Parminder Singh vs New India Assurance Company Ltd.

CIVIL APPEAL NO. 5123 OF 2019 (Arising out of SLP (Civil) No. 23153 of 2018)

Parminder Singh …Appellant

versus

New India Assurance Co. Ltd. & Ors. …Respondents

JUDGMENT

INDU MALHOTRA, J.

Leave granted.

1. The present Civil Appeal has been filed by the claimant to

challenge the Judgment and Order dated 20.09.2017 passed

Signature Not Verified in FAO No. 10473 of 2014 by the Punjab & Haryana High Digitally signed by ASHOK RAJ SINGH Date: 2019.07.01 17:12:35 IST Reason: Court at Chandigarh.

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2. The background facts in which the present Civil Appeal has

been filed, briefly stated, are as follows:

2.1. On 29.03.2009, the Appellant – driver, was driving a

Hyundai Elantra car in which Captain Kanwaljit Singh,

a Cabinet Minister in Punjab, was being driven from

Ludhiana.

2.2. At about 5:15 p.m., when the car reached near Village

Khanpur, a truck bearing Registration No. HR­55­B­

9491 was being driven in a rash and negligent manner,

which came from the opposite direction at a very high

speed, and rammed into the car. The accident occurred

due to the contributory negligence of the driver of

another truck bearing Registration No. HR­58­A­9791,

which was wrongly parked on the road.

2.3. As a result of the accident, Captain Kanwaljit Singh and

the Appellant – driver sustained grievous injuries.

Captain Kanwaljit Singh succumbed to his injuries on

the same day while undergoing treatment in the

hospital. The Appellant – driver survived, but became

permanently disabled.

2 2.4. The Appellant suffered from grievous injuries, including

a head injury with traumatic subarachnoid

hemorrhage, and had to undergo a hemi­craniotomy i.e.

removal of front bone of the skull. He further suffered

fracture of both jaw bones, and disfiguration of his face.

Due to the severe head injury, his left arm and leg were

not functioning properly. The Appellant had to undergo

5 surgeries for which he required successive

hospitalizations. He had to visit PGI, Chandigarh on

various dates for follow­up treatment as an outdoor

patient.

2.5. The Appellant was assessed by a Medical Board on

08.09.2010, and on examination it was found to be an

operated case with hemiplegia i.e. weakness of one half

of the body on the left side. The doctor opined that the

Appellant shall not be able to work as a labourer, or do

agricultural work, or work as a driver. His disability was

assessed at 75%, which was permanent in nature.

2.6. The Appellant filed a Claim Petition before the MACT,

Panchkula against the owners and drivers of the two

3 offending trucks, along with the insurer of the two

offending trucks viz. the Respondent – Insurance

Company.

The Appellant contended that he was earning an

income of Rs. 10,000/­ p.m. as a driver prior to the

accident.

2.7. The Respondent – Insurance Company pleaded that the

drivers of the two offending vehicles were driving the

trucks without valid driving licenses. The Insurance

Company produced a Licensing Clerk from the RTO

Office at Mathura, U.P. who deposed that the driving

licenses had not been issued in the name of the drivers

by their office. The licenses had been issued in the

name of some other persons.

2.8. The MACT, Panchkula vide Award dated 25.01.2013,

allowed the Claim Petition, and awarded compensation

of Rs. 10,43,666/­ to the Appellant.

The MACT proceeded on the basis of a notional

income of Rs. 6,000/­ p.m., which worked out to Rs.

72,000/­ per annum, on the ground that the Appellant

4 did not produce any evidence, nor examine any witness

to prove his income.

The loss of income due to functional disability was

assessed at 75% which came to about Rs. 54,000/­ per

annum. By applying the multiplier of 18 to the income

of the Appellant, the compensation on account of loss of

future earnings worked out to Rs. 9,72,000/­. The

Appellant was awarded a total amount of Rs.

10,43,666/­ along with Interest @7.5% p.a. for the

injuries suffered by him.

On the question of liability to pay compensation, the

drivers of both the offending trucks were found not to

be holding valid and effective driving licenses at the

time of the accident. As a result, the MACT held the

owners and drivers of the two offending trucks jointly

and severally liable to pay compensation to the

Appellant. The Insurance Company was absolved of the

liability to pay compensation.

5 2.9. The Appellant filed FAO NO. 10473 of 2014 before the

Punjab & Haryana High Court for enhancement of the

compensation awarded by the MACT.

The High Court vide Interim Order dated 11.07.2017,

directed the Appellant to be re­assessed by a Medical

Board at the Government Hospital, Sector 6,

Panchkula. After going through the nature of injuries

suffered, and the Disability Certificate, the High Court

was of the view that the disability suffered by the

Appellant was 100% insofar as his earning capacity was

concerned, and he had become fully dependant on his

family for survival.

The High Court vide the impugned Judgment and

Order dated 20.09.2017 partially allowed the FAO, and

enhanced the compensation awarded to

Rs.21,06,000/­. The compensation was enhanced since

the Appellant had suffered from 100% disability with

respect to his earning capacity. The High Court granted

Future Prospects @50% to the income of the Appellant.

6 The Respondent – Insurance Company was directed to

pay compensation to the Appellant in the first instance,

and recover the same from the owners and drivers of

the two offending trucks.

3. The present Civil Appeal has been filed by the Appellant for

enhancement of the compensation to Rs. 1,75,61,000/­ since

he is permanently disabled, leading a miserable life, and

requires a permanent attendant.

4. We have heard the learned Counsel appearing for the

Appellant. The Appellant was produced before the Court at

the time of hearing. We have also heard the learned Counsel

appearing for the Respondent – Insurance Company, and

perused the pleadings on record.

The owners and drivers of the two offending trucks did not

appear throughout the proceedings.

5. We find that the MACT has computed the compensation

payable to the Appellant on the basis of a notional income of

7 Rs. 6,000/­ p.m. on the ground that no evidence of his

income was produced.

5.1. The Appellant has however, produced an Affidavit by his

employer in this Court. As per the said Affidavit, the

Appellant was earning Rs. 10,000/­ p.m. at the time of

the accident.

5.2. On the basis of the Affidavit filed by the employer of the

Appellant, we accept that the income of the Appellant

was Rs. 10,000/­ p.m. at the time of the accident, for

the purpose of computing the compensation payable to

him.

5.3. Taking the income of the Appellant as Rs. 10,000/­

p.m., with Future Prospects @50% as awarded by the

High Court, the total income of the Appellant would

come to Rs. 15,000/­ p.m.

5.4. The Appellant was 23 years old at the time when the

accident occurred. Applying the multiplier of 18, the

loss of future earnings suffered by the Appellant would

work out to Rs. 15,000 X 12 X 18 = Rs. 32,40,000/­.

8 5.5. The High Court has rightly assessed the functional

disability of the Appellant as 100%. The Appellant is

suffering from hemiplegia due to which the left side of

his body is barely functioning. On account of the

permanent disability suffered, the Appellant was

deprived of getting married and having a normal family

life. His capacity to earn a living has been completely

shattered for the rest of his life, and he has a become

fully dependant person.

In Govind Yadav v. The New India Insurance Company

Ltd.,1 this Court held that:

“18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Company Ltd. (supra) and Raj Kumar v. Ajay Kumar (supra) must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.”

(emphasis supplied)

1 (2011) 10 SCC 683.

9 In K. Suresh v. New India Assurance Company Ltd.,2

this Court held that:

“10. It is noteworthy to state that an adjudicating authority, while determining quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the tribunal or a court has to be broad based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of ‘just compensation’ should be inhered.”

(emphasis supplied)

In Raj Kumar v. Ajay Kumar and Ors.,3 this Court held

that:

“Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to

2 (2012) 12 SCC 274.

3 (2011) 1 SCC 343.

10 find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or

(ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even

11 anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.”

(emphasis supplied)

5.6. In the present case, it is an admitted position that it is

not possible for the Appellant to get employed as a

driver, or do any kind of manual labour, or engage in

any agricultural operations whatsoever, for his

sustenance.

In such circumstances, the High Court has rightly

assessed the Appellant’s functional disability at 100%

insofar as his loss of earning capacity is concerned. The

Appellant is, therefore, awarded Rs. 32,40,000/­

towards loss of earning capacity.

5.7. We further find that the compensation awarded to the

Appellant towards his medical expenses is highly

insufficient. The Appellant has undergone 5 surgeries,

including a surgery for a severe head injury, and 3

12 throat surgeries. The Appellant has not been awarded

any amount whatsoever either by the MACT, or the High

Court for the successive hospitalizations, surgeries and

medical treatment.

In view of the facts and circumstances of the case, it

would be just and fair to award a lump sum amount of

Rs. 7,50,000/­ towards hospitalization and medical

expenses incurred in the past by the Appellant.

5.8. The Appellant was produced before us. He was in an

extremely pitiable state. On account of the removal of

the frontal bone of the skull, half of his head has caved

in. Furthermore, a deep circular incision was made in

his throat, and his body was in an unstable condition,

undergoing tremors. The Appellant is further suffering

from hemiplegia, due to which the left side of his body is

not functioning properly.

5.9. Given the debilitated state of the Appellant, no amount

of money can compensate him. He has been in this

condition since the age of 22 years when the accident

took place, and will remain like this throughout his life.

13 The Appellant has also been deprived of having a

normal married life with a family, and would require

medical assistance from time to time. Being completely

dependant, he would require the help of an attendant

throughout his life.

In view of these uncontroverted facts, we deem it fit

and appropriate to award a lump sum amount of Rs.

10,00,000/­ to the Appellant towards medical expenses

and attendant charges.

6. In view of the aforesaid discussion, the Appellant is entitled

to the following amounts:

i) Rs. 32,40,000/­ to be awarded towards loss of future

earnings by taking the income of the Appellant at Rs.

10,000/­ p.m., and granting Future Prospects @50%;

ii) Rs. 7,50,000/­ to be awarded towards repeated

hospitalizations and medical expenses for undergoing 5

surgeries and medical treatment;

iii) Rs. 10,00,000/­ to be awarded towards future medical

expenses and attendant charges;

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iv) Interest @ 9% awarded by the High Court from the date

of the Claim Petition, till the date of recovery to be

maintained.

7. On the issue of liability to pay the compensation awarded, we

affirm the view taken by the High Court that the Respondent

– Insurance Company is absolved of the liability to bear the

compensation, as evidence has been produced from the office

of the Regional Transport Office to prove that the drivers of

the two offending trucks were driving on the basis of invalid

driving licenses. It is also relevant to note that the owners

and drivers of the offending trucks have not appeared at any

stage of the proceedings, including this Court.

7.1. This Court in Shamanna & Ors. v. The Divisional

Manager, The Oriental Insurance Co. Ltd. & Ors., held

that if the driver of the offending vehicle does not

possess a valid driving license, the principle of ‘pay and

recover’ can be ordered to direct the insurance company

to the pay the victim, and then recover the amount from

the owner of the offending vehicle.4

4 (2018) 9 SCC 650.

15 7.2. We deem it just and fair to direct the Respondent –

Insurance Company to pay the enhanced amount of

compensation as indicated in Para. 6 above, to the

Appellant within a period of 12 weeks from the date of

this judgment. The Respondent – Insurance Company is

directed to make out a Demand Draft in the name of the

Appellant, which can be used for his care for the rest of

his life. The Respondent – Insurance Company is

entitled to recover the amount from the owners and

drivers of the two offending trucks.

The Civil Appeal is allowed in the aforesaid terms. All pending

Applications, if any, are accordingly disposed of.

Ordered accordingly.

.....................................J. (INDU MALHOTRA)

.…...............………………J. (M.R. SHAH)

New Delhi, July 1, 2019.

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