Partly allowed

United India Ins.Co v. Lalit Chauhan

Himachal Pradesh HC13 Nov 2014FAO/110/2010

Case brief

AI extract

What is this about?

The High Court disposed of two appeals filing for compensation adequacy in a motor accident involving permanent disability. The court affirmed the Tribunal's award of Rs. 23 lakhs but modified the interest rate from 9% to 7.5% per annum, dismissing the appeal by the claimant and allowing the appeal by the insurer as partly allowed.

What did the court decide?

Interest on the award reduced from 9% to 7.5% per annum; appeal by insurer partly allowed; appeal by claimant dismissed.

United India Ins.Co Vs Lalit Chauhan — Insurance | Himachal Pradesh HC (2014)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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FAOs No.110 and 111 of 2010 Decided on: November 13, 2014.

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1. FAO No.110 of 2010.
United India Insurance Company Ltd. VERSUS Lalit Chauhan and another.	...Appellant. …Respondents.
1. FAO No.111 of 2010.
Lalit Chauhan. VERSUS	...Appellant.
Kewal Singh and another.	…Respondents.
*Coram*
The Hon’ble Mr.Justice Mansoor Ahmad Mir,	Chief Justice.

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Whether approved for reporting? Yes .

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For the Appellant(s): Mr. Ashwani K. Sharma, Advocate, for the appellant in FAO No.110 of 2010 and Mr. B.M. Chauhan, Advocate, for the appellant in FAO No.111 of 2010. For the Respondents: Mr. B.M. Chauhan, Advocate, for respondent No.1 in FAO No.110 of 2010 and Mr. Ashwani K. Sharma, Advocate, for respondent No.2 in FAO No.111 of 2010. ______________________________________________________________ Mansoor Ahmad Mir, Chief Justice (Oral)

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By means of FAO No.110 of 2010, the

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appellant/insurer has challenged the award, dated 30.12.2009, passed by Motor Accident Claims Tribunal, Shimla, Himachal Pradesh, in Claim Petition No.10-S/2 of 2007, titled as Lalit Chauhan vs. Kewal Singh and another, whereby compensation to the tune of 23.00 lacs, with interest at the rate of 9% per

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annum from the date of filing of petition till its deposit was awarded in favour of the claimant and against the appellant/insurer, (for short, ‘the impugned award’).

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The claimant has also challenged the impugned award by the medium of FAO No.111 of 2010, on the ground of adequacy of compensation.

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Thus, both the appeals are being disposed of by this common judgment.

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Brief Facts

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The claimant, namely, Lalit Chauhan, became victim of a vehicular accident on 12^th September, 2006, while he was traveling in Truck No.HP-38-6065 as owner of 217 apple boxes. The said vehicle was being driven by the driver, namely, Kewal Singh rashly and negligently and caused the accident near Victory Petrol Pump, Solan. The claimant sustained injuries, was taken to Government Hospital, Solan, fromwhere he was referred to Indira Gandhi Medical College, Shimla and was thereafter taken to Indian Spinal Injuries Centre, Delhi. As a result of the injuries, the clamant became permanently disabled. The petitioner is undergoing physiotherapy at Indian Spinal Injuries Centre, Delhi regularly. The claimant filed the claim petition claiming compensation to the tune of Rs.30.00 lacs, as per the break-ups given in the claim petition.

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Notice was issued to the driver and the insurer. The

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driver opted not to contest the Claim Petition, while the insurer resisted the same.

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On the pleadings of the parties, following issues were framed by the Tribunal:

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“i). Whether the petitioner/claimant sustained injuries on account of the rash and negligent driving of truck No.HP-38-6065 by respondent No.1, as alleged? OPP.

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ii). Whether the petitioner/claimant is entitled to compensation, if so, to which amount and from which of the respondents? OPP.

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iii). Whether the petition is not maintainable? OPR. iv). Whether the vehicle in question was being driven in violation of the terms and conditions of the Insurance Policy, as alleged? OPR.

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v). Whether the petitioner was an unauthorized passenger traveling in the vehicle at the time of accident? OPR.

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vi). Whether the driver of the vehicle was not having valid and effective driving licence at the time of accident, as alleged? OPR.

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vii). Relief.”

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In order to prove his claim, the claimant examined Madan Singh, Rakesh Kumar, Dr. Akshay Kumar, Ramesh Sharma, Jatinder Singh, Dr. Brij Bhan Singh, Sandeep Chauhan, Karan, Dr. Varun Rana,. Rakesh Chauhan, Sushil Kumar, Smt. Giribala Chauhan, Dr. B.L. Thakur, Ranvir Singh and Dr. Ravinder Mokta, as PWs-1 to 3 and 5 to 16, respectively. The claimant has also stepped into the witness box as PW-4. On the other hand, the insurer has not led any evidence. Thus, the evidence led by the claimant has remained un-rebutted.

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The claimant has also produced on record the documents i.e. copies of the medical treatment, receipt of taxi/ambulance charges, copy of the challan, copy of the FIR and other documents and particularly, the disability certificate Ext.PW-16/A.

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The Tribunal after scanning the entire evidence awarded compensation to the tune of Rs.23.00 lacs.

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The insurer has questioned the impugned award on the ground that the same is excessive and the claimant has questioned the same on the ground of adequacy of compensation. The owner/driver has not questioned the impugned award on any ground.

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The moot question in these appeals is – whether the amount awarded by the Tribunal is just and adequate.

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The findings recorded by the Tribunal under issue No.1 are not in dispute. Accordingly, issue No.1 is decided in favour of the claimant.

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Before issue No.2 is taken up, I deem it proper to deal with the other issues.

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As far as issue No.3 is concerned, the onus to prove the same was on the insurer, which has not been discharged by it. Accordingly, the findings recorded on this issue are upheld.

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The insurer-appellant has not questioned the findings recorded by the Tribunal under issues No.4, 5 and 6. Accordingly, the same are upheld.

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Issue No.2

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Coming to issue No.2, it is apt to reproduce the

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statement of PW-16 Dr. Ravinder Mokta, in toto, hereunder:

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“Stated that I am posted as Orthopedics Surgeon in D.D.U. Hospital, Shimla for the last 12 years. On 30.6.2009 a Medical Board was constituted to assess the disability of Lalit Chuahn the petitioner who had suffered injuries in a motor vehicle accident. Dr. P.K. Sharma Medical Superintendent of D.D.U Hospital Shimla was the Chairman of the Board, whereas, myself along with Dr. P.C. Machhan were its members. On examination of the petitioner the Board found that he had suffered fracture D-12 vertibra with paraphlazia with bladder bowel involvement. We had also gone through the contents of discharge certificate of the injured. On his medical examination we found that the petitioner has suffered permanent 100% disability incurable. In view of the nature of disability suffered by the petitioner, the petitioner requires the services of one attendant throughout his life. He is required to undergo regular physiotherapy throughout life and is also to take hyprotaneous diet. He can move only on the wheel chair not otherwise. The copy of disability certificate is Ext.PW-16/A (earlier marked as Z) which is true and correct as per the original seen by me today in the Court. The original bears my signatures as well as signatures of Chairman and other member of the Board.

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XXXXXXXXXXXXXXXXXXXX (By Shri Sanjay Karol, Advocate, for respondent No.2).

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It is correct that today I have not brought the record of the case because no record is maintained in our office while assessing disability of the injured and issuing disability certificate. It is incorrect that with the passage of time the disability suffered by the petitioner is likely to be cured.”

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PW-16 Dr.Ravinder Mokta has proved how the injury

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has shattered the physical frame of the claimant and has become burden for his family forever. Dr. Akshay Kumar, Dr.Brij

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Bhan Singh, Dr. Varun Rana and Dr. B.L. Thakur have proved that the claimant has undertaken treatment from them, has undergone and has to undergo physiotherapy, and cannot live without an attendant. PW-10 Dr.Varun Rana has specifically stated in his statement that there is no chance of recovery of the claimant. The evidence does disclose that the claimant has lost all charm and amenity in life and even also lost matrimonial life.

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The Apex Court in case titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755, had discussed all aspects and laid down guidelines how a guess work is to be done and how compensation is to be awarded under various heads in the cases where permanent disability is suffered by the victim of a vehicular accident. It is apt to reproduce paras 9 to 14 of the judgment hereinbelow:

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“9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on

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account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

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10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. 11. In the case Ward v. James, 1965 (1) All ER 563, it was said:

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"Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best they can and give him what they think is fair. No wonder they find it wellnigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it

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in line with the changes in the value of money."

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12. 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. But all the aforesaid elements have to be viewed with objective standards.

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13. This Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, in connection with the Fatal Accidents Act has observed (at p. 380):

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"In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable."

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14. In Halsbury's Laws of England, 4^th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said :-

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"Non-pecuniary loss : the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases."

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The said judgment was also discussed by the Apex

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Court in case titled as Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, 2010 AIR SCW 6085, while granting

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compensation in such a case. It is apt to reproduce paragraph 7 of the judgment hereinbelow:

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“7. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases - and that is now recognized mode as to the proper measure of compensation - is taking an appropriate multiplier of an appropriate multiplicand.”

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The Apex Court in case titled as Ramchandrappa

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versus The Manager, Royal Sundaram Aliance Insurance

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Company Limited, 2011 AIR SCW 4787, also laid down guidelines

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for granting compensation. It is apt to reproduce paras 8 & 9 of the judgment hereinbelow:

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“8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of

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compensation which should appear to be just, fair and proper.

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9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.”

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The Apex Court in case titled as Kavita versus

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Deepak and others, 2012 AIR SCW 4771, also discussed the entire

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law and laid down the guidelines how to grant compensation. It

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is apt to reproduce paras 16 & 18 of the judgment hereinbelow:

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“16. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, this Court considered large number of precedents and laid down the following propositions:

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“The provision of the motor Vehicles Act, 1988 ('the 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 the 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

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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. 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, hospitalisation, 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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17. ………………………….

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18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in

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determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.”

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The Tribunal after scanning the entire evidence has rightly determined the compensation under various heads in paragraph 27 of the impugned award, after making discussions in paragraphs 23, 24 and 26. It is apt to reproduce paragraph

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27 of the impugned award:

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“27. In view of the evidence discussed above and findings recorded, in the opinion of this Tribunal, the petitioner is entitled to get compensation under the following heads and extent:-

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i) Expenses on medical Rs.5,17,000/treatment already incurred. ii) Boarding and Lodging Rs.1,07,800/iii) Conveyance charges Rs. 14,300/iv) Loss of future income Rs.9,60,000/v) Compensation on account Rs.4,00,000/of mental and physical pain and suffering and loss of amenities.

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vi) Compensation on account Rs.3,00,000/of future treatment and attendance etc.

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Total Rs.22,99,100/-.”

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Having said so, I am of the considered view that the amount awarded by the Tribunal is just and proper.

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During the course of hearing, the argument advanced by Mr.Ashwani K. Sharma, learned counsel for the insurer, that 1/3^rd amount was to be deducted from the income of the claimant is devoid of any force for the reason that in the present case, the injured himself is seeking compensation and 1/3^rd of the income is to be deducted only in those cases where the claimants have lost their earning hand. In the present case, the claimant has lost his own earning capacity, thus 1/3^rd amount cannot be deducted towards his personal expenses.

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My this view is fortified by the decision of the Apex Court in Raj Kumar versus Ajay Kumar and another, (2011) 1 Supreme Court Cases 343 . It is apt to reproduce paragraph 27 of the said decision hereunder:

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“27. In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses.”

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Keeping in view the law settled by the Apex Court, I am of the opinion that the compensation awarded by the Tribunal is just and proper. However, the Tribunal has awarded compensation under the heads ‘loss of future income’ and ‘compensation on account of future treatment and attendance etc.’ with interest at the rate of 9% per annum from the date of filing of the claim petition till realization, which is not as per the law occupying the field. Therefore, I deem it proper to reduce

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the rate of interest on the whole award amount from 9% per annum to 7.5% per annum from the date of filing of the claim petition till realization. The impugned award stands modified accordingly.

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Consequently, the appeal filed by the insurer (FAO No.110 of 2010) is partly allowed as indicated above and the appeal filed by the claimant (FAO No.111 of 2010) is dismissed.

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The Registry is directed to release the award amount strictly in view of the conditions contained in the impugned award. Excess amount, if any, deposited be released in favour of the insurer through payees account cheque.

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(Mansoor Ahmad Mir),

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13^th November, 2014. Chief Justice. (tilak/rkv)

United India Ins.Co v. Lalit Chauhan

Case brief

What is this about?

What did the court decide?

United India Ins.Co v. Lalit Chauhan

Case brief

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What did the court decide?

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