Nafr High Court
Case Details
Digitally signed by ANJANI KUMAR ALLENA Date: 2025.01.10 18:07:59 +0530 1 2025:CGHC:785 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 769 of 2005 Shekhar Kumar Thakur (Died And Deleted) As Per Honble Court Order Dated- 14- 11-2024. 1 - Smt. Kejiya Thakur W/o Late Ramadhar Thakur, Aged About 58 Years 2 - Smt. Pooja Thakur Widow Of Late Shekhar Kumar Thakur, Aged About 33 Years 3 - Prince Thakur S/o Late Shekhar Kumar Thakur, Aged About 10 Years 4 - Yash Thakur S/o Late Shekhar Kumar Thakur, Aged About 8 Years All are R/o Near Goura Choura, Near Banspara, Durg, Tehsil And District-Durg (C.G.) ... Appellants/Claimants versus 1 - Manoj Kumar Sahu S/o Pritam Sahu, Aged About 35 Years R/o Polsaypara, Durg, Tahsil Durg, Thana-Durg, District-Durg (C.G.) ------(Driver) 2 - Navneet Jha S/o Late U.K. Jha, Branch Manager, Proprietor Ashok Liland Finance Company Bhilai, Tahsil-Durg, District-Durg (C.G.) ------(Mini Bus Owner) 3 - National Insurance Company Limited, Second Manjil Mobil Mahal, Behind By Jila Co-Operative Bank, G.E. Road, Raipur (C.G.) -----(Insurance Company) ... Respondents For Appellants : Shri B.P.Singh, Advocate.
Legal Reasoning
For Respondent No.3 : Shri Dashrath Gupta, Advocate. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) Judgment on Board 06/01/2025 1. This appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short, the MV Act) is directed against the award dated 16.03.2005 passed by the 9 th Additional Motor Accident Claims Tribunal (F.T.C.), Durg (C.G.) in Claim Case No.130/2004 awarding total compensation of Rs.58,486/- with interest @ 6% per annum from the date of claim application till its realisation in a proceeding under Section 166 of the MV Act, while directing the respondents to pay compensation jointly and severally. 2 2. Brief facts of the case are that original claimant Shekhar Kumar Thakur met with accident on 29.07.2001 when the Minibus bearing registration No.MP 24/C/2630, in which, he was travelling from village Bori to Durg, turned turtle, resulting into, he sustained grievous injuries all over his body and subsequently, he was hospitalized at Sector 9 Hospital, Bhilair from 20.07.2001 to 11.08.2001. It is not disputed that respondent No.1 was the driver, respondent No.2 was the owner and respondent No.3 was the insurer of the offending vehicle. It is also not in dispute that as a result of accident, a criminal case was also registered against respondent No.1 for the offence under Section 279 and 337 of the IPC. 3. It appears from record that in the appeal, on account of accident, the injured Shekhar filed a claim case under Section 166 of the MV Act seeking compensation for the injuries sustained. After considering the evidence on record, the Tribunal vide impugned award dated 16.03.2005 allowed the claim application while granting compensation, as mentioned in para 1 of this judgment. 4. On 31.07.2017, a coordinate Bench of this Court heard and passed an order enhancing the compensation. Thereafter, seeking review of the order dated 31.07.2017, a petition being registered as Review Petition No.48/2019 was filed by the respondent/insurance company arraying the legal representatives of the Shekhar Kumar Thakur as respondents No.1(A) to 1(D). The Review Petition was allowed. Para 9 of the Review Petition is relevant and reproduced herein under:- In view of the same, the order dated 31.07.2017 passed in “9. Misc. Appeal No.769 of 2005 stands hereby recalled. Taking into consideration the death certificate produced by the review petitioner showing death of the appellant/claimant to have occurred on 30.10.2015 and no substitution being made by any of the legal representative of the appellant/claimant, Misc. Appeal No.769 of 2005 stands dismissed as abated, reserving the right of the claimants to revive the same.” 5. As against the order dated 06.02.2010 passed in Review Petition No.48 of 2019, the legal representatives of the original claimant, after incorporating them as appellants, preferred an application for restoration of the MA No.769/2005, which was registered as MCC No.689 of 2021. It appears that after considering the case, 3 vide order dated 11.08.2023, this Court allowed application under Section 5 of the Limitation Act, after setting aside the abatement of Misc. Appeal No.769/2005 and accordingly Misc. Appeal 769 of 2005 has been directed to be restored to its original number. 6. Shri B.P.Singh, learned counsel for the appellants submits that the original claimant Shekhar Kumar Thakur, who was injured in the accident, had filed an appeal against the impugned award dated 16.03.2005, however, subsequently he died on 30.10.2015 during the pendency of this appeal before this Court. He further submits that the deceased, who was aged 17 years old at the time of accident, was admitted in the Hospital for long treatment as he was severely injured, but unfortunately, during pendency of the appeal before this Court, he died and his legal representatives were brought on record. The amount of compensation as awarded by the Tribunal is on lower side and not just and proper compensation. As per the statement of Dr. A.D.Urgaonkar (A.W.3), the deceased Shekhar sustained permanent disability to the extent of 25%, as shown in Disability Certificate, marked as Ex.P.8-A. The doctor has also stated that the said disability is Mono paralysis of the right leg because of the spine injury. The doctor has further opined that the percentage of disability may improve during the course of time but will not completely cure. He further submits that this being the factual position, the compensation awarded by the Tribunal is extremely on the lower side and needs interference. He further submits that the Tribunal has not granted any compensation under the head of loss of amenities. Likewise, the compensation awarded under the special diet is on the lower side and prayed for suitable enhancement of the same. He relied on a decision in the matter of The Oriental Insurance Company Limited vs. Kahlon @ Jasmail Singh Kahlon (deceased) though his legal representative Narinder Kahlon Gosakan and anr reported in 2021 SAR (Civ) 1078 (SC). 7. On the contrary, Shri Dashrath Gupta, learned counsel for respondent No.3, while admitting that no separate appeal has been filed against the impugned award 4 dated 16.03.2005, submits that Dr. A.D. Urgaonkar (A.W.3) is not the treating doctor of the injured person and that Disability Certificate given by him only shows assessment of the injury whereas except for the right leg, the other parts of the body are found to be normal. He further submits that since the sole appellant has died on 30.10.2015 when the appeal was decided on 31.07.2017 and that no legal representatives were substituted in his place, therefore, the claim for personal injury filed under Section 166 of the MV Act would abate on the death of the original claimant and would not survive to his legal representatives except as regards the claim for pecuniary loss to the estate of the claimant, therefore, the claimants, being legal representatives of the original claimant are not entitled for any compensation, however, the compensation awarded by the Tribunal is fair and reasonable compensation, which needs no interference. In support, he placed reliance on the decision of the Supreme Court rendered in the matter of Smt. Bhagawati Bai vs. Bablu and others, AIR 2007 MP 38. 8. 9. I have heard learned counsel for the parties and perused the record. Before proceeding further, it would be apt to mention that Motor Vehicles Act is a beneficial and welfare legislation aimed at providing relief to the victims or their families, in cases of genuine claims. The Tribunals must bear in mind the object of the Act in awarding just and fair compensation to the victim or motor accident cases and it is also the bounden duty of the Court/Tribunals to see that the victim or injured of the motor accident to get just compensation and in assessing, what has been described as a just compensation under the Act, all factors including possibilities have to be kept in mind. 10. In the matter of ‘The Oriental Insurance Company Limited’ (supra), the Hon’ble Supreme Court has held in paras 18, 19, 20 & 21 as under:- 18. The Tribunal, on technicalities rejected his claim for salary, medical expenses and percentage of disability and granted a measly compensation of Rupees one lakh only by a cryptic order. We are, therefore, of the opinion that while the claim for personal injuries may not have survived after the death of the injured unrelated to the accident or injuries, during the pendency of the appeal, but the claims for loss of estate caused was available to and could be pursued by the 5 legal representatives of the deceased in the appeal. 19. In Parminder Singh (supra) compensation on the basis of complete loss of income, the percentage of disability, future prospects were granted applying the relevant multiplier. Again, in Kajal (supra) the injured was assessed as 100 per cent disabled, considering all of which compensation was awarded on the notional future prospects along with relevant multiplier. The loss of income to the injured in the facts of the present case has to be assessed at 75%. In view of Raj Kumar (supra) there shall be no deduction towards personal expenses. 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. 21. However, the compensation under the head pain and suffering being personal injuries is held to be unsustainable and is disallowed. The High Court has not awarded anything towards medical expenses despite hospitalisation for six months being an admitted fact. We therefore award a sum of Rs.1,00,000/- towards medical expenses. ... 11. In that view of the matter, the contention raised by the learned counsel for the respondent/insurance company that claim for personal injury filed under Section 166 of the MV Act would abate on the death of the original claimant and would not survive to his legal representatives is liable to be and is hereby rejected and the case law cited by him is distinguishable from the facts of the present case and is of no use to the insurance company. 12. Returning to the facts of the present case in the light of above referred matter, I am, therefore, of the opinion that while the claim for personal injuries may not have survived after the death of the injured unrelated to the accident or injuries, during the pendency of the appeal, but the claims for loss of estate caused was available to and could be pursued by the legal representatives of the deceased in the appeal. It is quite vivid that the deceased sustained permanent disability to the extent of 25%, as is evident from the statement of A.W.3 Dr. A.D.Urgaonkar. Moreover, A.W.3 has specially stated that the injured has suffered Mono Paralysis on his right leg because of the spine injury. He has further opined that the 6 deceased’s disability can never get completely cured but the percentage of the disability may get reduced in the event of proper treatment and physiotherapy is undertaken by the injured. In the said facts and circumstances, this Court is of the opinion that the loss of income ought to have been assessed by the Tribunal considering the disability of 25%. Further, the Tribunal ought to have taken into account the notional income of Rs.30,000/- annually for the person, who met with accident in the year 2001 and now, if the 25% permanent disability, as held by this Court, is taken into account, then his loss of income would come to Rs.7,500/- (Rs.30,000/- / 25% = Rs.7,500/-) and if 40% is added towards future prospects, then the total loss of income would come to Rs.10,500/-. If the amount of Rs.10,500/- is multiplied by applying the multiplier of 18, the total amount of loss of income would be worked out to Rs.1,89,000/-. 13. At the time of accident, the deceased was only 17 years old boy and on account of injuries sustained in the accident, the deceased was hospitalized for a considerable period of 23 days as his right leg got paralyzed. Considering the gravity of the injuries sustained, the expenses incurred during treatment, special diet, attendant, transportation, this Court thinks it fit to grant a sum of Rs.1,50,000/- and accordingly the appellants/claimants are entitled to Rs.1,50,000/- under the aforesaid heads, which, in the considered opinion of this Court, would meet the ends of justice. Thus, the appellants would be entitled for total compensation of Rs.3,39,000/- in place of Rs.58,486/- as awarded by the Tribunal. The enhanced amount shall also carry interest at the same rate as has been awarded by the Tribunal. Looking to the facts and nature of the case, I deem fit proper to distribute the aforesaid amount of compensation between the appellants No.2 & 1, I,.e., wife and mother of the original claimant Shekhar Kumar Thakur, in the ratio of 75:25, thereby meaning that appellant No.2 - Smt. Pooja Thakur, wife of the original claimant, would be entitled to get 75% of the amount of compensation and rest of 25% of the amount of compensation would be disbursed to appellant No.1 – Smt. Kejiya Thakur, mother of the original claimant. The amount of compensation along 7 with accrued interest shall be paid to them, i.e., appellants No.1 & 2, in terms of distribution made herein above. 14.
Decision
In the result, the appeal is allowed in part. The impugned award is modified to the extent indicated above. Rest of the conditions of the impugned award shall remain in tact. Sd/- (Radhakishan Agrawal) JUDGE Anjani