Balwan Singh v. Suresh Kumar And ORS.

-1IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: 29.11.2024 Balwan Singh ......Appellant Vs.

Suresh Kumar and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:

Mr. R.A.Sheoran, Advocate, for the appellant.

Mr. Vinod Chaudhri, Advocate, for respondent No.3-Insurance Company.

**** SUDEEPTI SHARMA J.

1.

The present appeal has been preferred for setting aside the award dated 18.04.2006 passed in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short, 'MV Act') by the learned Motor Accident Claims Tribunal, Hisar (for short, 'the Tribunal'), whereby claim petition filed by the appellant/claimant, was dismissed. FACTS NOT IN DISPUTE 2.

The brief facts of the case are that on 23.07.2003, appellant/claimant boarded a jeep bearing registration No.HR-16A-4186 from his village, which was being driven by respondent No.1 at a very high speed and in a rash and negligent manner as well as without observing the traffic rules. When the said jeep reached Laharu 'Mor' towards Siwani, it turned turtle. As a result thereof, appellant/claimant sustained injuries and his right hand was got fractured. Thereafter, the appellant/claimant was

-2rushed to Jain Orthopadic Hospital, Hisar by his brother Om Parkash, where he remained admitted upto 03.08.2003.

3.

Upon notice of the claim petition, the respondents appeared and filed their separate replies denying the factum of accident/compensation. 4.

Appellant/claimant did not file rejoinder to the written reply. 5.

From the pleadings of the parties, the learned Tribunal framed the following issues:- "1) Whether the accident took place due to rash and negligent driving of jeep No. HR-16A-4186 by respondent No.1 Suresh Kumar? OPP 2) Whether the applicant is entitled to compensation on account of his injuries, if so, how much and from whom? OPR 3) Whether the Insurance Company is not liable to make the payment of compensation, if awarded, or not? OPR.

4) Relief."

6.

After taking into consideration the pleadings and the evidence on record, the learned Tribunal has dismissed the claim petition. Hence, the present appeal.

SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES 7.

Learned counsel for the appellant/claimant contends that the learned Tribunal has dismissed the claim petition only on the ground that the appellant/claimant could not prove injuries sustained by him in the accident caused by respondent No.1.

8.

Per contra, learned counsel for respondent No.3-Insurance Company, however, vehemently argues on the lines of the award dated

-318.04.2006 and submits that the award has rightly been dismissed by the learned Tribunal. Therefore, he prays for dismissal of the present appeal. 9.

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

10.

The relevant portion of the award reads as under:- "7.

In order to prove this issue, the claimant had examined Balwan as its first witness. He stated that he was coming to Hisar and was sitting in the jeep bearing Registration No HR-16A-4186 and it was being driven in a rash and negligent manner and he asked the driver to slow down but he did not pay heed and when the jeep reached Loharu 'mor' it over turned. He stated that the accident occurred on account of negligent driving of the jeep driver. It was also stated that he was taken to the hospital by his brother who was an eye witness and his brother also went to the police to lodge a report but the police did not take any action and he filed a complaint which was sent to the police station under section 156(3) Cr.P.C. He admitted in the cross examination that the driver and the owner of the jeep were of his village.

He could not say whether the driver or the conductor had sustained injuries. He stated that he belonged to the Jat Community and so were the owner and driver of the jeep. He stated that the driver of the jeep was his uncle in the brotherhood. He also stated that he had told the doctor that he had sustained injuries in the accident and the doctor had sent ruqa to the police and the police had come to the hospital after 3-4 days. Dr. Ramesh Jain PW2 of Jain Orthopedic Hospital, Hisar stated that he had examined Balwan on 23.7.

-4and the X-ray showed fracture of shaft and he was operated upon and was discharged from the hospital on 3.8.2003 vide Ex.P1. In the cross examination, he stated that no MLR was prepared nor any ruqa was sent to the police.

8.

Jagbir Singh Ahlmad PW4 brought the summoned record title "State Vs. Suresh" pending in the Courts at Siwani. He proved the FIR Ex.P14. His cross examination was deferred and thereafter the counsel for the respondent made a statement that the witness was not to be cross examined. Devender Kumar Ahlmad PW5 brought the summoned file titled 'State Vs. Suresh'. He stated that the case was pending for the prosecution evidence for 29.4.2006.

9.

In order to succeed, the claimant has to prove that he had sustained injuries in an accident which was caused by respondent No.1. According to the claimant, the accident took place on 23.7.2003. The eye witness to this accident is Om Parkash real brother of Balwan. The brother was not examined. Balwan had stated that his brother had gone to the police station to lodge the report. The statement of Balwan's brother was crucial as he had lodged the report. It is the case of the claimant that the police did not register the case and thereafter a complaint was filed in the court which was sent to the police and finally FIR was registered on 23.8.2003. There is no material on the file as to when the complaint was filed in the court.

10.

The counsel for the Insurance Company had urged that it may be a coincidence that the claimant and the driver of the jeep belonged to the same village and if it was not then since the driver was known to the claimant,

-5there was no reason why the claimant had not revealed to the Medical Officer and invariably a query is put to the injured or his relative and if it is a case of accident, ruqa is sent to the police station and it would be seen that though a stand was taken by the claimant that he had revealed about the accident to the doctor but no question was put to him when he stepped into the witness box as PW2 and the jeep has been introduced after deliberations and a story had been concocted and no ruqa was sent.

11.

The accident took place on 23.7.2003. A month later the FIR was registered on 23.8.2003. There is no evidence as to when the complaint was filed in the court. It has come in evidence that the driver was known to the claimant and also to his brother. If the jeep had turned turtle, neither the driver nor the jeep would have taken away the vehicle. The fact that no MLR was prepared, no ruqa was sent goes to show that the vehicle has been introduced later on. If the accident had occurred in the manner suggested by the claimant there would have been some others who would have sustained injuries. The claimant was silent with respect to this. He could not even say whether the driver sustained injuries. The claimant got discharged from the hospital on 2.8.2003. Even then he did not go to the police station.

The name of the driver and the jeep number were available. The facts go to prove that the accident did not occur in the manner suggested and the vehicle has been introduced and a story has been concocted and it is held that the claimant has failed to prove that the claimant sustained injuries in an accident caused by respondent No.1. The issue is answered against the claimant."

-611.

A bare reading of the above paragraphs shows that the learned Tribunal has not appreciated the evidence on record and has wrongly dismissed the claim petition filed by the appellant/claimant on the ground that the accident did not occur in the manner suggested and the appellant/claimant failed to prove injuries sustained in the accident caused by respondent No.1.

12.

A perusal of the record further shows that respondents No.1 and 2 admitted that the appellant/claimant had boarded the jeep. It is further pleaded that when the jeep reached Loharu Mor, a cow suddenly appeared on the road and in order to save the cow, the driver turned the jeep on one side and it turned turtle. Therefore, the factum of accident and turning the jeep turtled is admitted by respondents No.1 and 2 themselves. 13.

A perusal of the record further shows that:- (i) Appellant/claimant (injured) was himself examined as PW-1, who stated the factum of accident and in his crossexamination, there was no discrepancy. (ii) Jagbir Singh, Ahlmad, was examined as PW-4, who brought file of criminal case titled as 'State Vs. Suresh'in FIR No.123 dated 23.08.2003, under Sections 279/337/338 of the IPC registered at Police Station Siwani, which proved the registration of the FIR against respondent No.1. (iii) Another Ahlmad Devender Kumar, was examined as PW5, who brought the case file titled as 'State Vs. Suresh' bearing No.123 dated 23.08.2003, under Sections 279/337/338 of the

-7IPC registered at Police Station Siwani, and stated that the said case was pending for 29.04.2006 for prosecution evidence. In his cross-examination, he stated that PW2-Ramesh Jain, Orthopedic Surgeon, has already been examined on 08.05.2004. (iv) Dr. Sanjay Dahiya, SMO, General Hospital, Hansi, was examined as PW-6, who stated that he along with Board of Doctors namely Dr. Dalal and Civil Surgeon Dr. O.P.Phogat issued disability certificate to Balwan Singh son of Phula Ram. He proved the disability certificate as Ex.P-15. 14.

A perusal of the record further shows that the learned Tribunal has noted down the factum that the police did not register the FIR, therefore, a complaint was lodged before the Court and the Magistrate having powers under Section 156(3) Cr.P.C, sent the complaint to the police to investigate into the matter and thereafter, an FIR was lodged. Learned Tribunal did not appreciate the very fact that the FIR was registered on a complaint case, which was ordered by the Magistrate while exercising the powers under Section 156(3) Cr.P.C. Meaning thereby, the Magistrate was prima facie satisfied and took cognizance of the offence. Further, the learned Tribunal has held that if the accident took place and the appellant/claimant was taken to the doctor then why no ruqa was sent by the doctors to the police and why no MLR was prepared.

This reasoning given by the learned Tribunal is unsustainable since for the lack of responsibility on the part of doctors, the appellant/claimant should not suffer. The procedural lapse on the part of the medical officer should not be attributed to the appellant/claimant.

-8in view of the above, factum of accident is proved by lodging of the FIR and admission by respondents No.1 and 2. Further, the injuries sustained by the appellant/claimant are proved by the statements of the doctors, who examined the appellant/claimant. Hon'ble the Supreme Court in Anita Sharma v. New India Assurance Co. Ltd., 2021(1) SCC(Cri) 475 has held that in a motor vehicular accident, standard of proof in motor accident matters is one of preponderance of probabilities rather than beyond reasonable doubt and strict principles of evidence and standards of proof like in criminal trial are inapplicable in MACT claim cases. The relevant extract of the said judgment is reproduced as under:-

22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with nonexamination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v.Joaquim Xavier Cruz (2013) 10 SCC 646. wherein this Court reiterated that:

"7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the

-9touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101]) (emphasis supplied)"

15.

In view of the above, the award dated 18.04.2006 passed by learned Tribunal stand vitiated by complete absence of application of judicial mind.

16.

So far as Issue No.3 is concerned, this issue was not pressed during the course of arguments.

17.

With respect to determination of compensation, the record contains evidence of hospital admission, the claimant's earning and expenses incurred for medical treatment and hospitalization. Consequently, this Court shall adjudicate the compensation in accordance with the documented evidence on the record.

SETTLED LAW ON COMPENSATION 18.

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

-10damages 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.

(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 :

-11- (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 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/- 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

-12assessed 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 on actuals taken from the decision in Arvind Kumar Mishra (supra)].

19.

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;

-13- (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."

20.

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.

-14The 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] 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 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

-15- (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 confined 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.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 Rs.18,46,864/-

-16transport charges, nourishment, etc.

Loss of matrimonial prospects Rs.5,00,000/- Loss of comfort, loss of amenities and mental agony Rs.1,50,000/- 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 21.

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 dated 18.04.2006 is hereby set aside. The appellant/claimant is entitled to compensation as per the calculations made here-under:- Sr.

No.

Heads Compensation Awarded Monthly Income Rs.2,600/- Loss of future prospects (40%) Rs.1,040/- (40% of Rs.2,600/-) Annual Income Rs.43,680/- (Rs.3,640/- X 12) Loss of future earning due to disability (8%) Rs.3,494.40/- (8% of Rs.43,680/-) (Rounded of to Rs.3,495/-) Multiplier (18) Rs.62,910/- (Rs.3,495 X 18) Medical Expenses Rs.12,080/- Pain and Suffering Rs.40,000/- Special Diet Rs.20,000/- Transportation charges Rs.10,000/- Attendant Charges Rs.15,000/- Loss of amenities of life Rs.30,000/- Total Compensation Rs.1,89,990/-

-1722.

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 appellantclaimant 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. 23.

The Insurance Company-respondent No.3 is directed to deposit the amount of compensation along with interest with the Tribunal within a period of two months from the date of receipt of copy of this judgment. The Tribunal is further directed to disburse the amount of compensation along with interest in the account of the appellant/claimant. The appellant/claimant is directed to furnish his bank account details to the Tribunal. 24.

Respondent No.3-Insurance Company is hereby directed to disburse the current scheduled fees to Mr. Vinod Chaudhri, Advocate, within a period of ten days from the date of receipt of the copy of this judgment. 25.

Disposed of accordingly.

26.

Pending applications, if any, also stand disposed of. (SUDEEPTI SHARMA) JUDGE 29.11.2024 Virrendra Whether speaking/non-speaking : Yes Whether reportable : Yes/No