Punjab-Haryana High Court
Babli @ Rajwanti And Anr vs Satyawan Saharawat And Ors on 15 October, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:141431
FAO-2782-2006
2006 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO
FAO-2782-2006 (O&M)
Date of Decision : 15.10.2024
BABLI @ RAJWANTI AND ANR ....APPELLANTS
Versus
SATYAWAN SAHARAWAT AND ORS ....RESPONDENTS
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr.Sanjeev Kodan, Advocate
Mr
for the appellant(s).
appellant
s. Simran,
Ms. Simran Advocate for
Mr. Pardeep Goyal, Advocate for respondent No.3.
-.-
SUDEEPTI SHARMA,
SHARMA J.
1. The present appeal has been preferred against the judgment dated
02.08.2005 passed in the claim petition under Section 166 of the Motor Vehicles
Act, 1988 by the learned Motor Accident Claims Tribunal
Tribunal, Jhajjar (for short, 'the
Tribunal') vide which,
which the claim petition filed by the claimant
claimants/appellants was
dismissed.
FACTS NOT IN DISPUTE
2. Brief facts of the case are that oon 20.10.2000, Ashok Kumar was
going for taking milk on his bicycle to village Siddipur Lova. It was about 3.15,
3.15
when he reached near Krishana Akhara on main road of Siddipur Lova,
Bahadurgarh, a truck bearing registration No. HR
HR-46- A/1928 from the opposite
side came there.
there. The driver of the truck was driving the truck in a rash and
negligent manner. The truck hit Ashok Kumar as a result of which he suffered
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grievous injuries and died on the spot. It is alleged that the deceased was aged
about 24 years. He was engaged in the business of sale of milk. He was earning
Rs.12,000/- per month. A sum Rs.20,000/
Rs.20,000/- was spent on hiss last rites.
Caimants/petitioners
/petitioners filed the present petition claiming the compensation of
Rs.10,00,000/-.
3. Upon notice of the claim petition, respondents appeared and denied
the factum of compensation.
4. From the pleading of the parties, the Tribun
Tribunal
al framed the following
issues:-
“1. Whether deceased Ashok Kumar expired in a motor
vehicle accident on 20.10.2000 at about 3.15 a.m. near Krishan
Akhara, Bahadurgarh, in a motor vehicle accident which had
been caused due to rash and negligent driving of vehicle No.
HR- 16-A-1928
1928 by respondent No.1 Satyawan? OPP.
2. If issue No.1 is proved, to what amount of compensation, the
claimant is entitled to? OPP
3. Whether respondent No.1 had no legal and valid driving
licence at the time of accident? OPR
OPR-3Relief.”
5. Vide order dated 26.8.2003, an additional issue No.3
No.3-A
A was also
framed.
“3-A.
A. Whether the respondent No.2 was not the authoriseddriver of the vehicle at the time of accident? OPR
OPR-3.”.
6. After hearing learned counsel for the parties and perusing the whole
record, the learned Tribunal dismissed the claim petition. Hence, the claimants-
claimant
appellants filed the present appeal for grant of compensation.
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SUBMISSIONS OF THE COUNSEL FOR THE PARTIES
7. Learned counsel for the appellants
appellants contends that the claim petition of
the appellants is dismissed only on the ground that testimony of PW-3
3 Surte, who
was an eye witness could not be relied upon and no evidence was led by the
appellants that respondent No.2 was driving the truck in a rash and negli
negligent
gent
manner.
8. Per contra, learned
learn for the respondent
respondent-Insurance
Insurance Company contends
that the driver Mukesh Kumar (respondent No.2) in his disclosure statement
admitted that he had committed
commit the theft of the offending truck. Therefore, the
insurance company would not be liable to pay the compensation. She further
contends that even the learned Tribunal held that respondent No.2 was not
authorized driver of the vehicle and as such insurance company would not be liable
to pay any compensation. She prays for dismissal
smissal of the claim petition.
9. I have heard learned counsel for the parties and perused the whole
record of this case.
case Relevant portion of the judgment is reproduced hereunder:
hereunder:-
“Issue No.1:-
Drawing my attention to the testimonies of Hari Kishan (PW2)
and Surte (PW3) and the copy of the FIR, Mr. R.K.Vats,
learned counsel for the petitioners argued that on the basis of
testimonies these witnesses, it the stands established on the
record that respondent No.2 was driving the truck in a rash and
negligent manner and he had caused the accident. Counsel
further argued that petitioners have proved on the record that
respondent No.1 is facing the trial under Section 304
304-A
A IPC.
Law is well settled that the driver of the vehicle being
prosecuted
ed under Section 304
304-A,
A, IPC, is prima facie proof of3 of 17
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2006 (O&M) -4-the fact that he was rash and negligent. Accordingly, the
findings on issue No.1 be returned in favour of the petitioners.
11. On the other hand, Mr. Kadian, learned counsel for
respondent No.3 argued that
at petitioners have miserably failedto establish that respondent No.2 was driving the truck and that
he was rash and negligent while driving the same. Counsel
submitted that the only evidence that has been led by the
petitioners is the testimony of Surte (PW3). Surte (PW3) in his
testimony has deposed that about four years back at about 4-00
4a.m. he was going to answer the call of nature. A cyclist was
going ahead on him. Cyclist was Mukesh Kumar and he had
died in the accident. Counsel submitted that Surt
Surte in histestimony has also deposed (PW3) that tractor driver had told
the registration number of the truck to him. Mr Kadian argued
that in fact a reading of the testimony of Surte (PW3) would
show that he had not witnessed the occurrence. Counsel
submitted
ed that in fact there is no evidence on the record thatrespondent No.2 was driving the truck and he was rash and
negligent.
12. I have duly considered the rival contentions.
13. Petitioners have examined Surte (PW3), the alleged eye-
eye
witnesses, Surte (PW3) in
n his testimony has deposed that aboutfour years back at about 4-00
00 a.m. he was going to answer thecall of nature. A cyclist was going ahead of him. There had
come a truck from the opposite side. The truck had hit the
cyclist. Mukesh had died on the spot
spot.. The tractor driver had4 of 17
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2006 (O&M) -5-noticed the registration number of the truck and had informed
about the same to him. He in term had informed about the same
to the police. In the cross-examination
examination he had deposed that hewas at a distance of about one acre from Muk
Mukesh
esh Kumar. I amof the considered viewн that Surte (PW3) had not witnessed the
occurrence. He is not even aware of the name of the deceased
and that of the truck driver. He did not know the registration
number of the truck. Apart from this, petitioners hav
havee led noevidence that respondent No.2 was driving the truck and that he
was rash and negligent in driving the same. Accordingly, I find
this issue against the petitioners.
Issues No.3 & 3-А,
14. Both these issues are inter
inter-connected. Accordingly, I havetaken up them together discussion. Petitioners have led no
evidence respondent No.2 was employed as driver for that by
respondent No.1 on the truck in question. On the other hand
respondents have proved on the record the disclosure statement
of respondent No.2 before the police. Bhupender Verma (RW1)
deposed that he had brought the record of the case titled State
Versus Mukesh bearing FIR No.358/2000, under Sections 279,
304-A,
A, IPC, Police station, City Bahadurgarh. BhupenderVerma (RW1) proved on the recor
recordd the disclosure statement(Ex.R1). A reading of disclosure statement (Ex.R1) shows that
Mukesh Kumar, respondent No.2 had mentioned in the same
that he had committed the theft of the truck and that the truck in
question had met with an accident. This show
showss that respondent5 of 17
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2006 (O&M) -6-No.2 was not an authorised driver of the vehicle. Vinod Sharma
(PW1) in his testimony has deposed that the driving licence of
Mukesh Kumar was not attached with the file. In view of the
above-discussion,
discussion, I hereby hold that respondent No.2 was notauthorised driver of the vehicle an
and
d as such the insurancecompany i.e.
.e. respondent No.3 is not liable to pay anycompensation. However, respondent No.3 has failed to
establish that respondent No.2 was not holding a legal and
valid driving licence. I find issue No.3 against respondent No.3
and issue No.3-A
A in favour of respondent No.2.
No.2.”
ANALYSIS OF RECORD.
10. A perusal of the record shows that it stands established on the record
that respondent No.2 was driving the truck in a rash and negligent manner and he
had caused the accident. Counsel further argued that petitioners have proved on the
record that respondent No.1 is facing the trial under S
Section 304-A
A IPC. Law is
well settled that the driver of the vehicle being prosecuted under Section 304-A,
304
IPC, is prima facie proof of the fact that he was rash and negligent. Accordingly,
the findings on issue No.1 are liable to be returned in favour of the petitioners.
Since respondent
espondent No.2 was not holding a legal and valid driving licence
licence,, therefore,
I decide issue No.3 against respondent No.3 and Issue No.3
No.3-A
A in favour of
respondent No.2.
11. Shri Bhupender Verma was examined as RW
RW-1, who deposed thatt he
he had brought the record of the case titled State Versus Mukesh bearing FIR
No.358/2000, under Sections 279, 304-A,
304 A, IPC, Police station, City Bahadurgarh.
Bhupender Verma (RW1) proved on the record the disclosure statement made by
respondent No.2 as Ex.R1. A reading of disclosure statement (Ex.R1) shows that
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Mukesh Kumar, respondent No.2 had mentioned therein that he had committed
theft of the truck and the truck in question had met with an accident.
SETTLED LAW ON COMPENSATION
12. Hon’ble Supreme Court has settled the law regarding grant of
compensation with respect to the disability. The Apex Court in the case of
RajKumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343,
343
has held as under:-
under:
General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 (‘Act’ for short)
makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately
restore the claimant to the position prior to the accident. Th
Thee object ofawarding 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
equitable manner. The court or tribunal shall have to assess the
damages objectively and exclude from consideratio
considerationn any speculationor fancy, though some conjecture with reference to the nature of
disability and its consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also for the loss which he
suffered as a result of such injury.
injury. This means that he is to be
compensated for his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used to earn or could
have earned. (See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR
1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India)
Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467).
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6. The heads under which compensation is awarded in personal
injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have
made
ade had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non
Non-pecuniary
pecuniary damages (GeneralDamages)
(iv) Damages for pain, suffering
suffering and trauma as a consequence of theinjuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only
under heads (i), (ii)(a) and (iv). It is only in serious cases of injury,
under
where there is specific medical evidence corroborating the evidence
of the claimant, that compensation will be granted under any of the
heads (ii)(b), (iii), (v) and (vi) relating to lo
loss
ss 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.
xxx xxx xxx xxx
19. We may now summarise the principles discussed above :
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(i) All
All injuries (or permanent disabilities arising from injuries), do not
result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the
whole body of a person, cannot be assumed to be the percentage of
loss of earning capacity.
capacity. To put it differently, the percentage of loss of
earning capacity is not the same as the percentage of permanent
disability (except in a few cases, where the Tribunal on the basis of
evidence, concludes that percentage of loss of earning capacity is the
same as percentage of permanent disability).
(iii) The doctor who treated an injured
injured-claimant
claimant or who examined him
subsequently to assess the extent of his permanent disability can give
evidence only in regard the extent of permanent disability. The loss of
earning capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages
of loss of earning capacity in different persons, depen
depending
ding upon the
nature of profession, occupation or job, age, education and other
factors.
20. The assessment of loss of future earnings is explained below
with reference to the following
Illustration ‘A’ : The injured, a workman, was aged 30 years and
earning Rs. 3000/-
3000/ per month at the time of accident. As per Doctor’s
evidence, the permanent disability of the limb as a consequence of the
injury was 60% and the consequential permanent disability to the
person
erson was quantified at 30%. The loss of earning capacity is
however assessed by the Tribunal as 15% on the basis of evidence,
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because the claimant is continued in employment, but in a lower
grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs. 36,000/
36,000/-.
b) Loss of future earning per annum
(15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration ‘B’ : The injured was a driver aged 30 years, earning Rs.
3000/ per month. His hand is amputated and his permanent disability
3000/-
is assessed at 60%. He was terminated from his job as he could no
longer drive. His chances of getting any other employment was bbleak
leak
and even if he got any job, the salary was likely to be a pittance. The
Tribunal therefore assessed his loss of future earning capacity as
75%. Calculation of compensation will be as follows :
a) Annual income prior to the accident : Rs. 36,000/
36,000/- .
b) Loss of future earning per annum
(75% of the prior annual income) : Rs. 27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/
4,59,000/-
Illustration ‘C’ : The injured was 25 years and a final year
Engineering student. As a result of the accident, he was in coma for
two months, his right hand was amputated and vision was affected.
The permanent disablement was assessed as 70%. As the injured was
incapacitated to pursue his chosen career and as he required the
incapacitated
assistance of a servant throughout his life, the loss of future earning
capacity was also assessed as 70%. The calculation of compensation
will be as follows :
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a) Minimum annual income he would
have got
got if had been employed as an
Engineer : Rs. 60,000/-
b) Loss of future earning per annum
(70% of the expected annual income) : Rs. 42000/-
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[Note : The figures adopted in illustrations (A) and (B) are
hypothetical. The figures in Illustration (C) however are based on
actuals taken from the decision in Arvind Kumar Mishra (supra)].
13. Hon’ble Supreme Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi &Ors. [(2017) 16 SCC 680] has clarified the law under
Sections 166, 163-A
163 A and 168 of the Motor Vehicles Act, 1988, on the following
aspects:-
(A) Deduction of personal and living expenses to determine
multiplicand;
(B) Selection
on of multiplier depending on age of deceased;(C) Age of deceased on basis for applying multiplier;
(D) Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses, with escalation;
(E) Future prospects for alll categories of persons and for different
ages: with permanent job; self-employed
self employed or fixed salary.
The relevant portion of the judgment is reproduced as under:
under:-
” Therefore, we think it seemly to fix reasonable sums. It
seems to us that reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral expenses
should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively.
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2006 (O&M) -12-The principle of revisiting the said heads is an acceptable
principle. But the revisit should not be fact
fact-centric
centric or quantum-
quantum
centric. We think that it would be condign that the amount that
we have quantified should be enhanced on percentage basis in
every three years and the enhancement should be at the rate of
10% in a span of three years. We are disposed to hold so
because that will bring in consistency in respect of those
heads.”
14. Hon’ble Supreme Court in the case of Erudhaya Priya Vs. State
Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:
under:-
” 7. There are three aspects which are required to be examined by us:
(a) the application of multiplier of ’17’ instead of ’18’
’18’;
The aforesaid increase of multiplier is sought on the basis of
age of the appellant as 23 years relying on the judgment in National
Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ
2700 (SC). In para 46 of the said judgment, the Constitution Bench
effectively affirmed the multiplier method to be used as mentioned in
the table in the case of Sarla Verma (Smt) and Others v. Delhi
Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age
group of 15-25
15 25 years, the multiplier has to be ’18
’18” along with
factoring in the extent of disability.
The aforesaid position is not really disputed by learned counsel
for the respondent State Corporation and, thus, we come to the
conclusion that the multiplier to be applied in the case of the
appellant has
has to be ’18’ and not ’17’.
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(b) Loss of earning capacity of the appellant with permanent
disability of 31.1%
In respect of the aforesaid, the appellant has claimed
compensation on what is stated to be the settled principle set out in
Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep
Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract
below the principle set out in the Jagdish (supra) in para 8:
“8. In assessing the compensation payable the settled principles
need to be borne in mind. A victim who suffers a permanent or
temporary disability occasioned by an accident is entitled to the
award of compensation.
ompensation. The award of compensation must cover
among others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal life together
with its amenities;
(iv) Medical expenses including those that the victim may be
required to undertake in future; and
(v) Loss of expectation of life.”
[emphasis supplied]
The aforesaid principle has also been emphasized in an earlier
judgment, i.e. the Sandeep Khanuja ccase
ase (supra) opining that the
multiplier method was logically sound and legally well established to
quantify the loss of income as a result of death or permanent
disability suffered in an accident.
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In the factual contours of the present case, if we examine the
disability certificate, it shows the admission/hospitalization on 8
occasions for various number of days over 1½ years from August
2011 to January 2013. The nature of injuries had been set out as
under:
“Nature of injury:
(i) compound fracture shaft lef
left humerus
(ii) fracture both bones left forearm
(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft femur
(vii) fracture both bones left leg
We have also perused the photographs annexed to the
petition showing the current physical state of the appellant,
though it is stated by learned counsel for the respondent State
Corporation that the same was not on record in the trial court.
Be that as it may, this is the position even after treatment and
the nature of injuries itself show their extent. Further, it has
been opined in para 13 of Sandeep Khanuja case (supra) that
while applying the multiplier method, future prospects on
advancement in life and
nd career are also to be taken into
consideration.
We are, thus, unequivocally of the view that there is merit
in the contention of the appellant and the aforesaid principles
with regard to future prospects must also be applied in the case
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of the appellantt taking the permanent disability as 31.1%. The
quantification of the same on the basis of the judgment in
National Insurance Co. Ltd. case (supra), more specifically
para 61(iii), considering the age of the appellant, would be
50% of the actual salary in the present case.
(c) The third and the last aspect is the interest rate claimed as
12%
In respect of the aforesaid, the appellant has watered
down the interest rate during the course of hearing to 9% in
view of the judicial pronouncements including in th
thee Jagdish’s
case (supra). On this aspect, once again, there was no serious
dispute raised by the learned counsel for the respondent once
the claim was confined to 9% in line with the interest rates
applied by this Court.
CONCLUSION
8. The result of the aforesaid
resaid is that relying on the settled
principles, the calculation of compensation by the appellant, as
set out in para 5 of the synopsis, would have to be adopted as
follows:
Heads Awarded
Loss of earning power Rs. 9,81,978/-
(Rs.14,648 x 12 x 31.1/100
Future prospects (50 per Rs.4,90,989/-
cent addition)
Medical expenses including Rs.18,46,864/-
transport charges,
nourishment, etc.
Loss of matrimonial Rs.5,00,000/-
prospects
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Loss of comfort, loss of Rs.1,50,000/-
amenities and mental
agony
Pain and suffering Rs.2,00,000/-
Total Rs.41,69,831/-
The appellant would, thus, be entitled to the compensation of
Rs. 41,69,831/-
41,69,831/ as claimed along with simple interest at the rate of 9%
per annum from the date of application till the date of payment.
RELIEF
15. In view of the above, the present appeal is allowed and award dated
02.08.2005 is set aside. Accordingly, as per the settled principles of law as laid
down by Hon’ble Supreme Court as mentioned above, tthe appellants – claimants
claimant
are held entitled to the compensation amount as calculated below
below:
Sr. Heads Compensation Awarded
No.
1 Monthly Income Rs.3000/
Rs.3000/-
2 Future prospects @ 40%
40 Rs.1200/
Rs.1200/- (40% of 3000)
3 Deduction towards personal Rs.050/
Rs.050/- [1/4 of (3000+1200)]
expenditure
4. Total Income Rs.3150/
Rs.3150/- (4200-1050)
5 Multiplier 18
6 Annual Dependency Rs.6,80,400/
Rs.6,80,400/-
(Rs.3150/
(Rs.3150/- x 12 x 18)
7 Loss of Estate Rs.18,000/
Rs.18,000/-
8 Funeral Expenses Rs.18,000/
Rs.18,000/-
9 Loss of Consortium Rs.1,92,000/
Rs.1,92,000/-
Total Compensation Rs.9,08,400/
Rs.9,08,400/-
16. So far as the interest part is concerned, as held by Hon’ble Supreme
Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176
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and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5
Supreme Court Cases 107, the appellants-claimants
claimants are granted the interest @
9% per annum on the amount from the date of filing of claim petition till the date
of its realization.
realization
17. The Insurance Company is directed to deposit the amount of
compensation along with interest with the Tribunal within a period of two months
from today. The Tribunal is further directed to disburse the amount of
compensation along with interest in the accounts of all the claimants/appellants as
per ratio settled in the award dated 02.08.2005. The claimant
claimants/appellants
s/appellants are
directed to furnish the bank account details to the Tribunal.
18. Disposed of accordingly.
19. Pending applications, if any, also stand disposed of.
October 15,, 2024 ((SUDEEPTI SHARMA)
A.Kaundal JUDGE
Whether speaking/non-speaking
speaking/non speaking : Speaking
Whether reportable : Yes/No
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