National Insurance Company Ltd. vs Versus Jagdish Bhati & Ors.

On 371992 at about 9.15 morning Jagdish Bhati was on duty at the main gate of Medical College Meerut. At about 10 a.m. along with Vinod Kumar Chauhan Head Constable sitting behind on Scooter No. D.D.K. 5565 followed the criminals. The Ambassadar Car No. U.M.Q. 2822 coming from behind pushed the Scooter as a result of which, Scooter dashed with fiat car No. UJA 9002 Doming from front, consequently Jagdish Swaroop Bhati sustained grievous injuries with the fracture of the leg and the victim became unconscious.Vinod Kumar Head Constable got Jagdish Bhati admitted in Medical College and lodged report in Medical College but correct facts were not mentioned. In the said occurrence there was fracture of the leg of Jagdish Bhati, operation was got done and thereafter Jagdish Bhati got himself treated at Rajaram Nursing Home Meerut and the treatment lingered on for number of days.

Sri Jagdish Bhati preferred a claim petition under Section 140 and 166 of Motor Vehicles Act against Sri Vinod Kumar Singh Chauhan Head Constable Sri Baldhari Singh, Sri Ramsaran. and National Insurance Company Limited for the award of the following compensation:

(1) Compensation for having become disabled person. 400000

(2) Damages for Physical and mental pain. 400000

(3) Expenses of Medical treatment 70, 000

(4) As expenditure for future 50, 000

Total 19, 20, 000

The defendants contested the petition upon the pleadings of the parties the Motor Accidents Claim Tribunal (to be referred to as Tribunal for sake of convenience) framed the following issues for disposal of the petition.

Whether on 371992 at 9''O clock morning the accident took place on account of the rash and negligent driving of the drriver of Vehicle No. UMQ 2822 infront the Medical College Meerut at the medicine crossing?

Whether in the said accident the petitioner Jagdish Bhati sustained injuries.

Whether the petitioner is entitled to any relief, if yes then how much and from whom?

On the evaluation of the evidence of the parties the Tribunal decided issues No. 1 and 2 together and recorded a finding of fact that the accident occurred at 9.15 morning on 3071992 in front of Medical College Meerut due to the rash and negligent driving of the driver of Vehicle No. U.M.Q. 2822 and also recorded the finding that Jagdish Bhati sustained injuries in the said accident.

On detailed consideration of the evidence led by the parties in connection of with issue No. 3 the finding as a result of the evaluation of the evidence is "It is also the contention of the petitioner that his treatment is going on uptill now and he has been operated 7 times the bone of his leg has rotten and there a gap of 4 inches in the midspace of the bones. The pus formation of the leg has not stopped. According to the opinion of the Doctor his leg has not been cured completely and the gap in the bones is permanent. In this connection have seen the Xray which indicates that there is gap in his leg. In fact on account of the injuries sustained at the accident. The petitioner can not ordinarily walk nor would be able to walk and he has to take recourse to artificial appliances for walking and has become incapacitated to perform touring duties and can not perform the duties in respect of running etc. He is continually under going the hangs of physical and mental pain, in one way his future has become full of darkness he can not perform routine duties and his position in the society is not that which was prior to the accident."

On the consideration of the entire evidence the Tribunal determined the compensation for Jagdish Bhati as a result of the injuries sustained in that accident on the different grounds mentioned below. Rs.

(1)Physical and mental pain 40, 000

(2) Medical expenses 36, 498

(3) Special food and conveyance charges 10, 000

(4) Compensation for loss of earning capacity 1, 80, 00 Total 2, 66, 498

The National Insurance Company has assailed the said judgment of the Tribunal in this FA P.O.

In support of the F.A.F.O. this Bench has heard Sri A.K. Gaur, and from the opposite side Sri D.N.Chaudhari have been heard as per provisions of Order XLI, Rule 1 \\, Civil Procedure Code.

The learned counsel for the appellant has raised the following points in support of the appeal.

On the evidence available on the file there is no evidence that the applicant has become permanently disabled due to the said accident and the said conclusion of the Tribunal has been arrived at without any basis in evidence. The Tribunal has committed an error of law by awarding Rs. 1, 80, 000 as compensation for being unable to get promotional post.

The Tribunal has committed error of law in fixing the multiple of 26 while determining the compensation amount.

The appellant has in support of his argument cited the following decision of the Supreme Court.

Hardeo Kaur v. Rajasthan State Road Transport Corporation, AIR 1992 SC 2 page 1261.

New India Insurance Company v. Sureth Khanna, AIR 1991 All 43.

JCLR] M/s National Insurance Company Ltd. Meerut v. Jagdish Bhati & Ors. 657

General Manager Kerala State Road Transport Corporation v. Balsamma, (1994) 2 SCC 176.

It is essential to mention in the decision of this appeal that this Division Bench has laid down the principle while deciding the F.A.F.O. No. 278 ot 1994 New India Insurance Company Ltd. Etawah v. Smt. Shakuntala Devi and others decided on 28795 that in the appeal preferred under Motor Vehicles Act, the High Court can summarily dismiss the F. A.F.O. Under the provision of Order XLI, Rule 11 C.P.C. read with High Court Rules 9B of Chapter 11 before summoning the file from lower court and without informing the respondent and the High Court is not in every case bound to call for lower court file or issue notice to respondent, With reference to this appeal, the appellants counsel was directed to file true copies of the evidence available on the file before advancing argument on point No. 1. However, the learned counsel for the appellant has not filed the true copies of the aforesaid evidence despite time having been given repeatedly by this Court, in these circumstances this Division Bench is satisfied that the Tribunal has recorded this finding of fact on the basis of evidnece on record to the effect that it is clear from the Xray in connection with the treatment of injuries sustained by Jagdish Bhati petitioner at the accident that there is a gap in his legs and on account of the injuries aforesaid the petitioner will not be able to walk ordinarily and he has 10 take recourse to walking aid. "This Division Bench does not find any factual infirmity in the said conclusion of fact on the basis of materials of evidence available on the file. Under the circumstances this Division Bench is satisfied that the petitioner has became permanently disabled as a result of the injuries sustained at the occurrence.

In New India Insurance Company Limited Etawah v. Smt. Shakuntala Devi aforesaid this Division Bench has laid down that in the appeal filed by Insurance Company under Section 173 of the Motor Vehicles Act, the appeal can be preferred by the Insurance only on the grounds on which the Insurance Company as per provision of Section 149 (2) the Act has the right to oppose the claim. According to Section 149 (2) of the Act Insurance Company can contest the claim merely on the ground that the concerned Vehicle which was responsible for the accident was not plied as per provision of the Insurance Policy. The learned counsel for the appellant has not raised any such plea in this F.A.F.O. In this view of the matter the only point that survives for determination in this appeal is in reality on what basis there should be determination of compensation to be awarded to the petitioner?

In Jai Bhagwan Singh v. Laxman Singh and others, 1994 (5) S.C. page 5 the Hon''ble Supreme Court has laid down that in motor accident cases the assessment of compensation should be on the basis of separate determination of pecuniary losses and mental shock.

So far as the determination of compensation for mental shock is concerned, the Hon''ble Supreme Court has classified it as nonpecuniary damages and the principle in that connection has been set down as under:

"Nonpecuniary losses are different from pecuniary losses in that the restitution in integrun objective cannot be applied literally to themdamages cannot restore a lost limb or happiness. While there is some disagreement as to the function of nonpecuniary damages, many would agree with the Royal Commissioner''s suggestions that they serve as a palliative, or provide the plaintiff with the means tc purchase alternative forms of happiness, or help to meet hidden expenses caused by injury. While the practice of the courts is not to subdivide non pecuniary damages under specific heads, nevertheless proper consideration cannot be given to the plaintiffs claim without taking into account the various types of loss he has suffered."

In R.D. Hatangadi v. Messrs Pest Control India Private Ltd. and others, AIR 1995 SC page 755 the Hon''ble Supreme Court has formulated the following classification for determining compensation in motor accidents. The relevant portion of the aforesaid judgment is as under:

"Broadly speaking while fixing an amount oi 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 is capable of being calculated in terms of money. Whereas nonpecuniary damages are those which are incapable of being assessed by arithemeticai calculations. In order to appreciate two concepts pecuniary damages may include expense 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 nonpecuniary damages are concerned they may include (i) damages for mental and physical shock, pain suffering already suffered or hkely 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 she 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, diappointment, frustration and mental stress in life."

According to the principal enunciated in the above decisions it is clear that for assessing the compensation to injured person in respect of nonpecuniary loss the points that have to form the basis of such assessment, mental and physical injury and the injury suffered due to the accident have to be provided for in the compensation. In a similar way on the basis of the loss of future amenities on account of the inability of the injured to walk properly or run properly or sit down properly have to be considered for assessment of compensation.

The third point which has to be considered for compensation is the loss of future amenities in life and loss of average life expectancy if any.

The fourth point on the basis of which the nonpecuniary loss has to be determined is the inconvenience caused to the victim resulting in agony, disappointment, mental tension accruing as a result of the accident, on all these points the compensation should be determined to assess nonpecuniary loss. The Tribunal has in the context of this appeal awarded merely Rs. 1, 80, 000 to the injured victim as compensation for nonpecuniary loss.

The Tribunal has for assessing the nonpecuniary loss considered merely the point that if the claimant would have pursued his service on the post in ordinary course of affairs he was likely to be promoted as head constable. On account of being disabled as a result of the accident there is no possibility of the claimant being promoted as head constable and in this way the Tribunal recorded the finding that the age of the claimant at the time of accident was merely 35 years and the claimant had to serve for another 26 years, that way on account of being deprived of the future promotion in service, the compensation was fixed at Rs, 1, 80, 000.

The main contention of the learned counsel for the appellant is that the said assessment of compensation is against the principle laid down by the Hon''ble Supreme Court in General Manager, Kerala Transport Corporation aforesaid. The relevant portion of the said judgment is as under:

"In the present case the deceased was 39 years of age. His income was Rs. 1032 per month. Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment she multiplications. While the chance of the multiplier is determined by two factors, namely, the rate of interest appreciate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonable liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency'' on the present actual income of Rs. 1032 per month. We think having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be in error in making higher estimate of monthly income at Rs. 2, 000 as the gross income."

From the above relevant portion, it is clear that this compensation should be awarded looking to future prospects in which the factor of promotion is also included.

In Sushila Pandey v. New India Assurance Company Limited, AIR 1983 Allahabad page 69, at page 73, this Court has laid down the principle that in case of compensation body injuries, the amount fixed should be higher than in case of death. The relevant portion is as under:

"A review of the English and Indian authorities shows that the conspectus of opinion has been that in bodily injury cases where the injured survives and is disabled, compensation awarded is higher than in case of death because compensation is to be given to a living victim who is rendered disabled and is not able to lead normal life or to carry on his avocation or enjoy amenities of life. In cases where the injured incurs any disability on account of which the claimant cannot walk or ride a bicycle or attend to his personal needs or if he has to be constantly under medical care, he is entitled to compensation in respect of each of those items in addition to his economic loss. The authorities discussed above further show that in recent years the Courts have awarded substantial amounts as general damages. In the light of these principles we propose to assess the quantum damages".

In R.D. Hatgadi (supra) the Hon''ble Supreme Court has, for nonpecuniary damages laid down the assessment of damages separately in repsect of the following points.

The mental and physical injury suffered by the claimant.

The loss of future amenities of life.

On account of the claimant not being able to walk, run or sit properly.

For loss of future prospects of life.

Decreased life expectancy.

For inconvenience caused to amenities disappointment, loss of hope, mental tension to be assessed separately on each count.

In any circumstance this bench find no justification to accept that the aforesaid amount of Rs. 1, 80, 000 is excessive.

The Tribunal has rightly recorded that finding of fact in its judgment that damage caused to the claimant can not be calculated and in this connection has fixed the compensation at Rs. 40, 000 in respect of physical and mental injury which is reasonable however on other points like loss of amenities of life not being able to walk properly loss of future prospect of life, loss of expectancy of life in terms of age, damages due to disappointment, loss of hope, mental tension have not been assessed for compensation.

Legal cognizance can be taken of the fact that if a man walking and running normally is permanently lamed have to walk with the walking aid, then he suffers from inferiarty complex in the society and the loss of future prospects is a fact of life. There are set norms for promotion or nonpromotion but if ordinarily a government employee gets promotion, and if due to accident causing disability to such a claimant, rendering him unfit for promotion, then as results is diminishing the prospects of life the claimant is entitled to get compensation for such losses.

After considering the pros and cons of the matter, this Bench is satisfied that the amount of compensation of Rs. 2, 20, 000 is just and proper, on account of loss of future prospects, loss of earning capacity and other factors for determining nonpecuniary losses.

Accordingly this Bench is of the view that there is no legal or factual infirmity in the impugned order.

Accordingly the appeal is dismissed in terms of Order XLI, Rule 11, C.P.C. read with Rule 9B of Chapter 11 of High Court Rules. Appeal dismissed.