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2014 DIGILAW 1448 (RAJ)

Mangi Lal v. Kanti Lal

2014-08-05

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant appeal for enhancement is preferred by the appellant claimant against the judgment cum award dated 28.9.1999 passed by the learned Judge, Motor Accident Claims Tribunal, Udaipur in M.A.C. No. 160/1994 whereby the application filed by the appellant under Section 166 of the Motor Vehicles Act seeking compensation on account of the injuries suffered by him in a road accident on 24.1.1994 was partly allowed and as against the claim of Rs. 3,90,000, the appellant was awarded compensation to the tune of Rs. 66,000. 2. The accident occurred on 24.1.1994 when the appellant was walking by the side of the road. The respondent non-claimant Kanti Lal drove the Bus No. RJ27-2755 in a rash and negligent fashion causing injuries to the appellant. The Tribunal allowed the claim in part as mentioned above and held the respondents Kanti Lal being the driver of the truck, M/s. Krishna Mines and Traders its owner and the Oriental Insurance Co. Ltd., the insurer jointly and severally responsible to satisfy the award. The findings of the Tribunal on these issues have not been challenged by any of the non-claimants. 3. The only question which calls for consideration of this Court is as to whether the appellant is entitled to any enhancement in the compensation awarded to him. 4. Shri Jagdish Vyas, learned Counsel for the appellant submitted that the learned Tribunal failed to properly appreciate the effect of the permanent disability suffered by appellant due to the injuries received in the accident. His right lower limb was shortened by 4 cms. The appellant used to work as a mason at the time of the accident. Due to the disability suffered by him, he totally lost the ability to earn livelihood by doing the job of a mason. He thus submitted that as per the principles enunciated by the Hon'ble Supreme Court in the case of Syed Sadiq etc. v. Divisional Manager, United India Insurance Co. reported in 2014(1) SCALE 377 , the effect of the disability which though certified at 42% by the Medical Board should be taken to be 100% and compensation be awarded to the appellant accordingly. He further submitted that the Tribunal did not assess the income of the appellant and totally ignored to award compensation under the head of loss of income. He further submitted that the Tribunal did not assess the income of the appellant and totally ignored to award compensation under the head of loss of income. He also urged that whilst calculating the compensation, rise in income by future prospects is also required to be considered. He thus prayed that the award be enhanced appropriately by considering the arguments advanced before this Court. 5. Shri D.R. Lunkar, learned Counsel for the respondent Insurance Company vehemently opposed the submissions advanced by Shri Jagdish Vyas and submitted that the Tribunal has already awarded just compensation to the appellant and that no further enhancement is called for in the same. 6. I have heard the arguments advanced by the learned Counsel for the parties and have gone through the impugned award. 7. Undisputedly, the appellant used to work as a mason at the time of the accident. He suffered a large number of injuries in the accident. As per the disability certificate Ex.-9 issued by the Medical Board, the appellant was having a fracture on his frontal bone. He also suffered fractures on the right thigh bone and right clavicle. When examined by the Board, he was found to be having difficulty in walking. There was a thickening in the bone of the right thigh. Right knee moment was found to be 0-10' only. The right hip was moderately stiffened. His gait was limping. The right clavicle bone was having a malunion. The Board certified the appellant to be suffering from permanent partial disability at 42%. Looking to the nature of the disability suffered by the appellant, it is evident that he would be deprived of pursuing his job as a mason which requires a lot of manual labour by a great extent. Applying the principles enunciated by the Hon'ble Supreme Court in the case of Syed Sadiq (supra), this Court is of the opinion that looking to the nature of disability suffered by the appellant, the efficacy and ability of his earning livelihood by working as mason would suffer and be reduced by a minimum of 85%. Thus, the assessment towards loss of income has to be done by taking the permanent disability suffered by the appellant as being 85% as against 42% certified by the Board. Thus, the assessment towards loss of income has to be done by taking the permanent disability suffered by the appellant as being 85% as against 42% certified by the Board. Applying the principles of minimum wages and looking to the evidence available on record and as the appellant claimed to be working as a mason at the time of the accident, his wages at the time of the accident deserved to be accepted as Rs. 70 per day. 50% rise in income by future prospects has to be acknowledged whilst assessing the loss of income. As the appellant was 33 years of age at the time of the accident, the appropriate multiplier to be applied would be 16 as per judgment of Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation reported in 2009 SC 3104 . 8. In view of what has been discussed above, the computation noted below deserves to be approved for assessing the enhanced compensation awardable to the appellant: Annual income @ Rs. 70 per day Rs. 70x30x12 = 25,200 Rs.25,200.00 50% Rise in income by future prospects Rs.12,600.00 Rs.37,800.00 Multiplier as per Sarla Varma's case @ 16 = Rs. 6,04,800 Rs.6,04,800.00 Loss of income caused to the appellant due to the permanent disability taken at 85% Rs.5,14,080.00 Rs.5,14,080.00 Medical expenses Rs.5,000.00 Rs.5,19,080.00 Compensation towards pain, suffering and mental agony Rs.5,000.00 Rs.5,24,080.00 Compensation towards injuries Rs.30,000.00 Rs.5,54,080.00 Total compensation awarded Rs.5,54,080.00 Rounded off Rs.5,54,000.00 9. Accordingly, the appeal is allowed in part. The impugned award passed by the learned Judge, M.A.C.T., Udaipur is modified and the appellant is held entitled in all to Rs. 5,54,000 along with interest @ 7.5% on the enhanced amount. 10. In order to ascertain that the claimant is benefited to the maximum by the enhancement in the award. The following directions are given for the disbursal of the awarded amount (1) 20% of the enhanced amount shall be paid to the claimant in cash. (2) The remaining 80% shall be deposited in fixed deposits in any nationalised bank with a lock in period of 5 years by applying the best available fixed deposit term plan. The interest upon the fixed deposit shall be disbursed to the claimants periodically. The banker shall be instructed not to issue any loan against the fixed deposits. (2) The remaining 80% shall be deposited in fixed deposits in any nationalised bank with a lock in period of 5 years by applying the best available fixed deposit term plan. The interest upon the fixed deposit shall be disbursed to the claimants periodically. The banker shall be instructed not to issue any loan against the fixed deposits. (3) If in any emergent condition the claimant requires the modification of the said direction, he shall be at liberty to file a writ petition before this Court for the release of the amount from the fixed deposits. Any amount already paid by the Insurance Company under Section 140 and/or proviso to Section 173 or any other amount, shall be adjusted towards the amount finally awarded by this Court.Record be sent back.No costs.Appeal partly allowed. *******