Page 1 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Mac App No. 71/2021

c/w Mac App No. 69/2021

Reserved On: 25

th

August 2023

Pronounced on: 1

st

September 2023

1. National Insurance Company Ltd. Divisional

Manager, Srinagar.

2. Branch Manager, National Insurance Company

Limited Branch office Bari Brahman Jammu,

Through their Administrative Officer Law,

Mr. Kumail Murtaza (Aged: 33 years)

….. Appellant(s)

Through: Ms. Izzat Fatima, Advocate vice

Mr. Nissar A. Dendru, Advocate.

V/s

1. Attiqa Bano D/o Abdul Gaffar Wani,

R/o Tregam Tehsil and District Kupwara.

At present Batmaloo, Srinagar.

2. Nazir Ahmad Malik S/o Subhan Malik

R/o Shumnag, Kupwara

3. M/S Surrinder Singh Company,

Digiana Camp, Jammu.

…..Respondent(s)

Through: Mr. A.A. Wani, Advocate for R-1.

Mr. M.A. Thakur, Advocate for R- 3.

AND

Attiqa Bano D/o Abdul Gaffar Wani,

R/o Tregam Tehsil and District Kupwara.

At present Batmaloo, Srinagar

….. Appellant(s)

Page 2 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

Through: Mr. A.A. Wani, Advocate.

V/s

1. Nazir Ahmad Malik S/o Subhan Malik

R/o Shumnag, Kupwara (Driver)

2. M/S Surrinder Singh Co.

(Owner Veh. No. 8295-JK02)

R/o Digiana Camp, Jammu.

3. National Insurance Company through its

Divisional Manager, Srinagar.

4. Branch Manager,

Branch Office National Insurance Company

Bari Brahmana, Jammu.

…..Respondent(s)

Through: Mr. M.A. Thakur, Advocate for R-2.

Ms. Izzat Fatima, Advocate vice

Mr. Nisar A. Dendru for R-3 and 4.

CORAM:

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE.

JUDGMENT

1. Since both the cross appeals, aforetitled trace the genesis to

same motor vehicular accident, therefore, they are being disposed of by

virtue of this common judgment.

2. Challenge in these appeals has been thrown to an award dated

30.11.2019, passed by learned Motor Accident Claims Tribunal,

Kupwara (“Tribunal”, for short) in claim petition titled „Attiqa Bano vs

Page 3 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

Nazir Ahmad Malik & Ors‟, vide which, the Appellant-Insurance

Company has been saddled with liability to pay compensation in the

amount of Rs. 5,45,600/- with interest @ 7.5% per annum from the date

of filing of the petition.

3. Before the grounds urged in the appeals are adverted to, it shall

be apt to have a closer look at the background facts of the case.

4. On 20.10.2006, the appellant (in Mac App No. 69/2021,

hereinafter referred to as the “claimant”), a girl student of 28 years of

age, on the National Highway at Trehgam Bazar near Ziyarat, Pangar

Baba Sahib, was hit by a tanker bearing Registration No. 8295/JK02,

being driven by its driver, namely, Nazir Ahmad Malik, as a result

whereof, she sustained grievous injuries, resulting in the fracture of her

right leg and foot. A claim petition came to be preferred, by the

claimant, in terms of Section 166 of Motor Vehicles Act (MVA), before

learned Tribunal, inter alia on the grounds that as a result of accident,

she was permanently disabled. It was averred that besides helping in the

household work, she was pursuing higher studies after qualifying

graduation. The injured was stated to be shifted to Bone &Joint

Hospital, Srinagar, where she was admitted for a couple of days. The

accident was registered with Police Station Trehgam in the shape of FIR

No.133/2006 under Sections 279/337 RPC.

Page 4 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

5. The owner of the offending vehicle, M/S Surinder Singh

Company, did not choose to appear before the Tribunal and was

proceeded ex-parte. The claim was resisted by rest of the respondents

including the driver and the Insurance Company. However, after filing

their respective objections to the claim petition, they also chose not to

contest the claim petition and were proceeded ex-parte.

6. The Appellant-Insurance Company had resisted the claim on

the predominant premise that driver of the offending vehicle, at the time

of accident, was not holding a valid driving license and the offending

vehicle was being plied in breach of terms and conditions of the

insurance policy. On the other hand, the respondent-Driver has

contended that he was holding a valid driving license at the time of

accident and that he has been acquitted of the charges, in the criminal

case, by the competent court of law. Since all the respondents had been

set ex-parte, the claimant was called upon to produce evidence in

support of the petition. The claimant besides appearing herself,

examined PWs Abdul Gaffar Wani and Dr. Abdul Khaliq Sheikh,

Consultant Surgeon in support of the claim petition.

7. The claimant testified in her statement that she sustained

serious injuries in the accident caused by the offending vehicle on

20.10.2006, which was being driven by respondent-Driver. She was

Page 5 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

shifted to Trehgam Hopital and later to Kupwara hospital, wherefrom,

she was referred to Bone & Joint Hospital, Srinagar for treatment. She

remained admitted for 4/5 days in the said hospital and spent around Rs.

1,00,000/- on her treatment. She was 22 years of age at the time of

accident and sustained 50% disability. She also stated that she was

studying but her study was affected due to accident. PW-Abdul Gaffar

Wani also toed the same line by stating that claimant sustained 50%

disability, incurred Rs. 1,00,000/- on her treatment and she was 22 years

of age. He also stated that right leg and foot of the claimant was

fractured in the accident. PW-Abdul Khaliq Sheikh, Consultant

Surgeon, has admitted the disability certificate issued by him and

deposed that disability of 50% mentioned in the first disability

certificate dated 12.02.2007, had gone down to 40%, which was

reflected in the subsequent disability certificate issued by him on

28.02.2008. He has also speculated the expenditure on surgery and

drugs etc. at Rs. 1, 00,000/-.

8. Learned Tribunal after analysing the evidence led by the

claimant, has allowed the claim petition and awarded the compensation

mentioned at the outset.

9. It needs a specific mention, before merits of the appeals are

adverted to, that Appellant-Insurance Company had filed a petition

Page 6 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

before the Tribunal for setting aside of the ex-parte award inter alia on

the grounds that due to clampdown of communication and internet in the

Kashmir valley post 5

th

August 2019 and due to strikes and protests of

transport and markets, the Appellant- Company could not establish

contact with its counsel, nor its counsel apprised it about the daily status

of the case, therefore, it was prevented by sufficient reason to contest the

claim petition. However, learned Tribunal vide order dated 24

th

September 2021, rejected the contention of the Appellant-Insurance

Company and dismissed the petition for setting aside the ex-parte award.

10. The Appellant-Insurance Company has assailed the impugned

award in the present appeal, on the similar grounds that claim petition

could not be contested by the Company due to negligence of its counsel,

and that driver of the offending vehicle was not holding a valid driving

license. The Appellant-Insurance Company has also assailed the

impugned award on the ground that same being exorbitant, is required to

be set-aside.

11. The claimant, on the other hand, has also preferred a cross

appeal for enhancement of the compensation inter alia on the grounds

that monthly income of the claimant taken by the Tribunal as Rs. 4000/-

is on the lower side, which is required to be raised to Rs. 5000 to 6000,

rate of interest applicable is 9% instead of 7.5% adopted by the Tribunal

Page 7 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

and learned Tribunal has not granted any compensation for the

attendant.

12. Having heard rival contentions of the parties and perused the

record, I have given my thoughtful consideration to the facts emerging

from the record as also the law governing the field.

13. While learned counsels for the Appellant-Insurance Company

as also the Appellant-Claimant have reiterated their respective grounds

urged in the memo of appeals, learned counsel for the Appellant-

Claimant has relied upon Oriental Insurance Company Ltd vs.

Tauseef Ahmad Dar & Ors reported as [2021 (2) SLJ 764]; National

Insurance Company Limited vs Tsewang Namgyal & Ors reported

as [2021 (1) SLJ 317]; and Pappu Deo Yadav vs. Naresh Kumar &

Ors reported as AIR Online 2020 SC 733.

14. There is no dispute to the admitted position of fact on the

record that claimant-Ateeqa Bano suffered fracture of right leg and foot

in a motor vehicle accident on 20

th

June 2006 caused by a tanker bearing

Registration No. 8295/JK02, being driven by the respondent-Driver. The

offending vehicle at the time of accident was insured with the

Appellant-Insurance Company and it was owned by M/S Surinder Singh

Company, Digiana Jammu. The Appellant-Insurance Company has

Page 8 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

questioned the impugned award primarily on the ground that it was

prevented by sufficient cause, on account of disturbance in the valley in

the aftermath of abrogation of Article 370 of Constitution of India on 5

th

August 2019. As already stated, the petition filed by the Appellant-

Insurance Company for setting aside of the ex-parte award on similar

grounds, has already been rejected by learned Tribunal by virtue of a

well-reasoned order dated 24

th

September 2021. Learned Tribunal has

observed in the said order that while learned counsel for the claimant

continuously appeared before the Tribunal, learned counsel for the

Appellant-Insurance Company did not choose to appear before it. The

record bears testimony to the fact that Appellant-Insurance Company

was proceeded ex-parte on 12

th

February 2018 and filed application for

setting aside the ex-parte proceedings on 22

nd

May 2019, i.e. much

before the aforesaid incident of 5

th

of August 2019. In the

circumstances, the Appellant-Insurance Company cannot be heard to say

that it was prevented by the aforesaid incident of 5

th

August 2019 to

appear before the Tribunal and contest the claim petition. Be it also

noted that said order dated 24

th

September 2021 passed by learned

Tribunal by virtue of which plea of the Appellant-Insurance Company

for setting aside the ex-parte award was declined by the Tribunal, having

not been assailed by the Appellant-Insurance Company, has attained

Page 9 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

finality and, therefore, the Appellant-Insurance Company cannot be

allowed to raise the said issue in the present appeal.

15. However, the Appellant-Insurance Company has also

challenged the impugned award on the ground that it is on the higher

side. Ms. Izzat Fatima, learned counsel appearing vice Mr. Nissar A.

Dendru, learned arguing counsel for the Appellant-Insurance Company

during the course of arguments has confined her arguments on the

quantum of compensation awarded in favour of the claimant. On the

other hand, the complainant has filed cross appeal for enhancement of

the compensation on various grounds, detailed above.

16. Some uncontroverted facts of the case are required to be

underlined. The claimant preferred a claim petition before learned

Tribunal, whereby she claimed that due to accident, her right leg and

right foot were fractured. She was operated upon and was advised

transfusion of blood, which was arranged through private sources. It is

case of the claimant that she was helping in the household chores and,

therefore, by any conservative estimation, she would earn Rs. 5000/- per

month. The claimant has also claimed Rs. 10,000/- on account of pain

and sufferings.

Page 10 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

17. Hon‟ble Supreme Court in Raj Kumar vs. Ajay Kumar &

Anr. reported as (2011) 1 SCC 343, commenting upon the principle of

just and fair compensation has made the following observation:

“It should fully and adequately restore the claimant to

the position prior to the accident. The object of

awarding damages is to make good the loss suffered, as

far as money can do so, in a fair, equitable and

reasonable manner.”

18. It is manifest from the principle of law enunciated by Hon‟ble

Supreme Court in the aforesaid judgment that object behind the doctrine

of fair and just compensation is to make a sincere endeavour to restore

the dignity of an individual, he had at the time of accident in a fair,

equitable and reasonable manner. It is by far crystallized position of law

that a victim of accident is to be compensated for personal injuries,

primarily for the following damages:

(i) Loss of earning and loss of earning capacity;

(ii) Loss of future income;

(iii) Pain and suffering and loss of amenities;

(iv) Medical treatment;

(v) Shorten expectancy of life, if any; and

(vi) Special damages, if any.

Page 11 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

19. If the present case is approached in the backdrop of legal

position discussed above, the appellant-claimant is found entitled to

compensation for the following damages:

Loss of earning and loss of earning capacity:

20. Back to the case, the claimant has questioned the impugned

award passed by Ld. Tribunal primarily on the ground that learned

Tribunal has assessed her monthly income as Rs. 4000/-, despite

sufficient evidence available on the record that by any conservative

assessment, she would earn Rs. 5000/- per month as she was helping in

the household work. It is pertinent to mention that claimant appeared in

the witness box and testified that she was studying, but her studies were

affected due to accident. The claimant in her testimony before the

Tribunal has nowhere stated that she was doing any kind of labour or

was helping in household chores. In the circumstances, the monthly

income of the claimant assessed by learned Tribunal as Rs. 4000/-

appears to be justified and cannot be faulted with. As already stated,

claimant claimed to be 28 years of age at the time of accident in her

claim petition. Surprisingly, learned Tribunal has taken the age of the

claimant/petitioner as 22 years, on the basis of her age reflected in the

disability certificate. It is a matter of common knowledge that age of a

patient on a medical certificate is mentioned by a Medical Officer on the

Page 12 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

basis of declaration made by a patient or his/her attendant. Since, it was

claim of the claimant herself that she was 28 years of age at the time of

accident, there was no occasion for learned Tribunal to travel beyond the

pleadings and assess age of the claimant on the basis of medical

certificate. In this view of the matter, multiplier applicable to the case of

the claimant in the age group of 26-30 years, is 17 and not 18, applied

by the Tribunal.

21. Another vital aspect of the case is that, learned Tribunal has

accepted the total disability of 40% certified by the Board of Doctors. It

may be recalled that Appellant/Claimant claims to have suffered fracture

of her “right leg and foot” only. It is trite that the extent of disability of

a limb reflected in the disability certificate cannot be assumed as extent

of disability of the whole body. It is by far a settled position of law that

the assessment of compensation under the head of „loss of future

earnings‟ depends upon the impact of permanent disability suffered by

the claimant on his earning capacity. The adjudicating authorities or

tribunals are not obliged to apply the percentage of permanent physical

disability, as percentage of economic loss or loss of earning capacity, in

a perfunctory fashion, but they are obliged to assess functional disability

of the claimant. This principle of law has been considered at length by

Hon‟ble Supreme Court in Raj Kumar (Supra). Relevant observation of

the pronouncement for the facility of reference reads thus:

Page 13 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

“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.”

22. Hon‟ble Supreme Court on ascertainment of the effect of

permanent disability on the actual earning capacity of the victim or

claimant, has also made following observation in paragraph 13 of the

aforesaid judgment:

“Ascertainment of the effect of the permanent disability on

the actual earning capacity involves three steps. The

Tribunal has to first ascertain what activities the claimant

could carry on in spite of the permanent disability and what

he could not do as a result of the permanent ability (this is

Page 14 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

also relevant for awarding compensation under the head of

loss of amenities of life). The second step is to ascertain his

avocation, profession and nature of work before the

accident, as also his age. The third step is to find out

whether (i) the claimant is totally disabled from earning

any kind of livelihood, or (ii) whether in spite of the

permanent disability, the claimant could still effectively

carry on the activities and functions, which he was earlier

carrying on, or (iii) whether he was prevented or restricted

from discharging his previous activities and functions, but

could carry on some other or lesser scale of activities and

functions so that he continues to earn or can continue to

earn his livelihood.”

23. In the background of aforesaid principle of law enunciated by

the Apex Court, since the Appellant/Claimant has suffered fracture of

right leg and foot only, the extent of permanent disability suffered by

the claimant, reflected in the disability certificate cannot be assumed as

extent of disability of the whole body. The case law relied by learned

counsel for the Appellant/ Claimant is distinguishable on facts and

circumstances of the present case. In Tauseef Ahmad Dar (supra), it

was averred by the petitioners that deceased besides being a house wife,

was doing the job of spinning and chain stitching. In Tsewang Namgyal

(supra), it was claimed by the petitioner that deceased besides being a

driver, was working as a Carpenter during spare time and in Pappu Deo

Yadav (supra), the claimant claimed to be working as Data Entry

Page 15 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

Operator/Typist and his right hand was amputated in the accident.

Fortunately, there is no amputation or loss of limb suffered by the

claimant in the present case. There is nothing on the record to suggest

that claimant suffered any shortening of limb or the fracture of her right

leg and foot affected her normal day to day functioning as a student or

even as a helper in the household chores. Learned Tribunal has

apparently fallen in gross error of law to accept the permanent disability

certified by the Board of Doctors as functional disability of the claimant.

In the circumstances, the functional disability of claimant is assessed as

20%.

Loss of future income;

24. As already discussed, the claimant has suffered fracture of right

leg and foot only. There is nothing to suggest that 20% functional

disability suffered by the claimant would affect her normal functioning

of day-to-day life. Neither future studies of the claimant nor her daily

household life is going to be affected by 20% functional disability

suffered by her. Therefore, there cannot be any loss of future income to

the Appellant/ Claimant.

Pain and suffering and loss of amenities;

25. Learned Tribunal has awarded Rs. 60,000/- under the head

„Pain and Suffering‟ and another Rs. 50,000/- for „Inconvenience,

Page 16 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

Hardship and Discomfort.‟ Inconvenience, Hardship and Discomfort is

part and parcel of „Pain and Suffering and loss of amenities‟, and no

compensation can be awarded separately under the said Head.

Compensation of Rs. 60,000/- for pain and suffering is also exorbitant

and, therefore, award of Rs. 10,000/- each for pain and suffering and

loss and amenities shall be suffice to meet the ends of justice.

Medical treatment;

26. Although claimant has testified in her testimony before the

Tribunal that she has incurred Rs. 1,00,000/- on her treatment, however,

it is pertinent to mention that she has claimed Rs. 50,000/- as medical

expenditure, in her claim petition, including rich diet and transportation

charges. Claimant has failed to produce any bill or voucher, to establish

the expenses incurred by her on her medical treatment. Tribunals are

statutorily charged with the responsibility to award „Just Compensation‟,

on the basis of fair and equitable principles. A claimant cannot be

denied compensation on account of medical expenses incurred by him

merely due to failure on his part to produce documentary evidence. A

three judge Bench of Hon‟ble Supreme Court in Jagdish v. Mohan and

others reported as AIR 2018 SC 1347 has ruled thus:

“In making the computation in the present case, the court

must be mindful of the fact that the appellant has suffered a

serious disability in which he has suffered a loss of the use of

Page 17 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

both his hands. For a person engaged in manual activities, it

requires no stretch of imagination to understand that a loss

of hands is a complete deprivation of the ability to earn.

Nothing – at least in the facts of this case – can restore lost

hands. But the measure of compensation must reflect a

genuine attempt of the law to restore the dignity of the being.

Our yardsticks of compensation should not be so abysmal as

to lead one to question whether our law values human life. If

it does, as it must, it must provide a realistic recompense for

the pain of loss and the trauma of suffering. Awards of

compensation are not law’s doles. In a discourse of rights,

they constitute entitlements under law. Our conversations

about law must shift from a paternalistic subordination of

the individual to an assertion of enforceable rights as

intrinsic to human dignity.”

27. In view of the aforequoted observation of Hon‟ble Supreme

Court, the tribunals are required to determine „Just and Fair‟

compensation on broader conspectus of a case and taking a holistic view

of the facts and circumstances and, therefore, it may include some

speculative income for medical treatment.

28. Reverting to the case, according to the claimant, she was first

taken to Trehgam Hospital for first aid, then to Sub District Hospital,

Kupwara, wherefrom she was referred to Bone & Joint Hospital,

Barzulla, Srinagar. According to the claimant, she remained in the

hospital for a couple of days, where she was operated upon. She has also

Page 18 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

averred that she was advised blood transfusion, which was arranged

from private sources. Although, Appellant/Claimant has failed to

produce any evidence with respect to the medical expenditure as also

transfusion of blood, stated to be arranged from private sources,

however, in view of the admitted position of fact on the record that

Appellant/Claimant suffered fracture of right leg and foot and

underwent treatment in the Government hospitals, therefore, taking a

holistic view of the facts and circumstances of the case, an amount of

Rs. 50,000/- for medical treatment is awarded in favour of the claimant.

Shorten expectancy of life, if any and Special Damages, if any:

29. In view of the facts and circumstances given above, since the

Appellant/Claimant has suffered fracture of right leg and foot only, and

there is no amputation or shortening of limb etc., therefore, no

compensation can be awarded under these Heads.

30. Having regard to the legal principles discussed above, it would

now be appropriate to assess the case of the Appellant/Claimant for

modified compensation. Monthly income of the Appellant/Claimant has

been assessed at Rs. 4000/-. On account of functional disability assessed

as 20%, the Appellant/Claimant can be said to have suffered a loss of

Rs. 800/- per month and annual loss of Rs. 9600/-. After applying the

multiplier of 17, in the age group of 26-30, the total loss of income of

Page 19 of 19 Mac App No. 71/2021

c/w Mac App No. 69/2021

Appellant/Complainant is worked as Rs. 1,63,200/-. In addition, the

Appellant/Claimant is found entitled to Rs. 10,000/- each on account of

pain and suffering and loss of amenities, Rs. 50,000/- on account of

medical expenses. Therefore, Appellant/Claimant is held entitled to a

total compensation of Rs. 2,33,200/-.

31. For what has been observed and discussed above, the appeal

preferred by the Claimant-Attiqa Banoo bearing Mac App No. 69/2021

being devoid of any merit, is dismissed. The appeal filed by the

Appellant-Insurance Company is allowed in part and consequently, the

Appellant-Insurance Company is directed to pay the aforesaid

compensation of Rs. 2,33,200/-to the claimant along with interest

@7.5% from date of filing of the claim petition.

32. Record be returned with convenient dispatch.

(Rajesh Sekhri)

Judge

SRINAGAR:

01.09.2023

“Hamid”

i. Whether the Judgment is Speaking? Yes.

ii. Whether the Judgment is Reportable? Yes.