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2016 DIGILAW 3439 (ALL)

Anuj Kudesia v. Nitul Sharma

2016-10-07

ANANT KUMAR, NARAYAN SHUKLA

body2016
JUDGMENT 1. This appeal has arisen out of order dated 29.9.2011, passed by the Motor Accident Claims Tribunal, Lucknow in Claim Petition No.280 of 2006. The learned Tribunal has awarded Rs.30 lakhs as compensation in favour of the appellant/claimant against the New India Assurance Company Limited for accident occurred due to collusion of a Truck with the appellant's Maruti Car. 2. The facts of the case are that while on 14.6.2006, at about 8 P.M. the appellant was driving his Maruti Car being on the way from Orcha Tigela to Jhansi one Truck coming from the opposite side collided with his Car at a place near the village Bhagwantpur, Police Station Sadar Bazar, Jhansi. Since the truck was being driven negligently and carelessly by the Driver, it had collided with the appellant's car and damaged the appellant's right hand. The Maruti Car is registered as UP-93-G-1300 and the Truck is registered with U.P.-75-B-9438. The appellant's age on the date of accident was 40 years. He was earning Rs.58,000/- per month. In his family there is his wife and two daughters. The medical officer has certified his disability as 80%. He was treated by Medical officer of Jhansi Medical College, Jhansi and Orthopedic Hospital, Jhansi and at G.S.M.Health Center, Lucknow. He had spent Rs.2 lakh in his treatment. The Truck was ensured by the National Insurance Company Limited. The appellant had claimed a sum of Rs.2 crore, 18 lakh and 13 thousand alongwith interest @ 12% per annum. The learned Tribunal had found that the Truck driver was driving the truck negligently and had occurred the accident with the appellant's Car having been rushed to the wrong side on account of which the accident had occurred and the appellant's right hand was imputed from his body. 3. Mr.Anil Tiwari, learned Senior Counsel has submitted that the appellant being a Lawyer has become physically handicap to do his work without his right hand, therefore, the learned Tribunal had awarded a sum of Rs.7 lakh, 50 thousand i.e. the cost of artificial limb for its replacement in his body. The learned Tribunal had also, on the basis of oral as well as documentary evidence, observed that the artificial limb replaced in the appellant's body would need further replacement after each five years, but the tribunal had not awarded the costs of artificial limb. The learned Tribunal had also, on the basis of oral as well as documentary evidence, observed that the artificial limb replaced in the appellant's body would need further replacement after each five years, but the tribunal had not awarded the costs of artificial limb. Though it awarded Rs.15 to 20 thousand for its annual maintenance. The learned Tribunal had also awarded a sum of Rupees four lakh fifty thousand for replacement of artificial limb as well as other incidental expenditure. 4. The artificial limb was replaced by Otto Bock Health Care Ltd. Company. One Mr.Gaurav Tiwari, who is posted as Prosthetic in the Company had appeared before the court below and recorded his statement as per direction of this court. He has stated that the life of this artificial limb is five years. After five years it shall need replacement. Subsequently one Mr.Kuldeep Singh being Central Manager of Otto Bock Health Care Ltd. Company had also appeared before the Court and recorded his statement about the life of replacement of artificial limb as well as the costs to be incurred on its replacement. He had stated that the replacement of artificial limb is needed after five- six years. The costs of artificial limb was assessed by him as 17,17,400/-. According to him that was applicable till December 2014, whereas the cost is being increased each and every year. 5. Since both the persons above, are the employees of the private company, we had suggested to get examine one Medical Officer authenticated by the State Government Hospital, in furtherance of which Dr.Anil Kumar Gupta, Associate Professor and Heal of Department, PMR (KGMU), Lucknow had been examined. However, since the statement recorded by him was not cross examined by the parties, it had no evidentiary value, therefore, we suggested the parties to cross examine his statement. In his cross examination he had also stated that the life of this electrical component is 5-6 years. He about the costs of the artificial limb, stated that it can be estimated by the Company itself as its cost vary time to time. 6. In his cross examination he had also stated that the life of this electrical component is 5-6 years. He about the costs of the artificial limb, stated that it can be estimated by the Company itself as its cost vary time to time. 6. Thus, the proposed cost of replacement of artificial limb as assessed by the Company i.e. Rs.17,17,400/- has not been disputed and since for replacement of his limb the appellant has to go to Mumbai for which he has to bear some expenses, we feel it appropriate to provide that the respondent No.2 shall pay the appellant a lump sum amount i.e. Rs.20 lakh for replacement of artificial limb to the appellant. Since as per statement of Dr.Anil Kumar Gupta, Associate Professor and Head of Department, PMR, KGMU, Lucknow the life of artificial limb is 5-6 years and it has to be replaced after each 5-6 years, in which the appellant has to expend either the same cost or more than that as would be charged by the Company concerned, therefore, we feel it appropriate to award Rs.20 lakh more for creation of a corpus to bear the future expenses in replacement of his limb. It is observed that this amount of Rs.20 lakh shall be deposited in a interest accruing account in the term deposit scheme to earn the highest rate of interest so that after six years the total amount of interest itself can meet the whole cost of artificial limb as well as the expenses to be incurred in its replacement. This process shall continue for the whole life of the appellant, as per need of replacement and thereafter the principal amount shall be released in favour of the surviving heirs of the appellant. 7. The learned Tribunal has awarded Rs.1 lakh to bear the future expenses incurred upon his helper, who was also travelling with him and received injuries in the same very accident, whereas we are of the view that that is not the sufficient amount to bear the expenses, therefore, we award Rs.5 lakh against the future expenses of his helper. 8. The learned Tribunal has awarded Rs.1 lakh to bear the future expenses incurred upon his helper, who was also travelling with him and received injuries in the same very accident, whereas we are of the view that that is not the sufficient amount to bear the expenses, therefore, we award Rs.5 lakh against the future expenses of his helper. 8. The learned Tribunal had awarded total Rs.30 lakh a compensation alongwith interest @ Rs.6% per annum from the date of presentation of the claim petition, whereas the learned counsel for the appellant has submitted that the prevalent rate of interest on the date of accident was 9% even more than that, therefore, the appellant is entitled to get the interest @ 9% per annum. 9. Definitely the rate of interest prevalent on the date of institution of claim petition would be relevant, therefore, we hereby award the interest on the amount of compensation mentioned in the order dated 29.9.2011 passed by the Tribunal at the rate of 9 per cent. 10. The amount as aforesaid shall be deposited by the second respondent within two months from today, out of which Rs.20 lakh as has been observed above, shall be released in favour of the appellant for replacement of artificial limb.? The appellant shall also be entitled to get released the amount of interest @ of 9% per annum occurred upon the money deposited in the Nationalized Bank in terms of judgment and order dated 29.9.2011, passed by the Motor Accident Claims Tribunal, Lucknow. 11. Accordingly the judgment and order dated 29.9.2011, passed by the Motor Accident Claims Tribunal, Lucknow is modified. 12. The appeal stands disposed of .