Thursday 3 March 2016

How to determine just quantum of compensation in motor accident claim petition?

All these rulings reflect principles for to assess just quantum
of compensation payable to the  victim of accident or his dependents  on
pecuniary as well as non­ pecuniary grounds.  The Motor Accident Claims
Tribunal is bound to consider binding judicial precedents cited in the light

of facts and circumstances brought on record so that just, fair and proper
compensation   is   granted   to   the   claimant   in   motor   accident   claim.
Needless to state that quantum of compensation is required to be decided
bearing  in  mind the  settled principles as well  as guidelines from  the
binding judicial precedents. The amount of compensation  ought not to be
decided on the basis of conjectures and speculations, but must be based
upon sound judicial principles and guidelines and the evidence on record
as well as material disclosed in facts and circumstances of each case
whether it is the claim based on death of victim in motor vehicle accident
case or injuries received by victim in such accident case. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 1136 of 2011
The New India Assurance Company Limited,

versus
 Pramod son of Shankarrao Bhonde, aged 
about 20 years, Occ: Student, through his
next friend­father, Shankarrao Rajaramji
Bhonde, resident of Guljaripura, Near Ved
Mangal Karlaya, Anjangaon Surji, District
Amravati (original claimant)

Coram :  A. P.  Bhangale, J
Dated  :  11th  August 2015
Citation;2016(1) ALLMR69

1. This appeal is preferred against judgment and Award dated
19th April 2011 passed by the Member, Motor Accident Claims Tribunal,
Amravati in Claim Petition No. 25 of 2005 whereby the learned Member
of the Tribunal awarded a sum of Rs. 19,20,000/­ payable to the claimant
as   compensation   inclusive   no­fault   liability   amount   awarded   under
Section 140 of the Motor Vehicles Act together with interest @ 8% per
annum from the date of claim petition till realization.  
2. Brief facts are that, claimant – an engineering student while
sitting pillion on the motor­cycle (bearing registration number MH­31­AZ­
5939)   driven   by   one   Prajwal   More   was   dashed   by     a   truck   bearing
registration number MH­31/AP­6855 coming from opposite direction. Due
to the impact, petitioner and his friend were thrown away on the road.
Claimant Pramod received grievous injuries on vital parts of his body and
was   rendered   disable   for   almost   hundred   percent   for   pursing   his
education as engineering  student in B. E. Part­II.  As a result of accident,

the   claimant   had   to   undergo   medical   treatment   for   various   grievous
injuries to his body.  These injuries were described as under :­
“I (i)   depressed fracture of anterior wall of right masillary sinus with
fracture of nasal arches on both sides.
(ii)  Fluid collection in bilateral maxillary sinus.
(iii)   Intra­cerebral haematoma measuring 1.5 cm x 1.1 cm size inleft
gangliocaspsolar region s/o shearing injury.
(iv)  Subarchnoid haemorrhagesin right Sylvain tissues.
(v)     Multiple   haemorrhagic   cortical   contusion   in   bilateral   basifrontal
region.
(vi)  Soft tissue swelling in the region of right maxilla and right parietal
region.
II. Compound fracture to the right leg. The rod is fixed from hip joint
to knee i.e. femur by making surgery.
III. Grievous injuries and multiple fractures to the frontal side, face,
nose, tooth, mandible region, throat and tongue.
IV. The petitioner sustained grievous injuries due to which he is unable
to eat or drink, a tube is fixed for providing juice to the petitioner since
the date of accident.
V. The fluid (water) is collected in the brain of the petitioner, it is
removed two times and at last a tube is fixed by making a drain in the

body from brain to lower lumber region for purposes of water collected in
brain fluid removed from tube.
VI. Two teeth of the petitioner are broken out of which one is entered
into lungs of the petitioner. The petitioner has sustained grievous injuries
to his chest, due to which his heart is disturbed and not functioning as
prior to the accident and thereby the petitioner caused 30% permanent
disability in the heart.
VII. The   petitioner   sustained   fracture   to   the   base   of   C­2   body   with
fracture fragment displaced ante body.   The fracture line extends into
right pedicle C3 and backwards involving post surface of G3 body with
mild C2­C3 subsuxation.   The uper vertebra of the vertebra column is
fractured, due  to which the  movements of  the  neck and back of the
petitioner are restricted and unable to move the neck and back, eat and
drink and thereby caused permanent disability in the neck to the extent of
30%.
VIII. In CT Scan of brain of the applicant biofrontal temporal significant
effusion seen.   Right basifrontal lobe small low attenuated area suggest
minimal non­haemorrhagic contusion.
IX. On 20.9.2004 operation performed – left fronto parietal peritoneal
shunt by surgeon Dr L. Singh.”
3. The   claimant   was   initially   admitted   in   General   Hospital,

Amravati and then he was shifted to Yadgire Superspeciality Hospital,
Amravati and underwent treatment  till 31.8.2004.  He was then shifted
to   CIMS   Hospital,   Nagpur   and   there   he   underwent   treatment   till
18.10.2004.   It was the case of appellant before the Tribunal that for
medical   treatment,   his   family   had   to   spend   Rs.   6,00,000/­.     During
treatment amount of Rs. 1,00,000/­ was spent over special diet;   Rs.
30,000/­   towards   travelling,   lodging,   boarding   and   auto­rickshaw
charges.   He claimed Rs. 2,00,000/­ on account of loss of amenities,
mental   and   physical   shock,   pain   and   sufferings   etc.;   Rs.   1,00,000/­
towards loss of education;  Rs. 1,00,000/­ towards sport activities and Rs.
45,00,000/­   towards   future   loss   of   earning.   He   claimed   total
compensation of Rs. 56,30,000/­, but it was restricted to Rs. 15,00,000/­
with   interest   @   10%   per   anum   from   the   date   of   claim   petition   till
realization of claim. 
4. It   was   the   claim   of   claimant   that   he   used   to   study   in
electronic faculty in the College of Engineering at Badnera.  He had bright
future, but due to the motor vehicle accident, he became totally bedridden
and all of his dreams were shattered as a result of multiple injuries
and fractures sustained by him.   Claimant lost his physical capacity to
such an extent that he was unable to do any work without the aid or
assistance of another person.  Thus, a dynamic and intelligent boy having

aspiration   to   become   engineer   upon   whom   his   parents   were   also
dependent for their support   during old age, but due to motor vehicle
accident, the claimant Pramod became so bed­ridden that his parents lost
their support of old age and on the contrary were made to look after  bedridden
child which was  very painful to them. 
5. Driver   as   well   as   owner   of   the   offending   motor   vehicle
(truck)   remained   absent   while   on   behalf   of   the   appellant   Insurance
Company,   Written   Statement   (exhibit   23)   was   filed.     The   Insurance
Company   denied   the   contentions   made   as   above   including   even   age,
qualification and income of the claimant and the nature of injuries and
extent   of   permanent   disability   were   all   denied.     The   claim   for
compensation was denied.   According to Insurance Company, the driver
concerned was not holding effective driving licence as on the date and
time of the accident and due to negligence of the driver of the motor­cycle
the accident had occurred.   According to the Insurance Company, the
claimant   ought   to   have   joined   insurer   of   the   motor­cycle   and   driver
Prajwal More as party to the claim petition.
6. Learned   Tribunal   recorded   finding   that   due   to   rash   and
negligent driving of the offending Truck, accident occurred on  23.7.2004
in which claimant Pramod suffered injuries resulting into his permanent

disability.   The Tribunal also held against the Insurance Company that
there was breach of policy condition.  According to the Tribunal, owner
and Insurance Company of motor­cycle were not necessary party driven
by   Prajwal   More.     Considering   the   evidence   on   record,   the   Tribunal
awarded compensation of Rs. 19,20,000/­ to the claimant, as aforesaid.
Hence, this appeal.
7. On behalf of the appellant Insurance Company, the impugned
judgment and Award is criticized as illegal and highly inflated on the
ground that claimant Pramod was non­earning person, a student and
should have been reasonable  award according to law.
8. Mr Chatterjee appearing on behalf of the appellant submitted
that there were three permanent disability certificates on record which
mentioned varying percentage of disability and the Tribunal ought to have
carefully and judiciously struck a balance to arrive at exact percentage  of
disability from   the three disability certificates varying in percentage of
disability.  At the most, the Tribunal ought could have accepted disability
certificate which mentioned 52%   as permanent disability incurred, but
wrongly adopted permanent disability of claimant as engineering student
as hundred percent which was not proved by doctor or surgeon.   The
permanent disability certificate dated 3rd  December 2007 also revealed
that claimant's condition   will improve   with passage of time and the

doctor had recommended fresh assessment of disability after five years.
Thus, there were prospects to reduce disability from 52% mentioned in it.
However, the Tribunal awarded compensation on the basis of pecuniary as
well as non­pecuniary damages  without applying its mind to the evidence
on record.  Mr Chatterjee submitted that the three disability certificates on
record were not duly proved by evidence of expert or doctor and no
opportunity was extended to the Insurance Company to cross­examine
doctors and experts.   Thus, according to him, the Tribunal committed
error   to   take   into   account   various   amounts   claimed   towards   medical
expenses and medicinal bills without being duly proved in accordance
with law.   Thus, he prayed that impugned judgment and award be set
aside as legally unsustainable.  Mr Chatterjee relied on the judgment of
the Supreme Court in  Raj Kumar v. Ajay Kumar and anr  reported in
2011 ACJ 1.
9. In the ruling of Raj Kumar v. Ajay Kumar & anr (supra), the
Apex Court observed in paragraph 12 that the Tribunal should  act with
caution, if it proposed to accept the expert evidence of doctors who did
not treat the injured but who give ‘ready to use’ disability certificates,
without proper  medical assessment.  The Apex Court expressed that there
are several instances of unscrupulous doctors who without treating the
injured, readily give liberal disability certificates to help the claimants.
However, at the same time, giving the aforesaid caution, the Honourable

Supreme Court stated thus :­
“But   where   the   disability   certificates   are   given   by   duly
constituted Medical Boards, they may be accepted subject to
evidence regarding the genuiness of such certificates.   The
Tribunal   may   invariably   make   it   a   point   to   require   the
evidence   of   the   doctor   who   treated   the   injured   or   who
assessed   the   permanent   disability.     Mere   production   of   a
disability certificate or discharge certificate will not be proof
of the extent of disability stated therein unless the doctor who
treated the claimant or who medically examined and assessed
the extent of disability of the claimant, is tendered for crossexamination
with reference to the certificate.  If the Tribunal
is not satisfied with the medical evidence produced by the
claimant, it can constitute a Medical Board (from a panel
maintained   by   it   in   consultation   with   reputed   local
hospitals/medical colleges) and   refer the claimant to such
Medical Board for assessment of the disability.”
10. According   to   Mr   Chatterjee,   the   caution   as   well   as   the
procedure mentioned in paragraph 12 ought to have been followed by
learned Member of the Tribunal before arriving at just and proper amount
of compensation. Mr Chatterjee also has grievance that in the impugned
order, learned Member  of  the  Tribunal   gave  perverse  finding   without
applying its mind to the facts and circumstances of the case.  According to
learned Tribunal, injured  Pramod was on artificial feeding and supportive
system.     To   grant   compensation   for   this   treatment   and   feeding,   the

Tribunal gave finding thus :
“For   such   treatment,   feeding   and   after   discharge   also   in
order to get recovery fast, the petitioner’s family might have
taken care to give him special diet and they might have spent
about Rs. 75,000/­.”
This finding is based upon conjunctures merely on the basis of evidence
that for initial period, Pramod was on artificial feeding and supportive
system.  Learned Member of the Tribunal continued to observe thus :
“If the nature of the injuries sustained by the petitioner is
considered and the fact that he is still bed ridden his pain and
suffering   is   beyond   imagination.   Though   it   cannot   be
compensated   in   terms   of   money   token   amount   of   Rs.
1,00,000/­ is just and proper.  It has come on record that even
after   period   of   five   years   re­assessment   of   his   physical
condition is necessary and it might be improved.  It means in
future also medical treatment is necessary for petitioner.  For
this, amount of Rs. 50,000/­ is just and proper.  Since Pramod
has   sustained   total   disability   he   has   lost   his   marriage
prospects.  On that count he is entitled to get compensation
to the tune of Rs. 1,00,000/­. For the lost of expectation of
life considering the longevity he would have lived healthy life
if hewould not have met with the accident.  He is entitled to
get Rs. 50,000/­ for loss of expectation of life.   Thus, the

petitioner is entitled to total compensation of Rs. 19,20,000/­
from the respondents 1 to 3 with interest at the rate of 8%
P.A. from the date of application till realization....”
11. These   observations   made   by   the   learned   Member   of   the
Tribunal are vehemently criticized  by learned counsel on the ground that
in   such   case   when   it   was   alleged   that   injured   had   received   medical
treatment for his permanent disability which was assessed in respect of
various injuries received by the claimant, then various percentages were
given by doctor attending the patient at different stages of his treatment.
One of the certificates mentioning permanent disability to the extent of
52% also indicated chances of improvement in respect of the claimant.
Mr Chatterjee  contended that all  these  relevant facts which could  be
deposed   by   competent     doctor   ought   to   have   been   insisted   upon   by
learned Member of the Tribunal instead of giving baseless finding for
granting   pecuniary   as   well   as   non­pecuniary   damages   on   account   of
compensation payable to the claimant by or on behalf of the insurer,
owner or driver of the offending motor vehicle.  Mr Chatterjee, therefore,
in   the   light   of   ruling   in  Raj   Kumar   v.   Ajay   Kumar   &   anr  (supra)
submitted that the proceedings in this case  ought to be remanded back to
the Tribunal in order to comply with the general principles of law in
relation to grant of compensation in injury claim cases.  Learned counsel

Mr Chatterjee made reference to observations of the Apex Court in  Raj
Kumar   ‘s  case   (supra)     and   summary   of   those   general   principle
mentioned in paragraph 19 of the ruling to argue that learned Member of
the Tribunal ought to have guided itself by the stated principles in order
to assess just and proper compensation payable to the claimant in the
present case.  According to learned counsel, if  doctor who attended the
injured­claimant is required to depose before the Tribunal, appellant  who
may be liable to pay compensation which may be awarded in such case,
must get reasonable and proper opportunity to cross­examine the doctor
concerned who gives opinion having bearing upon permanent disability.
According to learned counsel, as suggested by the Apex Court, learned
Tribunal may assess and ascertain percentage of   permanent disability
suffered by the claimant,  if necessary, by constituting a Medical Board of
doctors from the panel maintained by the Tribunal in consultation with
reputed   local   hospitals   or   medical   colleges   so   that   claimant   can   be
referred to Medical Board for assessment of percentage of permanent
disability     of   the   injured     claimant   in   order   to   grant   just,   fair   and
reasonable compensation with reference to the percentage of disability
suffered permanently by him and on account of other pecuniary and nonpecuniary
grounds stated in the claim application.
12. On the other hand, learned counsel for respondent/claimant

submitted   that various percentages of permanent disability as evident
from exhibits 52, 54 and 67 ought to be read together to ascertain exact
percentage  and on that basis, compensation must be granted.  Learned
counsel for the claimant submitted that in such motor­vehicle   accident
cases   which   are   to   be   heard   by   following   summary   procedure   and
disposed of expeditiously,  the evidence as in the case of a criminal trial is
not required, but learned tribunal having considered functional physical
disability of the claimant, various medical documents and bills on record,
rightly considered that claimant suffered permanent total disability and it
is submitted that claimant who was an engineering student of electronic
faculty   with   bright   future   prospects,   ought   to   get   fair   and   just
compensation with reference to his prospective losses in future apart from
reimbursement of actual expenses incurred by his  parents for his medical
treatment, medicine and on account of heads of  non­pecuniary damages
such as loss of marriage prospects, loss of pleasure and enjoyment in
future life, future medical treatment required so as to restore him as far as
possible back to the position in which he was, just prior to the incident of
motor­vehicle accident.  Learned counsel for claimant made reference to
the following rulings :­
(1) Chitra Chintaman Kolekar & ors v. Govt of Maharashtra & anr
reported in 2014 ACJ 1317.

(2) Darshana Ganesh Kaavaje & ors v. MSRTC & ors reported in
2014 ACJ 882.
(3) APSRTC v. Shaik Yousuf Pasha reported in 2007 (5) ALD 439.
(4) Rajesh and ors v. Rajbir Singh and ors reported in 2013 ACJ
1403.
(5) Kavita v. Deepak & ors reported in 2012 (5) All MR 914 (SC).
(6) New India Assurance Co. Ltd. v. Shweta Dilip Mehta and ors
reported in 2011 ACJ 489.
(7) The New India Assurance Co. Ltd. v. Sheikh Rizwan and ors
(delivered   by   this   Court   in   First   Appeal   No.   1501   of   2008   on     26th
September 2012).
(8) B.   Ramulamma   and   ors   v.   Venkatesh   Bus   Union   and   anr
reported in 2011 ACJ 1702.
(9) Mr   Shaikh   Farooq   Mohammad   Gaouse   v.   The   Transport
Manager reported in 2013 (3) All MR 509.
(10) HDFC Ergo v. Lalta Devi & ors reported in I (2015) ACC 927
(Del.).
13. All these rulings reflect principles for to assess just quantum
of compensation payable to the  victim of accident or his dependents  on
pecuniary as well as non­pecuniary grounds.  The Motor Accident Claims
Tribunal is bound to consider binding judicial precedents cited in the light

of facts and circumstances brought on record so that just, fair and proper
compensation   is   granted   to   the   claimant   in   motor   accident   claim.
Needless to state that quantum of compensation is required to be decided
bearing  in  mind the  settled principles as well  as guidelines from  the
binding judicial precedents. The amount of compensation  ought not to be
decided on the basis of conjectures and speculations, but must be based
upon sound judicial principles and guidelines and the evidence on record
as well as material disclosed in facts and circumstances of each case
whether it is the claim based on death of victim in motor vehicle accident
case or injuries received by victim in such accident case. 
14. Looking   to   the   Award   passed   in   the   present   case,   the
compensation awarded by learned Member of the Tribunal appears based
upon   conjectures   and   bald   speculations   and   possibility   of   claimant’s
family members that they might have  taken care  of  claimant to give
special diet, might have spent certain amount etc.  Thus,  compensation is
granted without application of mind to the evidence on record and on
imaginary ground and finding being without evidence on record, is not
sustainable.   Impugned Award is not generally based on settled legal
principles and guidelines from the judicial precedents.  Impugned Award
is partly sustainable on the ground of undisputed fact that the accident
had occurred on account of rash and negligent driving of the offending

motor   vehicle,   a   truck   bearing   registration   number   MH­31/AP­6855.
However, for decision as to quantum of compensation, I feel, when victim
had  received  serious injuries, required medical  treatment over  a long
time, his family members had to incur medical expenses over a long time
and   probability   of   medical   treatment   in   future   as   also   non­pecuniary
damages on the ground such as loss of pleasure and pain; loss of marriage
prospects etc. and loss of income in future are all probabilities which will
have to be taken into consideration while arriving at just, fair and proper
award of compensation amounts payable to the claimant in such case.
Therefore, I consider the impugned judgment and award as unsustainable
on  account of non­application  of  mind to fixation  of just and proper
quantum of compensation only.  Matter needs to be remanded for fresh
findings on issues no. 4 and 5 to enable the parties to adduce evidence as
they   may   choose   and   to   enable   the   Tribunal   to   consider   the   entire
evidence to ascertain just, fair, reasonable compensation.  
O R D E R
In the result, impugned judgment and award is maintained
on   issue   no.  1.  It  is  set  aside   as  far   as findings  on   other   issues  are
concerned proceeding  is remitted back with direction to the Tribunal to
take into consideration all the aspects like medical treatment undergone
by the claimant and also the one which would be required by him to

undergo in future; considering  nature of injuries; loss of physical ability;
exact percentage of permanent or partial disability of the victim;  loss of
prospects in life; loss of marital happiness and  loss of pleasure etc. The
Tribunal shall permit the parties to lead additional evidence, if they so
deem fit and shall arrive at just, fair and proper quantum of compensation
on the basis of evidence led on record; principles and guidelines settled
through various judicial precedents.   If any amount of compensation is
deposited by appellant with the Tribunal, the same shall be retained in the
fixed deposit, fetching maximum interest,  with any nationalized bank till
the  decision on merits in claim petition.  Investment so directed shall be
subject to final decision in the case.  Amount withdrawn by the claimants,
if any, shall be retained by them subject to final decision in the claim
petition.  Appeal is accordingly allowed and  disposed of with no order as
to costs. 
A. P.  BHANGALE, J

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