Tarasius Kullu Vs Md.Gauhar

2 . MACA Nos.635 & 699 of 2016: Both the appeals are filed against the impugned award dated 31^st March, 2016 passed in MAC Case No.136 of 2013 by learned 2^nd Additional District Judge-cum-5^th M.A.C.T., Rourkela, whereby, an amount of Rs.16,20,000/- has been awarded as compensation to the injured claimant with respective reliefs.

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3 . MACA Nos. 636 & 698 of 2016 : Whereas, the instant appeals are filed against an award of Rs.5,62,700/- in favour of the injured claimant (deceased) with an award dated 31^st March, 2016 arising out of MAC Case No.89 of 2013 seeking enhancement of compensation opposed by the Insurance Company.

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MACA Nos.635, 636, 698 & 699 of 2016 Page 2 of 17

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4 . The injured claimants filed the appeals for enhancement of compensation, whereas, the Insurance Company primarily questioned the quantum with a plea that the same are on the higher side and without considering the materials on record. In fact, the accident took place on 29^th March, 2013 during the morning hours at a time when the injured claimants were hit by the offending vehicle, a Tipper bearing registration No. OR 14 V 9170. The said accident alleged to have taken place due to rash and negligent driving of the offending vehicle by its driver, as a result of which, both the claimants, sustained multiple injuries and were treated as indoor patients. After the alleged accident, the claimants filed the applications under Section 166 of the M.V. Act seeking compensation from the owner of the offending vehicle and the Insurance Company. While dealing with the claim applications, considering the pleadings on record, learned Tribunal framed the following issues, such as, (i) whether, the applications for compensation to be maintainable? (ii)whether, on 29^th March, 2013 at about 10.00 A.M., near the spot, both the claimants sustained injuries in a road accident and if such accident took place due to rash and negligent driving of the driver of the alleged Tipper bearing registration No. OR-14-V-9170? and (iii) whether, the claimants are entitled to compensation from the Insurance Company and also the owner of the vehicle, if so, from whom and to what extent?

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5 . To substantiate the claims, the injured adduced oral and documentary evidence and on the other side, Insurance Company led evidence in MAC Case No.136 of 2013 only. No evidence was received from the owner of the offending vehicle. Considering the entire evidence and on a satisfaction MACA Nos.635, 636, 698 & 699 of 2016 Page 3 of 17

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reached at by learned Tribunal that the driver of the Tipper to be rash and negligent and responsible for the accident allowed compensation in favour of the injured claimants, one of whom died subsequently (admittedly, not on account of the injuries sustained in the accident). Being dissatisfied with the impugned awards, the injured claimants as well as Insurance Company filed the present appeals with appropriate reliefs.

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6 . Heard Mr. Panigrahi, learned counsel for the injured claimants and Mr. Dutta, learned counsel for the Insurance Company.

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7 . In MAC No. 699 of 2016, the quantum of compensation is challenged by the claimant and also the Insurance Company with a plea of the former that the same is grossly less and to be arbitrary and on the higher side by the latter, hence, liable to be reduced. Mr. Panigrahi, learned counsel for the claimant submits that a sum of Rs.6,40,000/- on the head of medical expenses is too less as because the expenditure borne towards it is to the tune of Rs.18,61,622/- for having been treated as an indoor patient at Ispat General Hospital, Rourkela; Apollo Hospital, Bhubaneswar; and Udaybhanu Clinic & Nursing Home, Cuttack proved through Exts.13, 14 Series, 15 Series and 16. So, therefore, the contention of Mr. Panigrahi is that the amount on the head of medical expenses is to be accordingly enhanced. It is further submitted by Mr. Panigrahi that the injured, considering the grievous injuries sustained by him, disability, age and treatment expenditure incurred, an amount of Rs.20,000/- towards future medical expenses and Rs.4,000/on loss of amenities are again grossly low and disproportionate. Furthermore, it is contended that the MACA Nos.635, 636, 698 & 699 of 2016 Page 4 of 17

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claimant received multiple injuries on right leg, knee joint, right toe and other parts of body with amputation of three fingers of right leg, which was operated and replaced and other parts of the body had also been operated thrice at Apollo Hospital, Bhubaneswar and Udaybhanu Clinic & Nursing Home, Cuttack and as a result of such injuries, he is declared with a disability of 60% vide Ext.8 and in absence of any rebuttal evidence from the side of the Insurance Company, though all the medical records have been produced and received in evidence with objection, learned Tribunal could not have ignored the same. Mr. Panigrahi would also submit that the injured was running a hotel business by name M/s. Black Berry Hotel at Rajamunda in the outskirt of Rourkela town set up by availing a loan but due to his permanent disability, the business was closed and the State Bank of India, Lahunipara Branch took symbolical possession of the land and building of the hotel by initiating a proceeding for recovery of loan amount and the said evidence has not been rebutted by the Insurance Company either. That apart, as per Mr. Panigrahi, the functional disability of the injured should have been held at 100% instead of 60% and hence, the compensation is to be correspondingly determined by adding future prospects, which is permissible even in injury cases and while pleading so, a decision in the case of Jagdish Vrs. Mohan and others 2018(2) T.A.C. 14 (S.C.) is cited by him. That apart, it is contended by Mr. Panigrahi that the learned Tribunal ought to have fixed the monthly income of the injured at Rs.12,000/- instead of Rs.10,000/- and hence, considering the same and other aspects, the compensation deserves to be enhanced with a sum of Rs.40,11,622/- with an additional payment of Rs.23,91,622/-.

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MACA Nos.635, 636, 698 & 699 of 2016 Page 5 of 17

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On the point of functional disability at 100%, though, permanent disability is declared at 69%, Mr. Panigrahi, in that connection, placed reliance on a decision of the Apex Court in the case of Jithendran Vrs. New India Assurance Co. Ltd. AIR

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ONLINE 2021 SC 946 .

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8 . In respect of the other injured in MAC Case No.89 of 2013, Mr. Panigrahi submits that an amount of Rs.5,62,700/- as compensation allowed in his favour also needs enhancement. Mr. Panigrahi submits that the said injured also received multiple injuries on head and other parts of the body and due to such injuries, his right leg was operated and nailing was done on right femur and as a result, it got shortened and for the injuries, he received treatment at Ispat General Hospital, Rourkela for nearly twenty days and had to spend Rs.5100/-. Mr. Panigrahi also submits that the District Medical Board assessed the physical disability of the claimant to be 40% as per Ext. 5 which indicated that the nature of injuries restricted the movement of his hip and shortening of right leg and considering the extent of the injuries and its impact, the functional disability should have been held as 100%. It is contended by Mr. Panigrahi that the learned Tribunal also committed error by not adding future prospects at 25% referring to the decision in Jithendran (supra). While concluding the argument, Mr. Panigrahi would submit that in view of the Salary Certificate (Ext.9) and Ext.5, learned Tribunal while considering the job of the injured as a driver in M/s. B.P. Mohanty Transport, Tensa prior to the accident would have awarded compensation taking into account the functional disability higher than 40% and adding the future prospects of 25% besides the medical expenditure incurred and MACA Nos.635, 636, 698 & 699 of 2016 Page 6 of 17

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other miscellaneous expenses with a multiplier of 14 for the purpose of determination of the compensation.

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9 . In MACA No.635 of 2016, the quantum of compensation is questioned by the Insurance Company and according to Mr. Dutta, learned Tribunal committed error in holding the injured’s disability to the extent of 60% when Ext.8 was admitted into evidence with objection and also for the fact that the whole-body functional disability was not taken into account, which law mandates in view of the Apex Court’s decision in (2011) 48 OCR (SC) 214 . It is submitted by Mr. Dutta that the further wrong committed by the learned Tribunal is with regard to monthly income of the injured fixed at Rs.10,000/- and that, after the alleged occurrence, the hotel business was not closed in absence of any evidence to the contrary and in that connection, referred to a decision of the Apex Court in the case of New India Assurance Company Limited Vrs. Yogesh Devi and others AIR 2012 SC 945 . It is also submitted that the injured could not have been allowed a sum of Rs.6,40,000/- on the head of medical expenses when the bills were not properly proved and as such, no case of enhancement is made out as the plea is to the effect that the injured spent Rs.18,61,622/- towards such expense. Referring to Ext.14 series, Mr. Dutta alleges that the medicine bills include the interim payments made by the injured for a total amount of Rs.3,90,000/-, inasmuch as, the deposits (with the voucher details/numbers indicated) find mention in all the bills and hence, repeated at the time of calculation.

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10 . With respect to the injured in MACA No.636 of 2016, Mr. Dutta submits that the learned Tribunal did consider the

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MACA Nos.635, 636, 698 & 699 of 2016 Page 7 of 17

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disability at 40% on the basis of Ext.5, even when it was not proved by any doctor and also failed to assess the functional disability. According to Mr. Dutta, the monthly income of the injured at Rs.8000/- on the basis of Ext.9 is also not properly proved, since it was received as evidence with objection and furthermore, when the same does not reveal registration particulars of the Transport Company where he claimed to have had worked. Lastly, it is contended by Mr. Dutta that since the injured died during the pendency of the appeal, his legal heirs are not entitled to any sum towards loss of pain and suffering, future medical treatment and loss of amenities in view of the decisions of the Apex Court reported in AIR 1986 SC 411 and also AIR 2007 MP-38 besides AIR 2009 Madras 2022 . In response to the above contention that there shall be no compensation on the heads of loss of pain and suffering etc., Mr. Panigrahi, learned counsel for the injured relies on the decision of the Apex Court in the case of the Oriental Insurance Company Limited Vrs. Kahlon @ Jasmail Singh Kahlon and Another 2021 (4) T.A.C. 1 (SC) to contend that the legal heirs of the injured are entitled to compensation excluding amounts on the heads of pain and suffering etc., which relate to personal injury.

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11 . Considering the rival contentions vis-à-vis the compensation allowed in favour of the injured claimants, the Court is to examine it with reference to the evidence on record and in the light of settled position of law. The accident is dated 29^th March, 2013 and the involved vehicle is a Tipper. There is no dispute with regard to the alleged accident as the same has not been denied by the Insurance Company. The learned Tribunal considering the evidence received held that the accident is MACA Nos.635, 636, 698 & 699 of 2016 Page 8 of 17

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proved and also reached at a conclusion regarding the rash and negligence on the part of the driver of the Tipper with injuries being received by both the claimants. The offending Tipper was found to have a valid insurance policy as on the date of accident. Such fact is also not in dispute. According to the evidence on record, policy was valid from 7^th December, 2012 to 6^th December, 2013 as a Goods Carriage Transport Vehicle on the terms and conditions contained therein. The challenge is principally directed against the quantum of compensation which is claimed to be less by the injured claimants and on the higher side by the Insurance Company. The settled position of law is that an injured or the LRs of the deceased to be indemnified for the loss on account of the vehicular accident with just compensation, which is ‘no more, no less’. A Claims Tribunal is, hence, required to consider and appreciate the evidence on the nature of injuries, extent of damage caused to the injured or the family of the deceased for the loss sustained as a result, with all other aspects, though, it is difficult to measure the actual loss or suffering while determining compensation. In the instant case, that the injured sustained multiple injuries and were treated separately and declared physical disabled to the extent by the Medical Board and having been allowed compensation, whether the same to be just compensation or otherwise shall have to be examined by this Court. The injured claimant in MACA No.699 of 2016 was allowed a compensation of Rs.16,20,000/-, which is sought to be enhanced to Rs.40,11,622/-, whereas, the other injured (deceased) in MACA No.698 of 2018 was awarded compensation Rs.5,62,700/- and the same are to be payable to them by the Insurance Company along with interest.

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MACA Nos.635, 636, 698 & 699 of 2016 Page 9 of 17

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12 . (i) In MACA No.699 of 2016, a sum of Rs.6,40,000/- on the head of medical expenses is allowed in favour of the injured claimant. In support of treatment for the injuries, the claimant proved Exts.13, 14 series, 15 series and 16 seeking enhancement to Rs.18,61,622/-. The said claim of the injured is disputed by Mr. Dutta, learned counsel for the Insurance Company stating that the medicine bills include the payments made from time to time and hence, the calculation has been repeated and learned Tribunal, thus, committed no wrong in allowing an amount of Rs.6,40,000/- only on the said head. In fact, the certified copies of the bills marked as Exts.13, 14 series, 15 series and 16 are referred to, while claiming enhancement on the medical expenses. On inspection of the same, the Court equally finds that certain interim deposits have been made and again included in each of the bills, which cannot be allowed, as such calculation would result in repetition. Having found so, the Court is in agreement with the contention of Mr. Dutta, learned counsel for the Insurance Company that there is reiteration of some interim deposits made all through during the time of treatment of the injured claimant. On a fresh calculation made, taking into account the bills, the Court further finds that the calculation reached at by learned Tribunal on the head of medical expenses is rather reasonably assessed at Rs.6,40,000/- and hence, no case for any enhancement on such ground is made out. In other words, the plea of Mr. Panigrahi, learned counsel for the injured claimant does not find favour with respect to enhancement on the head of medical expenses borne by the injured, though accepting the evidence that he was under treatment in Apollo Hospital, Bhubaneswar and at a clinic thereafter.

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MACA Nos.635, 636, 698 & 699 of 2016 Page 10 of 17

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(ii) In so far as the contention vis-a-vis the extent of disability, it is supported by Ext.8 declaring him to be disabled at 60% with a claim that it should be treated as 100%, Mr. Panigrahi, learned counsel for the injured claimant supports it but is opposed by Mr. Dutta, learned counsel for the Insurance Company contending that the entire body disability is to be examined. Learned Tribunal has accepted the functional disability of the injured at 60%, as earlier mentioned. Mr. Panigrahi refers to the decision in the case of Jithendran (supra) while claiming that disability should be 100% instead of 60% in case of the injured claimant. In the said decision, the injured suffered severe impairment of cognitive power with Hemiparesis and total Aphasia and Prognosis with 68% permanent disability, which was treated as 100% functional disability in so far as the loss of earning capacity is concerned. It is well known that the extent of functional disability is to be determined by a Claims Tribunal without blindly accepting the permanent disability declared by the Medical Board. While dealing with a case of injury, the Apex Court, in the aforesaid decision, discussed the yardstick to be adopted to decide as to in what manner, the functional disability is to be assessed and while referring to one of its earlier decisions in Pappu Deo Yadav Vrs. Naresh Kumar and others AIR 2020 SC 4424 held that proportionate loss of earning capacity on account of any such permanent disability may have to be quantified as 100%. In the said case, as previously stated, the injured was found 69% physically disabled and while considering it and the nature of such disability affecting cognitive power of the injured, declared the functional disability to be 100%. In the case at hand, the injured claimant received multiple injuries and

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MACA Nos.635, 636, 698 & 699 of 2016 Page 11 of 17

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declared to be 60% locomotor disability as per Ext.8. The learned Tribunal accepted functional disability at 60% instead of 100%, which in the considered view of the Court, is not grossly erroneous. Of course, the claimant received treatment at Apollo Hospital, Bhubaneswar and had surgical intervention on couple of times with knee replacement and amputation of three of the fingers of right leg but for such injuries and disability declared, it cannot be treated as 100%. Considering the nature of the vocation of the claimant as he had a hotel business, for the kind of disability on account of the injuries sustained, the functional disability, hence, is not unreasonable at 60%. It is not that the injured claimant is fully disabled and lost earning capacity completely. As he continued to generate income so revealed from Ext.19, had it been a case of amputation of hands or legs or impairment of cognitive faculty of the injured with such permanent disability of 60%, the Court would have allowed functional disability at 100%, which is, however, not the case of the claimant considering the evidence on record and therefore, the decision in Jithendran (supra) is distinguishable on facts.

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(iii) In so far as the salary of the injured is concerned, it is fixed at Rs.10,000/- which according to Mr. Panigrahi should have been Rs.12,000/- with 25% added on future prospects. In Jagdish (supra), the Apex Court, considering the disability at 90%, allowed 40% towards future prospects in view of the decision in National Insurance Company Limited Vrs. Pranay Sethi (2017) 13 SCALE 124 , referring to which, Mr. Panigrahi claims for at least 25% on the said head. As regards, the salary of the claimant injured, on perusal of Ext.19, it is made to

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understand that he had monthly income during the years 2013MACA Nos.635, 636, 698 & 699 of 2016 Page 12 of 17

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15 hovering around Rs.10,000/- to Rs.15,000/-. The injured was running a hotel business and monthly income would normally fluctuate depending on season and footfalls. Taking into account Ext.19, such as, the statements of account of the claimant injured, it would be quite reasonable to fix the monthly income at Rs.10,000/- but in view of the extent of disability suffered by him, 25% should be added on future prospects and hence, it becomes Rs.12,500/-. Then, the yearly income is reached at Rs.1,50,000/-. Since the Court is not inclined to allow 100% loss towards earning capacity which is also negatived considering Ext.19, the same is, thus, assessed at 60%. Hence, the loss earning capacity becomes Rs.90,000/and applying multiplier of 13, it would be Rs.11,70,000/-. The additional medical expenses since retained at Rs.6,40,000/-, the amount is arrived at Rs.18,10,000/-. The Court is, however, inclined to allow Rs.20,000/- each on the heads of pain and suffering and loss of amenities, Rs.50,000/- towards future medical expenses, hence, with the above additions, the compensation stands determined at Rs.19,00,000/- as against the awarded sum of Rs.16,20,000/-.

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13 . (i) In MACA No.698 of 2016, with respect to the injured (deceased), as earlier stated, the compensation has been determined at Rs.5,62,700/-. Both the claimants and also the Insurance Company allege the compensation amount to be arbitrarily assessed. Like the other injured, the claimant had received multiple injuries and he was under treatment and physical disability was assessed at 40% and herein also, the demand is for 100% functional disability. The petitioner suffered injuries and there is restriction of movement of hip and shortening of right leg as per Ext.5, even in absence of any MACA Nos.635, 636, 698 & 699 of 2016 Page 13 of 17

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specific evidence to show that it has materially affected his employment as a driver, the functional disability may have to be fixed at higher than 40% adding loss of future prospects at 25%. Due to the nature of vocation of the injured claimant, the Court is inclined to take such a view to hold him more than 40% functionally disabled. However, the functional disability cannot be assumed to be 100% without clear evidence on record. Such disability in the considered view of the Court should be 50% instead with loss of future prospects at 25%.

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(ii) The income of the injured is accepted at Rs.8,000/- a month. In fact, the salary certificate i.e. Ext.9 reveals that prior to the incident, the injured was working as a driver with a monthly earning of Rs.8,000/-. So, therefore, the Court is to fix the monthly income at Rs.8,000/- as held by the learned Tribunal and with a 50% disability, it becomes Rs.4,000/- and as such, the annual loss of earning becomes Rs.48,000/-. Applying the multiplier of 14 as per the decision of the Apex Court in Smt. Sarla Verma and others Vrs. Delhi Transport Corporation and Another (2009) 2 TAC 677 , the total loss of earning stands at Rs.6,72,000/- and adding an amount of Rs.5,100/- towards medical expenses, the final amount of compensation is reached at Rs.6,77,100/-.

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(iii) As regards, the contention of Mr. Dutta, learned counsel for the Insurance Company that since the claimant injured has died during the pendency of the appeal, his legal heirs are not entitled to any sum towards pain and suffering, future medical treatment and loss of amenities. The decision of the Apex Court in the case of Melepurath Sankunni Ezhuthassan Vrs. Thekittil Gopalankutty Nair 1986 ACJ 440 is referred to by a

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Full Bench of M.P. High Court in Smt. Bhagwati Bai and Another Vrs. Bablu and others AIR 2007 MP 38 which is relied on by Mr. Dutta. In the above decision of the Apex Court, the legal representatives of a deceased, who suffered personal injury in a motor accident but died subsequently for some other reason, were held not eligible to pursue the claim application under Section 166 of the Motor Vehicles Act. Considering the said decision, the MP High Court in Smt. Bhagwati Bai (supra) also held that a claim for personal injury filed under Section 166 of the MV Act would abate on the death of the claimant and not to survive to his legal representatives except as regards, the claim for pecuniary loss to the estate of the claimant, while answering a reference of a Division Bench of the said Court.

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On the other hand, Mr. Panigrahi, learned counsel for the injured referring to the decision in Kahlon @ Jasmail Singh Kahlon (supra) contended that the claims proceeding does not abate, however, the legal heirs are not entitled to Rs.20,000/- in the whole which is to be accordingly deducted. In the aforesaid decision, the Apex Court held and observed that loss of estate would include expenditure on medicine, treatment, diet, attendant, doctor’s fee etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted estate of the injured subsequently deceased, however, the compensation under the head of pain and suffering being personal injuries is to be disallowed. In Umedchand Golcha Vrs. Dayaram 2002 (1) MP LJ 249 , which is referred to by the Apex Court in the decision (supra), it has been concluded that a broad liberal MACA Nos.635, 636, 698 & 699 of 2016 Page 15 of 17

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interpretation to the provisions of the MV Act is needed so that legal representatives do not suffer injustice, though the claim for personal injuries do not survive on the death of the injured unrelated to the accident but could pursue the claim for enhancement on account of loss of estate, which should include expenditure on medical expenses, travelling, attendant, diet, etc. and reasonable monthly annual accretion to the estate for a certain period and it is trite that the income which a person derives compositely forms part of the expenditure on himself, his family and the savings go to the estate and the unforeseen expenses naturally have to be met from the estate causing pecuniary loss to such estate. In Surpal Singh Ladhubha Gohil Vrs. Raliyatbahen Mohanbhai Savlia 2009 (2) GLH 217 , it is observed that the MV Act is a social welfare legislation providing for compensation and such grant of compensation has to be expeditious and the courts in construing the same are to adopt beneficial rule of construction and while rejecting the maxim ‘actio personalis moritur cum persona’ on the premise that it was an injury done to the person and the claim abated, it is further held therein that the right to sue survives and does not abate. Mr. Dutta, learned counsel for the Insurance Company submits that the legal heirs of the injured (deceased) are not entitled to any amount towards loss of pain and suffering, medical treatment and loss of amenity. The Court considering the fact that learned Tribunal allowed a sum of Rs.20,000/- on such head, the same is only to be deducted from the compensation and finally determines the amount and fix it at Rs.6,77,100/- which appears to be just and reasonable.

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14 . Hence, it is ordered.

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MACA Nos.635, 636, 698 & 699 of 2016 Page 16 of 17

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15 . In the result, the appeals stand allowed in part. As a necessary corollary, the impugned awards dated 31^st March, 2016 in MAC Case Nos.89 and 136 of 2013 passed by learned 2^nd Additional District Judge-cum-5^th Motor Accident Claims Tribunal, Rourkela are hereby modified to the extent as aforesaid with a direction to the Insurance Company to deposit sum of Rs.6,77,100/- and Rs.19,00,000/- respectively with interest @ 6% per annum from the dates of claim applications filed payable to the injured claimant and LRs of the other deceased injured within eight weeks from today. It is directed that in the event such deposits are made, learned Tribunal shall ensure its disbursement in favour of the parties entitled thereto. Lastly, it is directed that soon after the compensation sum in both the cases is deposited, the statutory deposits in respect of the appeals shall be refunded to the Insurance Company forthwith.

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16 . In the circumstances, however, there is no order as to costs.

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(R.K. Pattanaik) Judge

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Balaram/Tudu

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Signature Not Verified

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Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 20-Jun-2024 10:59:00

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MACA Nos.635, 636, 698 & 699 of 2016 Page 17 of 17

Tarasius Kullu v. Md.Gauhar

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Tarasius Kullu v. Md.Gauhar

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