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Madhya Pradesh High Court · body

2005 DIGILAW 1203 (MP)

AASAN v. RAM BABU SEN

2005-11-28

ARUN MISHRA, B.M.GUPTA

body2005
ARUN MISHRA, J. ( 1 ) THIS appeal has been preferred by the claimant for enhancement of compensation aggrieved by an award dated 16. 7. 1999 passed by the Sixth Addl. Motor Accidents Claims Tribunal, Bhopal, in M. C. C. No. 13 of 1998. ( 2 ) IN accident dated 19. 12. 1997 when claimant Aasan alias Aasar was travelling in a minibus (MP 04-H 7715) from Gandhi nagar to Bhopal, the minibus was driven by mohd. Ateek and when it reached Lalghati railway Crossing near Rajeev Nursery, ram Babu Sen came from Bhopal side towards Gandhi Nagar at excessive speed, he was driving the jeep (MP 04-H 5871)violating the traffic rules, he came in front of minibus and turned towards the wrong direction, in order to avoid collision the driver of minibus, namely, Mohd. Ateek also turned the minibus, owing to which it turned turtle. Claimants and other persons travelling in minibus sustained injuries. The claimant was taken to Hamidia Hospital, where his left leg was amputated above knee level and two fingers of his right foot were also amputated. He remained under treatment in the hospital for considerable time. He had sustained disability to the extent of 85 per cent. Report of the incident was lodged at Police Station, Shahjehana-bad. Claimant was working in the utensil shop as a labourer. He is now unable to earn livelihood. The family was dependent upon his earnings. The compensation of rs. 20,15,000 was claimed. ( 3 ) THE jeep owned by Shama Agrawal was insured with New India Assurance co. Ltd. , whereas the bus was owned by ghanshyamdas Sewakani, insured with oriental Insurance Co. Ltd. ( 4 ) THE owner and the driver of the jeep in their reply admitted that Ram Babu Sen was driving the jeep. Other facts were denied. According to them, the jeep was stationary. It was parked near the nursery. Mohd. Ateek drove the minibus in a rash and negligent manner. He applied the brakes all of a sudden, owing to which it turned turtle. Driver of the jeep was not negligent. In any case, the jeep was insured with New India Assurance Co. Ltd. , as such the insurer is liable to make the payment of compensation. ( 5 ) THE insurer of the jeep in the written statement contended that the vehicle was insured. The driver of the minibus was negligent. Driver of the jeep was not negligent. In any case, the jeep was insured with New India Assurance Co. Ltd. , as such the insurer is liable to make the payment of compensation. ( 5 ) THE insurer of the jeep in the written statement contended that the vehicle was insured. The driver of the minibus was negligent. There was no collision between the two vehicles. The driver of the jeep was not having a valid and effective driving licence, as such the insurer of the jeep is not liable to make the indemnification. ( 6 ) THE driver and owner of the minibus admitted most of the averments made in the claim petition. However, it was contended that the driver of the jeep was negligent, not the driver of the minibus. The vehicle minibus was insured with Oriental insurance Co. Ltd. , as such the liability is that of the insurer. ( 7 ) THE insurer in the written statement contended that the driver of the jeep was negligent, as such the claim petition be dismissed as against the insurer of the minibus. ( 8 ) THE learned Claims Tribunal has found that it is a case of composite negligence of the driver of the jeep as well as driver of the minibus. The driver of the jeep was negligent to the extent of 25 per cent, whereas the driver of the minibus has been found negligent to the extent of 75 per cent. The Claims Tribunal has awarded total compensation of Rs. 1,81,000. Rs. 1,08,000 has been awarded for loss of earning capacity. Owing to permanent disablement to the extent of 85 per cent, a sum of Rs. 50,000 has been awarded. A further sum of Rs. 10,000 has been awarded on account of physical pain and mental agony. On account of special diet a sum of Rs. 3,000 has been awarded. Rs. 10,000 has been awarded on account of medical expenditure. The interest has been awarded at the rate of 12 per cent per annum from the date of filing of the claim petition. Liability has been saddled as per the findings recorded by the learned Claims Tribunal to the extent of respective negligence. ( 9 ) MR. Rs. 10,000 has been awarded on account of medical expenditure. The interest has been awarded at the rate of 12 per cent per annum from the date of filing of the claim petition. Liability has been saddled as per the findings recorded by the learned Claims Tribunal to the extent of respective negligence. ( 9 ) MR. Ashok Lalwani, learned counsel appearing on behalf of the claimant has submitted that under the head of loss of earning capacity due to permanent disability, inadequate compensation has been awarded, unnecessarily deductions have been made. He has submitted that the deduction of 30 per cent and thereafter 20 per cent made is impermissible as the left leg of claimant has been amputated above knee level and there is amputation of two fingers of the right foot also. Disability was to the extent of 85 per cent. Claimant has been rendered unsuitable for any kind of job. He has to support large family. Thus, the compensation be suitably enhanced. Under the other heads inadequate compensation has been awarded, which be also enhanced. ( 10 ) MR. S. K. Rao, the learned senior counsel, appearing with Mr. Ajit Agrawal, advocate, on behalf of the insurer has supported the award. They have submitted that no case for enhancement is made out. Just compensation has been awarded. No interference is called for. ( 11 ) FIRST question for consideration is about the extent of disability incurred by the claimant. It is not in dispute that the claimant has incurred the disability to the extent of 85 per cent. His left leg was amputated above knee level and two fingers of right foot were also amputated. Thus, we affirm the finding that the disability to the extent of 85 per cent has been incurred. ( 12 ) COMING to the question of loss of earning capacity: Though it has been stated by the claimant that he was receiving a sum of Rs. 3,000 per month by working in the shop of utensils, in our opinion, as there is no other supporting evidence, it would be safe to assess the income of the claimant at Rs. 2,000 per month. Disability is to the extent of 85 per cent. Thus, the monthly loss of earning capacity taking the monthly income at Rs. 2,000 comes to rs. 1,700, annual loss comes to Rs. 1,700 x 12 = Rs. 20,400. 2,000 per month. Disability is to the extent of 85 per cent. Thus, the monthly loss of earning capacity taking the monthly income at Rs. 2,000 comes to rs. 1,700, annual loss comes to Rs. 1,700 x 12 = Rs. 20,400. The age of the claimant was 32 years at the time of accident. Thus, the compensation on account of loss of earning capacity comes to Rs. 20,400 x 17 =rs. 3,46,800. We find that the award made by learned Claims Tribunal firstly under the heading of permanent disability of Rs. 50,000 and thereafter under loss of earning capacity owing to the same ought to have been awarded under the one head only. The award of amount under the two separate heads was not called for. Thus, we award under the aforesaid heads taking the aforesaid amount of compensation at rs. 3,46,800. ( 13 ) COMING to the question of expenditure involved: The vouchers were placed of rs. 13,814. We enhance it to Rs. 15,000 and we further award a sum of Rs. 55,000 under the head of physical pain and mental suffering. Under the head of special diet a sum of Rs. 3,000 has been awarded, which is inadequate considering the period in which the claimant remained under treatment, we enhance it to Rs. 5,000. We further award a sum of Rs. 5,000 on account of attendant expenditure and conveyance. Thus, the total compensation which we award thus: 1. Owing to 85 per cent permanent disability Rs . 3,46,800 2. Medical expenditure Rs . 15,000 3. Physical pain and suffering Rs . 55,000 4. Special diet Rs . 5,000 5. Attendant expenditure and conveyance Rs . 5,000 Total Rs . 4,26,800 ( 14 ) THUS, total compensation comes to rs. 4,26,800 (rupees four lakh twenty-six thousand and eight hundred only ). The compensation enhanced by us shall carry interest at the rate of 6 per cent per annum from the date of filing of the claim petition. ( 15 ) RESULTANTLY, the appeal is allowed in part. Parties to bear their own costs as incurred. Appeal partly allowed. .