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2013 DIGILAW 3 (JK)

Sanjay Gupta v. Amit Singh & Anr.

2013-01-01

MANSOOR AHMAD MIR

body2013
1. This Civil First Miscellaneous Appeal is directed against judgment and award dated 26.03.2012 passed by the Presiding Officer, Motor Accident Claims Tribunal, Jammu in Claim Petition titled as Sanjay Gupta v. Amit Singh and another, in File No. 230/C, whereby award of Rs.13,10,000 came to be awarded, under different heads, in favour of the claimant-appellant with interest @ 7.5. per annum except under heads "future loss of income" and " future treatment expenses" from the date of filing of the claim petition till its realization and 50% of the awarded sum was directed to be kept in a fixed deposit in the name of the appellant-claimant for a period of five years. The appellant-claimant has filed the instant appeal for enhancement of compensation on the grounds taken in the memo of the appeals (for short impugned award). Brief facts: 2. On 16.07.2008 at about 6.15 p.m. when appellant-claimant was travelling on a motorcycle bearing No.JK02Q-6318 near Domana, the said motorcycle was hit by a vehicle bearing No.JMU-H-764 (hereinafter referred to as offending vehicle) that was being driven in a rash and negligent manner by its driver respondent No. 1 and appellant sustained grievous injuries. He filed claim petition for grant of compensation to the tune of Rs. 55.00 lacs as per the break-ups given in the claim petition. 3. The respondents were put to notice. Owner-cum driver (respondent No.1) denied the occurrence but has admitted the ownership of the offending vehicle. Insurer contested the claim petition by pleading that driver of the offending vehicle was not holding a valid and effective driving license at the time of accident and admitted the currency of policy of insurance of offending vehicle with it covering the period of accident. 4. Out of the pleadings of the parties, following issues were framed:- "1. "Whether an accident occurred on 16.07.2008 near Domana by the rash and negligent driving of offending vehicle No. JMU-H-764 Maruti Wagon-R in the hands of erring driver as a result of which petitioners Muskan Gupta, Pinky Gupta and Sanjay Gupta suffered grievous injuries ? OPP 2. If issue No.1 is proved in affirmative, whether petitioners are entitled to the compensation in each claim petition, if so to what amount and from whom? OPP. 3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license if so what is its effect? OPR-1. OPP 2. If issue No.1 is proved in affirmative, whether petitioners are entitled to the compensation in each claim petition, if so to what amount and from whom? OPP. 3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license if so what is its effect? OPR-1. 4. Relief. OPP." 5. The petitioner examined himself along with other witnesses and also placed on record some documents to substantiate his claim. 6. Insurer has not led any evidence in rebuttal, thus, the evidence led by the claimant has remained un-rebutted. 7. Learned counsel for the appellant-claimant argued that the compensation awarded by the Tribunal is on lower side. There is no dispute with regard to findings returned by the Tribunal on issues 1 and 3. Only dispute is with regard to 'adequacy of compensation'. In view of the findings returned and record produced, I am of the considered view that issues 1 and 3 have rightly been decided by the Tribunal in favour of the appellant-claimant and, accordingly, the same are upheld. 8. Only question now for consideration is as to whether the amount of compensation is 'adequate' or otherwise. 9. The Tribunal while assessing "future loss of income" has fallen in error while applying multiplier 12. The multiplier applicable as per the principles laid down by Hon'ble Apex Court in Sarla Verma's case ( AIR 2009 SC 3104 ) was 14, but having regard to the uncertainties of life and in order to award "just compensation", the appropriate multiplier applicable to this case was 13. 10. The Tribunal has also fallen in error in awarding Rs. 60,000/- under the head of 'loss of amenities of life' which is too meagre. While keeping in view the fact that the appellant has sustained permanent disability due to which it affected his earning capacity and made his life miserable and the fact that the appellant has three grown up daughters, I deem it proper to award Rs.1.00 lac under the head 'loss of amenities of life'. Ordered accordingly. 11. The Tribunal has also fallen in error in awarding Rs.13,000/- under the head of 'future treatment charges' which is too meagre, while keeping in view the permanent disability suffered by the claimant and doctor's statement. While applying guess work, I deem it proper to award Rs.50,000/- under the head 'future treatment charges'. Ordered accordingly. Ordered accordingly. 11. The Tribunal has also fallen in error in awarding Rs.13,000/- under the head of 'future treatment charges' which is too meagre, while keeping in view the permanent disability suffered by the claimant and doctor's statement. While applying guess work, I deem it proper to award Rs.50,000/- under the head 'future treatment charges'. Ordered accordingly. 12. While going through medical evidence and certificates on file and keeping in view the occupation of the appellant, one comes to an inescapable conclusion that disability suffered by the petitioner has affected his earning capacity, though, the Tribunal has also held that the petitioner is not in a position to do the job of Tailoring but has fallen in error in holding that disability suffered by the petitioner has affected only 58% of his earning capacity. It appears that it has affected total earning capacity but keeping in view the nature of job and the age of the claimant and also the fact that it has shattered the physical frame of petitioner, I deem it proper to hold that disability has affected 70% of his earning capacity. Thus, the annual loss of income of the appellant is Rs.5000 x 12= 60,000/-. Applying multiplier 13, the future loss of income of the appellant is Rs.60000 x 13= 7,80,000/-: 13. The compensation awarded under the heads "pain and sufferings", "medical expenses", "attendant/transport charges" and "special diet charges" is reasonable and thus need no interference. 14. Thus, in total, the appellant-claimant is entitled to compensation as under:- 1. Future loss of income : Rs. 7,80,000/- 2. For pain and sufferings : Rs. 1,20,000/- 3. For loss of amenities of life : Rs. 1,00,000/- 4. Medical expenses : Rs. 4,87,000/- 5. Attendant/Transport charges : Rs. 20,000/- 6. Special diet charges : Rs. 25,000/- 7. Future treatment charges : Rs. 50,000/- Total : Rs.15,82,000/- 15. Accordingly, an amount of Rs.15,82,000/- (including interim compensation already granted) is awarded as compensation in favour of the appellant-claimant. The awarded amount under the heads "future loss of income" and "future treatment expenses" shall carry interest at the rate of 7.5% per annum from the date of impugned award dated 26.03.2012 and the rest of the amount under other heads, from the date of claim petition till its realization. Accordingly, appeal is allowed and awarded amount is enhanced to the extent as indicated above. 16. Accordingly, appeal is allowed and awarded amount is enhanced to the extent as indicated above. 16. The amount of compensation deposited be released in favour of the appellant-claimant after his proper identification and verification strictly in terms of the impugned award. The Court fee shall be the first charge. The Insurer-respondent to deposit balance amount within two months from today. 17. Registry to send down the records along with copy of this order. 18. Disposed of along with connected CMA(s), if any.