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2017 DIGILAW 426 (ALL)

Pradeep Kumar Tripathi v. Satish Kumar & Ohters

2017-02-06

PANKAJ MITHAL, SHASHI KANT

body2017
JUDGMENT Pankaj Mithal and Shashi Kant, JJ. The claimant-appellant has preferred this appeal against the judgment, order and award dated 29.03.2008 passed by the Motor Accidents Claims Tribunal in M.A.C.P. No.221 of 2003, Pradeep Kumar Tripathi Vs. Satish Kumar and others, whereby the compensation of Rs.7,78,800/- has been awarded to the petitioner with 6% simple interest per annum from the date of presentation of claim petition i.e. 24.04.2003 till its payment and the respondent no.3 Insurance Company has been directed to satisfy the award and to recover it later from the respondent no.1, the owner of the truck. 2. Heard Sri Amit Kumar Sinha, learned counsel appearing for the claimant-appellant. 3. The appeal is proceeding ex-parte against the respondents no.1 and 2 in view of the order dated 17.01.2017 as despite deemed service of notice upon them, no one had appeared on their behalf. 4. Respondent no.3 is represented by Sri N.K. Srivastava. 5. The claimant-appellant was working as a driver of U.P. Roadways Bus, which met with an accident on 13.01.2003 with truck no.HR-69-2837. The claimant-appellant suffered injuries. On account of injuries sustained by the claimant-appellant in the said accident, his right leg below the knee was amputated. His was certified to be 65% permanently disabled. 6. The claimant-appellant was aged about 33 years and was drawing salary of Rs.5,000/- per month. 7. Accordingly, the Tribunal, by applying the multiplier of "17", assessed the loss of income of the claimant-appellant to be Rs.5,000 x 12 x 17 = Rs.10,20,000/- and then reduced it as per the disability certificate in determining compensation of Rs.6,63,000/- with interest. 8. The submission of learned counsel for the claimant-appellant is that as he was working as a driver. The amputation of his leg has resulted in loss of his entire income. Therefore, despite 65% disability there is 100% loss of income. Secondly, no compensation has been awarded for the future prospects of the claimant-appellant. 9. There was no dispute that the accident had occurred due to negligence of the driver of the truck. 10. The Apex Court in the case of Raj Kumar Vs. Therefore, despite 65% disability there is 100% loss of income. Secondly, no compensation has been awarded for the future prospects of the claimant-appellant. 9. There was no dispute that the accident had occurred due to negligence of the driver of the truck. 10. The Apex Court in the case of Raj Kumar Vs. Ajay Kumar, 2011 (1) TAC 785 has cited an example, wherein it has been stated that if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60% but if the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be 100%, as he is neither in a position to drive nor to work as a carpenter. 11. In view of the above, since the claimant-appellant herein was a driver and his left leg has been amputated though he may have suffered permanent disability of 65% but it has rendered him incapable to drive, resulting in 100% loss of his earning capacity. 12. Thus, the claimant-appellant was entitled to compensation on the basis 100% loss of income rather than on the basis of 65% permanent disability as has been done by the Tribunal. 13. It is uniformly acceptable that in awarding compensation in motor accident cases some addition for loss of future prospects of earnings of the deceased or the injured should also be made. The above principle has been incorporated in U.P. Motor Accidents Claims Rules, 1988 enforced w.e.f. 26.09.2011. Rule 220-A of the Rules provides that if a person is below 40 years of age, 50% of the amount of his existing salary be added towards future prospects for determining the loss of earnings. 14. It may not be out of context to state here that Rule 220-A of the Rules had come into force with effect from 26.09.2011 during pendency of this appeal after the accident. Therefore, an ancilliary issue arises if it can be applied in the present case. 15. The question is no longer res intigra. It has been settled by a Division Bench of this Court in the case of UPSRTC Vs. Smt. Madhu Sharma and others, 2004 AICC 124, that if any change in law occurs during pendency of the original proceedings, the same has to be taken into account and applied while deciding the same. 16. The question is no longer res intigra. It has been settled by a Division Bench of this Court in the case of UPSRTC Vs. Smt. Madhu Sharma and others, 2004 AICC 124, that if any change in law occurs during pendency of the original proceedings, the same has to be taken into account and applied while deciding the same. 16. The appeal is a continuation of the original proceedings and has to be treated as proceedings. The proceedings therefore includes appeal and attracts Rule 220-A of the Rules. 17. Accordingly, the claimant-appellant is entitle to compensation by treating his loss of earnings to be 100%, notwithstanding the fact that he had suffered 65% permanent disability and after adding 50% of salary towards future prospects. 18. Thus, taking his income to be Rs.5,000/- per month, adding 50% of it towards future prospects and applying the multiplier of "17", the quantum of compensation is worked out as under:- Income Rs. 5,000/- per month x 12 Rs.60,000/- per annum 50% of the income for future prospects Rs.30,000/- per annum Multiplier 17 Total compensation Rs.90,000 x 17 Rs.15,30,000/- In view of the above, the appeal is allowed and the compensation awarded by the Tribunal is increased as above. The judgment, order and award of the Tribunal stand modified accordingly.