Allowed

Gurbachan Kaur v. State of Haryana and Ors.

Punjab & Haryana HC11 Nov 2024FAO/2363/2007

Case brief

AI extract

What is this about?

Claimant, a home-maker who lost her right leg in a bus accident, sought enhancement of Rs.2,70,000 awarded by the Tribunal. Court assessed her notional income at Rs.6,000 per month, added future prospects and enhanced non-pecuniary heads, awarding total Rs.9,41,280 with interest at 9%.

What did the court decide?

Enhanced compensation of Rs.6,71,280 over Tribunal's Rs.2,70,000, total Rs.9,41,280 with 9% interest, payable by Insurance Company within two months and disbursed by Tribunal.

Gurbachan Kaur Vs State of Haryana and Ors. — Motor Accident Claims | Punjab & Haryana HC (2024)

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FAO-2363-2007 (O&M)

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204

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO-2363-2007 (O&M) Date of Decision : 11.11.2024

Smt. Gurbacha n Kaur

....Appellant

VERSUS

State of Haryan a & others ....Respondents

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CORAM : HON’BLE MRS. JUSTICE SUDEEPTI SHARMA

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Present: M r . Mohit Giri, Advocate and M r . Harmeet Singh, Advocate for th e appellant.

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M r . Praveen Chander Goyal, Addl. A.G. Haryana.

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M r . Neeraj Khanna, Advocate for M r . R.N.Singal, Advocate for resp o ndent No.4 – Insurance Compa n y. -.-

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SUDEEPTI SHARMA, J. (Oral)

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Th e present appeal has been pref e rred by the claimant/appellant for enhancement o f compensation awarded by t h e learned Motor Accident Claims Tribunal, Amb a la (for short, 'the Tribunal') v i de award dated 30.01.2007 u n der Section 166 of t he Motor Vehicles Act, 1988, w hereby the claimant/appellant w ere awarded a com p ensation of Rs.2,70,000/- along w ith interest @ 7.5% per annu m . FACTS NOT IN DISPUTE

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Br i ef facts of the case are th a t on 06.12.2005 appellant S mt. Gurbachan Kaur was going on foot from Amb a Market, Ambala City to her h o use on correct left h and side of the road on kacha b erm. At about 2.30 pm when she reached near t h e entrance gate of bus stand Ambala City, in the meantim e , a Haryana Road w ays bus bearing registration No . HR-39-A-8418 being driven ra s hly and negligently by respondent No.3 came from behind and hit the claimant and the TRIPTI SAINI 2024.11.19 11:28 I attest to the accuracy and integrity of this document

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FAO-2363-2007 (O&M) - 2-

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left front wheel of the said bus run over her ri g ht leg. After the accident, she w as taken to Mann H ospital, Ambala City where o p eration for amputation of her r i ght leg above knee w as conducted on the same day and she regained consciousnes s on the next day. S he remained admitted in the said hospital from 06.12.200 5 to 22.12.2005. T h e claimant at the time of filing o f the claim petition was still u n der treatment and b y that time a sum of rupees o ne lakh was spent by her on her treatment, trans p ortation etc.. It is averred that the claimant at the time of acci d ent in question was 54 years of age and was enjoyi n g very good health. She used t o do the entire hous e hold work and was contributin g services to the family for not l ess than Rs.3200/- p er month. After the accident s h e has become dependent on ot h ers due to the injur i es suffered by her in the accid e nt in question. FIR No.290, d a ted 07.12.2005 wa s also got registered under Sect i ons 279/338 IPC at Police Stat i on, Ambala City, i n this regard.

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Upon notice of the claim petition , respondents appeared and de n ied the factum of a c cident/compensation.

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Fr o m the pleadings of the parties, the Tribunal framed the follo w ing

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issues:-

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Whether the accide n t resulting in the injuries and permanent disability to cl a imant Smt. Gurbachan Kaur w as caused due to the rash an d negligent driving of bus bea r ing No.HR-39-A-8418? OPP

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If issue No.1 is prove d , to what amount of compensa t ion and from whom the claiman t is entitled to? OPP

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Whether the claim p e tition is bad for mis-joinder and non-joinder of necessary par t ies? OPR-4

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Whether the claim p etition is not maintainable in its present form? OPR-4

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Whether the person who was driving the vehicl e in question was not holding a v alid and effective driving licence at the time of the alleged accid e nt? OPR-4

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Whether the claim pe t ition has been filed by the clai m ant in collusion with the respon d ents No. 1 to 3? OPR-4

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Releif.

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Af t er taking into consideration t h e pleadings and the evidence on record, the lea rn ed Tribunal awarded compen s ation to the tune of Rs.2,70,0 0 0/alongwith inte r est @ 7.5% per annum. Hen c e the claimant/appellant filed the present appeal for enhancement of compensation awarded by the Tribu n al.

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SUBMISSIONS OF LEARNED COUNSELS FOR THE PARTIES

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Le a rned counsel for the claimant-a p pellant contends that the appel l ant suffered 65% p ermanent disability and the amount assessed by the lear n ed Tribunal is on t h e lower side. He further conte n ds that no amount was granted for future prospect s and compensation awarded f or pain and sufferings, atten d ant charges, transp o rtation charges and for loss of enjoyment of life is also on the lower side. He, therefore, prays that the presen t appeal be allowed and the am o unt of compensatio n be enhanced.

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Pe r contra, learned for the respond e nt-Insurance Company argues t hat the learned Tri b unal vide award dated 30.01.2 0 07 has rightly assessed the am o unt of compensatio n . Therefore, he prays for dismi s sal of the present appeal.

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I h ave heard learned counsel for the parties and perused the w h ole record of this c a se.

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A perusal of the award indicate s that the appellant suffered 6 5% permanent disa b ility because of the accident i n question. The determination o f a home-maker’s income must be guided by the principles laid down in case of Lata Wadhwa and Others Vs. State of Bihar and others, (2001) 8 SCC 197 , whe r ein the Hon’ble S u preme Court, recognized the s ignificant contributions of ho m e- makers and th e ir economic value within the h ousehold, further in two sepa r ate judgments deli v ered by co-ordinate Benches of this Court in FAO-218-2024 , titled as Unied India Insurance Company Vs. Sube Singh and Others decide d on 15.01.2024 an d FAO-2772-2015 titled as Tarsem Singh and Others Vs. New India Insurance Company Limited and Others , the income of the claima n tshomemaker we r e assessed as Rs.9,000/- per m o nth. In Sube Singh’s case (supra), Hon’ble Justic e Ajay Tiwari, while referri n g to the precedent set in Lata Wadhwa’s case supra made the following observations:-

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“Learned counsel for the appellant has argued that e ven while noticing that th e income of a skilled worker in 2 0 12 was approximately **_8_** _000/- the Tribunal has wro_ **_n_** _gly assessed the income_ **_o_** _f the deceased as_ 9000/-. As p er him once the notional income had been taken a deduc t ion had to be made for p e rsonal expenses. This argume n t is

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FAO-2363-2007 (O&M)

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flawed. In Lata Wadhwa and others v. State of Bihar and others reported a s 2001(4) RCR(Civil) 673 (w h ere the accident had ta k en place in 1981) the Hon'ble Supreme Court eval u ated the contribution of a h o use wife at Rs.3000/-per m onth. The accident in the pre s ent case took place after 2 3 years. In my considered opi n ion to tag a house wife a s a 'skilled worker' alone does not do complete justice t o her multifarious role as a h o me manager. Keeping in v iew the lapse of 23 years bet w een the accident in the ca s e of Lata Wadhwa and the pre s ent accident and my c o nclusion that a house wife is something more than a mere skilled worker it would not be unreasonable to estimate the contribution of the deceased in the pres e nt case at a higher figure. On the whole I see no reason f or reducing the quantum.”

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I n the instant case based on the evidence on record, including the testimony of PW-2 Gurbachan Kaur (cl a imant), it is evident that the appellant/claim a nt’s role as homemaker entai l s multifaceted responsibilities and substantial cont r ibution that surpass those of a s killed worker. In the light of t h ese considerations a nd above referred to judgments and further to ensure an inequit a ble and just determ i nation, it is appropriate to asse s s the appellant/claimant’s noti o nal income as Rs.6,000/- per month. 11. Fu r ther, the amount of compensati o n awarded by the learned Trib u nal under the Hea d s pain and suffering, attendant charges, and special diet is on the

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lower side and no amount has been awarded for future prospects, therefore, the award requires i nterference by this Court.

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SETTLED LAW ON COMPENSATION

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Hon’ble Supreme Court has se t tled the law regarding gran t of compensation w ith respect to the disability. T he Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343 , has held as under:-

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General principles relating to compensation in injury cases

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5. The provision of the Motor Ve hicles Act, 1988 ('Act' for sh o rt) makes it clear that the award must be just, which means t hat co m pensation should, to the ext e nt possible, fully and adequately restore the claimant to the positio n prior to the accident. The obje c t of aw a rding damages is to make go o d the loss suffered as a result of wr o ng done as far as money ca n do so, in a fair, reasonable a nd eq u itable manner. The court or tribunal shall have to assess the da m ages objectively and exclude f rom consideration any specula t ion or fancy, though some conjectur e with reference to the natur e of dis a bility and its consequences, is inevitable. A person is not onl y to be compensated for the physical i nj ury, but also for the loss whic h he su ff ered as a result of such inj u ry. This means that he is to be co m pensated for his inability to l e ad a full life, his inability to e n joy th o se normal amenities which h e would have enjoyed but for the inj u ries, and his inability to earn a s much as he used to earn or c o uld ha v e earned. (See C.K. Subramon i a Iyer v. T. Kunhikuttan Nair, A IR

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19 7 0 Supreme Court 376, R.D. H attangadi v. Pest Control (In d ia) Lt d ., 1995 (1) SCC 551 and Baker v . Willoughby, 1970 AC 467). 6. The heads under which co m pensation is awarded in pers o nal inj u ry cases are the following :

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Pecuniary damages (Special Damages)

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(i) Expenses relating to treat m ent, hospitalization, medici n es, tra n sportation, nourishing food, a n d miscellaneous expenditure. (ii) Loss of earnings (and other g a ins) which the injured would have made had he not been injured, co mp rising :

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(a) Loss of earning during t h e period of treatment;

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(b) Loss of future earnings o n account of permanent disabili t y. (iii ) Future medical expenses. N on-pecuniary damages (Gen e ral Damages)

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(iv ) Damages for pain, suffering a n d trauma as a consequence o f the inj u ries.

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(v) Loss of amenities (and/or loss of prospects of marriage). (vi ) Loss of expectation of life (sho r tening of normal longevity). In r outine personal injury cases, c ompensation will be awarded o nly un d er heads (i), (ii)(a) and (iv). I t is only in serious cases of inj u ry, wh e re there is specific medical e v idence corroborating the evid e nce of t he claimant, that compensatio n will be granted under any o f the he a ds (ii)(b), (iii), (v) and (vi) re l ating to loss of future earning s on ac c ount of permanent disability, future medical expenses, los s of

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amenities (and/or loss of pros p ects of marriage) and loss of ex p ectation of life.

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xxx xxx xxx xxx

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19. We may now summarise the principles discussed above : (i) A ll injuries (or permanent disa b ilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permane n t disability with reference to the wh o le body of a person, cannot be assumed to be the percentag e of los s of earning capacity. To put it d ifferently, the percentage of los s of ea r ning capacity is not the sam e as the percentage of perma n ent dis a bility (except in a few cases, w here the Tribunal on the basi s of evi d ence, concludes that percenta g e of loss of earning capacity is the sa m e as percentage of permanent d isability). (iii ) The doctor who treated an inj u red-claimant or who examined h im su b sequently to assess the extent of his permanent disability can g ive evi d ence only in regard the extent of permanent disability. The los s of ea r ning capacity is something th a t will have to be assessed by the Tr i bunal with reference to the evid e nce in entirety. (iv ) The same permanent disability may result in different percent a ges of l oss of earning capacity in dif fe rent persons, depending upon the na t ure of profession, occupation or job, age, education and o t her fa c tors.

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20. The assessment of loss of future earnings is explained below

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with reference to the following

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Illustration 'A' : The injured, a w orkman, was aged 30 years a nd ea r ning Rs. 3000/- per month at t h e time of accident. As per Doct o r's evi d ence, the permanent disability of the limb as a consequence o f the inj u ry was 60% and the conseq u ential permanent disability to the pe r son was quantified at 30%. The loss of earning capacit y is ho w ever assessed by the Tribuna l as 15% on the basis of evide n ce, be c ause the claimant is continu e d in employment, but in a lo w er gr a de. Calculation of compensatio n will be as follows:

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a) Annual income before th e accident : Rs. 36,000/-.

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b) Loss of future earning pe r annum (15% of the prior annual in c ome) : Rs. 5400/-.

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c) Multiplier applicable wit h reference to age : 17

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d) Loss of future earnings : ( 5400 x 17) : Rs. 91,800/-

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Illustration 'B' : The injured was a driver aged 30 years, earning Rs. 30 0 0/- per month. His hand is am p utated and his permanent disab i lity is a ssessed at 60%. He was term i nated from his job as he coul d no lo n ger drive. His chances of getti n g any other employment was b l eak an d even if he got any job, the sal a ry was likely to be a pittance. T he Tr i bunal therefore assessed his lo ss of future earning capacit y as 75 % . Calculation of compensation will be as follows :

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a) Annual income prior to the accident : Rs. 36,000/- .

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b) Loss of future earning pe r annum (75% of the prior annual in c ome) : Rs. 27000/-.

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c) Multiplier applicable wit h reference to age : 17

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d) Loss of future earnings : ( 27000 x 17) : Rs. 4,59,000/-

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Illustration 'C' : The injured w as 25 years and a final y ear En g ineering student. As a result of the accident, he was in coma for tw o months, his right hand was a mputated and vision was affec t ed. Th e permanent disablement was a s sessed as 70%. As the injured w as in c apacitated to pursue his chos e n career and as he required the as s istance of a servant throughou t his life, the loss of future ear n ing ca p acity was also assessed as 70 % . The calculation of compensa t ion wi l l be as follows :

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a) M inimum annual income he wo u ld ha v e got if had been employed as a n En g ineer : Rs. 60,000/-

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b) L oss of future earning per annu m (7 0 % of the expected annual inco m e) : Rs. 42000/c) M ultiplier applicable (25 years) : 18 d) L oss of future earnings : (42000 x 18) : Rs. 7,56,000/-

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[N o te : The figures adopted i n illustrations (A) and (B) are hy p othetical. The figures in Illus t ration (C) however are based on ac t uals taken from the decision in A rvind Kumar Mishra (supra)]. 13. Hon’ble Supreme Court in the cas e of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law u n der Sections 166, 163-A and 168 of the Motor V e hicles Act, 1988, on the follo w ing aspects:-

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(A ) Deduction of personal a n d living expenses to deter m ine m u ltiplicand;

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(B ) Selection of multiplier depe n ding on age of deceased; (C ) Age of deceased on basis fo r applying multiplier;

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(D ) Reasonable figures on co n ventional heads, namely, loss of est a te, loss of consortium and fune r al expenses, with escalation; (E ) Future prospects for all cat e gories of persons and for diffe r ent ag e s: with permanent job; self-em p loyed or fixed salary. Th e relevant portion of the judgme n t is reproduced as under:-

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“ Therefore, we think i t seemly to fix reasonable sum s . It seems to us that reasonab l e figures on conventional he a ds, namely, loss of estate, loss o f consortium and funeral expe n ses should be Rs.15,000, Rs.4 0 ,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an accept a ble principle. But the revisit should not be fact-centric or quant u mcentric. We think that it wo u ld be condign that the amount t hat we have quantified should b e enhanced on percentage basi s in every three years and the e n hancement should be at the rat e of 10% in a span of three ye a rs. We are disposed to hol d so because that will bring i n consistency in respect of t h ose heads.”

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Hon’ble Supreme Court in the c a se of Erudhaya Priya Vs. State Express Tran. Corpn. Ltd. 2020 ACJ 2159, ha s held as under:- “ 7 . There are three aspects which are required to be examined by us:

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(a) the application of multiplier of '17' instead of '18' ;

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The aforesaid increase of m ultiplier is sought on the basi s of ag e of the appellant as 23 years r e lying on the judgment in Nati o nal Insurance Company Limited v. P r anay Sethi and Others, 2017 A CJ

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27 0 0 (SC). In para 46 of the sai d judgment, the Constitution Be n ch eff e ctively affirmed the multiplier m ethod to be used as mentione d in th e table in the case of Sarla V erma (Smt) and Others v. D e lhi Tr a nsport Corporation and Anoth e r, 2009 ACJ 1298 (SC) . In the a ge gr o up of 15-25 years, the mult i plier has to be '18' along w ith fa c toring in the extent of disability.

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The aforesaid position is no t really disputed by learned cou n sel for the respondent State Corpor a tion and, thus, we come to the co n clusion that the multiplier t o be applied in the case of the ap p ellant has to be '18' and not '1 7 '.

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(b) Loss of earning capacity of the appellant with permanent disability of 31.1%

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In respect of the afores a id, the appellant has clai m ed co m pensation on what is stated t o be the settled principle set out in Ja g dish v. Mohan & Others, 2 0 18 ACJ 1011 (SC) and San d eep Kh a nuja v. Atul Dande & Anothe r , 2017 ACJ 979 (SC). We ext r act be l ow the principle set out in the J a gdish (supra) in para 8:

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"8. In assessing the compen s ation payable the settled princi p les need to be borne in mind. A victim who suffers a permanen t or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must c o ver among others, the following aspects:

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(i) Pain, suffering and tr a uma resulting from the acciden t ; (ii) Loss of income inclu d ing future income;

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(iii) The inability of the victim to lead a normal life toge t her with its amenities;

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(iv) Medical expenses inc l uding those that the victim ma y be required to undertake in future; and

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(v) Loss of expectation o f life."

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The aforesaid principle has also been emphasized in an ea r lier ju d gment, i.e. the Sandeep Khan u ja case (supra) opining that the multiplier method was logically s o und and legally well establishe d to qu a ntify the loss of income as a result of death or perma n ent dis a bility suffered in an accident.

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In the factual contours of t h e present case, if we examine the dis a bility certificate, it shows t h e admission/hospitalization o n 8 oc c asions for various number of days over 1½ years from Au g ust 20 1 1 to January 2013. The natu r e of injuries had been set ou t as un d er:

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" Nature of injury :

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(i) compound fracture sh a ft left humerus

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(ii) fracture both bones le f t forearm

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(iii) compound fracture both bones right forearm

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(iv) fracture 3rd, 4th & 5t h metacarpals right hand (v) subtrochanteric fract u re right femur

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(vi) fracture shaft femur

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(vii) fracture both bones le f t leg

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We have also perus e d the photographs annexed to the petition showing the curre n t physical state of the appell a nt, though it is stated by learn e d counsel for the respondent S t ate Corporation that the same w as not on record in the trial court. Be that as it may, this is th e position even after treatment a nd the nature of injuries itsel f show their extent. Further, it has been opined in para 13 of S andeep Khanuja case (supra) t hat while applying the multip l ier method, future prospects on advancement in life and c areer are also to be taken i nto consideration.

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We are, thus, unequiv o cally of the view that there is merit in the contention of the ap p ellant and the aforesaid princi p les with regard to future prospe c ts must also be applied in the c ase of the appellant taking the p ermanent disability as 31.1%. T he quantification of the same on the basis of the judgmen t in National Insurance Co. Lt d . case (supra), more specific a lly para 61(iii), considering t h e age of the appellant, woul d be 50% of the actual salary in t h e present case.

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(c) The third and the last aspect is the interest rate claimed as 12%

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In respect of the aforesaid, the appellant has wat e red down the interest rate duri n g the course of hearing to 9 % in view of the judicial pronou n cements including in the Jagdi s h’s

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case (supra). On this aspec t , once again, there was no ser i ous dispute raised by the learn e d counsel for the respondent once the claim was confined to 9% in line with the interest r a tes applied by this Court.

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CONCLUSION

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8. The result of the afore s aid is that relying on the set t led principles, the calculation o f compensation by the appellan t, as set out in para 5 of the syn o psis, would have to be adopte d as

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follows:

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*Heads*	*Awarded*
Loss of earning power (Rs.14,648 x 12 x 31.1/100	Rs. 9,81,978/-
Future prospects (50 per cent addition)	Rs.4,90,989/-
Medical expenses including transport charges, nourishment, etc.	Rs.18,46,864/-
Loss of matrimonial prospects	Rs.5,00,000/-
Loss of comfort, loss of amenities and mental agony	Rs.1,50,000/-
Pain and suffering	Rs.2,00,000/-
Total	Rs.41,69,831/-

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The appellant would, thus, be entitled to the compensatio n of Rs. 41,69,831/- as claimed along w ith simple interest at the rate o f 9% pe r annum from the date of applic a tion till the date of payment. 15. In view of the law laid down by the Hon’ble Supreme Court in the above referred to judgments, the present ap p eal is allowed. The award d a ted TRIPTI SAINI 2024.11.19 11:28 I attest to the accuracy and integrity of this document

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30.01.2007 is m odified accordingly. The ap p ellant-claimant is entitled to the enhanced amou n t of compensation as per the ca l culations made here-under:-

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Sr. No.	Heads	Compensation Awarded
1.	Inco me	Rs .6,000/-
2.	Futu re Prospects 10%	Rs .600/- (6,000 x 10%)
3.	Ann ual Income	Rs .6600/- (6000+600)
4.	Los disa s on account of 65% bility	Rs .4290/- (6600 x 65%)
5.	Mul tiplier 11	Rs .5,66,280/- (4290 x 11 x 12)
6.	Med ical Expenses	Rs .31,000/-
7	Atte ndant Charges	Rs .1,00,000/-
8	Pain and sufferings	Rs .1,00,000/-
9	Nut rition & Special Diet	Rs .50,000/-
10	Tran sport Charges	Rs .25,000/-
11	Los s of amenities	Rs .1,00,000/-
12	Tota l Compensation	Rs .9,41,280/-
13.	Com the pensation awarded by Tribunal	Rs .2,70,000/-
	Enh anced Compensation	Rs .6,71,280/-

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So far as the interest part is conc e rned, as held by Hon’ble Supr e me

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Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5 Supreme Court Cases 107, the amount so cal c ulated shall carry an interest @ 9% per annum fro m the date of filing of claim petition till the date of realization. 17. Th e Insurance Company is directe d to deposit the enhanced amou n t of compensation a l ong with interest with the Trib u nal within a period of two mo n ths from the date o f receipt of certified copy of thi s judgment. The Tribunal is fur t her directed to disb u rse the amount of compensatio n along with interest in the acc o unt TRIPTI SAINI 2024.11.19 11:28 I attest to the accuracy and integrity of this document