National Insurance Co. Ltd. vs Salil Prakash Gupta

Dr. Satish Chandra, J.—First two appeals have been filed by the Insurance Company (under Section 173 of the Motor Vehicles Act, 1988) against the different judgments and orders dated 26th September, 1996 passed by the Motor Accident Claims Tribunal, Lucknow in Claim Petition Nos. 161 and 160 of 1994; and third cross-appeal has been filed by the claimant for enhancement of the compensation. The brief facts of the cases are that on 15th January, 1994, at about 10.45 a.m., both the claimants-respondents, who are brother-in-law to each other were travelling in a Maruti Car No. UGO 2454 from Kanpur to Lucknow. When they reached near police station Banthara (Lucknow), a Ambassador Car No. UHZ 8447 was coming, from the opposite direction, whose driver was driving it rashly and negligently collided with the Maruti Car causing severe injuries to both the claimants.

The first claimant Sri Salil Prakash Gupta became partly disabled. After examining the entire evidence, the Tribunal has awarded a sum of Rs. 4,65,722/- to him. The Tribunal has also awarded a sum of Rs. 81,200/- to the second claimant Sri Rakesh Sharma against the Insurance Company. Being aggrieved, appellant-Insurance Company has filed both the appeals before this Court and at the same time Salil Prakash Gupta has filed a cross-appeal for enhancement of the compensation.

With this backdrop, Sri R.C. Sharma, learned Counsel for the appellant-Insurance Company submits that the compensation in both the cases are on higher side, where the interest @ 12% was also allowed and the same is not sustainable in the eyes of law. He further submits that after accident, the claimants were admitted in a nursing home and not in a Government hospital at Kanpur. For the injuries, very heavy compensation was awarded by the Tribunal. He also submits that the vouchers submitted by the claimants with regard to the treatment were not properly examined by the Tribunal and no report of any Government hospital regarding the serious injuries or X-ray of alleged fracture was filed before the Tribunal. The Tribunal wrongly allowed the compensation for loss of future income, whereas the claimants did not furnish any evidence suggesting any loss of income. After the alleged accident, the claimants did not prove any documents filed in support of their allegation. So, the learned Tribunal erred in placing reliance of its documents and there was not a single prescription of any Government hospital and the claimants manipulated receipts of the private nursing home, which were not proved. Lastly, he made a request that both the impugned orders passed by the Tribunal may kindly be set aside.

On the other hand, Sri Pradeep Agarwal, learned Counsel for the claimant-respondent submits that first claimant Sri Salil Prakash Gupta was driving the vehicle and he was an experienced driver. He also driven the vehicles in foreign countries like America and he has driving experience for a long period, so it cannot be said that the claimant was being driven negligently. He also submits that Sri Salil Prakash Gupta did Mechanical Engineer from Moti Lal Nehru Engineering College, Allahabad; and M.B.A. from Punjab University, Chandigarh, both with first division and he has been deprived of pleasure of game on account of the injuries and will not be able to undertake trekking toury for the rest of his life. Earlier, he was working in M/s Max India Ltd., New Delhi and his salary was Rs. 17,000/- per month. He also submits that soon after the accident, both the claimants were taken to E.S.I. Hospital Sarojini Nagar, Lucknow by an Air Force Truck, where both of them were given first-aid by Dr. A.K. Gupta. In the meantime, the family members were arrived after receiving the information of accident. They reached the E.S.I. Hospital and from there they were taken to Kanpur and admitted at R.K. Devi Memorial Hospital. The external fixator was fixed by drilling four rod from outside into the bone and the stitches were put on the thigh. Sri Agarwal also argued that Sri Salil Prakash Gupta was having a bright career and due to accident he has become disable person, so the compensation is meager one.

Regarding the second claimant, Sri Pradeep Agarwal submits that in the said accident 3 lacerated wounds were occurred, one fracture of 2 ribs and injuries in the teeth were occurred. The claimant was under treatment of Dr. S.K. Gulati, Mamta Apartments Phase II, Kanpur and he was being treated by Dr. Vilas Kulkarni, Dental College, Lucknow. His treatment was continued for a long period. He incurred the expenses not only for the fee of the doctor but also the medicines, transportation etc. The claimant was claimed a compensation of Rs. 4,31,900/-, but the Tribunal has awarded a meager compensation of Rs. 81,200/-.

We have heard both the learned Counsel for the parties and gone through the material available on record.

It may be mentioned that statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, .

The Hon''ble Supreme Court in the case of R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, , laying the principles posited:

Broadly speaking, while fixing the amount of compensation payable to a victim of an accident the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are capable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant : (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

In the instant cases, it appears that Sri Salil Prakash Gupta sustained severe injuries, including compound fracture of the femur shaft with deep laceration 3" x 2", lower lip lacerated wound 2 cm. x.5 cm., contused swelling on the ankle of right foot measuring 8 cm. X 4 cm., abrasion and bleeding on right thigh and abraded swelling on the left thigh. The compensation was filed for more than 30 lakhs, but after examining the entire evidence, the Tribunal observed that he was admitted in the hospital for ten days. He was operated upon the second time on 18th May, 1994 for removing the external fixator from the thigh. The right leg was then fixed on a Thomas Splint with skin traction. Two screws were still left inside the body fixed on the bone which may remain there for every resulting in a permanent foreign body inside the body, a permanent abnormality. Stitches were also put on the lacerated wound on the lower lip and the other wounds were dressed after cleaning.

From the evidence and eye witnesses, it is also clear that the accident was occurred due to negligent driving by the driver of Ambassador car which was duly insured on the date of accident with the appellant-Insurance Company and the driver was having a valid driving licence at the time of accident. Further, it appears that the Tribunal has awarded the compensation for the damages suffered on account of pain suffering, loss of amenities of life, enjoyment of life, disgrace, loss of personality, broken and disfigured teeth line, permanent disability and for loss of future income for 12 months. The expenses incurred for the transport have been claimed. Similarly, doctor''s fees, medicines, equipments & artificial aids, hospital charges, compounder''s fees, pathological tests and physiotherapist and damages to personal belongings have also been claimed.

In the above circumstances, the Tribunal order appears reasonable, specially when it appears from the disability certificate issued by the C.M.O. Kanpur that Sri Salil Prakash Gupta suffered disability of 51%. The details of injuries and treatment have also been given in the Annexure No. 7.

Regarding the second claimant Rakesh Sharma, who is brother-in-law of the first claimant and was sitting on the front seat near the driver also suffered injuries which includes one upper left 2nd incisor tooth extraction and 2 teeth retracted. He had to go to Lucknow Dental College regularly for his treatment, where he had to make 15 visits of Lucknow for the treatment of his teeth. His spectacles were also broken. Since, his teeth were extracted and three teeth of upper jaw were retracted into gums, one tooth was chipped and broken from the lower end. Hence, it was not possible for him to take solid food and his woolen clothes were also torn.

The Tribunal after examining the X-ray report and pathological documents awarded a compensation of Rs. 81,200/- for the injuries, loss of his further income, hospital charges, dental fees and disfigured teeth line etc., though the claim was on higher side. By considering the totality of the circumstances of the case, as discussed above, the compensation awarded by the Tribunal appears reasonable.

Hence, we dismiss both the appeals filed by the Insurance Company pertaining to the compensation amount. For the similar reason third appeal filed by the claimant for enhancement of compensation is also dismissed. However, the interest at the rate of 12% awarded by the Tribunal is looking on higher side in the peculiar facts and circumstances of the case.

We are of the view that the interest can be awarded at the bank rate prevailing at the time of accident. Therefore, by keeping in mind the ratio laid down in the cases of Tejinder Singh Gujral v. Inderjit Singh and another, 2007 (1) T.A.C. 15 (S.C.) as well as National Insurance Co. ltd. v. Keshav Bahadur and others, 2004 (Vol. II) T.A.C. 1 (S.C.), we allow the interest @ 9% per annum on the awarded amount in question. For this purpose, the impugned awards of the Tribunal are modified to the extent that the rate of interest 12% is reduced to 9% on the awarded compensation from the date of filing of the petition before the Tribunal till date of payment. The amount, if any, deposited in this Court, shall be remitted to the concerned Tribunal within a period of four weeks alongwith lower Court record. In the result, both the appeals filed by the appellant-Insurance Company is partly allowed and third appeal filed by the claimant is dismissed, as stated above.