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Accident claim – M.V.Act – Claimed Rs.53 lakhs – Tribunal awarded Rs. three lakhs and High court enhanced to eight lakhs – apex court enhanced to Rs. 19 lakhs – self-employed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. = SANJAY VERMA … APPELLANT (S) VERSUS HARYANA ROADWAYS … RESPONDENT (S)= 2014 (January part ) judis.nic.in/supreme court/filename=41184

Accident claim – M.V.Act – Claimed Rs.53 lakhs – Tribunal awarded Rs. three lakhs and High court enhanced to eight lakhs – apex court enhanced to Rs. 19 lakhs – self-employed the actual income at the time of death should  be  taken  into account for determining the loss of income unless  there  are  extraordinary and exceptional  circumstances. =

According  to

the claimant, apart from other injuries, he had suffered a fracture  of  the

spinal  cord  resulting  in  paralysis  of  his  whole   body.    In   these

circumstances the claimant filed an application before  the  Motor  Accident

Claim Tribunal claiming compensation of a total sum of Rs.53,00,000/-  under

different heads enumerated below:

|(i)     |Pecuniary loss                        |Rs. 24,00,000.00    |

|(ii)    |Expenditure incurred in               |Rs.   2,00,000.00   |

|        |treatment till now                    |                    |

|        |                                      |                    |

|(iii)   |Expenses which shall be               |Rs.  3,00,000.00    |

|        |incurred in future in treatment       |                    |

|(iv)    |Cost of attendant from the            |Rs.  2,00,000.00    |

|        |date of accident till he remains      |                    |

|        |alive                                 |                    |

|(v)     |Passage and diet money                | Rs.  2,00,000.00   |

|(vi)    |Pain and suffering and                |Rs. 20,00,000.00    |

|        |mental agony                          |                    |

|        |Total                                 |Rs.53,00,000.00     |

 

 “………At the time of issuance of  handicapped  certificate  I  had  also

      given 100% disability certificate but thinking that he might  improve,

      I had given a  certificate  80%  disability.   The  cutting  over  the

      certificate No.16 G has been done by  me  which  bears  my  signature.

      This cutting was also done at the time of issuance of the certificate.

       As per the prescribed standard, at the time when patient was examined

      by the medical board, he was also suffering from the  total  paralysis

      and 100% disability  but  because  patient’s  toe  was  having  slight

      movement, therefore, it was unanimously  decided  that  for  the  time

      being his disability is 80%.”

   It is also established by the materials on record that  the  age  of

the claimant at the time of the accident was 25 years and  he  was  married.

The age of his wife was 22 years  and  at  the  time  of  the  accident  the

claimant had one son who was 1½ years of age.  Apart from  the  above,  from

the deposition of the claimant himself (PW-2) it transpires that  after  the

accident he is not able to do any work and “one person is always  needed  to

look after him”.

 The appellant was a self employed person. Though he  had  claimed  a

monthly  income  of  Rs.5,000/-,  the  Income  Tax  Returns  filed  by   him

demonstrate that he had paid income tax on an annual income of  Rs.41,300/-.

 No fault, therefore, can be found in the order  of  the  High  Court  which

proceeds on the basis that the annual income of the claimant at the time  of

the accident was Rs.41,300/-.

Reshma Kumari and Ors. vs. Madan  Mohan  and  Anr.[5]  reiterated  the  view

taken in Sarla Verma (supra) to the effect that in respect of a  person  who

was on a fixed salary without provision for annual  increments  or  who  was

self-employed the actual income at the time of death should  be  taken  into

account for determining the loss of income unless  there  are  extraordinary

and exceptional  circumstances.

  Undoubtedly, the same principle  will  apply  for  determination  of

loss of income on account of an accident resulting in the  total  disability

of the victim as in the present case.  Therefore, taking  into  account  the

age of the claimant (25 years) and the fact that he had a steady income,  as

evidenced by the income-tax returns, we are of the view that an addition  of

50% to the income that the claimant was earning at the time of the  accident

would be justified.

 

we  hold  that  the

claimant is entitled to enhanced compensation                        as  set

out in the table below:

 

 

|Sl. |Head                        |Amt. as per High   |Amt. as per this  |

|No. |                                |Court                      |Court             |

|    |                                   |(in Rs.)                    |(in Rs.)          |

|(i) |Loss of Income          |6,19,500.00           |10,53,150.00      |

|(ii)|Medical Expenses     |      1,38,552.00    |1,38,552.00       |

|(iii|Future Treatment      |                   |         3,00,000.00       |

|)   |                                    |                   |                  |

|    |                                    |50,000.00          |                  |

|    |                                    |                            |3,00,000.00       |

|(iv)|Pain and suffering and  |                   |                  |

|    |mental agony            |                   |                  |

|(v) |Cost of attendant from  |                       |2,00,000.00       |

|    |the                     |                   |                  |

|    |date of accident till he|                   |                  |

|    |remains                 |                   |                  |

|    |alive                   |                   |                  |

|    |Total=                        |8,08,052.00        |19,91,702.00      |

 

 

22.     In view of the enhancement  made  by  us,  we  do  not  consider  it

necessary to modify the rate of interest awarded by the High Court  i.e.  6%

from the date of the application i.e. 24.08.1999  to  the  date  of  payment

which will also be payable on the enhanced amount of compensation.

 

23.     The appeal filed by the claimant is allowed as indicated above.

2014 (January part ) judis.nic.in/supreme court/filename=41184

P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5256 OF 2008
SANJAY VERMA … APPELLANT (S)

VERSUS

HARYANA ROADWAYS … RESPONDENT (S)

J U D G M E N T
RANJAN GOGOI, J.
1. This quantum appeal is by the claimant seeking further enhancement
of the compensation awarded by the High Court of Uttaranchal at Nainital by
its Order dated 27.03.2006.

2. The facts relevant for the purpose of the present adjudication may
be noticed at the outset.

On 12.08.1998 the appellant-claimant was travelling from Ambala to
Kurukshetra in a bus belonging to the Haryana Roadways and bearing
registration No. HR-07PA-0197. On the way the driver of the bus lost
control over the vehicle resulting in an accident in the course of which
the claimant suffered multiple injuries. He was initially treated in the
civil hospital Pehwa and thereafter transferred to the PGIMER, Chandigarh
on 14.08.1998. The appellant underwent surgery on 16.09.1998 and
eventually he was released from the hospital and referred to the
Rehabilitation Centre, Jawaharlal Nehru Hospital, Aligarh. According to
the claimant, apart from other injuries, he had suffered a fracture of the
spinal cord resulting in paralysis of his whole body. In these
circumstances the claimant filed an application before the Motor Accident
Claim Tribunal claiming compensation of a total sum of Rs.53,00,000/- under
different heads enumerated below:
|(i) |Pecuniary loss |Rs. 24,00,000.00 |
|(ii) |Expenditure incurred in |Rs. 2,00,000.00 |
| |treatment till now | |
| | | |
|(iii) |Expenses which shall be |Rs. 3,00,000.00 |
| |incurred in future in treatment | |
|(iv) |Cost of attendant from the |Rs. 2,00,000.00 |
| |date of accident till he remains | |
| |alive | |
|(v) |Passage and diet money | Rs. 2,00,000.00 |
|(vi) |Pain and suffering and |Rs. 20,00,000.00 |
| |mental agony | |
| |Total |Rs.53,00,000.00 |
3. The learned Tribunal by its Award dated 12.06.2000 held that the
accident occurred due to the rash and negligent driving of the bus and that
the claimant is entitled to compensation. The total amount due to the
claimant was quantified at Rs. 3,00,000/- under the heads “Loss of Income”,
“reimbursement of medical expenses” and “pain and suffering”. The learned
Tribunal also awarded interest at the rate of 9% from 24.08.1999 i.e. the
date of filing of the claim application till date of payment.

4. Aggrieved, the claimant filed an appeal before the High Court which
enhanced the compensation to Rs.8,08,052/-. The High Court quantified the
amount due to the claimant towards “loss of income” at Rs.6,19,500/-;
Rs.1,38,552/- on account of “medical expenses” and an amount of Rs.50,000/-
“for future treatment” and “pain and suffering”. The High Court, however,
reduced the interest payable to 6% per annum from the date of the filing of
the application. Aggrieved, this appeal has been filed.

5. We have heard Dr. Manish Singhvi, learned counsel for the appellant-
claimant and Dr. Monika Gusain, learned counsel for the respondent.

6. Learned counsel for the appellant has contended that in computing
the amount due to the appellant on account of loss of income, future
prospects of increase of income had not been taken into account by the High
Court; the multiplier adopted by the courts below is 15 whereas the correct
multiplier should have been 18. In so far as the amount awarded for
“future treatment” and “pain and suffering” is concerned, learned counsel
has submitted that not only the amount of Rs.50,000/- is grossly inadequate
but High Court has committed an error in clubbing the two heads together
for award of compensation. In this regard the learned counsel has drawn
the attention of the Court to the amounts claimed in the claim petition
under the aforesaid two heads, as already noticed hereinabove. It is
submitted by the learned counsel that the amount of compensation is liable
to be enhanced.

7. Controverting the submissions advanced on behalf of the appellant,
Dr. Monika Gusain learned counsel for the respondent-Haryana Roadways has
submitted that the enhancement made by the High Court to the extent of over
Rs.5,00,000/- is more than an adequate measure of the “just compensation”
that the Motor Vehicles Act, 1988 (hereinafter for short the “Act”)
contemplate. It is also the submission of the learned counsel for the
respondent that in awarding the enhanced amount the High Court has taken
into account all the relevant circumstances for due computation of the
amount of compensation payable under the Act.

8. Before proceeding any further it would be appropriate to take note
of the evidence tendered by PW-1, Dr. Shailendra Kumar Mishra, who was
examined in the case on behalf of the claimant. The relevant part of the
evidence of PW-1 is extracted below:

“………..Medical Board granted 80% disability of Sanjay Verma during the
course of examination. Today I re-examined Mr. Sanjay Verma in the
Court, at the time of issuance of certificate, it was the opinion that
his condition may improve, but even after such a long duration his
condition has deteriorated, in place of improvement.

Today he has become cent percent paralyzed. Now Sanjay Verma is
unable to perform his day to day needs such as latrine and urination
could not be done of his own. A tube has been inserted into his
urinary tract along with a bag which he has to use entire life. There
will be no control over his toilet and urine which he might have been
doing on his bed.

He will not be able to move throughout his life due to the
paralysis below waist and he is now not been able to do any work. The
Spinal chord will be pressurized due to the facture of back bone and
he will have to bear the pain throughout his life. Sanjay Verma will
not be able to lead his normal life and will have remain in the same
condition throughout his life. Due to his laying position he will be
effected by bed sores which will be excessive painful. Due to lack of
urination in normal course his kidney may be damaged and this
possibility will always remain.”

“………At the time of issuance of handicapped certificate I had also
given 100% disability certificate but thinking that he might improve,
I had given a certificate 80% disability. The cutting over the
certificate No.16 G has been done by me which bears my signature.
This cutting was also done at the time of issuance of the certificate.
As per the prescribed standard, at the time when patient was examined
by the medical board, he was also suffering from the total paralysis
and 100% disability but because patient’s toe was having slight
movement, therefore, it was unanimously decided that for the time
being his disability is 80%.”
9. It is also established by the materials on record that the age of
the claimant at the time of the accident was 25 years and he was married.
The age of his wife was 22 years and at the time of the accident the
claimant had one son who was 1½ years of age. Apart from the above, from
the deposition of the claimant himself (PW-2) it transpires that after the
accident he is not able to do any work and “one person is always needed to
look after him”.

10. Having noticed the evidence of PW-1 Dr. Shailendra Kumar Mishra and
the other facts and circumstances of the case we may now proceed to
determine as to whether the compensation awarded by the High Court under
the different heads noticed above is just and fair compensation within the
meaning of Section 168 of the Act.

11. The appellant was a self employed person. Though he had claimed a
monthly income of Rs.5,000/-, the Income Tax Returns filed by him
demonstrate that he had paid income tax on an annual income of Rs.41,300/-.
No fault, therefore, can be found in the order of the High Court which
proceeds on the basis that the annual income of the claimant at the time of
the accident was Rs.41,300/-. Though in Sarla Verma (Smt.) and Others vs.
Delhi Transport Corporation and Another[1] this Court had held that in case
of a self employed person, unless there are special and exceptional
circumstances, the annual income at the time of death is to be taken into
account, a Coordinate Bench in Santosh Devi vs. National Insurance Company
Ltd. and Others[2] has taken a different view which is to the following
effect:
“14. We find it extremely difficult to fathom any rationale for the
observation made in para 24 of the judgment in Sarla Verma case
that where the deceased was self-employed or was on a fixed salary
without provision for annual increment, etc., the courts will
usually take only the actual income at the time of death and a
departure from this rule should be made only in rare and
exceptional cases involving special circumstances. In our view, it
will be naïve to say that the wages or total emoluments/income of a
person who is self-employed or who is employed on a fixed salary
without provision for annual increment, etc., would remain the same
throughout his life.”

12. The view taken in Santosh Devi (supra) has been reiterated by a
Bench of three Judges in Rajesh and Others vs. Rajbir Singh and Others[3]
by holding as follows :

“8. Since, the Court in Santosh Devi case actually intended to
follow the principle in the case of salaried persons as laid down
in Sarla Verma case and to make it applicable also to the self-
employed and persons on fixed wages, it is clarified that the
increase in the case of those groups is not 30% always; it will
also have a reference to the age. In other words, in the case of
self-employed or persons with fixed wages, in case, the deceased
victim was below 40 years, there must be an addition of 50% to the
actual income of the deceased while computing future prospects.
Needless to say that the actual income should be income after
paying the tax, if any. Addition should be 30% in case the deceased
was in the age group of 40 to 50 years.
9. In Sarla Verma case, it has been stated that in the case of
those above 50 years, there shall be no addition. Having regard to
the fact that in the case of those self-employed or on fixed wages,
where there is normally no age of superannuation, we are of the
view that it will only be just and equitable to provide an addition
of 15% in the case where the victim is between the age group of 50
to 60 years so as to make the compensation just, equitable, fair
and reasonable. There shall normally be no addition thereafter.”
13. Certain parallel developments will now have to be taken note of.
In Reshma Kumari and Others vs. Madan Mohan and Another[4], a two Judge
Bench of this Court while considering the following questions took the view
that the issue(s) needed resolution by a larger Bench
“(1) Whether the multiplier specified in the Second Schedule appended
to the Act should be scrupulously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides
for any criterion, particularly as regards determination of future
prospects?”

14. Answering the above reference a three Judge Bench of this Court in
Reshma Kumari and Ors. vs. Madan Mohan and Anr.[5] reiterated the view
taken in Sarla Verma (supra) to the effect that in respect of a person who
was on a fixed salary without provision for annual increments or who was
self-employed the actual income at the time of death should be taken into
account for determining the loss of income unless there are extraordinary
and exceptional circumstances. Though the expression “exceptional and
extraordinary circumstances” is not capable of any precise definition, in
Shakti Devi vs. New India Insurance Company Limited and Another[6] there
is a practical application of the aforesaid principle. The near certainty
of the regular employment of the deceased in a government department
following the retirement of his father was held to be a valid ground to
compute the loss of income by taking into account the possible future
earnings. The said loss of income, accordingly, was quantified at double
the amount that the deceased was earning at the time of his death.

15. Undoubtedly, the same principle will apply for determination of
loss of income on account of an accident resulting in the total disability
of the victim as in the present case. Therefore, taking into account the
age of the claimant (25 years) and the fact that he had a steady income, as
evidenced by the income-tax returns, we are of the view that an addition of
50% to the income that the claimant was earning at the time of the accident
would be justified.

16. Insofar as the multiplier is concerned, as held in Sarla Verma
(supra) (para 42) or as prescribed under the Second Schedule to the Act,
the correct multiplier in the present case cannot be 15 as held by the High
Court. We are of the view that the adoption of the multiplier of 17
would be appropriate. Accordingly, taking into account the addition to the
income and the higher multiplier the total amount of compensation payable
to the claimant under the head “loss of income” is Rs. 10,53,150/- (Rs.
41300 + Rs. 20650= Rs. 61,950 x 17).

17. In so far as the medical expenses is concerned as the awarded
amount of Rs.1,38,552/- has been found payable on the basis of the
bills/vouchers etc. brought on record by the claimant we will have no
occasion to cause any alteration of the amount of compensation payable
under the head “medical expenses”. Accordingly, the finding of the High
Court in this regard is maintained.

18. This will bring us to the grievance of the appellant-claimant with
regard to award of compensation of Rs.50,000/- under the head “future
treatment” and “pain and suffering”. In view of the decisions of this Court
in Raj Kumar vs. Ajay Kumar and Another[7] and Sanjay Batham vs.
Munnalal Parihar and Others[8] there can be no manner of doubt that the
above two heads of compensation are distinct and different and cannot be
clubbed together. We will, therefore, have to severe the two heads which
have been clubbed together by the High Court.

In so far as “future treatment” is concerned we have no doubt that the
claimant will be required to take treatment from time to time even to
maintain the present condition of his health. In fact, the claimant in his
deposition has stated that he is undergoing treatment at the Apollo
Hospital at Delhi. Though it is not beyond our powers to award
compensation beyond what has been claimed [Nagappa vs. Gurudayal Singh and
others[9]], in the facts of the present case we are of the view that the
grant of full compensation, as claimed in the claim petition i.e.
Rs.3,00,000/- under the head “future treatment”, would meet the ends of
justice. We, therefore, order accordingly.

19. The claimant had claimed an amount of Rs.20,00,000/- under the head
“pain and suffering and mental agony”. Considering the injuries sustained
by the claimant which had left him paralyzed for life and the evidence of
PW-1 to the effect that the claimant is likely to suffer considerable pain
throughout his life, we are of the view that the claimant should be awarded
a further sum of Rs. 3,00,000/- on account of “pain and suffering”. We
must, however, acknowledge that monetary compensation for pain and
suffering is at best a palliative, the correct dose of which, in the last
analysis, will have to be determined on a case to case basis.

20. In the claim petition filed before the Motor Accident Claim
Tribunal the claimant has prayed for an amount of Rs.2,00,000/- being the
cost of attendant from the date of accident till he remains alive. The
claimant in his deposition had stated that “he needs one person to be with
him all the time”. The aforesaid statement of the claimant is duly
supported by the evidence of PW-1 who has described the medical condition
of the claimant in detail. From the aforesaid materials, we are satisfied
that the claim made on this count is justified and the amount of
Rs.2,00,000/- claimed by the claimant under the aforesaid head should be
awarded in full. We order accordingly.

21. In view of the discussions that have preceded, we hold that the
claimant is entitled to enhanced compensation as set
out in the table below:
|Sl. |Head |Amt. as per High |Amt. as per this |
|No. | |Court |Court |
| | |(in Rs.) |(in Rs.) |
|(i) |Loss of Income |6,19,500.00 |10,53,150.00 |
|(ii)|Medical Expenses | 1,38,552.00 |1,38,552.00 |
|(iii|Future Treatment | |3,00,000.00 |
|) | | | |
| | |50,000.00 | |
| | | |3,00,000.00 |
|(iv)|Pain and suffering and | | |
| |mental agony | | |
|(v) |Cost of attendant from | |2,00,000.00 |
| |the | | |
| |date of accident till he| | |
| |remains | | |
| |alive | | |
| |Total= |8,08,052.00 |19,91,702.00 |
22. In view of the enhancement made by us, we do not consider it
necessary to modify the rate of interest awarded by the High Court i.e. 6%
from the date of the application i.e. 24.08.1999 to the date of payment
which will also be payable on the enhanced amount of compensation.

23. The appeal filed by the claimant is allowed as indicated above.
……………………………CJI.
[P. SATHASIVAM]

………………………………J.
[RANJAN GOGOI]
………….……………………J.
[SHIVA KIRTI SINGH]
NEW DELHI,
JANUARY 29, 2014.
———————–
[1] (2009) 6 SCC 121
[2] (2012) 6 SCC 421
[3] (2013) 9 SCC 54
[4] (2009) 13 SCC 422
[5] (2013) 9 SCC 65 (para 36)
[6] (2010) 14 SCC 575
[7] (2011) 1 SCC 343
[8] (2011) 10 SCC 665
[9] (2003) 2 SCC 274

———————–
16

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