w w w . L a w y e r S e r v i c e s . i n



Virendra Kumar v/s Vijay Kumar & Others


Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- VIJAY J AND K PRIVATE LIMITED [Strike Off] CIN = U52100GJ1974PTC002504

Company & Directors' Information:- D VIJAY AND COMPANY LIMITED [Dissolved] CIN = U99999MH1933PTC002056

    First Appeal From Order No. 78 of 2011

    Decided On, 08 May 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE MAHESH CHANDRA TRIPATHI

    For the Appellant: B.P. Verma, Mayank, Advocates. For the Respondent: S.C. Srivastava.



Judgment Text


1. Heard Shri B.P. Verma, learned counsel for the claimant-appellant and Shri S.C. Srivastava, learned counsel for the insurance company.

2. The present appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant, being aggrieved by the judgment and order dated 21.9.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court no.7, Mathura in Motor Accident Claim Petition No.239 of 2008 (Virendra Kumar vs. Vijay Kumar and others) awarding a sum of Rs.62,866/- for the expenses incurred towards medicines and treatment of the injuries sustained by the appellant in a motor accident, alongwith 6% interest from the date of filing of the claim petition till the date of payment of compensation.

3. The claimant aged 45 years filed MAC No.239 of 2008 against the driver & owner of the vehicle and the insurance company before the Motor Accident Claims Tribunal/Additional District Judge, Court No.7, Mathura claiming a compensation of Rs.10,00,000/- along with 12% interest in respect of the injuries suffered by him in the motor accident alleged to have occurred on 17.2.2008 around 12.30 p.m.

4. The claim petition was filed stating therein that on 17.2.2008 at about 12.30 PM the claimant was going alongwith his friend Goverdhan Singh on a motorcycle No.UP-85-R-5810 from Mathura to Farah when the driver of the Qualis Vehicle No.HR-70-7263 while driving the the vehicle rashly and negligently hit the said motorcycle from behind on N.H.2 near village Mahuvan, damaging the motorcycle and causing serious injuries to the driver Goverdhan Singh as well as the pillion rider- claimant. Regarding the said accident the first information report was lodged at the concerned police station. The claimant-appellant was treated for injuries first at Lifeline Hospital, Mathura where he was under treatment from 17.2.2008 to 18.2.2008. Subsequently, when his condition was deteriorating, he was admitted to Loknayak Hospital, Delhi and he was admitted there from 19.4.2008 to 6.5.2008. During the treatment many operations were performed on his body and he was given 6 bottles blood. Due to the accident the claimant-appellant suffered serious physical and mental agony. On account of the injuries caused in the said accident the appellant suffered permanent physical disability. Before the accident the appellant was working as Guard at Toll Plaza near Mathura Mahuvan/Barari and getting salary of Rs.4,000/- per month. He also used to earn Rs.4000/- from agricultural activities at his village. In this manner, Rs.10,00,000/- was claimed along with 12% interest.

5. The opposite party no. 3-insurance company filed its written statement and contested the claim of the claimant on various grounds. Despite service of notices, neither the opposite party nos.1 and 2 (driver and owner of the offending vehicle) appear in the proceedings nor file any written statement. In such situation, the proceedings was conducted ex-parte against them vide order dated 28.7.2009. The driver of the motorcycle also held to be guilty of contributory negligence and as such, he also contributed to the accident to the extent of 20%. Finally, the Claims Tribunal awarded Rs.46,866 towards medical expenses; Rs.5000/- towards pain and suffering; Rs.3000/- towards conveyance; Rs.3000/- towards attendant charges and Rs.5000/- towards special diet. In this manner, the claimant-appellant was made entitled to receive a compensation of Rs.46,866 + 5000+ 3000 + 3000 + 5000, total compensation Rs.62,866/- alongwith 6% interest from the date of filing the claim petition till the date of payment.

6. Learned counsel for the appellant urged at the time of the hearing that the claimant-appellant claimed compensation of Rs.10,00,000/- for the injuries caused in the accident but the Claims Tribunal had awarded the compensation of Rs.62,866/- only towards medical expenses/pain & suffering/conveyance/attendant charges/ special diet. It did not award any amount towards loss of earning capacity. The Claims Tribunal has not decided the issue no.4, whether the appellant-claimant is entitled for any compensation and if yes, then how much and from whom. There was no negligence on the part of the appellant. The Claims Tribunal has committed an error in holding that the appellant was also held 20% negligent and this is also against the evidence available on record. The Claims Tribunal further erred in law in deducting 20% compensation from the total compensation of Rs.58,583/-. The appellant filed medical bills of Rs.2,50,000/- but the same were not granted by the Tribunal on the ground that they vary in dates. The disablement of 50% as in the certificate was disbelieved by the Tribunal and the same is against the provisions of Motor Vehicle Act and Rules framed therein. It is submitted that the compensation awarded under the heads of pain and suffering, loss of amenities, conveyance, special diet and attendant charges is on a lower side and be enhanced. In support of his submission he has placed reliance on the judgements of Apex Court in Rajesh Kumar alias Raju vs. Yudhvir Singh and another1 ; Smt. Sarita Verma and ors vs. Delhi Transport Corporation and another2; Syed Sadiq and ors vs. Divisional Manager, United India Ins. Company3; National Insurance Company Limited vs. Pranay Sethi and ors4. He has also placed reliance on the judgement of this Court in The New India Assurance Company Ltd. Through Divisional Manager vs. Mohammad Navi5 and The New India Assurance Co. Ltd vs. Amzad Khan and ors6.

7. Learned counsel for the respondent, on the other hand, made an endeavour to justify the award of the MACT. In the written statement it had taken a plea that in the claim petition policy number of the insurance of the vehicle and the validity of the insurance company have not been proved. It was the responsibility of the applicant and registered owner of the offending vehicle to prove that the said accident took place from Qualis No.HR-70-7263 and at the time of the accident the said vehicle was insured with the New India Insurance Co. Ltd. Neither the claimant made a party to the registered owner of the motorcycle nor the insurance company of the motorcycle. At the time of accident the offending vehicle/Qualis was not being driven by the driver having valid licence. It had also taken a stand that the vehicle was deliberately planted in collusion with the owner of the offending vehicle and the appellant just to shift the liability to pay the compensation as the vehicle was insured by the Insurance Company.

8. The Court has proceeded to examine the record in question as well as the evidence adduced by the appellant-claimant on the issue of injury sustained by him and finds that at the time of the accident, the appellant was working as a Guard at Toll Tax near Mathura Mahuvan/Barari. The appellant had produced evidence to the effect that he had worked as a Guard and he was paying salary of Rs.4000/-. He also earned Rs.4000/- from agriculture and thus his monthly income was Rs.8000/-. Insofar as injuries suffered by the appellant in the said accident are concerned, he had stated that his health had impaired drastically because of which he was firstly admitted in the Lifeline Hospital, Mathura and thereafter he was admitted to Loknayak Hospital, Delhi. Because of all this he has suffered 50% permanent disability, apart from mental and physical agony and the said disability is going to give him frustration and disappointment towards life. He pleaded that this disability has affected his efficiency in work as well resulting in loss of future income as well. The appellant contended that the Tribunal has not decided the issue no.4, whether the appellant-claimant is entitled for any compensation and if yes, then how much and from whom. The appellant sustained injuries and the injuries sustained by him and the treatment taken by him are evident from the medical documents and disability certificate and was further supported by oral evidence of the appellant/claimant. However, the Tribunal did not believe that the disability of the appellant/claimant to the extent of 50% caused due to the said accident. As already noticed above, the Tribunal granted him compensation of Rs.62,866/- only by reimbursing expenses incurred towards treatment; transportation, mental and physical agony.

9. The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages also known as special damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money whereas non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc.

10. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd.7, a road accident resulted in 100% disability due to paraplegia below waist to a lawyer (retired Judge). The Supreme Court observed that no amount of compensation can restore the physical frame of the appellant. That is why it has been said by Courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life.

11. In Common Cause, A Registered Society v. Union of India8, Hon'ble Supreme Court held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups: pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non- pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.

12. In Nagappa v. Gurudayal Singh9, the Supreme Court held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Inflation should be taken into account while calculating damages.

13. In Divisional Controller, KSRTC v. Mahadeva Shetty10, the road accident resulted in paraplegia due to serious injury to the spinal cord. The Supreme Court held that the object of providing compensation is to mitigate the hardship and place the claimant as far as possible in the same position financially as he was before the accident. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The compensation awarded has to be "just" and not a bonanza. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrariness. A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. The Supreme Court further held that while fixing compensation, suffering of the mind, shortening of life expectancy, loss of earning capacity, permanence of the disability, loss of amenities of life etc. are to be considered against the backdrop of age, marital status, unusual deprivation one has undertaken in one's life etc.

14. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka11, the Supreme Court held that adequate compensation must strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. The Supreme Court further held that the case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price not only on the victim but even more so on the injured's family and attendants and the stress saps their energy and destroys their equanimity. The Apex Court further held that compensation has been computed keeping in mind that the brilliant career of the claimant has been cut short and there is, as of now, no possibility of improvement in the claimant's condition, the compensation will ensure a steady and reasonable income to the claimant for a time when the claimant is unable to earn for himself.

15. In Arvind Kumar Mishra v. New India Assurance Co. Ltd.12, the road accident resulted in 100% permanent disability to a final year engineering student. The Supreme Court held the functional disability to be 70% to compute the loss of earning capacity according to the multiplier method. The Supreme Court further held that the whole idea of compensation is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for what he had suffered.

16. In Arun Sondhi v. DTC13, a final year student aged 21 years pursuing B.A. course from St. Stephen's College, Delhi suffered leg amputation and paralysis in a road accident which resulted in 100% permanent disability. This Court enhanced compensation from Rs.8,68,781/- to Rs.19,16,781/-. The relevant portion of the judgment is reproduced hereunder:-

"4. It goes without saying that Appellant had become crippled and permanently disabled forever. His permanent disability was 100% and he was living his life, whatever its worth, in a wheelchair. It is also the admitted position that he had become paraplegic and had lost control even over his urine and stool. He required assistance of an attendant and medical treatment all the time which involved a recurring expenditure. His plight would not be described in words, nor could his pain and suffering, frustration and disappointments be gathered or gauged. An athlete of yester-year must be ruing his survival which had plunged him in a veritable hell.

5. No money could obviously compensate him for all this and consequently no reasonable compensation could be determined for what he had and must be going through. But all the same the Courts had to undertake the exercise in the discharge of their duty if only to compensate him to the extent payment of money could. As was aptly observed in Ward V James 1965 (1) APPER 56:-

"Although you cannot give a man so gravely injured much for his lost year, loss during his shortened span, that is, during his expected "years of survival". You can compensate him for loss of earnings during that time and for the cost of nursing treatment and attendance. But how can you compensate him for being rendered a helpless invalid. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Jurisdiction have to do the best they can and give him what they think is fair. No wonder they find it well neigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part of converted sum."

6. Given regard to all this, it becomes difficult to assess the non- pecuniary damages in the present case because whatever amount was awarded to the incapacitated and crippled Appellant, it would not restore his broken body and shattered life. But all the same an effort was required to be made to grant him a reasonable compensation that could at least mitigate his suffering and hardship had reduce the intensity of his pain, if not provide him bare minimum amenities and enjoyment of life.

* * *

9. At this stage, we noticed Supreme Court judgment in A.K.Mishra Vs. Muniam Babu : [1999]2SCR518 awarding Rs. 5 lacs to a 23 year old youngman whose special cord was damaged in the road accident, by and large in similar circumstances. But this judgment, in over view, does not lay down any generalised principle or guideline for award of non-pecuniary damages in serious accident injury case. The determination of compensation in such cases would depend on the facts and circumstances of each case and notwithstanding the element of sympathy involved with the accident victim. We are also conscious of the fact that assessment of compensation in such cases had to be on objective standards and not based on any fanciful or whimsical calculations. But since a bit of conjecture was permissible, it presented no difficulty to make provision for the recurring medical expenditure and attendance for the Appellant and we feel that estimated compensation for this was based on a conservative estimate."

(Emphasis Supplied)

17. In New India Assurance Co. Ltd. v. Senthil Kumar14, the victim of a road accident suffered fracture, compression of spinal cord and paraplegia resulting in 100% disability. The Madras High Court enhanced the compensation from Rs.8,53,000/- to Rs.9,60,000/-. The relevant portion of the judgment is as under:-

"11. In this case, the injured claimant suffered fracture and compression of the spinal cord and has been diagnosed as a paraplegic injury. According to Webster Dictionary paraplegic means "complete paralysis of the lower half of the body usually resulting from damage to the spinal cord". The disability assessed in this case under Ex.A-12 is 100% and that is not in dispute. Therefore, adopting multiplier method will be appropriate. In view of the Full Bench decision in Cholan Roadways Corporation, compensation under two heads, viz., loss of earning power and for disability cannot be granted.

* * *

16. The Division Bench of this Court in United India Insurance Co. Ltd. v. Veluchamy. 2005 (1) CTC 38 sets out the parameters as to when the multiplier method can be adopted in the case of injury. In Paragraph 11 of the decision reads thus:

11. The following principles emerge from the above discussion:

(a) In all cases of injury or permanent disablement 'multiplier method' cannot be mechanically applied to ascertain the future loss of income or earning power.

(b) It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power, etc. and if so, to what extent?

(c) (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle for the rest of his life, in that event loss of income or earnings may be ascertained by applying the 'multiplier method' as provided under the Second Schedule to Motor Vehicles Act, 1988. (2) Even so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income.

(d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident."

(Emphasis Supplied)

18. In Raj Kumar v. Ajay Kumar15, the Supreme Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations:

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, the 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.

11. What requires to be assessed by the Tribunal is the effect of the permanent 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 terms 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 the 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 Company Ltd. (2010) 10 SCC 254 and Yadava Kumar v. National Insurance Company Ltd. (2010) 10 SCC 341).

13. Ascertainment of the effect of the permanent disability 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 disability (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."

19. The aforesaid observation made by Hon'ble Apex Court in the case of Raj Kumar (supra), was reiterated in the case of Govind Yadav Vs. New India Insurance Company Ltd.16, by observing as under:

"14. The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the 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. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This 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 is awarded in personal injury cases are the following:

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, 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.

15. In our view, the principles of law laid down in Arvind Kumar Mishra V. New India Assurance Company Ltd. (supra) and Raj Kumar V. Ajay Kumar (supra) must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."

20. In Dr. Dattatraya Laxman Shinde v. Nana Raghunath Hire17, a young doctor suffered paraplegia in a motor accident. The paraplegia affected both motor and sensory below thoracic 12 with complete bladder and bowel involvement. Following R.D. Hattangadi (supra) and Raj Kumar (supra), the Bombay High Court enhanced the compensation from Rs.8,85,000/- to Rs.34,50,000/-. The relevant portion of the judgment is as under:-

"23. In the present case, the Appellant will never be able to practice medicine. He will not be able to continue as a lecturer due to physical disability. Moreover, witness examined by the Appellant admitted that the Appellant is not qualified for the post of a lecturer as he is not holding a post graduate degree. He is incapable of earning any income. No argument is necessary to come to the conclusion that this is a case of 100% loss of earning capacity. In the year 1993, the income of the Appellant as a lecturer was around Rs. 4,200/-. The Appellant had an excellent academic record. It is obvious that the income of the Appellant would have been much higher than Rs. 4,200/-. In a matter like this, exercise of determining the compensation always involves an element of guess work. Looking to the academic record of the Appellant, the income can be reasonably taken at Rs. 6,000/- per month. Multiplier of 18 will have to be applied as on the date of the accident the age of the Appellant was about 25 years. Applying multiplier of 18, the loss of income can be quantified at Rs. 12,96,000/-(Rs. 6000 12 18). As pointed out earlier, the entire body of the Appellant below waist has become paralytic and he has no control over bladder and bowel movement. He regularly requires catheterisation. As stated by Dr. Joshi, he requires an attendant for 24 hours. Even if the conservative estimate of cost of one attendant is taken at Rs. 200/- per day, the amount will be Rs. 6,000/- per month. Adopting multiplier method, the total amount will come to Rs. 12,96,000/-.

24. As far as claim of expenditure on medical treatment is concerned, it is brought on record that the Appellant was admitted in three different hospitals in Pune and in hospitals at Karad and Satara. The Appellant was also admitted to the institution at Coimbatore for a period of more than two months. Lot of expenditure must have been incurred on travelling and residence of the relatives and friends of the Appellant. The bills evidencing expenditure on medicines, medical treatment, special diet, travelling expenses and residence of the relatives and friends of the Appellant have been produced on record. There are four lists of documents marked as 85/1 to 85/4. Along with the said four lists, voluminous original documents such as bills, vouchers etc. have been produced on record. As expected, none of the documents were admitted by the Respondent No. 3. Perhaps the Respondent No. 3 wanted that large number of witnesses should be examined to prove the documents. In the examination-in-chief, the Appellant has made a reference to all the bills and vouchers. The Tribunal constituted under the said Act is not bound by strict rules of evidence. Therefore, the said bills and vouchers ought to have been taken into consideration by the Tribunal in absence of the specific case made out that the documents were fabricated. The total amount reflected from the said bills and vouchers is Rs. 1,54,526/-, which can be rounded off to Rs. 1,55,000/-. Therefore, no separate amount can be awarded by the Tribunal for purchasing equipment such as chair, water bed etc.

25. Evidence of Dr. Joshi indicates that the Appellant will have to continuously remain under medication. Dr. Joshi has stated that such patients who are suffering from paraplegia can suffer many ailments. In paragraph 5 above, the detailed version of Dr. Joshi on the treatment required in future has been reproduced. Dr. Joshi has said "The parapleagic patients are known to go into severe depressions and sometimes result is suicide. Parapleagic are known to have severe rediating pain in both legs and back which is neurological in origin. In addition to this, they suffer from multiple bladder infections which may led to superadded kidney infection and also injuries to both legs due to loss of sensation. Besides which a previously walking about patient sees a futile future and this leads him to suicidal tendency. The neuronal irritation gives rise to severe burning pains in both the legs. All these symptoms stated above were found in the said patient Dr. Shide. For subsiding this pains, tablets like Mazetol are given i.e. antiepileptic drug. The side effect of this medicine is mainly drowziness, grastic irritation, with reflex depression. It also affects appetite with the loss of appetite with decrease in multi-vitamins in the body. Such type of patient is required supplementation of multi-vitamins along with high protein diet. These patients require self catheterisation to remove the urine from the bladder from time to time. This could lead to multiple episodes of infections which have to be treated by higher antibiotics. Also these patients are required to sleep on a water bed or aid-bed to avoid pressure sores over the legs and buttocks. In addition to that the patient requires high protein diet along with multi-vitamin supplementation and enema frequently to regularise the bowel movements. They require passive physiotherapy for both the lower limbs. Usually at night time, tranquillizers are given to help the patient sleep. At times, there is a reflex spasm of the lower limbs in certain patients which usually develops between 4 to 6 years and for which tranquillizers is given. The supplementary food contains high fiber and protein contain." The Tribunal has granted only a sum of Rs. 1,00,000/- for future expenses on treatment. The Appellant will require large amount in future on medicines and equipment like wheelchairs, water bed, catheters etc. Even by a conservative estimate, the said amount cannot be less than Rs. 2,50,000/-.

26. The real problem is in determining non-pecuniary loss because there are no fix standards for assessing the non-pecuniary loss. In a case like this where the victims suffer from paraplegia, the non- pecuniary loss will be basically under the following headings.

i. pain and suffering;

ii. loss of amenities of the life; and

iii. loss or destruction for prospects of marriage. As far as first two items are concerned, in cases of a child or young person, who suffers paraplegia, the amount will be much higher than the entitlement of a person who suffers paraplegia at a comparatively late age. Therefore, there is variance in the amounts fixed by this Court as well as the Apex Court in such cases. The Apex Court and this Court in its various decisions has granted amounts ranging from Rs. 1,00,000/- together under the first two headings to a very high amount. In the case of Nizam's Institute of Medical Sciences (supra), where the Apex Court was dealing with a case arising out of an order passed by the Consumer Redressal Forum, a very high amount of Rs. 10,00,000/- has been granted on account of the pain and suffering. That was a case of engineering student aged 20 years, who was a victim of medical negligence. The case before the Apex Court was of a young student who being the victim of paraplegia was confined to wheelchair, and who pursued career in education and ultimately got employed as I.T. engineer at a handsome salary. Reliance was placed on the judgment of the Division Bench in the case of The New India Assurance Co. Ltd. v. Shweta Dilip Mehta (supra). This Court dealt with the injury sustained by a minor child aged 11 years, who became paraplegic as a result of accidental injuries. In the facts of the case, this Court granted total amount of Rs. 4,00,000/- on account of pain and suffering. In the present case the compensation cannot be granted on account of loss of amenities of life in view of what is held by the Apex Court in the case of Raj Kumar. In paragraph 15 of the decision, the Apex Court held that:

"15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."

(emphasis supplied)

27. In the case of Divisional Controller, Karnataka State Road Transport Corporation v. Mahadeva Shetty (supra), the Apex Court granted a sum of Rs. 1,00,000/- in case of similar injuries. Ultimately, the amount will depend on facts of each case. It will depend upon the age of the victim, his social status, his marital status, his family background etc. It cannot be overlooked that a young person like the Appellant who suffers from paraplegia, also suffers in mind and in the given case, such a person may become a patient of a psychological disorder. Paraplegia can have devastating effect on the mind of a person like the Appellant, who had a brilliant academic career and who was aiming to pursue post graduate studies in Ayurvedic Medicine. It must be borne in mind that the accident occurred in the year 1993. The Appellant was unmarried at the time of the accident. The Appellant had responsibility of family consisting mother and two younger brothers. The impact of all these factors will have to be considered. The amount granted on this count by the Apex Court and Division Bench of this Court is in the range of Rs. 1,00,000/- to Rs. 4,00,000/-. Considering the facts of this case, compensation on account of pain and suffering deserves to be fixed at Rs. 3,75,000/-. As the compensation has been granted on account of 100% loss of earning capacity, separate amount cannot be granted on account of loss of amenities of life. In the case of Divisional Controller, Karnataka State Road Transport Corporation v. Mahadeva Shetty (supra), the Apex Court approved compensation of Rs. 75,000/- granted by the Tribunal on account of complete loss of prospects of marriage. The same amount deserves to be granted in this case.

28. With this Judgment a long drawn litigation has come to an end as far as this Court is concerned. Costs of the appeal will have to be quantified at Rs. 20,000/-

29. Thus, the entitlement of the Appellant to compensation is as under:

a. Loss of income Rs. 12,96,000/-;

b. Cost of attendant Rs. 12,96,000/-;

c. Expenditure on medicines, treatment, conveyance Rs. 1,55,000/-;

d. Compensation on account of pain and suffering Rs. 3,75,000/-;

e. Compensation on account of loss of prospects of the marriage Rs. 75,000/;

f. Compensation on account of medical expenditure in future Rs. 2,50,000/-;

Thus, the total compensation should be Rs. 34,47,000/-. This figure can be rounded off to Rs. 34,50,000/-.

30. After taking into consideration a sum of Rs. 8,85,000/- granted by the Tribunal, the Appellant will be entitled to enhancement of Rs. 25,65,000/-. As far as amount of Rs. 2,50,000/- is concerned, the interest will not be payable from the date of the accident and the interest will be payable from the date of this judgment. Interest on the remaining enhanced amount of Rs. 23,15,000/- will have to be granted at the rate of 7.5% per annum."

(Emphasis Supplied)

21. In Ritu v. Regional Manager Uttranchal State Road Transport Corporation18, a six year old child suffered paraplegia with 80% disability. This Court examined the case law with respect to the award of compensation in injury cases and awarded compensation of Rs.41,19,928/-.

22. The Tribunal has erred in concluding that the claimant was also contributed to the accident without assigning any plausible reason. At no point of time the contributory negligence of claimant in the accident was proved by the insurance company by producing evidence. The claimant had also proved all the hospital and relevant medical bills to support his claim for medical expenses. In the record relevant photograph of the claimant is also appended which also gives an impression that one leg of the claim has also been shorten in the accident. On the matter of extent of contribution to the accident, the Tribunal has considered the issue no.1 and Nazra Naksa and accepted the version of counsel for the insurance company, who had taken a plea that the accident took place due to collision of motorcycle to the offending vehicle (Qualis) and the motorcycle was in the middle of the road. Even though this aspect has not been considered by the Tribunal but the stand taken by the counsel for the insurance company has been accepted and the offending vehicle was held to be contributed to the accident to the extent of 80% and the appellant-claimant was also held to be contributed to the accident to the extent of 20%. It is admitted situation that the offending vehicle hit the motorcycle from behind the back. Therefore, I am inclined to hold that the contribution of the appellant/claimant in the accident is not proved by the insurance company by producing evidence and therefore, finding of the Tribunal regarding contributory negligence is set aside (ref. Syed Sadiq and ors vs. Divisional Manager, United India Ins. Company (supra).

23. The Tribunal has proceeded contrary to the record specially the medical history of the claimant-appellant. In order to appreciate the material, which has been brought on record before the Tribunal it would be appropriate to reproduce the factual situation, which is emerging from the record. The accident took place on 17.2.2008 and he had undergone treatment at the local hospital at Mathura. Eventually he was admitted to Lok Nayak Hospital, Jawahar Lal Nehru Marg, New Delhi on 18.2.2008 and had been discharged on 01.4.2008. For compound injury in his left femur even though he had been operated at the said hospital but he was not cured. Eventually he had undergone surgery at Dayanand Medical College & Hospital, Ludhiana and as per discharge summary he was admitted on 6.10.2009 and had been discharged on 15.10.2009. While admitting the hospital had diagnosed "one year and eight months old non united fracture femur M.D. third region (left) and had also mentioned operation: open reduction & internal fixation of fracture femur with broad LCP (10H) (Synthes) and bone grafting of the non union site with corticocancellous graft (graft harvested from ipsilateral iliac crest) with application of knee immoiliser on 07.10.09". While admitting at the hospital the history of illness has also been mentioned in detail with following observations "Patient is a follow up case of 1 year and 8 months old compound grade lllb fracture with bone loss for which interlocking nailing was done on 27.03.08. On subsequent follow up, Patient was diagonsed to have infected non union for which debridement and irrigation, application of skeletal traction and removal of interlocking nail was done on 12.08.09. Now he has been admitted to DMCH for further management".

24. It is also relevant to indicate that the hospital had mentioned in the head of local examination: Left lower Limb; Upper tibial skeletal traction in situ; Scar mark of 8x2 cm present on lateral aspect of thigh in proxima third region; ROM at knee and hip restricted and painful and neurovascular status intact. Therefore, the finding, which has been recorded by the Tribunal, is contrary to the record and the medical receipts alongwith history of medical treatment undergone at Lok Nayak Hospital and Dayanand Medical College & Hospital, Ludiana were before the Tribunal. While passing the award the Tribunal has disbelieved the disability certificate without any cogent reason contrary to the medical history and his treatment for two years. Even after seeing such meticulous medical history and record a layman may draw an impression that the claimant-appellant was under-treatment for two years. Even in 2009 he was also undergone corrective surgery and therefore, only in this backdrop the disability certificate of 50%, which was issued by the Medical Board of Government Medical College and is public document, cannot be doubted. Initially a nail was grafted in his left femur and subsequently corrective surgery was also done in the year 2009 as per medical history. The Tribunal has also erred in law in rejecting the disability certificate on the ground that it has been produced after two years of occurrence of the accident and the same is also unwarranted. Therefore, the medical certificate cannot be disbelieved without any cogent reason and as such, the finding recorded contrary to the aforesaid medical history by the learned Tribunal cannot sustain and accordingly, the same is rejected.

25. The disablement certificate issued by the Medical Board of a Government Medical College is a public document. The disablement of 50% as in the certificate is to be supported by other evidence either documentary or oral for the purpose of strengthening the cause before an appropriate court of law. The appellant has given a detailed evidence about his nature of injury and loss of earning capacity to which I do not find any nature of rebuttal or denial to establish the cause of the insurance company. In the present matter, no independent witness was called upon to examine on behalf of the insurance company in this regard. (Ref. Rajesh Kumar alias Raju vs. Yudhvir Singh and another (supra) (para-9) and The New India Assurance Company Ltd. Through Divisional Manager vs. Mohammad Navi (supra) (p

Please Login To View The Full Judgment!

aras 4, 5 and 7). 26. In this regard it may be relevant to quote the observation of the Hon'ble Apex Court in the case of Pt. Parmanand Katara Vs. Union of India and others19, describing the necessity of calling the Doctor only when it is necessary by making following observation: "We also hope and trust that our law courts will not summon a medical professional to give evidence unless the evidence is necessary and even men in this profession are not made to wait and waste time unnecessarily and it is known that our law courts always have respect for the men in the medical profession and they are called to give evidence when necessary and attempts are made so that they may not have to wait for long. We have no hesitation in saying that it is expected of the members of the legal profession which is the other honourable profession to honour the persons in the medical profession and see that they are not called to give evidence so long as it is not necessary." 27. In my opinion, due to injuries on the body of the appellant, which is also duly proved in evidence by the claimant and his doctor, he cannot freely move and attend to his duties. His movements are restricted to a large extent. It is for all these reasons, the Court feels that the Tribunal erred in law in not awarding any compensation under this head and hence, some enhancement under the head of pain and suffering and also under the head of permanent partial disability and loss of earning capacity is called for. This enhancement figure is arrived at taking into consideration all relevant factors. 28. 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. What requires to be assessed by the Tribunal is the effect of the permanent 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 terms of money, to arrive at the future loss of earnings. The Tribunal did not approach the issue in right direction and the conclusion of the Tribunal is erroneous. Having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of compensation with the adoption of multiplier method. 29. The appellant/claimant was a pillion rider aged 45 years, earning Rs.8000/- per month. His permanent disability is assessed at 50% and his services were dispensed with. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. Therefore, I assessed his loss of future earning capacity as 50%. 30. Taking into consideration the nature of injury, the permanent disability occurred on the body of the appellant/claimant, the expenditure incurred in receiving medical treatment in actual, the loss and mental pain suffered due to his involvement in accident, I consider it proper to enhance the compensation and hence the appellant/claimant is entitled to compensation under the following heads: Monthly income of the injured before the accident Rs.8000/- (Rs.4000/- from Toll Plaza and Rs.4000/- from Agriculture) x 12 = Rs.96,000/- Permanent Disability 50 per cent Loss of future earning per annum Rs.48,000/- Multiplier Total loss of injured Rs.6,72,000/- Future economic loss Rs.1,68,000/- Pain, shock and sufferings Rs.5000/- Medical expenses Rs.2,50,000/- Travelling Rs.5000/- Special Diet Rs.5000/- Attendant charges for past & future Rs.3000/- Total compensation Rs.11,06,000/- 31. As far as issue of rate of interest is concerned, it should be 9% in view decision of the Apex Court in Civil Appeal No.242/243 of 2020 (National Insurance Company Ltd. vs Birender and others) decided on 13 January, 2020 which is the latest in point of time. 32. For the aforesaid reasons, the present appeal filed by the claimant/appellant stands allowed and the award stands modified to the extent directed above. The amount be deposited by the respondent-Insurance Company within a period of 12 weeks from today with interest at the rate of 9% from the date of filing of the claim petition till the award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited. 33. Incidentally, the appellant-Insurance Company prayed that the statutory deposit of Rs.25,000/- made before this Court for preferring this appeal be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust the same with the amount of compensation to be paid to the claimant, however, such prayer is allowed. 34. Let original record be returned.
O R