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The New India Assurance Company Ltd v/s Amit Kumar Yadav & Another

    First Appeal From Order No. 1285 1489 of 2008

    Decided On, 23 March 2022

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE DR. JUSTICE KAUSHAL JAYENDRA THAKER & THE HONOURABLE

    For the Appearing Parties: Praful Sahadeva, P. Bahadur, Rakesh Bahadur, Bhola Nath Yadav, A. Singh, Amish Mishra, Mahendra Pratap Singh, Shiv Nath Singh, Advocates.



Judgment Text

Ajai Tyagi, J.

1. Both these appeals arise out of same judgment and order dated 6.2.2008 passed by District Judge, Motor Accident Claim Tribunal, Kanpur Nagar (herein after referred to as 'the Tribunal') in Motor Accident Claim Petition No.929 of 2004 (Amit Kumar Yadav vs. The New India Assurance Co.Ltd. and another).

2. FAFO NO.1285 of 2008 is filed by the New India Assurance Co.Ltd. for setting aside the impugned judgment with the prayer that claim petition be dismissed while FAFO No.1489 of 2008 is filed by the claimant for enhancing the award. Since, both the appeals have arisen out of the same judgment, they are heard together.

3. Brief facts of the case are that a motor accident claim petition No.929 of 2004 is filed by claimant, namely, Amit Kumar Yadav before learned Tribunal at Kanpur Nagar for seeking compensation due to sustaining severe injuries in the road accident. It is averred in claim petition that on 1.9.2003 at about 10:30 a.m., the claimant was going on bye-pass road between the Naubasta and Gopal Nagar, District-Kanpur Nagar by riding his bicycle bearing No.UP78AG/4410, when he was hit by rashly and negligently driven tanker bearing No.UP70-B-9916. In this accident, the wheel of the aforesaid tanker ran over both the legs of the claimant and crushed his legs. The claimant was admitted in hospital. First information report of the accident was lodged in concerned police station. It is also averred in petition that the age of the injured claimant was 21 years and he had passed B.Sc.

4. After analyzing the facts and evidence on record, the learned Tribunal allowed the claim petition and awarded a sum of Rs.15,02,000/- with 6% per annum rate of interest. Aggrieved with the judgment, the New India Assurance Co.Ltd., which is the Insurance Company of offending tanker, preferred the appeal and claimant also preferred the appeal for enhancing the compensation.

5. Heard Shri Rakesh Bhadur, learned counsel for the appellant-Insurance Company and Shri Mahendra Pratap Singh, learned counsel appearing on behalf of respondents-claimants.

6. At the very outset, Shri Rakesh Bahadur, learned counsel for the Insurance Company, submitted that the driver of the tanker in question was not at all responsible for the accident and injuries sustained by the claimant but the aforesaid tanker was not directly involved in the accident. It is also submitted that learned Tribunal has rejected the plea of contributory negligence and held that the claimant was not contributor to the accident at all. Learned Counsel has relied on the judgment in Bijoy Kumar Dugar vs. Bidya Dhar Dutta and others, (2006) 3 SCC 242.

7. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply.

8. The principle of contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place.

9. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :

"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.

17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.

18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.

19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.

20. These provisions (section 110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.

21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).

22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."

(Emphasis added)

10. Learned counsel submitted that injured has himself deposed before the learned Tribunal as PW1 that at the time of accident when he reached at Pratap Hotel on bye-pass road, a tanker bearing No.UP70B/9916 was coming from opposite direction in a zig-zag manner. It is also deposed that after observing the zig-zag driving of tanker, the claimant took his motorcycle to the extreme left side of the road on the pathway, but the tanker hit the motorcycle coming on the wrong side and the front-right wheel of the tanker ran over his legs. It is further submitted that it is crystal clear from the evidence of injured (PW1) that tanker hit his motorcycle from opposite direction while another witness PW2, who is alleged to be eye-witness of the accident has stated in his oral evidence that at the time of accident, he was coming behind the injured-claimant on another motorcycle. Injured was ahead of the tanker and he was behind the tanker and the tanker hit the injured from behind.

11. Learned counsel for the Insurance Company submitted that injured himself says that tanker hit his motor cycle from opposite direction while eye-witness PW2 says that tanker hit the motorcycle from behind. In this way, there is material contradiction between the statements of PW1 & PW2, which shows that PW2 has not seen the accident.

12. Learned counsel for the Insurance Company next submitted that the driver of the tanker is produced before the learned Tribunal as DW1 and he has deposed on oath that at the time of accident, the injured was overtaking the tanker from left-side, a Maruti Car was parked ahead of him and accident occurred due to opening of the door of the car in which the motorcycle of injured was hit and he fell before the tanker. In this manner the wheel of the truck ran over the legs of the injured. Learned counsel further submitted that it shows that tanker-driver was not at all responsible for the accident, but accident took place due to own negligence of the injured and the Maruti Car. Learned counsel also referred the site-plan and submitted that site-plan was prepared during the investigation of concerned criminal case in which the place of accident was shown by letter 'A', which is on the road while it is the case of the claimant that he took his motorcycle on kaccha patri (pathway). It also shows the negligent driving of the claimant.

13. Learned counsel for the claimant strongly objected the submissions made by counsel for the Insurance Company and submitted that the driver of the tanker was driving very rashly and negligently and hit the motorcycle of the claimant from opposite direction, which is clear from the site-plan. It is next submitted by him that learned Tribunal has discussed the manner of accident in the impugned judgment and came to conclusion that the driver of the tanker was solely responsible for accident and there was no contributory negligence on the part of the claimant.

14. The injured-claimant is the best witness to depose regarding the manner of accident. He has stated in his deposition that the tanker hit his motorcycle from opposite direction. This statement of claimant corroborates with the site-plan prepared by Investigating Officer in concerned criminal case of this accident. Perusal of site-plan suggests that motorcycle and tanker were coming from opposite directions. Hence, the motorcycle was hit by tanker from opposite directions. There is no evidence on record except the statement of driver of the truck that the claimant hit the door of Maruti Car and fell before the tanker. The statement of driver of the tanker is contrary to the site-plan while it is admitted by driver of the tanker that the front-wheel of tanker ran over the legs of claimant. It is not a case of overtaking the tanker by the claimant, but it is clear from the site-plan that the spot of accident is not at the extreme left side of the road, which shows that the claimant's motorcycle was slightly towards the middle of the road, which reflects the negligent driving of the claimant also to some extent and, therefore, keeping in view the above facts and circumstances of the case, we are in full agreement with Shri Rakesh Bahadur, learned counsel for the Insurance Company to the extent that there is evidence of contributory negligence on the part of claimant. Hence, we hold the claimant responsible for negligent driving to the tune of 25%.

15. Now, it takes us to the part of the assessment of compensation to be awarded to the claimant. Learned counsel for the claimant submitted that learned Tribunal has not awarded just compensation. It is stated by learned counsel that the Injured was a student of B.Sc. final year and he was earning Rs.7,500/- per month by serving in a private firm and also doing a part-time job, but learned Tribunal has considered his monthly income at Rs.3,000/- only. It is also submitted that on the basis of this meagre amount of Rs.3,000/-, the learned Tribunal has only awarded damages for 14 months as loss of earning and awarded just Rs.42,000/- for loss of earning. He contended that claimant sustained serious injuries and his one lower limb was amputated and he was declared permanently disabled to the tune of 80% as per disability certificate. This fact was not properly appreciated by the learned Tribunal. Further submission is that non-pecuniary damages awarded to the petitioner as on lower side.

16. Learned counsel for the Insurance Company submitted that as per statement of injured-PW1, there was one attendant only for his help while learned Tribunal has awarded compensation for two attendants, which is not the case of the claimant.

17. It is also submitted by learned counsel for the Insurance Company that a disability certificate is issued regarding the disability sustained by the appellant to the tune of 80%, but no doctor is examined to prove the aforesaid certificate. Therefore, it cannot be relied upon.

18. We are not convinced with the aforesaid submission that there is necessity to prove the disability certificate by calling the doctor when it is not challenged before the Tribunal. It is not the case of the Insurance Company that disability certificate is fake or not issued by competent authority. We are in agreement with the submission made on behalf of Insurance Company that in his evidence, the appellant has stated that he was having one attendant for his help yet the Tribunal has awarded compensation for two attendants.

19. This is a case of injury to the appellant, which is very grave in nature. The appellant has sustained very serious injuries as the front-wheel of the tanker ran over both the legs. His one leg was amputated from knee joint and two ligaments of other leg were removed permanently, therefore, more or less he became disabled by both the legs.

20. This is a case where a young boy at the age of 21 years only has lost one leg by amputation and removal of two ligaments of other leg had also made him incapacitated from pursuing any good career in life though he was a student of B.Sc. Final year at the time of accident. He is not able to walk, run or even sit properly. He has lost amenities and pleasure of life. It can safely be assumed that he had bleak prospects of marriage and family life. He is not able to lead a normal life. His disability is permanent. No one can restore his life as it was before the accident, but we should provide 'just compensation'. We have to keep in mind all the factors, which are relevant for just and proper compensation as is object of the Motor Vehicles Act, 1988 (for short, 'the Act, 1988').

21. Section 168 of the Act, 1988, contemplates determination of 'just compensation'. 'Just' means-fair, reasonable and equitable amount accepted by legal standards. 'Just compensation' does not mean perfect or absolute compensation. 'Just compensation' principle requires examination of particular situation obtaining uniquely in individual case. When compensation is to be determined on an application under Section 166 of the Act, 1988, various heads under which damages are to be assessed, have to be looked into by Tribunal and not by merely determining income and applying multiplier.

22. The question of determination of compensation directly came up before Supreme Court in Raj Kumar Vs. Ajay Kumar and another, 2011(1) SCC 343. Therein, claimant sustained fracture of both bone of left leg and fracture of left radius in a motor accident on 01.10.1991. Tribunal awarded compensation under the heads of loss of future earning, pain and sufferings, loss of earning during period of treatment, medical expenses, conveyance and special diet. He was awarded total compensation of Rs. 94,700/- and 9% interest. His appeal for enhancement was rejected by Tribunal and ultimately went in appeal to Supreme Court. It observed that scheme of Act, 1988 shows that award must be "just", which means that compensation should, to the extent possible, fully and adequately restore claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. It means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation needs be awarded in "personal injury" cases are detailed in para 6 of the judgment in Raj Kumar Vs. Ajay Kumar (supra) and it reads as under:

"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 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."

23. "Disability" refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. "Permanent disability" refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of period of treatment and recuperation, after achieving maximum bodily improvement or recovery which is likely to remain for remainder life of injured. Permanent disability can be either partial or total. "Partial permanent disability" refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. "Total permanent disability" refers to a person's inability to perform any avocation or employment related activities as a result of the accident.

24. The percentage of disability certified in medical terms has been considered and Courts have observed that percentage of disability in respect of a part of body does not mean the same percentage with respect to whole body and it may be different. Para 9 of judgment in Raj Kumar Vs. Ajay Kumar (supra) said as under:

"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%."

(emphasis added)

25. Court also castigated that Tribunals wrongly assume that percentage of permanent disability is same in terms of percentage of loss of future earning capacity. The two aspects are different. Relevant observations in para 10 of the judgment in Raj Kumar Vs. Ajay Kumar (supra) are reproduced as under:

"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 earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation."

(emphasis added)

26. Court also held that in some cases evidence and assessment may show that percentage of loss of earning capacity as a result of permanent disability is approximately the same as percentage of permanent disability and in that case said percentage for determination of compensation may be adopted but it is not always. It is in this context Court further said that in order to determine, whether there is any permanent disability and if so the extent of such disability, a Tribunal should consider, and decide, with reference to evidence:

"(i) whether the disablement is permanent or temporary;

(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;

(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person."

27. It was also observed that ascertainment of the effect of permanent disability on actual earning capacity involves three steps. First is to ascertain what activities claimant could carry on inspite of permanent disability and what he could not do as a result of permanent disability. The second is to ascertain claimant's avocation, profession and nature of work before accident, as also his age. The third step is to find out whether claimant is totally disabled from earning any kind of livelihood or despite permanent disability, claimant could still effectively carry on activities and functions, which he was earlier carrying on and 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.

28. The role of Tribunal was elaborated by observing that it is not a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Tribunal does not function as a neutral umpire as in a civil suit. It is an active explorer and seeker of truth who is required to hold an enquiry into the claim for determining 'just compensation'. Tribunal should take an active role to ascertain the true and correct position so that it can assess 'just compensation'. Court also observed that when a doctor gives evidence about percentage of permanent disability, Tribunal must find out whether such percentage of disability is functional disability with reference to whole body or whether it is only with reference to a limb. In para 19 of the judgment in Raj Kumar Vs. Ajay Kumar (supra) Court summarized the principles in respect of "permanent disability" and assessment of compensation and in para 20 it gives certain illustrations in regard to assessment of loss of future earning. Same are reproduced as under:

"19. We may now summarize 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).

(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.

29. A three Judge Bench considered the question of "just compensation" in a case of permanent disability in Sanjay Verma Vs. Haryana Roadways, 2014(3) SCC 210. Court observed that besides determination of damages under the head "loss of income" and "medical expenses", Tribunal must also award compensation under the head "future treatment" and "pain and sufferings" and where there is requirement of an attendant, cost of attendant should also be included for award of compensation.

30. In Kajal Vs. Jagdish Chand reported in 2020 (0) AIJEL-SC 65725, the Apex Court has quoted pertinent observations from a very old case Philips Vs. Western Railway Company (1874) 4QBD 406 as under:

"You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered." Besides, the Tribunals should always remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure."

31. Hon'ble the Apex Court has further quoted pertinent observations from a very old case H. West & Son Ltd. v. Shephard 1963 2 WLR 1359 as under :

"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. All that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.

In the same case Lord Devlin observed that the proper approach to the problem was to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to "hold up his head among his neighbours and say with their approval that he has done the fair thing", which should be kept in mind by the court in determining compensation in personal injury cases."

32. Section 168 of MV Act stipulates that there should be grant of just compensation. Thus, it becomes challenge for a Court of law to determine just compensation which should not be bonanza for the claimant/victim and at the same time it should not be too meagre. Hon'ble the Apex Court in Rajkumar Vs Ajay Kumar and others (2011) 1 SCC 343 has laid down the heads under which compensation is to be awarded for personal injuries which is as follows:

"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 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.

33. In K. Suresh v. New India Assurance Company Ltd. and Ors., Hon'ble the Apex Court has held as follows :

"2...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. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity the Act) stipulates that there should be grant of just compensation. Thus, it becomes a challenge for a court of law to determine just compensation which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."

34. Hence, keeping in mind the above contours of 'just compensation', we proceed to determine the quantum of compensation. It is not disputed that appellant has submitted bills for medical expenses and treatment worth Rs.1,93,858/-. As far as permanent disability of the appellant is concerned, doctors have issued disability certificate to the tune of 80%, but the Tribunal has considered 100% permanent disability of both the legs separately, but there is amputation of one leg from the knee-joint and two ligaments of other leg were removed, therefore, we hold functional disability of the appellant to the tune of 80%. Perusal of impugned judgment shows that amount under the head of permanent disability is not properly calculated by the Tribunal.

35. It is submitted by learned counsel for the appellant that appellant had two source of income. It is said that appellant was working with Mahalaxmi Trading Company and was also employed as part-time Trainer in Sharma Health Group wherefrom he was getting Rs.4,500/- per month and Rs.3,000/- per month respectively. We are in full agreement with the finding of learned Tribunal that these aforesaid source of income and amount of salary is not proved by any cogent evidence. Appellant was student, therefore, we hold his monthly income at Rs.3,000/-. Hence, his annual income was Rs.36,000/-. 40% would be added to it for future loss of income as held by Hon'ble Apex Court in Jithendran vs. New India Assurance Co.Ltd. and another, 2021 ACJ 2736, which is heavily relied on by counsel for the appellant in which the injured-claimant was of 21 years old. It comes Rs.14,400/-, therefore, total income of appellant would be Rs.36,000/- + Rs.14,400/- = Rs.50,400/-. At the time of accident, the age of appellant was 21 years, hence, multiplier of 18 would be applied as per judgment of Apex Court in Smt.Sarla Verma vs. Delhi Transport Corporation [2009 (2) TAC 677 (SC)]. Hence, loss of dependency would be Rs.50,400/- x 18 = Rs.9,07,200/-, out of which only 80% would be taken as the amount towards permanent disability which comes to Rs.7,25,760/-. In this way, the appellant would be entitled to get Rs.7,25,760/- under the head of permanent disability.

36. We can take a judicial notice of the fact that in some of the cases, the injured like this as in the case in hand requires artificial limb for betterment in movement, where leg is amputated. Purpose of social welfare legislation is to find out ways and means to help the sufferer in all possible fields. If Tribunal finds with medical advice that artificial limb can procure his self-dependency, all possible efforts should be made to get it executed and whatever necessary expenses, it requires, must be treated to be a part of compensation, which should be allowed against the persons liable to pay compensation. Hence, the appellant would be entitled to get Rs.1,00,000/- for procuring artificial limb.

37. It is on record that after the accident, appellant remained hospitalized for 14 months, which had also the loss of income, therefore, he would be entitled to get Rs.42,000/- (Rs.3,000/- x 14) as loss of income during hospitalization. During that period and after discharge from the hospital, the appellant would have taken special diet for which he would get Rs.50,000/-. It can safely be assumed that after amputation of one leg and removal of two ligaments of other leg and by sustaining other injuries also in the accident, the appellant would require to purchase medicines and continuation of treatment in future also for which, he would be entitled to get Rs.1,00,000/-. He would also be entitled to get transportation and miscellaneous expenses of Rs.25,000/- which he had to occur while going to doctors for further treatment and check-ups, etc.

38. Where the appellant has become disabled to the tune of 80% and that too by his legs and he is not able to sit properly and walk and he has lost pleasures of life because he cannot lead a normal life after accident. It is natural that he had bleak prospects of marriage and

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family life as he was young boy of 21 years of age only. It can be said that the appellant has lost amenities of life to the great extent, which cannot be restored at all. Therefore, he would get Rs.4,00,000/- for loss of amenities. The disability of the appellant is permanent. Under the head of pain, shock and sufferings, he is entitled to get a sum of Rs.1,00,000/- as held by Apex Court in Syed Sadiq vs. Divisional Manager, United India Insurance Co.Ltd., AIR 2014 SC 1052. 39. Hence, the appellant would be entitled to compensation as below: (i) Bills for Medicines and Treatment = Rs.1,93,858/- (ii) Permanent Disability = Rs.7,25,760/- (iii) Loss of Earnings during Hospitalization = Rs.42,000/- (iv) Artificial Limb = Rs.1,00,000/- (v) Loss of Amenities = Rs.4,00,000/- (vi) Special Diet = Rs.50,000/- (viii) Attendant Charges = Rs.50,000/- (ix) Transportation and Misc.Expenses = Rs.25,000/- (x) Future Medicines = Rs.1,00,000/- (xi) Pain, Shock & Sufferings = Rs.1,00,000/- (xii) Total = Rs.17,86,618/- = Rs. 17,87,000/- (Round-up figure) (xiii) Amount after deduction of 25% towards contributory negligence = Rs.4,46,750/- (xiv) Total Compensation = Rs.17,87,000/- - Rs.4,46,750/- =13,40,250/- 40. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under: "13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court." 41. Learned Tribunal has awarded rate of interest as 6% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment. 42. No other grounds were urged when the matters were heard. 43. Both the appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The Insurance Company shall deposit the amount within a period of 8 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited. 44. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount. 45. The records and proceedings be sent back to the Tribunal for disbursement.
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