Case BriefsHigh Courts

Kerala High Court: N. Nagaresh, J., while allowing the present revision petition, made additional compensation citing settled precedents.

 Background

Respondent 3 (insurer) filed the present review petition seeking to review the judgment dated 08-09-2020 in the Motor Accidents Compensation Act (MACA), 1999. The respondent was the petitioner in Original Petition (MV) No 684 of 2013 on the files of the Motor Accidents Claims Tribunal, Pala. The respondent suffered serious injuries in a motor accident occurred on 06-02-2013. Tribunal awarded Rs 989350 under various heads as compensation. Dissatisfied with the quantum of compensation, respondent filed MACA No 2202 of 2016. In the MACA, this Court granted additional compensation of Rs 2018823. The limited ground on which this Revision Petition is preferred relates to grant of 50% enhancement towards future prospects for arriving at the notional income of the respondent.

 Observations

Court placed reliance on the case of National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680, wherein it was held that 40% of established income should be added towards future prospects in case the deceased was below 40 years. In Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130, the Supreme Court reduced the percentage of future prospects from 50% to 40%. With respect to the present facts and circumstances, Court said, “In the absence of any proof that the respondent belonged to a salaried employment and the respondent being below the age of 40 years, he was entitled to count only 40% of his monthly income towards future prospects, in the light of the judgments of the Apex Court. Therefore, the notional monthly income of the respondent should have been taken as Rs 12600. But, this Court took Rs 13500 as the notional monthly income inclusive of future prospects, which obviously is an error. Therefore, the judgment in the MACA is liable to be reviewed.”

Accordingly, the compensation for permanent disability of the respondent is fixed at Rs 1814400. As the respondent had already been awarded Rs 345600 by the Tribunal, the entitlement towards additional compensation for permanent disability, amounts at Rs 1468800

 Decision

Pursuant to above observations, Court awarded interest at the rate of 9% per annum for the additional compensation towards permanent disability and disfigurement.[Manager, New India Assurance Co. Ltd. v. Biju, 2021 SCC OnLine Ker 151, decided on 04-01-2021]


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Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., while determining the compensation in the cases of accident, observed that,

“…job of Homemaker can never be compared with employee or employment and the importance and the values are also to be considered by the Courts, while assessing the compensation.”

Claimant who is the appellant has sought enhancement of compensation in the present appeal.

Claimant sought who sustained grievous injuries resulted in permanent disability.  A Bus had hit the appellant/claimant when she was standing near the bus stand to catch a bus, causing her grievous injuries in the back along with other serious injuries.

Permanent Disability

Perusal of the nature of injuries revealed that the appellant/ claimant sustained not only grievous injuries but resulted in permanent disability and she is continuously taking treatment for that.

Tribunal concluded that due to the rash and negligent driving of the bus driver, the grievous injuries were caused to the appellant.

A monthly income of the appellant was fixed as Rs 4,500 ad accordingly a sum of Rs 4, 86, 000 was granted towards loss of income by the Tribunal.

Analysis & Decision

Court noted that the appellant/claimant is unable to support the family and the husband and children have to take care of her. Undoubtedly, no document has been produced to establish employment as well as the income of the appellant/claimant.

 “…as a woman at home is the Homemaker and for this purpose, the fixation of income for grant of compensation, assessment can be made considering the appellant/claimant as to the Homemaker.”

It happens the claimants are advised either by the relatives, friends, or counsels to say as if they are employed and earning and in order to get compensation, the claimants are ill-advised to provide such facts before the Tribunal in their claim petitions.

In the present matter, there is no dispute between the parties that the appellant is a Homemaker with husband and children. Thus, the tribunal ought to have drawn factual inference in the absence of any material to establish employment and income.

High Court found the amount of compensation fixed to be inadequate and improper.

Bench also emphasized on the importance of “Homemakers”. Thus, the importance, value as well as the materialistic factors are to be considered, while fixing the compensation as far as the Homemakers are concerned.

Keeping in view the amount of fairness to be adopted in the cases of Homemakers, we cannot forget that the Homemakers are the Nation Builders.

If the Homemaker died, the impact would be unmeasurable and the family will become scattered. It would be very difficult to cope with the family.

Therefore, homemakers are standing on a higher pedestal than that of the earning member in a family. Thus, mitigating factors, family status, the income of the husband and other aspects are to be considered while fixing the compensation for Homemakers.

Bench stated that it has no hesitation in arriving at the conclusion that the permanent disability caused to the appellant/claimant would affect not only her family life but also a great loss to the entire family.

Tribunal has mechanically on the basis of proof for employment as well as income decided the compensation without taking the aspects in the right perspective.

Once the fact of an accident is established and the Insurance Policy Coverage is not disputed and negligence is decided, then the claimants are entitled to ‘Just Compensation’.

Enhancement of Compensation

Hence, it was held that the compensation of Rs 4,86,000 awarded by the Tribunal towards loss of income is to be modified. This apart, the compensation granted under the head of ‘Pain and Sufferings’ is also very less, which is to be enhanced as the appellant/claimant has suffered continuously, and therefore, the enhancement is to be granted to the appellant/claimant.

Total compensation of Rs 14,07,000 with an interest at the rate of 7.5% per annum is to be granted to the appellant/claimant. [Bhuvaneswari v. Mani, 2020 SCC OnLine Mad 2163, decided on 01-09-2020]

Case BriefsHigh Courts

Gauhati High Court: Suman Shyam, J. dismissed an appeal filed by an insurance company against the order of the Commissioner directing payment of compensation to an employee for permanent disability endured during his employment, as a result of an accident.

In the present case, the respondent met with an accident while driving an insured vehicle, and resultantly he suffered many injuries. The respondent filed a case for payment of compensation before the Workmen Compensation Commissioner, for compensation on the ground that the injuries suffered by him in the accident had resulted into his permanent partial disablement leading to loss of his earning capacity. The Commissioner awarded the payment of Rs 1,71,234 to the respondent after taking into consideration his monthly salary of Rs 3500 and the testimony of the doctor according to whom, the respondent had suffered 25 per cent permanent disability reducing his earning capacity by about 40 per cent. The present appeal had been made by the insurance company against the order of the Commissioner, Workmen Compensation under Section 30 of The Workmen Compensation Act, 1923. 

The learned counsel for the appellant, M. Choudhury, contended that the payment of compensation for loss of earning capacity cannot be worked out on the basis of mere assumption of a doctor, i.e., the doctor has only got a speculative role in deciding the percentage of loss in the income of the respondent/claimant. Furthermore, the salary of the respondent should not be taken into consideration while the calculation of the compensation. She also placed reliance on the judgment of Oriental Insurance Company Ltd. v. Bimal Pathar, 2017 SCC OnLine Gau 1292.

The learned counsel for the respondent Rajbarbhuiya contended that the credibility of the testimony of the witness doctor was never questioned or challenged by the appellant. before the Commissioner. He further said that the plea of the appellant should not be entertained, keeping in mind the beneficial object of the Act.

The Court observed that the daily allowance earned by a workmen can be taken into consideration while calculating the compensation. It was opined that the case of Oriental Insurance Company v. Bimal Pathar, 2017 SC OnLine Gau 1292,  itself gave this principle and the reliance of the appellant’s counsel on the given case mitigated the scope of dissent in this regard. It was further observed that the testimony of the doctor in the present case, was not merely speculative in nature. The same had been substantiated through X-ray reports and further fortified through the disability certificate presented by the respondent.

It was opined that though this Court was the court of the first appeal in this matter by virtue of Section 30 of the Act, it would not entertain a factual dispute which was not even raised by the appellant herein, at the time of the trial. Thus, the appeal was dismissed and payment of the balance amount to the respondent was ordered within six weeks.[United India Insurance Company v. Naren Deka, 2019 SCC OnLine Gau 2259, decided on 07-05-2019]

Case BriefsHigh Courts

Delhi High Court: I.S. Mehta, J. dismissed an appeal filed by the claimant against an award of compensation granted in a motor accident’s claim by the Presiding Officer, Motor Accidents Claim Tribunal-2 (Central), Tis Hazari Courts.

Bhagwat Prasad was crossing a road when he was hit by a motorcycle. He filed a claim petition against the driver of the motorcycle as also the insurer. The Tribunal awarded a compensation of Rs 1,46,572 plus interest to Bhagwat Prasad. Not satisfied with the quantum of compensation, he filed the present appeal.

D.S. Bhandari, Advocate for Bhagwati Prasad challenged the award on various grounds including that the Tribunal did not award any compensation towards loss of income due to inability. Per contra, Pankaj Gupta for Suman Bagga, Advocates representing the insurer supported the Tribunal’s order.

The High Court noted that Bhagwat Prasad relied upon his disability certificate of 42% which was not permanent disability. This, according to the Court, disentitled him for compensation towards loss of income. In view of the Court, the same also disentitled him for compensation towards future treatment. As far as the plea regarding the loss of disfigurement is concerned, the Court observed, “the same losses its significance, as, the injuries on the person is a temporary fracture…As such fracture on the ankle is not permanent in nature and is curable. The same cannot be classified as disfigurement injury which could be a stigma in the society and a factor to lower down his position in the society. Therefore, appellant is not entitled to any compensation towards disfigurement.”Finding no infirmity in the impugned award passed by the Tribunal, the Court dismissed the present appeal. [Bhagwat v. Laxman, 2019 SCC OnLine Del 7339, decided on 26-02-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Rohinton Fali Nariman and Indu Malhotra, JJ. allowed an appeal filed against the order of Bombay High Court passed in a claim under Motor Vehicles Act, 1988.

The appellant, 29 years of age, suffered multiple injuries in an accident with a car driven by Respondent 1. He suffered permanent disability to the extent of 75%. The Courts below found, on evidence, that Respondent 1 was driving the car rashly and negligently. As a consequence, the appellant lost his livelihood – job of a driver. It is pertinent to note that before the accident, he was drawing a monthly salary of Rs 8500. The appellant filed a claim petition before the Motor Accident Claims Tribunal which was partly allowed. However, dissatisfied with the quantum of compensation, an appeal was filed before the High Court which erroneously concluded that it would be just and appropriate if monthly income of the appellant was considered to be Rs 5000. Aggrieved thus, the appellant filed the instant appeal.

The Supreme Court, at the outset, observed that in cases of motor accidents leading to injuries and disablement, it is a well-settled principle that a person must be compensated for physical injuries as well as non-pecuniary losses suffered due to the injury. It was reiterated that the purpose of compensation under the Act is to fully and adequately restore the aggrieved to the position prior to the accident. Reference was also made to Yadav Kumar v. National Insurance Co. Ltd., (2010) 10 SCC 341; Sarla Verma v. DTC, (2009) 6 SCC 121 and Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. It was held that effect of permanent disability on the earning capacity of the injured must be considered while awarding the compensation. Considering all the facts, the Supreme Court computed the just compensation amounting to Rs 20,29,000 to be awarded to the appellant. The civil appeal was accordingly allowed. [Anant v. Pratap,  2018 SCC OnLine SC 1082, dated 21-08-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: An appeal filed by the Executive Engineer against the award of compensation passed in favour of Respondent 2, was dismissed by a Single Judge Bench comprising of Sanjeev Kumar, J.

Respondent 2 (an iron smith) was engaged as a labour by Respondent 3 (contractor) who worked with the appellant. A compressor rod was given by the appellant to Respondent 2 to carry out repairs. While working on the compressor rod, Respondent 2 sustained a certain injury which resulted in his arm getting amputated and thereby he suffered permanent disability. He preferred a claim petition before the Commissioner under Workmen Compensation Act, who awarded him a compensation amounting to Rs. 2,97,000 along with interest at 6% per anum. The appellant challenged the award contending inter alia that there was no privity of contract between him and Respondent 2, therefore, liability to compensate him could not be fastened on the appellant.

The High Court, after duly considering the submissions made by the appellant, observed that his contention was fallacious. The Court noted that it was undisputed that Respondent 3, who had engaged Respondent 2 as a labour, worked with the appellant as a contractor. Respondent 2 was engaged to carry out the work of the appellant. Furthermore, the job of repairing the iron rod, that was the direct reason for the injury, was assigned to Respondent 2 by the Junior Engineer of the appellant. The Court categorically stated that the appellant being a principal employer was liable to pay compensation to Respondent 2 on account of permanent disablement suffered by him during and in the course of his employment with the appellant. In such circumstances, the High Court dismissed the appeal holding the appellant liable to compensate Respondent 2 as awarded by the Commissioner. [Executive Engineer, PWD v. Commissioner, Workmen’s Compensation,  2018 SCC OnLine J&K 367, dated 04-06-2018]