Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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
J U D G M E N T
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
in FAO No. 10473 of 2014 by the Punjab & Haryana High
Signature Not Verified
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.
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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
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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
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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.
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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.
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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
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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/.
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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
1
Ltd ., 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.
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2
In v. ,
K. Suresh New India Assurance Company Ltd.
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)
3
In v. , this Court held
Raj Kumar Ajay Kumar and Ors.
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.
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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
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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
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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.
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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 v.
Shamanna & Ors. 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
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the owner of the offending vehicle.
4 (2018) 9 SCC 650.
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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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