Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2738 (RAJ)

Krishna Behari Srivastava v. Gajanand

2011-12-13

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the claimant-appellant Krishna Behari Srivastava who sustained 90% disability in a road accident involving the jeep insured by respondent-insurance company. The claimant was riding the motor cycle when he was hit by the jeep from behind. He sustained a severe head injury and was hospitalised in MBS Hospital, Kota. He was aged 51 years at that time. A claim petition was filed for grant of compensation to the tune of Rs.57,90,000. The permanent disability of the appellant was proved to be 90% and accepting that disability, the Tribunal has awarded lump sum compensation of Rs.5,00,000 for the permanent disability, Rs.2,50,000 for actual medical expenses and nutritious diet etc., Rs.37,000 was additionally awarded for transportation and expenses of attendant and a sum of Rs.1,00,000 was awarded on the head of future treatment. Thus a total of Rs.8,87,000 was awarded as compensation. Aggrieved thereby, the appellant has approached this Court by filing this appeal. 2. Shri Shailesh Prakash Sharma, learned counsel for the appellant has argued that the appellant at the relevant time was a distributor by the name of Unipharma Distributor, Kota. He was earlier Technical Officer in J.K. Factory. His basic pay in that factory as on 30.6.1997 was Rs.7,715/- as per certificate dated 4.10.1999 and with that he used to receive various allowances. The last monthly salary credited to his account was Rs.10,600 as was proved from the pay slip of May, 1997. However, the said factory was later on closed down and it was thereafter that the appellant started the business by obtaining the agency in the name of Unipharma Distributors from a reputed pharmaceutical company-UHD Ltd. The agreement with the company-U.H.D. Ltd. Ex.504 was produced in evidence to prove this fact. On account of the fact that the appellant has been completely rendered disabled and is neither able to sit properly, nor walk and he lost all his mental fitness inasmuch as he could not recognise even his wife and other family members and even though he was subjected to various surgeries, but his situation has not improved any further, the award of lump sum compensation of Rs.5,00,000, rather than computing the compensation by applying the structured formula, was not proper. The Tribunal ought to have computed compensation by applying the multiplier method accepting the appellant to be 100% disabled. The Tribunal ought to have computed compensation by applying the multiplier method accepting the appellant to be 100% disabled. It was argued that wife of the appellant was working as Invigilator in prestigious Allen Coaching Institute situated at Kota had to give up her job and even that income has also been lost due to the condition of the appellant. The amount of Rs.37,000 awarded cumulatively for expenses of attendant and transportation for the period of his hospitalisation of that time, is highly insignificant as compared to the care and time that would be required to attend the appellant by his wife and other family members for rest of his life or will have to spent to arrange for a regular attendant for him. Nothing has been awarded on the heading of pain and suffering, although a sum of Rs.2,50,000 has been awarded cumulatively for medical expenses, nutritious diet etc. however, for which medical bills/receipts worth Rs.1,99,270 was produced. It was also proved before the Tribunal that the appellant would be subjected to further surgery and that for grafting the important bone on the skull, which itself would cost Rs.85,000, yet only a sum of Rs.1,00,000 has been awarded for future treatment. 3. Learned counsel for the appellant has also argued that appellant has sustained total seven injuries, out of which four are grievous and three are simple in nature, however, nothing has been awarded for these injuries. It is therefore prayed that the compensation awarded to the appellant deserves to be enhanced suitably. 4. Learned counsel for the respondents opposed the appeal and submitted that compensation has to be just and reasonable and not a bonanza. It is argued that income from the business of pharmaceutical business has not been proved. In fact, the wife of the appellant Rani Srivastava when appeared as AW-1, has stated that appellant used to earn a sum of Rs.6000-7000 per month in a month and that was in the year 1997. From the standards of that time, the amount of compensation that has been awarded is just and reasonable and does not call for any interference. 5. From the standards of that time, the amount of compensation that has been awarded is just and reasonable and does not call for any interference. 5. Learned counsel for the respondents also argued that apart from lump sum amount of Rs.5,00,000 for 90% permanent disability, an amount of Rs.3,87,000 has been separately awarded under different heads and, therefore, the appellant cannot be allowed to contend that the compensation awarded is on lower side. 6. Learned counsel for the respondents also argued that compensation has been twice awarded on the head of transportation. While the element of transportation was included in the amount of Rs.37,000, which has been awarded cumulatively for transportation and expenses of attendants, the Tribunal while awarding a sum of Rs.2,50,000 as against the actual expenses/bills of expenses of Rs.1,99,270, has also mentioned about the consideration of nutritious diet and transportation in that amount. 7. On hearing the learned counsel for the parties and perusing the material on record, I find that parties are ad idem at least on the extent of disability which the appellant suffered in the road accident involving the vehicle insured with the respondent-insurance company. The extent of disability according to the evidence on record was 90%. The evidence also shows that the appellant for rest of life would have to depend upon the family members for survival. In fact, the present status report of the appellant is also proved by recent medical certificate issued by a Medical Board of MBS Hospital, Kota dated 2.5.2011. The grant of lump sum compensation in the facts like this may not be justified. However, the question therefore arises that if the compensation is to be computed by applying multiplier method, what should be the accepted income of the appellant at the time of accident. Though the appellant has claimed that his income should be accepted at what he was getting salary from J.K. Factory, but that was only till 1997 and the evidence in regard to the last salary that the appellant received from J.K. Factory was Rs.10,600, but there is also the evidence that the factory was thereafter closed down and the appellant himself has adduced evidence that he obtained the distributorship of pharmaceutical company. His wife Rani Srivasvata deposed before the Court that appellant used to earn Rs.6000-7000 per month therewith. His wife Rani Srivasvata deposed before the Court that appellant used to earn Rs.6000-7000 per month therewith. The appellant was working as a Technical Officer with the J.K. Factory and that he was getting in the year 1997, a salary of Rs.10,600 per month. It can therefore be deduced therefrom that he was a man of good education and training and at the age of 51 years, he would have been certainly earning a sum of Rs.6,000 and not Rs.10,600 as claimed by the appellant and the Court can therefore proceed to compute the awardable compensation on that basis. 8. The appellant's age at the time of accident has been proved to be 51 years and as per the judgement of Supreme Court Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC), the multiplier of 11 has to be applied for the age group of 51-55 years. Applying the structured formula on the disability of 90% with the multiplier of 11, the amount of compensation comes to Rs.7,12,800 (6000x12x11x90%). Considering the fact that factor of transportation has also been provided in the total amount of Rs.2,50,000 that has been awarded by the Tribunal, the amount of Rs.37,000 that has been separately awarded, is considered for the expenses of attendant only, but that amount in view of the gravity of the injury and devastating effect it had on the life of the appellant and in view of the fact that he would have to throughout survive on the care and assistance of an attendant, the amount of Rs.37,000 deserves to be enhanced to Rs.1,00,000 for expenses of attendant. Further for the four grievous injuries suffered by the appellant, a sum of Rs.5,000 is awarded for each of the grievous injury and Rs.1,000 for each of the three simple injuries is held payable to the appellant. The compensation awarded under other heads namely; Rs.2,50,000 for medical bills, nutritious diet, transportation etc. and Rs.1,00,000 for future medical expenses is however maintained. The total compensation thus would come to Rs.11,85,800 (7,12,800 + 2,50,000+1,00,000+23,000+1,00,000). The amount of compensation is thus enhanced from Rs.8,87,000 to Rs.11,85,800. The appellant shall also be entitled to interest @ 7.5% per annum on the enhanced amount of compensation from the date of filing of the claim petition. 9. The appeal is accordingly allowed. 10. The total compensation thus would come to Rs.11,85,800 (7,12,800 + 2,50,000+1,00,000+23,000+1,00,000). The amount of compensation is thus enhanced from Rs.8,87,000 to Rs.11,85,800. The appellant shall also be entitled to interest @ 7.5% per annum on the enhanced amount of compensation from the date of filing of the claim petition. 9. The appeal is accordingly allowed. 10. Compliance of the judgement be made within a period of three months from the date copy of this judgement is produced before the respondents.