f 9%

Tota

Com

Enh

14.

So Court in Dara S and R.Valli and Supreme Court per annum from

15.

The compensation al from the date of directed to disbu of claimant/app account details t

16.

In

18.07.2024, the scheduled fees t the date of recei

17.

Dis

18.

Pen

November 11, 2 tripti

Whethe

Whethe

al Compensation Rs mpensation awarded by Tribunal Rs hanced Compensation Rs far as the interest part is conce Singh @ Dhara Banjara Vs. Shy d Others VS. Tamil Nandu State t Cases 107, the amount so calc m the date of filing of claim petiti e Insurance Company is directed long with interest with the Tribu f receipt of certified copy of this urse the amount of compensation pellant. The claimant/appellant to the Tribunal. views of the order passed i e insurance company is hereb to Mr. Vishal Aggarwal, Advoca ipt of copy of this judgment. sposed of accordingly. nding applications, if any, also st 2024

er speaking/non-speaking : Speak er reportable

: Yes/N

s.2,45,000/- s.1,00,000/- s.1,45,000/- erned, as held by Hon'ble Supre yam Singh Varma 2019 ACJ 31 te Transport Corporation (2022 culated shall carry an interest @ ion till the date of realization. d to deposit the enhanced amoun unal within a period of two mon s judgment. The Tribunal is furt n along with interest in the acco t is directed to furnish his ba in FAO No.1682 of 2007 da y directed to deposit the curr ate within a period of ten days fr tand disposed of. (SUDEEPTI SHARMA) JUDGE king

eme 2) 5 9% nt of nths ther ount ank ated rent