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Rajasthan High Court · body

2017 DIGILAW 1180 (RAJ)

RANGLAL v. GOPAL SINGH

2017-05-09

GOVERDHAN BARDHAR

body2017
JUDGMENT : Goverdhan Bardhar, J. Instant appeal has been filed by the appellant under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 18.01.2002 passed by learned Judge, MACT, Rajsamand in Claim Case No. 578/1998 whereby, the learned Judge has awarded compensation in the sum of Rs. 4,70,000/- to the claimant appellant. 2. Succinctly stated, facts of the case are that a claim petition was filed by the claimant before the Motor Accident Claims Tribunal, Rajsamand under Section 140/166 of the Motor Vehicles Act, 1988 [hereinafter referred to as 'the Act'], stating therein that on 10.05.1995 at 6:30 PM when he was going towards Odan along with his son Mukesh on Scooter No. RPJ 6324, at that time the Jeep No. RJ 27/ T 0008 being rash and negligently driven by the driver of jeep hit the scooter due to which he suffered grievous and simple injuries. The claimant Rang lal by way of claim petition sought compensation in the sum of Rs. 20,20,000/- from the respondents. 3. The non-claimant no.1 driver of the vehicle in his reply stated that the vehicle was not being driven by him in negligent manner and the accident was caused due to fault of claimant. It was further stated that the claimant had exaggerated the claim and the claim petition is liable to be dismissed. Further it was stated that since the vehicle was insured with the respondent No.2-Insurance company, therefore, the insurance is liable to make the payment of compensation. 4. The respondent insurance company also filed its reply and stated that the vehicle in question was not insured with the respondent No.2 on the date of incident. It was stated that the driver was driving the scooter in negligent manner and even if the jeep driver is held guilty of negligent driving then, it is a case of contributory negligence. It was also stated that since the claimant had violated the terms and conditions of the policy, therefore, the insurance company is not liable to make payment of compensation. 5. Learned Judge, MACT Cases after taking into consideration the entire facts of the case while computing the compensation awarded a sum of Rs. 4,70,000/- under various heads including loss of income, Pain and physical agony, medical expenses, loss of future prospects and legal expenses. 6. 5. Learned Judge, MACT Cases after taking into consideration the entire facts of the case while computing the compensation awarded a sum of Rs. 4,70,000/- under various heads including loss of income, Pain and physical agony, medical expenses, loss of future prospects and legal expenses. 6. Learned counsel for the appellant submits that the Tribunal has erred in awarding a paltry sum of Rs. 4,70,000/- in favour of the claimant whereas, due to the accident, the claimant underwent treatment at Hospital at Ahmedabad for period of one and half month and thereafter, he was taken to Higher centre at Bombay. It is submitted that the claimant was earning a sum of Rs. 8000/- to 10,000/- per month while doing business in Bombay but due to accident he has suffered 75% permanent disability. The claimant in support of the claim had submitted medical bills and other documents to support his case but the learned Tribunal has awarded only a sum of Rs. 2,50,000/- under the head of medical expenses as well as nutrition diet etc. According to learned counsel for the appellant the sum of Rs. 2,50,000/- under the head of medical expenses and nutrition is on the lower side whereas, it was categorically proved by the claimant that the claimant underwent long treatment at Ahmedabad and Bombay. It is further argued that the learned Tribunal has erred in awarding only a sum of Rs. 50,000/- under the head of physical and mental agony and same is required to be enhanced reasonably. It is argued that the claimant had proved that he was earning a sum of Rs. 8000/- to Rs. 10,000/- per month while carrying on business of jewellery and due to accident, his shop remained closed for about two years but the learned Tribunal has awarded only a sum of Rs. 50,000/- under the head of loss of income. It is further argued that the learned Tribunal has concluded that the claimant has suffered 75% permanent disability but erroneously, the learned Tribunal has awarded only a sum of Rs. 50,000/- for the permanent disability sustained by the claimant which is on much lower side. It is submitted by learned counsel for the appellant that the learned Tribunal has erred in assessing the damages in the form of pecuniary and non-pecuniary damages separately and the compensation awarded to the claimant is liable to be enhanced reasonably. 7. 50,000/- for the permanent disability sustained by the claimant which is on much lower side. It is submitted by learned counsel for the appellant that the learned Tribunal has erred in assessing the damages in the form of pecuniary and non-pecuniary damages separately and the compensation awarded to the claimant is liable to be enhanced reasonably. 7. Heard learned counsel for the parties. I have gone through the record and perused the impugned judgment/award passed by the learned Judge, MACT cases, Rajsamand. 8. In the present case, the only question which is required to be gone into is the quantum of compensation awarded to the claimant. It is not in dispute that the vehicle in question was insured with the respondent insurance company and the respondent no.1 was driving the offending vehicle in a rash and negligent, therefore, the learned Tribunal rightly held the respondents to be jointly and severally liable for payment of compensation. 9. The disablement certificate issued by Dr. Jeevan Singh Sisodia, Ex.179 reveals that the claimant has suffered disablement to the extent of 75% on the lower limb. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 75% of the left lower limb, it is not the same as 75% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean mat the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%. 10. The loss of earning capacity has to be viewed with reference to the functional disability from the injuries in the context of the nature of the claimant's job. 11. 10. The loss of earning capacity has to be viewed with reference to the functional disability from the injuries in the context of the nature of the claimant's job. 11. The claimant was engaged in the jewellery business and as per income tax return Ex.296, his monthly income at the relevant time was Rs. 4000/- per month. In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant. As the income of the appellant is assessed at Rs.48,000/- per annum, with reference to the permanent disability of 70% shown in the disability certificate in Ex.179, the loss of earning due to functional disability would be 35% of 48,000/- which is Rs.16,800/- per annum. As the age of the appellant at the time of the accident was 47, in view of decision rendered in the case of Sarla Verma (Smt.) and Ors v. Delhi Transport Corporation and Anr : (2009) 6 SCC 121 , the multiplier applicable would be 13. Therefore, the loss of future earnings would be 16,800 x 13 = 2,18,400/- instead of Rs. 50,000/- assessed by the learned Tribunal. 12. A perusal of the impugned award clearly reveals that the learned Tribunal has directed the amount of Rs.2,50,000/- towards the medical bills, nutrition etc and Rs. 30,000 as compensation for pain and agony suffered by the claimant. Moreover, the learned Tribunal has awarded a sum of Rs.50,000/- for the inconvenience, hardship and discomfort during the period of treatment and Rs. 50,000/- for the inconvenience, hardship and agony which the claimant would face in his life, because of the injury suffered by him. 13. In view of the above, the appeal is allowed in part and the claimant is held entitled to get compensation in the following terms :- Loss of future earning Rs. 2,18,400/- Medical expenses, nutrition etc Rs. 2,50,000/- Hardship and discomfort during the treatment Rs. 50,000/- Pain and suffering Rs. 30,000/- Hardship and agony to be suffered in future Rs 50,000/- Legal expenses Rs. 40,000/- Total Rs. 6,38,400/- 14. Accordingly, while modifying the judgment and award dated 20.09.2005, claimant is held to be entitled to get (Rs. 6,38,400- 4,70,000/-) = Rs. 1,68,400/- in addition to the amount of compensation already awarded by the learned Tribunal. 50,000/- Pain and suffering Rs. 30,000/- Hardship and agony to be suffered in future Rs 50,000/- Legal expenses Rs. 40,000/- Total Rs. 6,38,400/- 14. Accordingly, while modifying the judgment and award dated 20.09.2005, claimant is held to be entitled to get (Rs. 6,38,400- 4,70,000/-) = Rs. 1,68,400/- in addition to the amount of compensation already awarded by the learned Tribunal. The enhanced amount of compensation shall carry interest at the rate of 9% per annum from the date of filing of claim petition till its actual realisation.