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2017 DIGILAW 470 (CAL)

Osman Sk. Alias Usman Sk. v. Chola Mandalam

2017-05-12

DIPANKAR DATTA, SAHIDULLAH MUNSHI

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JUDGMENT : DIPANKAR DATTA, J. 1. The Motor Accident Claims Tribunal, 1st Court, Suri, Birbhum was approached by the appellant by presenting an application under section 163- A of the Act of the Motor Vehicles Act, 1988 (hereafter the Act), registered as M.A.C. Case No.103 of 2012. He sought for compensation in a sum of Rs. 8,00,000/- for permanent disablement (amputation of right leg) suffered in a road accident involving use of a motor vehicle bearing registration no. WB-53A/7247 (hereafter the dumper). On an amendment being sought for, which was granted, the application was converted into one under section 166 thereof. The tribunal framed 6 (six issues), which are usually framed in like cases as to whether the claim application is maintainable, did the accident occur because of rash and negligent driving of the offending vehicle, did the claimant suffer injury as a result of the accident and to what extent, is the insurer liable, what is the quantum of compensation payable, and what other relief the clamant is entitled to, and answered the same in favour of the appellant. Vide award dated February 12, 2015 of the tribunal, he was found entitled to and, accordingly, awarded Rs. 5,03,200/- together with interest @ 9% p.a. from the date of presentation of the application till payment, to be paid by the insurer (opposite party no.2 before the tribunal). 2. Aggrieved by such award, the appellant has presented this appeal under section 173 of the Act. Primarily, the grievance is in respect of the quantum of compensation determined and awarded by the tribunal. 3. The tribunal found the appellant to be 19 years of age on the date of the accident i.e. December 15, 2011, having suffered 80% permanent disablement. Although he claimed to earn Rs. 3,300/- per month by working as labourer in a stone crushing unit, no evidence could be produced in support of such earning which necessitated assessment of notional income by the tribunal drawing inspiration from the decision of the Supreme Court reported in 2008 (12) SCC 165 (Laxmi Devi v. Mohd. Tabbar). The tribunal then selected 14 as the multiplier and assessed loss of future earning as Rs. 4,03,200/- (80% of Rs. 36,000/- x 14). In addition thereto, it awarded Rs. 50,000/- each on account of medical expenses and compensation for pain and suffering. This is how the tribunal reached the figure of Rs. 5,03,200/-. 4. Tabbar). The tribunal then selected 14 as the multiplier and assessed loss of future earning as Rs. 4,03,200/- (80% of Rs. 36,000/- x 14). In addition thereto, it awarded Rs. 50,000/- each on account of medical expenses and compensation for pain and suffering. This is how the tribunal reached the figure of Rs. 5,03,200/-. 4. Appearing in support of the appeal, Ms. Ghosh, learned advocate contended that the appellant is entitled to higher compensation in view of the principles laid down in the decisions of the Supreme Court reported in (2011) 1 SCC 343 (Raj Kumar v. Ajay Kumar) and (2011) 10 SCC 683 (Govind Yadav v. New India Insurance Co. Ltd.). It is her further contention that although the tribunal had the occasion to refer to and consider the decision in Raj Kumar (supra), as would appear on a perusal of the impugned award, but it failed to award just and appropriate compensation to the appellant under the heads pecuniary and non-pecuniary damages by failing to apply the law laid down therein on relevant aspects. Relying on the decision reported in (2009) 6 SCC 121 (Sarla Verma v. Delhi Transport Corporation), she contended that the tribunal misdirected itself in selecting the appropriate multiplier. According to her, the tribunal ought to have selected 18 and not 14 as the appropriate multiplier having regard to the age of the appellant on the date of the accident. Our attention was also drawn by her to another decision of the Supreme Court reported in (2013) 12 SCC 202 (Rekha Jain v. National Insurance Co. Ltd.) and the decision of a coordinate Bench of this Court reported in 2015 (3) T.A.C. 520 (Cal.) (Gouri Shankar Mishra v. New India Insurance Co. Ltd.) wherein Rekha Jain was considered and one of us (Sahidullah Munshi, J.), considering 60% disability of the accident victim had substantially enhanced the compensation payable to him on the reasoning that with an amputated leg it would be impossible for him to perform the job of a security guard in future or to even earn a living as a vendor or a peddler. She, accordingly, urged us to set things right by modifying the award of the tribunal. 5. Per contra, Mr. She, accordingly, urged us to set things right by modifying the award of the tribunal. 5. Per contra, Mr. Singh, learned advocate for the insurer, respondent no.1 in the appeal, contended that the award did not suffer from any infirmity and, thus, was not liable to interference in exercise of our appellate powers. He also submitted that the appellant having received the sum awarded by the tribunal without demur, the court may not entertain the appeal on merits which had been belatedly presented. 6. The parties have been heard, the materials on record perused and the decisions cited at the bar considered. 7. The objection of Mr. Singh ought to be dealt with first. He is right in submitting that the appeal was delayed. We find that the appeal was presented 58 days beyond the period of limitation. However, we cannot brush aside from our consideration that a coordinate Bench in its order dated July 19, 2016 recorded satisfaction that the appellant was prevented by sufficient cause from presenting the appeal earlier and, thus, proceeded to condone the delay. The delay in presenting the appeal having been condoned, it is impermissible for us to refuse to hear the appellant on the merits of his claim raised herein. 8. It further appears from an order dated August 8, 2016 of the same coordinate Bench that Mr. Singh had been directed to ascertain the "minimum wage of an unskilled labourer in a stone quarry/stone crushing unit as on" the date of the accident and "also take instructions on the proper multiplier to be applied in the facts of the present case". 9. It is, therefore, clear as crystal that the coordinate Bench entered into the merits of the rival claims and for awarding just and reasonable compensation to the appellant posed pointed questions for Mr. Singh to answer. In such circumstances we must carry the proceedings forward instead of being swayed by the objection of Mr. Singh, which we do hereby overrule. 10. Venturing in to the merits of the appeal and putting the award under the appellate scanner, we find that the tribunal did not select the appropriate multiplier. The tribunal may not have had the benefit of considering the decision in Sarla Verma (supra) while making the award, which is regarded as the holy book for guiding tribunals and courts for selecting the operative multiplier. The tribunal may not have had the benefit of considering the decision in Sarla Verma (supra) while making the award, which is regarded as the holy book for guiding tribunals and courts for selecting the operative multiplier. We are in agreement with Ms. Ghosh, based on reading paragraph 40 of Sarla Verma (supra) that 18 should have been selected as the appropriate multiplier by the tribunal and not 14. 11. In terms of Raj Kumar (supra), in the case of an injured claimant with a disability there is no need to deduct ?rd or any other percentage from out of the income towards personal and living expenses. The loss of future earning of the appellant, selecting 18 as the appropriate multiplier, thus, works out to Rs. 5,18,400/- ( Rs. 36,000 x 18 x 80/100), which is Rs. 1,15,200/- more than what the tribunal determined. 12. In Govind Yadav (supra), the Supreme Court has observed that the principles laid down in the decision reported in (2010) 10 SCC 254 (Arvind Kumar Mishra v. New India Assurance Co. Ltd.) and in Raj Kumar (supra) must be followed by all the tribunals and the high courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily; and that if the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident. 13. This being the settled legal position, we need to put the award once again under the appellate scanner for determining whether there is any justification in the grievance voiced by the appellant. We unhesitatingly record that the tribunal erred in the exercise of its jurisdiction in not justly and reasonably compensating the appellant bearing in mind the settled principles as enunciated in Raj Kumar (supra), since directed to be followed by Govind Yadav (supra). 14. The appellant, in our view, is entitled to further compensation on account of future medical expenses, and loss of amenities and enjoyment of life including loss of prospects of marriage. We consider Rs. 3,00,000/- to be just and reasonable. 15. 14. The appellant, in our view, is entitled to further compensation on account of future medical expenses, and loss of amenities and enjoyment of life including loss of prospects of marriage. We consider Rs. 3,00,000/- to be just and reasonable. 15. In the result, the impugned award stands modified by ordering that the appellant shall be entitled to Rs. 4,15,000/- in excess of what was awarded by the tribunal. Such sum shall be paid by the insurer/respondent no.1 to the appellant together with interest @ 7.5% from the date of filing of the claim application till payment is effected in terms hereof. To give effect to this order, the insurer/respondent no.1 shall issue an account payee cheque favouring the appellant and deposit the same in the office of the tribunal within a month from date of its receipt. Thereafter, the appellant shall be at liberty to collect the cheque from the office of the tribunal upon proving his identity and maintaining other formalities. 16. The appeal, accordingly, stands allowed without order for costs. 17. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.