Case: Narendra Singh Vs. Nishant Sharma & Another

1 .Leave granted. 2. This appeal has been filed by the appellant questioning the correctness of the judgment dated 2nd January, 2012 passed in S.B. Civil Misc. Appeal No. 543 of 2005 by the High Court of Rajasthan at Jodhpur in marginally increasing the award dated 19th November 2004, passed by the M.A.C.T. Jaipur City (hereinafter called as the Tribunal) in MAC Petition No. 93/04 (122/2000) urging various facts and legal contentions in support of his claim made in this appeal. 3. Necessary relevant facts are stated hereunder to appreciate the case of the appellant and also to find out whether the appellant is entitled for the relief prayed for in this appeal. The appellant Narendra Singh, on the fateful day of 10.10.1998 at around 8 p.m., was going along with Respondent no. 1 Nishant Sharma, from Vidyut Nagar on scooter bearing Registration no. RJ 14 20M 1120, as a pillion rider, to see the Javier Fair. When they crossed the Sushilpura Culvert, the scooter slipped on account of negligence and careless driving by the Respondent no. 1. The appellant fell down and as a consequence, suffered grievous injuries and finally had to get his right leg amputated after operation conducted on him on 24.10.1998. The appellant had to be operated three more times along with plastic surgery on the amputated leg. On 19.2.1999, the Director of Rehabilitation Centre of Jaipur issued a disability certificate to him at 60% under Rule 2 of Rajasthan Employment of the Physically Handicapped Rules, 1975. The appellant filed claim petition before the Tribunal claiming a sum of Rs. 10,00,000/- as compensation and led evidence. Respondent no. 1, the owner and driver of the vehicle, did not respond in spite of sufficient service of notice. Respondent no.2, the Insurance Company with whom the vehicle was insured however, took technical and formal objection though it did not lead evidence. Respondent no. 2 claimed that the appellant has neither lodged an FIR nor filed a complaint in the Criminal Court regarding accident against the scooter driver. Respondent no. 2 further claimed that the scooter driver was holding valid driving license on the date of accident, is not proved by the appellant. Even the intimation of the accident was not given to the Insurance Company which is in violation of the insurance policy.4. The appellant examined himself as AW-1, an eye-witness - Subhash as AW-2 and Dr. M.P. Goyal as AW-3 and also exhibited documents Exts-1 to 152 in support of his claim. The Respondent no. 2 on the other hand, examined Respondent no. 1 as NAW-1, one Badri Prasad as NAW-2 who recorded the statements of the appellant and respondent no.1 and obtained the rojnamcha report regarding accident and Amar Singh as NAW- 3, who claimed that he was refused to record the report regarding the accident and also exhibited documents Exts. AN-1 to AN-4. 5. On the basis of the pleading of both the parties, the Tribunal framed issues regarding negligence, liability of the insurance company to pay compensation and also the quantum of compensation to be paid by the insurance company, if the claim is proved by the appellant. The Tribunal, after perusing the fact and evidence on record, found Respondent no.1 guilty of rash and negligent driving which caused the accident resulting in grievous injuries sustained by the appellant, on account of which amputation of his right leg was got done. This finding by the Tribunal has neither been challenged by the insured nor by the insurance company by adducing evidence and it has attained finality. We therefore, wish to confine ourselves to examine as to whether the quantum of compensation is adequate or not and the compensation awarded is as per facts, legal evidence on record and settled principles of law laid down by this Court.6. The Tribunal has observed that the appellant has suffered 60% disability as a result of the accident. His right leg had been amputated upto 3 and = inches below the knee due to infection caused by multiple operations after the accident. The appellant will be requiring artificial limb for his mobility for the rest of his life. Consequently, the chances of getting employment have also been reduced substantially. The learned counsel on behalf of the appellant urged that the appellant was a student at the time of the accident. It was also urged by the learned counsel that he was earning Rs. 2000/- per month by giving tuitions. However, the appellant could not prove the same. On the other hand the learned counsel appearing on behalf of Respondent no.2 urged that compensation in terms of loss of income could not be awarded to the appellant since his claim of earning Rs. 2000/- per month is not supported by evidence on record. The Tribunal, without relying on facts and evidence on record and the settled principle of law, held that since the permanent disability of the appellant is assessed at 60%, he shall be awarded a sum of Rs. 1,10,000/-. Further, on account of pain and suffering, an award of Rs. 5,000/-; for expenses incurred for going to hospital and nutrient diets, Rs. 5000/- and for medicinal expenses as per medicine bills produced in Exts-61 to Exts.-152, Rs. 8,900/- have been awarded to the appellant.7. Aggrieved by the meager compensation granted by the Tribunal, the appellant filed an appeal before the High Court. The High Court, after going through the evidence on record held that the Tribunal was wrong in not accepting the claim of the appellant that he was earning Rs.2000/- per month. Even as per Second Schedule, which was inserted in Section 163-A of the Motor Vehicles Act, 1988 by Act No. 54 of 1994, with effect from 14.11.1994, the notional income for compensation to non-earning persons who have no income prior to accident, has been accepted to be Rs.15,000/- per annum. In the present case, the High Court opined, that even if there were no evidence to prove that the appellant was earning Rs.2000/- by giving tuitions, the same has not been challenged by the respondent Company by adducing rebuttal evidence. Therefore, in the absence of rebuttal evidence, the appellants income ought to have been taken by the Tribunal at Rs.2000/- per month. Further, a multiplier of 17 on the basis of his age was taken following the ratio of the judgment of this Court in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121. Therefore, a sum of Rs. 2,44,800/- was awarded under the head of loss of future income. The award of Rs. 5,000/- by the Tribunal under the head of pain and suffering was increased to Rs. 50,000/- by the High Court but the award under other conventional heads were retained. Thus, a total sum of Rs. 3,08,700/- was awarded to the appellant by the High Court. The rate of interest of the compensation awarded was increased by the High Court to 7.5% from 6%, as awarded by the Tribunal as such. 8. The learned counsel on behalf of the appellant urged that this Court in similarly placed factual circumstances, in a two judge bench decision in the case ofKumaresh v. Divisional Manager, National Insurance Company Limited and Another (2011) 12 SCC 488 , where the claimant who had suffered from amputation of his right leg because of an accident was awarded as such: Rs.50,000/- for pain and sufferingRs.15,000/- for loss of income during treatment Rs.1,00,000/-for medical expenses for whole life Rs.3,00,000/-for loss of amenities and enjoyment of Life including loss of marital prospectsRs.50,000/- for conveyance chargesRs.50,000/- for food and nourishment But, in the present case, both the Tribunal and the High Court have awarded meager amount both under head of loss of future income as well as under the heads referred to supra.9. We have carefully examined the rival factual and legal contentions and perused the record with a view to award just and reasonable compensation. Since, the only issue before us is to determine the quantum of compensation; we answer the same, in favour of the appellant by enhancing the compensation by assigning the following reasons: The Tribunal had inadequately awarded a sum of Rs. 1,10,000/- under the head of loss of future income without assessing the earning of the appellant when he met with the accident. The High Court accepted the claim of the appellant that he was earning Rs. 2,000/- per month by giving tuitions. The appellant was 22 years old when he met with the accident. He has the whole life ahead of him. Though it is not clearly mentioned in the claim as to what subject he was pursuing in his higher studies, it will be prudent to assume that he would have become a skilled worker in the course of time. The minimum wage earned by a skilled worker can be taken as Rs. 7,000/- per month. We take the monthly salary of the appellant accordingly. Following the principle laid down in Santosh Devi v. National Insurance Company reported in 2012 (6) SCC 421 , we add 30% to prospective increase of future income he could have been entitled to in course of his work life. Thus, the total annual income would be Rs. 1,09,200/-. Again following the principle laid down in Sarla Vermas case (supra), we take the multiplier of 17 to calculate the amount of compensation the appellant is entitled to under the head of loss of future income and arrive at Rs. 18,56,400/-. 10. Regarding the percentage of disability, the learned counsel on behalf of the appellant produced Ex-1-the appellants permanent disability certificate, Ex-2- the Injury Report and Ex-3-X-Ray Report as documentary evidence to prove his permanent partial disablement. Further, A.W.3- Dr. M.P. Goyal, in his evidence stated that the appellant had suffered from fracture of his foot bone. As per his evidence, the first and second metatarsal bone had compound fractures. During treatment, his right leg was amputated below knee. On examination by operation it was found that 3 and = inches below his right knee stump was present and as a result 60% permanent disability was assessed. The doctor also deposed that the appellant will be having problem for daily work and that he will be required to use artificial limb. 11. The learned counsel for the Respondent no. 2-Insurance Company, on the other hand, relied upon the case of Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , to assert that 60% disability of the appellant as assessed by the Courts below is on the higher side and that 60% physical disability as assessed by the Director of Rehabilitation Centre, Jaipur, does not amount to 60% economic disability. The learned counsel further argued as per Ajay Kumar case, that the Tribunal should not have mechanically applied the percentage of disability of the appellant as a percentage of economic loss or loss of earning capacity. It was opined in that case that "when a disability certificate states that the injured has suffered permanent disability to an extent of 45% in the left lower limb, it is not same as 45% permanent disability with reference to the whole body". This Court opined, that in most of the cases, equating extent of loss of earning capacity to the extent of permanent disability will result in award of either too high or too low a compensation. In paragraph no. 12 of the said judgment, this Court had further opined that the Tribunal has to decide if there is any permanent disability so that future loss of income can be calculated and if so, to what extent. If there is no permanent disablement, then future loss of income shall not be calculated. Therefore, the Tribunal has to decide: i) Whether the disablement is permanent or temporary?ii) If the disablement is permanent, whether it is permanent total disablement or permanent partial disablement?(iii) If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person? 12. Though paragraph 12 of the said judgment favours the case of the appellant herein the test laid down in the case, stands incorrect on principle in the presence of the First Schedule of the Workmen Compensation Act, 1923. The permanent partial disability of the appellant is correctly assessed by both the Courts below at 60% permanent partial disablement as per Entry 19 of the First Schedule of the Workmen Compensation Act, 1923. This finding is neither challenged by the insured nor by the Insurance Company before the appellate Court by obtaining permission from the Tribunal as provided under Section 170(b) of the Motor Vehicles Act, 1988 to avail the defence available for the insured and contest the proceeding. Therefore, the appellant is entitled to only 60% of the loss of future income. Hence, the total amount of compensation under the head of loss of future income is Rs. 11,13,840/-. 13. Under conventional heads, following the decision of Kumaresh (supra), we award Rs. 50,000/- for pain and suffering since the appellant cannot walk, sit, squat or run freely and he is not able to live a normal life. We also award Rs. 1,00,000/- for medical expenses for whole life since he has to survive with artificial limb which might require replacement from time to time. Since the appellants leg is amputated below the knee, his chances of mobility reduce drastically. He will be deprived from attending social functions. His chances of getting married also get reduced to a great extent. Therefore, we further award Rs. 3,00,000/- for loss of amenities and enjoyment of life including loss of marital prospects and marital happiness. We also award Rs. 50,000/- for conveyance charges and cost of attendant in his old age since he will be requiring assistance for his basic chores as he grows old. And we also award Rs. 50,000/- for food and nourishment. Hence, in total, a sum of Rs. 16,28,840/- is awarded as compensation in favour of the appellant.14. Further, an interest at the rate of 6% per annum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High Court. The interest rates determined by both the Courts below are bad in law as per the legal principles laid down in Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy (2011) 4 SCC 481, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellants. Applying the same legal principles, we grant interest at the rate of 9% per annum on the compensation awarded by this Court.

Decision reasoning: 1[ds]13. Under conventional heads, following the decision of Kumaresh (supra), we award Rs. 50,000/for pain and suffering since the appellant cannot walk, sit, squat or run freely and he is not able to live a normal life. We also award Rs. 1,00,000/l expenses for wholelife since he has to survive with artificial limb which might require replacement from time to time. Since the appellants leg is amputated below the knee, his chances of mobility reduce drastically. He will be deprived from attending social functions. His chances of getting married also get reduced to a great extent. Therefore, we further award Rs. 3,00,000/for loss of amenities and enjoyment of life including loss of marital prospects and marital happiness. We also award Rs. 50,000/for conveyance charges and cost of attendant in his old age since he will be requiring assistance for his basic chores as he grows old. And we also award Rs. 50,000/for food andnourishment. Hence, in total, a sum of Rs. 16,28,840/is awarded as compensation in favour of the appellant.14. Further, an interest at the rate of 6% per annum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High Court. The interest rates determined by both the Courts below are bad in law as per the legal principles laid down in Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy (2011) 4 SCC 481, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellants. Applying the same legal principles, we grant interest at the rate of 9% per annum on the compensation awarded by this Court.