THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
st
DATED : 21 May, 2024
-----------------------------------------------------------------------------------------------------------------
SINGLE BENCH : MADAN RAI, JUDGE
THE HON’BLE MRS. JUSTICE MEENAKSHI
-----------------------------------------------------------------------------------------------------------------
MAC App. No.09 of 2023
Appellant : The Branch Manager, National Insurance Company Limited
versus
Respondents : Yoel Subba and Others
Appeal under Section 173 of the Motor Vehicles Act, 1988
---------------------------------------------------------------------------------------
Appearance
Ms. Babita Kumari, Advocate for the Appellant.
Mr. Tarun Choudhary, Advocate for the Respondent No.1.
Mr. Raj Kumar Chettri, Advocate for the Respondent No.2.
Mr. Gautam Tamang, Respondent No.3 in person.
---------------------------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1. The quantum of compensation amounting to
₹
91,52,115/- (Rupees ninety one lakhs, fifty two thousand, one
hundred and fifteen) only, awarded by the Learned Motor Accidents
, in MACT Case
Claims Tribunal, Namchi, Sikkim (for short, “MACT”)
No.11 of 2019, dated 30-11-2022 (Yoel Subba vs. National
Insurance Company Limited and Others), is assailed in this instant
appeal as being excessive and exorbitant.
2. The facts as per the Respondent No.1 (the Claimant
before the Learned MACT) are that, on the midnight of 29-03-2018
he was hit by a Tata Truck, bearing registration no.SK 04 D 0685,
near Hotel Cilantro, Bhanjyang Road, Namchi, South Sikkim, upon
which he sustained head injury and was rendered unconscious at
the spot. He was evacuated to the North Bengal Neuro Centre Pvt.
MAC App. No.09 of 2023 2
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
Ltd., Siliguri and was on Ventilator support from 29-03-2018 which
was removed on 07-04-2018 after a brain surgery was conducted.
That, tracheostomy was done on 14-04-2018 and on 19-04-2018
the Claimant was shifted to the HDU. Due to the accident, he
sustained head injury with multiple deep seated hemorrhagic
“
contusions with right sided pneumothorax . Following treatment
”
and prolonged sessions of physiotherapy, he was discharged from
the Centre on 18-07-2018 and advised to continue medication.
Consequent upon his accident, he was permanently disabled and
diagnosed with 70% permanent locomotor disability, in the lower
and upper part of his body, requiring the assistance of an
attendant for his lifetime on his inability to carry out his day to day
routine. The Disability Certificate, dated 24-04-2019, was issued
to him by the Consultant Orthopedic Surgeon, District Hospital
Namchi, Social Justice Empowerment and Welfare Department,
Government of Sikkim. That, he was twenty-two years at the time
of the accident, - (Rupees twenty five
earning about ₹ 25,000/
thousand) only, to /- (Rupees thirty thousand) only, per
₹ 30,000
month. The documents pertaining to the vehicle in accident
including the insurance policy were valid at the time of the accident
and hence, the compensation claimed viz.; 1,48,87,666/-
₹
(Rupees one crore, forty eight lakhs, eighty seven thousand, six
hundred and sixty six) only.
3. The OP No.1 the insurance company (Appellant herein),
the OP No.2 the owner of the vehicle (Respondent No.2 herein)
and the OP No.3 driver of the vehicle (Respondent No.3 herein) all
filed their written objections denying the claim put forth.
MAC App. No.09 of 2023 3
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
(i) The parties shall hereinafter be referred to in terms of
their litigative status before this Court.
(ii) The Learned MACT settled a single issue for
determination, i.e., Whether the Claimant is entitled to the
compensation claimed? If so, who is liable to compensate him?
(iii) The Respondent No.1 deposed as his own witness and
he relied on 39 documents to establish his case. OP No.1
examined its Deputy Manager as its witness and the OP Nos.2 and
3 examined themselves as their own witnesses.
(iv) The Learned MACT analysing the entirety of the
evidence furnished before it, concluded that, the Respondent No.1
is entitled to the compensation which was computed as follows;
1. Loss of earnings 32,40,000/-
₹
(₹ 500/
-
x 30 = ₹ 15,000/
- x 12 x 18)
2. Compensation for Permanent Disability 22,68,000/-
₹
( 70% of
₹
32,40,000/-)
3. Medical expenses (excluding hotel bills) 20,98,115/-
₹
4. 12,96,000/-
Loss of earning is calculated as ₹ ₹
32,40,000/-, thus future prospects
includes 40% on loss of earning i.e. :
( -)
40% of ₹ 32,40,000/
5. Marriage prospects 1,00,000/-
₹
6. Future medical expenses 1,00,000/-
₹
7. Pain and suffering 20,000/-
₹
8. Loss of amenities 30,000/-
₹
TOTAL 91,52,115/-
₹
4. Aggrieved thereof, the Appellant Company is before
this Court advancing the argument that the compensation was
exorbitant and made for illegal gains. That, the Respondent No.1
was a gratuitous passenger having travelled in the accident vehicle
MAC App. No.09 of 2023 4
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
from which he fell off when the vehicle hit a tree. That, this
circumstance has been corroborated by the statement of the
Respondent No.3. T -Goods
he vehicle was covered under “Motor
Carrying Vehicle Liability O . That, the Respondent No.1
nly” policy
was neither the owner/employee of the insured nor was he the
owner/representative of the goods carried, thus he qualifies as a
gratuitous passenger and not a third party, consequently, the
Appellant Company is not liable to pay the compensation. The
income and occupation of the Respondent No.1 were also
impugned contending that it was devoid of proof. Hence, the
compensation calculated by the Learned MACT with 70% disability
would in fact amount to - (Rupees fifty five lakhs,
₹ 55,23,315/
twenty three thousand, three hundred and fifteen) only, while the
Learned
MACT has erroneously awarded an excess of ₹
36,28,800/- (Rupees thirty six lakhs, twenty eight thousand and
eight hundred) only. It was also argued that the interest rate of
10% on the awarded amount is contrary to the ratio in
Benson
1
vs. ,
George Reliance General Insurance Company Limited and Another
vs.
Kaushnuma Begum (Smt) and Others New India Assurance Co. Ltd.
2
and vs.
and Others Puttamma and Others K. L. Narayana Reddy and
3
. That, the Judgment does not even clarify as to who is
Another
liable to pay the awarded amount to the Respondent No.1. That, in
view of the grounds put forth, the Judgment and award of the
Learned MACT deserves to be set aside.
5. Learned Counsel for the Respondent No.1 contended
that, the question of gratuitous passenger was never brought up
1
(2022) 13 SCC 142 : 2022 SCC OnLine SC 238
2
(2001) 2 SCC 9
3
(2013) 15 SCC 45
MAC App. No.09 of 2023 5
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
before the Learned MACT and has for the first time been raised
only before this Court. That, the settled law is that no new issues
can be brought up in Appeal when it has not been agitated before
the jurisdictional Court, in the instant matter the Learned MACT.
That, the vehicle was in fact a Goods Carrier, duly insured, the
policy being a package policy which covers every person mentioned
therein. That, the Respondent No.1 qualifies as a third party as on
the date of the accident, admittedly, he had travelled in the vehicle
for some time and then alighted from it and was walking home. It
was while he was walking that he was struck by the vehicle, which
rendered him unconscious and resulted in the 70% disablement as
certified by the department concerned. That, on account of the
disablement he is unable to perform his day-to-day functions, he
has remained unemployed and is dependant on an attendant.
That, the income of the deceased ought to have been calculated at
25,000/- (Rupees twenty five thousand) only, to 30,000/-
₹ ₹
(Rupees thirty thousand) only, in terms of the documentary
evidence furnished, but the Learned MACT erroneously assumed
that the income of the Respondent No.1 was to be considered
as ₹
15,000/- (Rupees fifteen thousand) only, in terms of the
Notification of the Labour Department. That, post the accident he
was hospitalized for a long duration, which led to incurring large
amount of expenditure for his treatment, including physiotherapy,
for which he incurs expenditure on a daily basis. Hence, no error
arises on the granting of the compensation to the Appellant.
Reliance was placed on vs.
Dr. K. G. Poovaiah General
Manager/Managing Director Karnataka State Road Transport
MAC App. No.09 of 2023 6
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
4 5
, vs.
Corporation Abhimanyu Partap Singh Namita Sekhon and Another
and vs.
Cholamandalam MS General Insurance Co. Ltd. Amrit Kumar
6
.
Manger
6. Learned Counsel for the Respondent No.2, the owner of
the accident vehicle, contended that all relevant documents
pertaining to the vehicle, including the insurance policy were valid
and covered persons mentioned in the policy, rendering him not
liable for any payment to the Respondent No.1.
7. Respondent No.3 submitted that, on the date of
accident he was the authorized driver of the vehicle and his licence
was valid, besides the accident did not occur due to his rashness or
negligence.
8. The submissions advanced have been considered. The
documents, the impugned Judgment, award and the citations made
at the Bar have been duly perused.
9. Whether the Respondent No.1 is entitled to the
compensation claimed, is the question that calls for determination
herein.
10. Dealing first with the argument pertaining to gratuitous
passenger raised by the Appellant. On a meticulous perusal of the
Written Statement of the Appellant, before the Learned MACT, it is
reflective of the fact that no averments were made with regard to
the Respondent No.1 being a gratuitous passenger which would
thereby absolve the Appellant of its liability. It appears from the
records before me that, in the Evidence on affidavit
“ ” sworn by
Kishor Kumar Subba, Deputy Manager of the Appellant-Company,
4
(2001) 9 SCC 167
5
(2022) 8 SCC 489
6
2023 SCC OnLine Sikk 107
MAC App. No.09 of 2023 7
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
dated 18-12-2021, the Appellant made such an averment for the
first time by stating; That from the facts stated in G.R. case No 69
“
of 2019, it is learnt that the claimant was travelling as a gratuitous
passenger in a water tanker as the policy is for Goods carrying
vehicle (Public Carrier) where driver and other 6 employee is
covered.
” The Learned MACT in the impugned Judgment has
observed inter alia that the Opposite Parties only took a plea that
the claimant was travelling as a gratuitous passenger in the said
vehicle. No further discussions ensued on this point.
(i) In this context, to clarify the matter, it is essential to
emphasise that the settled legal proposition on this aspect is that,
no evidence can be led in the absence of pleadings on a particular
point. In vs.
Ram Sarup Gupta (Dead) by LRs Bishun Narain Inter
7
, the Supreme Court considered whether the
College and Others
Respondents in their Written Statement had raised the necessary
pleading that, the licence was irrevocable as contemplated by
Section 60(b) of the Easements Act, 1882 and if so, was there any
evidence on record to support that plea. It was observed therein
that it is settled law that in the absence of pleadings, evidence, if
any, produced by the parties cannot be considered. That, it is also
equally settled that no party should be permitted to travel beyond
its pleadings and that all necessary and material facts should be
pleaded by the party in support of the case set up by it. The object
and purpose of the pleadings is to enable the adversary party to
know the case it has to meet. In order to have a fair trial it is
imperative that the party should settle the essential material facts
so that the opposing party may not be taken by surprise. It was
7
(1987) 2 SCC 555
MAC App. No.09 of 2023 8
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
further observed that the pleadings however should receive a
liberal construction and no pedantic approach should be adopted to
defeat justice on hair-splitting technicalities. More recently, in
vs.
Srinivas Raghavendrarao Desai (Dead) by LRs. Kumar Vamanrao
8
the principle referred to above was reiterated
alias Alok and Others
and it was observed that there is no quarrel with the proposition of
law that no evidence could be led beyond pleadings.
(ii) On the bedrock of this settled legal position in the
matter under consideration, the pleadings of the Appellant are
indeed bereft of the mention of gratuitous passenger as also the
pleadings of Respondents No.2 and 3. The Appellant could not
have thereby referred to it in the evidence or raised it before this
Court, as the Respondent No.1 was denied the opportunity of
meeting the allegation and no issue was settled by the Learned
MACT for determination on this point.
11. Notwithstanding such legal position, in
K. Lubna and
9
Other vs. Beevi and Others the Supreme Court examined whether
sub-letting one room would entail eviction from the entire tenancy
premises, the question apparently having never been urged before
the trial court, the appellate court or the High Court but having
formed a part of the pleadings before the Supreme Court, being
included in the rejoinder to the SLP. The Supreme Court while
observing that the plea was to be examined, held as follows;
10. On the legal principle, it is trite to say that
“
a pure question of law can be examined at any stage,
including before this Court. If the factual foundation
for a case has been laid and the legal consequences
of the same have not been examined, the
examination of such legal consequences would be a
pure question of law [Yeswant Deorao
8
2024 SCC OnLine SC 226
9
(2020) 2 SCC 524
MAC App. No.09 of 2023 9
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
Deshmukh v. Walchand Ramchand Kothari,
1950 SCC
].
766 : 1950 SCR 852 : AIR 1951 SC 16 ”
(i) Based on the same view, even if we examine the
question of gratuitous passenger as a legal question, it emanates
from the records that the Respondent No.1 had alighted from the
vehicle and was walking home. Thus, even if he travelling in the
accident vehicle prior to the occurrence of the accident, he was not
in the vehicle at the time of the accident, having alighted and
decided to walk home. He would thus not qualify as a gratuitous
passenger having been hit by the truck only after he had already
alighted. The Respondent No.1 stated the following in his
evidence;
“Cross-examination on behalf of the OP No.1
It is not a fact on the fateful day of accident I
along with my other friend had gone to Hotel Kava
Suite at Namchi Bazar, South Sikkim and I do not
know what time we reached the parked vehicle from
hotel. In the Trial Court before the Ld. Judicial
Magistrate, Namchi in G.R. Case No.69 of 2019, I
The accused person told me that he
have stated that “
would reach half of my way towards my house.
Accordingly, we boarded in tanker and when we
reached garage, near Bhanjyang road, all of a sudden
the tanker hit the wall. One of my friend told me to
check as to how the tanker got hit on the wall and
while I was checking the same, the tanker again hit
me. Thereafter, I became unconscious.” . It is true
that my statements made in paragraph 4 of my
evidence-on-affidavit (Exhibit-40) are correct.
It is true that in paragraph 12 of my claim
petition I have mentioned as follows;
“No, the Claimant/victim was standing on road
when he was being hit by the vehicle involved in the
accident.”……………..”
(emphasis supplied)
The evidence supra proves that he was out of the vehicle
when he was hit by it which fact is not decimated in his cross-
examination and thereby he cannot be brought within the ambit of
gratuitous passenger.
12. That having been considered, now on examining the
Birth Certificate Exhibit 7 and the cross-examination of the witness
MAC App. No.09 of 2023 10
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
of the Appellant, it is established with clarity that the age of the
Respondent No.1 has not been disputed or decimated by the
opposing parties. Consequently, his date of birth as per Exhibit 7
is taken as 23-09-1995. The accident having occurred on 29-03-
2018, he was a little above 22 years of age on the said date. His
- (Rupees twenty five
income which was placed at ₹ 25,000/
thousand) only, - (Rupees thirty thousand) only, per
to ₹ 30,000/
month, was not disputed by the Appellant and this fact was
admitted by the witness of the Appellant in his evidence. The
Learned MACT for its part observed that the Respondent No.1 was
not able to prove that he was an employee in a Hotel by the name
of Diya or that he was a Florist at the time of accident, to
„ ‟
establish his income and therefore, reliance was placed on
Notification bearing No.29/DL, dated 14-09-2022, of the
Department of Labour, Government of Sikkim, Gangtok, wherein
the category of workers duly indicating the revised rate of daily
wages was enumerated. Further that, on perusal of the
Notification, it could be gathered that the Respondent No.1 fell
under the category of unskilled worker and accordingly, his
“ ”
income was pegged at 500/- (Rupees five hundred) only, per
₹
day.
(i) On examining Exhibit 8 and Exhibit 9, relied on by the
Respondent No.1, as proof of his income, it is evident that he has
furnished no proof of ownership of a floriculture farm nor was the
owner of the hotel where he allegedly worked as a cook examined.
Indeed, I am aware that the MV Act is benevolent legislation and
the Court should not strive to look for proof which establishes the
case of the Respondent No.1 beyond reasonable doubt, but that
MAC App. No.09 of 2023 11
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
does not preclude the Court from searching for evidence which
extends to preponderance of probability, which is lacking herein by
reason of non-examination of relevant witnesses. Thus, the
Learned MACT correctly considered the income of the Respondent
No.1 500/- (Rupees five hundred) only, per day, discounting
as ₹
Exhibit 8 and Exhibit 9 relied on by the Respondent No.1.
13. Traversing next to the question of the percentage of
disability, Exhibit 5 is the Disability Certificate issued by the
Government of Sikkim, Social Justice Empowerment and Welfare
Department, dated 24-04-2019. It is certified that the case of the
Respondent No.1 is one of Post Head Injury and Quadriparesis,
“
70% disability . The percentage of his physical disability has been
”
evaluated as per guidelines indicated against the relevant disability
table mentioned in the format of certificate with diagnosis of limb
quadriparesis/locomotor disability. The Appellant did not resist this
document, indicating acceptance of the 70% disability of the
Respondent No.1 as certified by the concerned Department.
10
(i) In vs. on the aspect
Raj Kumar Ajay Kumar and Another
of disability and loss of earning capacity, the Supreme Court inter
alia opined as follows;
11. What requires to be assessed by the
“
Tribunal is the effect of the permanent disability on
the earning capacity of the injured; and after
assessing the loss of earning capacity in terms of a
percentage of the income, it has to be quantified in
terms of money, to arrive at the future loss of
earnings (by applying the standard multiplier method
used to determine loss of dependency). We may
however note that in some cases, on appreciation of
evidence and assessment, the Tribunal may find that
the percentage of loss of earning capacity as a result
of the permanent disability, is approximately the
same as the percentage of permanent disability in
which case, of course, the Tribunal will adopt the said
10
(2011) 1 SCC 343
MAC App. No.09 of 2023 12
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
percentage for determination of compensation. (See
for example, the decisions of this Court in Arvind
Kumar Mishra v. New India Assurance Co. Ltd.
[(2010)
and Yadava Kumar v. National Insurance
10 SCC 254]
Co. Ltd. [ ])
(2010) 10 SCC 341
12.
……………………………………………………………..
13. Ascertainment of the effect of the
permanent disability on the actual earning capacity
involves three steps. The Tribunal has to first
ascertain what activities the claimant could carry on
in spite of the permanent disability and what he could
not do as a result of the permanent disability (this is
also relevant for awarding compensation under the
head of loss of amenities of life). The second step is
to ascertain his avocation, profession and nature of
work before the accident, as also his age. The third
step is to find out whether (i) the claimant is totally
disabled from earning any kind of livelihood, or (ii)
whether in spite of the permanent disability, the
claimant could still effectively carry on the activities
and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from
discharging his previous activities and functions, but
could carry on some other or lesser scale of activities
and functions so that he continues to earn or can
continue to earn his livelihood.
”
On account of the injury to his head and limbs, it is evident
that the accident has deprived him of his ability to earn a living,
which he otherwise could have done. Evidently he is physically
impaired to the extent that he cannot fend for himself and is
dependant on the service of an attendant to assist him in his day-
to-day functions. Indubitably he is still on medication and
undergoing physiotherapy. Deprived thus as described supra, his
disability can be assessed at 100% and not merely 70%.
14. That having been said, the rate of interest of 10% on
the award granted by the Learned MACT which is assailed by the
Appellant is now to be addressed. This Court in
Branch Manager,
vs.
National Insurance Company Limited Ms. Avipsa Pathak and
11
has dealt with this issue and observed that the Judgment
Others
of the Supreme Court in (supra) was carefully
Benson George
11
2024 SCC OnLine Sikk 4
MAC App. No.09 of 2023 13
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
perused, where the High Court had reduced the interest rate of 9%
loathe to
to 6% per annum and the Hon‟ble Supreme Court was
interfere with the interest rate fixed. No specifics for such
reduction by the High Court were elucidated therein. It was further
noted that this Court has in all matters of motor accident cases
uniformly awarded interest rate @ 9%. 10% interest imposed by
the Learned MACT is consequently set aside and in its stead 9%
interest is imposed on the award.
15. It is imperative to notice that the settled position of law
is that the compensation awarded to the Claimants in motor
accidents cases must be just compensation . It should not be a
“ ”
windfall but neither should it be niggardly, making it so miserly
that the Claimants cannot get by as the endeavour is to enable the
Claimant to lead a life that he would otherwise have, save for the
misfortune of the accident.
(i) In vs.
National Insurance Company Limited Pranay Sethi
12
the Constitutional Bench of the Supreme held that;
and Others
55. The conception
“ …………………………………….
of “just compensation” has to be viewed through the
prism of fairness, reasonableness and non-violation of
the principle of equitability. In a case of death, the
legal heirs of the claimants cannot expect a windfall.
Simultaneously, the compensation granted cannot be
an apology for compensation. It cannot be a pittance.
Though the discretion vested in the tribunal is quite
wide, yet it is obligatory on the part of the tribunal to
be guided by the expression, that is, “just
compensation”. The determination has to be on the
foundation of evidence brought on record as regards
the age and income of the deceased and thereafter
the apposite multiplier to be applied. The formula
relating to multiplier has been clearly stated in Sarla
Verma and it has been approved
[(2009) 6 SCC 121]
in Reshma Kumari . The age and
[(2013) 9 SCC 65]
income, as stated earlier, have to be established by
adducing evidence. The tribunal and the courts have
to bear in mind that the basic principle lies in
pragmatic computation which is in proximity to
12
(2017) 16 SCC 680
MAC App. No.09 of 2023 14
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
reality.
It is a well-accepted norm that money cannot
substitute a life lost but an effort has to be made for grant
There
of just compensation having uniformity of approach.
has to be a balance between the two extremes, that
is, a windfall and the pittance, a bonanza and the
modicum. In such an adjudication, the duty of the
tribunal and the courts is difficult and hence, an
endeavour has been made by this Court for
standardisation which in its ambit includes addition of
future prospects on the proven income at present. As
far as future prospects are concerned, there has been
standardisation keeping in view the principle of
certainty, stability and consistency. We approve the
principle of “standardisation” so that a specific and
certain multiplicand is determined for applying the
multiplier on the basis of age.
”
[emphasis supplied]
13
(ii) In vs. , the
Pappu Deo Yadav Naresh Kumar and Others
Supreme Court observed that;
“8. …………….. “just compensation” should
include all elements that would go to place the victim
in as near a position as she or he was in, before the
occurrence of the accident. Whilst no amount of
money or other material compensation can erase the
trauma, pain and suffering that a victim undergoes
after a serious accident (or replace the loss of a loved
one), monetary compensation is the manner known to
law, whereby society assures some measure of
restitution to those who survive, and the victims who
have to face their lives .
. ………………… ”
No further discussion need ensue in the context of
compensation in light of the settled legal poistion.
16. It was argued by Learned Counsel for the Appellant
that the Learned MACT had failed to indicate which party was to
make good the compensation. Indeed, the Judgment may not
have mentioned it but perusal of the Award dated 30-11-2022
annexed to the Judgment clearly mentions as follows;
“……………………………………………….
It is hereby ordered that the Opposite Party no
1, The Branch manager, National Insurance Company
- (Rupees
Limited, shall pay a sum of ₹91,52,115/
Ninety-One Lakhs Fifty-Two Thousand, One Hundred
and Fifteen) Only as the total compensation to the
Claimant within a period of two months from the date
of the Judgment. …………………………….”
13
(2022) 13 SCC 790
MAC App. No.09 of 2023 15
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
Hence, this argument of the Learned Counsel for the
Appellant has no legs to stand.
17. While calculating just compensation for a person with
“ ”
100% physical disability, this Court in (supra)
Amrit Kumar Manger
relied on the decision of the Supreme Court in vs.
Kajal Jagdish
14
and calculated the compensation in terms
Chand and Others
thereof. The details of attendant charges , pain and suffering
“ ” “
and loss of amenities , loss of marriage prospects , future
” “ ” “
medical expenses have all been discussed in detail therein and for
”
brevity are not being reiterated here.
18. Considering the age of the Claimant, the multiplier of
been correctly adopted by the Learned MACT in terms of
„18‟ has
the Judgment of the Supreme Court in
Sarla Verma (Smt) and Others
15
vs. . Accordingly, the loss
Delhi Transport Corporation and Another
of earning and future prospects are calculated as follows;
₹ 500 x 30 days = ₹ 15,000/- per month
₹ 15000/- x 12 months = ₹ 1,80,000/- per annum
Add 40% as Future prospects = (+) ₹ 72,000/-
[in terms of Paragraph 59.4 of the Judgment
= ₹ 2,52,000/-
Pranay Sethi (supra) - ₹ 1,80,000/- @ 40%]
= 45,36,000/-
Multiplier to be adopted „18‟ ₹
[in terms of Paragraph 42 of Sarla Verma (supra)
— ₹ 2,52,000/- x 18]
19. It is also clarified here that although the permanent
disability is assessed at 100% on the loss of earning, however, this
Court as per the decision in (supra) has calculated attendant
Kajal
charges for one attendant for the lifetime of the Claimant. The
details of calculation are as follows;
500 x 30 days = - per month
₹ ₹ 15,000/
15000/- x 12 months = 1,80,000/- per annum
₹ ₹
14
(2020) 4 SCC 413
15
(2009) 6 SCC 121
MAC App. No.09 of 2023 16
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
Mu = 32,40,000/-
ltiplier to be adopted is „18‟ ₹
[in terms of Paragraph 42 of Sarla Verma (supra)
— ₹ 1,80,000/- x 18]
It is appropriate to award the above amount as attendant
charges to the Respondent No.1.
20. There is no reason to interfere with the actual medical
- (Rupees twenty
expenses (excluding hotel bills) ₹ 20,98,115/
lakhs, ninety eight thousand, one hundred and fifteen) only,
granted by the Learned MACT.
21. The compensation worked out by the Learned MACT
and by this Court, , are juxtaposed below
under the “other heads”
for clarity;
Learned MACT High Court
1. Medical expenses ₹ 20,98,115/- 1. Actual medical expenses ₹ 20,98,115/-
(excluding hotel bills)
2. Future medical expenses ₹ 3,00,000/-
2. Future medical expenses ₹ 1,00,000/-
3. Pain and suffering ₹ 20,000/- 3. Pain, suffering and ₹ 6,00,000/-
loss of amenities
4. Loss of amenities ₹ 30,000/-
5. Marriage prospects ₹ 1,00,000/- 4. Loss of marriage prospects ₹ 3,00,000/-
6. Compensation for ₹ 22,68,000/- 5. Attendant charges ₹ 32,40,000/-
Permanent Disability
(70% of 32,40,000/-)
Total ₹ 46,16,115/- Total ₹ 65,38,115/-
22. Consequently, the compensation which is found to be
computed as follows;
“just compensation” is
Loss of earnings and future prospects ₹ 45,36,000.00
Add Actual Medical Expenses (+) ₹ 20,98,115.00
Add Future Medical Expenses (+) ₹ 3,00,000.00
[in terms of the Judgment of Kajal (supra)]
Add Pain, suffering and loss of amenities (+) ₹ 6,00,000.00
[in terms of the Judgment of Kajal (supra)]
Add Loss of Marriage Prospects (+) ₹ 3,00,000.00
[in terms of the Judgment of Kajal (supra)]
Add Attendant Charges (+) ₹ 32,40,000.00
[in terms of the Judgment of Kajal (supra)]
Total = ₹ 1,10,74,115.00
(Rupees one crore, ten lakhs, seventy four thousand, one hundred and fifteen) only.
MAC App. No.09 of 2023 17
The Branch Manager, National Insurance Company Limited vs. Yoel Subba and Others
23. The Respondent No.1 is entitled to the compensation
supra, with simple interest @ 9% per annum on it, with effect from
the date of filing of the Claim Petition before the Learned MACT,
i.e., 12-09-2019, till its full realisation.
24. The Appellant-Insurance Company is directed to pay
the enhanced awarded compensation to the Respondent No.1
within one month from today, with interest as ordered, failing
which, it shall pay simple interest @ 12% per annum, from the
date of filing of the Claim Petition, till full realisation.
25. Amounts, if any, already paid by the Appellant-
Insurance Company to the Claimant-Respondent No.1, shall be
duly deducted from the awarded compensation.
26. The Learned MACT shall ensure that the compensation
so granted is invested by Respondent No.1 in long term interest
bearing deposits to enable him to expend it with circumspection for
his requirements.
27. Appeal dismissed.
28. No order as to costs.
29. Copy of this Judgment be sent forthwith to the Learned
MACT for information and necessary compliance, along with its
records.
( Meenakshi Madan Rai )
Judge
21-05-2024
Approved for reporting : Yes
ds/sdl