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2017 DIGILAW 731 (MP)

Arun Kumar v. Roshan Lal Gupta

2017-05-26

G.S.AHLUWALIA

body2017
JUDGMENT : Mr. G.S. Ahluwalia, J. 1. This Misc. Appeal under Section 173 of Motor Vehicles Act, 1988 has been filed against the award dated 23.11.2016 passed by Vth Additional Motor Accident Claims Tribunal, Morena in Claim Case No. 5/2016 for enhancement of compensation. 2. The necessary facts for the disposal of the present appeal in short are that the respondent No. 2 by driving the tanker bearing registration No. MP06-HC-0683 belonging to the respondent No. 1 in a rash and negligent manner dashed against the motorcycle of the appellant as a result of which the appellant sustained grievous injuries. 3. The respondent No. 1 filed his reply and submitted that the accident took place because of the contributory negligence of the driver of the motorcycle and, therefore, the owner of the motorcycle, driver of the motorcycle and the Insurance Company of the motorcycle are also necessary parties. Even otherwise, the vehicle was insured with the respondent No. 3 and, therefore, the Insurance Company is liable to make the payment of the compensation. 4. The respondent No. 3 filed its reply and disputed the accident. It was further stated that the owner, driver and the Insurance Company of the motorcycle bearing registration No. MP06-ME-394 are also necessary parties and, therefore, the claim petition is liable to be dismissed on the ground of non joinder of necessary party. It was further pleaded that as the respondent No. 2 was not having valid licence and the vehicle was being plied contrary to the terms and conditions of the insurance policy, therefore, the Insurance Company is not liable to pay compensation. 5. The MACT by award dated 23.11.2016 came to a conclusion that the accident occurred because of rash and negligent driving of the respondent No. 2 and the respondent No. 3 is liable to make the payment of the compensation amount. 6. As the accident as well as the liability of the parties have not been challenged, therefore, it is not necessary to consider the nature of the accident and the liabilities of the parties, therefore, it is held that the respondent No. 2 by driving the tanker in rash and negligent manner dashed against the motorcycle causing injuries to the appellant and another person Niranjan and the Insurance Company is also liable to make the payment of the compensation. 7. 7. Now the next question for determination is that what should be the amount of compensation. It is submitted by the counsel for the appellant that the Tribunal has wrongly assessed the income of the appellant at Rs. 4,000/- per month, in fact, the income should have been assessed at Rs. 6,000/- per month. Further, the loss of income as the appellant has suffered a permanent disability of 10% should also be re-calculated accordingly. It is further submitted that in fact the appellant was not in a position to work for a period of four months and, therefore, the Tribunal should have assessed the loss of actual income for four months instead of three months. 8. The Tribunal has also wrongly assessed the expenses of the attendant as the appellant was hospitalized for a period of 12 days and the attendant is not only required to stay back in the hospital but he was also required to bear the traveling expenses for coming and going back from the hospital. The amount of Rs. 4,500/- which has been awarded under the head of special diet is also on a lower side. Per contra, the counsel for the Insurance Company supported the amount of compensation awarded to the appellant. 9. Heard the learned counsel for the parties. The MACT has placed the appellant in the category of an unskilled labourer and has assessed his monthly income as Rs. 4,000/-. In the year 2015 considering the minimum wages which were payable to an unskilled labourer, this Court is of the view that an amount of Rs. 4,000/- per month by way of monthly income of the appellant is on a lower side. Accordingly, the monthly income of the appellant is reassessed at Rs. 5,000/- per month. The MACT has applied the multiplier of 18% for assessing the loss of future income. The appellant has sustained 10% permanent disability. Accordingly, an amount of Rs. 1,08,000/- is awarded towards the loss of income because of permanent disability (10% of annual income of the appellant has been assessed @ Rs. 60,000/- i.e., Rs. 5,000/- per month and after applying multiplier of 18%, the amount comes to Rs. 1,08,000/-. 10. Furthermore, the appellant had suffered fracture of femur bone and the doctor had opined that the appellant has suffered the permanent disability to the extent of 20%, however, the MACT has assessed the permanent disability as 10%. 60,000/- i.e., Rs. 5,000/- per month and after applying multiplier of 18%, the amount comes to Rs. 1,08,000/-. 10. Furthermore, the appellant had suffered fracture of femur bone and the doctor had opined that the appellant has suffered the permanent disability to the extent of 20%, however, the MACT has assessed the permanent disability as 10%. Considering the nature of the injuries which were sustained by the appellant, this Court is of the opinion that the appellant is entitled for loss of actual income for four months in place of three months as awarded by the MACT. Accordingly, an amount of Rs. 20,000/- is awarded under the head of loss of income during the treatment at the rate of Rs. 5,000/- per month for a period of four months. 11. The compensation of Rs. 9,000/- under the head of expenses for attendant also appears to be on lower side. The appellant had remained in hospital for 12 days and considering the fact that one attendant must have been required to stay back in the hospital to look after the appellant, this Court is of the view that an amount of Rs. 9,000/- awarded under the head of expenses for attendant is on a lower side. Accordingly, the appellant is awarded Rs. 12,000/- under the head of expenses for attendant in place of Rs. 9,000/-. 12. The MACT has awarded an amount of Rs. 4,500/- towards the special diet. However, considering the injuries sustained by the appellant, he is entitled for Rs. 10,000/- under the head of special diet. 13. The MACT has awarded Rs. 10,000/- under the head of pain and suffering but this Court is of the opinion that the appellant is entitled for Rs. 25,000/- under the head of pain and suffering. The MACT has awarded Rs. 45,321/- under the head of future medical expenses, whereas, this Court is of the view that considering the actual expenses incurred by the appellant on his treatment as well as the expenses which he would incur in future, an amount of Rs. 50,000/- should be awarded. 14. Accordingly, an amount of Rs. 12,000/- is awarded towards the attendant expenses, Rs. 10,000/- is awarded for special diet, Rs. 25,000/- is awarded for pain and suffering and Rs. 50,000/- is awarded for medical expenses and an amount of Rs. 1,08,000/- is awarded for loss of income. 50,000/- should be awarded. 14. Accordingly, an amount of Rs. 12,000/- is awarded towards the attendant expenses, Rs. 10,000/- is awarded for special diet, Rs. 25,000/- is awarded for pain and suffering and Rs. 50,000/- is awarded for medical expenses and an amount of Rs. 1,08,000/- is awarded for loss of income. Thus, in all the appellant is entitled for a compensation amount of Rs. 2,25,000/-. The Tribunal has awarded an amount of Rs. 1,67,221/- and the remaining amount comes to Rs. 57,779/- and after rounding of the figure, it is directed that the respondent shall pay an additional amount of Rs. 60,000/- to the appellant with 6% interest from the date of the application till the actual payment is made. With the aforesaid modification, the appeal is disposed off.