AO/252/2009 of VIRENDER SINGH @ VEERU Vs PRAMOD KUMAR GUPTA and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal From Order No.252 of 2009

Virender Singh @ Veeru

…..Appellant

Versus

Parmod Kumar Gupta

….Respondents

Present:

Mr. D.S. Mehta, Advocate for the appellant Mr. Prabhat Pande, Advocate for respondent no.2

Dated: 22.06.2018

Hon’ble Lok Pal Singh, J.

This appeal is directed against the judgment and award dated 30.04.2009 passed by Motor Accident Claims Tribunal/Ist F.T.C., Nainital in M.A.C. No.61 of 2006, whereby the Tribunal has partly allowed the claim petition and has granted sum of ` 1,13,000/- as compensation to the claimant/injured against the National Insurance Company Ltd. along with interest @ 6% per annum from the date of filing of the claim petition till the date of its realization.

2. Brief facts of the case are that on 15.12.2005 Virendra Singh @ Veeru (claimant/injured) was going from Gandhinagar Bindukhatta towards Pantnagar on his cycle very slowly and cautiously and on his left side. When the claimant/injured reached Nagla crossing at about 12:45 pm, truck bearing no.UP-25/T/5628, being driver by its driver very rashly and negligently, and coming from Lalkuan towards Kichha side, dashed the claimant/injured resulting which the claimant along with his cycle fell down. His left arm got crushed and he fainted on spot.

Immediately after the said incident, the claimant/injured was brought to the Hospital for treatment where he was admitted. On 08.01.2006, he was referred to Dr. Susheela Tiwari Hospital, Haldwani where he remained admitted till 08.02.2006. Amputation of left arm of the injured was done on 15.12.2005. The claimant/injured contended that he was healthy and hard working person and due to amputation of his left arm and the injuries sustained by him in the accident, he is not able to do his work now. With these averments, claimant/injured filed the claim petition claiming sum of `12,00,000/- as compensation along with interest @ 18% per annum from the date of accident till the date of actual payment.

3. Opposite party no.1, owner of the offending vehicle, contested the case and filed his written statement. In the written statement, he admitted the accident but denied rest of the averments made in the claim petition due to lack of information. He further stated that the driver was having valid driving license on the relevant date and time and that the vehicle was insured with the National Insurance Company Ltd.

4. Opposite party no.3, driver of the offending vehicle, also filed his written statement. He contended that on the relevant date and time, he was possessing valid and effective driving license. He was not driving the vehicle rashly and negligently. According to him, said accident occurred due to fault of injured.

5. Opposite party no.2, Insurance Company, also filed its written statement and contended that the claim petition is not maintainable as information was not furnished to it as per section 158(6) and 134(c) of the Motor Vehicles Act. It is further alleged that the alleged accident had taken place due to own negligence of the claimant, therefore, claimant is not entitled for any compensation and the claim petition is liable to be dismissed.

6. On the basis of pleadings of parties, the Tribunal framed the following issues: Tribunal framed the following issues:

i)Whether on 15.12.2005 due to rash and negligent driving by driver of truck no.UP-25/T/5628 the accident took place in which the claimant Virendra Singh @ Veeru sustained injuries? negligent driving by driver of truck no.UP-25/T/5628 the accident took place in which the claimant Virendra Singh @ Veeru sustained injuries?

ii)What amount of compensation the claimant is entitled for in respect of the injuries? is entitled for in respect of the injuries?

iii)Whether opposite party no.2 is not liable to pay compensation, as contended in written statement? pay compensation, as contended in written statement?

iv)To what amount of compensation, if any, the claimant is entitled for? claimant is entitled for?

7. Thereafter, parties led their oral and documentary evidence. On behalf of claimant, PW1 Birendra Singh @ Beeru and PW2 Balwant Singh were examined. No evidence was led by the opposite party.

8. After hearing the parties and upon perusal of entire evidence, learned Tribunal passed the impugned judgment and award, as above.

9. Neither the owner of the offending vehicle nor the National Insurance Company Ltd. has filed the appeal against the findings recorded by the Tribunal in judgment and award dated 30.04.2009. The claimant/injured has filed the present appeal, challenging the impugned judgment and award, for enhancement of compensation. Thus, the sole controversy before this Court is whether the compensation granted by the Tribunal is on lower side in the facts and circumstances of the case.

10. The Tribunal has dealt with this aspect in issue no.2 and has recorded finding that due to the accident the claimant/injured has suffered 90% permanent disability and his left arm was amputated from shoulder. The Tribunal has awarded ` 50,000/- towards medical expenses, ` 50,000/- towards loss of beauty, ` 8,000/- towards two months’ salary and ` 5,000/- towards mental pain and agony and, under all heads, the Tribunal has granted ` 1,13,000/- to the claimant/injured.

11. Learned counsel for the appellant would submit that the claimant/injured has suffered permanent disability of 90% and his left arm was amputated from shoulder, but the Tribunal while determining compensation, has not taken into account this fact and has not awarded single penny towards loss of future earning. To buttress his argument, learned counsel has placed reliance upon judgment of Hon’ble Apex Court in the case of Basappa vs. T. Ramesh and another reported in (2014) 10 SCC 789.

Para-14 of the said judgment is relevant which is extracted hereunder:

“14. For the purposes of calculating the compensation, the formula contained in Note (5) of the Second Schedule to the Motor Vehicles Act, 1988 is to be applied which is as under:

“5. Disability in non-fatal accidents.- The

following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:

Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks. PLUS either of the following-

(a) In case of permanent total disablement the

amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement

such percentage of compensation which would have been payable in the case of permanent total disablement as specified under Item (a) above.

Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning cacpacity shall be as per Schedule I under the Workmen’s Compensation Act, 1923.”

12. Per contra, learned counsel for respondent no.2 – National Insurance Company Ltd. supports the impugned judgment and award of the Tribunal. He refers to judgment of Hon’ble Andhra Pradesh High

Court in the case of New India Assurance Co. Ltd. and anther vs. Anna Ramprasad and another reported in 2017 (4) T.A.C. 122 (A.P.) and has relied on para-17, which reads as under:

“17. It is the duty of the doctor or the claimant to lead evidence to show that the percentage of permanent disability is with reference to the whole body than to particular limb. When disability certificate states that the injured has suffered permanent disability to an extent of 20 per cent of the left lower limb, it is not the same as 20 per cent permanent disability with reference to the whole body. The extent of disability of limb or part of the body expressed in terms of percentage of the total function of that limb, obviously cannot be assumed to be the extent of disability of the whole body.” evidence to show that the percentage of permanent disability is with reference to the whole body than to particular limb. When disability certificate states that the injured has suffered permanent disability to an extent of 20 per cent of the left lower limb, it is not the same as 20 per cent permanent disability with reference to the whole body. The extent of disability of limb or part of the body expressed in terms of percentage of the total function of that limb, obviously cannot be assumed to be the extent of disability of the whole body.”

13. Reliance has further been placed by the learned counsel for the respondent no.2 on judgment of Hon’ble Allahabad High Court in the case of Sunil Kumar vs. Smt. Jasvinder Kaur and another reported in 2013 (1) TAC 140. Paragraphs relied by learned counsel reads as under:

“5. As regards the permanent disability of the appellant, in the alleged disability certificate it is not specifically mentioned that whether the alleged disability is permanent disability or partial disability or total permanent disablement. It has also not been shown that 40% disability refers to eth whole body of the appellant. In this connection, it is important to note the following observations of the Supreme Court given in para 7 and 8 of case of Raj Kumar vs. Ajay Kumar and Another.

7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to particular limb. When disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to expressed by the Doctors with reference to the whole body, or more often than not, with reference to particular limb. When disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to

the whole body. The extent of disability of limb (or part of the body) expressed in terms of percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.

8. Where the claimant suffers permanent disability

as result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, particular extent (percentage) of permanent disability would result in corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that

percentage of loss of earning capacity as result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).”

14. No specific issue, in regard to permanent disability of the injured, has been framed by the trial court but as proceedings u/s 173 of M.V. Act are summary in nature, it makes no difference if particular issue has not been framed. Left arm of the claimant/injured has been amputated from shoulder. To substantiate this fact, claimant has produced on record certificate issued by the Medical Officer, which has been countersigned by the Chief Medical Officer, Nainital, which indicates that claimant has suffered 90% permanent disability. Insofar as the income of the claimant is concerned, he got examined himself as P.W.1 and has deposed that he was working as domestic servant and was earning Rs.4,000/- per month but he did not file any evidence in support of his income before the Tribunal. This Court in the case of Ram Kumar Kashyap & Ors. Vs. Kailash Prasad Kudiyal & Ors. (A.O. No.225 of 2009), decided on 07.12.2017 has observed that where income of the injured or deceased could not be proved, his/her income may be determined on the basis of minimum wages fixed by the State Government. In the said case, this Court further observed that under the MNREGA Scheme, 20 days employment is mandatory to be provided to every adult residing in village @ ` 150 per

day, and on the basis of the same, this Court assessed notional income of the deceased @ ` 4,500/- per month, meaning thereby, ` 54,000/- per annum. Taking the same view, monthly notional income of the claimant/injured Virendra Singh is assessed as ` 4500/- per month, as such, the annual income would be ` 54,000/-. The claimant has suffered 90% permanent disability. In this way, annual loss of dependency comes to `48,600/- Further, there is no document or evidence so as to substantiate the age of claimant/injured. In the claim petition and medical prescriptions and bill, age of the claimant is shown as 18 years. As per Sarla Varma vs. Delhi Transport Corporation and another, 2009 ACJ 1298, for the age groups of 15 to 20 and 21 to 25 years, multiplier of ‘18’ would be applicable. Adopting multiplier of ‘18’, annual loss of dependency would be assessed as ` 8,74,800/-. Besides above, the claimant is further entitled for `50,000/- towards the expenses incurred on medical treatment and `50,000/- towards pain and suffering.

15. In view of the above, compensation and damages are reassessed as under:

16. Compensation has been awarded by the tribunal alongwith 6% interest from the date of filing of the claim petition till the date of its realization.

Findings recorded by the tribunal in grant of interest are not being upset. Therefore, the aforesaid compensation and damages, as re-assessed by this Court, shall carry the interest @ 6% per annum as awarded by the trial court.

17. In view of the aforesaid discussion, appeal is allowed. The claimant shall be entitled to get compensation @ ` 9,74,800/- from respondent no.2- National Insurance Company Ltd. alongwith 6% interest per annum from the date of filing the claim petition till the date actual payment is made. The amount already paid by the Insurance Company, if any, shall be adjusted.

No order as to costs.

Rajni

(Lok Pal Singh, J.)

22.06.2018