Punjab-Haryana High Court
Gaje Singh vs Subhash Chander Etc on 3 October, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:132976
1
FAO-3685-2006 (O&M)
N THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
207 FAO-3685-2006 (O&M)
Date of Decision: October 03, 2024
Gaje Singh ......Appellant
Vs.
Subhash Chander and others ......Respondent(s)
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Kartar Singh Malik, Advocate
for the appellant.
Mr. Suvir Dewan, Advocate
for respondent No.3-Insurance Company
----
SUDEEPTI SHARMA J. (ORAL)
None has put in appearance on behalf of the Insurance Company.
2. This is an old matter pertaining to the year 2006 but no one has put
in appearance on behalf of the Insurance Company.
3. Previously vide order dated 18.07.2024 in FAO No.1682 of 2007,
this Court had already issued directions to the Insurance Companies that in the
event, any of their empanelled counsel fails to appear, the Court would request
the counsel empanelled with the Insurance Companies, who is present in the
Court to assist in the matters. Further, the concerned Insurance Companies
were directed to disburse the current scheduled fees to the counsel engaged by
this Court for assisting in the matters.
4. On the asking of the Court, Mr. Suvir Dewan, Advocate accepts
notice on behalf of respondent No.3-Insurance Company.
1 of 16
::: Downloaded on – 04-11-2024 00:57:56 :::
Neutral Citation No:=2024:PHHC:132976
2
FAO-3685-2006 (O&M)
5. Learned counsel for the appellant has handed over copy of the
paper-book alongwith relevant record to the learned counsel for respondent
No.3- Insurance Company.
6. In view of the order dated 18.07.2024 passed in FAO No.1682 of
2007, the Insurance Company is directed to disburse the current scheduled fees
to Mr. Suvir Dewan, Advocate, the counsel engaged by this Court in the present
case.
CM-16003-CII-2006
The present application has been filed seeking condonation of
delay of 9 days in filing the appeal.
For the reasons mentioned in the application, which is duly
supported by an affidavit, the same is allowed and delay of 9 days in filing the
present appeal is condoned.
FAO-3685-2006
1. The present appeal has been preferred against the award dated
15.04.2006 passed in the claim petition filed under Section 166 of the Motor
Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Rohtak (for
short, ‘the Tribunal’) for enhancement of compensation granted to the
claimant/appellant.
FACTS NOT IN DISPUTE
2. The brief facts of the case are that on 2.12.2004 at about 8.15
A.M., claimant-Gaje Singh alongwith other seven passengers boarded an auto
rickshaw while going to Sanghi from Jasia and when they had crossed Jasia
bridge and had covered 3-4 killas ahead towards Sanghi, then at about 8.15
A.M., a Tata 407 bearing registration No.HR-46-A-4686 came from Sanghi
side being driven by Surender @ Sunder with negligent speed and hit auto
2 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
3
FAO-3685-2006 (O&M)
rickshaw. The claimant sustained injuries on his left hand and other parts of the
body and driver took the claimant to PGIMS Rohtak for treatment where the
claimant remained admitted for 22 days. Qua this accident, an FIR No.239
dated 02.2.2004 under Sections 279/337 IPC was registered at Police Station
Sadar Rohtak against respondent No.2.
3. Upon notice of the claim petition, respondents appeared and
denied the factum of accident/compensation.
4. From the pleadings of the parties, the Tribunal framed the
following issues:-
1. Whether the accident took place on 2.12.2004 due to rash
and negligent driving of vehicle bearing registration
No.HR-46-A-4686 by respondent no.2 Surender @ Sunder
as alleged by claimant resulting into injuries to Gaje Singh,
as alleged ?OPP
2. If issue no.1, is proved, whether claimant is entitled to
compensation, if so, to what amount and from whom ?OPP
3. Whether respondent No.2 Surender @ Sunder driver of
the vehicle bearing registration No.HR-46-A-4686 was not
having a valid driving licence and the vehicle in question
was being driven in violation of terms and conditions of the
insurance policy at the time of accident?OPR-3
4. Whether the present petition is bad for non joinder of
necessary parties ?OPR-3
5. Relief.
5. After taking into consideration the pleadings and the evidence on
record, the learned Tribunal awarded compensation to the tune of Rs.65,316/-
alongwith interest @ 9% per annum. Hence, the claimant/appellant filed the
present appeal for enhancement of compensation awarded by the Tribunal.
3 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
4
FAO-3685-2006 (O&M)
SUBMISSIONS OF THE COUNSELS FOR THE PARTIES
6. The learned counsel for the claimant-appellant contends that the
compensation awarded by the learned Tribunal is on the lower side.
i) Further as per the disability certificate Ex.PW2/A, the permanent
disability of the injured was assessed to the extent of 20%.
ii) Further compensation granted for pain and suffering and medical
expenses is on lower side. Further, no amount was granted for future
prospectus, special diet, transportation charges and loss of income due to
deprivement of amenities of life.
Therefore, he prays that the present appeal be allowed and
compensation should be enhanced as per latest law.
7. Per contra, learned counsel for respondent No.3-Insurance
Company, vehemently argues on the lines of the award and contends that the
Ld. Tribunal had rightly passed the award.
8. I have heard learned counsel for the parties and perused the whole
record of this case.
9. A perusal of the award indicates that the Tribunal has rightly
assessed the permanent disability of the injured/claimant. A perusal of the
record further reveals that the injured Gaje Singh was an agriculturist and his
income was asserted to be Rs.8,000/- per month. However, under the prevailing
facts and circumstances of the present case, his income is to be assessed as Rs.
2600/- per month in accordance with the Minimum Wages Act prescribed for
unskilled worker in the State of Haryana.
i) Further compensation granted for pain and suffering and medical
expenses is on lower side. Moreover, no amount was granted for future
4 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:1329765
FAO-3685-2006 (O&M)prospectus, special diet, transportation charges and loss of income due to
deprivement of amenities of life.
10. Therefore, the award requires indulgence by this Court.
SETTLED LAW ON COMPENSATION
11. Hon’ble Supreme Court has settled the law regarding grant of
compensation with respect to the disability. The Apex Court in the case of Raj
Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343,
has held as 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. 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 equitable manner. The court or tribunal shall have
to assess the damages objectively and exclude from consideration
any speculation or 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. 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.
5 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:1329766
FAO-3685-2006 (O&M)Hattangadi v. Pest Control (India) Ltd., 1995 (1) SCC 551 and
Baker v. Willoughby, 1970 AC 467).
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 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-pecuniary damages (General
Damages)
(iv) Damages for pain, suffering and trauma as a consequence of
the injuries.
(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, 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 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.
6 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
7
FAO-3685-2006 (O&M)
xxx xxx xxx xxx
19. We may now summarise the principles discussed above :
(i) 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. 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-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,
depending 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/- per month at the time of accident. As per
Doctor’s evidence, the permanent disability of the limb as a
7 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
8
FAO-3685-2006 (O&M)
consequence of the injury was 60% and the consequential
permanent disability to the person was quantified at 30%. The loss
of earning capacity is however assessed by the Tribunal as 15%
on the basis of evidence, 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/-.
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 is assessed at 60%. He was terminated from his job as
he could no longer drive. His chances of getting any other
employment was bleak 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/- .
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/-
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
8 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
9
FAO-3685-2006 (O&M)
affected. The permanent disablement was assessed as 70%. As the
injured was incapacitated to pursue his chosen career and as he
required the 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 :
a) Minimum annual income he would
have 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)].
12. 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 and 168 of the Motor Vehicles Act, 1988, on the
following aspects:-
(A) Deduction of personal and living expenses to determine
multiplicand;
(B) Selection 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 all categories of persons and for
different ages: with permanent job; self-employed or fixed salary.
9 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
10
FAO-3685-2006 (O&M)
The relevant portion of the judgment is reproduced as 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. The principle of revisiting the said heads is an
acceptable principle. But the revisit should not be fact-
centric or 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.”
13. Hon’ble Supreme Court in the case of Erudhaya Priya Vs. State
Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:-
” 7. There are three aspects which are required to be examined by
us:
(a) the application of multiplier of ’17’ instead of ’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
10 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
11
FAO-3685-2006 (O&M)
1298 (SC) . In the age group of 15-25 years, the multiplier has to
be ’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 to be ’18’ and not ’17’.
(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. 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
11 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
12
FAO-3685-2006 (O&M)
(v) Loss of expectation of life.”
[emphasis supplied]
The aforesaid principle has also been emphasized in an
earlier judgment, i.e. the Sandeep Khanuja case (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.
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 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
12 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
13
FAO-3685-2006 (O&M)
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 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 of the appellant 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 the
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 is that relying on the settled
principles, the calculation of compensation by the appellant,
13 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
14
FAO-3685-2006 (O&M)
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
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/- as claimed along with simple interest at the rate
of 9% per annum from the date of application till the date of
payment.
14. In view of the above, the present appeal is allowed and award
dated 15.04.2006 is modified. Accordingly, as per the settled principles of law
as laid down by Hon’ble Supreme Court as mentioned above, the appellant –
claimant is held entitled to the enhanced amount of compensation as calculated
below:-
Sr. Heads Compensation Awarded
No.
1 Income Rs.2600/-
2 Loss of future prospects Rs.650/- (25% of 2600)
3 Annual Income Rs.39,000/- (2600+650 x12)
4 Loss of future earning per Rs.7800/- (39,000 x 20%)
14 of 16
::: Downloaded on - 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
15
FAO-3685-2006 (O&M)
annum
5 Multiplier (13) Rs.1,01,400/- (7800×13)
6 Pain and Sufferings Rs.50,000/-
7 Special diet Rs.10,000/-
8 Medical expenses Rs.15,316/-
9 Transportation charges Rs.10,000/-
10 Attendant Charges Rs.10,000/-
11 Loss of Amenities of life Rs.50,000/-
Total Compensation Rs.2,46,716/-
Amount Awarded by the Rs.65,316/-
Tribunal
Enhanced amount Rs.1,81,400/-
15. 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 and R.Valli and Others VS. Tamil Nandu State Transport
Corporation (2022) 5 Supreme Court Cases 107, the amount so calculated
shall carry an interest @ 9% per annum from the date of filing of the claim
petition, till the date of realization.
16. Respondent-Insurance Company is directed to deposit the
enhanced amount alongwith interest with the Tribunal within a period of two
months from the date of receipt of copy of this judgment. The Tribunal is
directed to disburse the same to the appellant-claimant in his bank account. The
appellant-claimant is directed to furnish his bank account details to the
Tribunal.
17. Before parting with the judgment, this Court extends its
appreciation to Mr. Suvir Dewan, Advocate, for his able assistance to the Court
in the present matter.
15 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::
Neutral Citation No:=2024:PHHC:132976
16
FAO-3685-2006 (O&M)
18. Respondent No.3-Insurance Company is directed to pay the
compensation in the first instant and liberty is granted to respondent No.3 to
recover the same from respondents No.1 and 2.
19. Disposed off accordingly.
20. Pending applications, if any, also stand disposed of.
(SUDEEPTI SHARMA)
JUDGE
October 03, 2024
sonia arora
Whether speaking/non-speaking : Speaking
Whether reportable : Yes /No
16 of 16
::: Downloaded on – 04-11-2024 00:57:57 :::