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2012 DIGILAW 88 (MP)

SHARAD TIWARI v. MUKESH RAIKWAR

2012-01-18

J.K.MAHESHWARI

body2012
JUDGMENT : J.K. Maheshwari, J. Assailing the award dated 21st May, 2010 passed by the 15th Additional Member, Motor Accident Claims Tribunal (Fast Track Court), Jabalpur in Claim Case No. 62/2009 on the point of inadequacy of the compensation, the injured appellant has preferred this "appeal u/s 173 of the Motor Vehicles Act, 1988 for an accident took place on 16th November, 2008 in which he sustained injuries i.e. in right hip joint and right leg. The appellant had filed the claim petition u/s 166 of the Motor Vehicles Act, 1988 seeking compensation to the tune of Rs. 12,50,000/ - for the injuries sustained by him. The reply to the claim petition as filed and after recording the evidence, the Tribunal has awarded the total sum of Rs. 3,40,685/-. The certificate of permanent disability (Ext. P/72) is available on record. The Tribunal believing the certificate of permanent disability (Ext. P/72) recorded a finding as regard to the permanent disability to the extent of 44% but directed to pay future loss of earning of Rs. 2,56,000/- accepting the earning of Rs. 20,000/- per month, commensurate to percentage of disability, applying the multiplier of 8, Rs. 76,685/- in medical head, Rs. 5,000/- in pain and suffering, Rs. 25,000/- in permanent disability by passing the impugned award. 2. As the incident occurred, negligence of driver of driving the offending vehicle, the issue of liability jointly and severally to pay compensation have been decided recording the findings in favour of the appellant by the Tribunal. None of those findings have been assailed at the instance of the respondents i.e. owner, driver of Insurance Company by filing the cross-appeal or the cross-objection, however it is not necessary to narrate the entire facts in detail to burden the judgment on the said issues. It is only the inadequacy of the compensation which has been assailed, however the arguments in detail have been considered in succeeding paragraphs. 3. Shri Sanjay Sarwate, learned Counsel representing the appellant contends that the Tribunal by accepting earning of Rs. 20,000/- and functional disability to the extent of 20% calculated the amount, but out of the said amount 1/3rd has been deducted in a case of injuries which cannot be directed, therefore, the said finding may be set aside. 3. Shri Sanjay Sarwate, learned Counsel representing the appellant contends that the Tribunal by accepting earning of Rs. 20,000/- and functional disability to the extent of 20% calculated the amount, but out of the said amount 1/3rd has been deducted in a case of injuries which cannot be directed, therefore, the said finding may be set aside. It is also contended that the earning of the injured has been accepted on lower side and the multiplier has also not been properly applied for. It is also contended that looking to the injuries sustained by the appellant, its nature, the certificate of permanent disability, percentage of disability as recorded by the Tribunal is on lower side commensurate to the future loss of earning on account of disability. The earning has been accepted on lower side and the multiplier has also not been properly applied for by awarding the future loss of earning in other heads like medical expenses, attendant charges, conveyance, special diet, mental pain and suffering, loss of wages during treatment, the amount so awarded is also inadequate. In view of the foregoing submissions, enhancement of the compensation so awarded by the Claims Tribunal is prayed for. 4. On the other hand Shri Dinesh Koshal, learned Counsel representing the respondent/Insurance Company contends in support of the findings of the Claims Tribunal and submitted that the compensation as awarded by the impugned award appears to be just and reasonable, however, interference by this Court for enhancement of the compensation is not warranted. 5. After having heard learned Counsel appearing for the parties and on perusal of the record, looking to the percentage of the permanent disability, I find that deduction of 1/3rd made by the Tribunal in a case of injury is not sustainable. Accordingly, the said finding is set aside. Looking to the pleadings and the evidence so adduced, certificate of disability, looking to the nature of injuries, in the opinion of this Court, the finding so recorded by the Tribunal on the point of permanent disability appears to be just. However, considering the earning, applying the proper multiplier and also other heads, in the opinion of this Court, the amount of compensation so awarded by the Claims Tribunal is liable to be enhanced by Rs. 1,80,000/- in lump sum which shall be payable alongwith the interest from the date of filing of the claim petition. However, considering the earning, applying the proper multiplier and also other heads, in the opinion of this Court, the amount of compensation so awarded by the Claims Tribunal is liable to be enhanced by Rs. 1,80,000/- in lump sum which shall be payable alongwith the interest from the date of filing of the claim petition. In view of the foregoing discussions, the appeal succeeds and is hereby allowed in part. The appellant is held entitled to receive the enhanced amount of Rs. 1,80,000/- in addition to the amount of compensation already awarded by the Claims Tribunal. The enhanced amount shall carry interest @ 7.5% per annum from the date of filing of claim petition till its realization. It is made clear here that in the present case on the enhanced amount Court fee is leviable, however, after payment of the Court fee claimants would be entitled to get such amount. In the facts of the case, parties are directed to bear their own costs.