1. The present appeal is directed against the award announced by learned MACT, Una, vide which compensation of ` 80,240/- along with interest @8% per annum was awarded to the original appellant/claimant/petitioner. (Parties shall hereinafter be referred to in the same manner in which they were arrayed before MACT for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the claimant filed a claim petition before the learned MACT, Una seeking compensation of ` 5,00,000/- along with interest @12% per annum from the date of the accident till its realization.
3. It was asserted that the claimant and his daughter- in-law had gone to Marwari Market on 29.05.2010 at about 11:00 AM to purchase the household articles. A Maruti Zen car bearing registration no.HP-14A-0150 hit the claimant being driven by respondent No. 1-Vinod Kapoor from the rear towards the wrong side of the road. The claimant fell on the road and sustained multiple injuries. He was admitted to CHC, Daulatpur, where first aid was given to him. He was referred to a higher institution for his better treatment. The petitioner remained admitted in Maan Mediciti Superspeciality Hospital, Jalandhar, Punjab from 30.05.2010 till 04.06.2010. He had not fully recovered and had visited the hospital repeatedly for further treatment. The accident occurred due to the negligence of respondent no. 1. The matter was reported to the Police and FIR No. 94 of 2010 was registered on 16.06.2010. Hence, the petition was filed to seek the compensation mentioned above.
4. The petition was opposed by respondent no. 1 by filing a reply denying the contents of the petition. It was asserted that the accident occurred due to the negligence of the claimant. A false FIR was registered by the police against the respondent in connivance with the claimant. The claimant has sought excessive compensation. The claimant tried to cross the road in a haphazard manner and hit the car. Respondent No. 1 was driving the car carefully and was not negligent; hence, it was prayed that the present petition be dismissed.
5. A separate reply was filed by respondent no.2- Insurance Company taking preliminary objections regarding lack of cause of action, the vehicle being driven in violation of the terms and conditions of the insurance policy without a valid RC, fitness and driving license. The contents of the petition were denied on merits. It was asserted that the claimant had sought excessive compensation. The respondent no. 2-Insurance Company is not liable to pay any compensation due to the breach of the terms and conditions of the policy; hence, it was prayed that the petition be dismissed.
6. A rejoinder denying the contents of the replies and affirming those of the petition was filed.
7. Learned MACT has framed the following issues on 17.02.2011:
"1. Whether petitioner Jaswant Singh sustained injuries as a result of accident due to rash and negligent driving of respondent Vinod Kumar while driving vehicle No. HP-14-A-0150
2. If issue No. 1 is proved, to what amount of compensation the petitioner is entitled to and from whom OPP
3. Whether respondent No. 1 was not holding a valid and effective driving licence at the time of accident OPR-3
4. Whether Vehicle No.HP-14A-0150 was being driven in violation of the terms and conditions of the insurance policy i.e. without valid registration certificate and fitness certificate OPR3
5. Whether the petition is filed in collusion with respondent No. 1. If so, its effect OPR3
6. Relief"
8. The parties were called upon to produce the evidence and the claimant examined HC-Ramesh Chand (PW-1), Dr. S.Narula (PW2), himself (PW-3), Rajni Rana (PW4), Ashok Kumar (PW-5) and Dr.J.S. Mann (PW-6). Respondent No. 1 examined himself (RW-1).
9. Learned MACT held that the accident occurred due to the negligence of respondent no.1 and he was liable to pay compensation to the petitioner-claimant. was awarded under the following heads:
10. The plea of the Insurance Company that the vehicle was being driven in violation of the terms and conditions of the insurance policy was not proved; hence, issues no. 1 and 2 were answered in the affirmative, issues no. 3 to 5 were answered in negative and the petition was partly allowed.
11. Being aggrieved from the award passed by the learned MACT, the claimant filed the present appeal seeking the enhancement of the compensation. It was asserted that a compensation of ` 5,00,000/- should have been paid to the claimant. The original bills were worth ` 1,00,000/- and the learned MACT erred in awarding ` 55,240/-. The claimant had to go to the hospital to seek treatment. He had produced the receipt worth ` 14,000/- and the learned MACT erred in awarding compensation of ` 7,000/- under this head. The claimant was entitled to more compensation for treatment, attendant charges, special diet etc. The statement of the claimant that he was earning ` 7,000/- per month was also ignored. Therefore, it was prayed that the present appeal be allowed and compensation be enhanced.
12. I have heard Mr. Prince Chauhan, learned counsel for the legal representatives of the original claimant, Mr. Arvind Sharma, learned counsel for respondent no.1-driver and Mr. Suneet Goel learned counsel for respondent no.2-insurer.
13. Mr. Prince Chauhan, learned counsel for the appellants/legal representative of the original claimant submitted that the learned MACT erred in not awarding the proper compensation. The bills worth ` 1,00,000/- were placed on record; however, an amount of ` 55,240/- was awarded. The transportation charges were also reduced and an amount of ` 10,000/- was awarded under the head 'pain and suffering'. No compensation for the loss of income was awarded; therefore, it was prayed that the appeal be allowed and the compensation be enhanced.
14. Mr. Arvind Sharma, Advocate, for respondent no.1 and Mr. Suneet Goel, Advocate, for respondent no.2 supported the award of MACT and submitted that no interference is required with the same.
15. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
16. The principles of assessment of compensation were laid down by the Hon'ble Supreme Court in Raj Kumar Versus Ajay 2011(1) SCC 343, wherein it was held as under:-
"5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earnings during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to the loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii) (a) does not pose much difficulty as they involve reimbursement of actual and are easily ascertainable from the evidence. An award under the head of future medical expenses - item (iii) - depends upon specific medical evidence regarding the need for further treatment and the cost thereof. Assessment of non- pecuniary damages - items (iv), (v) and (vi) - involves the determination of lump-sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant."
17. This judgment was followed by the Hon'ble Supreme Court in Kajal Versus Jagdish Chand 2020 (4) SCC 413, [LQ/SC/2020/173 ;] wherein it was held:-
"The principles with regard to the determination of just compensation contemplated under the Act are well settled. Injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as (i) loss of earnings; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. Damages can be pecuniary as well as non-pecuniary, but all have to be assessed in Rupees and Paise."
18. In the present case, the original claimant died during the pendency of the proceedings. His legal representatives were brought on record vide order dated 27.02.2023. It was laid down by this Court in Ram Ashari & others vs. HRTC & anr. IV (2005) ACC 379 [LQ/PunjHC/2005/445] : 2006 (2) TAC 1011 (HP) : 2006 ACJ 2433 [LQ/HimHC/2005/2] , that an action in torts for claiming compensation for the injuries sustained by a person is a personal right of the injured. This right cannot be continued by the legal heirs. Legal heirs can only continue the proceedings related to the loss of estate such as medical expenses, the amount spent on treatment etc. It was observed:
"6. It is a well-settled law that an action in torts for a claim of compensation for damages on account of injuries suffered by an injured is a right personal to the injured. This right cannot be continued by the legal heirs or legal representatives. It is no doubt true that the legal heirs or the legal representatives can continue the proceedings insofar as they relate to the loss to the estate such as medical expenses, amount spent on treatment etc. However, the claim with regard to the pain and suffering, future loss of income and such related matters is an action which is personal to the injured alone and cannot be continued after his death unless it is proved that the death is the result of the injuries suffered in the accident.
7. A Division Bench of this Court in Narinder Kaur v. State of H.P., II (1991) ACC 206 (HP) (DB) : (1991) 2 ACJ 767, held as follows:
"(8) We have heard the learned Counsel for the parties and gone through the records. The principle of actio personalis moritur cum persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tort-feasor. In its applicability, the principle stands considerably modified by the provisions of Section 306 of the Indian Succession Act, which clearly lays down that all demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his death survive except causes of action for defamation, assault and other personal injuries not causing the death of the party etc. which come to an end with the death of injured. The loss to the estate is thus not covered by the exceptions contained in Section 306 of the Indian Succession Act. While taking this view, we are fortified by the decisions of the Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 (1) A.C.J. 440 : A.I.R. 1986 S.C. 411: 1986 (2) T.A.C. 216, and M. Veerappa v. Evelyn Sequeria, A.I.R. 1988 S.C. 506. The claimants as legal representatives of the original claimant were, as such, entitled to be substituted in his place with a view to continue the proceedings in the case and to have a decision on the claim in respect of the loss caused to the estate of the deceased."
19. Similar is the judgment in Oriental Insurance Company Limited v. Kahlon, wherein it was observed:
"20. We see no reason to deviate from the consistent judicial view taken by more than one High Court that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor's fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased."
20. Therefore, the Court has to award the compensation under the head expenses on treatment including medical expenses, transportation, special diet, and attendant charges. The compensation under the other heads being personal will not survive after the death of the claimant as per the judgment of this Court and Hon'ble Supreme Court.
21. The claimant had relied upon the bills (Ext.P1 to P47). The learned MACT awarded an amount of ` 55,240/- towards the cost of the treatment. However, the bills are worth ` 1,00,195/- and not ` 55,240/- as held by learned MACT. Since the learned MACT had awarded the amount mentioned in the bills, hence, the claimant was entitled to ` 1,00,195/-. Accordingly, the amount for treatment charges is enhanced to ` 1,00,195/-and the appellants are entitled to ` 44,955/- being the difference.
22. The petitioner remained under treatment w.e.f. 30.05.2010 till 04.06.2010. As per the discharge slip, his condition was stable. He was advised to undergo physiotherapy thrice daily and continue with the treatment. He was admitted with the complaint of pain in the chest and abrasion and a CT scan showed pneumothorax. The chest tube was put on the right side and he was treated with antibiotics, painkillers and other supportive measures.
23. Learned MACT awarded ` 3,000/- under the Head attendant charges. Keeping in view the minimum wage of ` 120/- fixed by the State Government in the year 2010, the attendant charges are reasonable and do not require any enhancement.
24. The claimant relied upon the receipts (Ext. PW5/A to PW5/K). Learned MACT held that claimant was the uncle of the driver and he had only charged the expenses for the fuel. Hence, the learned MACT awarded an amount of ` 7,000/-.
25. Ashok Kumar (PW5) stated in his cross-examination that he had kept the vehicle for his use. He did not have the taxi permit and the claimant is his uncle. He had charged for the fuel. The distance from the house of the claimant to Jalandhar, Punjab was not specified. Even the fuel consumption was not specified, therefore, learned MACT had rightly reduced the amount to ` 7,000/- under the head Transportation Charges.
26. The claimant asserted that he was earning ` 7,000/- per month as an agriculturist. He stated in his cross- examination that his son was cultivating the land on the date of deposition and earlier his son was cultivating the land with him. Rajani Rana (PW-4) stated in her cross-examination that she was not aware of the extent of land owned by the claimant. No revenue papers were filed to show the extent of the land. No details of the crop or its selling price were given. Hence, the plea that the income of the claimant was ` 7,000/- per month cannot be accepted.
27. Therefore, the income of the petitioner has to be determined based on guesswork. It was laid down by this Court in Oriental Insurance Company Versus Kanta Thakur 2021 Law Suit (HP) 721 that in the absence of any proof of income, the income has to be assessed based on the minimum wages. It was observed:
"24. It has been repeatedly held by the Hon'ble Apex Court and this court that in cases, where no specific evidence is available on record with regard to the monthly income of the injured/deceased, courts having regard to the nature of the job of the injured/deceased, should assess income as per minimum wages payable at that time in terms of the Minimum Wages Act. This court in Reliance General Insurance Company Limited vs. Ishwar Singh, 2018 Latest HLJ 750 HP has held that in the absence of specific evidence, if any, led on record by the claimant(s) with regard to income, the tribunal should assess the income on the basis of minimum wages prevalent at the time of the accident in the Government sector."
28. The State Government had fixed ` 120/- per day or ` 3,600/- per month as minimum wages in the year 2010. Hence, the income of the claimant is taken as ` 3,600/- per month.
29. The claimant was admitted to the hospital on 30.05.2010 and he was discharged on 04.06.2010. The claimant or Dr. J.S. Mann (PW-6) did not specify the period for which the claimant would have been unable to work. In view of the nature of the injury sustained by the claimant, he would have been unable to work for about one month. Hence, an amount of ` 3,600/- is awarded towards actual loss of income.
30. It was laid down by the Hon'ble Supreme Court in Raj Kumar (supra) that compensation for loss of future income can only be awarded if it is proved on record that the claimant had suffered permanent disability. If the Tribunal concludes that there is no permanent disability, there is no question of awarding any compensation on account of the future loss of income. It was observed:
"9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity."
(Emphasis supplied)
31. In the present case, the claimant did not assert that he has sustained any permanent disability, he has also not provided any disability certificate; therefore, he is not entitled to any compensation towards loss of future income.
32. The legal representatives are not entitled to compensation under the payments of the head 'loss of amenities' and 'pain and sufferings'. These heads are personal to the claimant as laid down by this Court and Hon'ble Supreme Court. Hence, the compensation cannot be interfered with under these heads.
33. Learned MACT had awarded ` 5,000/-under the head special diet. Keeping in view the nature of the injuries, the amount is reasonable and no interference is required with the same.
34. Therefore, the amount of compensation is enhanced by ` 48,555/- (` 44,955 + ` 3600).
35. The respondents have not filed any appeal regarding their liability to pay the compensation and this aspect has attained finality. Hence, the respondents are liable to pay the enhanced compensation as per the award passed by the Learned MACT, Una.
36. It was submitted that the learned MACT erred in awarding the interest @8% per annum. This cannot be accepted. This Court had awarded the interest @6% per annum in Ranjeet versus Naveta and others in FAO (MVA) No. 3 of 2016 decided on 03.08.2021. Otherwise also, keeping in view the rate of interest granted by the bank on the deposits made with them, the interest @8% is sufficient and reasonable.
Final Order:
37. Therefore, the present appeal is partly allowed and the compensation is enhanced by ` 48,555/- which will carry the interest @8% per annum payable by the respondents as per the award of the MACT. Pending miscellaneous application(s), if any, shall also stand(s) disposed of.
