Allowed

Md Kaiyum Ansari Alias Kayum Ansari v. Satis Kumar And Anr.

Jharkhand HC11 Oct 2019MA/76/2017

Case brief

AI extract

What is this about?

This High Court allowed the miscellaneous appeal and enhanced the compensation awarded to a 12-year-old child victim of a motor accident. The Court held that the Tribunal wrongly used notional income for a child and misdirected itself on interest. Following Apex Court precedents, the award was increased to Rs.4,84,437 with interest at 7.5% p.a. from the date of claim filing.

What did the court decide?

Compensation enhanced from Rs.1,97,337 to Rs.4,84,437 with simple interest at 7.5% per annum from the date of filing the claim application on 23rd January, 2008.

Md Kaiyum Ansari Alias Kayum Ansari Vs Satis Kumar… — Motor Accident Claims | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction) M. A. No. 76 of 2017

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Kayum Ansari, S/o Md. Ashraf Ansari, resident of village-Baijladih, P.O. Gurio, P.S. Barhi, District-Hazaribag ….. Appellant

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Versus

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1.Satis Kumar S/O Ram Krishna Prasad, Resident of village-Bariatu, P.O., P.S. & District-Latehar.

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2.The Oriental Insurance Company Limited, Kadru Diversion Road, Tripati Colony, Doranda, P.O. & P.S.-Doranda, District-Ranchi through the Branch Manager, the Oriental Insurance Company Limited, Ranchi, Patna Road, Opposite Civil Court, P.S.-Sadar, P.O. & District-Hazaribag …… Respondents

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Coram: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Appellant For the Resp. No.-2

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----: Mr. Awnish Shankar, Advocate : Mr.Manish Kumar, Advocate

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Order No.6/Dated : 11^th October, 2019

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Heard, Mr. Awnish Shankar learned counsel for the

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appellant/Claimant and Mr. Manish Kumar learned counsel for the respondent No.2 (Oriental Insurance Company Limited).

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2. The claimant has preferred this miscellaneous appeal for enhancement of the award dated 28^th November, 2016 passed in Claim Case No. 27 of 2008 passed by Presiding Officer Motor Vehicle Accident Claim Tribunal, Hazaribagh whereby the claimant who is 50% permanent disabled has been awarded a sum of Rs.1,97,337/with simple interest at the rate of 6% per annum from the date of the award i.e. 28^th November, 2016 payable within 30 days, failing which, the interest shall be calculated at the rate of 9% per annum with effect from the date of the award. The payment of ad-interim compensation, if paid, shall be deducted from the aforesaid amount. 3. Learned counsel for the appellant has submitted that victim Kayum Ansari aged about 12 years, suffered 50% permanent disability because of collusion of two vehicle bearing registration No.HR- 31PA 0308 and JH-11A- 2529 (Truck) due to negligence on the part of both vehicles. The original certificate of disability has been

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brought on record as Y/1 and the copy of the discharge summary has been brought on record as Y/2 and the Medical Bills as Z to Z/46.

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4. Learned counsel for the appellant has further submitted that the learned Tribunal has wrongly calculated the compensation to the victim considering the annual income before the accident of the victim as Rs.15,000/- which is contrary to the judgment passed in the case of R.D. Hattangadi Vs. PEST CONTROL (INDIA) PVT. LTD. and others as reported in (1995) 1 SCC 551 as well as in the case of Master Mallikarjun Vrs. Divisional Manager, The National Insurance Company Limited & Anr. as reported in 2013 AIR SCW 6452 , at para 9 and 8 respectively which reads as follows:-

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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 are capable of being calculated in terms of money; whereas non-pecuniary 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 nonpecuniary damages are concerned, they may include (i)damages for mental and physical shock, pain and suffering, already suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on 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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“8. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evident available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd. And others, while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best party of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second

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Schedule for non-earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a nonearning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of 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 disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.”

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5. Learned counsel for the appellant has submitted that the

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total compensation amount granted to the appellant by the Tribunal to the tune of Rs.1,97,337/- is not in accordance with law as held by the Hon’ble Apex Court in the aforesaid judgments, as such, the same may be enhanced. Learned counsel for the appellant has furnished a chart showing the calculation made by the Tribunal and the claim made by the claimant for enhancement as proposed, is being reproduced here.

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Particulars	MACT	Proposed enhance amount
Annual Income	15000 (notional income)
Amount spent on treatment/medicine/operation/amp utationcharges	34837	34837
Pain, sufferings, loss of amenities/mental and physical shock/hardships	50,000	4,00,000
FutureIncome	1,12,500 (7500x15)
Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization		25000
Future medical expenses and incidentalexpensesfortreatment		25000
Total	197337	484837
Difference		287500
Interest	6 percent from the date of award, i.e. 28/11/16	7.5 percent from the date of filing of claim petition, i.e. 23/1/2018

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6. Learned counsel for the appellant has submitted that the Tribunal has awarded the interest @ 6% per annum from the date of award i.e. 28^th November, 2016 payable within 30 days and in case of default the simple interest of 6% is enhanced to 9%. Learned counsel for the appellant has submitted that in view of the judgment of Dharmapal and Sons Vs. State of U.P. State Road Transport Corporation as reported in 2008 (4) JCR 79 (SC) the interest ought to have been @ 7.5% simple interest from the date of filing of the claim petition.

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7. Learned counsel for the appellant on the basis of comparative chart has submitted that a sum of Rs.2,87,500/- be enhanced to the claimant along with simple interest @ 7.5% from the date of filing of the claim application i.e. 23^rd January, 2008 till payment is made to the claimant. So far the amount already paid to the claimant to the tune of Rs.1,97,337/- is concerned, the same may be calculated with simple interest @ 7.5% from the date of application till already paid to the claimant as such, the enhancement may be passed by this Hon’ble Court as the claimant/victim being a young boy has suffered 50% permanent disability in a motor accident in view of the judgment passed by the Hon’ble Apex Court.

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8. Learned counsel for the Insurance Company, Mr. Manish Kumar has submitted that the documents which has been brought on record such as Disability Certificate, marked as Y/1 and Discharge Certificate, marked as Y/2 as well as Medical Bills, marked as Z to Z/46 have not been properly exhibited by the appellant before the Tribunal. Those documents have only been brought on record.

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9. Learned counsel for the Insurance Company has fairly submitted from the impugned award that, it appears that three

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fingers of claimant’s right leg have been amputated, though the medical evidence has not been adduced in accordance with law. Learned counsel for the Insurance Company has further submitted that though the case has been filed before the Tribunal in the year 2008 for an occurrence which took place on 27^th August, 2006, if the interest is awarded from the date of application then claimant will take benefit in keeping the trial pending by not adducing evidence on their behalf so as to fetch more interest as it has been done in the present case as such, this Court may not fix the interest from the date of the claim application i.e. 23^rd January, 2008 as it has been rightly awarded by the Tribunal from the date of award dated 28^th November, 2016 as such, this Court may consider the same while passing the judgment.

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10. Heard learned counsel for the appellant and learned counsel for the Insurance Company and perused the materials brought on record. It appears that the claim Tribunal has considered notional income of the victim a boy of 12 years as Rs.15,000/- which is contrary to the guidelines issued by the Hon’ble Apex Court. The learned Tribunal has wrongly granted Rs.50,000/- as compensation for pain, sufferings, loss of amenities/mental and physical shock/hardship. The Hon’ble Apex Court in the case of R.D. Hattangadi (supra) has considered this aspect of the matter and also in the case of Master Mallikarjun (supra) at para 8 and 9 of the said judgments which has already been profitably quoted earlier.

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11. The Hon’ble Apex Court has held that in case of disabilities up to 60% the award should be Rs.4 Lakhs. In the case of Master Mallikarjun (supra) since the disabilities was up to 30% the compensation was granted to Rs.3 Lakhs as such, in the present case

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where the disabilities is 50% the compensation should be granted for pain, suffering, loss of amenities/mental and physical shock/hardship to be Rs.4 Lakhs. This Court has perused the proposed chart produced by the learned counsel for the appellant and has found that the Tribunal has wrongly considered future income and awarded Rs.1,12,500/- though the appellant has not claimed rather the discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization has been claimed as Rs. 25,000/- and the future medical expenses and incidental expenses for treatment has also been claimed as Rs.25,000/- which the Tribunal has not awarded while granting compensation to the claimant.

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12. Accordingly, in view of the judgment of Master Mallikarjun (supra) this Court is also inclined to grant Rs.25,000/for the discomfort, inconvenience and loss of earning to the parents during the period of hospitalization and also Rs.25,000/- for future medical expenses and incidental expenses for the treatment. Accordingly, this Court enhanced the compensation already awarded by the Tribunal of Rs.1,97,337/- to Rs.4,84,837/.

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13. The learned counsel for the insurance company has submitted that the awarded amount i.e. Rs. 1,97,337/- has already been indemnified by the insurance company along with the interest @ 6% from the date of the award granted by the Tribunal as such, the dispute is with regard to the enhanced amount of Rs.2,87,500/- along with interest. This Court considered Section 171 of the Motor Vehicle Act, while granting the interest which reads as follows:-

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“171 . Award of interest where any claim is allowed – Where any claims Tribunal allows claim for compensation made under this act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such and from such date not earlier than the date of making the claim as it may

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specify in this behalf.”

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14. From perusal of the impugned award, this Court considered that accident took place on 27^th August, 2006 but the claim application has been filed on 23^rd January, 2008. The claim application remained pending for eight years and the tribunal without any cogent reason, showing latches on the part of the claimant in disposal of the claim case has erroneously considered the interest from the date of award i.e. 28th November, 2016.

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15. In my view, the Tribunal ought to have taken judicial notice of Section 171 of Motor Vehicles Act, while granting simple interest to the claimant. The tribunal has adopted a method to grant interest @ 6% from the date of award for 30 days and in case of fault @ 9% to the claimant, which in my opinion is not justified as such, that part of the order is hereby modified by awarding a compensation in view of the judgment Dharmpal and Sons Vs. U.P.State Road Transport Corporation (supra) with simple interest of 7.5% from the date of filing of the claim application i.e. 23rd January, 2008 or as per the prevailing bank rate of interest. Accordingly, this Court enhanced the award from Rs.1,97,337/- to Rs. 4,84,437/- with simple interest at the rate of 7.5% per annum from the date of filing of the claim petition i.e., 23^rd January, 2008 till payment of the same.

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Needless to say that if any claimant is delaying the disposal of the claim application, then in that case the learned Tribunal must specify the reason while changing the date of interest from date of filing of the claim application either to the date of settlement of the issue or to the date of award.

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16. The Insurance Company is directed to indemnify the enhanced amount along with simple interest @ of 7.5% from date of

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filing of claim case before the Tribunal preferably within 90 days from today.

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17. Accordingly, the miscellaneous appeal is, hereby allowed and disposed of.

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18. Let a copy of this order be communicated to all the Tribunal as well as Judicial Academy so as to take judicial notice while awarding the interest on the award.

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(Kailash Prasad Deo, J.)

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Amardeep/Raja

Md Kaiyum Ansari Alias Kayum Ansari v. Satis Kumar And Anr.

Case brief

What is this about?

What did the court decide?

Md Kaiyum Ansari Alias Kayum Ansari v. Satis Kumar And Anr.

Case brief

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