High Court of Punjab and HaryanaFAO/2280/2006allowed

Sheela v. Veer Bhan And ORS

2024-10-16Mrs. Justice Sudeepti Sharma20 pages

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1. Whether deceased Ram Pyari had died and claimants Gian Chand and Sheela have sustained injuries in a motor vehicle accident, allegedly caused on account of rash and negligent driving of Car No.DL!8CB/2025 by its driver/respondent No.1. if so to what effect ? OPP

2. If issue No.1 is proved in affirmative, to what amount of compensation, the claimants of the above mentioned three claim petitions are entitled to get and if so from whom?OPP

3. Whether respondent No.1 was not holding a valid and effective driving licence at the time of accident? OPR!3

4. Relief.

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Per contra

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"11. In order to prove this issue, claimants PW1 Sheela Rani and PW2 Gian Chand tendered into evidence affidavits deposing Ex.PW1/A therein and Ex.PW2/A, that on 21.05.2003 their respectively, they were travelling in Car No. DL!8CB/2025, which was being driven by Veer Bhan in a rash and negligent manner at a high speed. At about 6:30 P.Μ. the car and struck against the wall of Sanjay Van, as a Neel Cow (a stray cow) all of the sudden had appeared before it. During cross!examination PW1 Sheela Rani deposed that driver Veer Bhan was driving the car in a right manner, but she improved her statement saying that there was fault of the driver of the car for causing the accident. The driver happens to be the brother of her husband.

12. The factum of accident was duly reported to the police, as a result of which F.I.R. No.246 dated 21.05.2003 at Police Station Shahpura, District Jaipur, offences under Section 279/337/304!A of the Indian Penal Code was registered. The police investigated the case and challaned respondent No.1, but according to the written statement, he was acquitted.

13. Out of the four claim petitions, three claim petitions were filed under Section 163!A of the Motor Vehicles Act, 1988 for which the claimants are not required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to wrongful act or neglect or default of the owner of the vehicle. Only use of the vehicle is to be proved.

14. With regard to the evidence, PW1 claimant Sheela Rani during cross!examination stated that the driver of the car was driving it correctly. She also stated that there must have been some fault of the driver. She also stated that she heard a loud noise that someone had come in front of the car and thereafter she did not know as to what happened. PW2 Gian Chand, During cross! examination, stated that Veer Bhan lost control of the vehicle and caused the accident. He also stated that the car was being driven at a high speed, but he did not state as to what was the rash and negligent act on the part of the driver.

15. In the light of the above evidence, it is held that involvement of Car No.DL!8CB/2025 in the accident dated 21.05.2003 was duly proved, but the claimants failed to lead any satisfactory evidence that the accident took place due to rash and negligent driving of Car No.DL! 8CB/2025 by respondent No.1. Issue No.1 is decided accordingly in all the four claim petitions.

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"Strict principles of evidence and standards of proof like in criminal trial are inapplicable in MACT claim cases ! Standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt ! Approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non!examination of some best eyewitnesses, as may happen in criminal trial; but, instead should be only to analyze material placed on record by parties to ascertain whether claimant's version is more likely than not true. " - >

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"The learned Tribunals upon receiving the application under Sections 140, 163!A of the Motor Vehicles Act, 1988 (pre! amendment i.e. 2019 amendment w.e.f. 01.04.2022), Sections 164 and 166 (post! amendment i.e. 2019 amendment w.e.f. 01.04.2022), shall thoroughly appreciate the evidence and exercise their judicial discretion;

The learned Tribunals after applying their judicial mind to the evidence led as well as all relevant facts and circumstances of the case and the extent of loss to be compensated, shall, before announcing the award, shall apprise the claimants of their right to seek compensation, under the best available remedy to them, under the Motor Vehicles Act, 1988;

Even if the claim petition is filed under Sections 140, 163!A of the Motor Vehicles Act, 1988 (pre!amendment i.e. 2019

amendment w.e.f. 01.04.2022) or Sections 164, learned Tribunal shall after appreciation of the evidence and before passing the award, if it finds that respondents negligence is established should advice the claimant, in the interest of justice, to opt for Section 166 of the Motor Vehicles Act, 1988. The learned Tribunals shall then grant compensation under Section 166 of the Motor Vehicles Act, 1988 (post! amendment i.e. 2019 amendment w.e.f. 01.04.2022), keeping in view the law settled by the Hon'ble Apex Court in the case of & (Supra), ' % (Supra) and "( $%. (Supra);

It is further clarified that with the 2019 amendment (w.e.f.01.04.2022) Section 164 is introduced where the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or grievous hurt due to any accident arising out of the use of motor vehicle, a compensation, of a sum of five lakh rupees in case of death or of two and half lakh rupees in case of grievous hurt to the legal heirs of the victim, as the case may be, and the claimant shall not be required to plead or establish that the death or grievous hurt in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or of the vehicle concerned or of any other person. Therefore, the claim petition originally filed under Section 164 of the Motor Vehicles Act, 1988 (post!amendment i.e. 2019 amendment w.e.f. 01.04.2022), can also be converted to Section 166 of the Motor Vehicles Act, 1988, with due diligence, after considering the case's facts, circumstances and evidence led by both the parties.

The Judge should not go into the technicalities of the provisions, specially in motor vehicle cases, under which the application or petition is moved but should apply his

judicial mind, since these are only the irregularities and not illegalities which cannot be cured. The Hon'ble Supreme Court in the above mentioned judgments have analysed that the Court should make every effort to fill the loss of the victims/legal!representatives/claimants/relationship. It has been observed by the Hon'ble Supreme Court that the loss caused to the claimants or the relationship or to the victim of the limb cannot be compensated. Still the Court should make every effort by exercising its discretion empathetically. 5.Justice should actually be shown to be delivered by application of judicial mind with intelligence, prudence, care and caution and by showing empathy. The Court decision should be such that they strengthen the trust and confidence of public and litigants in judicial system and judiciary. "

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"In the instant case based on the evidence on record, including the testimony of PW!2 Gurbachan Kaur (claimant), it is evident that the appellant/claimant's role as homemaker entails multifaceted responsibilities and substantial contribution that surpass those of a skilled worker. In the light of these considerations and above referred to judgments and further to ensure an inequitable and just determination, it is appropriate to assess the appellant/claimant's notional income as Rs.6,000/! per month."

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5. The provision of the Motor Vehicles Act, 1988 ('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 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. (See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467).

The heads under which compensation is awarded in personal injury cases are the following :

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(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.

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*12 (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.

,, ( 3$&*& , ,&&( && 44 : The injured, a workman, was aged 30 years and earning Rs. 3000/! per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:

a) Annual income before the accident : Rs. 36,000/!. b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/!. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (5400 x 17) :

Rs. 91,800/!

&& 454: The injured was a driver aged 30 years, earning Rs. 3000/! per month. His hand is amputated and his permanent

disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows :

a) Annual income prior to the accident : Rs. 36,000/! . b) Loss of future earning per annum (75% of the prior annual income) : Rs. 27000/!.

c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/! && 44 : The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows :

a) Minimum annual income he would have got if had been employed as an Engineer : Rs. 60,000/!

b) Loss of future earning per annum (70% of the expected annual income) : Rs. 42000/!

c) Multiplier applicable (25 years) : 18 d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/!

[Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)]. $E ?,

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Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact! centric or quantum!centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the

5 enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."

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" 7. There are three aspects which are required to be examined by us:

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The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ 2700 (SC). In para 46 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age group of 15!25 years, the multiplier has to be '18' along with factoring in the extent of disability. The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be '18' and not '17'.

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< In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep

Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract below the principle set out in the Jagdish (supra) in para 8: "8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:

Pain, suffering and trauma resulting from the accident;

Loss of income including future income;

The inability of the victim to lead a normal life together with its amenities;

Medical expenses including those that the victim may be required to undertake in future; and 8.

Loss of expectation of life."

[emphasis supplied] The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident. In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 11⁄2 years from August

6 2011 to January 2013. The nature of injuries had been set out as under:

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compound fracture shaft left humerus fracture both bones left forearm compound fracture both bones right forearm fracture 3rd, 4th & 5th metacarpals right hand subtrochanteric fracture right femur fracture shaft femur fracture both bones left leg We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 13 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the

basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 61(iii), considering the age of the appellant, would be 50% of the actual salary in the present case.

& $ & < In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish's case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court.

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8. The result of the aforesaid is that relying on the settled principles, the calculation of compensation by the appellant, as set out in para 5 of the synopsis, would have to be adopted as follows:

Loss of earning power (Rs.14,648 x 12 x 31.1/100 Rs. 9,81,978/!

Future prospects (50 per cent addition) Rs.4,90,989/!

Medical expenses including transport charges, nourishment, etc.

Rs.18,46,864/!

Loss of matrimonial prospects Rs.5,00,000/!

Loss of comfort, loss of Rs.1,50,000/!

7 amenities and mental agony Pain and suffering Rs.2,00,000/!

Total Rs.41,69,831/!

The appellant would, thus, be entitled to the compensation of Rs. 41,69,831/! as claimed along with simple interest at the rate of 9% per annum from the date of application till the date of payment.

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