National Insurance Co Ltd v. Asit Kumar & Ors

7. Reimbursement towards medical expenses Rs. 80,000/-

7. Total Rs. 13,28,722/-

8. Accordingly, the learned Tribunal awarded a total compensation of Rs. l[3],28,722/- with interest @ 9 % per annum from the date of filing of petition i.e. 18.07.2009 till its realization.

GROUNDS OF APPEAL:

9. The learned Tribunal erred in law in granting compensation for loss of earning/functional disability on account of permanent physical disability @ 15% to respondent No.1 as he was already suffering with disability to the extent of 60% on account of rheumatoid arthritis and did not suffer any loss of earning capacity; and that as per the decision in the case of Raj Kumar v. Ajay Kumar[6], there is no need to award any compensation under the head of loss of future earnings if the respondent/claimant-injured continues to be in government service, and thus, in the present case, since respondent No.l continued in a government service, there was no justification to award compensation for loss of future earnings. The impugned award is further challenged on the ground that the learned Tribunal has wrongly awarded compensation towards future medical expenses in the sum of Rs.80,000/- without there being any evidence on record and overlooking the fact that respondent No.l is employed with the State Bank of Patiala, which takes care of medical expenses of its employees during and after service; and that the award of Rs. 1,50,000/- as compensation for conversion of vehicle was made without any evidence on record; Lastly, the compensation of Rs. 43,596/- awarded towards attendant charges is also challenged for having been granted without any evidence too.

ANALYSIS & DECISION:

10. I have given my thoughtful consideration to the strenuous objections raised by the learned counsel for the appellant/insurance company as regards the quantum of compensation and I have also heard the arguments advanced by the learned counsel for respondent No.1/claimant-injured. I have also gone through the relevant records of the case including the Trial Court Record.

11. It would be apposite to reproduce the findings rendered by the learned Tribunal with regard to assessment of compensation under various head, which read as under:- “13.[5] It is trite that award of compensation for losses of these category would depend upon facts of each case. A number of courts in catena of judgments have held that the Tribunal has to make judgment in each case. Hon‟ble Supreme Court in Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. and Anr. (2010) 10 SCC 254 which was followed in a subsequent case Raj Kumar Vs. Ajay Kumar & Anr, CIVIL APPEAL NO.8981 OF

2010. The Hon‟ble Court was pleased to lay down guidelines for assessing damages for the cases where the claimant has suffered temporary or permanent disability. The paragraph 9 of the judgment has scripted the factors relevant for assessing whether there is any permanent disability or not if so the extent of such disability whereas para 10 deals with ascertainment of the effect of such permanent disability on actual earning capacity of the claimant. On facts of each case, the Tribunal will take note of the activities which claimant cannot perform after accident and also the activities which he can perform despite of the permanent disability. Thereafter in light of the vocation, profession and nature of work being done by the injured before the accident and keeping in mind his age, the tribunal will ascertain 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. In consideration of the facts above, the tribunal will determine the effect of permanent disability on percentage loss of Income which shall be guiding factor to determine the compensation. 13.[6] Reverting back to the case in hand, now applying the above decisions to the present case it is important to refer and rely to the evidence of Dr. Sourav Shukla, Senior Consultant Orthopedic who appearing as witness PW[2] deposed that Asit Ram was admitted in hospital on 14.03.2008 with fracture prosthetic left shaft femur. He underwent open deduction and internal with 12 holes AO LCP, 2 wire mounts and cable and 2 circlage wires for prosthetic left shaft femur on 16.03.2008. He was operated twice in the said hospital. The implant which was fixed on first operation on 16.03.2008 failed as the bones were crumbling (weak). Therefore, second operation, was performed to help the fracture to heal. After this kind of operation, the operated legs were much weaker as compared to the normal leg and it might take very long or it sometimes did not recover completely to the normal leg. The medicines which were prescribed after these operations were to be taken life long and can be calcium, multi-vitamins and pain killers. The monthly costs of these medicines are between Rs. 2,000- 3,000/-. He further deposed that Asit Ram because of the injury and the surgeries has shortening of the involved leg, weak muscles and bones thereby leading to a permanent disability. Due to the aforesaid, Asit Ram cannot drive and need a driver and a support to walk, climb stairs and further require an attendant for daily needs. He further stated that after the said operation since the bone did not heal properly therefore, the patient was referred to AIIMS for bone bank. He next stated that after going through the medical record AIIMS the revision hip replacement is associated and it might need revision after 10 years as per medical jurisprudence. 13.[7] In the present disability certificate, the disability has been assessed to the extent to 89% in relation to left lower limb. The petitioner/claimant is a senior officer employed with State Bank of Patiala who prior to accident was having disability of 60% and after accident, his disability has been assessed calibrated as 89% viz left lower limb. During the period of treatment the victim has undergone 3 major operation because of non union of fracture. The petitioner/claimant has claimed compensation of Rs. 48,29,3700/on account of permanent disability by applying multiplier to his present salary in terms of 89% disability. 13.[8] The petitioner/claimant is employed with State Bank of Patiala and it is reiterated that he continued to be in service with the same position. There is no immediate loss in salary till the stage of retirement however, it is evident from aforesaid deposition of medical expert that claimant would have difficulty in walking. He needs support in climbing stairs and attendant for daily needs. He has shortening of involved leg, weak muscles and bones. Thus, his working capacity and efficiency be effected. Here in this case there was already disability of 60% and now the accident has resulted disability of lift limb upto 89%, therefore, looking into nature of injuries, the claimant is granted loss of earning capacity of 15% thus, the claimant is awarded a compensation of Rs. 8,15,126/- (Rs. 41,168X12x11x15%).”

12. The analysis of the aforesaid reasoning would bring out that although the respondent No.1/claimant-injured is not totally disabled from earning his livelihood, the aggravated permanent disability that has arisen due to the injuries sustained in the accident are evidently such that would impair his normal discharge in activities and functional duties more effectively and by all means. In the case of Raj Kumar (supra) the Supreme Court had an occasion to explain the broad parameters of assessment of loss of functional disability as per the medical certificate vis a vis the disability towards the whole body as under:

activities and functions so that he continues to earn or can continue to earn his livelihood.”

13. Reverting back to the instant matter, it is manifest that the nature of injuries suffered by the claimant injured are such that would prevent or restrict him from discharging his normal bodily functions and duties with great difficulty of perennial pain and sufferings and thereby, forcing him to work at a lesser scale of his activities. This is substantiated by the testimony of PW-1 i.e. the respondent No.1/claimant-injured himself, who tendered his affidavit in evidence dated 30.11.2011 Ex.PW-1/A and supplementary/additional affidavit dated 20.12.2011 Ex.CW-1/25.

14. A careful perusal of his cross-examination would show that at the time of accident, despite suffering from rheumatoid arthritis to the extent of 60% with respect to his whole body, he was still able to drive an ordinary mechanised car. Evidently, the respondent No.1/claimant-injured after the instant accident, would not be able to drive a car, and indeed needs some amount for mechanically structuring his motor-car or getting an improvised mechanised vehicle so as to enable him to drive around for the purposes of his official duties as also for enjoying his social life. Therefore, the logic of awarding Rs. 1,50,000/- by the learned Tribunal on that account is beyond any challenge except that the amount awarded is abysmally on lower scale.

15. The nature and impact of the aggravated permanent disability suffered by the respondent No.1/claimant-injured has been clearly elaborated by PW-2/Dr. Sourav Shukla, Senior Consultant Orthopaedic, Vivekanand Hospital, Lucknow, who was previously working with Primus Hospital, Chanakyapuri, New Delhi. He testified that the respondent No.1/claimant-injured was admitted in the hospital on 14.03.2008 with periprosthetic fracture left femur shaft and underwent an open reduction and internal fixation with 12 holes AO LCP, two wire mounts and cables and two cerclage wires for periprosthetic fracture left femur shaft on 16.03.2008. He was the very Surgeon who undertook the operation and testified that the implant on first operation on 16.03.2008 failed as the bones were crumbling (weak), and therefore, a second operation was performed to help heal the fracture. He testified without any challenge that orthopaedic condition of the respondent No.1/claimant was such that the injuries would take long time to heal and he might not completely recover for his whole life despite lifelong medications and supplements or special diet in the nature of bisphosphonates calcium multi-vitamins and pain killers. He also testified that the claimant-injured cannot drive and he needs a driver and support to walk, climb stairs and further require an attendant for his daily needs. The aforesaid evidence brought on the record is uncontroverted and unrebutted.

16. All said and done, there is certainly no justification in awarding compensation for loss of earning or functional disability as evidently, the claimant-injured is employed in a senior position in a nationalized bank and on his retirement shall be getting prescribed pension and would be availing other financial benefits of long years of service. Considering his aggravated disability in not being able to drive the vehicle on his own besides the multiple surgeries and prolonged medical treatment he has undergone, it would be imperative that the compensation be enhanced with regards to other heads.

17. Thus, while the award of compensation for loss of earning capacity is not sustainable, this Court finds that the peculiar facts and circumstances of the case justify that the amount for pain and suffering should be enhanced to Rs. 5,00,000/-. The claimant-injured is presently 55 years of age and considering the longevity of life in our country, it would be expedient that the compensation towards special diet requirement be enhanced to Rs.1,50,000/-. Further, at least services of two attendants be reckoned to him round the clock at the rate of minimum wages, which if assumed to be on a moderate scale, would be Rs. 16,000/- per month for two nursing attendant/attendants at present rate of minimum wages applicable in Delhi and the same would come to Rs. 1,92,000/- annually, upon which, the multiplier of „11‟ is applied and the figure comes to Rs. 21,12,000/-.

18. In this regard, reference can be invited to a decision in the case of Abhimanyu Pratap Singh v. Namita Sekhon[7] wherein, the Supreme Court observed that the multiplier method should be followed not only for determination of the future loss of earning, but also for assessing the attendant charges and accordingly, enhanced the amount under the said head. The germane observations have been reproduced hereunder: “The High Court in the impugned order [Abhimanyu Partap Singh v. Namita Sekhon, 2019 SCC OnLine P&H 6271] observed that the claimant has now started practice as an advocate, therefore, future loss of earning has been calculated only for 10 years, applying the multiplier of 16, without looking to the facts that the claimant cannot perform the work of advocacy similar to the other advocates by attending the cases in different courts. The attendant charges have been allowed only for 20 years with one attendant. In fact, not only for determination of future loss of earning but for attendant charges also the multiplier method should be followed. (paragraph 16) The multiplier method has been recognised as most realistic and reasonable because it has been decided looking to the age, inflation rate, uncertainty of life and other realistic needs. Thus, for determination of just compensation to ensure justice with the family of the deceased or the injured as the case may be the compensation can be determined applying the said method. Therefore, in our view the Tribunal while granting the compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years was not justified. In fact, the said amount should be determined applying the multiplier method. (paragraph 17) {bold portions emphasized}

19. In the same vain, the amount of compensation towards loss of amenities and enjoyment of life and disfigurement also needs to be increased to Rs. 2,50,000/-. At the cost of repetition, the claimantinjured will not be able to drive around without an attendant. It is also pertinent to mention here that the testimony of PW-1 that he is administered specialized injections costing about Rs. 20,000/- per year has not been disputed and is substantiated by PW-2. Although, much mileage is sought to be drawn that the respondent/claimant-injured being in an Executive position had been reimbursed the entire amount of medical expenses and PW-1 was also prodded about it but there is a categorical assertion that about 90% of the medical expenses were reimbursed, and therefore, there is all the more justification to award certain amount towards future medical expenses. It must be understood that any injured person finding himself in such a situation would not always be accounting for each and every item of expense that may be incurred on medical treatment and there are many items of expenses which may not be eligible for reimbursement, and therefore, the amount of compensation of Rs. 80,000/- awarded by the learned Tribunal is not unconscionable and rather enhanced to Rs. 1,50,000/-.

20. Accordingly, the amount of compensation is worked out as under: - S.No. Head of Compensation MACT Award Awarded by this Court

1. Loss of earning capacity (15%) Rs. 8,15,126/- (41,168X12x11x15%). Disallowed in this appeal -

2. Pain and suffering Rs. 1,00,000/ Rs. 5,00,000/-

3. Special Diet Rs. 50,000/ Rs. 1,50,000/-

4. Conveyance Rs. 1,50,000/- Rs. 1,50,000/-

5. Attendant charges Rs. 43,596/- Rs. 21,12,000/-

6. Loss of amenities of life and disfigurement Rs. 90,000/- Rs. 2,50,000/-

7. Reimbursement towards medical expenses Rs. 80,000/- Rs. 1,50,000/- Total Rs. 13,28,722/- Rs. 33,12,000/-

21. In view of the foregoing discussion, the present appeal is dismissed. However, this Court, suo moto in exercise of its power, award a total compensation of Rs. 33,12,000/- (Rupees Thirty three Lacs Twelve Thousand Only) to the respondent No.1/claimantinjured, which shall be payable with interest @ 7.5% from the date of filing of petition till realization. In this regard, reference can be invited to a decision in the case of National Insurance Co. Ltd. v. M. Jayagandhi[8] wherein, the Madras High Court observed that the appellate court can suo moto enhance the amount of compensation by exercising powers under Order XLI Rule 33 of the CPC[9]. The germane observations have been reproduced hereunder: “The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41 Rule 33 CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court inSheikhupura Trans. Co. Ltd. v. Northern India Transporter's Ins. Co. Ltd., 1971 ACJ 206 (SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the Claimants of future pecuniary benefits and 2008 SCC OnLine Mad 53 9 Civil Procedure Code, 1908 on the other any pecuniary advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un-reasonable, excessive nor deficient. (paragraph 37) Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. Even without a Cross- Objection, questioning the quantum, the Court could Suo motu enhance compensation under Or. 41, R. 33, CPC.” (paragraph 38) {bold portions emphasized}

22. While drawing the curtains down in this judgment, a perusal of the record shows that operation of the impugned judgment-cum-award dated 19.02.2013 had been stayed by this Court vide order dated 17.05.2013 subject to the appellant/insurance company depositing 50% of the amount of compensation with upto date interest and on such deposit, 40% of the awarded amount had been ordered to the disbursed to the respondent No.1/claimant-injured in terms of the directions passed by the learned Tribunal. It is directed that the balance amount of compensation as arrived at after reckoning the enhanced amount of compensation, be deposited with the learned Tribunal within four weeks from today, failing which, the appellant/insurance company shall be liable to pay the same with penal interest @ 12% per annum from the date of this judgment till realization. On such deposit, the compensation be released to the respondent No.1/claimant-injured in terms of the directions of the learned Tribunal.

23. Since the appellant/insurance company is failing in the present appeal, the amount of Rs. 25,000/- towards statutory deposit is hereby forfeited to the State.

24. The present appeal along with the pending application stands disposed of.

DHARMESH SHARMA, J. APRIL 29, 2024