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Rajasthan High Court · body

2014 DIGILAW 867 (RAJ)

Komal v. Yadavat Transport Company

2014-04-07

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant appeal has been preferred by the appellant claimant against the judgment cum award dated 20.12.2002 passed by the Motor Accident Claims Tribunal, Bhilwara in M.A.C. Case No. 76/2000, whereby the Tribunal partially accepted the claim application filed by the appellant and awarded him, a total sum of Rs. 3,26,000/- as compensation for the injuries received by him in a road accident. 2. Facts in brief are that the appellant who was at the relevant time, 26 years of age, received grievous injuries in a road accident which occurred on 1.11.1999. The claimant, his wife and a friend were going from Hamirgarh to Mandal on a motorcycle bearing registration No. RJ 06 02M 0952. At about 7.00 A.M. near the Kothari river bridge a truck bearing registration No. GJ 01 Rs. 5525 coming from the opposite side, collided with the motorcycle. As a result of the injuries, the appellant's right hand had to be amputed from the shoulder and he received numerous injuries on his head as well. The truck was owned by the respondent No. 1, Yadav Transport Company, its driver was the respondent No. 2, Chaturbhuj lain and the truck was insured with the respondent No. 3, The Oriental Insurance Company. A claim application under Section 166 of the M.V. Act was filed by the appellant claiming a total compensation of Rs. 24,65,000/-. 3. The Tribunal framed the usual issues regarding the rash and negligent driving of the truck by its driver being the cause of the accident, the entitlement of the appellant to receive the compensation, the defence raised by the Insurance Company regarding the driver of the offending vehicle not having a licence to drive the same and the owner permitting the driver to drive the vehicle knowing that he was not possessing a valid licence and the quantum of compensation. All the issues were decided in favour of the appellant and against the respondents. 4. None of the respondents have challenged the findings recorded by the Tribunal and thus they have become final qua them. 5. The Tribunal partly accepted the claim filed by the appellant and held him entitled to receive compensation of Rs. 3,51,000/-. The appellant has approached this Court by way of the instant appeal seeking enhancement in the award. 6. 4. None of the respondents have challenged the findings recorded by the Tribunal and thus they have become final qua them. 5. The Tribunal partly accepted the claim filed by the appellant and held him entitled to receive compensation of Rs. 3,51,000/-. The appellant has approached this Court by way of the instant appeal seeking enhancement in the award. 6. Shri Dhanesh Saraswat, learned Counsel for the appellant submitted that the Tribunal committed grave error in assessing the compensation awardable to the appellant. The appellant used to run a saree shop before the accident and was earning Rs. 5,000/- per month by doing that business. As a result of the accident and the consequent amputation of his arm, the appellant had to shut down the shop and totally lost the capacity to earn. He submitted that the Tribunal awarded a meagre amount of Rs. 50,000/- to the appellant towards loss of income which cannot be said to be justified by any stretch of imagination. No consideration for rise in income by future prospects was made. It was urged that the Tribunal without any justification held that even though the appellant had lost an arm in the accident, the business of running a saree shop could be carried on with the aid of an assistant. However, no 'amount was awarded to the appellant for the expenses of engaging an assistant. It was thus, prayed that an appropriate enhancement be directed in the compensation awarded to the appellant towards loss of income and for engaging an assistant. 7. He further submitted that the amount of Rs. 2,00,000/- awarded to the appellant for the 90% disability caused by the amputation of arm is grossly inadequate. No amount was awarded to the appellant for future expenses on treatment and prosthetics. The amount of Rs. 20,000/- awarded towards pain, suffering and mental agony is also grossly unjust and should be enhanced substantially. 8. Per contra, Shri L.D. Khatri and Shri Sanjay Mathur learned Counsel appearing for the respondents opposed the submissions advanced by the Counsel for the appellant and urged that the compensation as awarded by the Tribunal is just and proper and does not call for any enhancement. 9. I have given my thoughtful consideration to the arguments advanced at the Bar and have perused the impugned judgment as well as the record. 10. 9. I have given my thoughtful consideration to the arguments advanced at the Bar and have perused the impugned judgment as well as the record. 10. The first issue which needs to be addressed is regarding the compensation awarded to the appellant towards loss of income. The Tribunal held that merely because the appellant's arm was amputed, it could not be assued that the saree business which the appellant was running would be totally shut down. The Tribunal observed that the appellant could continue the business by engaging a servant or an assistant. Making this observation, the Tribunal proceeded to award a sum of Rs. 50,000/- to the appellant for the cost of engaging an assistam and for the loss of future income. 11. In the opinion of this Court, the findings of the Tribunal are self contradictory. If at all, the Tribunal was of the view that the appellant is likely to suffer a loss of income because of the amputation, appropriate amount should have been assessed and awarded to the appellant under that head. On the contrary, the Tribunal held that the appellant could continue his business by engaging an assistant and thereafter, proceeded to award a pittance of Rs. 50,000/- towards both the heads i.e. loss of income and cost of engaging an assistant. In the opinion of this Court, the approach of the Tribunal was throughly unjustified. 12. Thus, this Court feels that appropriate assessment has to be made of the loss of income which the appellant suffered because of the amputation of his arm, which was the direct result of the injury suffered in the accident as well as for the cost of engaging an assistant to continue the business thereafter. 13. In the case of Syed Sadiq v. Div. Manager, United India Ins. Company reported in 2014(1) SCALE 377 , the Hon'ble Apex Court considered the amputation of the leg of a street vendor as causing 85% disability for determining the loss of income caused to the claimant. The Tribunal in the case at hand held that no evidence was led for proving the appellant's income and thus, the averment made in the claim regarding his income being Rs. 5,000/- per month was discarded. It is relevant to note here that the averment made in the claim and the oral evidence of the appellant regarding his income was not challenged by any significant cross-examination. 5,000/- per month was discarded. It is relevant to note here that the averment made in the claim and the oral evidence of the appellant regarding his income was not challenged by any significant cross-examination. The appellant himself in his testimony stated that his estimated income from the shop before the accident was between Rs. 4,000/- - Rs. 5,000/-. Thus, having regard to the evidence available on record, the appellant's income by running the saree shop at the relevant point of time, is held to be Rs. 4,000/- per month. 14. Even after engaging an assistant, the appellant, because of his own disability which was certified by the Medical Board as 90%, would definitely lose the capacity to earn by at least 50%. Thus, the loss of income caused to the appellant because of the injury and amputation of his arm deserves to be accepted at 50%. No future prospects were added by the Tribunal whilst assessing the award. Looking to the fact that the Court proposes to make an award towards cost of engaging an assistant, 25% rise in income by future prospects deserves to be added while calculating the loss of income. As the appellant was 26 years of age at the time of the accident, the multiplier to be applied for calculating the loss of income would be 17. A sum of Rs. 2,00,000/- deserves to be awarded to the appellant for the cost of engaging an attendant in order to assist him in his day to day activities and for running the shop. 15. The appellant was a young man of 26 years at the time when he met with the unfortunate accident and the consequent to the amputation of his arm, his ability to enjoy life would be severely impaired. He would have to face ignominy for the rest of his life as a result of the severe physical deformity caused by the amputation. In this background, the amount of Rs. 20,000/- awarded by the Tribunal to the appellant under the head of pain, suffering and mental agony is grossly inadequate. In the opinion of this Court looking to the nature of the injuries, any award under this head can just be palliative. But in order to provide some solace him, a sum of Rs. 2,00,000/- deserves to be awarded under the head of pain, suffering and mental agony. In the opinion of this Court looking to the nature of the injuries, any award under this head can just be palliative. But in order to provide some solace him, a sum of Rs. 2,00,000/- deserves to be awarded under the head of pain, suffering and mental agony. As the Court has proposed to award compensation to the appellant under the heads of loss of income due to physical disability and pain, suffering and mental agony due to injuries, the separate compensation of Rs. 2 lacs awarded by the Tribunal for the physical disability cannot be maintained. Thus, the said amount of Rs. lacs awarded by the Tribunal to the appellant under the head of compensation for physical disability has to be ignored whilst assessing the final award. Thus, the following calculation deserves to be approved for assessing the enhanced compensation awardable to the Total Compensation for Medical Expenditure as awarded by the Tribunal Compensation for Special Diet as awarded by the Tribunal Compensation for Loss of Income during the treatment period as awarded by the Tribunal Compensation for cost of engaging an assistant Loss of Future income Compensation for Pain, Suffering and mental agony Total Compensation Awarded L 54,000/- L 10,000/- L 12,000/- L 2,00,000/- 50% of( L 4,000/- x 12x17 + 25%) = L 5,10,000/- L 2,00,000/- L 54,000/- L 64,000/- L 76,000/- L 2,76,000/- L 7,86,000/- L 9,86,000/- L 9,86,000/- 16. Accordingly, the appeal is allowed in part. The impugned award passed by the learned Judge, M.A.C.T., Bhilwara is modified and the appellant is held entitled in all to Rs. 9,86,000/- along with interest @ 7.5% on the enhanced amount from the date of filing of the claim. 17. In order to ascertain that the appellant is are 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 claimant 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 claimant 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 allowed. *******