2016(6) ALL MR (JOURNAL) 50
(GUJARAT HIGH COURT)
K. J. THAKER, J.
Oriental Insurance Company Ltd. & Anr. Vs. Ramnarayan Chimanlal Madan & Ors.
First Appeal No.1861 of 1993,Cross Objection No.10 of 2003,Civil Application No.2579 of 2015,Civil Application No.1505 of 2016
22nd March, 2016.
Petitioner Counsel: Mr. RAJNI H. MEHTA
Respondent Counsel: Mrs. KETTY A. MEHTA, SERVED BY RPAD
(A) Motor Vehicles Act (1988), S.168 - Accident claim - Contributory negligence - Determination - Claimant while trying to cross road to catch his company's bus, knocked down by matador coming at excessive speed - It was curve and road being highway claimant also should have been cautious while trying to cross road - However, in absence of any evidence led by insurer, his negligence cannot be more than that of driver of matador - Negligence determined to be 10%. (Para 23)
(B) Motor Vehicles Act (1988), S.168 - Accident claim - Functional disability - Assessment - Claimant, a 27 years old Chemical Engineer, sustained serious injuries i.e. loss of memory, weakness of mind and defect in speech - He cannot perform his vocation as engineer and even after a period of 35 years unable to get a job as a Chemical Engineer - Therefore, functional disability assessed at 100%, held proper. (Paras 27, 28)
(C) Motor Vehicles Act (1988), S.168 - Compensation - Under head of pain, shock and suffering - Claimant 27 years old Chemical Engineer, sustained 100% functional disability - He was unconscious for a period of 25 days and his pain is persistent for 35 years - Looking to peculiar facts and circumstances compensation under said heads enhanced from Rs.35000/- to Rs.1,50,000/-. (Para 29)
(D) Motor Vehicles Act (1988), S.168 - Compensation - Towards mental pain, shock and suffering - Accident occurred in year 1980 - Claim petition decided in 1993 - Cross objections and appeal of insurer now decided in year 2016 - Therefore, claimant, held, entitled to amount of Rs.1,50,000/- towards mental pain. (Para 32)
(E) Motor Vehicles Act (1988), S.168 - Compensation - Rate of interest on awarded amount - Accident occurred in 1980 - Claim petition decided in year 1993 - Tribunal awarded rate of interest at 15% - Same being exorbitant in those years reduced to 9% payable from date of filing of petition till realization. 2001(2) ALL MR 246 (S.C.) Rel. on. (Paras 34, 36)
Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr., 2009(4) ALL MR 429 (S.C.)=(2009) 6 SCC 121 [Para 8,21,24,28]
Sanjay Kumar Vs. Ashok Kumar & Ors., 2014 ALL SCR 1508=2014 (5) SCC 330 [Para 9,10,24,27]
Raj Kumar Vs. Ajay Kumar & Anr., 2011(1) ALL MR 402 (S.C.)=2011(1) SCC 343 [Para 10,24,27,30]
Rekha Jain Vs. National Insurance Co. Ltd., 2013 ALL SCR 2833=III (2013) ACC 424 (SC) [Para 30]
Smt. Kaushnuma Begum & Ors. Vs. The New India Assurance Co .Ltd., 2001(2) ALL MR 246 (S.C.)=(2001) 2 SCC 9 [Para 34]
JUDGMENT :- At times when the matters come for pronouncement of the judgement, judges pass restless nights. This is one such matter the reason being a young man of 27 years who was a chemical engineer is now rendered work less and has suffered disability of a nature which was not fathomed when matter was filed before MAC Tribunal, Pune. The same was transferred to Nadia by the order of the Hon'ble Apex Court. This court while admitting the matter in 1993 directed the insurance company to pay an amount of Rs. 10000/- per month till the matter was decided. The corpus was retained by the insurance company. The matter could not be decided on technical ground due to non service of summons to some of the respondents. However, it was submitted by parties mainly insurance company when the aspect of liability was not urged and the main contention is of contributory negligence and quantum awarded. This Court felf that as 35 years had lapsed from the date of accident, this matter should now be heard and that is how after a period of 22 years of filing of the appeal, this appeal and cross-objections are taken up for final disposal.
2. A very young aged promising chemical engineer has been reduced to very very state of sad life. The accident occurred in the year 1980 and till date he is unable to work as engineer leave apart he has to undertake selling of grocessory because of the accident which occurred way back in the year 1980. We are in the year 2016 and his condition and disability as was described by Dr. Doshi in his oral deposition before tribunal continues till date. The insurance company has filed the appeal before this Court where the precarious condition of an engineer who was suffering from 1980 to 1993 when the matter was decided by the tribunal still continues. The Division Bench of this Court granted stay in Civil application No. 3472 of 1993 vide order dated 09.11.1993 on the following terms.
"When the matter i.e. F.A. No. 1861 of 1993 was admitted by this Court ( Coram: M.B. Shah & J.M. Panchal JJ.) following order was passed on this civil application.
Rule returnable on 27th September 1993. Till then the execution of the award is stayed on the condition that Applicant No.1 Insurance Company shall quantify the amount due and payable to the claimants as per the judgment and award passed by the Tribunal after calculating the interest upto 1st October 1993 orders would be passed after hearing the claimants.
We have heard the counsels extensiveness. Mr. Mehta, the learned counsel for the applicants states that the calculation has already been made by the appellant-Insurance Co. and as on September 30, 1993 as per the impugned award the amount requires to be paid to opponent no.1 claimant comes to Rs. 29,25,023/- ps. including the interest and costs on the awarded amount by the Tribunal. On the facts and in the circumstances of the case, we are of the opinion that ends of justice would be met if the following directions are issued.
1. The stay granted by this court is continued on condition that an amount of Rs. 2,92,500/- ( 10% of the calculation) paid to the claimants subject to the result of the appeal by an account payee cheque on or before December 6, 1993.
2. The Insurance Company will also pay an amount of Rs. 10,000/- ( Rupees Ten Thousand only) per month. This will be an adhoc payment every month starting from 1 s t January 1994. That payment also will be subject to the result of the appeal and the payment will be made by account payee cheque.
3. Mrs. Mehta, the learned counsel for the appellant No.1claimant strongly objected of not filing Vakalatnama of appellant no.2owner who was original opponent no.4. Mr. Mehta, the learned counsel for the applicant made a categorical statement under the instructions of the officers of the insurance Co. that appellant no.1-Insurance Co. will obtain a Vakalatnama and he will be able to obtain the same if some reasonable time is granted and he assured the court that Vakalatnama of the appellant no.2 will be filed on or before 8.12.1993. However, we grant time to file such Vakalatnama upto December 30, 1993. if such Vakalatnama of appellant no.2 is not filed, no further time will be granted and consequence will ensue and appeal will be decided as if limited defence is available to the Insurance Co. under the Act. Ii is also open to the learned counsel for the opponent no.1-claimant to take contention at the time of hearing of the appeal of nonfiling of the Vakalatnama on behalf of the appellant no.2 by appellant no.1. On the facts and in the circumstances of the case, the appeal is ordered to be posted for final hearing on January 16, 1994. The appellant Insurance Co. will supply paper book. Printing is dispensed with. The Tribunal will send record and proceedings of the case so as to reach this Court on or before November 30, 1993. Civil Application is accordingly disposed of with no order as to costs. Liberty to apply in case of difficulty".
3. A young 27 years old chemical engineer with the bright future is made to sit in the grocessory shop of his brother and his young wife is compelled to sale clothes and he has to help her. The award on quantum remains stayed on a condition that Rs. 10000/- per month was to be paid by insurance company to the litigant. The corpus awarded is with the insurance company. The said amount in the year 1993 came to about Rs. 29,25,023 (with interest).
4. The Insurance Company has not challenged the award on the ground of liability or involvement of the vehicle as the vehicle was insured with it and no other technical issues on which they can avoid their liability are raised in this appeal.
5. The main plank of submission of Insurance Company was of original applicant's negligence and certain heads under which quantum of compensation were granted. The claimant filed cross objections for enhancement of amount awarded.
7. The facts of the case in brief are that the claimant who is B.E. (Chemical) and who was serving in Garware Nylon Company Limited, Pune was trying to cross the road to catch his company's bus, at that time, he was knocked down by the Matador bearing registration No. M.H.Q. 4504 which came at excessive speed from Bombay Side. As a result of which, the claimant sustained serious injuries and permanent disability, i.e loss of memory, weakness of mind and defect in speech. He was remained unconscious for 25 days in Rubi Hospital at Pune for treatment. Since the accident took place in Pune, the claimant preferred Claim petition before the Motor Accident Claims Tribunal in Pune which was registered as M.A.C. Petition No. 104 of 1980. The same was dismissed and therefore, the claimant filed the restoration application. During the pendency of the restoration application, the claimant filed Transfer Petition No. 153 of 1986 in the Hon'ble Supreme Court. The Hon'ble Supreme Court allowed the same petition and directed the Pune Tribunal to restore the petition to the file and thereafter transfer the petition to M.A.C. Tribunal, Kheda District at Nadiad. Accordingly, the restoration application was granted and the petition was transferred to MACT Tribunal (Main) at Nadiad and it was numbered as M.A.C. Petition No. 713 of 1988 the same was restored by the Pune Tribunal. After the matter is transferred, the claimant enhanced the claim from Rs. 71,842/- to Rs. 1700000/- wherein the Tribunal has passed the award as stated hereinabove.
8. Mr. Mehta, learned advocate for insurance company placed reliance on the decision of the Apex Court in case of Sarla Verma (Smt) and others versus Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121 : [2009(4) ALL MR 429 (S.C.)] to contend that quantum granted is not in consonance with the said decision and it is submitted by Mr. Mehta, learned advocate for the Insurance Company that this is the law which this Court will have to follow in 2016.
9. A chemical engineer who was doing job and who was salaried person rendered work less because of the accident and therefore the later decision of the Apex Court in case of Sanjay Kumar versus Ashok Kumar in 2014 (5) SCC 330 : [2014 ALL SCR 1508] will have to be looked into on factual scenario as it emerges in the case of Sanjay Kumar versus Ashok Kumar and another reported in (2014) 5 SCC 330 : [2014 ALL SCR 1508] was that claimant was an embroiderer. Here in the present case, we have chemical engineer whose condition is found more precarious than the embroidere and is held to the suffering 100% functional disability.
10. I personally feel that the principles enunciated in case of Sanjay Kumar versus Ashok Kumar and another reported in (2014) 5 SCC 330 : [2014 ALL SCR 1508] and the decision in case of Raj Kumar versus Ajay Kumar and Another - 2011(1) SCC 343 : [2011(1) ALL MR 402 (S.C.)] will have to be borne in mind. The Tribunal has awarded amount as total Rs. 9,76,130/- .
Rs. 101640/- = Loss of income Rs,. 85,090/- = The claimant & five persons stayed at Dehradun for 45 days incurred expenses Rs. 7,23,870/- = future loss of income Rs. 35000/- = For pain, shock and suffering Rs. 20,000/- = For medical treatment Rs. 19600/- = For actual loss of income Rs. 43500/- = Towards transportation
11. The facts are as follows  that there is no dispute that accident took place,  there is no dispute that there is involvement of the vehicle , there is no dispute that the insurance company is liable  that the insurance company is here before this Court on two counts one that the claimant himself was 100 % negligent and himself was tort feasor and or was more negligent so he is not entitled to any compensation and in alternative the quantum awarded to the claimant and the interest are on higherside.
12. The claimant has preferred cross objections which are numbered as Cross Objections No. 10 of 2003 meanwhile, the owner of the matador and his heirs were brought on record by way of Civil Application No. 6912 of 2003.
13. The Civil Application for stay was preferred by the insurance company and was granted as narrated earlier. The oriental insurance company filed Civil Application No. 1505 of 2016 wherein on 24.02.2016 the following order was passed.
1. This application may be heard along with First Appeal No.1861 of 1993. It is made clear that the driver has already been served in the First Appeal itself, though it appears that it has not been effected service of rule in the cross-objection, as the cross-objections are part of First Appeal. Still however, one more chance is required to be given to learned Advocate, who has filed cross-objections, to serve the unserved respondents in cross-objections. For service, the mode in which the cross-objectors want to serve the respondents shall serve them. This appeal by any means shall not be protracted for this reason only, once the Insurance Company has already paid to the extent of Rs.29 lakhs against the award of Rs.9 lakhs. Therefore, this application is ordered to be heard along with main matter i.e. First Appeal No.1861 of 1993.
2. Learned Advocate Ms. Ketty Mehta shall take steps to serve the unserved Respondents through registered AD Post within a period of 20 days, failing which, this appeal shall be listed for final hearing as the Respondent no.2, who is driver of the vehicle has already been served in the First Appeal. As a last change, list this matter on 21st March, 2016.
14. The insurance company in the year 2015 that is after period of 12 years preferred Civil Application No. 2579 of 2015 for additional evidence on which the following order came to be passed on 27.02.2015.
"This is an application for additional evidence and it shall be taken into consideration along with the main arguments. Since the matter is very old, it is ordered to be listed for final arguments on 20.04.2015."
16. According to Mr. Mehta, learned advocate it was a broad day light, The claimant, according to his own testimony was trying to cross the road without observing traffic rules and he suddenly ran, across on the highway which was 30 feet broad so as to catch his company's bus which was to stop at Atlas company bus stand and that is how he collided with the matador and the accident occurred. The Driver of the matador had filed written statement which was exhibited at Exh. 25 on the basis of the same Mr. Mehta, learned advocate has vehemently submitted that the accident occurred due to sole and sole negligence of the claimant and no negligence can be attributed to the driver of the matador, as the road was divided into two parts. The width of western side portion was 19 feet while eastern part was 14 feet. It is submitted by Mr. Mehta, learned advocate that panchnama was exhibited without any person being examined.
17. It is submitted that the claimant himself was totally negligent. He has taken this court through the observations made in Bingham's Motor Claims Cases of JA Taylor and has submitted and has relied on extract of page 120 and 121 relating to the accident on curves on the highway. However his alternative submission is that if the driver of the matador is still considered to be negligent, his negligence was much less than that attributed by the tribunal.
18. He further submitted that looking to the evidence of Dr. Balakrishan Desai who was examined at Exh. 80, has certified that the claimant's disability is at 50% and therefore, in view of the clear medical evidence, the Tribunal erred in taking 100% disability and aforesaid finding is not supported by cogent and convincing reasons. He further submitted that the claimant was partner in his brother's business from 03.11.1986 to 01.04.1992 when partnership was dissolved and thereafter the claimant helped his wife Kavitaben in the cloth business in Santram Super Market Therefore, in this fact situation, awarding amount on the basis that the claimant is 100% disabled to earn any amount is unjustified. The reliance is placed on the recent judgememt of the Hon'ble Division Bench rendered in First Appeal No. 501 of 2010 on 10.07.2015.
I. The claimant initially assessed his claim at Rs.71,842.80. By the amendment application for enhancing the claim from Rs.71,842.80 to Rs.17,00,000/- has been granted.
II. That there is no cogent and convincing evidence that the claimant took treatment for 7 years and was not doing any work. Therefore, the award for Rs.1,01,640/- for actual loss of income is totally unjustified particularly in view of the fact that Tribunal already gave multiplier of 17 for future economic loss.
III. The Tribunal erred in taking monthly economical loss at Rs.3600/- per month and yearly loss at Rs.43,200/- and applying multiplier of 17 and awarding Rs.7,34,400/- for future economic loss as accident happened on 02.02.1980. Therefore, the award of Rs.7,34,000/- under the future economic loss is totally unjustified so that the Tribunal award Rs.1,01,640 for actual loss for 7 years.
IV. The Tribunal's award of Rs.43,590/- for transportation charges, special diet and incidental expenses is not proper and justified.
V. The Tribunal's award of Rs.85,090/- for the claimant and five persons stay as Dehradun for 45 days and incurring expenses is not proper and justified.
VI. The Tribunal's award of Rs.20000/- for future medical treatment is not justified without prejudice to foregoing contention no interest can be awarded on future medical treatment. The award is grossly exaggerated.
VII. As per the Hon'ble Supreme Court's judgement in the case of Sarla Verma and others versus Delhi Transport Corporation and another reported in (2009) 6 SCC 121 : [2009(4) ALL MR 429 (S.C.)], the award may be quantified.
VIII. Two doctors have assessed disability of the claimant as 50% only. Therefore, quantification on award is required to be reduced to 50%. without prejudice to the above mentioned contention that the claimant was solely negligent. In any even, the over all award is required to be further reduced.
IX. As per judgement of the Hon'ble Supreme Court the claimant's yearly salary of Rs.17040 there may be 50% addition that is Rs.8520/- The total yearly income is to be taken at Rs.25,560/- as the claimant was 27 years of age multiplier applicable would be 17. The award would be Rs.4,34,520/- instead of Rs.8,25,510/- (Rs.1,01, 640/- + Rs.7,23,970/- items nos. (I) and (iv) on page 3 hereinabove.
X. If all other heads are added the award would come to Rs. 618200/- instead of Rs.976130/-
XI. As per the order of the Hon'ble Division Bench's order on Civil Application No. 3472 of 1992 Rs. 2,92,000/- are given to the claimant. Therefore, net award required to be paid to the claimant would be Rs.3, 28,000/- (Rs. 6,18,200/- less Rs.2,92,000/-). in interest of Rs.3,28,000/- at 15 % would be Rs.49000 per annum that is per month Rs.41000. instead the insurance company has paid Rs.10000/- per month Thereafter the insurance company is entitled to refund of Rs.5900/- per month from the claimant with interest. Assuming without admitting that the claimant is 100% disabled as claimed and assuming without admitting that the claimant was not negligent in crossing the Bombay-Pune highway.
XII. The award of interest at 15% is grossly very high and it may be awarded at the rate of 7.5%.
20. As against this Mrs.Ketty Mehta, learned advocate appearing for the original claimant in cross objection No. 10 of 2003 has submitted that if cross examination is seen, there is no question asked to the applicant regarding the claimant being a tort feasor. She has submitted that the tort feasor driver has not stepped into the witness box neither has insurance company felt it necessary to examine him and they had not argued the question of negligence. The insurance company would not have personal knowledge. The evidence of the claimant which is at Exh. 33 according to her, nowhere there is any cross-examination as to the negligence of the claimant.
21. She further submitted that the amount granted under pain, shock and suffering and multiplier is much on lower side. According to her, multiplier is also on the lower side. Looking to his young age and schedule as submitted that even according to decision holding field 1993, 22 multiplier should be applied. I do not accept the said submission as even according to decision of the Apex Court in case of Sarla Verma (Smt) and others versus Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121 : [2009(4) ALL MR 429 (S.C.)], multiplier would be 18 as the claimant is aged about 27 years at the time of accident and therefore, the multiplier for age group of 26 to 39 were 17 even as per Susamma Thomas, Trilok Chandra followed in Charlie it was under the second schedule that multiplier of 18 was given. On the contrary, she has submitted that multiplier should be 22. However, such submission was not pressed in light of settled legal position that maximum multiplier would be 18.
12.0 In this case, the panchnama is produced at Exh. 124. it is evident from the panchnama Exh. 124 that the width of the road on which the accident occurred, is 33' feet. It appears that the road is divided into two parts; the width of western side portion of the road is 19', while the width of the eastern side portion of the road is 14'. Further 70' long brake marks were found on the road. The brake marks were seen in the curve portion of the road. This clearly establishes that there was curve at some distance away from the place of the accident. Seventy feet long brake marks are seen on the road, this clearly indicates that the Matador was coming at high speed and the driver tried to stop the vehicle by applying the brakes. This establishes that the matador was coming at excessive speed. Further it is also evident that there was curve on the road at distance ahead from the place of the accident. Further it is an admitted position that the accident occurred near Atlas Company Bus Stop. So admittedly the Atlas Company Bus stop was there. Further there was a curve ahead at distance from the place of the accident and therefore, in these circumstances, the driver was expected to slow down his vehicle when he was approaching the bus-stand and a curve portion of the road. However it appears from the panchnama that the offending vehicle was coming at excessive speed. According to the applicant, he is not in a position to say as to how the accident occurred. Even then the details of the panchnama clearly indicate that the accident occurred due to the negligence of the driver of the offending vehicle. Further in this case, the driver of the offending vehicle has not stepped in the witness box to depose as to how the accident occurred. In these circumstances, considering the facts of this particular case and particularly the fact that the memory power of the applicant is substantially reduced due to the head injury, I am fo the opinion, that it should be held that the driver of the offending vehicle was negligent and the accident occurred due to his rash and negligent driving.
23. Going through the evidence and the finding of fact it is an admitted position that there was a curve where the accident occurred. The claimant should have been also cautious while crossing the road which is a highway. I am unable to subscribe to the submission made by Mrs. Mehta that no question or the question of negligence was raised before the tribunal. Looking to the factual scenario being highway the claimant also should have cautious while trying to cross the road. His negligence in absence of any evidence led by insurance company cant be more than that of the driver of matador and therefore, his negligence can be said to be 10% in contributing to the accident as it was curve and the claimant should have seen that the matador is coming but the way he was running fast from his depot It goes without saying that he was slightly careless to the tune of 10%.
24. This takes this Court to question of quantum. The principles enunciated in case of Sanjay Kumar versus Ashok Kumar and another reported in (2014) 5 SCC 330 : [2014 ALL SCR 1508] and Raj Kumar versus Ajay Kumar and Another - 2011(1) SCC 343 : [2011(1) ALL MR 402 (S.C.)] and Sarla Verma (Smt) and others versus Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121 : [2009(4) ALL MR 429 (S.C.)], will have to be borne in mind.
25. Mr. Mehta, learned advocate appearing for the appellant-Insurance Company has tried to distinguish these judgements and has submitted that mainly that the claimant cannot be said to have incurred 100% disability as he got married in the year 1987 and is able to do his day to day routine work.
26. I have considered the submission of Mr. Mehta, learned advocate appearing for the insurance company that after this accident, the claimant had got married. However, marriage would not be reducing his functional disability because as an engineer even for 35 years, he is not even able to procure the vocation for which he was trained.
27. Paragraph 11 of the decision in case of Sanjay Kumar versus Ashok Kumar, [2014 ALL SCR 1508] (supra) is perused which reiterates the principles enunciated in case of Rajkumar Versus Ajay Kumar, [2011(1) ALL MR 402 (S.C.)] finding in para 13 of the said judgement would be more important. In this case, it is an admitted position of fact and as per the evidence of Dr. Doshi and the claimant, he can not perform his vocation as engineer and even after a period of 35 years, he is unable to get a job as a chemical engineer. Therefore, on the touchstone of the aforesaid decisions, the finding of fact of the Tribunal more particularly in paragraph 22 of the judgement and award of the learned Tribunal which shows that he had and the learned Tribunal relied on the decision reported in 1992 ACJ page 484 and therefore, the finding of fact in paragraph 22 and 23 cannot be said be bad. Paragraph 22 reproduced hereinbelow:
"22. The applicant was serving as Chemical Engineer. It has come in evidence that after the accident, in may companies be appeared for interview, but he could not be selected as his memory power etc. were affected. It appears from what is stated above, the memory power is affected, his speech is also affected and consequently he lost his job of shift engineer. Further subsequently he could not get the suitable job. The percentage of disability qua the body cannot eb accepted as disability qua the person's earning capacity (1992 A.C.J. Page 484)
28. Hence I concur with the learned Tribunal that the claimant had sustained 100% functional disability. This takes this Court to the quantum. It is submitted by Mr. Mehta, learned advocate appearing for the insurance company that at the time of accident the claimant was earning Rs. 1210/- per month. As per the decision in case of Sarla Verma (Smt) and others versus Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121 : [2009(4) ALL MR 429 (S.C.)], 50 % could be added to the income of Rs. 6000/- as held by the learned Tribunal is bad. However, the learned Tribunal has accepted income of Rs. 3600/- per month as per the finding of fact in paragraph 25, because the colleagues of the claimant even in the year 1980 and thereafter were earning Rs. 6000/- per month as per the evidence of one Kaushik Pravinchandra Mehta. The multiplier would be not 17 but 18 and therefore, the income can be considered even as per Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, [2009(4) ALL MR 429 (S.C.)] (Supra) Rs. 3600 per month. Considering his future prospects also, the claimant would be entitled to Rs. 777600/- (Rs.3600X12x18). It goes without saying that the amount of medical treatment given of Rs. 20000/- requires to be enhanced and the same is enhanced to Rs. 30000/- as he still requires medicines and care. An amount of Rs. 85090/- towards the expenses for staying at Dehradun for 45 days by the claimant and five persons cannot be granted and the same is quashed. The amount under the head of actual loss could not have been awarded as multiplier of 17 was granted by the learned Tribunal and amount was quantified as Rs. 3600/- per month.
29. The claimant was unconscious for a period of 25 days and his pain is persistent for 35 years. He has sustained disability and the Tribunal has given only Rs. 35000 under the head of pain, shock and suffering which is enhanced to Rs. 150000/- ( Rupees One Lac Fifty Thousand only) looking to the peculiar facts and circumstances of the case and the recent trend of the Apex Court.
30. I am in agreement with the submission of Mrs. Mehta, learned advocate appearing for the claimant that this is a case of young person who has sustained serious injuries . She has heavily relied on the following decisions of the Apex Court in case of Rajkumar versus Ajay Kumar and another reported in (2011) SCC 343 : [2011(1) ALL MR 402 (S.C.)] and in case of Rekha Jain versus National Insurance Co. Ltd.III (2013) ACC 424 (SC) : [2013 ALL SCR 2833] and has submitted that crossobjections are required to be allowed and the compensation is required to be enhanced. She has further submitted that the submission of Mr. Mehta, learned advocate that they have paid Rs. 29,00,000/- cannot be countenance as it was not because of the claimant that the matter could not be proceeded with. The entire amount awarded by the Tribunal and major portion of it remained stayed and the money are with the insurance company. Rs, 2,92,500/- ( 10% of 29,25,000) was being paid to the claimant in the year 1993. The said amount would have got interest which would be much more than the amount of Rs. 10000/- per month paid by the insurance company for these years to the claimant. The amount in the year 1993 worked out to Rs. 29,000/- as per the calculation of Insurance Company.
31. The submission of Mr. Mehta, learned advocate appearing for the insurance company that by virtue of the interim order of this court, the insurance company has been paying Rs. 10000/- per month to the claimant. This court while passing order for disbursement of Rs. 10000/- per month to the claimant in the year 1993 was aware of the fact that his initial pay in the year 1980 was Rs. 1200/- despite that, this Court while granting the stay directed the insurance company to pay a sum of Rs. 10000/- per month to the claimant as looking to the total amount awarded the claimant would have been earned atleast Rs. 1000/- had he not have met with the accident this court granted that amount, however it was be made subject to the result of the appeal.
32. This takes this Court to head of mental pain, shock and suffering. It is an admitted position of fact that the accident occurred in the year 1980. His claim petition came to be decided in the year 1993 as cross objections and the appeal of the insurance company is now decided in the year 2016 and therefore, the claimant would be entitled to an amount of Rs. 1,50,000/- (Rupees One Lac Fifty Thousand only) as held in catena of decision of the Hon'ble Apex Court his trauma still continues.
34. The submission of Mr. Mehta that the rate of interest @ 15% granted was exorbitant in those years and the rate of interest could not have acceded even if liberal view was possible. Mr. Mehta, learned advocate for the insurance company submits that the rate of interest of 15% could not have been more than @ 9%. I agree with this submission in view of the decision in case of Smt. Kaushnuma Begum And Ors vs The New India Assurance Co .Ltd. reported in (2001) 2 SCC 9 : [2001(2) ALL MR 246 (S.C.)].
35. This takes this Court to the final analysis. The fact that this High Court while admitting the appeal held that the amount of Rs. 10,000/- would be subject to the result of the appeal but if we consider the quantum it was the corpus at the time of filing of the appeal was to the tune of more than Rs. 29,00,000/- out of which 10% was disbursed. Therefore, Rs.27,00,000/- and odd amount remained with the insurance company. Therefore, it goes without saying that the amount will have to be adjusted and the dictum figure is now different which is as per the calculation made below and the rate of interest would be 9%.
36. The appeal of the insurance company as well as the cross objections of the claimant are partly allowed. The appellant company is liable to pay an amount of Rs.777600/- (Rs. 3600X12x18) under the head of future economic loss, Rs.150000/- under head of pain, shock and suffering, Rs. 30000/- under the head of medical treatment, Rs.43,590/- towards Transportation charges, special diet, attendant charges and incidental expenses, Rs. 1,01,640/- towards the loss of income. The claimants are not entitled for Rs. 85090/- for staying at Dehradun for 45 days incurred expenses. Hence, the appellant insurance is liable to pay total amount of compensation of Rs.1102830/- [Rs.777600+ Rs.150000+ Rs.30000+ Rs.101640/- + Rs.43590/-]. Since there is 10% negligence on the part of the claimant, 10% of total compensation of Rs.1102830/- would be deducted and the amount would come Rs.992547/- [Rs.1102830/- Rs.110283]. The rate of interest on the awarded amount would be 9% from the date of filing of the petition till realization. The award stands modified accordingly. The insurance company shall work out on the difference of the amount to be paid to the claimant within a period of four weeks from today.