# Dharmendra Kumar v. United India Insurance Co. Ltd. & Ors

- **Citation:** (2022) 5 ILRA 876
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-29
- **Case number:** First Appeal From Order No. 4228 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-v-united-india-insurance-co-ltd-ors-48600
- **Pages:** 7

## Headnote

A. Civil Law -Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Injury case -
Disability certificate issued on 20.11.2009
granted by Community Health Centre,
Chandausi, District Moradabad showing
disability to the tune of 45%. - second
disability certificate issued on 16.02.2010
issued
after
conducting
medical
examination by a panel of doctors, signed
and issued by Chief Medical Officer,
Moradabad certifying disability of 45% of
body as a whole which is same as shown
in certificate issued earlier by Community
Health
Centre,
Chandausi
-
tribunal
discarded
certificate
of
permanent
disability on the ground that it is not
signed by three doctors and it is not
proved by calling the concerned doctors -
Also tribunal held that there are two
disability certificates on record and it
cannot be possible to issue two medical
disability certificates - Held - it is not the
requirement
of
law
that
disability
certificate should be proved by calling the
Doctors issuing it or doctors on the board
- disability certificate requires no oral
testimony - merely on the ground that two
certificates are issued, it cannot be said
that these certificates are fake in absence
of any evidence (Para 15 , 16, 17 )
B. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Injury case -
Chief Medical Officer, certified disability of
45% of body as a whole - Court assessed
functional disability of appellant to the
tune
of
25%
for
the
purpose
of
computation of compensation, 25% for
permanent disability - court hold the
income of the claimant at Rs.5,000/- p.m.
because he was a mason - At the time of
accident, the claimant was below 40
years of age, hence, 30% of the income be
added for future loss of income - claimant
was of 28 years of age, hence multiplier of
17 would be applicable - Rs.50,000 for
pain and suffering - Amount under other
non pecuniary head Rs 50,000
- -
Insurance Company directed to deposit
the amount along with additional amount
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount
is
deposited
-
amount
be
transmitted in the Saving Account of
claimant in Nationalized Bank which
would be furnished by claimant without
F.D.R (Para 19, 21, 24)
Allowed. (E-5)

List of Cases cited:

## Text

876 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)05ILR A876
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 4228 of 2012

Dharmendra Kumar ...Appellant
Versus
United India Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Krishna Kumar Singh, Sri Mohd. Asim
Zulfiquar

Counsel for the Respondents:
Sri Rajeev Ojha

A. Civil Law -Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Injury case -
Disability certificate issued on 20.11.2009
granted by Community Health Centre,
Chandausi, District Moradabad showing
disability to the tune of 45%. - second
disability certificate issued on 16.02.2010
issued
after
conducting
medical
examination by a panel of doctors, signed
and issued by Chief Medical Officer,
Moradabad certifying disability of 45% of
body as a whole which is same as shown
in certificate issued earlier by Community
Health
Centre,
Chandausi
-
tribunal
discarded
certificate
of
permanent
disability on the ground that it is not
signed by three doctors and it is not
proved by calling the concerned doctors -
Also tribunal held that there are two
disability certificates on record and it
cannot be possible to issue two medical
disability certificates - Held - it is not the
requirement
of
law
that
disability
certificate should be proved by calling the
Doctors issuing it or doctors on the board
- disability certificate requires no oral
testimony - merely on the ground that two
certificates are issued, it cannot be said
that these certificates are fake in absence
of any evidence (Para 15 , 16, 17 )
B. Civil Law - Motor Vehicles Act, 1988 -
Section 168 - Motor Accident claim -
Quantum of Compensation - Injury case -
Chief Medical Officer, certified disability of
45% of body as a whole - Court assessed
functional disability of appellant to the
tune
of
25%
for
the
purpose
of
computation of compensation, 25% for
permanent disability - court hold the
income of the claimant at Rs.5,000/- p.m.
because he was a mason - At the time of
accident, the claimant was below 40
years of age, hence, 30% of the income be
added for future loss of income - claimant
was of 28 years of age, hence multiplier of
17 would be applicable - Rs.50,000 for
pain and suffering - Amount under other
non pecuniary head Rs 50,000
- -
Insurance Company directed to deposit
the amount along with additional amount
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount
is
deposited
-
amount
be
transmitted in the Saving Account of
claimant in Nationalized Bank which
would be furnished by claimant without
F.D.R (Para 19, 21, 24)
Allowed. (E-5)

List of Cases cited:

1. Kajal Vs Jagdish Chand 2020 (0) AIJEL-SC
65725

2. Philips Vs Western Railway Co. (1874) 4QBD
406

3. H. West & Son Ltd. Vs Shephard 1963 2 WLR
1359

4. Rajkumar Vs Ajay Kumar ors. (2011) 1 SCC
343

5. K. Suresh Vs New India Assurance Company
Ltd. & ors., (2012) 12 SCC 274
5 All. Dharmendra Kumar Vs. United India Insurance Co. Ltd. & Ors.
877
6. National Insurance Company Limited Vs
Lavkush & anr., 2018 (1) T.A.C. 431

7. Dasharath Vs Alok Kumar Dubey & ors.,
F.A.F.O. No.233 of 2006

8. S. Kumar (dead) Vs United India AIR 2019 SC
3235 in the case of

9. Vimla Devi & ors. Vs National Insurance Co.
Ltd. & anr., (2019) 2 SCC 186

10. Anita Sharma Vs New India Assurance Co.
Ltd. (2021), 1 SCC 171

11. Vimal Kanwar & ors. Vs. Kishore Dan & ors.,
AIR 2013 SC 3830

12. National 7 Insurance Co. Ltd. Vs Mannat
Johal & ors., 2019 (2) T.A.C. 705 (S.C.)

13. A.V. Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442

(Delivered by Hon'ble Ajai Tyagi, J.)

1. Heard Mohd. Asim Zulfiquar,
learned counsel for the appellant; Shri
Rajeev Ojha, learned counsel for the
Insurance Company - respondents; and
perused the record.

2. This appeal, at the behest of the
claimants, challenges the judgment and
order dated 05.09.2012 passed by Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No.9, Moradabad
(hereinafter referred to as 'Tribunal') in
Motor Accident Claim Petition No.222 of
2009 awarding a sum of Rs.62,624/- with
interest at the rate of 6% p.a. as
compensation.

3. The brief facts as culled out from
the record are that this claim petition is
filed
by
the
appellant/claimant
for
seeking
compensation
for
injuries
sustained by him in a road accident.
Averments in claim petition are that on
28.9.2008 at 08.00 a.m., appellant was
going from his Village Mundhapandey to
Moradabad for the work of mason. When
he alighted from the bus at Gulababadi, a
Motorcycle bearing No.UP 21 G 7562
came from behind which was being
driven rashly and negligently by its driver
and hit the appellant. Appellant sustained
serious injuries and he was admitted in
District Hospital. Next day, he was
shifted to Shreya Hospital, Moradabad.
The appellant regained consciousness
after 12 days. It is also averred in petition
that the appellant sustained serious head
injury due to which he became incapable
for feeding his family. Respondents filed
their respective written statements and
opposed the facts mentioned in claim
petition.

4. The accident is not in dispute, the
liability of owner/insurance company to
pay
the
compensation
is
also
not
disputed.
The
finding
regarding
negligence has attained finality. So now it
is
the
dispute
of
quantum
of
compensation which is left to be decided
in this appeal.

5. Learned counsel for the appellant
submitted that learned tribunal has awarded
compensation regarding some of the
medical bills only. It is also submitted that
due to the accident, the appellant sustained
serious head injury for which grafting was
done on his head and face due to which he
was medically declared as 45% disabled.
His face and head were also disfigured, but
learned tribunal has not considered the
disability and did not award even a single
penny for disablement. It is next submitted
that learned tribunal has also not awarded
any sum for future loss of income because
due to injuries sustained in accident, the
878 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant is not able to work as before. It is
further submitted that even the learned
tribunal has not awarded any sum for pain
and suffering.

6. Learned counsel for Insurance
Company
vehemently
objected
the
submissions made by appellant and further
submitted
that
learned
tribunal
has
considered each and every aspect while
awarding compensation and has awarded
just compensation. Hence, the impugned
judgment does not call for any interference
by this Court.

7. We have perused the record and
impugned judgment and find that learned
tribunal has not followed the contours of
just compensation in this matter.

8.

Before
computation
of
compensation, it is worth mentioning that
the principles regarding the determination
of just compensation, contemplated under
the Motor Vehicle Act, 1988 (hereinafter
referred to as ''MV Act') are well settled.
Injuries caused deprivation to the body,
which entitles the claimant to claim
damages. It is impossible to compensate
human sufferings and personal deprivation
with money. However, this is what the MV
Act enjoins upon the courts to do. The
Court has to make a judicious attempt to
award damages so that the claimant or the
victim may be compensated for the loss
suffered by him. The damages may vary
according to the gravity of the injuries
sustained by the claimant in an accident.
On account of injury, the claimant may
suffer consequential loss such as loss of
earnings as well as future earnings, medical
expenditure, special diet and attendant
charges etc. Victim may suffer nonpecuniary damages also in the form of loss
of pleasure of life by particular limb of the
body. In this way, damages can be
pecuniary as well as non-pecuniary. The
Court/Tribunal should keep in mind that
compensation
awarded
must
be
just
compensation
because
the
damages
assessed for personal injuries should be
substantial to compensate the injured for
the deprivation suffered by him throughout
his life.

9. In Kajal Vs. Jagdish Chand
reported in 2020 (0) AIJEL-SC 65725, the
Apex
Court
has
quoted
pertinent
observations from a very old case Philips
Vs. Western Railway Company (1874)
4QBD 406 as under:

"You cannot put the plaintiff back
again into his original position, but you
must bring your reasonable common sense
to bear, and you must always recollect that
this is the only occasion on which
compensation can be given. The plaintiff
can never sue again for it. You have,
therefore, now to give him compensation
once and for all. He has done no wrong, he
has suffered a wrong at the hands of the
defendants and you must take care to give
him full fair compensation for that which
he has suffered." Besides, the Tribunals
should always remember that the measures
of damages in all these cases "should be
such as to enable even a tortfeasor to say
that he had amply atoned for his
misadventure."

10. The Apex Court has further
quoted pertinent observations from case
titled H. West & Son Ltd. v. Shephard 1963
2 WLR 1359 as under:

"Money may be awarded so that
something tangible may be procured to
replace something else of the like nature
which has been destroyed or lost. But
5 All. Dharmendra Kumar Vs. United India Insurance Co. Ltd. & Ors.
879
money cannot renew a physical frame that
has been battered and shattered. All that
Judges and courts can do is to award sums
which
must
be
regarded
as
giving
reasonable compensation. In the process
there must be the endeavour to secure some
uniformity in the general method of
approach. By common assent awards must
be reasonable and must be assessed with
moderation. Furthermore, it is eminently
desirable
that
so
far
as
possible
comparable
injuries
should
be
compensated by comparable awards.

In the same case Lord Devlin
observed that the proper approach to the
problem was to adopt a test as to what
contemporary society would deem to be a
fair sum, such as would allow the
wrongdoer to "hold up his head among his
neighbours and say with their approval
that he has done the fair thing", which
should be kept in mind by the court in
determining compensation in personal
injury cases."

11. Section 168 of MV Act stipulates
that there should be grant of just
compensation. Thus, it becomes challenge
for a Court of law to determine just
compensation which should not be bonanza
for the claimant/victim and at the same
time it should not be too meagre. The Apex
Court in Rajkumar Vs Ajay Kumar and
others (2011) 1 SCC 343 has laid down the
heads under which compensation is to be
awarded for personal injuries which is as
follows:

"Pecuniary
damages
(Special
damages)

(i) Expenses relating to treatment,
hospitalization, medicines, transportation,
nourishing
food,
and
miscellaneous
expenditure.

(ii) Loss of earnings (and other
gains) which the injured would have made
had he not been injured, comprising:

(a) Loss of earning during the
period of treatment;

(b) Loss of future earnings on
account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General
damages)

(iv) Damages for pain, suffering
and trauma as a consequence of the
injuries.

(v) Loss of amenities (and/or loss
of prospects of marriage).

(vi) Loss of expectation of life
(shortening of normal longevity).

In routine personal injury cases,
compensation will be awarded only under
heads (i), (ii) (a) and (iv). It is only in
serious cases of injury, where there is
specific medical evidence corroborating the
evidence
of
the
claimant,
that
compensation will be granted under any of
the heads (ii)(b), (iii), (v) and (vi) relating
to loss of future earnings on account of
permanent
disability,
future
medical
expenses, loss of amenities (and/or loss of
prospects
of
marriage)
and
loss
of
expectation of life.

12. In K. Suresh v. New India
Assurance Company Ltd. and Ors.,
880 INDIAN LAW REPORTS ALLAHABAD SERIES
(2012) 12 SCC 274, Hon'ble the Apex
Court has held as follows :

"2...There
cannot
be
actual
compensation for anguish of the heart or
for
mental
tribulations.
The
quintessentiality lies in the pragmatic
computation of the loss sustained which
has to be in the realm of realistic
approximation. Therefore, Section 168 of
the Motor Vehicles Act, 1988 (for brevity
the Act) stipulates that there should be
grant of just compensation. Thus, it
becomes a challenge for a court of law to
determine just compensation which is
neither a bonanza nor a windfall, and
simultaneously, should not be a pittance."

13. We have perusal the Judgement of
Division bench of this Court in the case of
National Insurance Company Limited
Vs. Lavkush and another, 2018 (1)
T.A.C. 431, in which the concept of just
compensation is discussed elaborately.

14. We now proceed to assess the
compensation to be granted to appellant.

15. There is no doubt that the
appellant sustained serious injuries in the
accident. Learned tribunal has awarded
only Rs.62,624/- as compensation which
is
regarding
medical
bills
of
the
appellant. In this regard, learned tribunal
has mentioned in impugned judgment that
some of the bills are added twice by the
appellant. Hence, we do not disturb the
amount awarded by the tribunal for
medical bills. The learned tribunal has
discarded
certificate
of
permanent
disability on the ground that it is not
signed by three doctors and it is not
proved by calling the concerned doctors.
This is not the requirement of law that
disability certificate should be proved by
calling the Doctors issuing it or doctors
on the board.

16. We have fortified our view by
the decision in Dasharath v. Alok Kumar
Dubey and others, F.A.F.O. No.233 of
2006 where the decision of the Apex
Court has been relied and the Court has
come to the conclusion that disability
certificate requires no oral testimony and
this was based on the decision of the
Apex Court in AIR 2019 SC 3235 in the
case of S. Kumar (dead) v. United
India and Vimla Devi and others Vs.
National Insurance Company Limited
and another, (2019) 2 SCC 186

17. Learned tribunal has also lost
sight of the fact that due to head injury,
grafting was done on the head of the
appellant and disfigurement of face is also
there. In a case where such serious injuries
are sustained by the appellant, learned
tribunal has brushed aside the disability
certificate in a very casual manner. It is
worth mentioning that there is no evidence
on record that the disability certificate was
challenged
by
the
respondents
by
producing any evidence to rebut the same.
Learned tribunal has stated that there are
two disability certificates on record and it
cannot be possible to issue two medical
disability certificates, but we are not
convinced with this finding because the
record goes to show that first certificate is
granted by Community Health Centre,
Chandausi, District Moradabad showing
disability to the tune of 45%. It was issued
on 20.11.2009 and after that second
disability
certificate
was
issued
on
16.02.2010 and later disability certificate is
issued by conducting medical examination
by a panel of doctors. This certificate is
finally signed and issued by Chief Medical
Officer, Moradabad certifying disability of
5 All. Dharmendra Kumar Vs. United India Insurance Co. Ltd. & Ors.
881
45% of body as a whole which is same as
shown in certificate issued earlier by
Community Health Centre, Chandausi.
Hence, merely on the ground that two
certificates are issued, it cannot be said that
these certificates are fake in absence of any
evidence. The disability certificate shows
disability regarding speech and hearing.
The photographs annexed to the disability
certificates clearly show the disfigurement
of head/face of the appellant. Learned
tribunal has erred in ignoring the disability
certificate in this regard.

18. The judgment of the Apex Court
in Anita Sharma v. New India Assurance
Co. Ltd. (2021), 1 SCC 171 would also
apply to the facts of this case. The evidence
of the witnesses has not been accepted
which is also against the Judgment in the
case of the Apex Court in Vimla Devi and
others Vs. National Insurance Company
Limited and another, (2019) 2 SCC 186

19. Hence we assess the functional
disability of appellant to the tune of 25%
for
the
purpose
of
computation
of
compensation. We hold the income of the
appellant at Rs.5,000/- p.m. because he was
a mason. At the time of accident, the
appellant was below 40 years of age. In the
judgment of Vimal Kanwar and others v.
Kishore Dan and others, AIR 2013 SC
3830, the Hon'ble Apex Court held that it
would be reasonable to say that a person
who is self employed or is engaged on
fixed wages will also get 30% increase in
his total income for a period of time.
Hence, 30% of the income shall be added
for future loss of income. The appellant
was of 28 years of age, hence multiplier of
17 would be applicable.

20. We are shocked to note that in
spite of sustaining serious injuries by the
appellant where he remained hospitalised
for several days, learned tribunal has not
awarded any amount under the head of pain
and suffering and has not assigned any
reasons.

21. Hence, the total compensation
payable to the appellant is computed herein
below:

i. Income : Rs.5,000/- p.m., it
would be Rs.60,000/- p.a.

ii. Percentage towards future
prospects : 30% = Rs.18,000/-

iii. Total Income : Rs.60,000+
Rs.18,000/- = Rs.78,000/-

vi. Multiplier applicable : 17

v. Total loss Rs.78,000 x 17 =
Rs.13,26,000/-

vi. 25% for permanent disability:
Rs.3,31,500/-

vii. Medical bills : Rs.62,624/- (as
awarded by the tribunal)

viii. Amount under pain and
suffering : Rs.50,000/-

ix. Amount under other non
pecuniary head : 50,000/-

x.
Total
compensation
(vi+vii+viii+ix): Rs. 3,31,500 + Rs. 62,624
+ Rs. 50,000 + Rs.50,000 = Rs.4,94,124/-

22. As far as issue of rate of interest is
concerned, it should be 7.5% in view of the
latest decision of the Apex Court in
National 7 Insurance Co. Ltd. Vs. Mannat
Johal and Others, 2019 (2) T.A.C. 705
882 INDIAN LAW REPORTS ALLAHABAD SERIES
(S.C.) wherein the Apex Court has held as
under :

"13.
The
aforesaid
features
equally apply to the contentions urged on
behalf of the claimants as regards the rate
of interest. The Tribunal had awarded
interest at the rate of 12% p.a. but the same
had been too high a rate in comparison to
what is ordinarily envisaged in these
matters. The High Court, after making a
substantial enhancement in the award
amount, modified the interest component at
a reasonable rate of 7.5% p.a. and we find
no reason to allow the interest in this
matter at any rate higher than that allowed
by High Court."

23. In view of the above, the appeal is
partly allowed. Judgment and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondent-Insurance
Company shall deposit the amount along
with additional amount within a period of 12
weeks from today with interest at the rate of
7.5% from the date of filing of the claim
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited.

24. The Tribunal shall follow the
guidelines issued by the Apex Court in A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, as the purpose of
keeping compensation is to safeguard the
interest of the claimants. As 13 years have
elapsed, once the monies are deposited in
tribunal, the amount be transmitted in the
Saving Account of claimant in Nationalized
Bank which would be furnished by claimant
without F.D.R.

25. We are thankful to learned
counsels for the parties for ably assisting
this Court.

26. Record be sent back to the
tribunal below forthwith.
----------
(2022)05ILR A882
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

P.I.L. Civil No. 696 of 2022

Namaha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
In Person, Sri Manindra Mohan Pandey

Counsel for the Respondents:
Sri Manish Goel (Addl. A.G.), Sri Vineet
Pandey (C.S.C.), Sri A.K. Goyal (Addl.
C.S.C.), Sri Ashutosh Mishra

(A) Public interest litigation is a weapon -
used with great care and circumspection -
Court has to be careful in lifting the veil
and see what is the real objective behind -
Chapter XXII of the High Court Rules -
Sub-rule (3-A) of Rule 1 - petitioner in a
public interest litigation, is required to
disclose his credentials - Courts should
prima facie verify the credentials of the
petitioner before entertaining a PIL -
Right to Information Act provides for
complete
remedies
for
redressal
of
grievance
of
any
of
the
applicant
regarding
denial
or
furnishing
of
incomplete
information.
(Para
-
12,14,15,20)

Petition filed in public interest - seeking
direction to respondent No.2 - to disclose his
full and actual name in public domain and
produce all documents - for taking oath of office
and secrecy under his real name and to refrain
him from using the word 'Yogi' as title in his
official communication
-
even
failed
to