SBCMA NO.1194/1999. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL MISC.APPEAL NO.1194/1999. Hansraj Vs. National Insurance Co.Ltd. and ors. Date of order : 16/04/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sadeep Mathur for the appellant. Shri Ganesh Joshi for the respondents. ****** BY THE COURT:- Reportable Heard learned counsel for the parties. 2) Appellant being dis-satisfied with the quantum of compenstion in case of 100% disability has filed this appeal questioning the correctness of quantum of compensation. The appellant met with an accident on 10/4/1996 when he was coming from Govindpura to Shahpura by road. He was hit from behind by Truck No.DL-1G-A-618 which was being driven by respondent No.3 in rash and negligent manner. As a result of the said accident, appellant sustained grievious injuries and he had to remain hospitalized in S.M.S. Hospital Jaipur for more than a month. He was subjected to operation during his hospitalization. Since appellant had sustained fracture of his back bone at Vertribra Section at L-1, both his legs were rendered senseless and this disease was described by SBCMA NO.1194/1999. 2 the doctors attending on him as 'paraplegia'. Medical Board upon examining him, certified that appellant sustained 100% permanent disability. The injury report Ex.9, X-Ray Report Ex.4, permanent disability certificate, operation note and the statement of AW1 Dr.M.K. Mathur were got exhibited. 3) Appellant before the Tribunal asserted that he was a driver by profession and he produced his driving license at Ex.13. The case pleaded before the Tribunal was that on account of 100% permanent disability, he is now no longer capable of earning any amount whatsoever in future. Learned Tribunal, in those facts, awarded to the appellant a consolidated amount of Rs.2 lacs for 100% permanent disablement, for mental suffering as well as for physical agony due to the injuries sustained by the appellant, Rs.30,000/- towards medical expenses, Rs.70,000/- for nutritious diet, transportation expenses and attendant and Rs.1,00,000/- for financial loss and thus a total sum of Rs.4 lacs, was awarded to the appellant. 4) The appellant has questioned the correctness of the quantum of compensation on the premise that a consolidated sum of Rs.2 lacs could not be awarded for total permanent disability, pain and suffering due to grave injuries and mental agony. 5) Shri Sandeep Mathur, learned counsel for the appellant has argued that the learned Tribunal has not given any reasoning as to how and in what manner it arrived at a sum of Rs.2 lacs aforesaid. It was a case SBCMA NO.1194/1999. 3 where appellant was a young person of 20 years and was a driver. He clearly asserted that he was earning Rs.100/- per day which was quite usual for a driver to earn in those days. He also produced his driving license. Learned Tribunal has not at all examined the matter from that angle and no discussion whatsoever has been made in this regard. Learned counsel for the appellant submitted that according to the Table provided in Schedule-II of the Motor Vehicles Act, 1988, if multiplier at the age of 20 years is taken to be 17, income of the appellant being Rs.3,000/- per month, he would be entitled to a sum of Rs.6,12,000/- for permanent disablement as he would not be able to earn this much. Besides that, he was entitlted to reasonable amount on the head of pain and suffering and mental agony under the separate head. Learned counsel for the appellant further argued that there can be no deduction of amount of compensation by 1/3rd because deduction can be made only in a case of person who no longer survives. Such a deduction is required to be made in the case of a person who has died and claim for compensation is made by his legal heirs/dependants. Regarding note below clause (1) of Schedule-II supra, learned counsel submitted that the respondents cannot object to the rate of interest and the amount of compensation on medical expenses etc. because neither have they challenged the award by filing an appeal nor have they filed any cross objection in the present appeal. SBCMA NO.1194/1999. 4 6) In rebuttal, learned counsel for the respondent argued that appellant though has challenged the award questioning the correctness of quantum of compensation but has not made any specific plea in the memorandum of appeal nor any specific prayer is made as to what should be the correct compensation awardable to him for total permanent disability. 7) Shri Ganesh Joshi, learned counsel appearing for the Insurance Company opposed the appeal and submitted that there was no proof of the income of the appellant and mere production of the driving license cannot be a substitute for that proof. Appellant was required to prove before the court that he was regularly earning Rs.100/- per day and the Tribunal could be only then required to calculate on the basis of such income. Learned counsel for the Insurance Co. argued that in absence of proof of income, even if notional income of Rs.15,000/- as provided in clause (vi) of Schedule-II supra is relied on, the amount of compensation would come almost to the equivalent amount already awarded to the appellant on application of the correct multiplier at the age of 20 years which is 16 i.e. Rs.2,40,000/- which when deducted by 1/3rd, would be less than Rs.2 lacs when compensation awardable on the head of pain and suffering and mental agony is added thereof, amount of compensation would almost come to the same as has actually been awarded. Learned counsel argued that even otherwise, learned SBCMA NO.1194/1999. 5 Tribunal has awarded enormous amount of compensation to the appellant for medical expenses. While there was no proof of medical expenses incurred by the appellant, yet, the Tribunal has awarded Rs.30,000/- under the said head. 8) Learned counsel for the respondent also questioned the correctness of the rate of interest of 12% p.a. and argued that it is on higher side. In support of his aforesaid argument, learned counsel for the Insurance Company cited the judgment of Supreme Court in New India Assurance Co. Vs. Charlie and another : 2005 ACJ 1131 to say that rate of interest in that case was reduced by the Supreme Court from 9% to 7.5% p.a. in a case arising out of accident which took place in 1997. 9) Learned counsel for the respondent argued that in New India Assurance Co. Vs. Charlie and another supra, the Supreme Court reduced the award of Rs.4,28,825/- to Rs.3,50,000/- even in the facts of the case where there was proof treating the income of the injured to be Rs.18,000/- per annum. 10) In rejoinder, learned counsel for the appellant cited the judgment in R.D. Hattangadi Vs. M/s.Pest Control (India) Pvt. Ltd.: 1995(1) T.A.C. 557 (SC) and argued that in a case where practicing advocate suffered 100% permanent disability on account of paraplegia below the waist, the Supreme Court enhanced amount of Rs.1 lac awarded by the High Court for the loss of amenities of life, pain and suffering SBCMA NO.1194/1999. 6 to Rs.3 lacs. 11) I have given my thoughtful consideration to the submissions advanced by the learned counsel for the parties and perused the material on record as also the cited judgments. 12) Even though a perusal of the award passed by the Tribunal clearly indicates that the appellant was a driver and his daily income was Rs.100/-, the Tribunal has not at all considered this factor while deciding the question of compensation. The appellant in his statement clearly stated that he has been rendered completely crippled inasmuch as, both his legs have completely become non-functional on account of disease of paraplegia emerged due to the injuries sustained by him. He is no longer capable of performing any activity and has to entirely depend on the help of the attendant. The award of the Tribunal for this kind of injuries on the head of pain and suffering, physical as well as mental, in my view, was not justified. The Tribunal was required to examine in the first instance whether the appellant was capable of earning had he not sustained injuries in question and if so, how much? The Tribunal on that basis ought to have evaluated as to what was the extent of loss suffered by the appellant which he would now be facing while being still alive though crippled. I am inclined to uphold the submission of the learned counsel for the appellant that award of lump-sump compensation was not passed by the Tribunal on any logic or reasoning. SBCMA NO.1194/1999. 7 The Tribunal made no discussion whatsoever as to why Rs.2 lacs was justified for permanent disablement as also for pain and suffering mental as well as physical agony. At the same time, however, contention of the learned counsel for the respondent that this should be taken as a case where notional income should form the basis for computing the compensation, cannot be accepted. Notional income of Rs.15,000/- can form basis for compensation referable to clause (vi) of Schedule-II only in such cases where deceased/injured had no income prior to the accident. In the present case, the appellant did assert that he had certain amount of income and that was not contested by the non-claimants that he had no income whatsoever. Production of the driving license by the appellant and his statement in that respect sufficiently prove that fact. But then, contention of the appellant that he was earning Rs.100/- per day, cannot be accepted on his mere ipse-dixit. To balance the computing factors, amount of Rs.2000/- instead of Rs.3000/- can reasonably be taken as the monthly income of the appellant who was driver particularly when it is not proved that appellant was in a regular employment as driver and that he was daily earning Rs.100/-. Taking an over all perspective of the matter however, a balanced approach has to be preferred. 13) Learned counsel for the appellant has insisted that multiplier of 17 could be applied but looking to the fact that age of the appellant was SBCMA NO.1194/1999. 8 proved to be 20 years at the time of accident, multiplier of 16 which is meant for those of the age of above 15 but not exceeding 20, is considered appropriate to be adopted. Note-I to Schedule-II of clause (i) supra, inter-alia provides that "amount of compensation so awarded in the case of fatal accident claims, shall be reduced by 1/3rd for consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive." The aforesaid note makes it more than clear that deduction in the amount of compensation in the case of fatal accident is required to be made in consideration of the expenses which the victum would have incurred towards maintainance of himself if he would have been alive. In other words, non-availability of the victim after his death obviates the necessity of spending on him. No question of such expenses arise when he would be no more alive. Logic behind this is that if a person is alive and very much in the need of amount which he would require to spend on himself as well as on the persons dependant on him, there can be no deduction of 1/3rd income which is made in the case of fatal accident where victim has expired. 14) Calculation of compensation thus has to be made by adopting monthly income of Rs.2,000/- multiplied by 12 months and then further on multiplying by 16, the amount of Rs.3,84,000/- would be arrived at as compensation. Apart from this, in my view, appellant would be entitled to separate amount SBCMA NO.1194/1999. 9 on the head of pain and suffering and mental agony. Keeping in view the nature of injuries and length of time for which such agony, mental as well as physical, which the appellant would suffer for whole of the life, the appellant is entitled for a sum of Rs.25,000/- as pain suffering and another Rs.25,000/- towards mental agony. The amount which is required to be paid by the impugned award has already been received by the appellant with interest @ 12% and since the insurance company has not questioned the correctness of the award on any ground whatsoever, there can be no reduction of the rate of such interest. However, for the enhanced amount which the appellant would now be entitled to receive, he would be entitled to receive the interest only @ 7.5% p.a. from the date of filing of the claim petition till it is actually paid. 15) The judgment relied on by the learned counsel for the respondent in the case of New India Assurance Co. Vs. Charlie and another, supra, is distinguishable on facts of the case, ratio of which cannot be applied to the facts of the present case. That was a case where entire income of the injured was from agriculture and in those facts, quantum of compensation was reduced from Rs.4,28,825/- to Rs.3,50,000/-. The facts in the aforesaid case are entirely different. 16) So far as the judgment of the Supreme Court in R.D. Hattangadi supra cited by the learned counsel SBCMA NO.1194/1999. 10 for the appellant is concerned, that was a case in which the injured, who sustained 100% disability, was practicing advocate and was also previously the Judge of the Civil Court untill he resigned in 1964. He also used to appear in various courts including the High Court and Apex Court but due to the accident, he become disabled and was not in a position to practice. In those facts, Supreme Court thought it proper to enhance the quantum of compensation of Rs.1,50,000/- awarded by the High Court on the head of pain and suffering and another Rs.1,50,000/- in respect of loss of amenities of life. The appellant in the present case was not regularly employed though he asserted that he was driver but he did not prove his regular income of driver. 17) In such a fact situation and in consideration of those facts in respect of loss of amenities of life, the impugned-award deserves to be enhanced. 18) In the result, the appeal is allowed. 19) It is directed that amount of compensation of Rs.70,000/- awarded by the Tribunal on the head of attendant, transportation and nutritious diet is enhanced to Rs.1,00,000/- while the award of the Tribunal towards other heads is maintained. There shall be no order as costs. (MOHAMMAD RAFIQ), J. anil/-