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Rajasthan High Court · body

2011 DIGILAW 2298 (RAJ)

Reliance General Insurance Co. Ltd. v. Balveer

2011-11-01

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by Reliance General Insurance Company Limited challenging the award dated 23.07.2011 passed by learned Motor Accident Claims Tribunal, Fast Track, Kotputali, District Jaipur, in MAC Case No.273/2011, by which learned Tribunal has awarded compensation of Rs.12,00,000/- to the claimant Balveer. The claimant, aged 34 years, met with an accident when he was hit by Truck No.RJ-32-GA-1389, that was insured with the appellant insurance company and, as a result of the accident, both his legs were amputated. The disability certificate (Exhibit-12) proves that claimant sustained 98% disability, which was almost 100%. Being dissatisfied with the aforesaid award, the appellant insurance company has filed present appeal. 2. Shri Virendra Agrawal, learned counsel for the appellant insurance company, has argued that learned Tribunal has erred in holding driver of the truck to be solely negligent. There was no eye witness to the incident. Mere filing of charge-sheet in the court concerned against him by the police for offence under Section 304A IPC, does not conclusively prove the factum of negligence on his part. The claimant has to independently prove that the accident took place due to negligence of driver of the vehicle. Neither father of the claimant nor investigating officer has appeared as witness in the witness box. No one has appeared as an eye witness. Reliance was placed by learned counsel for the appellant on the judgment of the Supreme Court in Oriental Insurance Company vs. Meena Variyal – 2007 (1) MACD 390 (SC), to argue that it is the claimant who has to prove his case. In the present case involvement of the truck has not been satisfactorily proved and, in absence of direct evidence, it cannot be accepted. Learned Tribunal has erred in law in accepting income of the claimant to be Rs.5000/- per month merely on the basis of oral testimony. No documentary evidence with regard to agricultural fields and on that basis claiming agriculture income, has been produced. In absence of evidence, the income should have been assessed at Rs.15000/- per annum as notional income as has been given in second schedule to the Motor Vehicles Act, 1988. The disability certificate by itself does not prove the disability unless it is satisfactorily proved by oral evidence of medical-officer/doctor. It has not been proved whether there is loss of earning capacity. The disability certificate by itself does not prove the disability unless it is satisfactorily proved by oral evidence of medical-officer/doctor. It has not been proved whether there is loss of earning capacity. Learned counsel also relied on the judgment of the Supreme Court in Raj Kumar vs. Ajay Kumar and Another – MACD 2011 (SC) 33 = 2011(1) CCR 71 (SC). 3. Per contra, Shri Dheeraj Tripathi, learned counsel appearing for claimant-respondent, opposed the appeal and argued that fact about amputation of both legs of the claimant is satisfactorily proved. The driver overran the truck and as a result of which the legs of the claimant were amputated. The claimant was standing on 'kachcha' road. The truck being driven by the respondent-driver was in high speed. The respondent driver was wholly negligent in driving the vehicle. It was a rash and negligent driving by him. The truck hit the claimant and overran both of his legs. He was similarly referred to Primary Health Center, Patan, from where he was referred to S.M.S. Government Hospital, Jaipur. Both of his legs were amputated by the doctors of that hospital at Jaipur. The age of the claimant at the relevant time was 37 years and therefore multiplier of 16 was rightly applied. The income of Rs.5000/- has been accepted because the appellant was 37 years of age at the relevant time. As per the Government of Rajasthan notification, minimum daily wages prescribed is Rs.135/- for unskilled labour, Rs.145/- for semi-skilled, Rs.155/- for skilled and Rs.215/- for highly skilled labourer, and even if he is accepted to be a skilled labour, the minimum wages for him is Rs.155/- per day. The claimant, apart from cultivating work, was also doing the work breeding the cattle and also dairy farming. It is on that basis, learned Tribunal has accepted the income of Rs.5000/- per month. Learned counsel for respondent has relied on the judgment of the Supreme Court in Kumaresh vs. Divisional Manager, National Insurance Company Limited and Another – MACD 2011 (SC) 153, in which case the claimant lost one of his legs. The Tribunal awarded compensation, and, on appeal, the High Court enhanced the same to Rs.5,48,000/-. Learned counsel for respondent has relied on the judgment of the Supreme Court in Kumaresh vs. Divisional Manager, National Insurance Company Limited and Another – MACD 2011 (SC) 153, in which case the claimant lost one of his legs. The Tribunal awarded compensation, and, on appeal, the High Court enhanced the same to Rs.5,48,000/-. When the matter was taken to the Supreme Court by the claimant, the Supreme Court further enhanced the awarded compensation to Rs.10,00,000/.- In that case also, the claimant was a cattle worker and claimed that he was earning Rs.5000/- per month. However, his monthly income was accepted at Rs.4000/-. It is, therefore, prayed that the appeal be dismissed. 4. I have given my anxious and thoughtful consideration to rival submissions and perused the material on record. 5. In the present case it cannot be said that there is no evidence with regard to income of the deceased. Although, it is another matter that there is no documentary evidence but then oral evidence is such which reasonably prove that the claimant had an occupation where his income can be reasonably accepted, the court can rely on such evidence. The claimant in his own statement has stated that he has ten bigha of land and used to earn a sum of Rs.3,00,000/- per annum by cultivating the land. Apart from that, he also used to earn a sum of Rs.1,50,000/- by dairy farming and animal husbandry. Now both his legs have been amputated and he has been rendered completely dead wood. The Tribunal has, however, not accepted his income to be Rs.4,50,000/-, yet, considering the fact that the Govt. of Rajasthan has issued a notification with effect from 1.1.2011 notifying the minimum daily wages of Rs.135/- for unskilled labour, Rs.145/- for semi-skilled and Rs.155/- for skilled and Rs.215/- for highly skilled labourer, and taking into account the kind of work that was being done by the claimant, the Tribunal has accepted a sum of Rs.5000/- as his monthly income. The disability of 98% has been accepted as 100%, which is fully justified and, at the age of 36-37 years, the multiplier of 16 is also perfectly just and legal. The disability of 98% has been accepted as 100%, which is fully justified and, at the age of 36-37 years, the multiplier of 16 is also perfectly just and legal. The learned Tribunal has taken note of judgment of the Supreme Court in Raj Kumar vs. Ajay Kumar – MACD 2011 (SC) 33 = 2011(1) CCR 71 (SC), which has been cited by learned counsel for the appellant but that judgment fully supports the case of the claimant-respondent because what has been held in that judgment is that loss of earning capacity would not to be mechanically accepted on the basis of percentage of disability indicated in the disability certificate by the doctor. The disability has to be assessed in terms of the whole body and not just for a particular limb of the body. The learned Tribunal should not have mechanically applied the percentage of permanent disability and loss of earning capacity arising out of permanent disability will be different from percentage of permanent disability but here in the present case when both the legs of the claimant have been amputated how possibly one can assume that his earning capacity is to be judged at a lesser percentage despite amputa-tion of his both legs at lesser percentage. In fact, the Supreme Court in recent judgment in Sri Nagarajappa vs. The Divisional Manager, The Oriental Insurance Co. Ltd. – MACD 2011 (SC) 79 = 2011(1) CCR 524 (SC), while dealing with a case of coolie, who sustained disability in his one hand was described by the medical board to be 16%, accepted his disability to be hundred percent and on that basis awarded the compensation, which was because the Court held that when the effective help of his hand, the claimant would possibly not be able to work as a coolie. In a recently delivered judgment in Kumaresh vs. Divisional Manager, National Insurance Co. Ltd. and Another – MACD 2011 (SC) 153, the Supreme Court was dealing with a case of amputation of right leg below knee and the Supreme Court enhanced the compensation to Rs.10,00,000/- with interest at the rate of 9%, from Rs.5,48,000/- awarded by the High Court. In a recently delivered judgment in Kumaresh vs. Divisional Manager, National Insurance Co. Ltd. and Another – MACD 2011 (SC) 153, the Supreme Court was dealing with a case of amputation of right leg below knee and the Supreme Court enhanced the compensation to Rs.10,00,000/- with interest at the rate of 9%, from Rs.5,48,000/- awarded by the High Court. Learned Tribunal has also relied on the judgment of the Supreme Court in Sawant Kumar vs. Amir Ali and Another – 1999(1) TAC 413 (SC), and Sri Nagarajappa vs. The Divisional Manager, The Oriental Insurance Company Limited – MACD 2011 (SC) 79 = 2011(1) CCR 524 (SC). The Tribunal has awarded a sum of Rs.50,000/- on the head of loss of amenities, and Rs.1,00,000/- have been cumulatively awarded for medical expenditure of Rs.39,694.66, special nutritious diet, attendant at the rate of Rs.3000/- per month, transportation, maintenance of three-wheeler, which was also just and reasonable. For future medical expenditure, a sum of Rs.30,000/- was rightly awarded. A sum of Rs.10,000/- was awarded for loss of earning during the period of hospitalization. Thus, a total amount of Rs.12,00,000/- was awarded. Award of Rs.12,00,000/- at the first blush, appears to be excessive when one finds that it is not a death claim but it has to be considered from the stand point of the person who has lost both his legs in the accident and in such a situation his pain, agony and suffering would be much more than what the claimant in death claim would suffer because in this case, it is the claimant who throughout his life would have to undergo the misery of being a crippled solely dependent on others. 6. In view of above discussion, I do not find any infirmity in the award. The appeal is therefore dismissed.