RRRR IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE21T DAY OF SEPTEMBER, 2021 PRESENT THE HON’BLE MR. JUSTICE P.B.BAJANTHRI AND THE HON’BLE MR. JUSTICE M.G.S. KAMAL MFA No.103572/2015 (MV) Between: Shri Akhil Hrishikesh Sharma, Age 41 years, Occ Now Nil, (Earlier worked as Sergeant in Indian Air Force), R/o.: No.30, Raksha Colony, Ranjhil, Jabalpur, Madhya Pradesh. ... Appellant (By Shri Sanjay S.Katageri, Advocate) And:
1. Shri Suresh S.Rachannavar, Age 53 years, Occ: Business, R/o.: Karadiguddi, Tq. & Dist.: Belagavi. (Owner of the passenger Tempo Bearig Reg. No.KA-22/C-1266).
2. The New India Assurance Co. Ltd., Through its Divisional Office, By its Divisional Manager, Club Road, Belagavi. ... Respondents (By Shri Santosh B.Malagroudar, Advocate for R1; Shri S.S. Koliwad, Adocate for R2) :
2. : This MFA is filed under Section 173(1) of the M.V. Act, 1988, against the Judgment & Award dated 17.07.2014, passed in MVC No.1567/2008 on the file of the Presiding Officer, Fast Track Court-I & Member Addl. MACT, Belagavi, dismissing the petition filed under Section 166 of M.V. Act, 1994. This appeal being heard and reserved for Judgment, coming on for pronouncement of Judgment, this day, M.G.S. Kamal, J, delivered the following:
JUDGMENTLegality or otherwise of the Judgment & Order dated 17th July 2014, passed in MVC No.1567/2008 by the Presiding Officer, Fast Track Court-I & Addl. MACT, Belagavi, whereby the claim petition filed under Section 166 of the M.V. Act, 1994 by the claimant, a sergeant in the Indian Air Force, who is paralyzed below the waist due to grievous injuries suffered in a road traffic accident rendering him 100% disabled and unfit to serve the Indian Air Force, has been dismissed merely on the ground of he not having personally filed the complaint against the driver of the offending vehicle is put in issue in this appeal. :
3. : BRIEF FACTS:
2. The facts leading upto filing of the present appeal briefly stated are that on 03.02.2007 at about 17:45 hours the claimant was proceeding to Belagavi on his motorcycle bearing registration No.MP-20/KH-1859. At that time driver of a passenger tempo bearing registration No.KA-22/C-1266 driving the same in high speed overtook the motorcycle of the claimant and thereafter turned the vehicle on to the left side of the road without any indication or signal and suddenly applied brake and abruptly stopped the vehicle to pickup passengers. As a result, the claimant could not stop his motorcycle immediately, though he tried his best and eventually dashed into rear left side corner of the aforesaid passenger tempo. Due to the impact, the claimant sustained grievous injuries and was admitted to the Military Hospital, Belagavi. Thereafter, he was shifted to Military Hospital at Khadaki, Poona. He also took treatment in private hospitals and spent huge amount towards medical treatment. The lower part of :
4. : the body of the claimant has become totally paralyzed confining him to a wheel chair. CLAIM PETITION:
3. Thereupon the claimant filed a claim petition under Section 166 of the M.V. Act claiming compensation in a sum of Rs.42,00,000/- with interest at 18% p.a from the date of accident contending inter alia that he was aged about 34 years, highly qualified with M.Sc. Physics and MBA, serving as a Sergeant, discharging functions of Education Instructor under Medical Category A and Group X in Indian Air Force, Government of India. That at the time of accident, the claimant was earning Rs.1,30,224/- per annum from salary (excluding the revised scale with effect from 01.01.2006); that due to the accident he suffered grievous injuries such as (i) fracture of Thoraco Limber Spine; (ii) fracture of Lower end Radius (RT); and (iii) Superficial abrasion on face and other multiple injuries all over the body. That after the accident, he fell unconscious and was shifted to Military Hospital, Sambra and thereafter to Military Hospital, Poona and :
5. : had undergone several operations and spent more than Rs.1,75,000/- towards treatment. That due to the aforesaid accident which was caused on account of the rash and negligent driving of the passenger tempo by its driver, the claimant has suffered permanent disability of 100%. That he has been discharged from his services as being unfit to serve the Force. That the lower part of the body has become totally paralyzed from the waist and he is being moved only on the wheel chair. The movement of other parts of the body have also become limited and restricted, because of which he is unable to either have his food himself or to attend his nature calls. That he requires attendant permanently to assist and look after his day to day needs like giving him bath, feeding him, look after his nature calls, dressing him up etc., that he is not in a position to enjoy his marital life permanently. His desire of bringing up his family and children has completely become extinct. Hence, sought for compensation. :
6. : OBJECTION STATEMENTS OF RESPONDENT NOS.1 & 2:
4. On service of notice, respondents appeared through their counsel and filed their respective statement of objections. Respondent No.1 in his statement of objection denied the case of the claimant and contended that the passenger tempo was insured with respondent No.2 and it was valid from 06.04.2006 to 05.04.2007 and that the driver of the passenger tempo was holding valid and effective driving licence to drive the said vehicle. It is further contended that there was no negligence on the part of the passenger tempo driver; the passenger tempo driver was proceeding towards Belagavi and when the said passenger tempo came near Mutaga Bus Stand on Belagavi-Bagalkot road at about 5:45 p.m., a bus was also proceeding towards Belagavi in front of the tempo. At that time, the driver of the passenger tempo heard the sound from backside of his vehicle and stopped his vehicle, got down and saw that the claimant came in his motorcycle in high speed and dashed to tempo on its backside. That because of the negligence of the claimant, the accident :
7. : had occurred. One Praveen had filed a complaint against the claimant before the Marihal Police Station and a case was registered against the claimant.
5. The respondent No.2-Insurance Company in the statement of objection denied the petition averments and contended that the vehicle in question was not insured with it and the driver of the said vehicle was not holding valid and effective driving licence. It was further contended that the accident in question arose out of the collision between two vehicles and as such, the owner and the insurer of the motorcycle are the proper and necessary parties. That the compensation claimed by the claimant was excessive and exorbitant and there was no basis; that a case was registered against the claimant and the charge sheet was also filed against the claimant. That the claimant had pleaded guilty and he has been convicted by the Criminal Court and as such sought for dismissal of the claim petition. :
8. : ISSUES AND EVIDENCE:
6. The Tribunal based on the pleadings, framed the following issues; “1.Whether the claimant proves that he sustained injuries in a motor vehicle accident, which occurred on 3-2-2007 at about 17-45 Hrs. near Mutaga village on Belgaum-Bagalkot road when the claimant was proceeding on his motorcycle No.MP- 20/KH-1859, due to rash and negligent driving of the Passenger Tempo bearing registration No.KA-22/C-1266 by its driver?.
2. Whether the claimant is entitled for compensation?. If so what amount and from whom?.
3. What order?.” and recorded the evidence; claimant examined himself as PW1 and also examined the driver namely A.B. Patil as PW2 and got exhibited 57 documents as Exs.P1 to P57; on behalf of the respondents, one Suresh Rachannawar was examined as RW1 and got exhibited 4 documents as Exs.R1 to R4. FINDING OF THE TRIBUNAL:
7. The Tribunal relying upon Ex.P1-compliant, Ex.P2-FIR, Ex.P5-Charge sheet and Ex.R1-ordersheet in :
9. : C.c.No.2274/2007 produced by the parties and in view of the claimant not filing the complaint against the driver of the passenger tempo came to the conclusion that there was direct evidence to establish that the accident occurred due to the rash and negligent driving of the motorcycle by the claimant himself. Accordingly held that the claimant failed to prove that he sustained injuries in the road traffic accident on account of the rash and negligent driving of the passenger tempo by its driver and consequently dismissed the claim petition filed by the claimant.
8. We have heard the learned counsel for the parties. SUBMISSION OF THE LEARNED COUNSEL FOR THE CLAIMANT:
9. Learned counsel for the claimant reiterating the various grounds urged in the appeal memorandum submitted: (a) That the Tribunal grossly erred in concluding that the accident was caused by the claimant himself on the premise that the :
10. : claimant has not filed any complaint against the driver of the tempo, alleging negligence; (b) That the reasoning of the Tribunal to that effect that the complaint, FIR and charge sheet are against the claimant and the fact that the claimant has pleaded guilty of the charges made against him would prove the negligence on his part, is bad in law and the same requires interference; (c) That the Tribunal erred in not appreciating that the claimant after the accident was unconscious and was admitted to Military Hospital, Belagavi by the Air Force Personnel of Sambra. That the Doctor on duty at Military Hospital, Belagavi had indeed informed about the said accident to the Camp Police, Belagavi and the said intimation was given immediately and the same was received at about 23:30 hours on 03.02.2007 by the Camp Police as per MLC Register and the Camp Police in turn had intimated to the Marihal Police, Belagavi on the same day as per Ex.P7. However, to avoid any criminal prosecution, the respondent No.1-owner and the driver of the said passenger vehicle have colluded with the Police Officials of the said Marihal Police Station and have got :
11. : registered the complaint against the claimant on 03.02.2007; (d) That the Tribunal failed to appreciate the injuries to C5 & C6 (spinal cord) as a paraplegic injury suffered by the claimant and as such he was not conscious after the accident and he was not in a position to register any complaint personally. He was under treatment from 03.02.2007 to 18.09.2007, taking undue advantage of this situation, a false charge sheet had been filed against the claimant as per Ex.R2, which has been erroneously relied upon by the Tribunal. (e) The Tribunal failed to appreciate that the said passenger tempo was for seat carriage and the driver of the said tempo had overtaken the claimant’s motorcycle while proceeding towards Belagavi and had suddenly turned towards left side of the road without any indication or signal compelling the claimant to hit the tempo from behind, resulting in the accident. (f) That the Tribunal has not considered the spot panchanama, sketch and the MVI report, which categorically establish that the accident had occurred at the extreme left :
12. : side of the road and the tempo had overtaken the motorcycle; that the damages caused to the motorcycle as well as the tempo recorded in Ex.P6 clearly demonstrate the nature and manner of the accident. (g) That the claimant having sustained grievous injuries had taken treatment as an inpatient in the Belagavi Military Hospital from the date of accident i.e., on 03.02.2007 till he was discharged on 05.02.2007 and thereafter from 05.02.2007 till 14.02.2007, from 14.02.2007 to 18.09.2007, 28.11.2007 till 11.09.2008 and thereafter continuous treatment at Jabalpur, New Delhi of various Military Hospitals for a period of 3 to 4 years due to spinal cord injury and thereby paraplegia. (h) That on 10.12.2010, after due medical examination by the Medical Board, Air Force Headquarters New Delhi, the claimant was discharged from the services as physically unfit in the unit and also Civil Services as per Ex.P35. Hence, there was permanent physical disability to the extent of 100% and as such the Tribunal ought to have assessed the compensation towards loss of future earning capacity of the claimant by considering the :
13. : salary of the claimant at Rs.32,249/- as a last drawn salary for the month of December 2010, as per Exs.P44 & P46; (i) That the Tribunal has not assessed either the disability or loss of income and future prospects of the claimant/injured. Further, the Tribunal has not granted any compensation whatsoever, dismissed the claim petition. Hence, sought for allowing the appeal. SUBMISSION OF THE LEARNED COUNSEL FOR THE RESPONDENTS:
10. On the other hand, learned counsel for respondent Nos.1 and 2 being the owner of passenger tempo and the insurance company justifying the Judgment & Award passed by the Tribunal submitted that the claimant has not made out any ground for interference. Further it is submitted that the claimant has not filed any complaint regarding the accident and that the charge sheet has been filed against the claimant and the claimant through his advocate pleaded guilty in the criminal case in C.C.No.2274/2007, as such it is not available for the claimant to turn around :
14. : and plead for allowing of the claim petition attributing negligence on the part of the passenger tempo, as such sought for dismissal of the appeal.
11. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the records carefully. POINTS FOR CONSIDERATION:
12. In view of the rival submissions of the learned counsel for the parties, the questions that would arise for our consideration are: “1) Whether the tribunal is justified in dismissing the claim petition filed by the claimant in the facts and circumstances of the case?.
2) Whether the claimant has made out a case for grant of compensation?.” ANALYSIS: OCCURRENCE OF ACCIDENT: ‘PREPONDERENCE OF PROBABILITIES’:
13. As held by the Hon’ble Apex Court in the case of MANGLA RAM VS. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS reported in :
15. : (2018)5 SCC656 the proceeding under the Act has to be decided on the basis of preponderance of the probabilities and the claimants are not required to prove the accident beyond reasonable doubt. The Hon’ble Apex Court in the said judgment while referring to its earlier decision at paragraphs 24 and 25 has held as under: “24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under the IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in paragraph 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp.458-59) “3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of :
16. : res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient (1980) 3 SCC457disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded being postponed by several years. The :
17. : States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard.
25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant’s eye- witness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi. In paras 8 & 9, of the reported decision, the dictum in United India Insurance Co. Ltd. Vs. Shila Datta, has been adverted to as under: “8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para
10) :
18. : ‘10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. * * * (v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. … (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.’ 9.The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p.
519) ‘10. … We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.’ ” :
19. : In para 10 of Dulcina Fernandes, the Court opined that non- examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability.” In the light of the aforesaid settled principles of law, the instant appeal needs to be adjudicated.
14. From the pleading and material evidence available on record, on 03.02.2007, the claimant who was working as Sergeant in Indian Air Force was proceeding on his motorcycle on the left side of the road towards Belagavi on Belagavi-Bagalkot road and when he came near Mutaga village at about 17.45 hours, the driver of the passenger tempo came in high speed and having overtaken the motorcycle of the claimant turned on to the left side of the road without any indication or signal and suddenly stopped the vehicle to pick up the passengers. The claimant who was just then overtaken by the tempo was compelled to hit on to the rear left side of the tempo. Consequently, the claimant sustained grievous injuries. From these :
20. : basic facts what emanates is that the claimant had hit the passenger tempo from behind on to its rear left side.
15. For the purpose of assessment of these facts, we have gone through the Motor Vehicle Inspection report (MVI report) which is at Ex.P6. The details of the damages to the motor cycle and the passenger tempo observed in the Ex.P6 are as under: “MP-20/KH-1859 (Motor cycle) i) HL unit and Front both right and left indicators broken. ii) Vaisor unit damaged. iii) (Mudguard) front fender broken.” “KA-22/C-1266 (Passenger tempo) i) Rear left side bumper unit damaged and was pressed inside. ii) Rear left side lower show damaged. Rest all the other mechanical parts of both the MV’s are found in good working condition.
16. The aforesaid MVI report at Ex.P6 when juxtaposed with spot sketch at Ex.P4, it is seen that the passenger tempo is shown on the left side of the :
21. : road facing towards west and the motorcycle is shown behind the said tempo. From a close analysis of the MVI report read with Ex.P4-spot sketch, it is clear that the motorcycle belonging to the claimant has hit the passenger tempo from behind on to its rear left side. Passenger tempo driver overtook the claimant’s motorcycle and stopped the vehicle in the guise of picking up passengers.
17. The claimant in his affidavit evidence has specifically deposed at paragraph 2 as under: “I submit that on 03.02.2007, I was going to Belgaum on my motorcycle bearing Registration No.MP-20/KH1859 with moderate speed and by observing all the traffic rules and on my correct left side of the road, when I came near the spot of the accident i.e. on Belgaum-Bagalkot road, near Mutaga village, in the meantime the passenger tempo bearing No.KA-22/C-1266 came rushing with excessive speed and over took my vehicle rashly and negligently with excessive speed and the driver of the said passenger tempo suddenly applied brake and stopped his vehicle to pickup passenger from road side without following traffic rules and without giving any signals, therefore even my vehicle was running in moderate speed I could not control my vehicle, as a result my motor cycle dashed to the left side hind portion of the said passenger tempo.” :
22. : This portion of the affidavit evidence of the claimant has not been controverted or disputed in the cross- examination. Nothing has been elicited from the claimant to discredit the aforesaid deposition.
18. On the other hand, during the cross examination of the claimant, it is suggested on behalf of the respondents that there was a speed breaker and the passenger tempo was traveling slowly on the said date to pick up the passengers and that the claimant was riding his two wheeler in high speed and negligently, as such he hit the passenger tempo from behind. These suggestions have been denied by the claimant. However, what remained undisputed is that the passenger tempo was being used on the said date for the purpose of picking up the passengers and that the driver of the passenger vehicle had overtaken the claimant and had stopped to pick up passengers.
19. It is not uncommon that a vehicle like tempo traveler or any other passenger pick up vehicles for that matter, often stop in the middle of the road to pick :
23. : up and drop the passengers. It is also not uncommon that these passenger pick up vehicles more often than not are in a rush while picking up and dropping the passengers as and when driver get signal from passengers. In the instant case, admittedly the said passenger tempo was moving with the passengers for the purpose of picking up and dropping the passengers. Therefore, probability of the passenger tempo involved in the accident applying sudden brake to pick up the passengers cannot be ruled out.
20. The passenger tempo traveling ahead of the motorcycle of the claimant after having overtaken was on lookout for passengers. Therefore, sudden stoppage of the passenger tempo resulting the motorcycle of the claimant hitting the rear left side portion of the passenger tempo is probabalised from the material evidence available on record. That apart, it is not in dispute that there was collision between the motorcycle and the passenger tempo resulting in grievous injuries sustained by the claimant. :
24. : FILING OF FIRST INFORMATION REPORT:
21. The Tribunal declined to consider the case of the claimant only because he had not personally filed the complaint against the driver of the passenger tempo. This approach of the tribunal in the facts and circumstances of the case is unsustainable for the following reasons.
22. The principle object of lodging first information report from the point of view of the informant is to set criminal law into motion and from the point of investigation authority is to obtain information about alleged criminal activity so as to be able to take suitable steps for tracing and brining to book the guilty party [(1972)4 SCC773(SHEIKH HASIB @ TABARK VS. STATE OF BIHAR].. It is also settled law that there is no requirement in the law that FIR should be filed only by an eyewitness or that the informant must have some personal knowledge. All that requires is that the FIR must contain necessary ingredients of an offence as it is the basis on which the :
25. : Police commence investigation. It is sufficient if it indicates that an offence has been committed.
23. One of the factors weighing against the claimant in rejection of his claim petition is the Tribunal taking serious exception to the claimant personally not filing the complaint against the driver of passenger tempo and this purported lapse on the part of the claimant has been the primary ground for dismissal of the claim petition. Besides, the Tribunal has also viewed filing of complaint at Ex.P1, FIR at Ex.P2 and charge sheet at Ex.P5 against the claimant and relying on Ex.R1 has drawn adverse inference of the claimant’s counsel pleading guilty before the III- Additional JMFC in C.C.No.2274/2007. The relevant portion of the impugned judgment is at paragraph 9 of the judgment, which reads as under: “9. ....... One important point to be considered in this case is that, “after recovering from the injuries sustained by him, the claimant has not made any endeavor to file a complaint against the driver of the passenger tempo. If at all the accident was due to the rash and negligent driving of the passenger tempo nothing prevented the claimant to file a complaint or he could have :
26. : filed private complaint before the Court. He has not challenged Exs.P1, P2 and P5. On the other hand, he has pleaded guilty through his counsel and has been convicted.
24. Adverting to the aforesaid issue, learned counsel for the claimant brings to our attention certain facts, namely, the claimant who was working as Sergeant, immediately after the accident was taken to Military Hospital, Belagavi and the Doctor on-duty had informed about the accident to the South Traffic Police Inspector, Camp police, Belagavi and who in turn, has informed about the accident to the Marihal police station, Belagavi, specifically stating about the claimant meeting with the accident and suffering the grievous injuries of traumatic paraplegia with lower end radius with a copy to the Station Head Quarter, Belagavi, Camp, District Belagavi, 405, Air Force Station, Sambra, Stats., Section Case File. This intimation was given at about 23:30 hours on 03.02.2007 by the Camp police, Belagavi as per the MLC register. This is evident from Ex.P7 “Hospital Medical Legal Case FIR”, which has been duly received :
27. : by the jurisdictional police as per the endorsement therein.
25. Ex.P7 which is addressed to the South Police Inspector, Camp Police Station, Belagavi by one Rahul Sinha, Cpt. DMO for Commanding Officer, Sainik Aspatal, Military Hospital, Belgaum-590009, dated 03.02.2007 with the caption “HOSPITAL MEDICAL LEGAL CASE FIRST INFORMATION REPORT (FIR)” provides the particulars in detail. Paragraph Nos.4, 5 and 6 of the said complaint provide as under: “4. Brief History of illness injury: DOI- 03.02.07. IOI-1800 hrs. MOI-met with accident was one motorbike and was struck by Minibus Place of Injury-Sambra Road, Near Mutga Bund, Belgaum.
5. Wound certificate attached as Appx A.
6. You are hereby informed to attend the case at MH Belgaum for necessary investigation injury.
26. The aforesaid document at Ex.P7 is nothing short of a complaint given by the duty Doctor attending to the claimant which has been duly received by the concerned Police. That apart Ex.P8 is the wound :
28. : certificate issued by the Military Hospital, Belagavi regarding nature of injuries. Even this document has also been received by the PSI, Marihal as on 05.02.2007. Thus, these documents satisfy the requirement of filing of the First Information Report for the purpose of setting the criminal law into motion.
27. As regards the observation of the Tribunal that the claimant has not personally given the complaint, it is to be noted that there is no requirement in law for giving complaint personally. Besides, the claimant who sustained injuries in the above matter has taken treatment from 03.02.2007 up to 18.09.2007 and again admitted on 28.11.2007 till 11.09.2008 at Sainik Aspatal, Military Hospital, Khadaki, Poone-20 as per Ex.P43, wherein it is noted that the claimant has suffered 100% disability for lifelong duration due to quadriplegia and wheel chair ambulant. The claimant has been discharged from his services after having been found medically unfit for further services in the Indian Air Force by the Medical :
29. : Board as per Ex.P35 with the percentage of disability at 100%, unfit even for civil employment.
28. The nature of injuries and the consequent condition of the claimant referred to above would reveal that there was no possibility of claimant personally reverting and filing the complaint either immediately on the date of the accident or after the so called recovery from his ailment as reasoned by the Tribunal.
29. Unfortunately, the tribunal has not taken into consideration the aforesaid MLC-FIR at Exs.P7 and P8 given by the doctor on the very date of the accident. Obviously, the claimant could not be expected under the circumstance to personally follow up with the first information report given by the duty doctor to the South Traffic Police, Camp, Belagavi. It was the duty on the part of the concerned police to have registered the case and taken up the investigation and failure on the part of the police, cannot be faulted with the claimant. :
30. : FILING OF THE COMPLAINT EX.P1, FIR-EX.P2, CHARGESHEET-EX.P5 AND COUNSEL FOR THE CLAIMANT PLEADING GUILTY-EX.R1:
30. The tribunal has relied only on these three documents and nothing else. As regards the complaint- Ex.P1, it is seen that the said complaint has been given by one Praveen aged 19 years working as a cleaner under respondent No.1. The said complaint has been given on 03.02.2007 stating that on the said date, the passenger tempo was proceeding with the passengers to Belagavi and it crossed Mutaga Bus Stand and in front of the said vehicle, there was a bus and having heard the noise, saw the two wheeler hitting the Passenger Tempo from the backside. The police based on the said complaint, registered the FIR-Ex.P2 and have filed the charge sheet at Ex.P5. There is specific mention therein that the delay in submitting the charge sheet was because the accused (claimant herein) was under treatment in the hospital. Based on the aforesaid complaint, FIR and charge sheet produced by the claimant, the Tribunal held that the claimant himself produced the documents Exs.P1, P2 and P5 which are :
31. : against the claimant. Another aspect taken into consideration by the Tribunal is Ex.R1 with regard to the counsel for claimant pleading guilty of the offence. The claimant in the cross-examination specifically stated that he neither received any summons nor was he present personally before the III-JMFC Court, Belagavi C.C.No.2274/2007. He has denied that the warrant was issued against him for his absence and he has also denied that he was present before the JMFC through his lawyer. Ex.R1 is the order sheet maintained in Criminal Case No.2274/2007, a perusal of the order dated 03.08.2010 recorded as under: “Case is called out before L.A. The advocate for the accused is present. Copy of the c/s furnished to the advocate for the accused. After going through the same he submits that he wants to plead guilty on behalf of the accused. The consequences of he pleading guilty re explained to the advocate on behalf of accused. But still he submits that he wants to plead guilty on behalf of accused. Then the accusation was read over and explained to the advocate on behalf of accused in the language known to him. The advocate on behalf of Accused pleaded guilty I am satisfied that the plea of the advocate on behalf of accused is free and voluntary one. Hence, same accepted. :
32. :
ORDERThe accused is convicted U/s 252 Cr.P.C. for the offence punishable U/s 279 of IPC. Accused is sentenced to pay fine of Rs.300/- for the offence U/s 279 of IPC in default he shall undergo SI for 20 days. Total fine is Rs.300/-. Conciliator Conciliator
31. The facts and circumstances in the case reveal that the counsel for the claimant had pleaded guilty of the offences charged against the claimant in the aforesaid charge sheet before the Lok Adalat and had paid the fine of Rs.300/- thereof in the absence of the claimant. This aspect of the matter has been taken note of by the Tribunal to hold that there was negligence on the part of the claimant disentitling him from making any claim. This reasoning of the tribunal is incorrect.
32. The tribunal ought not to have placed reliance solely on the complaint, FIR, charge sheet and order pleading guilty while considering the factum of :
33. : accident and the consequent negligence. The tribunal ought to have arrived at a conclusion on appreciating the pleading and other material evidence independently on the principles of preponderance of probability. The Division Bench of the Punjab and Haryana High Court in the case of MUNICIPAL COMMITTEE JULLUNDAR CITY VS. SHRI ROMESH SAGGI AND OTHERS (AIR1970Punjab and Haryana 137), taking note of the pronouncement of various High Courts on the proposition with regard to effect of verdict of Criminal Court on the determination of the issue before the Civil Courts, has held: “18. ... It may be noted that even an arbitrator must not disregard the crucial rules of evidence founded on the fundamental concept of natural justice and public policy. One of such concept is that an arbitrator- indeed for that matter any judicial tribunal- has to determine the facts in controversy before him by applying his own mind after an independent enquiry and investigation. This is the basic function of any judicial tribunal. No arbitrator or tribunal therefore can be permitted to abdicate this fundamental judicial functional and ready-made opinion of criminal court if he fails to make an independent enquiry and contends himself with a role of a rubber stamp functionary, merely accepting the ipse dixit of the :
34. : Criminal Court, such self effacement on his part will amount to legal misconduct.
34. It will, therefore, be opposed to fundamental canons of justice and public policy to treat the judgments of the criminal courts binding on a Motor Accidents Claims Tribunal, trying a claim arising out of a motor accident involving injury or death. The judgment of the Criminal Court, can at the most, be used only for the purpose and to the extent indicated in Section 43 of the Evidence Act.
35. ...”The judgment of a Criminal Court in a prosecution arising out of a motor accident, determining the guilt or innocence of the driver of the motor vehicle concerned, is neither conclusive nor binding on the Motor Accidents Claims Tribunals, dealing with a claim petition under Section 110-C of the Motor Vehicles Act, and its findings as to the guilt or otherwise of the driver are wholly irrelevant for the purpose of the trial on merits of the claim petition before the Motor Accidents Claims Tribunal. Such judgment can, however, be relevant only for the purpose and to the extent specified in Section 43 of the Evidence Act.
33. Similar view has been taken by the Division Bench of the High Court of Gujarat at Ahmedabad in the case of PANKAJBHAI CHANDULAL PATEL VS. BHARAT TRANSPORT CO. AND ANOTHER (1997 ACJ993, wherein at paragraph 10 has held as under: “10. ...Consequently, negligence or innocence will have to be established :
35. : independent of the criminal court’s finding or issues arising in petition for compensation has, therefore, to come to its independent finding appreciating the evidence produced before it. The judgment of the criminal court can only show that the concerned driver was convicted or acquitted in the criminal case. At the most, in our view the judgment of the criminal court may provide corroboration to the evidence adduced by the claimant, but can never be the sole decisive factor qua negligent driving, for the negligence is required to be established by leading necessary evidence.
34. The Apex Court in the case of KISHAN SINGH (D) THROUGH L.Rs. v. GURPAL SING & ORS. reported in AIR2010SCC3624while dealing with the issue regarding finding of facts recorded by the Civil Courts in the suit not having any bearing on the criminal cases vice-versa at paragraph 19 has held as under: “19. Thus, in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in able doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter :
36. : and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872 dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration.
35. Thus, the Tribunal will have to assess the evidence before it independently of any findings of the Criminal Court. No implicit reliance can be placed on the circumstance of pleading guilty before the Criminal Court to draw adverse inference in the case for determination of negligence and assessment of compensation, particularly when overwhelming material evidence is available on record.
36. In view of the aforesaid legal principles and from the holistic reading of the aforesaid facts coupled with the nature of injuries suffered by the claimant rendering him paralytic and he having been discharged as unfit to render his services, it is not difficult to comprehend that his counsel would have pleaded guilty on behalf of the claimant by paying fine thereof with an intention of giving quietus to the criminal case. That :
37. : alone cannot be the factor for consideration to deny the case of the claimant, when such act of pleading guilty has taken place in the back drop of the first information report having been lodged by the duty doctor as per Ex.P7 and during the pendency of the claim petition before the Tribunal. This aspect of the matter has not been taken into consideration by the tribunal.
37. In the instant case, the first information report was indeed lodged by the duty doctor, Ex.P7, which unfortunately has neither been registered nor taken to logical end by the jurisdictional police. On the other hand, pursuant to the complaint filed by the cleaner of the passenger tempo, the police seemed to have filed charge sheet which prima facie appears to be without even only inquiring with the claimant. The Tribunal has lost sight of this aspect of the matter.
38. As already noted, the occurrence of accident is not in dispute. Sustaining of injuries by the claimant is also not in dispute. Therefore, mere reliance on :
38. : complaint, FIR, charge sheet and order of pleading guilty as per Exs.P1, P2, P5 and Ex.R1 to hold the claimant negligent and further the reasoning of the Tribunal regarding non filing of the complaint by the claimant, particularly with availability of Exs.P7 and P8 as referred to above, for rejecting the claim petition is not justifiable and is unsustainable. The tribunal ought not to have rejected the petition of the claimant, without independently assessing the fact and evidence made available by the parties. REGARDING REMITTING THE MATTER TO THE TRIBUNAL:
39. Remitting the matter to the tribunal for the purpose of determining the quantum of compensation, in our considered view would not serve any purpose. The parties in this proceeding have led their respective evidence and have been afforded with sufficient opportunity. There is sufficient and adequate evidence available on record to determine the case finally. The accident is of the year 2007; the impugned Judgment and Award is dated 17.07.2014; the present appeal is :
39. : of the year 2015. No fruitful purpose will be served in remanding the matter, particularly when sufficient material evidence is available on record. Therefore, in the circumstances, we deem it appropriate to determine the case finally without opting to relegate the parties to the Tribunal once again. NEGLIGENCE/CONTRIBUTORY NEGLIGENCE:
40. Having thus held that the Tribunal ought not to have dismissed the claim petition of the claimant on the ground of non-filing of the complaint and pleading guilty as above, another issue which requires consideration is with regard to ‘negligence’ and ‘contributory negligence’. It is the case of the claimant that the passenger tempo having overtaken him had turned on to left side of the road without any indicator or signal and had suddenly applied brake, thereby compelling him to hit its rear side despite his best efforts to avoid the collision. This circumstance read with Ex.P6-MVI report and the nature of the damages to the motor cycle and the tempo observed therein suggest that there was collision from the rear side. :
40. :
41. The respondent No.1 in the statement of objection has specifically contended that the accident in question has taken place due to the negligent act on the part of the claimant himself. Respondent No.2 in its statement of objection has pleaded that the accident in question has occured solely due to reckless and rash and negligent riding of the motorcycle by the claimant himself in the middle of the main road without paying any heal to the traffic on either side and without holding a valid and effective driving licence to drive the same.
42. In the light of the aforesaid pleading, facts and circumstances of the case, it is necessary to determine negligence and/or the contributory negligence if any on the part of the claimant in the instant case.
43. The Apex Court in the case of MUNICIPAL CORPORATION OF GREATER BOMBAY VS.SHRI.LAXMAN IYER AND ANOTHER reported in :
41. : AIR2003SC4182has held in paragraphs 6 and 7 as under: “6. The plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance 'negligence' is categorized as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and :
42. : circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, courts have power to apportion :
43. : the loss between the parties as seems just and equitable. Apportionment in that context means that damage are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn. P.361).
7. At this juncture, it is necessary to refer to the 'doctrine of last opportunity'. The said doctrine is said to have emanated from the principle enunciated in Devies v. Mann (1842 (10) M&W546 which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other's carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but test of causation. (See Davies v. Swan Motor Co. (Swansea) Ltd. (1949 (2) KB291. Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lords in The Volute (1922 (1) AC129 and Swadling v. Cooper (1931 AC1, it is no longer to be applied. The sample test is what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party's negligence was the proximate cause of the :
44. : accident renders it one to be the result of contributory negligence.
44. The Apex Court in the case of USHA RAJKHOWA Vs. M/S.PARAMOUNT INDUSTRIES & ORS. reported in AIR2009SC1951has held in paragraph 10 as under: “10. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Ors. reported in 2002 (6) SCC455 That was also a case of collusion in between a Car and a truck. It was observed in Para 8:- "The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as `negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong."
This Court further relied on an observation of High Court of Australia in Astley Vs. Austrust Ltd. reported in 1999 (73) ALJR403to the following effect:- "A finding of contributory negligence turns on a factual investigation whether the :
45. : plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."
Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Punchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden. We, therefore, :
46. : respectfully follow the above mentioned judgment.
45. It is also necessary to note that general rule is that the vehicle should be driven at an average speed which enables the driver to stop within the limits of his vision and failure to do so results in the driver being held, in whole or in part responsible for collision. Similarly, the driver of the vehicle shall not apply brake abruptly. This has been given statutory recognition under Regulations 23 and 24 of the Rules of the Road Regulations, 1989, which reads as under: “23. Distance from vehicles in front:- The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.
24. Abupt brake:- No driver of the vehicle shall apply brake abruptly unless it is necessary to do so for safety reasons.
46. In the light of the aforesaid legal principles, when the facts of present case is taken into consideration, the claimant was aware that the passenger tempo being driven by its driver in a rash :
47. : and negligent manner had overtaken him and had come in front of him. Thereafter, the passenger tempo while moving ahead of the motorcycle of the claimant was taking turn on to the left side of the road to pick up the passengers. The claimant who claims to have managed to control the motorcycle in avoiding the collision, ought have been more cautious, particularly when he has observed the passenger tempo overtaking him and coming ahead of him and stopping to pick up the passengers. These circumstances lead to inference that the claimant has also contributed in collision without taking sufficient care required under the circumstance for his personal safety. In the light of ‘doctrine of last opportunity’, the claimant could have been more conscious to avoid harm to himself who was aware of the movement of the passenger tempo. Person driving any vehicle is generally not expected to see behind and drive. He is required to concentrate ahead of him. However, if he is maneuvering the vehicle either in overtaking or slowing down, or changing lanes or in taking turn, requires to be more cautious, including :
48. : watchful of vehicle around him, he shall not abruptly stop the vehicle. In the instant case, the driver of the passenger tempo who is admittedly on lookout for the passengers ought to have been more careful and cautious while driving the tempo towards the fellow road users. Under these facts and circumstances of the case, we are of the considered view that the contributory negligence can be attributed to the extent of 50% to the driver of passenger tempo and 50% to the claimant. DETERMINATION OF COMPENSATION:
47. Adverting to the issue with regard to quantum of compensation, the tribunal has not dealt with these aspects of the matter.
48. In the case of KAJAL v. JAGDISH CHAND AND OTHERS reported in (2020) 4 SCC413reiterating the principles for determining of just compensation contemplated under the M.V.Act, the Apex Court has held that apart from injury, claimant has to be compensated for consequential losses. The :
49. : Apex Court has at paragraph 33 has emphasized just compensation and has held that in case just compensation is more than the amount claimed, that must be awarded. The Apex Court laid down the principles for awarding just compensation for loss of earning, medical expenses, transportation, special diet, attendant charges, loss or diminution the pleasures of life by loss of a particular part of body, loss of future earning capacity. Paragraph 33 reads of the said judgment reads as under: “33. We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in the motor accident claim petitions, the Court must award the just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.
49. The claimant in this case was working as Sergeant in the Indian Air Force and his last drawn monthly salary was Rs.32,249/-, which cannot be disputed. It is also not disputed that effective from 10.12.2010, the claimant has been discharged from his services having become incapable of performing his :
50. : duties as per Ex.P35. In view of the above undisputed fact, we will have to assess the quantum of compensation payable in the instant case. The claimant has produced Ex.P46-pay certificate and Ex.P47-pay slip. The claimant was receiving salary of Rs.32,249/- per month as per Ex.P46, which is the last pay certificate issued by the employer of the claimant, in which the amount totally paid with allowances is shown as Rs.32,249/-. Taking the said pay certificate into consideration, the annual income of the claimant would be Rs.3,86,988/-. Since the claimant has paid an amount of Rs.6,896/-towards income tax as per Ex.P47, the annual income of the claimant would come to Rs.3,80,092/-(Rs.3,86,988/- less Rs.6,896/-). Thus the monthly income of the claimant would come to Rs.31,674/-. DISABILITY:
50. Disability certificate produced at Exs.P43, P44 and P45 would establish that the claimant has suffered 100% disability (spinal cord injuries). The claimant is rendered to be on the wheel chair for the :
51. : rest of his life. The claimant has been discharged from his services being unfit for any service as per Ex.P35. Thus disability of the claimant is assessed at 100%. FUTURE PROSPECTS:
51. As regards grant of future prospects in the case of injuries occurred in a road traffic accident, the Hon’ble Apex Court in the following judgments has held as under: In the case of SYED SADIQ AND OTHERS VS. DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., reported in (2014) 2 SCC735while dealing with a case of injury sustained by a vegetable vendor to the lower end of the right femur and amputation of right leg and while assessing a disability has held as under: “The claimant claims that he was working as a vegetable vendor. It is true that a vegetable vendor might not require mobility to the extent that the sells vegetables at one place. However, the occupation of vegetable vending is not confined to selling vegetables from a particular location. It rather involves procuring vegetables from the wholesale market or the farmers and then selling it off in the retail market. This often involves :
52. : selling vegetables in the cart which requires 100% mobility. But even by conservative approach, if we presume that the vegetable vending by the claimant involved selling vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the market place which otherwise would be extremely difficult for him with an amputated leg. We are required to be sensitive while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood. Yet, considering that the claimant is still capable to fend for his livelihood once he is brought in the marketplace, we determine the disability at 85% to determine the loss of income.” Thus, the Apex Court taking into consideration of aforesaid aspects awarded 50% increment in future prospects of income. In the case of JAGDISH VS. MOHAN AND OTHERS reported in (2018) 4 SCC571referring to the Constitution Bench judgment in the case of Pranay Sethi, the Apex Court dealing with the case of Carpenter losing his hands in an accident while awarding future prospects has held at para 13 as under: “13. In the judgment of the Constitution Bench in Pranay Sethi case, this court has :
53. : held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the present case, the claimant would be entitled to an enhancement of Rs.2400 towards loss of future prospects. Similarly, in the case of PAPPU DEO YADAV VS. NARESH KUMAR AND ORS. reported in AIR (2020) SC4424referring to its various judgments at paragraphs 20 and 22 has held as under: “20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the claimant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood - What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income :
54. : generating capacity of the claimant was undoubtedly severely affected.
22. In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim’s having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge’s mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right of life under Article
21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim”. In the case of ERUDHAYA PRIYA VS. STATE EXPRESS TRANSPORT CORPORATION LTD., reported in 2020 SCC OnLine SC601 the Apex Court referring to JAGDISH VS. MOHAN AND OTHER CASES (supra), dealing with a case of grievous injuries including fractures with disability of 31.1% to whole body :
55. : awarding 50% of the future prospects has held at Para 14 as under: “14.. We are, thus, unequivocally of the view that there is merit in the contention of the claimant and the aforesaid principles with regard to future prospects must also be applied in the case of the claimant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd., case (supra), more specifically para 59.3, considering the age of the claimant, would be 50% of the actual salary in the present case.
52. In the light of the aforesaid legal principles, since the claimant is aged about 34 years at the time of accident, which is below 40 years of age and was in permanent employment, future prospects has to be at 50%. Thus, monthly income of the deceased would be Rs.47,511/- (31,674/- add 50%). Taking into consideration the age of the claimant, the appropriate multiplier applicable would be 16. Hence, loss of future earnings would be Rs.91,22,112/- (Rs.47,511/- x 12 x 16 x 100%). :
56. : ATTENDENT CHARGES:
53. The lower body of the claimant below the waist is paralysed. He has no senses of his nature’s calls. He is rendered wheel chair ambulant through out his life. He requires assistance for his personal daily routine including maintaining his personal hygiene. The doctors have opined that he requires assistant of an attendant. Considering the nature of injuries and the present status of the claimant, we are of the considered opinion that the claimant is entitled for compensation under the head of attendant charges. The claimant deposed in the affidavit that he is paying Rs.3000/- each to two assistants for his maintenance. We are of the considered view that a sum of Rs.6,000/- per month be awarded towards attendant charges. Thus the claimant is entitled for Rs.11,52,000/- (Rs.6,000/-x12x16). MEDICAL EXPENSES:
54. The claimant has contended that he has spent a sum of Rs.1,75,000/- towards medical :
57. : expenses. However, the claimant has produced medical bills for Rs.29,459/- only as per Exs.P9 to P27 and Exs.P48 to P50. Since the claimant has admitted that he was given treatment at Military Hospitals till the date of his discharge, and since he has not produced bills or materials to justify the claim for Rs.1,75,000/-, a sum of Rs.29,459/- as evidenced in Exs.P9 to P27 and Exs.P48 to P50, is awarded towards medical expenses, the same is rounded off to Rs.30,000/-. PAIN AND SUFFERING:
55. Considering the nature of injuries and the long treatment taken by the claimant, we are of the considered opinion that the claimant is entitled for the compensation under the head of pain and suffering at Rs.2,50,000/-. LOSS OF AMENITIES:
56. Claimant is deprived of his marital bliss and other amenities. The claimant is therefore entitled for compensation under the head loss of amenities at Rs.2,50,000/-. :
58. :
57. Thus, we are of the considered opinion that the claimant would be entitled for a total compensation of Rs.1,08,04,112/- under the following heads: Amount Amount awarded Heads of account awarded by by this Court. the Tribunal 1. Loss future income --- Rs.91,22,112/- 2. Pain & suffering --- Rs.2,50,000/- 3. Medical expenses --- Rs.30,000/- 4. Attendant charges --- Rs.11,52,000/- 5. Loss of amenities --- Rs.2,50,000/- Total --- Rs.1,08,04,112/- 58. Since we have held that the claimant has contributed to the accident to the extent of 50%, claimant is held entitled for 50% of the above compensation i.e., Rs.54,02,056/-.
59. Respondent No.1 being the owner of the offending vehicle and respondent No.2 being the insurer are jointly and severally liable to pay the compensation. Since the insurance policy was valid as on the date of the accident, respondent No.2 is directed to pay the aforesaid compensation to the claimant. It is evident from the records that the claimant was discharged from the services holding to be unfit on and :
59. : from 10.12.2010 as per Ex.P35. Thus, the claimant is entitled for the compensation only on and from the date of discharge from the services, that is, 10.12.2010.
60. Considering the age of the claimant and his condition and in the larger interest, we are of the considered view that 50% of the above compensation amount be released in the name of the claimant and balance 50% be deposited in any Nationalised Bank in two equal fixed deposit and the claimant is at liberty to withdraw the interest accrued thereon.
61. For the aforesaid reasons, the points raised above are answered in the Affirmative in favour of the claimant. Accordingly, we pass the following:
ORDER(i) The appeal is allowed. (ii) The Judgment & Order dated 17th July 2014, passed in MVC No.1567/2008 on the file of the Presiding Officer, Fast Track Court-I & Addl. MACT, Belagavi is set aside. (iii) The claimant is entitled to a total compensation of Rs.54,02,056/- with interest :
60. : @ 6% p.a. from the date of his discharge from the service i.e., 10.12.2010 as per Ex.P35, till deposit. (iv) The respondent No.2-insurance company shall deposit the above compensation amount within three months from the date of the order. (v) It is further directed that 50% of the aforesaid compensation together with interest accrued thereon be released in the name of the claimant and the balance 50% with accrued interest thereon be deposited in any Nationalised Bank in two equal Fixed Deposits to be liquidated/withdrawn, if need be, each at every 5 years; claimant shall be entitled to withdraw the interest accruable periodically. Sd/- JUDGE Sd/- JUDGE Vnp* & KGK