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2012 DIGILAW 691 (JK)

Union of India & Anr. v. Balwinder Singh & anr.

2012-10-31

MANSOOR AHMAD MIR

body2012
1. The subject matter in this appeal is award dated 17.07.2010 passed by the Motor Accidents Claims Tribunal, Jammu, in File No.755/Claim, titled as S. Balwinder Singh vs Union of India & others, whereby an award of Rs.15,25,600/- along with interest @ 7.5% came to be awarded in favour of claimant Balwinder Singh and against the Union of India from the date of filing of the claim petition till its realization (for short, impugned award), on the grounds taken in the memo of appeals. 2. In order to return a finding, it is necessary to give brief resume of the case, the womb of which has given birth to the present appeals. 3. It is averred in the claim petition that claimant Balwinder Singh is a shopkeeper by profession and is running a utensils shop at Moti Bazar, Jammu. He was earning Rs.15/16 thousand per month. He is married and has two daughters. On 09.11.2006, the offending vehicle, bearing No.04D15979L (Army Truck), which was being driven by respondent no.2, namely, Vishnav Dass, rashly and negligently, hit one Motorcycle, bearing registration No.JK02AA/2495, which was being driven by claimant Balwinder Singh and one Gulzar Ahmed was a pillion rider, at Sidhra Bye Pass, Jammu, as a result of which claimant Balwinder Singh as well as Gulzar Ahmed sustained grievous injuries. They were taken to Acharaya Shri Chander College of Medical Sciences and Hospital, Sidhra, Jammu, where Gulzar Ahmed remained admitted for 15 days. Claimant Balwinder Singh remained in coma for more than one week and, thereafter, remained under treatment for six months. He was then taken to Karan Singh Hospital at Amritsar, where he was operated upon. He spent about Rs.6/7 lacs on his treatment. Even now he is under treatment and is spending Rs.20,000/- per month. He has suffered 50% permanent disability. He has to engage the services of a helper, whom he is paying Rs.5/6 thousand per month, who is also helping him in running the shop. Claimant Balwinder Singh filed a claim petition before the learned Tribunal claiming compensation. 4. Union of India contested the claim petition and following issues came to be framed: “1. He has to engage the services of a helper, whom he is paying Rs.5/6 thousand per month, who is also helping him in running the shop. Claimant Balwinder Singh filed a claim petition before the learned Tribunal claiming compensation. 4. Union of India contested the claim petition and following issues came to be framed: “1. Whether an accident occurred on 09.11.2006 near Sidhra Bye Pass, Jammu, by the rash and negligent driving of offending army vehicle No.04D15979L being driven rashly and negligently in the hands of erring driver in which petitioner S. Balwinder Singh and Gulzar Ahmed sustained grievous injuries? OPP 2. If issue No.1 is proved in affirmative, whether petitioners are entitled to the compensation, if so, to what amount and from whom? OPP 3. Relief.” 5. Claimant was directed to lead evidence. The witnesses examined were PWs Sarbjit Singh, Satrangi, Dr. I. K. Wangoo, Dr. Sham Jurangal and Dr. Maqbool Ahmed Zargar, besides claimant also appeared in the witness box, in support of his case. 6. Union of India examined one Vishwa Nath in rebuttal. 7. While addressing the arguments, Mr.Pangotra, learned counsel for Union of India resisted the award only to the extent that the amount of compensation is excessive. 8. All the witnesses have deposed that Driver Vishnav Dass was driving the offending vehicle rashly and negligently at the time of accident. In the accident, claimant Balwinder Singh suffered grievous injuries and he had to remain under treatment for six months. He spent a lot of money on his treatment and as a result of the injuries, the claimant Balwinder Singh sustained 50% permanent disability. 9. There is no evidence in rebuttal. Thus, the learned Tribunal has rightly decided issue no.1 in favour of claimant and against the Union of India. 10. I have gone through the evidence recorded by the Tribunal and the documents on the file. I am of the considered view that there is sufficient evidence on the file to hold that the driver of the offending vehicle, namely, Vishnav Dass, caused the accident while driving the vehicle rashly and negligently, as a result of which claimant Balwinder Singh sustained 50% permanent disability. 11. Issue no.2 Admittedly, claimant Balwinder Singh is a shopkeeper by profession, selling utensils at Moti Bazar, Jammu. He remained in coma for more than a week and was under treatment for six months. 11. Issue no.2 Admittedly, claimant Balwinder Singh is a shopkeeper by profession, selling utensils at Moti Bazar, Jammu. He remained in coma for more than a week and was under treatment for six months. The permanent disability assessed by the doctor is 50%. It would be appropriate to reproduce the relevant portion of the judgment herein: “PW Dr. Maqbool Ahmed Zargar ENT Specialist stated that on 14.11.2008 the petitioner Balwinder Singh was examined by the Board for assessing disabilities and he was one of the members of the board. After examining the petitioner the Board issued the certificate of permanent disability in favour of the petitioner and the petitioner was assessed permanent residual disability of 50% in which 20% disability was of Orthopedics, 30% on account of injuries sustained by the petitioner which resulted fracture deformity of jaw with disfunction of TM joints for which he has permanent plating of both TM joints but has resulted to jaw locking. The disability is of permanent nature in addition to aforesaid injuries, he has underwent tracheotomy whereby a pipe was inserted in the wind pipe with breathing purpose, as the patient remained in coma for quite a long period. This has resulted to sub-glotic stenosis. Apart from this the patient also sustained another ENT injury on right ear resulting to permanent partial hearing loss. The injuries will incapacitate his working ability permanently for whole life. The doctor has further confirmed that the injuries will have a direct impact on his physical as well as social and day to day life. He cannot eat solids properly. And cannot speak properly because of narrowing of wind pipe, the patient will remain prone to chest infection and may require day to day medication or treatment. The certificate bears his signature and injuries relating to ENT have been examined by him being the Member of the Board. Due to the aforesaid residual injuries, the future prospects of the petitioner has shortened. In cross examination by the counsel for the respondents stated that he has issued ENT disability amounting to 30%. He has not treated the petitioner locking of jaw is post traumatic. The petitioner has undergone surgery of TM joints as well as mandible. This injury of jaw can be caused on ball from a high of not less than 30 feet. He has not treated the petitioner locking of jaw is post traumatic. The petitioner has undergone surgery of TM joints as well as mandible. This injury of jaw can be caused on ball from a high of not less than 30 feet. The injury sustained by him is on the part of the body which cannot be separated meaning thereby that the entire injury is whole of the body and cannot be described as a particular limb.” 12. Appellants have not been able to prove that the income of the claimant was less than Rs.15,000/- per month. The Tribunal after taking into account all these things in view and exercising guess work held the minimum income of the petitioner at Rs.6000/- per month. The Tribunal while taking the permanent disability of the claimant as 50%, held that it has affected his earning capacity to tune to Rs.3000/- per month. The Tribunal while keeping in view the age of the claimant and the schedule appended with the Motor Vehicles Act, has rightly applied multiplier 16. Thus, the Tribunal after examining the entire record and exercising guess work awarded Rs.5,76,000/- under the head loss of future income, Rs.2,50,000/- under the head pain and sufferings, Rs.2,50,000/- under the head loss of amenities of life and Rs.10,000/- under the head attendant charges. The Tribunal after taking into account the medical bills produced by the claimant, amounting to Rs.4,39,509/-, awarded the same amount under the head medical expenses/hospitalization. Thus, in total, the learned Tribunal has awarded a sum of Rs.15,25,600/- in round figure in favour of claimant Balwinder Singh. Learned Tribunal also awarded 7.5% interest on award money, except on loss of future income, from the date of filing of the claim petition till its realization. 13. The appellants have not been able to demonstrate and marshal out that how the amount of compensation awarded under various heads is excessive. Claimant being a young man has to lead a miserable life throughout his life. 14. While going through the impugned award one comes to an inescapable conclusion that the compensation awarded is just and appropriate, cannot be said to be excessive in any way, thus needs no interference. 15. Having glance of the above discussion, the impugned award merits to be upheld and appeals merit to be dismissed. Accordingly, the impugned award is upheld and both the appeals are dismissed.