Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court : In an appeal filed against the judgment and award dated 20-11-2009 passed by the Motor Accident Claims Tribunal, Mumbai awarding compensation of Rs. 48,38,543/- with interest @7.5% p.a. from the date of the application till final realization, seeking enhancement of the same vide present appeal, Anuja Prabhudessai J., held the claimant to be entitled for compensation of Rs. 64,86,714/- which is more than the amount claimed by the claimant i.e., Rs. 45,00,000/- and observed that it is obligatory for the Tribunal and Court to award ‘just compensation’, even if it is in the excess of the amount claimed.

The Court noted that the Claimant, a young man of 26 years of age is wheelchair bound for life as he had suffered multiple injuries in a motor vehicle accident leading to traumatic paraplegia.

The Court further noted that on perusal of the medical bills the claimant had incurred actual expenses towards medical, transport, physiotherapy and attendant charges to the tune of Rs. 13,77,915/- and is thus, entitled for reimbursement of the said amount of Rs. 13,77,915/- along with Rs. 6,000/- towards special diet while under treatment.

The Court further found the claimant, who is paralyzed from waist below would require attendant throughout his life and considering the attendant charges at Rs. 4,500/- per month and adopting multiplier of 17, the claimant was held entitled for compensation of Rs. 9,18,000/- towards attendant charges in future as against Rs. 50,000/- awarded by the Tribunal.

The Court held the claimant is entitled for total compensation of Rs. 10,50,000/- towards future medical treatment, physiotherapy charges and other miscellaneous expenses considering the Claimant will require physiotherapy for both the lower limbs and being paraplegic, is confined to bed and is prone to suffer from bladder and kidney infections, pulmonary embolism, deep vein thrombosis, etc. and likely to develop pressure ulcers and sleep on waterbed along with follow up treatment.

The Court further enhanced the compensation towards special diet to Rs. 3,50,000/- as against Rs. 10,000/- awarded by the Tribunal as it is well known that paraplegic patients need high protein and fiber diet, with multivitamin supplements along with a special diet to regulate their bowel movement.

The Court observed that the loss of earning capacity of the claimant is 100% and having failed to prove the actual income, the loss of future earning has to be assessed on the basis of the notional income. Thus, considering the age of the claimant, the notional income can be considered at Rs. 8,000/- per month i.e., Rs. 96,000/- per annum and adding 40% towards loss of future prospects, total amount would be Rs. 1,34,400/- per annum. Applying multiplier of 17 as opposed to 18 used by the Tribunal incorrectly, the claimant is entitled for Rs. 22,84,800/-.

The Court also opined that the claimant is a young man of 26 years of age, and is wheelchair bound for life. In addition to physical and mental suffering, his mobility impairment is likely to affect his conjugal relationship and shatter his hope to nurture children. In such circumstances, compensation of Rs. 3,00,000/- awarded by the Tribunal towards pain and suffering and loss of amenities is enhanced to Rs. 5,00,000/- considering that he is unable to enjoy amenities of life, which he would have otherwise enjoyed but for the tragic accidental injuries.

Placing reliance on Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Court noted that there is no embargo in awarding compensation more than that claimed by the claimant, rather it is obligatory for the Tribunal and Court to award ‘just compensation’, even if it is in the excess of the amount claimed.

Thus, the Court held that the claimant is entitled for compensation of Rs. 64,86,714/- inclusive of no-fault liability and upon excluding an amount of Rs. 23,18,000/- in respect of future expenditure under different heads, the Claimant shall be entitled for interest on amount of Rs. 41,68,715/- @7.5% per annum from the date of the application till final realization.

The Court directed the Insurance Company to deposit the balance amount within a period of four weeks from the date of uploading of the order wherein 10% of the compensation deposited by the Insurance Company with proportionate interest accrued thereon be paid to the Appellant-claimant on payment of deficit court fees and the balance amount shall be invested in the name of the Appellant-claimant in any nationalized bank with liberty to withdraw quarterly interest accrued on the said amount.

[Yogesh Subhash Panchal v. Mohd. Hussain Malik, 2022 SCC OnLine Bom 4076, decided on 19-09-2022]


Advocates who appeared in this case:

Ms. Rina Kundu for the Appellant/Applicant in FA/1700/2012;

Ms. S.S. Dwivedi for the Appellant in FA/1361/2010 and;

for the Respondent in FA/1700/2012.

Case BriefsHigh Courts

Rajasthan High Court: Birendra Kumar J. allowed the appeal and enhanced the award considering the settled guidelines in the subsequent judgments to reach at “just compensation”.

The instant appeal under Section 173 of the Motor Vehicles Act, 1988, was filed by the wife, minor daughter and parents of Late Ramavatar @ Ramgopal, a victim of motor vehicle accident happened due to rash and negligent driving of the driver of the offending vehicle. The appellants filed MAC Case No.134/2011 before the Motor Accident Claims Tribunal, Bharatpur. By the impugned judgment and award the Tribunal awarded Rs.3, 21,600/- against claim of Rs.80, 35,000/-. Being dissatisfied with the calculation and quantum of compensation decided by the appellants, instant appeal was filed.

Counsel for the appellants Ms. Chelsi Gangwal contends that there was overwhelming unrebutted evidence of the wife of the deceased AW-1 Asha, the father of the deceased AW-2 Pradhan Singh and a businessman dealing with AC etc. who was examined as AW-3 Lalit Kumar that the deceased had monthly earning of Rs.12,000/-. However, the learned Tribunal took a pedantic approach of the matter that since no documentary proof of income of the deceased was produced, the notional income of Rs.3, 000/- per month was taken as multiplicand.

Counsel for respondent 3 put a defense that the offending vehicle was being used in violation of the terms and conditions of the policy. It was a case of contributory negligence as has been held by the Tribunal.

The Court observed that In the present case, there is no photographs of the site plan nor the author who had prepared the site plan Ex.-2 appeared before the Court. In my view, the Tribunal has committed error of appreciation of evidence and in fact, it is not a case of contributory negligence. Therefore, only for the reason that a self-earning person could not produce the document of his income, the deposition of the witnesses conversant with the income of the deceased should not have been ignored.

The Court relied on National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, and observed “Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree or proximity to the arithmetical precision on the basis of material brought on the record in an individual case. In a case of death, the legal heirs of the deceased cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation.

The Court thus held “Thus, under the conventional head, the appellants would be entitled for Rs.1,50,000/-, the total payable compensation comes to Rs.26,71,600/- (Rupees Twenty Six lacs Seventy One Thousand and Six Hundred) The aforesaid amount minus already paid would be payable by the Insurer within three months to the claimants along with interest of 9% per annum, failing which the aforesaid interest would be payable till the realization of the whole due amount. The 1/3rd share of the minor daughter shall be deposited in some Fixed Deposit Scheme and shall be spent for education and betterment of the minor as and when occasion arises on the order of the Court only.”[Asha v. Naresh Kumar, 2022 SCC OnLine Raj 262, decided on 03-02-2022]


Appearances:

For Appellant(s) : Ms. Chelsi Gangwal for Mr. Prateek Sharma

For Respondent(s) : Mr. Ritesh Jain


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Reminding the Courts that the Motor Vehicles Act is in the nature of social welfare legislation and its provisions make it clear that the compensation should be justly determined, the bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that a realistic recompense having regard to the realities of life, both in terms of assessment of the extent of disabilities and its impact including the income generating capacity of the claimant.

Brief Facts

On 13.4.2001, appellant suffered serious injuries when the motorcycle, where the appellant was riding pillion, was hit by a car. Both riders were impacted, resulting in severe head injuries to the appellant. He was bedridden, totally immobilized and initially, remained admitted in the hospital for 191 days. The appellant has also suffered severe impairment of cognitive power with hemiparesis and total aphasia and the prognosis for him is 69% permanent disability.

The claimant was 21 years old and was earning around Rs.4,500/- per month from jewellery work when he suffered the accident.

Compensation awarded by Tribunal: Rs.5,74,320/-

Compensation Awarded by Kerala High Court: 14,31,752/

Analysis

On facts

“The 21 year old’s youthful dreams and future hopes were snuffedout by the serious accident. The young man’s impaired condition has certainly impacted his family members. Their resources and strength are bound to be stressed by the need to provide full time care to the claimant. For the appellant to constantly rely on them for stimulation and support is destined to cause emotional, physical and financial fatigue for all stakeholders.”

The Court noticed that while the permanent disability as certified by the doctors stands at 69%,the same by no means, adequately reflects the travails the impaired claimant will have to face all his life. A person therefore is not only to be compensated for the injury suffered due to the accident but also for the loss suffered on account of the injury and his inability to lead the life he led, prior to the life altering event.

The Court held that in cases wherein the claimant is suffering severe cognitive dysfunction and restricted mobility, the Courts should be mindful of the fact that even though the physical disability is assessed at 69%, the functional disability is 100% in so far as claimant’s loss of earning capacity is concerned.

It hence held,

“… the impact on the earning capacity for the claimant by virtue of his 69% disability must not be measured as a proportionate loss of his earning capacity. The earning life for the appellant is over and as such his income loss has to be quantified as 100%. There is no other way to assess the earning loss since the appellant is incapacitated for life and is confined to home.”

The Court, hence, enhanced the compensation to Rs. 27,67,800 to be paid within six weeks. Any amount paid earlier under these heads, may be adjusted during payment to the appellant.

On ‘just compensation’

The Court emphasized that, in cases like the one at hand, the Tribunal and the Courts must be conscious of the fact that the permanent disability suffered by the individual not only impairs his cognitive abilities and his physical facilities but there are multiple other non-quantifiable implications for the victim.

“The very fact that a healthy person turns into an invalid, being deprived of normal companionship, and incapable of leading a productive life, makes one suffer the loss of self-dignity. Such a Claimant must not be viewed as a modern day Oliver Twist, having to make entreaties as the boy in the orphanage in Charles Dickens’s classic, “Please Sir, I want some more”. The efforts must be to substantially ameliorate the misery of the claimant and recognize his actual needs by accounting for the ground realities. The measures should however be in correct proportion.”

It further noted that the plea of the victim suffering from a cruel twist of fate, when asking for some more, is not extravagant but is for seeking appropriate recompense to negotiate with the unforeseeable and the fortuitous twists is his impaired life.

“Therefore, while the money awarded by Courts can hardly redress the actual sufferings of the injured victim (who is deprived of the normal amenities of life and suffers the unease of being a burden on others), the courts can make a genuine attempt to help restore the self-dignity of such claimant, by awarding ‘just compensation’.”

[Jithendran v. The New India Assurance Co., 2021 SCC OnLine SC 983, decided on 27.10.2021]


Counsels:

For Claimant: Advocate A. Karthik,

For Insurance Company: Advocate JPN Shahi


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy