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2011 DIGILAW 2621 (RAJ)

Vijendra Kumar v. Saleem

2011-11-29

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—These two appeals have been filed by the injured-claimants assailing the award of the Motor Accident Claims Tribunal, Bandikui dated 14.7.2003 whereby award in the sum of Rs.40,831/- has been awarded in favour of appellant-Vijendra Kumar and Rs.1,43,133/- has been awarded in favour of appellant-Hem Chand Jain @ Bunty, respectively. Appeals have been filed for enhancement of compensation. 2. In appeal filed by appellant-Vijendra Kumar, he sustained permanent disability of 7.76% in the road accident took place on 23.3.2000 involving motor vehicle insured with respondent No.3-New India Insurance Co.Ltd. Claimant asserted that he was a salesman and his monthly income was Rs.5,000/- per month but the learned Tribunal erred in law while accepting his income to be Rs.2,000/- per month only and on that basis, applied the multiplier of 18. Tribunal computed compensation of Rs.33,523/- with additional amount of compensation of Rs.4,000/- for four injuries and Rs.2,708/- for medical expenses and in all, award for Rs.40,831/- as compensation has been passed. 3. Shri J.P. Gupta, learned counsel appearing for the appellants has argued that appellant-Vijendra Kumar was working as a sales person and the evidence was produced i.e. the certificate issued from M/s.Daudayal & Sons Exh.144 dated 4.12.2002 (30.8.2000) to prove that monthly income of Vijendra Kumar from the commission was between Rs.5000/- to Rs.6000/- per month, which includes expenses of travel however, due to sustaining 7.76% permanent disability, his income is reduced certainly. Learned counsel submitted that while for the four injuries learned Tribunal awarded compensation for Rs.4,000/- but nothing has been awarded for one grievous injury. 4. As regards appellant-Hem Chand Jain @ Bunty, Shri J.P. Gupta, learned counsel appearing for the appellants argued that he sustained permanent disability of 26.16%. It was proved that he was running a shop in the name & style of M/s.Shubham Departmental Store, which was a grocery shop and he was earning Rs.6,000/- per month but the learned Tribunal erred in law while accepting his income to be Rs.2,000/- per month only. Number of documents have been produced on record to prove that he used to purchase various articles from firms at Hindaun City, Mahwa and Faridabad. The documents run from Exh.88 to Exh.146. Number of documents have been produced on record to prove that he used to purchase various articles from firms at Hindaun City, Mahwa and Faridabad. The documents run from Exh.88 to Exh.146. The Tribunal has not given any cogent reason why all those documents should be disbelieved and why assertion of the appellant that he was running a grocery shop in the name & style of M/s.Shubham Departmental Store should not be believed. His case cannot be placed at the same level as that of co-claimant Vijendra Kumar, who was working as a sales-man on commission basis. He certainly must be held to have been earning more than him and if not Rs.6,000/- per month. Learned counsel argued that Exh.71 to Exh.116 are all those documents, which proved that appellant-Hem Chand Jain @ Bunty incurred a sum of Rs.52,701.18 on medical treatment but the learned Tribunal has erred while not awarding the aforesaid actual medical expenses and awarded only a sum of Rs.10,042/- for medical expenses. 5. Shri Amit Dhawan, learned counsel appearing for respondents No.1 and 2 and Shri Shiv Garg, learned counsel appearing for respondent No.3-New India Insurance Co.Ltd. have opposed both the appeals filed by the appellants and argued that the common award passed by the Tribunal in both these cases is perfectly justified. 6. Having heard learned counsel for the parties and perused the award, I find that that the certificate given by M/s.Daudayal & Sons Exh.144 dated 4.12.2002 (30.8.2000) is to the effect that appellant-Vijendra Kumar used to supply readymade garments from their shop to another shop owners in Mahwa and Sikrai, District Dausa on commission basis and Rs.5,000/- to Rs.6,000/- used to be the monthly commission out of which he would have incurred expenses on travel. He was working with them for last 13 months. No correspondents were obtained from the firm proving that commission but the certificate proved RST and CST of the firm. In the circumstances, he would incur expenses on travel about Rs.500/- to Rs.600/- at the relevant time and he was working only for last 13 months with them. Therefore, the Tribunal rightly accepted the income of appellant-Vijendra Kumar to be Rs.2,000/- per month. However, the Tribunal was not justified in not awarding any compensation for pain and suffering and for one grievous injury. Therefore, the Tribunal rightly accepted the income of appellant-Vijendra Kumar to be Rs.2,000/- per month. However, the Tribunal was not justified in not awarding any compensation for pain and suffering and for one grievous injury. I am not interfering with the finding of the Tribunal on other aspects however, appellant-Vijendra Kumar is held entitled to receive additional amount of compensation of Rs.5,000/- for one grievous injury of femere bone and Rs.10,000/- for pain and suffering. Award on all other non-pecuniary heads is maintained. 7. In case of appellant-Hem Chand Jain @ Bunty, I find some worth in the submission as asserted by the learned counsel for the appellants that appellant should be held to have been earning more than appellant-Vijendra Kumar and if not Rs.6,000/- per month and therefore, income of appellant-Hem Chand Jain @ Bunty is accepted at Rs.3,500/- per month. Tribunal was also not justified in awarding a cumulative sum of Rs.15,000/- for pain and suffering, nutritious diet and purchase of articles as compensation to appellant-Hem Chand Jain @ Bunty. Nothing was awarded for loss of income though he proved that he used to run his shop and remained hospitalized for about 32 days. That apart, learned Tribunal also erred in law while not awarding actual medical expenses incurred on purchase of medicines and laboratory tests amounting to Rs.52,701.18 to appellant-Hem Chand Jain @ Bunti, which fact is evident from the documents on record as Exh.71 to Exh.116, showing the purchase of medicines. These documents also corroborate the fact that appellant-Hem Chand Jain @ Bunti remained hospitalized in Khandaka Hospital for as many as 32 days corresponding to that period. The Tribunal though in para 23 of the award has accepted bills from Exh.71 to Exh.116 but computed only a sum of Rs.10,042/- against these bills amounting to Rs.52,701.18. Thus, appellant-Hem Chand Jain @ Bunty is held entitled to receive amount of compensation of Rs.25,000/- for pain and suffering, Rs.10,000/- for nutritious diet and Rs.10,000/- for attendant. However, the award on other non-pecuniary head i.e. Rs.2880/- for transportation charges is maintained but the compensation amount of Rs.2220/- granted by the Tribunal for loss of income of one month is enhanced to Rs.3500/-. Actual medical expenditure incurred on the treatment of appellant-Hem Chand Jain @ Bunty (Exh.71 to Exh.116) amounting to Rs.52,701.18 is accepted. 8. In the result, both the appeals are allowed. Actual medical expenditure incurred on the treatment of appellant-Hem Chand Jain @ Bunty (Exh.71 to Exh.116) amounting to Rs.52,701.18 is accepted. 8. In the result, both the appeals are allowed. The award of the Motor Accident Claims Tribunal, Bandikui dated 14.7.2003 is modified in the following terms:- (a) In the case of appellant-Vijendra Kumar, compensation of Rs.40,831/- is enhanced to Rs.55,831/- (Rs.5,000/- for one grievous injury of femere bone & Rs.10,000/- for pain and suffering). Differential amount:- Rs.15,000/- (Rs.55,831/- - Rs.40,831/-) (b) In the case of appellant-Hem Chand Jain @ Bunty, compensation of Rs.1,43,133/- is enhanced to Rs.3,01,850/-(r.f.)(3500x12x18x26.16% = 1,97,769 + 25,000 + 10,000 + 10,000 + 2880 + 3500 + 52,701 (r.f.)) thus:- Rs.1,97,769/- loss of dependency Rs.25,000/- pain & suffering Rs.10,000/- nutritious diet Rs.10,000/- attendant Rs.2880/- transportation charges Rs.3500/- loss of one month income Rs.52,701/- actual medical expenses Differential amount:- Rs.1,58,717/- (Rs.3,01,850/- – Rs.1,43,133/-) (c) Both the appellants are entitled to receive interest on the enhanced amount of compensation respectively of Rs.15,000/- & Rs.1,58,717/- @7.5%. from the date of filing their respective claim petition. (d) Record be transmitted back to the Tribunal forthwith.