National Insurance Co. Ltd. vs Revabhai Punjabhai Vaghela and Others

H.K. Rathod, J.—Heard Mr. Mehul Sharad Shah, learned advocate appearing on behalf of appellant-National Insurance Company Ltd. The appellant-National Insurance Company has challenged award passed by Motor Accident Claims Tribunal at Ahmedabad in M.A. C. Petition No. 943 of 2004 dated 07.05.2008 Exh.40. The Claims Tribunal has awarded Rs. 1,69,960/- (Rupees One Lac Sixty Nine Thousand Nine Hundred Sixty Only) compensation with 9% interest in favour of respondent-claimant.

Learned advocate Mr. Mehul Sharad Shah raised contention that respondent claimant at the time of accident having age of 57 years and he was retired at age of 60 years. Therefore, 8 multiplier is on higher side at the most, it can be considered for 5 multiplier relying upon decision of this Court in 1993(2) GLR.1046 . He also raised contention that salary of claimant is taken by Claims Tribunal without taking authorized deduction as well as net pay and income tax were not taken into account. It is to be deducted from salary but is is not deducted by Claims Tribunal. Therefore, Claims Tribunal has committed gross error in considering entire gross pay of Rs. 13,668/- as per certificate produced by claimant. He relied upon decision of Apex Court in case of National Insurance Company Ltd. Vs. Indira Srivastava and Others, . The observations made by Apex Court in aforesaid decision in paragraph 22 suggests that net income has been used but same itself would ordinarily mean gross income minus statutory deductions. Therefore, he submitted that income tax which has been deducted while receiving aforesaid salary by claimant which comes to Rs. 1034/- has not been deducted by Claims Tribunal while calculating or working out compensation. Except that, no other submission is made by learned advocate Mr. Mehul Sharad Shah.

The accident occurred on 22.03.2004 when opponent claimant Revabhai was going on his cycle to his house on left side of road and at that time, driver of maruti car had suddenly taken in reverse without taking care to any person or pedestrians and dashed maruti car while taking reverse to opponent''s cycle as cyclist was behind maruti car and so, claimant had fallen down with his cycle and sustained grievous injures and was admitted in V.S. Hospital as an indoor patient for treatment. The total claim was made by claimant was Rs. 4,00,000/-. After receiving summons from Claims Tribunal Exh.23, reply was filed by Insurance Company before Claims Tribunal. According to reply, claim is highly excessive according to Insurance Company and except that no other contention is raised before Claims Tribunal in paragraph 2. The opponent Nos. 2 and 3 (original opponent Nos. 1 and 2) both have also filed reply vide Exh.17. Thereafter, issues are framed by Claims Tribunal vide Exh.26. The issue No. 1 negligence is decided in affirmative that opponent No. 1 driver was driving vehicle with rash and negligent manner and due to that rashness and negligence accident had occurred.

The question of quantum has been examined by Claims Tribunal on the basis of evidence of claimant vide Exh.35. The claimant has stated about facts of accident, fact of injuries, fact of income and also about facts of medical expenses. According to claimant, he had fracture in right leg and he was cross-examined by advocate of Insurance Company. The claimant stated that he was 57 years at the time of accident and he was serving in Telegraph Department and was getting salary of Rs. 14,000/- p.m. He also produced salary certificate vide Exh. 33 issued by General Manager, Telecom (East). The injury certificate vide Exh.37 and Exh. 34 were produced by claimant. The claimant has also produced disability certificate Exh.38. In the disability certificate, Dr. Aditya Upadhyay had narrated various complaints and had examined Revabhai Vaghela is having 27% permanent disability of lower limb and 13.5% of whole body. Thereafter, claimant has given pursis for reducing disability vide Exh.37 wherein both the parties agreed for 9% disability of claimant. Therefore, on point of disability, Claims Tribunal is not bound to consider certificate as final say of doctor. So far as income of claimant, salary certificate has been considered by Claims Tribunal where gross salary Rs. 13668/- and round figure is come to Rs. 14,000/-. so Claims Tribunal has considered Rs. 14,000/- income p/m X 9% disability comes to Rs. 1260/- and 8 multiplier for future loss of income has been granted. In all, it comes to Rs. 1,20,960/- for loss of future income, Rs. 14,000/- for actual loss of income, Rs. 10,000/- for pain, shock and suffering, Rs. 10,000/- for medical expenses. Rs. 10,000/- for transportation and special diet and Rs. 5,000/- for attendant charges.

Looking to aforesaid compensation worked out by Claims Tribunal, arguments made by learned advocate Mr. Mehul Sharad Shah that total gross salary is Rs. 13,668/- but while working out this compensation income tax Rs. 1034/- and statutory deduction must have to be deducted before considering gross salary of claimant. In failing to understand effect of such submission first of all this contention of submission was not raised by Insurance Company advocate before Claims Tribunal. It is duty of advocate of Insurance Company to raise such contention that while considering the income of claimant, statutory deduction must have to be deducted and then to work out the figure for compensation. So in entire award including written statement, nowhere such contention is raised by advocate of Insurance Company that before finalizing income, statutory deduction must have to be taken into account. Therefore, naturally, Claims Tribunal has not examined that issue at all and now to raise before this Court relying upon Apex Court decision that net pay comes to gross salary subject to statutory deduction. Apart from this, Rs. 1034/- income tax is to be deducted and 9% disability how much it affects the total compensation which has been worked out by Claims Tribunal. The object of act is to given just compensation reasonable proper not to be bonanza or profit for the claimant. So according to my opinion, there may be legal contention but when it is not raised before the Claims Tribunal at the relevant time then Claims Tribunal is not bound to consider it. It is necessary to consider same discussion which is relied by learned advocate Mr. Mehul Sharad Shah in case of National Insurance Company Ltd v. Indira Srivastva and Ors. as referred above. The Apex Court while deciding or considering the question of income, relevant discussion in Paragraphs 8, 18, 19, 21, 22, 23 are quoted as under:

The term ''income'' has been different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms.

The term ''income'' in P. Ramanatha Aiyar''s Advanced Law Lexicon (3rd Ed.) has been defined as under:

The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture.

It has also been stated:

INCOME'' signifies'' what comes in'' (per Selborne, C., Jones v. Ogle 42 LJ ch. 336). ''It is as large as a word as can be used'' to denote a person''s receipts ''(per Jesset, M.R. Re Huggins 51 LJ Ch. 938.) income is not confined to receipts from business only and means periodical receipts from one''s work, lands, investments, etc. AIR 1921 Mad. 427 : (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438: AIR 1930 Mad 626: 58 MLJ 337.

If the dictionary meaning of the word ''income'' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of Income Tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute.

We may notice that in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, , this Court held:

The assessment of damages to compensate the defendants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. The life expectancy of the deceased and the defendants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependents during that period, the chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together.

The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his defendants and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the defendants. Then that should be capitalized by multiplying it by a figure representing the proper number of years'' purchase.

Much of the calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but a bad master" since there are so often many imponderables. In every case, "it is the overall picture that matters", and the court must try to assess as best as it can the loss suffered.

Yet again in New India Assurance Co. Ltd. Vs. Charlie and Another, , the same view was reiterated. However, therein although the words ''net income'' has been used but the same itself would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd v. Kalpana (Smt.) and Ors. (2007) 3 SCC 5381.

The expression ''just must also be given its logical meaning. Whereas it cannot be a bonanza or a source of profit but it considering as to what would be just an equitable, all facts and circumstances must be taken into consideration.

The aforesaid observation made by Apex Court where Apex Court has considered just compensation is to be paid to claimant on basis of facts and circumstances of case considering object of Section 168 of Motor Vehicle Act, 1988. In light of aforesaid decision and looking to facts of present case, income tax of Rs. 1034/- is not deducted from gross salary, that cannot be considered to be an unjust for Insurance Company to pay some more amount. Therefore, their contention cannot be accepted.

In respect to contention that 8 multiplier looking to age of 57 years considered by Claims Tribunal is not on higher side because after completion of 60 years, he has to retire, so there was no purpose to grant further compensation of 5 years except that, there was no loss caused to claimant, because after retirement, he was not able to get same salary from employer. So on basis of same salary, multiplier after retirement cannot be considered. He also relied upon second Schedule that beyond 55 years, normally 5 multiplier is to be applied. Against that, an advocate of Insurance Company admitted permanent disability of claimant 9%. Looking to certificate, permanent disability of lower limb comes to 27% and body as a whole comes to 13.5% and claimant reduced it vide Exh. 37 pursis. With the consent of both side, it has come to 9% disability is suggested something which has worked out estimated amounts between parties to pay compensation on such formula. While this Court having impression because there was no contention raised by learned advocate Mr. Mehul Sharad Shah for Insurance Company before Claims Tribunal that beyond 5 multiplier cannot be applied as per Gujarat High Court judgments as referred above and no such other contention is raised before Claims Tribunal that after retirement, claimant was not able to get same salary and, therefore, no multiplier can be applied beyond retirement. No such submission was made taking into account consent of reduction of permanent disability 9% that something has been worked out between both advocates which resulted in aforesaid amount of compensation awarded by Claims Tribunal in favour of respondent claimant.

The compensation payable in disablement would be higher than in fatal case. The said observation is made by this Court in case of Mahendrakumar Manilal Patel and Another Vs. Ramjibhai Dalsibhai Chaudhari and Others, . The relevant observation is made in Para 11 and in Para 13, therefore, the same are quoted as under:

xxx xxx xxx

(3) Abrasion over left frontal region size 1-1/2 x 1

After considering the submissions advanced by learned Counsel for the parties, Claims Tribunal allowed compensation under different heads, namely, (i) Rs. 75,000/- (pain, shock and suffering), (ii) Rs. 3,000/- (medicines), (iii) Rs. 8,000/- (nursing costs), (iv) Rs. 3,000/- (special diet), (v) Rs. 13,000 (conveyance expenses), (vi) Rs. 28,000/- (loss of salary), (vii) Rs. 12,000/- (expenses for buying limbs in future) and (viii) Rs. 3,62,250/- (loss of future earnings), totally Rs. 5,04,250/-, paid Rs. 5,00,000/-, although claimed Rs. 9,86,349/- through written arguments submitted before the Claims Tribunal. During the course of submissions by learned Counsel for the insured and claimant, main emphasis was directed to heads of (i) pain, shock and suffering, (ii) expenses for buying limbs in future, and (iii) loss of future earnings. Payments by the Government are on specified items, therefore, many other items require personal spendings. Charges for boarding, lodging, special diet, conveyance, etc. are not payable nor cost of artificial legs. A man from Police force can easily engage in other better assignments. He can also engage in post retirement assignments, security service being one of them, looking to improved longevity and nature of their service. During service, he can secure accelerated promotions and obtain monetary awards for achievements in investigations, parades, and engagements in social duties like earthquakes, floods, riots, etc. But an officer suffering from disability, particularly of leg, would be at loss in post accident service and employment market. Normal promotions in service may be there but they do not compensate these losses. In Mahomed Hanif Dallu v. Lunkaran Ganpatram Sharma and Anr. 1980 GLR 412, this Court said in paragraph-9:

...The victim''s eligibility for employment, assuming that in his future life he would have sought employment, was bound to be reduced because of the injury suffered by him. It was also held that in any case, any person not suffering from such disability would be preferred and, therefore, there was a loss of chance of favourable employment. Even assuming that the appellant would not have sought employment but taken to some profession, there is no manner of doubt that even if there be no total loss of career, there will be considerable handicap in pursuing the same career....

Thereafter, in paragraph 9-A, this Court said:

...Sometimes permanent partial disability may not have immediate effect on the plaintiff''s earnings and it may be fond that he was still able to earn his pre-accident wages and to perform his pre-accident work. Nevertheless his disability would render him unfit for some profession or occupation for which he was previously fit and qualified and such a man is at a disadvantage compared with his colleagues in the labour market....

In paragraph 7-A of this decision, this Court said:

...that the fall in the value of money in our country was the main factor to be kept in view while assessing the damages on the count of pain and suffering. It was observed that the need for periodical reassessment of damages at certain key points was a felt need and the requirement of adjusting awards to changing conditions was realised....

Giving consideration to the submissions advanced by learned Counsel for the parties, Apex Court decision in Nagappa v. Gurudayal Singh and Ors. (supra), which clearly lays down that claimant is entitled to `just'' compensation, Court should grant it irrespective of claim made by the victim of accident, on the available evidence or allow amendment to be made and opportunity to lead evidence. Further, claimant can also be awarded compensation for future medical treatment. We are not in agreement with the contentions raised by Shri B.N. Keshwani relying on B.H. Nagarathana (Smt.) and Others Vs. Kanataka State Road Transport Corporation, , that claimant is not entitled to more compensation than claimed by him, he is not aggrieved person since he has been awarded compensation claimed by him. This is not so. Through written submissions, claim for Rs. 9,86,349/- is made. The Tribunal assessed compensation of Rs. 5,04,250/- but awarded Rs. 5,00,000/- on the ground that compensation to this extent is claimed. This conclusion is not reflected from written submissions of claimant taken on record by the Tribunal. Looking to the seriousness of injuries resulting in amputation of one leg, long treatment, claimant must have undergone great pain, shock and sufferings and continue to suffer in future as discussed hereinbefore. Therefore, compensation under this head deserves to be enhanced to Rs. 1,25,000/-. According to the doctor, artificial leg requires to be replaced every two years. It is contended that reasonable compensation has been awarded under this head. Claimant cannot be asked to use artificial limbs from Jaipur alone because they are cheaper. Question is of suitability and reliability. In case better artificial limb is available elsewhere, he can do so. Shri B.S. Patel contended that claimant has replaced artificial leg number of times costing him much more than awarded by the Tribunal. To buttress this submission, Bill No. 120 dated 12.2.2002, Rehabs Physical Restorations, A-1, Mangalsai, Opp. Baroda Hi-School, 84, Alkapuri Society, Vadodara-390007, is placed on record (Mark-X). Claimant may have replaced artificial leg after two years as stated by the doctor but expenditure statements/bills have not been filed. Opposite parties do not state that claimant undertook replacement of limbs from Jaipur during all replacements. Therefore, in these circumstances, expenses for buying limbs is increased to Rs. 1,20,000/-. Similarly, there is loss of future earnings as discussed in preceding part of judgment. Claims Tribunal has awarded Rs. 3,62,250/-. Taking monthly salary Rs. 3,500/70% (disability) = Rs. 2,450 x 12 = Rs. 29,400 x 17 = Rs. 4,99,800/-, compensation for loss of future earnings is increased to Rs. 4,99,800/-.

The claimant is therefore entitled to enhanced compensation of Rs. 2,95,550/-.

The Apex Court has also observed the same in case of Sunil Kumar v. Ram Singh Gaud and Ors. reported in 2007(1) Sup 450 as follows:

Where tribunal as well as High Court erred in not awarding any compensation towards loss of future income to appellant who suffered permanent disability to extend of 45 percent then in that case it was held that appellant was required to be compensated for loss of earning due to injuries suffered by him in accident.

The contention raised before this Court. When it is not reflected from award, then in such circumstances, it is duty of Insurance company to approach Claims Tribunal immediately pointing out that such contention was raised while it was not dealt with in award passed by Claims Tribunal. The advocate of Insurance Company has not filed such application before Claims Tribunal. Therefore, this Court has to accept that no such contention was raised by Insurance Company before Claims Tribunal. That view was taken by Apex Court in case of Mohd. Akram Ansari v. Chief Election Officer and Ors. reported in AIR 2008 SCW 416. The relevant Para 14 is quoted as under:

In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.

Recently also, this aspect has been considered by Apex Court in case of Md. Rafique @ Chachu v. State of West Bengal reported in 2008 (15) Scale 15. The relevant Para 5 is quoted as under:

It would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so, it is not open to the appellant to turn around or to take a plea that no concession was given. This is clearly a case of sitting on the fence and it is not to be encouraged. If really three was no concession, the only course open to the appellant was to move the High Court in line with what has said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, . In a decision Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. if a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. The above position was highlighted in Roop Kumar Vs. Mohan Thedani,

The relevant discussion is made in Para 7 by claims tribunal which is quoted as under:

ISSUE No. 2 :- So far as this issue is concerned, it is connected with the quantum of compensation. In order to prove the quantum, the applicant-Revabhai has filed affidavit of examination-in-chief vide Exh.35, wherein, he has stated about the facts of the accident, fact of the injuries, fact of income and also about facts of medical expenses. He has also deposed that due to the alleged accident, he had fracture in the right leg. The applicant has also been cross-examined by the learned advocate of the opponent in which he has deposed that accident had occurred before Three Gates and maruti-car had come in reverse abruptly. He stated that he was serving in Telecom Department and was getting salary of Rs. 14,000/- p.m., and the applicant has produced salary certificate vide Exh.33 issued by the General Manager Telecom (East). Moreover, the applicant has produced injury certificate vide Exh.37 and Exh.34. The applicant has also produced disability certificate vide Exh.38. In the disability certificate, Dr. Aditya Upadhyay has narrated various complaints and has examined Revabhai Veghela is having 27% permanent disability of lower limb 13.5% of whole body. Thereafter, the applicant has given purshish for reducing the disability vide Exh.37 wherein both the parties agreed for 9% disability of the applicant. On the point of disability, the Tribunal is not bound to consider the certificate as final say of the doctor. So far as the income of the applicant, the applicant has produced salary certificate and so, income of the applicant is Rs. 13,668/- and so, by making round figure, Rs. 14,000/- is considered. So, looking to the salary document produced on record, I am of the view that Rs. 14,000/- income of the applicant has been considered. Thus, by calculating income of the applicant as Rs. 14,000/- income p.m. x 9% (disability) = Rs. 1,260/- x 12 = Rs. 15,120/- x 8 (multiplier) = Rs. 1,20,960/- for future loss of income. Hence, the applicant is entitled to get following amount under various heads from the Opponents.

Rs. 1,20,960=00 For loss of future income.

Rs. 14,000=00 For actual loss of income.

(For one months)

Rs. 10,000=00 For pain, shock & suffering

Rs. 10,000=00 For medical expenses.

Rs. 10,000=00 For transportation and

special diet.

Rs. 5,000=00 For attendant charges.

Rs. 1,69,960=00 Total Awardable Amount.

Thus, the total awardable amount to the applicant is Rs. 1,69,960/-.

In view of above observation made by Apex Court that if no contention is decided though raised by Claims Tribunal and even that, it was raised, then remedy is with Insurance Company to approach Claims Tribunal not to raise any contention first time. Therefore, contentions raised by learned advocate Mr. Mehul Sharad Shah cannot be accepted and hence rejected. According to my opinion, Claims Tribunal has rightly examined matter and rightly worked out compensation in favour of respondent claimant with the consent of pursis Exh. 37 given by both advocate and which final figure must have to be worked out, now, to challenge the same is not permitted as once advocate is agreed with permanent disability of 9 % and on that basis, compensation is to be worked out then such challenge is not permissible and, therefore, there is no substance in First Appeal. Whatever compensation awarded cannot be considered to unreasonable, unjust and improper. On the contrary, looking to disability received by claimant, compensation has been rightly worked out.

According to my opinion it is just, proper and reasonable compensation, awarded by Claims Tribunal. For that, there is no error committed by Claims Tribunal which requires interference of this Court and hence, there is no substance in First Appeal. Hence, First Appeal is dismissed.

Today first appeal is dismissed by this Court, therefore, no order is required to be passed in Civil Application. Accordingly, civil application is also dismissed.

The amount, if any, deposited by appellant-insurance company before registry of this Court, be transmitted to claims tribunal concerned immediately.