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Rajasthan High Court · body

2011 DIGILAW 1979 (RAJ)

Mumtaj Ali v. National Insurance Co. Ltd.

2011-09-14

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been filed by the appellant being aggrieved by the award dated 27.03.2006 of learned Motor Accident Claims Tribunal, Neem-ka-Thana, District Jaipur, in MAC No.44/04. 2. The appellant met with an unfortunate accident with Bus No.RJ 14-P-4366, which was insured with the respondent No.1 National Insurance Company Limited. In that accident, the claimant-appellant received three grievous injuries leading to fracture of tibia shaft of his right leg and 4th-5th metacarpal bone of his left leg. As per the permanent disability certificate (Exhibit P-340), produced before the learned Tribunal, the claimant suffered 40% permanent disability. He remained hospitalized with S.M.S. Hospital, Jaipur, from 08.07.2003 to 15.08.2003 and thereafter he undergone an surgical operation on 22.07.2003. He again remained hospitalized from 28.03.2005 to 01.04.2005 and during this period he was again subjected to surgery on 30.03.2005. The learned Tribunal has awarded lump sum compensation of Rs.1,60,000/- in favour of the appellant. Apart from that, learned Tribunal also awarded Rs.45,000/- towards actual expenses incurred on treatment, Rs.17,000/- and Rs.7,200/- respectively on nutritious diet and transportation charges. Thus total rounded off amount of Rs.2,30,000/- was awarded in favour of the claimant-appellant. 3. Contention of learned counsel for the appellant is that learned Tribunal erred in law in not accepting income of the appellant of Rs.11000/- per month, whereas he was a band master. He had a team of peoples and used to perform in marriages to earn their livelihood. On account of the accident and permanent disability sustained by him therein, the above peoples have left him and therefore he is permanently deprived of earning his livelihood from that means. He used to earn a minimum of Rs.5000/- and on that basis learned Tribunal ought to have calculated the loss of income applying the multiplier of 17 on the basis of his age of 33 years and permanent disability of 40% suffered by him due to the accident. 4. Learned counsel for respondent Insurance Company opposed the appeal and argued that the incident was of the year 2003 and at that time the minimum wages of an unskilled labourer was around RS.70/- per day, therefore it cannot be accepted that appellant would have been earning Rs.5000/- per month. 4. Learned counsel for respondent Insurance Company opposed the appeal and argued that the incident was of the year 2003 and at that time the minimum wages of an unskilled labourer was around RS.70/- per day, therefore it cannot be accepted that appellant would have been earning Rs.5000/- per month. It was argued that the evidence produced on record also was not satisfactory to show that the appellant was bandmaster or that he used to perform in a band of some other person. The assertion of the appellant about his income thus cannot be accepted on mere statement. 5. On hearing learned counsel for the parties, I find that learned Tribunal was not justified in not accepting any particular income of the appellant particularly when evidence, that was adduced, was sufficient to hold that he was a bandmaster and that he used to earn his lively-hood by performing in marriages. The kind of disability that appellant suffered has really put him in great difficulty in earning his livelihood. In this connection, reference be made to the statement of AW-2 Umrao, apart from statement of AW-1 the appellant himself, that he was bandmaster. In the facts of the case, it has to be accepted that certainly the appellant would have been earning more than what was the income stated by the learned counsel for respondent Company of an unskilled labour and his income can be determined as Rs.3000/- per month. On that basis, applying the multiplier of 17 keeping in view 40% permanent disability, the appellant should be held entitled to receive Rs.2,44,800/- (3000x12x40/100) under the head of loss of future income on account of permanent disability, which is rounded off to Rs.2,50,000/-. The award of Rs.70,000/- passed by the learned Tribunal in favour of the appellant under different heads, is not interfered with. 6. The appeal is thus partly allowed. The lump sum compensation of Rs.1,60,000/- awarded by the Tribunal is enhanced to Rs.2,50,000/-. The appellant would be entitled to receive total compensation of Rs.3,20,000/-, including that of Rs.70,000/- awarded under different heads. The appellant would be entitled to interest at the rate of 6% per annum on the enhanced amount from the date of filing of the claim petition i.e. 15.10.2003.