Zakir Vs Hakmudin and Ors.

The aforesaid two appeals have been instituted against the Award dated 15.06.2001 passed by Motor Accident Claims Tribunal, Gurgaon ( for short “Tribunal” ) in the petitions under Sections 140 and 166 of Motor Vehicles Act, 1988, filed by the appellants, seeking compensation on account of injuries suffered by Zakir Hussain and death of Ishaq.

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Claim petition No.65 of 08.04.1997, titled Zakir Vs. Hakmudin and others was instituted by claimant-Zakir, for grant of compensation on account of injuries suffered by him in a motor vehicular accident due to rash and negligent

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driving on the part of respondent No.1, while driving offending vehicle No.RJ02/G-1888, owned by respondent No.2 and insured with respondent No.3.

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Claim petition No.67 of 08.04.1997, titled Smt. Basiri and others Vs. Hakmudin and others was instituted by wife, sons and daughters of deceasedIshaq for grant of compensation on account of death of Ishaq in the same accident.

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From the pleadings of parties, following issues were framed:-

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“1. Whether petitioner Zakir son of Yusuf suffered injuries and Ishaq son of Rasula died as a result of rash and negligent driving of vehicle No.RJ02/G-1888 by its driver Hakmudin, respondent No.1? OPP.

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2. Whether respondent No.1 was not holding a valid driving licence at the time of alleged accident. If so to what effect?OPR3

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3. To what amount of compensation the petitioners are entitled to and from whom?OPP

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4. Relief.”

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Thereafter, the parties led evidence in support of their case.

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After hearing the parties and going through the material on the file, learned Tribunal awarded a sum of Rs.1,58,400/- as compensation to the claimantZakir Hussain, on account of injuries suffered by him while a sum of Rs.2,24,000/- was awarded as compensation to claimants Smt. Basiri and others on account of death of Ishaq along with interest @ 9% per annum from the date of filing of claim petitions till realization payable by respondents No.1 to 3, jointly and severally.

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Feeling aggrieved, the appeals in hand have been preferred. The material on file has been perused and parties have been heard.

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It is pertinent to mention that the record of the present appeals and the

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Tribunal has got burnt in a fire incident in the High Court Branch and the appeals in hand shall be decided on the basis of the facts and evidence discussed by the Tribunal in the impugned Award.

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The only issue required to be determined in the present appeals relates to the assessment of compensation. Therefore, the entire facts regarding the manner of the accident are not required to be reproduced in detail, as the Tribunal has already held under Issue No.1 that the accident had occurred due to the rash and negligent driving on the part of respondent No.1 while driving the offending vehicle bearing No.RJ02/G-1888, owned by respondent No.2. No appeal or cross-objections have been filed by respondents, challenging the said finding and accordingly finding on issue No.1 is not required to be interfered with. 10. Learned counsel for the appellant in FAO-3542-2001 argued that the Tribunal has not appreciated the facts of the case and evidence on file in the correct perspective while assessing the compensation which is grossly inadequate. The claimant had suffered 65% permanent disability and he has been awarded a total compensation of Rs.1,58,400/- for pain and sufferings, medical expenses, loss of income, special diet and permanent disability. Learned counsel further argued that on account of permanent disability suffered by him, the claimant will suffer ‘loss of income’ in future as well and adequate compensation has also not been awarded under pecuniary and non-pecuniary heads. Learned counsel prayed that impugned award is thus liable to be modified and appellant is entitled to enhanced amount of compensation.

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Learned counsel for the appellants in FAO-3543-2001 argued that the impugned award vide which compensation of Rs.2,24,000/- has been awarded is

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based on conjectures and surmises and is liable to be modified and enhanced amount of compensation should be awarded. Learned counsel contended that income of the deceased has been assessed on lower side. Future prospects have also not been added to the monthly income of the deceased contrary to settled provisions of law. No compensation has been paid under conventional heads i.e. loss of consortium and loss of estate and he prayed that compensation be awarded under all the heads and same should be suitably enhanced.

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In support of his contentions, learned counsel for the appellants has relied upon 2009(6) SCC 121 Sarla Verma and others Vs. Delhi Transport Corporation and Another , 2017 (16) SCC 680 National Insurance Co. Ltd Vs. Pranay Sethi and Other , 2018 (4) R.C.R. (Civil) 333 Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram & Others , (2021) 11 SCC 780 United India Insurance Co. Ltd. Vs. Satinder Kaur.

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On the other hand, learned counsel for respondent No.3 argued that the award in question in both petitions is well reasoned and justified. The material on file has been appreciated in the correct perspective while assessing the compensation and no interference in the same is thus called for.

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Compensation in FAO-3542-2001, Zakir Vs. Hakmudin and others, arising out of MACT No.65 of 08.04.1997:-

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Hon'ble Supreme Court in 2013 (3) RCR (Civil) 934 - G.Ravindranath @ R. Chowdary Vs. E. Srinivas and another , has held that in a case of accident resulting in injuries to the victim, the compensation in personal injury cases should be determined under the following heads:-

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Pecuniary damages (Special damages)

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(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing expenditure, food and miscellaneous

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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

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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 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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Version of claimant-Zakir Hussain while appearing as PW2 is that he had suffered grievous injuries in the accident. He was initially taken to PHC Nagina, thereafter, to Gurgaon and finally to Safdarjung Hospital, Delhi, where he remained admitted for 3-4 days. He had spent Rs.60,000/- to Rs.70,000/- on his treatment and he can no longer work due to disability suffered by him. The MLR

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Ex. PD has been led in evidence, which shows that he had suffered injuries in a road side accident and was medico-legally examined at PHC Nagina. PW3-Dr. Akhlaq Ahmed stated that on 24.03.1999, patient namely Zakir was examined by Medical Board consisting of himself, Dr. Vishesh Kumar and Dr. N.K. Jain, Civil Surgeon, Gurgaon to assess his disability and after examining the patient and after going through the medical record, he was found to have suffered moderate to severe restriction of movement in the right elbow, wrist alongwith non-function of finger of the right hand and his disability was assessed as 65%. He deposed that the disability is permanent and he tendered in evidence the disability certificate Ex. PA. He deposed that injured will not be able to do labour work, as he has suffered disability in his right upper arm. As such, from the evidence on file it is established that claimant had suffered grievous injuries on account of fractures in his arm. The Tribunal has awarded only a sum of Rs.3,000/- towards pain and sufferings, which is grossly inadequate and taking into consideration the severity of the injuries suffered by the claimant, he is entitled to a sum of Rs.15,000/- on account of pain and sufferings .

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Claimant was a labourer and Tribunal has assessed his monthly income to be Rs.1,800/- per month. The accident in the present case had taken place on 06.03.1997. Claimant was a labourer and in such cases, the Court is required to ensure just compensation based on preponderance of probabilities. Minimum wage notification may serve as a yardstick but cannot be the sole basis for assessing the income and where the victim belongs to unorganized sector, strict proof of income is not mandatory and notional income can be reasonably assessed based on the social status and facts and circumstances of the case.

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In the present case, the accident had taken place in the year 1997 and it can be assumed that the claimant who was a labourer must be earning at least Rs.2,000/- per month. Learned Tribunal has thus gravely erred while assessing his monthly income to be Rs.1800/- per month, which is on lower side. Accordingly, income of claimant is taken as Rs.2,000/- per month.

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As per version of PW3-Dr. Akhlaq Ahmed, it will take at least six months for the injuries to heal and as such, the claimant would not have been able to do any work during this period of six months and he is accordingly held entitled to a sum of Rs.12,000/- for loss of income during the period of treatment.

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During the period of treatment, he must have engaged an attendant, spent some amount on special diet and on transportation and accordingly, he is held entitled to a sum of Rs.7500/- under all these heads .

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The claimant has suffered 65% permanent disability in relation to his right upper arm and as per testimony of PW3-Dr. Akhlaq Ahmed, he will not be able to do any labour work and as such, the disability suffered by the claimant will certainly diminish his earning capability and in these circumstances, the amount of compensation has to be assessed by taking into consideration the percentage of disability suffered by the victim and by applying a suitable multiplier in view of law laid down by Hon'ble Supreme Court in 2010(4) PLR 242 Yadava Kumar Vs. The Divisional Manager, National Insurance Company Limited .

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Monthly income of claimant has been assessed to be Rs.2,000/-. Since, claimant was 25 years of age on the date of accident, 40% amount has to be added to his monthly income towards future prospects in view of law laid down in 2014 (1) RCR (Civil) 914 Sanjay Verma’s case (supra) and Pranay Sethi’s

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case (supra) and after adding the same, his monthly income comes out to Rs.2,800 /- per month.

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Claimant had suffered permanent disability to the extent of 65% and the monthly loss of income will thus come to Rs.1,820/- (Rs.2,800/- × 65%) and annual loss of income will come out to Rs.21,840/- per annum (Rs.1,820/- × 12) .

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The claimant was 25 years of age and in view of law laid down in Pranay Sethi’s case (supra) and Sarla Verma’s case (supra), multiplier of 18 has to be applied which takes the compensation to Rs.3,93,120/- (Rs.21,840/- × 18) on account of ‘ loss of income ’ due to permanent disability.

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Resultantly, the compensation to be paid to claimant is assessed as

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under:-

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Sr.	Compensation	Amount
1.	Pain and Sufferings	Rs.15,000/-
2.	Loss of Income during Treatment (6 months)	Rs.12,000/-
3.	Attendant Charges, Special Diet and Transportation	Rs.7,500/-
4.	Loss of Future Income due to Permanent Disability	Rs.3,93,120/- (Rs.21,840/- × 18)
5.	Total Compensation	Rs.4,27,620/-

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Accordingly, enhanced compensation payable to claimant comes to Rs.2,69,220/- (Rs.4,27,620/- – Rs.1,58,400/-) (rounded off to Rs.2,69,000/-).

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Compensation in FAO-3543-2001, Smt. Basiri Vs. Hakmudin, arising out of MACT No.67 of 08.04.1997:-

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As per version of claimants, deceased Ishaq was 45 years of age and he is survived by wife and four minor children, who are the claimants. As per version of claimants, deceased owned two and a half acres of land, besides 50 sheep and goats and he used to earn about Rs.4,000/- per month. However, except

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the oral testimony of PW1-Basiri (wife), no cogent and convincing evidence was led and learned Tribunal thus rightly discarded her testimony regarding the monthly income of the deceased. By considering him to be a labourer, the monthly income of the deceased was assessed as Rs.1,800/- per month, as per prevalent minimum wages. However, it is a matter of common knowledge that some amount of guess work has to be applied while assessing his monthly income and he cannot be treated merely as a labourer. Minimum wage notification may serve as a yardstick but cannot be the sole basis for assessing the income and where the deceased belongs to unorganized sector, strict proof of income is not mandatory and notional income can be reasonably assessed based on the social status and facts and circumstances of the case.

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In the present case, the accident had taken place in the year 1997 and it can be assumed that the deceased must be earning at least Rs.2,000/- per month. Learned Tribunal has thus gravely erred while assessing his monthly income to be Rs.1,800/- per month, which is on lower side. Accordingly, income of deceased is taken as Rs.2,000/- per month.

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Deceased was 45 years of age and as such, 25% amount has to be added to the monthly income of the deceased towards future prospects in view of law laid down in Pranay Sethi’s case (supra), which takes his income to Rs.2,500/- (Rs.2,000/- + Rs.500/-) .

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Deceased has left behind five dependents and as such 1/4th of the income has to be deducted towards personal and living expenses as per law laid down in Sarla Verma’s case (supra) and after deducting the same, the monthly loss of dependency comes out to Rs.1,875/- (Rs.2,500/- – Rs.625/-) and the annual loss of dependency comes out to Rs.22,500/- (Rs.1,875/- × 12) .

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Since deceased was 45 years of age, multiplier of 14 has to be applied in view of the guidelines laid down in Sarla Verma’s case (supra) , and after applying the same, the total loss of dependency comes out to Rs.3,15,000/- .

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In addition to this, claimant No.1 (wife of the deceased) is held entitled to a sum of Rs.70,000/- under conventional heads i.e. Rs.40,000/- towards loss of consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- on account of funeral expenses, as per law laid down in Pranay Sethi’s case (supra). Likewise, claimants No.2 to 5 (sons and daughters of the deceased) are also held entitled to a sum of Rs.40,000/- each on account of loss of parental consortium, in view of law laid down in Nanu Ram’s case (supra) and Satinder Kaur’s case (supra) , which takes the compensation to Rs.5,45,000/- . 32. Accordingly, the compensation to be awarded to the claimants is

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assessed as under:-

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S.No.	Under Head
1.	Monthly income of deceased	Rs.2,000/- per month
2.	Age of deceased	45 years
3.	Future prospects @ 25%	Rs.500/-
4.	Total income	Rs.2,500/- per month
5.	Number of dependents	5
6.	Deduction towards personal expenses of the deceased	Rs.625/- (1/4th)
7.	Monthly loss of dependency	Rs.1,875/-
8.	Annual loss of dependency	Rs.22,500/-
9.	Multiplier	14
10.	Loss of dependency	Rs.3,15,000/- (Rs.22,500/- × 14)
11.	Compensation under conventional heads to claimant No.1- wife	Rs.70,000/-
12.	Compensation to four children (loss of parental consortium)	Rs.1,60,000/- (Rs.40,000/- × 4)
13.	Total Compensation	Rs.5,45,000/-
14.	Interest	9%

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Accordingly, enhanced compensation payable to claimants comes to Rs.3,21,000/- (Rs.5,45,000/- − Rs.2,24,000/-).

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As a result of aforesaid discussion, both the aforesaid appeals are partly accepted with costs.

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In FAO-3542-2001 , appellant-Zakir Hussain is held entitled to a sum of Rs.2,69,000/- as enhanced compensation over and above the compensation awarded by the Tribunal along with interest at the rate of 9% per annum from the date of filing of claim petition i.e. 08.04.1997 till realization payable by respondents jointly and severally.

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In FAO-3543-2001 , appellants Smt. Basiri and Others are held entitled to a sum of Rs.3,21,000/- as enhanced compensation over and above the compensation awarded by the Tribunal along with interest at the rate of 9% per annum from the date of filing of claim petition i.e. 08.04.1997 till realization payable by respondents No.1 to 3 jointly and severally. Out of the enhanced compensation, a sum of Rs.40,000/- each along with proportionate interest be paid to claimants No.2 to 5 (sons and daughters of the deceased) while balance amount be paid to claimant No.1 (wife) along with proportionate interest.

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Registry is directed to email the authenticated copy of the award to the respondent Insurance Company in terms of directions issued by the Hon’ble Supreme Court in Writ Petition (Civil) No.534 of 2020 titled Bajaj Allianz General Insurance Company Versus Union of India and others, decided on 16.03.2021 and Insurance Company shall comply with the directions as issued under Clause (F) of the said judgment.

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38. Pending miscellaneous application(s), if any, shall also stand

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disposed of.

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