Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 168 (MP)

Sarwar Aalam v. Arun Kumar Chang

2010-02-09

J.K.MAHESHWARI

body2010
JUDGMENT : Maheshwari, J. 1 This appeal is filed by the appellant under section 173 of the Motor Vehicles Act against an award dated 25.3.2009 passed by the learned Tenth Member, M.A.C.T., Indore in Claim Case No. 219 of 2006. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 7,87,000 with interest to the appellant by way of compensation for the injuries sustained in the accident occurred on 28.5.2006. 2 The appellant had preferred a claim petition under section 166 of the Motor Vehicles Act, seeking compensation to the tune of Rs. 24,00,000. According to the appellant, compensation awarded by the Tribunal is meagre and deserves enhancement. Therefore, by filing the appeal, inadequacy of the compensation has been assailed. 3 The Claims Tribunal has awarded a total sum of Rs. 7,87,000 out of which Rs. 6,12,000 awarded in the head of future loss of earnings treating it to be a case of complete loss of earnings, while calculating same the Tribunal has deducted 1/3rd towards personal expenses. For medical expenses Rs. 1,50,000 was granted while Rs. 25,000 for general damages. 4 Mr. Atul Jaiswal, learned counsel for the appellant has strenuously urged that the Tribunal while recording the finding of permanent disability arrived at conclusion that it is a case of complete loss of earning capacity because the appellant now requires a permanent attendant for whole life due to injuries received by him. The appellant has been brought by the attendant before this court. It is contended by him that in such a case 1/3rd deduction towards personal expenses cannot be made, however, the Tribunal has committed an error while granting compensation. It is further contended by him that appellant has proved his earnings at Rs. 4,000 per month, which he was getting from doing supervisory work in Asfaiting and Toll Highways India Ltd. It is also contended by him that the salary slip of last month certificate has been produced and employer has deposed to prove the earnings of the injured. The Tribunal believing it has rightly accepted the earnings of Rs. 4,000 per month. As per the finding, if it is accepted that it is a case of complete future loss of earnings due to permanent disablement, then applying the multiplier theory, total loss of earnings comes to Rs. 8,16,000. The Tribunal believing it has rightly accepted the earnings of Rs. 4,000 per month. As per the finding, if it is accepted that it is a case of complete future loss of earnings due to permanent disablement, then applying the multiplier theory, total loss of earnings comes to Rs. 8,16,000. For medical expenses total amount has been granted, but in general damages only Rs. 25,000 has been allowed. It is also contended by him that the appellant requires an attendant for whole life, however, some amount may be awarded for an attendant also. In view of the above, prayer is made to enhance the compensation as granted by the Tribunal. 5 Mr. Manoj Jain, the learned counsel appearing for respondent insurance company opposes the prayer for enhancement of compensation by filing cross-objection on 9.2.2010. It is contended by him that earnings of the deceased Rs. 4,000 per month as accepted by the Tribunal is arbitrary, because no account of employer to prove the earnings of the injured Rs. 4,000 has been filed, however, the Tribunal has committed an error in accepting the earnings at Rs. 4,000. So far as deduction of 1/3rd in the case of injury while calculating the compensation, it is fairly conceded by him that such deduction may not be made by the Tribunal. It is further contended by him that in the present case finding as recorded by the Tribunal that the appellant is having complete future loss of earnings due to permanent disablement, then in such circumstances the amount of compensation as per salary slip applying the multiplier theory would be just and proper, therefore, enhancement may not be directed. 6 After having heard learned counsel for the parties and on perusal of the records, it is seen that appellant has received fracture of spinal cord for which half vertebra was removed, he is also having a fracture of left clavicle and 6 to 10 ribs. On account of fracture of L-2 vertebra, appellant is not in a position to perform his daily routine work without the help of attendant. He has been brought to the court on the shoulder of two attendants, in such circumstances finding as recorded by the Tribunal for complete loss of earnings due to said permanent disability is liable to be upheld. He has been brought to the court on the shoulder of two attendants, in such circumstances finding as recorded by the Tribunal for complete loss of earnings due to said permanent disability is liable to be upheld. So far as the income is concerned, it is seen from the record that the salary certificate of the employer is available on record and the employer has come forward in the witness-box to support such certificate. Salary slip of the previous month to the date of accident is made available on record which is admitted by the employer. On going through the evidence it is apparent that injured was getting Rs. 4,000 per month salary from the private employment by doing the supervisory work. Now he is not in a position to perform any work, in such circumstances he has lost complete earnings, therefore, earnings of appellant at Rs. 4,000 has rightly been accepted by the Tribunal and cross-objection filed by insurance company before this court is liable to be rejected. If we accept the earnings at Rs. 4,000 per month then total annual loss of earnings comes to Rs. 48,000. As per the age, multiplier of 17 shall be applicable, thereby future loss of earnings due to said permanent disability comes to Rs. 8,16,000 which is being granted. The Tribunal granted all the medical expenses which is of Rs. 1,50,000 and Rs. 25,000 towards general damages. In the opinion of this court the appellant would require one attendant for his whole life. However, Rs. 1,00,000 deserves to be granted in the head of attendant for whole life. The said amount may be deposited in the fixed deposit thereby appellant may get interest approximately Rs. 1,000 per month, thereby he can bear his attendant charges. It is thought proper to direct that the amount of Rs. 1,00,000 which is being paid for attendant charges for whole life shall be kept in fixed deposit. The Tribunal shall pass an appropriate order for depositing such amount at present native place of appellant, i.e., U.P. where he can get interest regularly to bear the attendant charges. 7 Looking to the facts and the physical position of appellant Rs. 50,000 is further being allowed in the head of loss of amenities of life and pain and suffering. Thus total compensation comes to Rs. 11,41,000. 7 Looking to the facts and the physical position of appellant Rs. 50,000 is further being allowed in the head of loss of amenities of life and pain and suffering. Thus total compensation comes to Rs. 11,41,000. If we deduct the compensation already granted by the Tribunal then remaining enhanced amount comes to Rs. 3,54,000 which is liable to be paid to the appellant in addition to the compensation already allowed by the Tribunal. Accordingly, this appeal is allowed in part and the cross-objection filed by the insurance company is rejected. The enhanced amount of Rs. 3,54,000 shall carry interest of 7.5 per cent per annum till its realization. 8 In view of the aforesaid, this appeal is allowed in part and the appellant is held entitled to receive total sum of Rs. 3,54,000 in addition to the amount of compensation already awarded by the Tribunal. The enhanced amount shall carry interest at the rate of 7.5 per cent from the date of claim petition till its realization. In the facts and circumstances of the case parties are directed to bear their own costs.