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2010 DIGILAW 15 (PNJ)

Kalsang Minger v. National Insurance Company Limited

2010-01-02

DEEPAK GUPTA

body2010
Judgment Deepak Gupta, J. 1. By means of this appeal the claimant seeks enhancement of compensation. 2. The undisputed facts of the case are that the claimant is 19 years of age. On 29.10.2002 he was traveling in the ill-fated vehicle bearing registration No. HP-01-1879 which met with an accident. It is not disputed that the claimant suffered a fracture in the arm and the leg. He remained admitted in the hospital at Shimla for about one month. He filed a petition for grant of compensation under Sec.166 of the motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr. In this petition, it was alleged that the claimant was working as a carpenter earning Rs.250/- per day. The learned Tribunal did not accept this version. It held that the claimant was a labourer earning Rs.70/- per day. The learned Tribunal awarded Rs.20,000/- on account of medical expenses, Rs.5,000/- on account of attendant charges, Rs.8400/- for four months lay off, Rs.10,000/-for mental pain and suffering and rs.1,20,000/- on account of loss of future income. A total award of Rs.1,63,400/- was passed in favour of the claimant. Not satisfied with this award, the claimant has filed the present appeal. 3. I have heard Ms. Vidushi Sharma, learned vice counsel for the claimant and Ms. Devyani Sharma, learned counsel for the Insurance Company. 4. The finding of the learned Tribunal that the claimant was only a labourer and not a carpenter appears to be correct. Admittedly the claimant was only 19 years of age. He had no vocational training certificate from any I. T. I or other institution. It is not necessary that every carpenter should have such a certificate. But if no such certificate is there, judicial notice of the fact can be taken that firstly a person works as a helper to a carpenter for a number of years and then acquire sufficient skill to work as a carpenter himself. The petitioner could be taken to be a helper of a carpenter since PW/1 also states that he helped in construction of his house. 5. In my view, the learned Tribunal was highly conservative in taking the daily income of a labourer at only Rs.70/- per day. The petitioner belongs to Kinnaur where labour charges are normally much higher and even the helper would get at the relevant time more than Rs.100/- per day. 5. In my view, the learned Tribunal was highly conservative in taking the daily income of a labourer at only Rs.70/- per day. The petitioner belongs to Kinnaur where labour charges are normally much higher and even the helper would get at the relevant time more than Rs.100/- per day. However, work of such nature is not available all the time. It is true that labour rates in Kinnaur may be high but on the other hand, it is also a fact that the period of lay off in Kinnaur is also much longer since virtually no work is done during the winter season in such areas. Taking all the factors into consideration, I feel that the income of the claimant can be assessed at Rs.3000/- per month and not Rs.5000/- per month, as claimed by him. No serious challenge has been laid to the amount awarded to the claimant for medical expenses or attendant charges. Therefore, the award on these amounts is upheld. 6. As far as period of lay off of four months is concerned since the income has been aassessed at Rs.100/-per day or Rs.3000/- per month, the same is increased from Rs.8400/- to Rs.12,000/-. 7. Coming to the question of future pecuniary loss. It has been strenuously contended on behalf of the claimant that since the petitioner is a carpenter or at least a manual labourer, he has become totally unable to earn any amount. Unfortunately, this contention has not been proved on record. 8. Pw/3 is the doctor who issued the disability certificate. According to him, the disability in relation to the right upper limb is 10% and disability in relation to the right lower limb is 10%. No disability in relation to the entire body has been given. Though this witness was examined by the petitioner, this witness has not stated as to whether the petitioner could do manual work or not. His statement in this regard is totally silent. In cross-examination he however, states that the petitioner would not be in a position to attend normal duties. Therefore, some element of disability is there. 9. Even if the petitioner is presently a helper over period of time he would have evolved into a more skilled labourer. He would not have remained an unskilled labourer throughout his life. In cross-examination he however, states that the petitioner would not be in a position to attend normal duties. Therefore, some element of disability is there. 9. Even if the petitioner is presently a helper over period of time he would have evolved into a more skilled labourer. He would not have remained an unskilled labourer throughout his life. Though it may be true that in every case, the percentage of disability will not translate into an equal amount of percentage of loss of income, but evidence has to be led by the claimant to show what is the effect of such disability. This unfortunately has not been done. Therefore, some element of conjecture and guess work is involved. The petitioner obviously is doing manual labour. Even if his arm and leg becomes stiff his earning capacity is going to be effected. 10. Taking into consideration all these factors, the loss of earning capacity is assessed at 20%. Therefore, i am of the view that his loss of earning should be taken at Rs.600/- per month or Rs.7200/- per year. Since the claimant was only 19 years of age at the time of accident, it would be appropriate to apply a multiplier of 18 and compensation for loss of future income works out to Rs.1,29,600/- which is rounded off to Rs.1,30,000/-. 11. Coming to the question of non-pecuniary damage. I feel that the amount of Rs.10,000/-awarded for pain and suffering is on the lower side. Keeping in view the fact that the claimant was admitted in hospital for one month and remained out of work for four months, this amount needs to be enhanced to rs.15,000/-. In addition to this amount for pain and suffering, the claimant is also entitled to amount for future discomfort and loss of amenities which he shall face throughout his life. He cannot walk like a normal human being. His matrimonial prospects may also be adversely effected. Considering all these factors, he is awarded Rs.20,000/- for future discomfort, loss of amenities etc. 12. In view of the above discussion, the appeal is allowed and the compensation is enhanced from rs.1,63,400/- to Rs.2,02000/-. He cannot walk like a normal human being. His matrimonial prospects may also be adversely effected. Considering all these factors, he is awarded Rs.20,000/- for future discomfort, loss of amenities etc. 12. In view of the above discussion, the appeal is allowed and the compensation is enhanced from rs.1,63,400/- to Rs.2,02000/-. As far as the interest is concerned since major portion of the amount awarded is on account of future loss of income, the claimant is held entitled to interest on the aforesaid amount @ only 6% per annum from the date of filing of the claim petition, i. e. , 14.3.2003 till the deposit of the amount. The Insurance Company is directed to deposit the enhanced amount of compensation after adjusting the amount of interest in the Registry of this Court within 12 weeks from today. No order as to costs.