Rajiv Bagai v. Puneet Jain And ORS.

-1IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: 08.11.2024 Rajiv Bagai ......Appellant Vs.

Puneet Jain and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:

Mr. Vipul Sharma, Advocate for the appellant.

Mr. Suvir Dewan, Advocate for respondent No.3-New India Insurance Company. **** SUDEEPTI SHARMA J.

1.

This is an old matter pertaining to the year 2007 but no one has put in appearance on behalf of the Insurance Company. 2.

Previously vide order 18.07.2024 in FAO No.1682 of 2007, this Court had already issued directions to the Insurance Companies that in the event, any of their empanelled counsel fails to appear, the Court would request the counsel empanelled with the Insurance Companies, who is present in the Court to assist in the matters. Further, the concerned Insurance Companies were directed to disburse the current scheduled fees to the counsel engaged by this Court for assisting in the matters. 3.

On the asking of the Court, Mr. Suvir Dewan, Advocate accepts notice on behalf of respondent No.3-Insurance Company.

-24.

Learned counsel for the appellant has handed over copy of the paper-book alongwith relevant record to the learned counsel for respondent No.3- Insurance Company.

5.

In view of the order 18.07.2024 in FAO No.1682 of 2007, the Insurance Company is directed to disburse the current scheduled fees to Mr. Suvir Dewan, Advocate, the counsel engaged by this Court in the present case.

CM-17963-CII-2024 6.

This is an application for fixing the actual date of hearing in the present appeal.

7.

Considering the contents made in the application, the same is allowed and the main appeal is ordered to be taken up on Board today itself. 8.

The present appeal has been preferred against the award dated 19.04.2007 passed in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Chandigarh (for short, 'the Tribunal') for enhancement of compensation on account of the injuries sustained by the appellant. FACTS NOT IN DISPUTE 9.

The brief facts of the case are that on 22.08.2003, claimant/appellant was returning to Chandigarh from Ropar in his Maruti Car bearing registration No.CH-03-A-7142. At about 7.45 A.M., when he reached near Aman Restaurant at village Padiala, a black Indigo LS car bearing registration No.PB-27-B-0043 being driven by respondent No.1 in a very rash and negligent manner, which was coming from the opposite side

-3struck into the car of the claimant/appellant. As a result, car of the claimant/appellant got damaged and he sustained grievous injuries in the accident. He was rushed to the hospital at Kurali from where, he was referred to PGIMER, Chandigarh. The matter was reported to the police and FIR under Sections 279, 337, 338 and 427 IPC was got registered against respondent No.1.

10.

Upon notice of the claim petition, respondents appeared and contested the claim petition by denying the factum of accident/compensation.

11.

From the pleadings of the parties, the Tribunal framed the following issues:-

1) Whether claimant sustained injuries in a road accident which took place on 22.08.2003 at 7.45 a.m. near Amar Restaurant village Padiala District Ropar due to rash and negligent driving of Car No.PB-27-B-0043 by its driver respondent No.1, owned by respondent No.2 and insured by respondent No.3? OPP

2) If issue No.1 is proved, whether claimant is entitled to compensation, if so how much and from whom? OPP

3) Whether respondent No.1 was not holding valid and effective driving licence at the time of accident, if so its effect?OPR-3

4) Relief.

12.

After taking into consideration the pleadings and the evidence on record, the learned Tribunal awarded compensation to the tune of

-4Rs.1,65,500/- alongwith interest @ 8% per annum. Hence, the claimant/appellant filed the present appeal for enhancement of compensation awarded by the learned Tribunal.

SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES 13.

The learned counsel for the claimant-appellant contends that the compensation awarded by the learned Tribunal is on the lower side and deserves to be enhanced. He further contends the claimant-appellant had suffered permanent disability to the extent of 17%. Further contends that no amount has been awarded towards attendant charges and the amount awarded towards pain and suffering, special diet is also on lower side. Therefore, the present appeal be allowed and the compensation awarded to the appellant shall be enhanced, as per latest law. 14.

Per contra, learned counsel for the respondent-Insurance Company, however, vehemently argues that the award has rightly been passed and the amount of compensation as assessed by the learned Tribunal has rightly been granted. He prays for dismissal of the appeal. 15.

I have heard learned counsel for the parties and perused the whole record of this case.

16.

A perusal of the record shows that the disability of the appellant as per Ex.P3 is 17%, which is permanent disability. It further reveals from the record that at the time of the accident, the appellant was 42 years old. Further reveals that he was working as a construction contractor and was earning Rs.1,86,500/- per annum, which was also shown in his Income Tax Return (Ex.RX) for the assessment year 2003-2004. It is also revealed from the award that no amount has been awarded towards attendant charges and

-5the amount awarded towards pain and suffering, special diet is also on lower side. Therefore, the award requires indulgence of this Court. SETTLED LAW ON COMPENSATION 17.

Hon'ble Supreme Court has settled the law regarding grant of compensation with respect to the disability. The Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343, has held as under:- General principles relating to compensation in injury cases

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).

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.

-6- (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.

xxx xxx xxx xxx

19. We may now summarise 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.

20. The assessment of loss of future earnings is explained below with reference to the following Illustration 'A' : 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

-7capacity 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/- Illustration 'B' : 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/- Illustration 'C' : 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

-8on actuals taken from the decision in Arvind Kumar Mishra (supra)].

18.

Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following aspects:- (A) Deduction of personal and living expenses to determine multiplicand;

(B) Selection of multiplier depending on age of deceased; (C) Age of deceased on basis for applying multiplier; (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation;

(E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed or fixed salary.

The relevant portion of the judgment is reproduced as under:- "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 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."

-919.

Hon'ble Supreme Court in the case of Erudhaya Priya Vs. State Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:- "7. There are three aspects which are required to be examined by us:\ (a) the application of multiplier of '17' instead of '18'; 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'.

(b) Loss of earning capacity of the appellant with permanent disability of 31.1% 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:

(i) Pain, suffering and trauma resulting from the accident;

(ii) Loss of income including future income;

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

(iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life."

[emphasis supplied]

-10The 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 2011 to January 2013. The nature of injuries had been set out as under:

"Nature of injury:

(i) compound fracture shaft left humerus (ii) fracture both bones left forearm (iii) compound fracture both bones right forearm (iv) fracture 3rd, 4th & 5th metacarpals right hand (v) subtrochanteric fracture right femur (vi) fracture shaft femur (vii) 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.

(c) The third and the last aspect is the interest rate claimed as 12% 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

-11confined to 9% in line with the interest rates applied by this Court.

CONCLUSION

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:

Heads Awarded Loss of earning power Rs. 9,81,978/- (Rs.14,648 x 12 x 31.1/100 Future prospects (50 per cent Rs.4,90,989/- addition) Medical expenses including Rs.18,46,864/- transport charges, nourishment, etc.

Loss of matrimonial prospects Rs.5,00,000/- Loss of comfort, loss of Rs.1,50,000/- 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.

RELIEF 20.

In view of the law laid down by the Hon'ble Supreme Court in the above referred to judgments, the present appeal is allowed. The award

-12dated 19.04.2007 is modified accordingly. The appellant-claimant is entitled to enhanced compensation as per the calculations made here-under:- Sr.

No.

Heads Compensation Awarded Monthly Income Rs.15,542/- Future prospects 25% Rs.3,885/- (25% of Rs.15,542/-) Annual Income Rs. 2,33,124/- (Rs.19,427/- X 12) Loss of future earning per annum (17%) Rs.39,631/- (17% of Rs.2,33,124/-) Multiplier (14) Rs.5,54,834/- (Rs.38,250 X 14) Medical Expenses RS.18,302/- Attendant Charges Rs.21,000/- Pain and Suffering Rs.25,000/- Special Diet Rs.10,000/- Loss of amenities of life Rs.25,000/- Total Compensation Rs.6,54,136/- Amount Awarded by the Tribunal Rs.1,65,500/- Enhanced amount Rs.4,88,636/- (Rounded off to Rs.4,89,000/-) 21.

So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5 Supreme Court Cases 107, the appellant-claimant is granted the interest @ 9% per annum on the enhanced amount from the date of filing of claim petition till the date of its realization. 22.

The Insurance Company-respondent No.3 is directed to deposit the enhanced amount of compensation along with interest with the Tribunal within a period of two months from today. The Tribunal is further directed to

-13disburse the enhanced amount of compensation along with interest in the accounts of the claimant/appellant. The claimant/appellant is directed to furnish his bank account details to the Tribunal. 23.

Before parting with the judgment, this Court extends its appreciation to Mr. Suvir Dewan, Advocate, for his able and effective assistance to the Court in the present matter. Further the Insurance Company-respondent No.3 is hereby directed to disburse the current scheduled fees to Mr. Suvir Dewan, Advocate, within a period of ten days from the date of receipt of the copy of this judgment. 24.

Disposed off accordingly.

25.

Pending applications, if any, also stand disposed of. (SUDEEPTI SHARMA) JUDGE 08.11.2024 Virrendra Whether speaking/non-speaking : Speaking Whether reportable : Yes/No