High Court of Punjab and HaryanaFAO/5272/2006allowed

Bhateri Devi v. Rajender And Others

2024-09-27Mrs. Justice Sudeepti Sharma17 pages

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1. Whether the accident in question resulting into injuries to petitioner Bhateri Devi took place due to rash and negligent driving of motor cycle No. HR 34 5835 by respondent No.1? OPP

2. If issue No.1 is proved, to what amount of compensation the petitioner is entitled to and from whom? OPP

3. Whether respondent No.1 was not holding a valid driving licence at the time of accident in question? OP insurance company.

4. Whether respondent No.3 is not liable to pay the amount of compensation? OPR

5. Relief.

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In support of this issue Shyam Sunder PW 4, as discussed above, who is none else but grand father of claimant by way of his affidavit. Ex. PW 4/A has reiterated the contents of the claim petition by specifically deposing about the rash and negligent driving of respondent No.1. He has stated that about 4 00 P.M. on 19 05 2003 his grand daughter i.e. claimant was playing in front of her house. However, in the meanwhile the motor cycle bearing registration No. HR 34 5835 being driven by respondent No.1 in a rash and negligent manner came on the spot and struck against the head of her grand daughter. Respondent No.2 was pillion rider of the said motor cycle at that time. Her grand daughter became unconscious and fell down. The accident was witnessed by him and therefore, brought his grand daughter to Civil Hospital, Charkhi Dadri. The accident had occurred due to sole rash and negligent driving of respondent No.1. Father of the claimant, namely Krishan Kumar while appearing as PW 1 by way of his affidavit Ex. PWI/A has also reiterated the contents of the claim petition.

11. Though the above evidence led by the claimants has gone

unrebutted and unchallenged, but still I am of the considered view that the same cannot be accepted at all, because admittedly the version of the claimant is not supported by any FIR. The accident allegedly took place on 19.5.2003, whereas complaint Ex. P2 mark B moved before the Superintendent of Police, Bhiwani only on 6.8.2003. Why the claimant remained silent approximately 2 1⁄2 months for not taking legal action against the respondent No.1 is unexplained on the file. Till date admittedly they have not take any action against respondents No.1, which requires to draw an adverse inference against the claimant and her parents that they did not adopt any such exercise intentionally knowing well that respondent No.1 was not guilty for causing this accident and that there is a collusion in between them. Hence, the present case is a clear cut case of collusion in between the claimant, her parents and respondent No.1.

12. In view of the discussion above. I have no other option but to hold that the claimant has miserably failed to prove on the file that the accident in question resulting into injuries to claimant Bhateri Devi took place due to rash and negligent driving of motor cycle No. HR 34 5835 by respondent No.1 Rajender. Hence, this issue is decided against the claimant."

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Ravi Vs.

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"20. It is well settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinised more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.

21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons." '

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Master Sajjan through his mother Vs. Jagmohan and others

( FAO'3699'2006

"It is evident from the record that accident took place on 09.11.2003 and FIR was lodged on 18.11.2003. Disability certificate dated 10.11.2003 (Ex.P8) indicates permanent disability of 10%. All medical records also shows that the accident took place on 09.11.2003. Further FIR was lodged on 10.11.2003, which proves the factum of accident and the injuries. Only because the FIR was delayed, is no ground to dismiss the claim petition as held by Hon'ble the Supreme Court in case of Ravi (supra)." + ?

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Abhimanyu Partap Singh Vs. Namita Sekhon and another (2022) 8 SCC 489, (

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14. The High Court in the impugned order observed that the claimant has now started practice as an advocate, therefore, future loss of earning has been calculated only for 10 years, applying the multiplier of 16, without looking to the facts that claimant cannot perform the work of advocacy similar to the other advocates by attending the cases in different Courts. The attendant charges have been allowed only for 20 years with one attendant. In fact, not only for determination of future loss of earning but for attendant charges also the multiplier method should be followed. The multiplier method has been recognized as most realistic and reasonable because it has been decided looking to the age, inflation rate, uncertainty of life and other realistic needs.

Thus, for determination of just compensation to ensure justice with the family of deceased or the injured as the case may be the compensation can be determined applying said method. Therefore, in our view the Tribunal while granting the compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years was not justified. In fact, the said amount should be determined applying the multiplier method. 15.

It is also relevant to observe that in the judgment of Sarla Verma (Smt.) & Others v. Delhi Transport Corporation and Another ' (2009) 6 SCC 121 and National Insurance Company Limited v. Pranay Sethi & Others ' (2017) 16 SCC 680, while replacing the schedule of Motor Vehicle Act, it is not made clear what multiplier would be applicable below the age of. In the case of Kajal (supra), the injured was 12 years of the age, however, the multiplier of 18 has been applied. Therefore, taking guidance from the judgment of Kajal (supra), for determination of the

compensation in the present case, the multiplier of 18 shall be applicable.

16.

In view of the said legal position, the compensation can be assessed in pecuniary heads i.e. the loss of future earning, medical expenses including future medical expenses, attendant charges and also in the head of transportation including future transportation. In the non pecuniary heads, the compensation can be computed for the mental and physical pain and sufferings present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life etc. 17.

On perusal of the record out of the pecuniary heads MACT has not awarded any amount in future loss of earning even having 100% permanent disability while the High Court granted Rs.6,00,000/ only for 10 years because the appellant is now practicing as an advocate in the Court accepting his earning Rs.60,000/ per annum. From the pleadings and evidence brought, it is clear that the father of the appellant was a Professor and the mother was an IAS officer. The claimant has been nurtured and brought up in a status enjoyed by his parents. He was planning to become an Executive or IAS officer. On account of the injuries in temporal region and the permanent disability suffered, he was unable to do his studies as expected or planned. After sincere efforts he could have passed the LL. B and started the advocate profession.

A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to complete other professional commitments. Looking to the nature of injuries and the permanent disablement which the claimant has suffered, i.e., lower limb is completely paralyzed while his upper limb is partially paralyzed having 100% permanent disability resulting in bodily movements being hampered. The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession.

is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectations of the client. The disablement suffered to the claimant is for whole life and in the said fact, in our considered view the future loss of earning calculated by the High Court only for 10 years is not justified. If we accept the future loss of earning Rs.5,000/ per month as decided by the High Court which annually comes to Rs.60,000/ and apply the multiplier of 18 as applicable looking to the age, then the sum comes to Rs.10,80,000/ , in the said head.

18. In the head of medical expenses, the MACT or the High Court has not awarded any compensation presumably because the mother of the claimant who was minor at the time of accident may have claimed the amount of medical expenses being an IAS officer. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. The Tribunal awarded Rs.1,92,000/ in the head of attendant charges @ 1,000/ per month. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Court calculated the amount @ Rs.2,000/ thereafter @ Rs.

4,000/ per month for a period of 20 years and accordingly determined Rs.9,00,000/ making enhancement of Rs.7,08,000/ in the said head. As discussed, if we apply the multiplier method and in view of the judgment of Kajal (supra), we accept the rate of attendant charges Rs.5000/ per month for 12 hours, looking to the nature of injuries and disability the claimant is required two attendants at least within 24 hours then the expenses in the head of attendant charges comes to Rs.10,000/ per month. If we apply the multiplier of 18, the amount comes to Rs.21,60,000/ .

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Master Ayush Vs.

The Branch Manager, Reliance Insurance Co. Ltd. & Anr (2022) 7 SCC 738

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Hence, as per the above extract, the minimum wages payable to a skilled workman in 2010 11 is to the tune of Rs. 3708.70. In this view, the minimum wages as on the date of accident is rounded off to Rs.3700/ . The compensation, therefore, is to be assessed on the basis of the said minimum wages on the assumption that the appellant would have been able to earn after attaining majority.

In addition to the skilled minimum wages, the appellant would be also entitled to 40% for future prospects in view of the judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680.

10. Thus, the compensation works out to be Rs.3700/ plus 40%, which amounts to Rs.5180/ per month. The multiplier of 18 would be applicable in view of the age of the appellant. The loss of future earnings due to the Permanent Disability for life thus works out to be Rs.11,18,880/ , i.e., (3700+1480=5180) x 12 x 18. 11.

As per the medical certificate produced by the appellant, with Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches, the appellant can perform independent ambulation. Therefore, the condition of the appellant is not entirely comparable to Kajal who was confined to bed with mental age of 9 months' old child. The appellant herein is not able to move his both legs and had complete sensory loss in the legs, urinary incontinence and bowel constipation and bed sore. 12.

The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e., Rs.10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects

would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs.2 lakhs as conveyance charges."

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Kajal Vs. Jagdish Chand and others, (2020) 4 SCC 413

19. The High Court under the two heads of medical treatment and transport has awarded Rs 1,88,501/ . Out of this an amount of Rs 1,38,501/ is the actual expense incurred on the treatment of Kajal. One must remember that amongst people who are not Government employees and belong to the poorer strata of society, bills are not retained. Some of the bills have been excluded by the courts below only on the ground that the name of the patient is not written on the bill. There is no dispute with regard to the long period of treatment and hospitalisation of this young girl. Immediately after the accident on 18.10.2007, she was admitted at a hospital in Karnal. From there, she was referred to the PGI, Chandigarh, where she remained admitted from 21.10.2007 till 12.11.2007 and, thereafter, she was again admitted in the hospital from 12.11.

2007 till 08.12.2007. She was in the hospital for almost 51 days, and both Dr. Sameer Aggarwal (PW 3) from the hospital at Karnal and Dr. Rajesh Chhabra (PW 4), from PGI, Chandigarh, have supported this. Limiting the amount only to the bills which have been paid in the name of the claimant only, would not be reasonable. Therefore, the amount payable for actual medical expenses is increased from Rs. 1,38,501/ to Rs.2,00,000/ . The amount awarded for transportation at Rs. 50,000/ is reasonable. Therefore, under this head we award Rs.2,50,000/ .

Loss of earnings

20. Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs.15,000/ per annum can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs. 15,000/ per annum. Each case has to be decided on its own evidence but taking notional income to be Rs. 15,000/ per annum is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs. 4846/ per month. In our opinion would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs. 6784.40/ per month, i.e., 81,412.80 per annum. Applying the multiplier of 18 it works out to Rs. 14,65,430.40, which is rounded off to Rs. 14,66,000/

21. Though the claimant would have been entitled to separate attendant charges for the period during which she was hospitalised, we are refraining from awarding the same because we are going to award her attendant charges for life. At the same time, we are clearly of the view that the tortfeasor cannot take benefit of the gratuitous service rendered by the family members. When this small girl was taken to PGI, Chandigarh, or was in her village, 2 3 family members must have accompanied her. Even if we are not paying them the attendant charges they must be paid for loss of their wages and the amount they would have spent in hospital for food etc. These family members left their work in the village to attend to this little girl in the hospital at Karnal or Chandigarh. In the hospital the claimant would have had at least two attendants, and taking the cost of each at L 500/ per day for 51 days, we award her L 51,000/ .

Attendant charges

22. The attendant charges have been awarded by the High Court @ Rs. 2,500/ per month for 44 years, which works out

to Rs. 13,20,000/ . Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges etc. This system was recognised by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1962 Supreme Court 1. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of `just compensation' within the meaning of the Act.

23. It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. O'Connor, 1971 AC 115 : "Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency. That is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately.

Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special, I think, that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential.

factor in the present case is the incidence of Income Tax and, it may be, surtax."

24. This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati and Ors., 1966 ACJ 57, U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors., (1996) 4 SCC 362, Sandeep Khanduja v. Atul Dande and Ors., (2017) 3 SCC 351 : 2017(1) RCR (Civil) 1017. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant's age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court.

25. Having held so, we are cleary of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010, wherein the wages for skilled labourer is Rs. 4846/ per month.

We, therefore, assess the cost of one attendant at Rs. 5,000/ and she will require two attendants which works out to Rs. 10,000/ per month, which comes to Rs. 1,20,000/ per annum, and using the multiplier of 18 it works out to Rs. 21,60,000/ for attendant charges for her entire life. This takes care of all the pecuniary damages.

26. Coming to the non pecuniary damages under the head of pain, suffering, loss of amenities, the High Court has awarded this girl only Rs. 3,00,000/ . In Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Ors., 2013 (10) SCALE 668 : 2013(4) RCR (Civil) 295, this Court while dealing

with the issue of award under this head held that it should be at least Rs. 6,00,000/ , if the disability is more than 90%. As far as the present case is concerned, in addition to the 100% physical disability the young girl is suffering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine month old child. This is a case where departure has to be made from the normal rule and the pain and suffering suffered by this child is such that no amount of compensation can compensate.

27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding compensation. While awarding this amount we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bed ridden for life. Her mental age will be that of a nine month old child. Effectively, while her body grows, she will remain a small baby.

We are dealing with a girl who will physically become a woman but will mentally remain a 9 month old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love let alone grandchildren. She will have no pleasure. Her's is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs. 15,00,000/ .

28. The Tribunal has awarded Rs. 3,00,000/ for loss of marriage prospects. We see no reason interfere with this finding. Future medical treatment

29. The claimant has been awarded only Rs. 2,00,000/ under this head. This amount is a pittance. Keeping in view the nature of her injuries and the fact that she is bed ridden this child is bound to suffer from a lot of medical problems. True it is that there is no evidence in this regard but there can hardly be such evidence. She may require special mattress which will have to be changed frequently. In future as this girl grows, she may face many other medical issues because of the injuries suffered in the accident. Keeping in view her young age and assuming she would live another 50 60 years, it would not be unjust to award her Rs. 5,00,000/ for future medical expenses. 4 5 ; ( *

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