Branch Manager, Oriental Insurance Co. Ltd. v. Surendra Kumar Jain
2011-11-15
MOHAMMAD RAFIQ
body2011
DigiLaw.ai
Hon'ble RAFIQ, J.—This appeal has been preferred by the appellant insurance company against the award of the Motor Accident Claims Tribunal, Beawar by which compensation of Rs.23,25,600/- has been awarded as compensation for the permanent disability of 45% sustained by the claimant in a road accident involving vehicle insured with the appellant insurance policy. 2. Shri Virendra Agarwal, learned counsel for the appellant has argued that the calculation of loss of income has been made on conjectures and surmises and that there is no definite evidence of income of the injured. The evidence is that as on the date of deciding claim petition, there was shortening of leg by one and half inches but it was given out that the Doctors have advised amputation of leg, but leg is not being amputated yet. Learned counsel argued that the Tribunal has relied on Ex.11 letter of contract given by M/s. Shree Cement Ltd. in favour of one M/s. M.S. Enterprises, Pali Bazar, Beawar but it was not proved in evidence as to whether the claimant was proprietor of the said firm or was the owner or was actually the partner of the proprietory firm. Ex.12, which has been heavily relied by the learned Tribunal is merely a letter addressed to M/s. M.S. Enterprises, Pali Bazar, Beawar wherein attention of Shri Surendra Kumar Jain was drawn to say that due to poor performance the contract was terminated. The Tribunal on that basis has deduced that since the claimant used to supply the stones worth Rs.1,00,000 every month, he must have been at least earning 12% income out of that which comes to Rs.12,000 per month. It is on that basis that the income of the claimant has been accepted as Rs.12,000/- per month. Learned counsel invited attention of the Court towards the pleadings in the claim petition and submitted that in para 5 and 6 thereof the claimant has pleaded that he was in service as well as was having his business. While he has indicated a sum of Rs.20,000/- per month as income from business, Rs.2,000 was stated to be from service. It has not been specified even in the pleadings as to where the claimant is serving. The income of Rs.20,000/- per month from business has also not at all been substantiated.
While he has indicated a sum of Rs.20,000/- per month as income from business, Rs.2,000 was stated to be from service. It has not been specified even in the pleadings as to where the claimant is serving. The income of Rs.20,000/- per month from business has also not at all been substantiated. The Tribunal has mechanically accepted the income to be Rs.12,000 per month and on that basis awarded a sum of Rs.11,01,600/- as a loss of income. The age of the claimant was 36 years and according to Second Schedule to the Motor Vehicles Act, multiplier of 16 should have been applied, whereas Tribunal has applied the multiplier of 17, which is not correct multiplier. 3. No one has been appearing in this matter for last quite some time though adjournments have been sought on behalf of learned counsel representing claimant. Today again no one has appeared, yet the matter has been heard on the basis of evidence recorded and has been considered taking the findings recorded by the Tribunal as the submissions of the claimant. 4. It is indeed evident from the pleadings of the claim petition that the claimant not only pleaded that he was in employment having monthly salary of Rs.2,000 per month, he also pleaded that he also was having business and earning income of Rs.20,000 per month from such business. Though there is some evidence as regards business of the claimant, but nothing has come on record that as to what is his service and who was his employer and what were the conditions of his service. The Tribunal has accepted M/s. M.S. Enterprises as the proprietorship firm of the claimant, but even it is accepted that it has been granted contract for supply of quantity of grits/stones, Rs.12,000 would be the monthly income of the claimant, cannot be substantiated. The claimant himself has admitted in the witness box that he has given sufficient evidence as to the treatment taken and the expenditure incurred therein, but on the aspect has also stated that he was awarded contract for supply of grits/stones to Shree Cement Ltd., but nothing has been specified by him as regards his employment and the actual income therefrom, therefore, accepting the monthly income of the claimant as Rs.12,000/- per month would not be justified.
However, the evidence can be safely relied but except that it is the fact that he was having the business of supply of grits/stones and that his monthly dependency on that basis on the safer side can be accepted at Rs.6,000/- per month and not Rs.12,000/- per month, which should also include the element of service, if any, he is serving, although this has not been evidently proved. It is on that basis that if computation of loss of income is made, it would come to Rs.2700 per month. Thus the total compensation comes to Rs.2700x12x16=Rs.5,18,400. As regards, the actual expenditure incurred by the appellant, he has given sufficient evidence and there are documents on record to prove that number of times, claimant had to remain hospitalised in Bombay Hospital & Medical Research Centre, and had to incur huge expenditure. He had also incurred expenditure for going to Mumbai and coming back by flight. Number of documents are on record to prove that fact. There are also other documents proving that the claimant has incurred expenditure in making STD calls to Doctors for consultation etc. The evidence is also on record suggesting that the Doctors at that time had advised that engrafting of brain had to be done for restoring proper supply of blood and for that more expenditure will also have to be incurred, therefore, the amount of compensation was awarded to the tune of Rs.4,50,000 for actual expenditure and Rs.4,50,000 for future expenditure. On other heads i.e. Rs.80,000 awarded for attendant is not interfered with. However, the amount of Rs.1,44,000 for the loss of income of one year is reduced to half since the monthly income has been accepted at Rs.6,000/- per month and not Rs.12,000/-. However, the amount of Rs.1,00,000/- for pain and suffering is also maintained. Thus the total compensation of Rs.23,25,600 is reduced to Rs.16,70,400. The insurance company shall be entitled to refund all the amount in excess of such amount deposited in the bank/FDR and the remaining amount may be disbursed to the claimants. The appeal is accordingly allowed in part.