The New India Assurance Co. Ltd V. Rafaqat Hussain and others

Cr.Obj/1/2021

AI Insights

The case involves an appeal by The New India Assurance Co. Ltd against an award by the Motor Accidents Claims Tribunal, Rajouri, which granted substantial compensation to Rafaqat Hussain, a paraplegic accident victim. The accident, caused by the negligent driving of a vehicle, resulted in severe injuries to the claimant, leading to permanent disability. The Tribunal's award included compensation for future loss of earnings, medical expenses, and attendant charges, among others. The insurance company contested the award as excessive, particularly challenging the calculation of attendant charges and other heads of compensation. The High Court's decision partially modified the Tribunal's award, particularly adjusting the attendant charges while confirming other aspects of the compensation.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 687129 (HC-JAMMU)
• Appeal Type: Others
• Pronouncement Date: 21-10-2021
• Assessment Year: misc
• Other Referred Cases: Kajal vs. Jagdish Chand (2020) 4SCC 413, R.D. Hattangadi v. Pest Control of India and Anr., Ward v. James 1965 1 All ER 563, C.K. Subramonia Iyer v. T. Kunhikuttan Nair [1970]2SCR688, Municipal Corporation of Delhi v. Subhagwati and Ors. 1966 ACJ 57, U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. (1996) 4 SCC 362, Sandeep Khanduja v. Atul Dande and Ors.: (2017) 3 SCC 351
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: RAGHU MEHTA
• Assessee Lawyers: AMRIT SARIN
• Keywords: Compensation; Medical expenses; Motor Accidents Claims Tribunal; Vehicular accident; Paraplegia; Permanent disablement; Attendant charges

Judgement Text

"HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Mac App No. 113/2020 c/w Cr. Obj. No. 1/2021 Reserved on : 29.09.2021 Pronounced on : 21.10.2021 The New India Assurance Co. Ltd .....Appellant/Petitioner(s) Through :- Mr. Amrit Sarin, Advocate v/s Rafaqat Hussain and others .....Respondent(s) Through :- Mr. Raghu Mehta, Advocate Coram: HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE JUDGMENT 1. The present appeal is directed against the award dated 31.01.2020 in File No. 87/Claim passed by the Learned Motor Accidents Claims Tribunal, Rajouri, (for short MACT, Rajouri), whereby an amount of Rs.1,43,39,520/- has been awarded in favour of the claimant/respondent No. 1 alongwith interest @ 7.5% per annum from the date of filing of claim petition till its realization. 2. Factual matrix of this case, as gathered from the impugned award, is that on 09.04.2014 the claimant/respondent No.1 received serious injuries in a vehicular accident at Mandir Gala due to the rash and negligent driving of the driver of offending vehicle No.JK02AD 4425 coming from Sungri towards Rajouri. 3. Claimant/respondent No. 1 filed a claim petition before learned MACT, Rajouri for claiming compensation on account of the injuries caused to him. After putting to notice, the National assurance company Ltd., caused 2 Mac App No.113/2020 appearance and contested the claim petition. The following issues came to be framed on 31.08.2016 by the Tribunal: 1. Whether petitioner sustained injuries in road traffic accident on 09.04.2014 at Mandir Gala within the jurisdiction of police station Kandi, due to rash and negligent driving by the respondent No.1 while driving the offending vehicle No. JK02AD/4425. OPP 2. In case issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether driver of offending vehicle was not holding valid and effective driving license at the time of accident? If so to what effect? OPR-3 4. Whether any terms and conditions of Insurance police have been violated? If so to what effect? OPR-3 5. Relief? 4. The Tribunal after examining the entire record and on the basis of the evidence led by the parties awarded Rs. 1,43,39,520/- alongwith interest @ 7.5% per annum in favour of the claimant/respondent No. 1 herein. Being not satisfied by the award impugned, appellant insurance company has filed this Mac App No. 113/2020 challenging the award being excessive and exorbitant. 5. The appellants have urged in the memo of appeal that the claim petition has been wrongly decided and the amount of compensation is not in consonance with the facts and circumstances of the case as well as law. The legality of the award impugned is questioned on the grounds inter alia that the insured vehicle at the time of accident was carrying 32 passengers against the sitting capacity of 27, as such, the offending vehicle was overloaded and the same was driven in violation of the terms and conditions of the certificate of 3 Mac App No.113/2020 insurance, registration and route permit. It is also averred that the compensation on the head of attendant charges is very excessive and exorbitant and moreover the claimant has not placed anything on record with respect to the requirement of attendants. One of the other grounds is that the compensation on the head of medical expenses is also wrongly awarded in favour of the claimants. 6. Learned counsel appearing for the appellants, Mr. Amit Sarin, vehemently argued that the learned Tribunal fell in error while calculating the amount of compensation under the head of attendant charges and thus awarded highly excessive amount. It is argued that the multiplier of 16 should have been applied instead of 39 to ascertain the attendant charges. Learned counsel placed reliance on the judgment of Hon’ble the Supreme Court in the case titled Kajal vs. Jagdish Chand (2020) 4SCC 413. 7. Mr. Raghu Mehta, learned counsel appearing for the respondent No.1/claimant argued that the amount of compensation awarded by the learned Tribunal is on the lower side and should be enhanced keeping in view the 100% permanent disablement on account of PARAPALEGIA suffered by the claimant due to unfortunate accident. It is submitted that the learned Tribunal has awarded meager sum on account of medical expenses, transport charges, special diet and power wheel-chair. He further argued that according to the evidence of the claimant and also of the expert witnesses like Doctor, the claimant would require the help of at least two attendants throughout his life. Therefore, the expenses on two attendants are required to be enhanced from Rs. 42,12,000/- to Rs. 80,64,000/-. 8. I have heard and given thoughtful consideration to the arguments advanced by the learned counsel appearing for the parties and also perused the 4 Mac App No.113/2020 memo of appeal along with the award impugned as well as the cross objections filed by the claimant. 9. Before moving ahead, I would now analyze as to whether the amount awarded by the Tribunal represents just and proper compensation. This court finds that that law laid down by Hon'ble the Supreme Court of India in R.D. Hattangadi v. Pest Control of India and Anr., would govern the case in hand. This was a case where the injured had become paraplegic and various aspects of assessing just compensation were considered by the Hon'ble Supreme Court of India and I would like to refer few paragraphs of the judgment before considering the findings of the Tribunal. “9. Broadly speaking while fixing an amount of compensation payable to victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are those which are incapable of being assessed by arithmetical calculations. In order of appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include : (i) damages for mental and physical shock, suffered in future; (ii) damages to compensate for 5 Mac App No.113/2020 the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress of life.\" 10. It cannot be disputed that because of the accident the appellant who was an active practicing lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident the object is to compensate such injury \"so far as money can compensation\" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.\" 6 Mac App No.113/2020 11. In the case Ward v. James 1965 1 All ER 563, it was said: Although you cannot given a man so gravely injured much for his \"lost years\", you can, however, compensate him for his loss during his shortened span, that is, during his expected \"years of survival\". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best they can and given him that they think is fair. No wonder they find it well-night insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money\". 12. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of 7 Mac App No.113/2020 sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.\" 13. This Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair [1970]2SCR688, in connection with the Fatal Accidents Act has observed (at p. 380): In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable\". 14. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said: Non-pecuniary loss: the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, 8 Mac App No.113/2020 including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases”. 10. Having regard to the parameters laid down in the above quoted judgment of Hon'ble Supreme Court of India, it would now be appropriate to examine the submissions of learned Counsel for the parties. 11. Submission of Mr. Amrit Sarin, learned counsel that medical expenses awarded by the Tribunal are bad and unsustainable in law and that the patient would not require more than one motorised Wheel Chair, I may say is untenable because as per impugned award there was no evidence in rebuttal by the insurer as against the expert evidence of the doctor which eloquently speaks of the requirement of more than one motorised wheel chair. In view of the unrebutted evidence of the claimant, I do not find any fault with this finding of the Tribunal that the claimant-injured requires more than one motorised wheel chairs. The other submission of Mr. Amrit Sarin that the whole treatment of the claimant was done at the military hospital and the same was totally free of cost, therefore, the award on this count is liable to be set aside, is also untenable and unjustified as I do not find force in the argument of the learned 9 Mac App No.113/2020 counsel for the appellant because the claimant is 100% disabled which is lifelong disability and due to the severe injuries and irreparable damage to spinal cord resulting in traumatic paraplegia, therefore, the claimant would be dependent on the medicines throughout his whole life. Thus, the learned Tribunal has rightly awarded the compensation under the head of medical expenses. 12. As far as the issue of the violation of the Insurance Policy is concerned, the appellant herein did not examine any witness to prove the issue as the onus to prove it was on the insurance company, accordingly, this issue was decided against the insurance company. The appellant herein had the opportunity during the trial to prove this issue but it did not choose to do that and therefore, the same cannot be raised at this stage. 13. A paraplegic patient suffers 100 % disability throughout his life. It is a strange phenomenon where mind remains active but the body refuses to go with the contemplation of the mind. Such patients suffer immensely and the suffering goes through out the life time. The patient becomes totally dependant on other persons for eating, drinking and even for the calls of nature. Such patient would be requiring at least two attendants who may look after him round the clock. Therefore, a sympathic and liberal approach should be adopted while dealing with the compensation relating to such cases. 14. On examining the issue relating to the compensation awarded under the head of attendant charges it has come to the fore that the parameter adopted by the learned Tribunal while calculating and awarding in the attendant charges is wrong and not correct in view of the judgment produced by the learned counsel for the appellant i.e Kajal vs Jagdish Chand (Supra) the relevant para whereof is reproduced as under:- 10 Mac App No.113/2020 “22. The attendant charges have been awarded by the High Court @ Rs. 2,500/- per month for 44 years, which works out to Rs. 13,20,000/-. Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges etc. This system was recognised by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami: AIR 1962 SC 1. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of 'just compensation' within the meaning of the Act. 23. It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. O'Connor 1971 AC 115: 11 Mac App No.113/2020 Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency. That is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special, I think, that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the present case is the incidence of Income Tax and, it may be, surtax. 24. This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati and Ors. 1966 ACJ 57, U.P. State Road Transport Corporation and Ors. v. Trilok 12 Mac App No.113/2020 Chandra and Ors. (1996) 4 SCC 362, Sandeep Khanduja v. Atul Dande and Ors.: (2017) 3 SCC 351. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant's age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court”. 15. In view of the aforesaid, the argument of the learned counsel for the appellant is accepted. The learned Tribunal has faulted while calculating the attendant charges by multiplying with 39 as remaining life of 39 years of the claimant. 16. It is admitted case of the parties that the age of the claimant/injured at the time of accident was 31 years. Such being the case and applying the ratio laid down in case Kajal vs Jagdish Chand (Supra), the multiplier system should have been adopted while calculating the attendant charges. Having held so, this Court, therefore, assess the cost of one attendant at Rs.6750/- which are the wages of an un-skilled labourer according to the SRO 460 dated 26.10.2017 issued by Government of Jammu and Kashmir. Thus, the cost of two attendants as would be required by the claimant, comes to Rs. 13, 500/- per month which further comes to Rs. 1,62,000/- per annum and using the multiplier of 16, it works out to Rs. 25,92,000/-. Therefore, the attendant charges be read as Rs. 25,92,000/- instead of Rs. 42,12,000/- as awarded by the learned Tribunal. Taking into consideration the submissions made by learned counsel for the parties, this Court deems it appropriate not to interfere with the compensation awarded under other heads. 13 Mac App No.113/2020 17. The modified award, to which the appellant/claimant would be entitled to, as under:- a) Future loss of earning Rs. 92,27,520/- b) For future medical expenses Rs. 1,00,000/- c) Transport charges Rs. 1,00,000/- d) Expenses on special diet Rs. 50,000/- e) For present power wheel chair Rs. 1,25,000/- f) For future power wheel chair Rs. 1,25,000/- g) For pain and suffering Rs. 2,00,000/- h) For loss of amenities of life Rs. 2,00,000/- i) Expenses on two attendants Rs. 25,92,000/- Total: 1,27,19,520/- 18. In view of the above, this Court holds that the respondent No.1/claimant is entitled to compensation as mentioned above alongwith interest @7.5% from the date of filing of claim petition till its realiziation. Award impugned dated 31.1.2020 passed by the learned MACT, Rajouri, is accordingly, modified to the above extent and in respect of other aspects, it is confirmed. The modified awarded amount be released in favour the claimant/respondent No.1 after proper verification and identification through RTGS, after deducting the amount already released. The appeal is partly allowed and the cross objections are disposed of, accordingly. (Tashi Rabstan) Judge JAMMU 21.10.2021 Surinder Whether the order is speaking : Yes / No Whether the order is reportable: Yes / No SURINDER KUMAR 2021.10.21 16:37 I attest to the accuracy and integrity of this document "