# The New India Assurance Co. Ltd v. Amit Kumar Yadav & Anr

- **Citation:** (2022) 5 ILRA 749
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** First Appeal From Order No. 1285 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-amit-kumar-yadav-anr-48584
- **Pages:** 15

## Headnote

Sri Bhola Nath Yadav, Sri A, Singh, Sri
Amish Mishra, Sri Mahendra Pratap Singh,
Sri Shiv Nath Singh, Sri Satyam Singh

A. Motor Accident Claim - Role of
Tribunal, while deciding the claim cases -
Distinction
from
other
civil
suits,
explained - The role of the Tribunal is not
a silent spectator when medical evidence
is tendered in regard to the injuries and
their effect, in particular the extent of
permanent disability - Tribunal does not
function as a neutral umpire as in a civil
suit. It is an active explorer and seeker of
truth who is required to hold an enquiry
into the claim for determining 'just
compensation'. (Para 28)

B. Civil Law - Motor Accident Act, 1988 -
Claim
-
Compensation
-
Disability
Certificate,
proof
thereof
-
No
examination of Doctor - Effect - High
Court disapproved the argument that
there is necessity to prove the disability
certificate by calling the doctor when it is
not challenged before the Tribunal. (Para
18)

C. Civil Law - Motor Accident Act, 1988 -
Claim - Compensation - Loss of amenities
- Injured was 21 years unmarried young
boy - He became disabled to the tune of
80% and that too by his legs and he is not
able to sit properly and walk - He has lost
pleasures of life because he cannot lead a
normal life after accident. It is natural
that he had bleak prospects of marriage
and family life - Held, it can be said that
the appellant has lost amenities of life to
the
great
extent,
which
cannot
be
restored at all. Therefore, he would get
Rs. 4,00,000/- for loss of amenities. The
disability of the appellant is permanent.
Under the head of pain, shock and
sufferings, he is entitled to get a sum of
Rs. 1,00,000/- - High Court re-computed
the compensation and awarded 7.5%
interest. (Para 38, 39 and 41)

D. Civil Law - Motor Accident Act, 1988 -
Section 168
- Just compensation
-
Meaning - 'Just' means- fair, reasonable
and equitable amount accepted by legal
standards - 'Just compensation' does not
mean perfect or absolute compensation. It
requires
examination
of
particular
situation obtaining uniquely in individual
case. (Para 21)

E. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
750 INDIAN LAW REPORTS ALLAHABAD SERIES
when it can be applied - Negligence
means failure to exercise care towards
others which a reasonable and prudent
person would in a circumstance or taking
action which such a reasonable person
would
not.
Negligence
can
be
both
intentional or accidental though it is
normally accidental - If the injury rather
death is caused by something owned or
controlled by the negligent party then he
is directly liable otherwise the principle of
"res ipsa loquitur" meaning thereby "the
things speak for itself" would apply. (Para
7)
F. Motor Accident Claim - Principle of
contributory negligence - Scope and
meaning
-
A
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident having taken place. (Para 8)
G. Civil Law - Income tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./owner is/are entitled to
deduct appropriate amount under the
head of 'Tax Deducted at Source' as
provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 - And if the amount of
interest does not exceeds Rs. 50,000/- in
any financial year, registry of this Tribunal
is directed to allow the claimants to
withdraw the amount without producing
the
certificate
from
the
concerned
Income- Tax Authority. (Para 44)
Appeal partly allowed (E-1)
List of Cases cited:-

## Text

_Characters 0–39,915 of 48,506. This is a partial read: ask again with offset=39915 for what follows._

5 All. The New India Assurance Co. Ltd. Vs. Amit Kumar Yadav & Ors.
749
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants.
Since long time has elapsed, the amount be
deposited in the Saving Bank Account of
claimant(s) in a nationalized Bank without
F.D.R.

35. This Court is thankful to both the
counsels for getting this matter decided.
Record
be
transmitted
to
Tribunal
forthwith.
----------
(2022)05ILR A749
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

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

First Appeal From Order No. 1285 of 2008
AND
First Appeal From Order No. 1489 of 2008

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Amit Kumar Yadav & Anr. ...Respondents

Counsel for the Appellant:
Sri Praful Sahadeva, Sri P. Bahadur, Sri
Rakesh Bhahdur

Counsel for the Respondents:
Sri Bhola Nath Yadav, Sri A, Singh, Sri
Amish Mishra, Sri Mahendra Pratap Singh,
Sri Shiv Nath Singh, Sri Satyam Singh

A. Motor Accident Claim - Role of
Tribunal, while deciding the claim cases -
Distinction
from
other
civil
suits,
explained - The role of the Tribunal is not
a silent spectator when medical evidence
is tendered in regard to the injuries and
their effect, in particular the extent of
permanent disability - Tribunal does not
function as a neutral umpire as in a civil
suit. It is an active explorer and seeker of
truth who is required to hold an enquiry
into the claim for determining 'just
compensation'. (Para 28)

B. Civil Law - Motor Accident Act, 1988 -
Claim
-
Compensation
-
Disability
Certificate,
proof
thereof
-
No
examination of Doctor - Effect - High
Court disapproved the argument that
there is necessity to prove the disability
certificate by calling the doctor when it is
not challenged before the Tribunal. (Para
18)

C. Civil Law - Motor Accident Act, 1988 -
Claim - Compensation - Loss of amenities
- Injured was 21 years unmarried young
boy - He became disabled to the tune of
80% and that too by his legs and he is not
able to sit properly and walk - He has lost
pleasures of life because he cannot lead a
normal life after accident. It is natural
that he had bleak prospects of marriage
and family life - Held, it can be said that
the appellant has lost amenities of life to
the
great
extent,
which
cannot
be
restored at all. Therefore, he would get
Rs. 4,00,000/- for loss of amenities. The
disability of the appellant is permanent.
Under the head of pain, shock and
sufferings, he is entitled to get a sum of
Rs. 1,00,000/- - High Court re-computed
the compensation and awarded 7.5%
interest. (Para 38, 39 and 41)

D. Civil Law - Motor Accident Act, 1988 -
Section 168
- Just compensation
-
Meaning - 'Just' means- fair, reasonable
and equitable amount accepted by legal
standards - 'Just compensation' does not
mean perfect or absolute compensation. It
requires
examination
of
particular
situation obtaining uniquely in individual
case. (Para 21)

E. Motor Accident Claim - Rash and
negligent driving - Term 'Negligence' -
Meaning - Principle of 'res ipsa loquitur' ,
750 INDIAN LAW REPORTS ALLAHABAD SERIES
when it can be applied - Negligence
means failure to exercise care towards
others which a reasonable and prudent
person would in a circumstance or taking
action which such a reasonable person
would
not.
Negligence
can
be
both
intentional or accidental though it is
normally accidental - If the injury rather
death is caused by something owned or
controlled by the negligent party then he
is directly liable otherwise the principle of
"res ipsa loquitur" meaning thereby "the
things speak for itself" would apply. (Para
7)
F. Motor Accident Claim - Principle of
contributory negligence - Scope and
meaning
-
A
person
who
either
contributes or is co author of the accident
would be liable for his contribution to the
accident having taken place. (Para 8)
G. Civil Law - Income tax Act, 1961 -
Section 194A (3) (ix) - Withdraw of
amount of interest - Certificate of Income
Tax authority, when required - Held, if the
interest payable to any claimant for any
financial
year
exceeds
Rs.
50,000/-,
insurance Co./owner is/are entitled to
deduct appropriate amount under the
head of 'Tax Deducted at Source' as
provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 - And if the amount of
interest does not exceeds Rs. 50,000/- in
any financial year, registry of this Tribunal
is directed to allow the claimants to
withdraw the amount without producing
the
certificate
from
the
concerned
Income- Tax Authority. (Para 44)
Appeal partly allowed (E-1)
List of Cases cited:-
1. Bijoy Kumar Dugar Vs Bidya Dhar Dutta &
ors., (2006) 3 SCC 242
2. First Appeal From Order No. 1818 of 2012;
Bajaj Allianz General Insurance Co. Ltd. Vs Smt.
Renu Singh & ors. decided by Allahabad High
Court on 19.7.2016
3. Raj Kumar Vs Ajay Kumar & anr.; 2011(1)
SCC 343
4. Sanjay Verma Vs Haryana Roadways;
2014(3) SCC 210.
5. Kajal Vs Jagdish Chand; 2020 (0) AIJEL-SC
65725
6. Philips Vs Western Railway Co.; (1874) 4QBD
406
7. H. West & Son Ltd. Vs Shephard; 1963 2
WLR 1359
8. K. Suresh Vs New India Assurance Co. Ltd. &
ors..
9. Jithendran Vs New India Assurance Co. Ltd. &
anr.; 2021 ACJ 2736
10. Smt.Sarla Verma Vs Delhi Transport Corp.;
2009 (2) TAC 677 (SC)
11. Syed Sadiq Vs Divisional Manager, United
India Insurance Co.Ltd.; AIR 2014 SC 1052
12. National Insurance Co. Ltd. Vs Mannat Johal
& ors. 2019 (2) T.A.C. 705 (S.C.)
13. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Co. Ltd.; 2007(2) GLH 291
14. Review Application No. 1 of 2020 in First
Appeal From Order No. 23 of 2001; Smt.
Sudesna & ors. Vs Hari Singh & anr.
15. First Appeal From Order No. 2871 of 2016;
Tej Kumari Sharma Vs Chola Mandlam M.S.
General
Insurance
Co.
Ltd.
decided
on
19.3.2021
(Delivered by Hon'ble Ajai Tyagi, J.)

1. Both these appeals arise out of
same judgment and order dated 6.2.2008
passed by District Judge, Motor Accident
Claim Tribunal, Kanpur Nagar (herein
after referred to as 'the Tribunal') in Motor
Accident Claim Petition No.929 of 2004
(Amit Kumar Yadav vs. The New India
Assurance Co.Ltd. and another).

2. FAFO NO.1285 of 2008 is filed by
the New India Assurance Co.Ltd. for
setting aside the impugned judgment with
the prayer that claim petition be dismissed
while FAFO No.1489 of 2008 is filed by
5 All. The New India Assurance Co. Ltd. Vs. Amit Kumar Yadav & Ors.
751
the claimant for enhancing the award.
Since, both the appeals have arisen out of
the same judgment, they are heard together.

3. Brief facts of the case are that a
motor accident claim petition No.929 of
2004 is filed by claimant, namely, Amit
Kumar Yadav before learned Tribunal at
Kanpur Nagar for seeking compensation
due to sustaining severe injuries in the road
accident. It is averred in claim petition that
on 1.9.2003 at about 10:30 a.m., the
claimant was going on bye-pass road
between the Naubasta and Gopal Nagar,
District-Kanpur Nagar by riding his bicycle
bearing No.UP78AG/4410, when he was
hit by rashly and negligently driven tanker
bearing No.UP70-B-9916. In this accident,
the wheel of the aforesaid tanker ran over
both the legs of the claimant and crushed
his legs. The claimant was admitted in
hospital. First information report of the
accident was lodged in concerned police
station. It is also averred in petition that the
age of the injured claimant was 21 years
and he had passed B.Sc.

4. After analyzing the facts and
evidence on record, the learned Tribunal
allowed the claim petition and awarded a
sum of Rs.15,02,000/- with 6% per annum
rate of interest. Aggrieved with the
judgment,
the
New
India
Assurance
Co.Ltd., which is the Insurance Company
of offending tanker, preferred the appeal
and claimant also preferred the appeal for
enhancing the compensation.

5. Heard Shri Rakesh Bhadur, learned
counsel
for
the
appellant-Insurance
Company and Shri Mahendra Pratap Singh,
learned counsel appearing on behalf of
respondents-claimants.

6. At the very outset, Shri Rakesh
Bahadur, learned counsel for the Insurance
Company, submitted that the driver of the
tanker in question was not at all responsible
for the accident and injuries sustained by
the claimant but the aforesaid tanker was
not directly involved in the accident. It is
also submitted that learned Tribunal has
rejected the plea of contributory negligence
and held that the claimant was not
contributor to the accident at all. Learned
Counsel has relied on the judgment in Bijoy
Kumar Dugar vs. Bidya Dhar Dutta and
others, (2006) 3 SCC 242.

7. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance or taking action which such a
reasonable person would not. Negligence
can be both intentional or accidental which
is normally accidental. More particularly, it
connotes reckless driving and the injured
must always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

8. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place.

9. The Division Bench of this Court
in First Appeal From Order No. 1818 of
2012 (Bajaj Allianz General Insurance
Co.Ltd. Vs. Smt. Renu Singh And Others)
decided on 19.7.2016 has held as under :
752 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at every
intersection or junction of roads or at a
turning of the road. It is also provided that
driver of the vehicle should not enter
intersection or junction of roads unless he
makes sure that he would not thereby
endanger
any
other
person.
Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be
regarded to some extent as coming within
the principle of liability defined in Rylands
V/s. Fletcher, (1868) 3 HL (LR) 330. From
the point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

20. These provisions (section
110A and sec.110B of Motor Act, 1988) are
not merely procedural provisions. They
substantively affect the rights of the parties.
The right of action created by Fatal
5 All. The New India Assurance Co. Ltd. Vs. Amit Kumar Yadav & Ors.
753
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in Jacob
Mathew V/s. State of Punjab, 2005 0
ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side."

(Emphasis added)

10. Learned counsel submitted that
injured has himself deposed before the
learned Tribunal as PW1 that at the time of
accident when he reached at Pratap Hotel
on bye-pass road, a tanker bearing
No.UP70B/9916 was coming from opposite
direction in a zig-zag manner. It is also
deposed that after observing the zig-zag
driving of tanker, the claimant took his
motorcycle to the extreme left side of the
road on the pathway, but the tanker hit the
motorcycle coming on the wrong side and
the front-right wheel of the tanker ran over
his legs. It is further submitted that it is
crystal clear from the evidence of injured
(PW1) that tanker hit his motorcycle from
opposite direction while another witness
PW2, who is alleged to be eye-witness of
the accident has stated in his oral evidence
that at the time of accident, he was coming
behind the injured-claimant on another
motorcycle. Injured was ahead of the tanker
and he was behind the tanker and the tanker
hit the injured from behind.

11. Learned counsel for the Insurance
Company submitted that injured himself
says that tanker hit his motor cycle from
opposite direction while eye-witness PW2
says that tanker hit the motorcycle from
behind. In this way, there is material
contradiction between the statements of
PW1 & PW2, which shows that PW2 has
not seen the accident.

12. Learned counsel for the Insurance
Company next submitted that the driver of
the tanker is produced before the learned
Tribunal as DW1 and he has deposed on
oath that at the time of accident, the injured
was overtaking the tanker from left-side, a
Maruti Car was parked ahead of him and
accident occurred due to opening of the
door of the car in which the motorcycle of
injured was hit and he fell before the
tanker. In this manner the wheel of the
truck ran over the legs of the injured.
Learned counsel further submitted that it
shows that tanker-driver was not at all
754 INDIAN LAW REPORTS ALLAHABAD SERIES
responsible for the accident, but accident
took place due to own negligence of the
injured and the Maruti Car. Learned
counsel also referred the site-plan and
submitted that site-plan was prepared
during the investigation of concerned
criminal case in which the place of accident
was shown by letter 'A', which is on the
road while it is the case of the claimant that
he took his motorcycle on kaccha patri
(pathway). It also shows the negligent
driving of the claimant.

13. Learned counsel for the claimant
strongly objected the submissions made by
counsel for the Insurance Company and
submitted that the driver of the tanker was
driving very rashly and negligently and hit
the motorcycle of the claimant from
opposite direction, which is clear from the
site-plan. It is next submitted by him that
learned Tribunal has discussed the manner
of accident in the impugned judgment and
came to conclusion that the driver of the
tanker was solely responsible for accident
and there was no contributory negligence
on the part of the claimant.

14. The injured-claimant is the best
witness to depose regarding the manner of
accident. He has stated in his deposition
that the tanker hit his motorcycle from
opposite direction. This statement of
claimant corroborates with the site-plan
prepared
by
Investigating
Officer
in
concerned criminal case of this accident.
Perusal
of
site-plan
suggests
that
motorcycle and tanker were coming from
opposite directions. Hence, the motorcycle
was hit by tanker from opposite directions.
There is no evidence on record except the
statement of driver of the truck that the
claimant hit the door of Maruti Car and fell
before the tanker. The statement of driver
of the tanker is contrary to the site-plan
while it is admitted by driver of the tanker
that the front-wheel of tanker ran over the
legs of claimant. It is not a case of
overtaking the tanker by the claimant, but it
is clear from the site-plan that the spot of
accident is not at the extreme left side of
the road, which shows that the claimant's
motorcycle was slightly towards the middle
of the road, which reflects the negligent
driving of the claimant also to some extent
and, therefore, keeping in view the above
facts and circumstances of the case, we are
in full agreement with Shri Rakesh
Bahadur, learned counsel for the Insurance
Company to the extent that there is
evidence of contributory negligence on the
part of claimant. Hence, we hold the
claimant responsible for negligent driving
to the tune of 25%.

15. Now, it takes us to the part of the
assessment of compensation to be awarded
to the claimant. Learned counsel for the
claimant submitted that learned Tribunal
has not awarded just compensation. It is
stated by learned counsel that the Injured
was a student of B.Sc. final year and he
was earning Rs.7,500/- per month by
serving in a private firm and also doing a
part-time job, but learned Tribunal has
considered
his
monthly
income
at
Rs.3,000/- only. It is also submitted that on
the basis of this meagre amount of
Rs.3,000/-, the learned Tribunal has only
awarded damages for 14 months as loss of
earning and awarded just Rs.42,000/- for
loss of earning. He contended that claimant
sustained serious injuries and his one lower
limb was amputated and he was declared
permanently disabled to the tune of 80% as
per disability certificate. This fact was not
properly
appreciated
by
the
learned
Tribunal. Further submission is that nonpecuniary
damages
awarded
to
the
petitioner as on lower side.
5 All. The New India Assurance Co. Ltd. Vs. Amit Kumar Yadav & Ors.
755

16. Learned counsel for the Insurance
Company submitted that as per statement
of injured-PW1, there was one attendant
only for his help while learned Tribunal has
awarded compensation for two attendants,
which is not the case of the claimant.

17. It is also submitted by learned
counsel for the Insurance Company that a
disability certificate is issued regarding the
disability sustained by the appellant to the
tune of 80%, but no doctor is examined to
prove the aforesaid certificate. Therefore, it
cannot be relied upon.

18. We are not convinced with the
aforesaid submission that there is necessity
to prove the disability certificate by calling
the doctor when it is not challenged before
the Tribunal. It is not the case of the
Insurance
Company
that
disability
certificate is fake or not issued by
competent authority. We are in agreement
with the submission made on behalf of
Insurance Company that in his evidence,
the appellant has stated that he was having
one attendant for his help yet the Tribunal
has
awarded
compensation
for
two
attendants.

19. This is a case of injury to the
appellant, which is very grave in nature.
The appellant has sustained very serious
injuries as the front-wheel of the tanker ran
over both the legs. His one leg was
amputated from knee joint and two
ligaments of other leg were removed
permanently, therefore, more or less he
became disabled by both the legs.

20. This is a case where a young boy
at the age of 21 years only has lost one leg
by amputation and removal of two
ligaments of other leg had also made him
incapacitated from pursuing any good
career in life though he was a student of
B.Sc. Final year at the time of accident. He
is not able to walk, run or even sit properly.
He has lost amenities and pleasure of life. It
can safely be assumed that he had bleak
prospects of marriage and family life. He is
not able to lead a normal life. His disability
is permanent. No one can restore his life as
it was before the accident, but we should
provide 'just compensation'. We have to
keep in mind all the factors, which are
relevant for just and proper compensation
as is object of the Motor Vehicles Act,
1988 (for short, 'the Act, 1988').

21. Section 168 of the Act, 1988,
contemplates
determination
of
'just
compensation'. 'Just' means-fair, reasonable
and equitable amount accepted by legal
standards. 'Just compensation' does not
mean perfect or absolute compensation.
'Just
compensation'
principle
requires
examination
of
particular
situation
obtaining uniquely in individual case.
When compensation is to be determined on
an application under Section 166 of the
Act, 1988, various heads under which
damages are to be assessed, have to be
looked into by Tribunal and not by merely
determining
income
and
applying
multiplier.

22. The question of determination of
compensation directly came up before
Supreme Court in Raj Kumar Vs. Ajay
Kumar and another, 2011(1) SCC 343.
Therein, claimant sustained fracture of
both bone of left leg and fracture of left
radius in a motor accident on 01.10.1991.
Tribunal awarded compensation under the
heads of loss of future earning, pain and
sufferings, loss of earning during period of
treatment, medical expenses, conveyance
and special diet. He was awarded total
compensation of Rs. 94,700/- and 9%
756 INDIAN LAW REPORTS ALLAHABAD SERIES
interest. His appeal for enhancement was
rejected by Tribunal and ultimately went
in appeal to Supreme Court. It observed
that scheme of Act, 1988 shows that award
must
be
"just",
which
means
that
compensation
should,
to
the
extent
possible, fully and adequately restore
claimant to the position prior to the
accident. The object of awarding damages
is to make good the loss suffered as a
result of wrong done as far as money can
do so, in a fair, reasonable and equitable
manner. A person is not only to be
compensated for physical injury, but also
for the loss which he suffered as a result of
such injury. It means that he is to be
compensated for his inability to lead a full
life, his inability to enjoy those normal
amenities which he would have enjoyed
but for the injuries, and his inability to
earn as much as he used to earn or could
have earned. The heads under which
compensation
needs
be
awarded
in
"personal injury" cases are detailed in para
6 of the judgment in Raj Kumar Vs. Ajay
Kumar (supra) and it reads as under:

"6. The heads under which
compensation is awarded in personal
injury cases are the following:

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."

23. "Disability" refers to any
restriction or lack of ability to perform an
activity in the manner considered normal
for a human-being. "Permanent disability"
refers to the residuary incapacity or loss of
use of some part of the body, found
existing at the end of period of treatment
and recuperation, after achieving maximum
bodily improvement or recovery which is
likely to remain for remainder life of
injured. Permanent disability can be either
partial
or
total.
"Partial
permanent
disability" refers to a person's inability to
5 All. The New India Assurance Co. Ltd. Vs. Amit Kumar Yadav & Ors.
757
perform all the duties and bodily functions
that he could perform before the accident,
though he is able to perform some of them
and is still able to engage in some gainful
activity. "Total permanent disability" refers
to a person's inability to perform any
avocation or employment related activities
as a result of the accident.

24. The percentage of disability
certified in medical terms has been
considered and Courts have observed that
percentage of disability in respect of a part
of body does not mean the same percentage
with respect to whole body and it may be
different. Para 9 of judgment in Raj Kumar
Vs. Ajay Kumar (supra) said as under:

"9. The percentage of permanent
disability is expressed by the Doctors with
reference to the whole body, or more often
than not, with reference to a particular limb.
When a disability certificate states that the
injured has suffered permanent disability to
an extent of 45% of the left lower limb, it is
not the same as 45% permanent disability
with reference to the whole body. The extent
of disability of a limb (or part of the body)
expressed in terms of a percentage of the
total functions of that limb, obviously cannot
be assumed to be the extent of disability of the
whole body. If there is 60% permanent
disability of the right hand and 80%
permanent disability of left leg, it does not
mean that the extent of permanent disability
with reference to the whole body is 140%
(that is 80% plus 60%). If different parts of
the body have suffered different percentages
of disabilities, the sum total thereof expressed
in terms of the permanent disability with
reference to the whole body, cannot obviously
exceed 100%." (emphasis added)

25. Court also castigated that
Tribunals wrongly assume that percentage
of permanent disability is same in terms of
percentage of loss of future earning
capacity. The two aspects are different.
Relevant observations in para 10 of the
judgment in Raj Kumar Vs. Ajay Kumar
(supra) are reproduced as under:

"10. Where the claimant suffers a
permanent disability as a result of injuries,
the assessment of compensation under the
head of loss of future earnings, would
depend upon the effect and impact of such
permanent disability on his earning
capacity.
The
Tribunal
should
not
mechanically apply the percentage of
permanent disability as the percentage of
economic loss or loss of earning capacity.
In most of the cases, the percentage of
economic loss, that is, percentage of loss
of earning capacity, arising from a
permanent disability will be different from
the percentage of permanent disability.
Some Tribunals wrongly assume that in all
cases, a particular extent (percentage) of
permanent disability would result in a
corresponding loss of earning capacity,
and consequently, if the evidence produced
show 45% as the permanent disability, will
hold that there is 45% loss of future
earning capacity. In most of the cases,
equating the extent (percentage) of loss of
earning capacity to the extent (percentage)
of permanent disability will result in award
of
either
too
low or
too
high a
compensation." (emphasis added)

26. Court also held that in some cases
evidence and assessment may show that
percentage of loss of earning capacity as a
result
of
permanent
disability
is
approximately the same as percentage of
permanent disability and in that case said
percentage
for
determination
of
compensation may be adopted but it is not
always. It is in this context Court further
758 INDIAN LAW REPORTS ALLAHABAD SERIES
said that in order to determine, whether
there is any permanent disability and if so
the extent of such disability, a Tribunal
should consider, and decide, with reference
to evidence:

"(i) whether the disablement is
permanent or temporary;

(ii)
if
the
disablement
is
permanent, whether it is permanent total
disablement
or
permanent
partial
disablement;

(iii) if the disablement percentage
is expressed with reference to any specific
limb, then the effect of such disablement of
the limb on the functioning of the entire
body, that is the permanent disability
suffered by the person."

27. It was also observed that
ascertainment of the effect of permanent
disability on actual earning capacity involves
three steps. First is to ascertain what activities
claimant could carry on inspite of permanent
disability and what he could not do as a result
of permanent disability. The second is to
ascertain claimant's avocation, profession and
nature of work before accident, as also his
age. The third step is to find out whether
claimant is totally disabled from earning any
kind of livelihood or despite permanent
disability, claimant could still effectively
carry on activities and functions, which he
was earlier carrying on and 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.

28. The role of Tribunal was
elaborated by observing that it is not a
silent spectator when medical evidence is
tendered in regard to the injuries and their
effect, in particular the extent of permanent
disability. Tribunal does not function as a
neutral umpire as in a civil suit. It is an
active explorer and seeker of truth who is
required to hold an enquiry into the claim
for
determining
'just
compensation'.
Tribunal should take an active role to
ascertain the true and correct position so
that it can assess 'just compensation'. Court
also observed that when a doctor gives
evidence about percentage of permanent
disability, Tribunal must find out whether
such percentage of disability is functional
disability with reference to whole body or
whether it is only with reference to a limb.
In para 19 of the judgment in Raj Kumar
Vs. Ajay Kumar (supra) Court summarized
the principles in respect of "permanent
disability" and assessment of compensation
and in para 20 it gives certain illustrations
in regard to assessment of loss of future
earning. Same are reproduced as under:

"19. We may now summarize the
principles discussed above:

(i) All injuries (or permanent
disabilities arising from injuries), do not
result in loss of earning capacity.

(ii) The percentage of permanent
disability with reference to the whole body of
a person, cannot be assumed to be the
percentage of loss of earning capacity. To put
it differently, the percentage of loss of
earning capacity is not the same as the
percentage of permanent disability (except in
a few cases, where the Tribunal on the basis
of evidence, concludes that percentage of loss
of earning capacity is the same as percentage
of permanent disability).

(iii) The doctor who treated an
injured-claimant or who examined him
5 All. The New India Assurance Co. Ltd. Vs. Amit Kumar Yadav & Ors.
759
subsequently to assess the extent of his
permanent disability can give evidence only
in
regard
the
extent
of
permanent
disability. The loss of earning capacity is
something that will have to be assessed by
the Tribunal with reference to the evidence
in entirety.
(iv) The same permanent disability may
result in different percentages of loss of
earning capacity in different persons,
depending upon the nature of profession,
occupation or job, age, education and
other factors.

29. A three Judge Bench considered
the question of "just compensation" in a
case of permanent disability in Sanjay
Verma Vs. Haryana Roadways, 2014(3)
SCC 210. Court observed that besides
determination of damages under the head
"loss of income" and "medical expenses",
Tribunal must also award compensation
under the head "future treatment" and "pain
and sufferings"
and where there
is
requirement of an attendant, cost of
attendant should also be included for award
of compensation.

30. 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."

31. Hon'ble the Apex Court has further
quoted pertinent observations from a very old
case 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 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."

32. Section 168 of MV Act stipulates
that there should be grant of just
compensation. Thus, it becomes challenge
760 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Hon'ble
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.

33. In K. Suresh v. New India
Assurance Company Ltd. and Ors.,
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."

34. Hence, keeping in mind the above
contours of 'just compensation', we proceed
to determine the quantum of compensation.
It is not disputed that appellant has
submitted bills for medical expenses and
treatment worth Rs.1,93,858/-. As far as
permanent disability of the appellant is
concerned, doctors have issued disability
certificate to the tune of 80%, but the
Tribunal has considered 100% permanent
disability of both the legs separately, but
there is amputation of one leg from the
knee-joint and two ligaments of other leg
5 All. The New India Assurance Co. Ltd. Vs. Amit Kumar Yadav & Ors.
761
were
removed,
therefore,
we
hold
functional disability of the appellant to the
tune of 80%. Perusal of impugned
judgment shows that amount under the
head of permanent disability is not properly
calculated by the Tribunal.

35. It is submitted by learned counsel
for the appellant that appellant had two
source of income.