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Judgment
ORDER
CHANDRA DHARI SINGH, J (Oral)
The instant appeal arises out of the award dated 1st June, 2016 („impugned award‟ hereinafter) passed by the Motor Accidents Claims Tribunal, Karkardooma, New Delhi in claim bearing no. 125/2016 whereby, the learned Tribunal awarded the compensation of Rs. 22,35,955 towards injury suffered by the respondent no.1 („victim‟ hereinafter).
The facts of the instant appeal are as under:
On 8th February, 2012, the respondent no.1 was returning from his duty to his house situated at Kondli, Sector-8, Noida on a bicycle around 9:30 AM. A DTC bus bearing no. DL-1PC-8433 („offending vehicle‟ hereinafter) hit the victim near Dallupura, Kondli and the driver fled away from the spot leaving the bus there.
ii) Due to the said accident, the victim suffered grievous injuries and an FIR bearing no. 45/12 was registered under Sections 279/338 of the Indian Penal Code, 1860 („IPC‟ hereinafter) at PS New Ashok Nagar.
iii) Thereafter, a claim was filed for compensation and pursuant to completion of the proceedings, the learned Tribunal held the awarded compensation amount to be recoverable from the driver and the owner of the vehicle.
iv) Aggrieved by the same, the instant appeal has been filed.
The learned counsel appearing on behalf of the appellant submitted that the learned Tribunal erred in calculating the compensation amount on the basis of the minimum wages prevailing in Delhi, instead, the learned Tribunal ought to have considered the rate prevailing in the state of Uttar Pradesh.
It is submitted that the learned Tribunal failed to appreciate the fact that the victim was working as a security officer in an establishment situated in Noida, and therefore, the wages prescribed by the Government of UP ought to have been considered.
It is submitted that the disablement period for the victim does not exceed 52 weeks and therefore, the calculation of wages on the basis of 104 weeks is bad in law.
It is also submitted that the amount awarded towards the miscellaneous heads such as loss of amenities, pain and suffering is on the higher end and therefore, needs to be reduced.
It is further submitted that the findings of the learned Tribunal are contrary to the evidence on record and therefore, the impugned award is liable to be set aside and reliefs may be granted as prayed.
Per Contra, the learned counsel appearing on behalf of the respondent/victim vehemently opposed the instant appeal submitting to the effect that the learned Tribunal rightly granted the compensation and duly replied to the arguments advanced by the appellant in the impugned award.
It is submitted that the issue of calculation of the compensation on the basis of minimum wages as prevailing in a particular state is already been dealt with by the Hon‟ble Supreme Court in the case of Chandra v. Mukesh Kumar Yadav (2022) 1 SCC 198and therefore, the contention of the appellant for setting aside of the impugned award on the basis of the same does not hold any water.
It is submitted that the learned Tribunal did not add 40% future prospects at the time of awarding the compensation and the victim is entitled to get enhanced compensation due to the said error.
In view of the foregoing submission, it is submitted that the present appeal be dismissed and the victim be granted enhanced compensation.
Heard the learned counsel for the parties and perused the records.
The instant appeal is admitted.
It is the case of the appellant that the learned Tribunal wrongly awarded the compensation on the basis of the minimum wages prevailing in the state of Delhi, whereas, the learned Tribunal ought to have provided the same on the basis of the place of occupation of the victim i.e. State of Uttar Pradesh.
In rival submissions, the above said contention has been rebutted by the learned counsel for the victim by stating that the said issue has already been dealt with by the Hon‟ble Supreme Court in the case of Chandra (supra) and therefore, the instant appeal is devoid of any merits.
Therefore, the limited question for adjudication before this Court is whether the learned Tribunal rightly relied upon the settled position of law to calculate the compensation on the basis of minimum wages as prevailing in Delhi.
In order to adjudicate the said issues, it is pertinent for this Court to examine the findings of the learned Tribunal. The relevant part of the impugned award reads as under:-
“ISSUE NO. 2 ;
To what amount of compensation, if any, the Petitioner is entitled to and from whom?
I7. The wife of the Petitioner-PW2 testified that on 08.02.2012, her husband was taken in an injured condition to LBS Hospital from where he was referred to GTB Hospital. She stated that due to critical condition, he was taken to IMHANS, Meerut on the same day, where he remained admitted there till 02.03.2012. She stated that her husband suffered serious head injuries besides multiple lacerated wounds all over his body. I have looked into the treatment record brought by PW4, Dr. Arun Sharma, MD, DM (Neurology) Consultant from MIMHANS, Meerut. The Certificate dated 02.03.2012 issued by PW4 - Dr. Arun Sharma, shows that the Petitioner suffered head injuries with Multiple Contusion Temporal Parietal Compound, Depressed Fracture and was found disabled to do even routine activities. He was admitted with multiple lacerated wounds and head injuries at MIMHANS. The record shows his regular OPD visits till 30.09.2014. As per the Disability Certificate Ex. PWl/X dated 03.11.2015, he was found to have suffered Neurological Impairment of 90% with Cognitive Decline and mild Quadriparesis.
I8. The Petitioner was examined by the Disability Board twice. Firstly he was examined on 25.03.2013. The revised examination by the Board was conducted on 02.11.2015. PWl Dr. Deepak Kumar Jha, Asst. Professor Neuro from IHBAS, Delhi, appeared and stated that the Board had found the Petitioner to be having Cognitive Decline with Mild Quadriparesis i.e., weakness of all four limbs. PWl testified that Petitioner's case fell within the category of Chronic /Follow up case of head injury. Dr. Arun Sharma, who was examined as PW4 stated that the Petitioner was admitted in MIMHANS on 08.02.2012 in an unconscious condition with multiple head and face injuries and it showed multiple Haemorrhage with skull bone fracture. PW4 stated that the patient was operated by Neuro Surgeon Dr. Sandeep Sehgal but Post operative period was found uneventful. The patient was found to have deficit in Memory Functions and was advised for follow up every week.
19.The careful evaluation and assessment of the entire medical examination Record, suggests that the Petitioner due to accidental injuries suffered significant memory deficit besides overall cognitive impairment with Quadriparesis and was rendered almost in vegetative condition. Section 166 of the Motor Vehicles Act,1988 (the Act) enjoins payment of just compensation. In General Manager, Kerala State Road Trans. Corpn. V/s. Susamma Thomas 1994 ACJ1 (SC), the Apex Court held as under :
"(5)The determination of the quantum must answer what contemporary society 'would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing. The amount awarded must not be niggardly since the law value life and limb in a free society in generous scales' All this means that the sum awarded must be fair and reasonable by accepted legal standards.".
20.1n Nizam Institute of Medical Sciences V/s. Prasanth S. Dhananka, 2010 ACJ 38 (SC), the Hon'ble Supreme Court emphasized that cases of serious injuries in the motor vehicle accident are worse than the death cases because the victim and his family suffer throughout life.
21.Hon'ble Supreme Court has enumerated the principles for granting compensation payable to road traffic accident victims. In the case of Raj Kumar v. Ajay Kumar & Anr., MANU/SC/1018/2010, Civil Appeal No. 8981/2010 decided on 18.10.2010, following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims:-
“i)The compensation payable to the Petitioner who is a victim of road accident should, to the extent possible, fully and adequately restore the Petitioner to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
ii) Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure, (ii) (a) Loss of earning (and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (in) Future medical expenses. Non-pecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities and/or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
iii) In routine personal injury cases compensation is awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the Petitioner, that compensation is granted under any of the heads (ii) (b), (Hi) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.”
22.The Petitioner is entitled for the compensation on account of future loss due to disability. While assessing the future loss, his functional disability has to be assessed, which is to be judged with reference to the nature of work being performed by him. The Tribunal examined Smt. Sarita, Wife of the Petitioner at the final stage of inquiry proceedings, during which she stated that her husband was unable to feed himself, unable to walk without support and now suffered from abnormal behavioural patterns. She stated that the Petitioner would sometime become aggressive as his brain was not functioning.
23.Ld. Counsel for the Petitioner argued that the Petitioner was not in a position to even move and was in apparent vegetative condition owing to his injuries. Ld. Counsel argued that the Petitioner was the only earning member of the entire family which included his wife and four minor children. Ld. Counsel argued that the condition of the Petitioner was such that he would not be able to do anything in future and thus suffered 100% loss of earning capacity due to traumatic injuries. Ld. Counsel has placed reliance upon the judgment in the matter of Jakir Hussein V/s. Sabir & Ors. 11 (2015) ACC 1 (SC) decided on 18.02.2015 and requested that the Petitioner was virtually 100% functionally disabled.
24.I have heard Ld. Counsel for the Petitioner and have gone through the Judgment relied upon. The settled law as held in a catena of cases is that the percentage of loss of earning capacity should correspond to the percentage of loss of functional / physical disability. (NIC Ltd. V/s. Miibasir Ahmad, V (2007) SLT 70). In present case, the record suggests that it being a case of Quadriparesis and Memory Loss, the Petitioner is entitled for Future Loss of Wages. This Court cannot overlook the fact that the Petitioner belongs to Lower Middle Strata of Society and it is hard for him to raise the resources required for his ongoing medical expenses. I have considered that the extent of disability suffered and also the fact that the Petitioner will never be able to do any work/ earn due to the disabilities sustained, his earning capacity being totally curtailed. Adding to this is the suffering on account of his substantial impairment in memory caused by the accident. Keeping in view the facts and circumstances, the functional disability of Petitioner is taken as 100% in relation to his whole body, in view of dictum of Raj Kumar V/s. Ajay Kumar & Anr. (2011) 1 SCC 343".
25.The petitioner has placed on record the document Mark A, which shows his date of birth as 15.06.1972. His age is thus taken as 40 years, at the time of accident. In the absence of any evidence in support of his earnings, the Petitioner is entitled to claim his income on the basis of minimum wages to a Matriculate, as were applicable to an Workman at the relevant time, which were Rs.8,112/- . While taking the multiplier of 15, the Future Loss of Income to the Petitioner is assessed as Rs.8,112.00 x 12 x 15 x 1 = Rs.14,60,160/-.
26.So far the future prospects concern, in a recent judgment in “The Oriental Insurance Co. Ltd. Vs. Lekharaj @ Lekhraj & Ors. (Decided on 27.1.2016), it was observed that the three Judge Bench Decision in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 was held to be taken as a binding precedent till the law on the subject of future prospects for those 'Self Employed' or engaged in employment at a 'Fixed Salary' was clarified by a larger Bench of Hon'ble Apex Court. Hence, in the absence of any evidence that the salary of the Petitioner was subject to any periodic increase, the Petitioner is not entitled for the same.
27.The Petitioner is entitled for the compensation on account of the Pain & suffering he underwent due to his accidental injuries. Considering his present state which has left him permanently disabled with impaired Memory loss and also the fact that he has to suffer this agony throughout his life, I assess Rs. 1,50,000/- as compensation towards Pain, Shock and Suffering to the petitioner. [(2013) 8 SCC 389].
28.While fixing compensation for loss of amenities of life, the features like the age, marital status and unusual deprivation undertaken by a person in his life are to be reckoned. The Petitioner has not filed anything in support thereof. The injuries however have led to the loss of expectation of life i.e.. Petitioner's normal life span has been greatly affected due to the injuries. Keeping in mind this fact, he is awarded compensation of Rs. 1,50,000/- towards Loss of Amenities and Enjoyment of Life.
The Petitioner has placed on record the Medical Bills of Rs. 1,91,107/-. Since no evidence in rebuttal has come up from the Respondents, I award an amount of Rs. 1,91,107/- to the Petitioner under the head Medical Bills.
Wife of Petitioner - PW2 stated in her affidavit that her husband suffered complete loss of wages due to his Permanent Disability. The Last OPD visit of the Petitioner is shown in 30.09.2014. The Treatment Record suggests that because of the injuries, it must have taken some time for the Petitioner's injuries to heal up and it can be safely assumed that he would have suffered loss of earning capacity at least for a period of Two years. The Petitioner is thus, awarded an amount of Rs.1,94,688/-(Rs.8,112.00 x 24) for Two years under the head Loss of Wages.
In her affidavit, the Wife of Petitioner stated that the family had to spend on providing rich protein diet, and for keeping an attendant for the Petitioner. The Petitioner is awarded a lumpsum amount of Rs.20,000/- for Special Diet and Rs.20,000/- for Conveyance Charges.
Sh. Gaurav PW3 an attendant was examined on behalf of Petitioner. He stated that the Petitioner was being looked after by him from mid of February' 2012 till date. This witness stated that the Petitioner was mentally unfit and had almost no sense of taking care of himself. He stated that he was looking after the Petitioner, who was unable to even stand by himself. He stated that he was getting Rs. 3,500/- alongwith food and clothing from the Petitioner's family. I may state that a victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member. In Delhi Transport Corporation and Anr. Vs. Lalita, AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12. Therefore, on a lumpsum basis, the Petitioner is awarded a compensation of Rs.50,000/- as Attendant's Charges.
33.Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the Petitioner:-
1 Future Loss of Income Rs.14,60,160.00 2 Towards Pain Shock & Suffering Rs. 1,50,000.00 3 Loss of Amenities & Enjoyment of Life Rs. 1,50,000.00 4 Towards servant/attendant charges Rs. 50,000.00 5 Towards conveyance & special diet Rs. 40,000.00 6 Towards Medical bills Rs. 1,91,107.00 7 Towards Loss of Wages Rs. 1,94,688.00 Total Rs.22,35,955.00
Upon perusal, it is made out that the learned Tribunal had dealt with the issues in question and deemed it appropriate to award the compensation after duly taking the settled law into consideration.
On the aspect of calculation of monthly income of the victim, the learned Tribunal took the minimum wages into consideration and calculated the future income on that basis.
The basis of the instant appeal is whether the said minimum wage as taken by the learned Tribunal ought to have been taken on the prevailing minimum wage rate in the State of UP and not Delhi.
On the said aspect, the learned counsel for the victim has rebutted the same by citing the case of Chandra (supra) and it is contended that the similar issue was dealt with by the Hon‟ble Supreme Court and therefore, the calculation of the compensation on the prevailing wage rate in Delhi is deemed to be appropriate.
In the said case, the Hon‟ble Court had taken a guess work by relying upon the nature of work undertaken by the victim in the said case. Even though the rebuttal of the respondent victim is based on the said case and , the facts of the case are different than the factual matrix in the instant case, this Court is of the view that the intent of the Hon‟ble Court is evident and therefore, this Court need to keep the same in mind while adjudicating the appeal based on the similar issues.
Now coming to the contention of calculation of the minimum wages as per the rate prevailing in the state in which the respondent victim was residing. As per the material on record, the deposition of the wife of the victim depicts that the victim was allegedly earning Rs. 20,000/- per month, however, due to absence of material evidence, the learned Tribunal considered the minimum wages for computation of the compensation.
In the past, this Court has time and again held that the Act is a welfare legislation aimed at benefiting the victims of the accidents. In the instant case, it is not in dispute that the victim has suffered 90% disability and therefore, would not be able to continue the work of security officer.
The material on record also makes it clear that he was the sole earner in the family and therefore, the family shall be dependent on the compensation awarded for subsistence and furtherance of treatment of the victim.
Since the calculated compensation is already based on the minimum wage and not the actual claimed income of the victim, in the interest of justice, this Court does not deem it appropriate to reduce it further as the same would be an addition to the misery of already suffering family.
The increase in living cost has already increased the difficulties of the families where the sole earner have suffered disabilities due to accident and therefore, the further reduction would be nothing but an impediment for the basic sustenance of the families.
In view of the foregoing discussion, this Court does not find any force in the arguments of the petitioner for further reduction of the compensation amount and therefore, the impugned award dated 1st July, 2016 as passed by the Motor Accidents Claims Tribunal, Karkardooma, New Delhi in claim bearing no. 125/2016 is hereby upheld.
Accordingly, the instant appeal is dismissed along with pending applications, if any.
Order be uploaded on the website forthwith.