1. Heard Mr. S. G. Shukla, learned Counsel for the Appellant and Mr. S. D. Sirpurkar, learned Counsel for the Respondent No.2. None appeared for the Respondent Nos.1 and 3, though served.
2. In the present Appeal, Original Claimant, who has filed injury claim before the Motor Accident Claims Tribunal, Bhandara, has assailed the Judgment and Award dated 1/10/2013 passed by the Tribunal in MACP No. 161/2010, on the ground that the learned Tribunal failed to assess the compensation in right perspective, and therefore, seeks enhancement of compensation in the matter.
3. In the present Appeal, neither the Cross Objection nor independent Appeal has been filed by the Respondent/Insurance Company to challenge the impugned Judgment and Award of the Tribunal. In view of this fact, it is clear that in the accident the Appellant caused grievous injuries and vehicle was duly insured with the Respondent/Insurance Company. So also there is no dispute about the terms and conditions of the policy. The only issue involved in the present Appeal is regarding enhancement of compensation. Hence, there is no need to go into the various aspects which were properly dealt with by the learned Tribunal in the matter.
4. Considering the issue about entitlement of enhanced compensation, firstly it will be necessary to scrutinise certain factual aspects which are not disputed in the matter.
5. The Appellant was Mechanical Engineer holding Diploma in Mechanical Engineering. He was serving as Foreman in Sunflag Iron & Steel Company Limited, Bhandara Road since the year 2005-06. His monthly salary was Rs.37,071/- including other allowances. According to the Appellant, his job in the Company was in the plant where he has to supervise the work, and therefore, required to move from one place to another continuously.
6. On 20/5/2010 when the Appellant was returning to his house along with one Dhananjaykumar Chaudhari, who was pillion rider on his motor-cycle bearing registration No. JH-05/J-3779, the offending vehicle i.e. Tipper Truck bearing registration No. MH-31/CQ-3803 came from opposite direction and dashed to his motor-cycle, due to which, motor-cycle was turned turtle. In the said accident, he received grievous injuries. Thereafter he was immediately shifted to General Hospital, Bhandara and then referred to the Suretech Hospital and Research Center, Nagpur, where, he was admitted from 20/5/2010 to 16/6/2010. He was not properly recovered due to crush injuries to his both legs. Hence, his both legs have been amputated from thighs. He was further admitted to Laksha Hospital, Bhandara, where he has taken the treatment of Dr. Gopal Vyas, Orthopaedic Surgeon for the period from 17/6/2010 to 2/8/2010. He was required to implant artificial limbs, due to amputation of both legs.
7. In view of this, it is the submission of Appellant that he caused 100% permanent disability and thereby caused 100% loss of earning capacity. The Appellant further stated that his whole family is dependent upon him and due to this accident, he lost his job and thereby claimed the compensation of Rs.85,04,000/- under the various heads including loss of earning, expenses towards medical treatment, cost of artificial limbs/legs, other treatment and towards pain and suffering.
8. The Respondent/Insurance Company appeared before the Tribunal and filed written statement. In the written statement, it was their general defence that accident occurred because of negligence of Appellant himself. According to them, the Appellant did not cause 100% disability as alleged by him and further the compensation which he has claimed is exorbitant.
9. In the background of abovesaid factual aspect, the Appellant, in support of his claim, has examined five witnesses including himself. He has examined Dr. Gopal Satyanarayan Vyas, Medical Officer, General Hospital, Bhandara (AW-2), who was Orthopaedic Surgeon. However, no one has entered into the witness-box on behalf of the Insurance Company to prove their defence nor any independent witness was examined.
10. The witness namely, Dr. Gopal Vyas has stated on oath that the Appellant was under his treatment for the period from 17/6/2010 to 2/8/2010. According to him, he had confirmation that there was a hip articulation on right side with knee amputation on left side of the Appellant. According to him, the Appellant has caused 100% permanent disability due to the accident, and therefore, he has issued the disability certificate (Exh.41) to him. He has further stated that the Appellant can move only with support. He cannot walk, run or climb the staircase and cannot do any manual work.
11. The Appellant has then examined one Satish Ramkeshav Shrivastav (AW-3), who was Assistant General Manager in Sunflag Iron and Steel Company Limited, Bhandara Road, whereby he has proved that Appellant was working in the Company on the post of Foreman since 7/4/2006 and his services are terminated after the accident. He stated that Appellant has rendered only four years service, therefore, he was not entitled to receive pension from the Company. Towards provident fund only Rs.1200/- will be paid. At the time of termination, the Company has given him lumpsum compensation of Rs.1,00,000/-. He further stated that due to only four years of service, the Appellant was also not entitled for gratuity. This witness stated that towards medical treatment, Company has reimbursed Rs.4,00,000/- to the Appellant.
12. The Appellant has also examined one Abhinav Ashokkumar Tripathi (AW-4), who was working as a Center Manager in Indobite India Company Limited, which is the Company involved in providing artificial body parts (limbs) of human body. According to him, two artificial legs have been provided to the Appellant and same are proved along with its price.
13. Lastly, the Appellant has examined Dr. Krupesh Parmanand Ghate (AW-5), who was working as Deputy Medical Superintendent in Suretech Hospital, Nagpur. He deposed before the Tribunal that during the hospitalisation of the Appellant, 22/5/2010 his left lower limb above knee was amputated and on 25/5/2010 his right lower limb was amputated, accordingly, two separate certificates were issued to him and same were confirmed by him.
14. On the basis of this evidence, which the Appellant has brought on record, the learned Tribunal decided the Claim Petition. The learned Tribunal in the impugned Judgment categorically observed that the Appellant proved that he sustained injuries as alleged in the accident and same were caused due to rash and negligent driving of the offending vehicle. It is further held that the Appellant is not responsible for accident nor he was negligent in any manner.
15. The Tribunal further referred the salary of the Appellant as Rs.35,301/- per month. Accordingly his annual income was Rs.4,23,612/-, but contrary to the settled principles of law by deducting the amount towards income tax Rs.9068/- and professional tax of Rs.2500/- hold that his salary is to be considered Rs.4,12,044/- per annum. The Tribunal further recorded that though both the legs were amputated, same does not result in loss of 100% earning capacity. According to him, percentage of permanent disability is required to be considered with reference to the whole body of a person and amputation of both the legs cannot be treated as 100% loss of earning capacity. Accordingly, the Tribunal has held the loss of earning capacity of the Appellant not more than 20%. Accordingly, the learned Tribunal has done the calculation of compensation to the Appellant as under:
| (a) | Loss of earning | Rs.85,842/- |
| (b) | Loss of future earning and 20% of annual income. | Rs.82,408/- |
| (c) | Multiplier applicable 16 (82408 x 16) | Rs.13,18,528/- |
| (d) | Medical expenses for purchasing artificial limbs | Rs.3,25,000/- |
| TOTAL | Rs.18,11,778/- |
(a) Pappu Deo Yadav V/s Naresh Kumar and Others, (2022) 13 Supreme Court Cases 790;
(b) Oriental Insurance Company Limited V/s Mohd. Nasir and Another, (2009) 6 Supreme Court Cases 280;
(c) National Insurance Company Limited V/s Pranay Sethi and Others, (2017) 16 Supreme Court Cases 680;
(d) Kajal V/s Jagdish Chand and Others, (2020) 4 Supreme Court Cases 413;
(e) Kavin V/s P. Sreemani Devi & Ors. Civil Appeal Nos.3132-3133 of 2023;
(f) S. Manickam V/s Metropolitan Transport Corporation Limited, (2013) 12 Supreme Court Cases 603; and
(g) Lalan D. Alias Lal and Another V/s Oriental Insurance Company Limited, (2020) 9 Supreme Court Cases 805.
17. Before adverting to the merits of the matter, particularly in the light of seeking enhancement of compensation, it will be necessary to note down that while assessing motor vehicle accident compensation claims the attempt has to be made to place the victim in as near a position as he/she was in before the accident, with other compensatory directions for loss of amenities and other payments. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered loss at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. While determining the quantum of compensation, one has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would otherwise enjoyed, but because of the injuries and his disability he is deprived from enjoying the amenities. So also due to such serious injuries the physical limitations and disabilities, that too, often inflicts deep mental and emotional scars upon the victim. From the world of able-bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. Therefore, if the courts are not sensible while determining the compensation amount, same is nothing but insult of the injured victim. Hence, the quint-essentiality lies in the pragmatic computation of the loss sustained is to be determined in the realm of realistic approximation. Section 168 of the Motor Vehicle Act, 1988, therefore, intentionally stipulates that there should be “just compensation”. It should not be a pittance but should be in the light of injuries sustained to the person, who was not responsible for accident.
18. In the light of this legal position and the case laws, which the Appellant has relied upon, he has claimed the compensation under the heads, viz – loss of earning during the medical treatment; loss of future earning; loss of future prospect; compensation towards permanent disability; cost of artificial limbs; medical expenses; pain and suffering; future medical treatment expenses; cost of attendant; and loss of expectation of life and amenities.
19. In this regard, it will be useful to first refer the Judgment of the Hon’ble Supreme Court of India in the case of Rajkumar V/s Ajay Kumar and Another, (2011) 1 SCC 343. In the said Judgment, the Hon’ble Supreme Court has held that while assessing the permanent disability of the victim, it is necessary for the Court to – (i) firstly, ascertain what activities the Claimant could carry on in spite of the permanent disability and what he could not do as a result of permanent disability; (ii) secondly, it is also necessary to ascertain his avocation, profession, nature of work before accident, as also his age; and (iii) thirdly, the Court has to verify whether the Claimant is totally disabled from earning any kind of livelihood, or whether in spite of the permanent disability, the Claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or whether he was prevented or restricted from discharging his previous activities and functions and after verifying these aspects, the Court should compute his entitlement towards the loss of his income.
20. In the same Judgment, the Hon’ble Supreme Court has also held that the victim is also entitled for the compensation for loss which he caused during the period of treatment. As such, under the head of loss of earning capacity during the period of medical treatment and loss of future earning, law laid down by the Hon’ble Supreme Court in the case of Rajkumar (supra), is squarely applicable in the present matter. Therefore, I have recorded my findings under two heads, viz – Loss of earning during the period of treatment and Loss of future earning on account of permanent disability as under :
LOSS OF EARNING DURING TREATMENT
21. The Appellant, by examining Satish Ramkeshav Shrivastav (AW-3), the Assistant General Manager of Sunflag Iron and Steel Company, Bhandara Road has established that the Appellant was receiving monthly salary of Rs.37,071/- at the time of accident and the learned Tribunal has determined month salary of the Appellant Rs.35,301/-. Here the Appellant himself stated during the course of argument that his salary should be considered at the rate of Rs.35,301/- per month. According to me, the deduction done by the learned Tribunal towards the professional tax is not permissible as per the settled principles of law. Hence, considering his salary of Rs.35,301/- per month, the same comes to Rs.4,23,612/- per annum.
22. In the present matter, it is admitted fact that the Appellant essentially admitted in the Hospital for the period from 20/5/2010 to 16/6/2010 and thereafter from 17/6/2010 to 2/8/2010. As such, for total 73 days he was hospitalised. Hence, he lost earning during the period of 73 days, and therefore, he is entitled for the amount of Rs.85,842/-.
LOSS OF FUTURE EARNING
23. Admittedly, in the present matter, while considering the loss of future earning, it will be necessary to consider the provisions of the Motor Vehicles Act, 1988 as well as Employee’s Compensation Act, 1923. The Appellant has pointed out during the course of argument that in view of Schedule-II of Motor Vehicles Act, the provisions of Employee’s Compensation Act, 1923 are relevant to consider the disablement/permanent partial disablement by referring the Schedule-I of the Employees Compensation Act. In support of this, the Appellant has relied upon the Judgment of Hon’ble Supreme Court of India in the case of Oriental Insurance Company V/s Mohd. Nasir and Another (supra), wherein the Hon’ble Supreme Court in paragraph No.28 has observed as under :
“28. The 1923 Act would also be applicable to the claims applications arising out of the use of motor vehicles in terms of the provisions of the 1988 Act for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview thereof. The note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that “injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen’s Compensation Act, 1923.” Permanent disability, therefore, for certain purposes have been co- related with functional disability. ‘
24. In the light of this legal position, I have perused the Schedule-I of Employee’s Compensation Act, 1923. Part-I of the Schedule-I shows “LIST OF INJURIES DEEMED TO RESULT IN PERMANENT TOTAL DISABLEMENT”. At Sr. No. 3 of the said list of injuries, it is stated that, ‘Double amputation through leg or thigh on one side and loss of other foot amount to 100% loss of earning capacity’. Therefore, considering this provision it is clear that the Appellant caused 100% permanent disability.
25. Now the question arose in view of law laid down in the case of Rajkumar (supra) that, how the said permanent disability caused loss to his earning capacity; what was his earning before the accident; and whether he can earn any kind of livelihood after the accident. Therefore, to ascertain this fact, the evidence which came on record is required to be considered. Here the Appellant has established on record that due to permanent injury caused to him, he lost his job and presently he is not in a position to carry his work. This evidence of the Appellant was also supported by further evidence of Dr. Gopal Vyas, who has also stated that the Appellant is not in a position to move, climb the staircase, run or walk properly due to the amputation of both the legs.
26. The Appellant has examined one Satish Shrivastav, Assistant General Manager of Sunflag Iron and Steel Company Bhandara Road, Nagpur who has categorically stated that due to the injury caused to the Appellant, he is not in employment and further due to rendering service of four to five years only, he was not paid the gratuity and other pensionary benefits. So also no other evidence has been brought on record by either of the Respondent that after amputation of both the legs of the Appellant, he is doing any work independently after the accident. It is, however, pertinent to note that due to artificial limbs, Appellant can move from one place to another, may be not like a normal person, but to some extent artificial limbs are helpful to him. So also his hands and other parts of the body were not affected in the accident. Hence, considering the fact that Appellant being a Mechanical Engineer, in my opinion, his functional disability can be considered 60% in the facts and circumstances of the present matter.
LOSS OF FUTURE PROSPECT
27. The Appellant has pointed out from the Judgment of the Hon’ble Supreme Court of India in the case of Pappu Yadav (supra), wherein the issue was under consideration whether in cases of permanent disablement incurred as a result of motor accident, the Claimant can seek, apart from compensation for future loss of income, amount for future prospects too. The Hon’ble Supreme Court has answered this issue by holding that in addition to loss of future earning, the Claimant is entitled for future prospect. In this regard, the finding of the Hon’ble Supreme Court in paragraph No.7 and 12 are as under:
“7. Two questions arise for consideration: one, whether in cases permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and two, the extent of disability. On the first question, the High Court no doubt, is technically correct in holding that Pranay Sethi involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three-Judge Bench decision in Jagdish was not binding, but rather than the subsequent decision in Anant to the extent that it did not award compensation for future prospects, was binding. This Court is of the opinion that there was no justification for the High Court to have read the previous rulings of this Court, to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases – and admits such possibility of future prospects, in case of the victim’s death.
12. In view of the above decisive rulings of this Court, the High Court clearly erred in holding that compensation for loss of future prospects could not be awarded. In addition to loss of future earnings based on a determination of the income at the time of accident, the appellant is also entitled to compensation for loss of future prospects, @ 40% (following the Pranay Sethi principle).”
28. Hence, I am of the opinion that Appellant is entitled for the loss of future prospects of 40% as per the law laid down by the Hon’ble Supreme Court in the case of National Insurance Company V/s Pranay Sethi & Ors. (2017) 16 SCC 680.
COMPENSATION TOWARDS ATTENDANT CHARGES
29. As per the evidence brought on record, it is clear that there was amputation of both legs of the Appellant, and therefore, he could not work as a normal person for his whole life. So also from the date of accident he was under the care of his family members and till life-time his family members would require to attend him by giving some sort of help in the nature of attendance. However, the issue raised before me that as to whether in such circumstances the Appellant is entitled for lumpsum compensation towards attendant charges or by applying multiplier.
30. In this regard, the Appellant has relied upon the Judgment of Kajal V/s Jagdish (supra), wherein the Hon’ble Supreme Court has held that 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. In this regard, there is a specific observation in paragraph No.22 as under :
“22. Attendant charges – The attendant charges have been awarded by the High Court @ Rs.2500/- per month for 44 years, which works out of 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. 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.”
31. In my opinion, Appellant in the present case is not in vegetative state. Due to implantation of artificial limbs, he can take his care and only for certain time he will require attendance. In view of this, Appellant is entitled for attendant charges by way of lumpsum amount.
COST OF ARTIFICIAL LIMBS AND MAINTENANCE
32. It is undisputed fact that in view of artificial limbs, now the Appellant has to carry the same for life-time. It is not expected that artificial limbs which are implanted will be for life-time, there may be chances that in future the Appellant may require maintenance of artificial limbs. But, as per the settled principles of law he cannot again approach before this Court to claim the compensation for the same. Hence, once he approached before this Court, this contingency is required to be taken into consideration by the Court, and therefore, in my opinion, he is entitled for the said compensation towards requirement of maintenance of artificial limbs and future expenses accordingly.
PAIN AND SUFFERING
33. In this regards, the Honb’le Supreme Court in the case of K. S. Muralidhar v/s R. Subbulakshmi and Another, 2024 SCC OnLine SC 3385 has elaborately considered how the compensation is to be awarded under the head of pain and suffering. The Hon’ble Supreme Court has held that while compensation is to be awarded under this head, the special circumstances of the Claimant have to be taken into account including his age, unusual deprivation he has suffered, the effect thereof on his future life etc. Hence, in the present matter, after considering the fact that at the time of accident the Appellant was aged about 39 years, the normal living age of the person is about 70 to 75 years of age and due to loss of both the legs, it is clear that he will not be in a position to enjoy the normal life as like a normal person and he will be deprived from amenities or enjoyment of his future life. Therefore, considering the fact that Appellant is now become disabled person and will have to live the life as a disabled person, in my opinion, he is entitled for compensation under the head of pain and suffering.
34. Hence, in my view, the Appellant is entitled for compensation as under:
| 1. | Annual Income of the Appellant.(Rs.35301/- x 12) | Rs. | 4,23,612/- |
| 2. | Add – 40% future prospects as per the Judgment of National Insurance Co. Ltd. V/s Pranay Sethi (2017) 16 SCC 680. | (+) Rs. | 1,69,444/- |
| 3. | Pecuniary lossMultiplier of 15 as per the Judgment of Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 12. (5,93,056/- x 15) | (+) Rs. | 88,95,840/- |
| 4. | Appellant’s entitlement, by applying 60% functional disability, to the compensation of 60% of 88,95,840/-. | (+) Rs. | 53,37,504/- |
| 5. | Loss of earning during the medical treatment. | (+) Rs. | 85842/- |
| 6. | Cost of artificial limbs and maintenance | (+) Rs. | 5,00,000/- |
| 7. | Future medical treatment expenses | (+) Rs. | 1,00,000/- |
| 8. | Pain and Suffering, Loss of amenities etc. | (+) Rs. | 5,00,000/- |
| 9. | Attendant charges | (+) Rs. | 5,00,000/- |
| 10. | Loss of Expectation of Life | (+) Rs. | 2,00,000/- |
| 11. | Compensation for permanent disability. | (+) Rs. | 3,00,000/- |
| Total compensation payable to the Claimant | Rs. | 75,23,346/- | |
| LESS : Compensation granted by the Tribunal Enhanced amount of compensation | (-) Rs.Rs. | 18,11,778/-57,11,568/- |
ORDER
(1) First Appeal is partly allowed.
(2) The Judgment and order dated 1/10/2013 passed by the Motor Accident Claims Tribunal, Bhandara in MACP No. 161/2010 is modified to the extent that, Appellant is entitled for compensation of Rs.75,23,346/- along with interest at the rate of 7.5% per annum from the date of filing Claim Petition till its realisation.
(3) Needless to mention that amount awarded by the Motor Accident Claims Tribunal, Bhandara, if deposited and withdrawn by the Appellant, same shall be deducted from the enhanced amount.
(4) The Respondent/Insurance Company is directed to deposit the enhanced compensation within a period of three months from the date of this order.
(5) After depositing the enhanced compensation by the Respondent/ Insurance Company, Appellant is entitled to withdraw the same, subject to satisfaction of the Registrar (Judicial) of this Court.
(6) No order as to costs.