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2008 DIGILAW 515 (JK)

Mushtaq Ahmad v. National Insurance Co. Ltd.

2008-12-26

J.P.SINGH

body2008
J.P. Singh, J. 1. While travelling in a bus bearing registration No. JK 02-B 3875 along with his brother and sister, Mushtaq Ahmad appellant had suffered injuries when a bomb had exploded in the bus. Because of the injuries received in the blast, he suffered loss of hearing which Dr. Mohinder Paul, his witness, had assessed as 84 per cent disability. His Claim Petition No. 490/Claim was allowed by Motor Accidents Claims Tribunal, Jammu vide its award of 29.1.2005, awarding him compensation amounting to Rs. 95,000, i.e., Rs. 80,000 towards loss of amenities of life, Rs. 10,000 for pain and suffering and Rs. 5,000 towards the expenditure he had incurred on his treatment. 2. Dissatisfied with the quantum of compensation assessed by the Tribunal for the injuries he had received and the disability which he had suffered, the appellant has appealed to this court. 3. I have considered the submissions made at the Bar by learned counsel for the parties. 4. While assessing compensation for loss of amenities of life, the Tribunal had disbelieved appellant™s witness Dr. Mohinder Paul who had certified him to be suffering from 84 per cent loss of hearing power. 5. In disbelieving Dr. Mohinder Paul, the Tribunal has misconstrued the note which had been recorded during the course of recording claimants statement by the learned Presiding Officer of the Tribunal. 6. I have gone through the statement of the appellant and the note which learned Presiding Officer had made during the course of recording appellants statement. 7. A reading of the note indicates that in order to make the appellant hear, he had to be communicated in a very high pitch. 8. The Tribunal was not, therefore, right in rejecting Dr. Mohinder Paul™s testimony, in that, the note recorded by the learned Presiding Officer rather supports the expert opinion of Dr. Mohinder Paul. Even otherwise, there was nothing on records, on the basis whereof, the finding of the Tribunal in disbelieving appellant™s witness, may be justified. 9. The statement of Dr. Mohinder Paul gets supported from the statement of the claimant as also the observations of the Presiding Officer who had recorded his statement. 10. Mohinder Paul. Even otherwise, there was nothing on records, on the basis whereof, the finding of the Tribunal in disbelieving appellant™s witness, may be justified. 9. The statement of Dr. Mohinder Paul gets supported from the statement of the claimant as also the observations of the Presiding Officer who had recorded his statement. 10. The evidence on record further indicates that the injuries received by 10 years old Mushtaq Ahmad in the bomb blast, for no fault of his, has rendered him disabled of his hearing power to the extent of 84 per cent throughout his life as the loss of hearing power, according to the expert witness, is irreparable. Impairment of hearing capacity would not permit him to continue his studies. He had, therefore, to shun his studies and thereby lose the career he had yearned. 11. Taking all the facts and circumstances of the case in view, in the light of the evidence which the appellant had produced before the Tribunal which had remained unrebutted, I am of the opinion that the compensation awarded to him by the Tribunal for loss of amenities of life, pain and suffering is inadequate which needs to be enhanced so that he gets just compensation in terms of section 168 of the Motor Vehicles Act. 12. In order to assess just compensation for the injuries which the appellant had received and the disability which has been caused to him, regard needs to be had to what was held by Hon™ble Supreme Court of India in Shaskendra Lahiri v. UNICEF, 1998 ACJ 859 (SC), while dealing with the case of a boy aged 17 years who had suffered permanent disability of shortening of his right leg by three inches. Their Lordships had observed as follows: (2) In a motor accident which occurred on 6.1.1977, the appellant Shashendra Lahiri suffered multiple injuries which required his treatment as an indoor patient in a hospital at Bhopal and then in a Bombay hospital for a considerable period. The injuries caused several fractures and bone-grafting was required to be done in Bombay. The appellant suffered permanent disability of shortening of his right leg by 3 inches. He was then a student of B.Com. aged about 17 years. It is common ground that the appellant thereafter continued his education and has a good academic career. The Tribunal awarded the sum of Rs. The appellant suffered permanent disability of shortening of his right leg by 3 inches. He was then a student of B.Com. aged about 17 years. It is common ground that the appellant thereafter continued his education and has a good academic career. The Tribunal awarded the sum of Rs. 33,000 only with interest at the rate of 6 per cent per annum towards the claim of more than Rs. 6,00,000 by the appellant. The High Court has enhanced that amount to the total of Rs. 58,000 with interest at the rate of 12 per cent per annum from the date of the claim, until payment. This further appeal by the claimant is for enhancement of that amount. (3) The narration of facts as above is sufficient to indicate that the total award of Rs. 58,000 inclusive of the expenses, is too inadequate for the permanent disability suffered by the claimant. In the special leave petition, the appellant has said that the minimum enhancement of Rs. 4,00,000 should have been made by the High Court in the facts and circumstances of the present case. In our opinion, this prayer of the appellant is quite reasonable. In view of the age of the appellant at the time of the accident and the prospects in view of his good academic career, the adverse effect of his permanent disability as a result of the motor accident on his future prospects, is much more than that assessed by the High Court. Award of a further sum of Rs. 4,00,000 in addition to that awarded by the High Court is quite reasonable. In our opinion, enhancement of the amount of compensation to this extent has to be made at this stage.� 13. Keeping in view appellant™s 84 per cent loss of hearing power, burn injuries he had suffered on his both legs, the life of a disabled which he has to lead all through his life and the irreparable damage which has been caused to him in discontinuing his studies and marring his career he had aspired for, besides losing amenities of life to a great extent, I am of the opinion that an amount of Rs. 1,50,000 more needs to be awarded to him for pain and suffering and loss of amenities of life. 14. The award of the Tribunal is, accordingly, modified to be an award for an amount of Rs. 1,50,000 more needs to be awarded to him for pain and suffering and loss of amenities of life. 14. The award of the Tribunal is, accordingly, modified to be an award for an amount of Rs. 2,45,000 along with interest at the rate of 9 per cent per annum. 15. This appeal, therefore, succeeds and is allowed as indicated above.