Satpal Singh Kandhol v. Sonu@Sunil And ANR.

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision:- 21.10.2015 Satpal Singh Kandhol ...Appellant

Versus

Sonu @ Sunil and anothers

...Respondents

CORAM:

HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Surinder Singh Virk, Advocate for the appellant None for the respondents

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest? RITU BAHRI J.

1.

The present appeal has been preferred by the injuredappellant (for short 'the appellant'), against award dated 03.12.2008 passed by the learned Motor Accident Claims Tribunal, Panipat (for short, 'the Tribunal') to the tune of Rs.10,71,500/-. FACTS NOT IN DISPUTE 2.

On 09.11.2007, appellant (49 years of age) was travelling from Gurgaon to Village Alupur through his motorcycle and when he reached in the area of village Sikandarpur Majra, his motorcycle was hit by Jeep bearing NO. HR-31-A-7476 driven by respondent No. 1 and due to which the appellant received multiple injuries and one leg of

-2the claimant had to be amputated and he became permanently disable to the extent of 80%. A criminal case i.e F.I.R (Ex P1) was registered in this regard.

3.

The learned counsel for the claimant-appellant contends that the compensation awarded by the learned Tribunal is on the lower side and deserves to the enhanced, in view of the judgment of Hon'ble the Supreme Court of India in a case of Govind Yadav vs. The New India Insurance Co. Ltd., 2011(4) RCR (Civil) 817 wherein a claimant who was working as a helper met with an accident and his leg was amputated resulting in 70% permanent disability. Since, he could not prove his salary, his salary was taken at Rs.3000 per month and his notional annual income comes to Rs 36000/- and loss of earning on account of 70% permanent disability came at Rs.25,200/- per annum and multiplier of 18 was applied. Further Rs. 2 lacs was awarded towards future treatment and Rs.1.50 lacs towards pain and suffering and trauma and further Rs.1.

50 lacs towards loss of amenities. In para 17, 18, 19 and 20 of the judgment, it has been observed as under:- "17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as Helper and was getting salary of Rs.4,000/- per month.

-3was produced by him to prove the factum of employment and payment of salary by the employer. The Tribunal then proceeded to determine the amount of compensation in lieu of loss of earning by assuming the appellant's income to be Rs.15,000/- per annum. On his part, the learned Single Judge of the High Court assumed that while working as a Cleaner, the appellant may have been earning Rs.2,000/- per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time minimum wages payable to a worker were Rs.3,000/- per month. Therefore, in the absence of other cogent evidence, the Tribunal and the High Court should have determined the amount of compensation in lieu of loss of earning by taking the appellant's notional annual income as Rs.

36,000/- and the loss of earning on account of 70% permanent disability as Rs.25,200/- per annum. The application of multiplier of 17 by the Tribunal, which was approved by the High Court will have to be treated as erroneous in view of the judgment in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121.

18. By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earning would be Rs.4,53,600/-.

18. The award made by the Tribunal for future medical expenses was wholly inadequate. In Nagappa v. Gurudayal Singh (2003) 2 SCC 274, this Court considered whether it was permissible to award compensation in installments or recurring compensation to meet the future medical expenses of the victim. After noticing the judgment of M. Jagannadha Rao, J. (as he

-4then was) in P. Satyanarayana v. I. Babu Rajendra Prasad 1988 ACJ 88 (AP), the judgment of the Division Bench of the Kerala High Court in Valiyakathodi Mohd. Koya v. Ayyappankadu Ramamoorthi Mohan 1991 ACJ 140 (Kerala), this Court observed:

"In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, the appellant would be 1 required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs 18,000 and the High Court has awarded the said amount. For change of the artificial leg every two or three years no compensation is awarded.

Considering this aspect, if Rs one lakh is awarded as an additional compensation, the appellant would be in a position to meet the said expenses from the interest of the said amount." After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs.2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses.

19. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three

-5months. It is not possible for the Tribunals and the Courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the 1 purpose of fixing the amount of compensation. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg.

20. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs.1,50,000/- for the loss of amenities and enjoyment of life."

4.

I have heard learned counsel for the appellant and perused the record.

COMPENSATION ASSESSED BY MACT 5.

The learned Tribunal assessed the salary of the claimant to the tune of Rs.20,000/- as per monthly salary sheets (Ex P27 to P31)

-6and the annual income of the claimant comes to Rs.2,40,000/-. But since Dr. V.P. Gupta (PW5) proved the 80% permanent disability of the claimant, his salary was reduced to 50% and loss of income was assessed at Rs.1,20,000/-. Multiplier of 8 was applied, Rs.40,000/- was awarded towards special diet and attendant during the period he remained confined to bed. Rs.20,000/- was awarded towards mental agony. Rs.11,500/- towards the amount spent by the claimant on repair of his motorcycle. He was awarded total compensation of Rs.10,71,500/-.

RE-ASSESSED COMPENSATION 6.

The fact of accident is admitted and proved. A reference can be made to the judgment of Hon'ble the Supreme Court of India in the case of Syed Sadiq etc. vs. Divisional Manager, United India Ins. Co. 2014(1) RCR (Civil) 765, where the accident victim was aged 24 years and was vegetable vendor. It was held that a vegetable vendor is reasonably capable of earning Rs.6500/- per month with 50% increment in the future prospect of income. Multiplier of 18 was applied for calculating the amount of compensation 7.

In the facts of the present case, the fact which is not dispute that the leg of the appellant was amputated resulting in 80% permanent disability.

8.

In view of the above mentioned judgment, the

-7compensation is re-assessed as under:- HEAD COMPENSATION AMOUNT Salary Rs.20000 per month Annual Salary Rs.20000X12=2,40,000/- Future Prospect 30% Rs.240000 + Rs.72000 = Rs.3,12,000/- Loss on account of disability 312000 X 80%=Rs2,49,600/- Multiplier of 13 (age 49 years) 249600 X13=32,44,800/- Future treatment Rs.2,00,000/- Pain and sufferings Rs.1,50,000/- Loss of amenities Rs.1,50,000/- TOTAL COMPENSATION AWARDED:- Rs.37,44,800/- ENHANCED AMOUNT OF COMPENSATION 37,44,800-10,71,500=Rs.26,73,300/- rounded off to Rs.26,73,000/- 9.

The enhanced amount of compensation of Rs.26,73,000/- shall be payable within a period of forty five days from the date of receipt of certified copy of this order. The enhanced amount of compensation shall carry interest @ 9% per annum from the date of filing of the claim petition, till its realization, in view of the judgment of Hon'ble the Supreme Court in a case of Kumari Kiran through her father Harinarayan vs. Sajjan Singh and others, 2015(1) SCC 539. Remaining conditions of disbursal of amount shall remain unaltered. 10.

Accordingly, the award stands modified to the above extent and the present appeal is partly allowed. October 21, 2015 ( RITU BAHRI ) G Arora JUDGE