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2017 DIGILAW 1320 (RAJ)

Firoz Kurashi S/o Riyaz Kurashi v. Chawand Singh S/o Shobhag Singh Rajput

2017-05-24

GOVERDHAN BARDHAR

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ORDER : Goverdhan Bardhar, J. 1. Instant appeal has been filed by the appellants under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 06.08.2013 passed by learned Judge, MACT, Bhilwara in Claim Case No. 653/2013 whereby, the learned Judge has awarded compensation in the sum of Rs. 82,240/- to the claimant appellant. 2. Succinctly stated, facts of the case are that on 25.05.2007, claimant Firoz Kurashi along with his friend Abbu @ Ikram was going from Gulabpura to Vijay Nagar on his bicycle. A that time, in front of Deepak Marbal, a Motor Cycle NO. RJ-06-SD-6550 being driven rash and negligently by the respondent no.1 hit behind the bicycle of the claimant, as a result of which he suffered certain simple and grievous injuries. As per claim petition, respondent No.2 is the owner of the vehicle in question and it was insured with respondent No.3-Insurance Company and prayed for compenation to the tune of Rs.9,51,000/-. 3. The non-applicants respondent nos.1 & 2 submitted a joint reply and stated that the accident was not occurred from the vehicle. The respondent No.1 driver was having the valid driving livence. The offending vehicle is insured with the respondent No.3- Insurance Company. 4. The respondent No.3 Insurance Company also filed its reply and stated that the accident was occurred due to the negligence of the claimant himself. And the driver of the offending vehicle did not have the valid driving license on the date of accident and since he violated the terms and conditions of the policy, therefore, the insurance company is not liable to make payment of compensation. 5. On the basis of pleadings of the parties, the learned Tribunal framed five issues including the issue of relief. The claimant produced oral and documentary evidence in support of his case. No evidence was produced on behalf of the respondents. 6. The learned Tribunal after hearing both the parties and taking into consideration the entire facts and circumstances of the case, vide its judgment and award dated 06.08.2013 awarded compensation of Rs.82,240/- to the claimant/appellant along with interest @ 6% per annum from the date of filing of the claim petition till its realisation. Hence, this misc. appeal for enhancement of compensation. 7. Hence, this misc. appeal for enhancement of compensation. 7. Learned counsel for the appellant submits that the learned Tribunal has committed grave error of law while passing the impugned award as the Tribunal has awarded a meager amount of Rs. 82,240/- while ignoring the fact that the claimant was earning a sum of Rs. 10,000/- per month by doing business of selling and purchasing the animal, therefore, learned Tribunal ought to have not discarded the loss of income of the appellant. It is further argued that due to the injury sustained in the accident, the claimant has suffered 30% disability. It is further submitted that amount of compensation awarded in other head is also on lower side and needs to be enhanced suitably. 8. Per contra, the learned counsel for the respondent-Insurance Company has opposed the submissions advanced by the counsel for the claimant/appellant and submitted that the award passed by the learned Tribunal is just and proper and warrants no interference. 9. Heard learned counsel for the parties. I have gone through the record and perused the impugned judgment/award passed by the learned Judge, MACT, Bhilwara. 10. While deciding Issue No.3 regarding quantum of compensation is concerned, although the Tribunal taking into consideration the permanent disability certificate of the injured (Ex-11) has awarded a compensation of Rs.55,000/- for 30% permanent disability but did not award compensation under the head of loss of income by applying proper multiplier considering functional disability on account of the injuries on right leg. As per claim petition, the claimant was 30 years of age at the time of accident and therefore, in the light of the judgment of the Hon’ble Supreme Court in the case of Sarla Verma [Smt.] & Others v. Delhi Transport Corporation and another, reported in (2009) 6 S.C.C. 121 , multiplier of 17 should have been applied. As per claim petition, the claimant was 30 years of age at the time of accident and therefore, in the light of the judgment of the Hon’ble Supreme Court in the case of Sarla Verma [Smt.] & Others v. Delhi Transport Corporation and another, reported in (2009) 6 S.C.C. 121 , multiplier of 17 should have been applied. Hon’ble Apex Court while assessing the multiplier in para 42 of said judgment has held as under :- “We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 11. In the claim petition it was pleaded that the claimant was earning a sum of Rs. 10,000/- per month by doing business of selling and purchasing the animal, but no evidence was produced on record regarding the monthly income of the claimant Firoz. Though he was not in permanent job on fixed salary but considering the minimum wages prevailing at that time, the learned Tribunal ought to have taken the monthly income of the deceased as Rs.3,000/-. Therefore, while assessing the net monthly income of the claimant to be Rs. 3,000/-, the loss of income upon 30% disability, deserves to be calculated as under:- 900 x 12 x 17 = 1,83,600/- 12. Thus, while applying the multiplier of 17, the claimant is held to be entitled to a sum of Rs. 1,83,600/- under the head of loss of income including Rs.55,000/- awarded by the learned Tribunal for 30% permanent disability. The compensation awarded under other heads to the claimants does not call for any interference. Accordingly, the appeal is partly allowed and while modifying the judgment and award dated 06.08.2013, the injured claimant is held to be entitled to get enhanced amount of compensation of Rs. The compensation awarded under other heads to the claimants does not call for any interference. Accordingly, the appeal is partly allowed and while modifying the judgment and award dated 06.08.2013, the injured claimant is held to be entitled to get enhanced amount of compensation of Rs. 1,28,600/- (Rs.1,83,600/- - Rs.55,000/-) under the head of loss of income. The enhanced amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of claim petition till its actual realisation.