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Rajasthan High Court · body

2012 DIGILAW 1260 (RAJ)

Jagdish Prasad v. Santu Singh

2012-05-14

MOHAMMAD RAFIQ

body2012
RAFIQ, J.—This appeal has been preferred by claimant dissatisfied with quantum of compensation awarded to him by learned Motor Accident Claims Tribunal, Kotputali, vide its award dated 04.10.2004 in MAC Case No.443/2002. 2. Appellant sustained injuries in a road accident on 01.03.2002 involving a jeep bearing registration No.HR-35-8553, which was being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3. As a result of accident, appellant received 13 injuries, three of which were fractures in both legs and one fracture in hand. The medical board, that examined him for assessing his disability, found that there was shortening of his right lower limb by 2½ inch thereby causing disability of 16%. He suffered 3% limping and 3% difficulty in sitting cross-leg, climbing and walking. Thus, total disability sustained by appellant was assessed at 27.31%. The Tribunal has awarded compensation of Rs.76,500/- and cost of Rs.500/-, thus in total compensation of Rs.77,000/- has been awarded. Aggrieved thereby, appellant has approached this court seeking enhancement of compensation. 3. Shri Akshat Choudhary, learned counsel for appellant has argued that learned Tribunal has erred in law in not awarding any compensation to the appellant for future loss of earning capacity. Learned Tribunal failed to appreciate that not only there was permanent disability of 27.31% ,but also shortening of right leg by 2½ inch. Even then, it awarded only a sum of Rs.10,000/- as compensation under this head. Appellant suffered lot of physical pain and mental agony but learned Tribunal has awarded him a small sum of Rs.30,000/- on this head. He has further been awarded compensation of Rs.28,500/- for actual medical expenses. Compensation of Rs.5000/- has been awarded for loss of earning during hospitalization and Rs.2000/- for transportation etc. Learned counsel has relied on a judgment of the Supreme Court in Shashendra Lahiri vs. UNICEF and Others – 1998 ACJ 859. It was argued that appellant was earning a sum of Rs.6000/- per month. The Tribunal has completely ignored this aspect. He also relied on a judgment of the Supreme Court in Sri Ramachandrappa vs. The Manager, Royal Sundraram Alliance Insurance Company Limited – Civil Appeal No.6481/2011 decided on 09.08.2011 = 2011(2) CCR 1269 (SC). Learned counsel argued that the Supreme Court in that case had accepted monthly income of injured at Rs.4,500/- per month, who was working as coolie. He also relied on a judgment of the Supreme Court in Sri Ramachandrappa vs. The Manager, Royal Sundraram Alliance Insurance Company Limited – Civil Appeal No.6481/2011 decided on 09.08.2011 = 2011(2) CCR 1269 (SC). Learned counsel argued that the Supreme Court in that case had accepted monthly income of injured at Rs.4,500/- per month, who was working as coolie. Learned counsel argued that the Supreme Court in Syed Mehaboob vs. The New India Assurance Limited, Civil Appeal No.1441/2011, decided on 07.02.2011, wherein injured had sustained 43% permanent disability to the whole body, as a result of which injuries, he was unable to walk, sit or stand without support and his left lower limb was shortened by 2.5 inches. The Supreme Court upheld the award in that case granting total compensation of Rs.5,77,800/-. Learned counsel also cited judgment of the Supreme Court in ICICI Lombard General Insurance Company Limited vs. Sudesh and Others, Civil MAC App. No.397/2011, decided 09.02.2012, and argued that the Supreme Court therein took cognizance of the fact that even minimum wages notified under the Minimum Wages Act increase from time to time and, therefore, held that deceased, who was working as Plant Engineer, and thus claimants would be entitled to addition of 50% in the income of deceased on account of indexation and increase in minimum wages to provide better standard of living. 4. Shri Akshat Choudhary, learned counsel argued that amount of Rs.30,000/- awarded for physical pain and mental agony, also should be substantially increased. Learned counsel referred to statement of AW-1 injured himself, who has stated that he used to work as cobbler with his brother at Chandigarh and now, after physical disability, he is unable to move to Chandigarh and also to work elsewhere because he cannot sit cross-leg and squat without which it is not possible to work as cobbler. He has stated that he lost two teeth in the accident. His right hand was fractured from the elbow and his both legs were also fractured and in both of which iron roads had to be inserted. It is, therefore, prayed that appeal be allowed and amount of compensation be suitably enhanced. 5. Shri Jitendra Mitruka, learned counsel for respondent opposed the appeal and argued that there is no evidence that appellant was earning Rs.6000/- per month. It is, therefore, prayed that appeal be allowed and amount of compensation be suitably enhanced. 5. Shri Jitendra Mitruka, learned counsel for respondent opposed the appeal and argued that there is no evidence that appellant was earning Rs.6000/- per month. The accident took place on 01.03.2002 and, therefore, at the maximum, it may be accepted that his income was at par with what was notified minimum wages for a skilled labour on that day. In so far as the State of Rajasthan is concerned, on that date the minimum wages for a skilled labour was Rs.66/- per day and, therefore, learned counsel argued that the appellant's income can be accepted at Rs.2000/- per month. Learned counsel argued that on account of pain and suffering the appellant has already been awarded a sum of Rs.30,000/-, which is quite substantial amount considering that accident took place in the year 2002. There is no justification to interfere with the award. The award is perfectly just and reasonable. 6. I have given my anxious and thoughtful consideration to rival submissions and perused the material on record. 7. Indisputably, appellant sustained 13 injuries, which included number of fractures including fracture of both side femurs and ulna bone of right hand and pelvis bone. The appellant also lost certain teeth and suffered displacement of mandible bone. The evidence proved that appellant was working as cobbler at Chandigarh and that after accident he has been rendered unfit to work as cobbler because he is unable to sit cross-leg and squat. There was shortening of his right leg by 2½ inches and now he could walk only with help of clutches. He had used to work as cobbler at Chandigarh and thereby, earned his livelihood. He has been rendered disabled and is dependent on others. There could be, therefore, no justification for the Tribunal in awarding only a small sum of Rs.10,000/- to the appellant for loss of his future earning capacity. The accident has taken place in the year 2002 and the appellant was working as cobbler at Chandigarh. His income must be accepted at Rs.3000/- per month if not Rs.6000/- as claimed by him. On account of 27.31% permanent disability suffered by appellant, it must be held that he has lost his earning capacity at-least Rs.800/- per month and annual Rs.9,600/-. His income must be accepted at Rs.3000/- per month if not Rs.6000/- as claimed by him. On account of 27.31% permanent disability suffered by appellant, it must be held that he has lost his earning capacity at-least Rs.800/- per month and annual Rs.9,600/-. At relevant point of time, appellant was 40 years of age and, for this age, multiplier of 15 would be applicable therefore loss of earning capacity comes to Rs.1,44,000/- (9600x15). 8. The appellant has been awarded a sum of Rs.10,000/- for all injuries sustained by him, which is also maintained, because apart from three fractures referred to above, the appellant received 10 other injuries and thus there were total 13 injuries. However, compensation of Rs.30,000/- awarded for pain and suffering does not appear to be justified. This amount deserves to be suitably enhanced and is hereby raised to Rs.1,00,000/-. The compensation awarded on other heads is maintained. The appellant is awarded compensation as follows, Rs.1,44,000/- for loss of earning capacity, Rs.10,000/- for injuries, Rs.1,00,000/- for physical pain and mental agony, Rs.2,000/- for transportation, Rs.28,500/- for medical expenses, Rs.5,000/- for loss of income during treatment, Rs.500/- as costs of litigation. 9. The appellant is thus now entitled to compensation of Rs.2,90,000/- instead of Rs.77,000/-. The appellant shall also be entitled to interest at the rate of 7.5% on the enhanced amount of compensation from the date of filing of claim petition till its actual realization. 10. The appeal accordingly stands allowed. 11. Compliance of the judgment be made within three months from the date its copy is received by respondents.