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MA No. 275/2010
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU MA No. 275/2010 Reserved on: 08.08.2023 Announced on: 04.10.2023 Miss Twinkle D/o Sh. Jameet Lal R/o Village Pandorian, PO Halqa, Tehsil & District Jammu, through her mother Smt. Raj Kumari W/o Sh. Jameet Lal R/o Village Pandorian, PO Halqa, Tehsil & District Jammu. ....Petitioner(s)/Appellant(s) Through:- Mr. R.K.Bhatia. Advocate V/s 1. Kulbir Singh Manhas alias Gulla S/o Shri Kamal Singh R/o Village Channi Tana Pargwal, Tehsil Akhnoor, District Jammu.
Sh. Mohan Lal S/o Sh. Shankar Das R/o Village Pandorian, PO Halqa, Tehsil & District Jammu.
Oriental Insurance Company Limited. DO I, Town Hall, Jammu. ....Respondent(s) Through:- Mr. Amrit Sarin, Advocate. CORAM: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE JUDGMENT 1. The instant appeal has been preferred by the appellant against award dated 29.01.2010 passed by the Motor Accident Claims Tribunal, Jammu (Court below, for short) in file No. 548/Claim titled Twinkle v/s Kulbir Singh Manhas and others. BRIEF FACTS. 2. The appellant met with an accident on 4 April 2004 due to rash and negligent driving of respondent 1 who was driving the vehicle (Tata Mobile) bearing No.JK02S-8863 and hit appellant outside her house, situated at village Pandorian, Tehsil and District Jammu. Due to the accident, the appellant suffered serious injury over left foot with exposure of underlying
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muscles, tendons and bones, with crushing of lateral malleolus left. The external fixation with support of rods was given to the appellant and an operation with bone grafting was done. The appellant has scarring of dorsolateral aspect of left ankle with wasting of left foot with stiffness of left ankle, hence making appellant unable to walk properly. 3. The appellant filed a claim petition bearing No. 548 on 27.10.2004 and claimed compensation to the tune of Rs. 30 lacs, along with interest. The Motor Accident Claims Tribunal, Jammu after consideration of the matter vide order dated 29.01.2010 passed an award of Rs.1,09,250.00 along with 7.5% interest from the date of filing of the claim petition in favour of the petitioner (appellant herein). 4. It is further submitted by the appellant that the amount awarded by the Tribunal is on the lower side and hence prays for the enhancement of award amount on the following grounds: a. That the appellant has become a crippled person and the future of appellant has become dark due to injuries suffered by her in the accident and she has become ineligible for getting employment while also making her marriage prospects totally diminished. b. The appellant has also been hospitalized for a long time and has spent huge amount of money on her treatment, travelling, medicines, special diet etc. c. The appellant has not been granted any compensation for gracious service rendered by her family members. d. The appellant cannot run, squat or walk and has lost all amenities of life. She also suffered lot of pain and suffering. e. The Tribunal awarded a meager amount of Rs 29,250/-on account of loss of future income, which is minimal and incorrect. The amount awarded by the Tribunal is on the lower side. f. The interest on loss of future is wrongly declined by the Tribunal. Hence the appellant prays for the enhancement to the tune of Rs 30.00 lac along with interest as stated in the claim petition.
QUESTION OF LAW
Having heard the learned counsel appearing for Appellant/claimant and having gone through the material facts on record, the only question that falls for this court’s consideration is whether the appellant-claimant has made out any case for further enhancement of the amount of compensation.
LEGAL ANALYSIS
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MA No. 275/2010
Compensation To Be Just And Fair 6. While it is very difficult to make an accurate assessment of the compensation to be awarded to the motor accident victim as the loss is not confined to the pecuniary value, however, the Motor Vehicles Act, 1988 has provided a protection to the victim against an inadequate compensation. For reference, the Section 168 of the Act is reproduced as under: 168. Award of the Claims Tribunal.— “(1)On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X……..”
From perusal of aforesaid Section, it is evident that just compensation has to be determined based on the foundations of fairness, reasonableness and equitability on acceptable legal standards. The courts have time and again been emphatic about the endeavor to award just and fair compensation in motor accident claims. 8. This Court is supported by the judgment of Apex Court in the case titled Sarla Verma & Ors vs Delhi Transport Corp.& Anr (2009) 6 SCC 121, wherein it has been held: - “Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good
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the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. Assessment of compensation though involving certain hypothetical considerations should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation.” 9. Furthermore, this court is also supported by the judgment of Apex Court in the case of SMT. ANJALI & ORS. versus LOKENDRA RATHOD & ORS 2022 SCC Online SC1683., wherein, it was held as follows:-
“Motor Accident Compensation Claims - Income Tax Return is a statutory document on which reliance be placed, where available, for computation of annual income of deceased.” (Para 9)
“Motor Vehicles Act, 1988; Section 168 - Concept of “just compensation” which ought to be determined on the foundation of fairness, reasonableness and equitability - Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s.” (Para 10) 9. Recently, the Supreme Court in the case of Meena Devi Versus Nunu Chand Mahto @ Nemchand Mahto & Ors. …(2023)1 SCC 204 has held: - “14. At this stage, it is necessary to clarify that as per the decision of a Three-Judge Bench of this Court in Nagappa vs. Gurdayal Singh and others (2003) 2 SCC 274, it was observed that under the MV Act, there is no restriction that the Tribunal/Court cannot award compensation exceeding the amount so claimed. The Tribunal/Court ought to award ‘just’
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compensation which is reasonable in the facts relying upon the evidence produced on record. Therefore, less valuation, if any, made in the Claim Petition would not be impediment to award just compensation exceeding the claimed amount.” 10. The Supreme Court in the case of State of Haryana vs. Jasbir Kaur (2003) 7 S.C.C. 484 has held as under: - , “7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just" denotes equitability, fairness and reasonableness, and non- arbitrary, if it is not so it cannot be just.” 11. It has been further held by Supreme Court in Yadava Kumar Vs. Divisional Manager National Insurance Co. Ltd. (2010) 10 SCC 341. as under: “14. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has
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to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW-2 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. 15. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a `just compensation.”
What Factors To Be Taken Into Consideration While Granting Compensation For An Accident Claim 12. Life and human faculties are beyond monetary valuation. It is impossible for anyone to assign a financial worth to a limb or a human being. When an accident leaves a person in a vegetative state, evaluating the loss of all faculties becomes a daunting task. Courts can only provide compensation for pecuniary losses and related expenses, but quantifying the loss of life or limb is an insurmountable challenge. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. 13. The provisions of Motor Vehicles Act 1988, makes it clear that the award must be just, which means that the compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding the compensation 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. 14. Court is of the view that a tribunal while awarding the compensation shall have to bear in mind the future prospects of the victim affected by the accident as well in addition the other factors like pain, agony caused due to accident, the medical expenses, the marriage prospects etc. 15. Factors to be taken into consideration while awarding compensation are explained by the Hon’ble Apex Court in Jagdish vs Mohan and others reported in (2018) 4 SCC 571. Para 8 of the judgment being relevant is taken note of:
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“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 (v) Loss of expectation of life.”
Reliance is also placed in case titled R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Others, reported in (1995) 1 SCC 551, “9. had categorically stated that in injury cases, compensation ought to be assessed as Pecuniary Damages i.e. the costs incurred by the claimant for the injury and Special Damages which includes damages for mental and physical shock, loss of amenities, loss of expectation of life and inconvenience. It may be observed that cumulatively, only a meager sum of Rs. 90,000/- has been awarded to the appellant for the same. It ought to be appreciated that the appellant would not be able to marry as a consequence of the accident and is forced to live with the pain and suffering throughout his life as he would require an attendant to care for him as well. It may be observed that it has been specifically stated that the appellant is unable to squat or sit cross legged and unable to stand and walk as well as per the disability certificate. Keeping in mind the same, it would be reasonable to award compensation of Rs.50, 000/- each to the appellant-claimant under the non- pecuniary heads of loss of amenities. It is submitted that with regards to litigation expenses, the appellant has contested the matter right from the point of the Tribunal up to this Court, in light of the same, it would be reasonable to award litigation expenses of Rs.50, 000/- to the appellant.”
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Reliance is also placed in cases titled Govind Yadav v. New India Insurance Company Limited, (2011) 10 SCC 683, Arvind Kumar Mishra v. New India Assurance Company Limited and Another, (2010) 10 SCC 254, and Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343, wherein, the Hon’ble Supreme Court has categorically held that adequate compensation ought to be awarded not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident. 18. I am also fortified by the view of the Hon’ble Supreme Court in case titled K. Suresh v. New India Assurance Co. Ltd. reported in (2012) 12 SCC 274, wherein it has been held as under: “10. It is noteworthy to state that an adjudicating authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad-based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of "just compensation" should be inhered."
AWARD OF THE TRIBUNAL 19. The Tribunal has awarded the compensation in the present appeal to the tune of Rs 1, 09,250 under heads i. For loss of income = Rs 29,250/= ii. For pain and sufferings= Rs. 30,000/= iii. For loss of amenities of life= Rs 30,000/= iv. For medical Expenses, special diet and conveyance= Rs 20,000/=
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While awarding the compensation, the Tribunal has erred by not taking the marriage prospect of the victim into consideration. The fact of the matter is that the victim being a girl child coupled with disability caused due to the accident, the marriage prospects of the victim may have diminished. Therefore, the compensation ought to have been awarded under this head also, as has been awarded by the Hon’ble Apex Court in Sanjay Kumar v. Ashok Kumar and Another, reported as (2014) 5 SCC 330, wherein, the Apex Court has held as under: “14…. On the point of loss of marriage prospectus, we feel that it is a major loss, keeping in mind the young age of the Appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead “loss of future enjoyment of lie” and “pain and suffering”. We thereby award Rs. 75,000/- towards loss of marriage prospectus…” 21. Reliance is also placed on Master Ayush v. Branch Manager, Reliance General Insurance Company Limited and Another, reported in
(2022) 7 SCC 738, wherein the Apex Court has held as under: “14…”The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded…” ERROR IN AWARD AS CONTENDED BY THE APPELLANT: 1) That the appellant has become a crippled person. The future of appellant has become dark due to injuries suffered by her in the accident. She has become ineligible for getting employment in any belt force. The Tribunal awarded a meager amount of Rs 29,250/- only on account of loss of future income. In the view of this Court, the method adopted by Tribunal for determination of loss of future income is not correct. The amount awarded by the Tribunal, on the face of it, is on very lower side. 2) That marriage prospect of appellant is totally diminished. Because of injuries over left foot, appellant is not in a position to walk properly as such appellant will not get a suitable match.
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3) That appellant has not been granted any compensation for gratuitous service rendered by her family members. 4) That appellant cannot run, squat or walk. She has lost all amenities of life. She also suffered lot of pain and suffering. Compensation of Rs 30,000/- each for pain and suffering and loss of amenities of life are on very lower side. 5) That appellant has remained hospitalized for pretty long time. A huge expenditure was incurred on traveling, medicines, special diet etc. But compensation of Rs 20,000/- only under that head is totally inadequate. 6) That interest on loss of future income is wrongly declined by the Tribunal.
While considering the above contentions, this Court is of the view that the tribunal has awarded a lesser amount of compensation under the above- mentioned heads as compared to a fair compensation which should have been awarded by it. The tribunal should have taken into consideration the injuries sustained by the appellant and the disability caused as a consequence of the same. Overall, the accident has diminished the chances of the appellant being employed anywhere and therefore, reduced the chance of securing any future income. 23. Furthermore, this Court has already acknowledged the plea of the Appellant that the marriage prospects of the appellant have been diminished as the consequence of disability from the aftermath of the accident in question. Therefore, the Tribunal has erred in not awarding any compensation under the head of marriage prospects. CONCLUSION: 24. The main elements of damages in the case of child victims are the pain, shock, frustration, deprivation of the ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset, to some extent, the inconvenience or discomfort arising out of the
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disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. 25. Placing reliance over the aforesaid judgments, this court is of the opinion that the Motor Vehicles Accident Tribunal, Jammu has erred in calculating the compensation awarded to the appellant and has made a major error by not computing the compensation to be payable to the appellant for marriage prospects. Further, the tribunal has awarded somewhat a lower amount of compensation than it was supposed to award. 26. Having regards to the aforesaid discussion, this court deems it proper to enhance the award amount to the following extent: Sr. No Heads of Compensation Amount Awarded by MACT Amount after the enhancement 01.
Disability/Loss of income Rs. 29,250/= Rs. 3,00,000/= 02. Pain and sufferings Rs 30,000/= Rs.50,000/= 03. Loss of Amenities of life Rs 30,000/= Rs.50,000/= 04. Medical Expenses, Special Diet and Conveyance Rs 20,000/= Rs. 1,00,000/= 05. Marriage Prospects Not awarded Rs. 1,00,000/= Total Amount
Rs. 1,09,250/= Rs 6,00,000/=
The appellant will be entitled to the said sum of Rs.4, 90,750/= in addition to what is already awarded, with interest at the rate of 7.5% per annum from the date of appeal till the date of realization. 28. The appeal is, accordingly, disposed of. (Wasim Sadiq Nargal) Judge Jammu:
04/10/2023
“Hamid” i. Whether the Judgment is reportable: Yes/No. ii. Whether the Judgment is Speaking: Yes/No.