Partly allowed

Dinesh Narayan Triparthi @ Triparti v. National Insurance Co. Ltd. and 2 Ors.

Gauhati HC19 Nov 2019MACApp./40/2014

Case brief

AI extract

What is this about?

In this appeal, the Gauhati High Court examined whether the compensation awarded by the Motor Accident Claims Tribunal was adequate. While upholding the loss of earnings award, the Court enhanced compensation for future medical expenses and non-pecuniary damages totaling two lakhs.

What did the court decide?

An additional amount of Rs. 2,00,000 with interest at 6% per annum from the date of claim application was ordered to be deposited with the Tribunal.

Dinesh Narayan Triparthi @ Triparti Vs National… — Motor Accident Claims | Gauhati HC (2019)

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GAHC010122592014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : MACApp. 40/2014

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1:DINESH NARAYAN TRIPARTHI @ TRIPARTI S/O.LT. BILASHI TRIPARTHI @ TRIPARTI OF BADARPURGHAT, PO. and PS. BADARPUR,DIST.-KARIMGANJ, ASSAM.

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VERSUS

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1:NATIONAL INSURANCE CO. LTD and 2 ORS. REPRESENTED BY THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO.LTD. CAPITAL TRAVELS BUILDING, PWD. ROAD, PO. and PS.-SILCHAR,DIST.-CAHCAR,ASSAM, INSURER OF THE OFFENDING PIAGGO AUTO RICHSHAW VIDE REGN. NO.AS-11-C/1346

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2:MD. KAIMUL HUSSAIN BARBHUIYAN S/O.MD. RAFIQUE UDDIN BARBHUIYAN VILL.-DIDARKUSHI PART-III PO.-DIDARKUSHI PS.-SONAI DIST.-CAHCAR ASSAM. OWNER OF THE OFFENDING PIAGGO AUTO RICKSHAW REGN.NO.AS-11-C/1346.

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3:MD. MAZMUL HUSSAIN BARBHUIYA S/O. MD. RAFIQUE UDDIN BARBHUIYAN VILL.-DIDARKUSHI PART-III PO.-DIDARKUSHI PS.-SONAI DIST.-CACHAR ASSAM. DRIVER OF THE OFFENDING PIAGGO AUTO RICKSHAW VIDE REG.NO.AS-11/C-1346

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Advocate for the Petitioner : MR.S C KEYAL

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Advocate for the Respondent : MR.A DUTTAR-1

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER (ORAL)

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Date : 19-11-2019

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Heard Ms. P. Baruah, learned counsel for the appellant. Also heard Mr. A. Dutta, learned counsel for the respondent No. 1.

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This appeal under Section 173 of the Motor Vehicles Act, 1988 (“the Act”, in short) is presented against the judgment and award dated 14.05.2013 passed by the learned Member, Motor Accident Claims Tribunal, Cachar, Silchar (“the Tribunal”, in short) in MAC Case No. 212/2007. By the said judgment and award dated 14.05.2013, the learned Tribunal had awarded an amount of Rs.2,21,758/- as compensation for the injuries sustained by the appellant in a motor vehicular accident, along with interest @ 6% per annum from the date of filing of the claim application till realization, with the further direction to the respondent No. 1-insurer to pay the same within a period of three months therefrom. Aggrieved by the amount of compensation so awarded and seeking enhancement of the same, the claimant-injured as the appellant, has preferred this appeal.

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The appellant is a resident of Badarpurghat, Police Station - Badarpur, District - Karimganj and was an employee in the Indian Railways under the establishment of the Station Superintendent, Panchgram Railway Station, Hailakandi. On 10.07.2006, at about 1-30-2-00 p.m., the appellant boarded an Auto Rickshaw bearing registration No. AS-11/C-1346 (“the subject-vehicle”, in short) at Sonai and was proceeding towards Motinagar. Apart from the appellant, there were two other passengers in the subjectvehicle. When the subject-vehicle reached Swadin Market, it met with an

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accident due to rash and negligent act of driving on the part of the driver of the subject-vehicle and as a result of the said accident, the appellant as well as the other two passengers received multiple injuries on their persons. The subject-vehicle also got damaged in the accident. The appellant was immediately taken to hospital for medical examination and treatment. In connection with the said accident, a criminal case being Sonai Police Station Case No. 217/2006 was registered under Sections 279/338, Indian Penal Code. The appellant stated to have suffered crushed injury on the left foot; complete avulsion of the left foot; abrasion over left knee; haematoma over forehead and multiple injuries all over the body. The appellant had further stated that due to the injuries sustained in his leg, skin grafting had to be done on 05.08.2006. Seeking compensation, the appellant instituted the claim application under Section 166 of the Act before the learned Tribunal arraying the owner, the driver and the insurer of the subject-vehicle as opposite parties. The said claim application was registered and numbered as MAC Case No. 212/2007.

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On institution of MAC Case No. 212/2007, the learned Tribunal issued notices to the afore-mentioned opposite parties but the owner and the driver of the subject-vehicle did not contest the claim application and the case proceeded ex-parte against them. Despite service of notice on them in this appeal also, the owner and the driver who are impleaeded as respondent Nos. 2 and 3 respectively, have not appeared.

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On receipt of notice from the learned Tribunal, the respondent No. 3-opposite party No. 3 who was the insurer of the subject-vehicle, appeared and contested the claim application by submitting its written statement wherein they had taken all the pleas denying the claim of the appellantclaimant, thereby, putting him to strict proof thereof.

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Upon consideration of the rival pleadings, the learned Tribunal had

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framed the following two points for determination :-

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(I) Whether the claimant Dinesh Narayan Tripathi @ Tripathi sustained multiple injuries, including crush injury on the left foot in the alleged road traffic accident, took place on 10.07.2006 and if so, whether the said accident took place due to rash and negligent driving of the offending vehicle No. AS 11-C/1346 (Piaggio Auto Rickshaw)?

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(II) Whether the claimant is entitled to any compensation and if so, what will be the quantum of compensation and by whom amongst the respondents, the said compensation will be payable?

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In the proceeding before the learned Tribunal, the appellantclaimant examined himself as PW-1 and also examined two other witnesses as PW-2 and PW-3, both doctors serving in the Silchar Medical College & Hospital (SMCH), Silchar. In support of the claim, the appellant-claimant had also exhibited a number of documents including charge-sheet, seizure list, medical report, injury reports, discharge certificate, disability certificate and documents relating to his medical treatment including prescriptions and cash memos. He also exhibited a number of documents relating to his service in the Indian Railways.

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The learned Tribunal after going through the oral evidence and documentary evidence produced by the appellant before the learned Tribunal, had awarded the afore-mentioned amount of Rs. 2,21,758/- as the compensation. The learned Tribunal had awarded the amounts under different heads viz. (i) mental agony, pains & sufferings = Rs. 25,000/-; (ii) loss of income = Rs.92,500/-; (iii) inconvenience, hardship, mental stress and unhappiness in future life = Rs. 25,000/-; (iv) Medical expenses incurred = Rs. 54,258/-; and future medical expenses = Rs. 25,000/-.

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Ms. Baruah, learned counsel for the appellant has submitted that the learned Tribunal while making assessment of the compensation, did not consider properly the heads under which the compensation were required to be assessed. She submits that the amounts awarded under the heads of ‘mental agony, pains and sufferings’ and ‘inconvenience, hardship, mental stress in life and unhappiness expenses in future life’ were grossly inadequate. It is further submitted that the learned Tribunal had erred in not awarding loss of future earnings on account of permanent disability and there is wrong assessment in respect of loss of earnings during the period of treatment. In support of her submission, she has relied in the decision of the Hon’ble Supreme Court in Ram Kiran Goyal vs. Sub Divisional Engineer & Ors, reported in (2012) 1 SCC 429.

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Per contra, Mr. Dutta, learned counsel has submitted that the learned Tribunal after a detailed discussion about the impact of the permanent disability on the earning capacity of the appellant, had reached a finding that there is no loss of future earnings in respect of the appellant though the appellant has suffered permanent disability to an extent. He further submits that the assessment of the learned Tribunal in respect of loss of earnings during the period of treatment needs no interference as the learned Tribunal had assessed correctly by taking into consideration the resultant effect, in view of the voluntary retirement the appellant had taken from service. The learned Tribunal had also assessed the non-pecuniary damages by awarding reasonable amounts in lump-sum under those heads. It is submitted by him that the decision in Ram Kiran Goyal (supra) is based on the decision of the Hon’ble Supreme Court in Raj Kumar vs. Ajay Kumar, reported in (2011) 1 SCC 343, and he does not differ with the principles enunciated in Raj Kumar (supra) as well as in Ram Kiran Goyal (supra).

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I have considered the submissions of the learned counsel for the parties and also perused the materials available in the case records of MAC

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Case No. 212/2007, in original.

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The factum of accident is not disputed by any of the parties. It is also not disputed by the parties that the appellant had suffered the injuries in the accident that occurred on 10.07.2006 involving the subject-vehicle and the said accident was caused to rash and negligent act of driving on the part of the driver of the subject-vehicle. The learned counsel for the parties have confined their submissions only in respect of the compensation assessed by the learned Tribunal. While the learned counsel for the appellant has submitted that there should be enhancement of the amount of compensation, the learned counsel for the respondent-insurer has submitted that there should be no interference in the amount of compensation awarded by the learned Tribunal. In view of such submissions, no further dilation in respect of the other issues except the matter of compensation, appears necessary. It is evident that at the time of the accident on 10.07.2006, the appellant was an employee in the Indian Railway, as indicated above.

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From the evidence led by the appellant before the learned Tribunal, it is evident that the appellant had suffered the injuries, as have been mentioned above. The evidence of the appellant as regards the injuries sustained by him, are also corroborated by PW-2 and PW- 3, who are doctors serving in the SMCH, where the appellant had undergone treatment. PW-3, an Assistant Professor in the Orthopaedics Department, SMCH had deposed about the treatment given to the appellant at the SMCH and he also stated that skin grafting of the left foot of the appellant was done at Nightingale Hospital & Research Centre, Silchar. He further stated that the crush injury of the left foot led to post-traumatic amputation at the level of foot. During the evidence, a certificate dated 12.05.2007 issued by the District Disability Rehabilitation Centre, SMCH was exhibited as Ext.-9 which declared that the appellant had become permanently disabled to the

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extent of 50% in relation to his left limb. It is also evident from the records that after suffering the injuries which resulted into his permanent disablement, the appellant sought for voluntary retirement from service and the employer accepted the same by releasing him from service w.e.f. 31.03.2008 (Ext.-19). The appellant also exhibited a number of documents as Ext.- 20-Series in respect of the salary received by him during service period.

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After having gone through the documentary evidence and also the oral evidence, the learned Tribunal had found that though the appellant had suffered permanent disability to the extent of 50% in relation to his left limb the same did not result in any loss of his earnings. The reason for reaching such a finding by the learned Tribunal is for the fact that after the appellant had suffered permanent disability, he was posted in other branch in Indian Railways vide Ext.-15 by shifting him from his original branch. The employer had recorded that the appellant was declared unfit in medical category A/2 but he has been found fit to serve in C/1 and C/2 w.e.f. 17.09.2007. The employer has maintained the same salary which the appellant used to draw prior to his de-categorization and declaration about his unfitness.

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Having considered the aforesaid aspects, the learned Tribunal did not award any amount under the head of loss of future earnings on account of permanent disability. As both the parties have relied in the decisions cited above, it is apposite to refer to the said two decisions at this juncture. In Raj Kumar (supra), the Hon’ble Supreme Court has enumerated the general principles relating to grant of compensation in injury cases. For ready reference, the following excerpts from Raj Kumar (supra) are quoted hereunder :-

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The heads under which compensation is awarded in personal injury cases are the following :

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Pecuniary damages (Special Damages)

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(i) Expenses relating to treatment, hospitalization,

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medicines, transportation, nourishing food, and miscellaneous expenditure.

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(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

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(a) Loss of earning during the period of treatment;

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(b) Loss of future earnings on account of permanent disability.

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(iii) Future medical expenses.

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Non-pecuniary damages (General Damages)

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(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

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(v) Loss of amenities (and/or loss of prospects of marriage).

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(vi) Loss of expectation of life (shortening of normal longevity).

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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.

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Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - Item (ii)(a). We are concerned with that assessment in this case.

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Paragraph 20 of the Raj Kumar (supra), the Hon’ble Supreme Court has also explained with certain illustrations how the assessment and loss of

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future earnings are to be assessed. Illustration-A which is of relevance, is extracted hereunder :-

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“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 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:

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a) Annual income before the accident

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: Rs.36,000/-.

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b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-.

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c) Multiplier applicable with reference to age : 17

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d) Loss of future earnings : (5400 x 17)

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: Rs.91,800/-“.

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The decision in Ram Kiran Goyal (supra) has followed the same principles, as laid down in Raj Kumar (supra). In the light of the principles laid down by the Hon’ble Supreme Court relating to injury cases, the learned Tribunal had considered the matter of loss of future earnings on account of the permanent disability suffered by the appellant and did not find any ground to award any amount under the said head. As the appellant had opted for voluntary retirement from service, the learned Tribunal had found that the appellant would have retired after about 21 months had he not opted for voluntary retirement which took effect from 31.03.2008. Taking a pragmatic view about the difference in respect of salary the appellant would have received had he opted to continue in service for the next 21 months, the learned Tribunal had found that the actual loss of earnings, due to appellant’s voluntary retirement, was about Rs. 92,500/and awarded the said amount towards pecuniary damages of loss of earnings. Having considered the same, I do not find any justifiable reason to interfere with the same and therefore, it is affirmed that the assessment

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of the pecuniary damages arrived at by the learned Tribunal under item (ii) (a) call for no interference.

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In so far as item (i) is concerned, as indicated in Raj Kumar (supra), the learned Tribunal had awarded an amount of Rs. 54,258/towards medical expenses incurred after having gone through the bills and cash memos submitted by the appellant as regards his treatment. In so far as the calculation of Rs. 54,258/- Ms. Baruah, learned counsel has raised no objection. It is evident that the appellant is a resident of Badarpurghat in the district of Karimganj during the period from 10.07.2006 onwards, but because of the injuries sustained, which were serious in nature, the appellant had to take medical treatment at the SMCH and other medical facilities in the district of Cachar. Having suffered the kind of injuries in his leg, indicated above, it can be informed that for taking such treatment the appellant could not have undertaken those journeys from his place of residence to Silchar alone and there was requirement of a constant medical attendant during such journeys and treatment and some expenses must have been incurred towards such miscellaneous expenses. Apart from that, the appellant must have spent some amount on transportation. It is not always be expected that the injured or the family members of a victim of a motor vehicular accident would ask for and keep all bills incurred towards transportation and other miscellaneous expenses. Thus, production of all bills for expenses incurred for taking assistance of any person and towards transportation during the period of treatment is not always possible and cannot also be expected. As against it, it is noticed that the learned Tribunal did not give any amount for the same and for the reasons mentioned above a lump-sum amount of Rs. 50,000/- appears to be reasonable amount to be granted to the appellant for the expenses incurred by him towards expenses incurred for transportation, medical attendant and miscellaneous expenses, as the learned Tribunal granted amount only for the expenses, for which bills and cash memos were produced.

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As the appellant has suffered permanent disability and the same had resulted into skin grafting in his left leg, it is quite obvious that he would be in need of future medical treatment for the remaining period of his life and an amount of Rs. 25,000/- awarded by the learned Tribunal appears to be on the lower side. In such view of the matter, I deem it fit to award a further amount of Rs. 50,000/- for future medical expenses of the appellant. The assessment of non-pecuniary damages as items No. (iv), (v) and (vi), requires determination of lump-sum amounts with reference to the circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and effect thereof on the future life of the claimant, as per guidelines led down in the case of Raj Kumar (supra). Having considered the non-pecuniary damages awarded by the learned Tribunal, I also find that the amount of Rs. 25,000/- each for mental agony, pains and sufferings’ as well as ‘inconvenience, hardship, mental stress in life and unhappiness expenses in future life’, too appear to be in the lower side. Upon consideration of the age as well as the nature of disability suffered by the appellant, there is requirement to enhance the same and a further amount of Rs. 1,00,000/- in lump-sum appears to be reasonable.

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As a result, the appellant is entitled to receive a further amount of Rs. 2,00,000/- (Rupees two lakh only) for the permanent disability suffered by him due to the accident on 10.07.2006. As the subject-vehicle was insured at the relevant point of time by the respondent No. 1-Insurer, I direct that the aforesaid amount of Rs. 2,00,000/-(Rupees two lakh only) along with interest @ 6% per annum from the date of claim application on the said amount, shall be deposited before the learned Tribunal within a period of 2(two) months from today. On such deposit being made, the learned Tribunal will notify the appellant and upon his due identification, the learned Tribunal will disburse the amount to the appellant.

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This Appeal is allowed in part, to the extent indicated above.

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The LCR is to be returned the learned Tribunal forthwith.

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JUDGE

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Comparing Assistant

Dinesh Narayan Triparthi @ Triparti v. National Insurance Co. Ltd. and 2 Ors.

Case brief

What is this about?

What did the court decide?

Dinesh Narayan Triparthi @ Triparti v. National Insurance Co. Ltd. and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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