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2019 DIGILAW 1072 (JHR)

Baij Nath Yadav v. Md. Shamim Afzal

2019-05-16

S.N.PATHAK

body2019
ORDER : 1. This appeal arises out of Judgment/Award dated 15.09.2012, passed by 5th District & Sessions Judge – cum – Presiding Officer, MVACT, Hazaribagh in Claim Case No. 197/2002 whereby and whereunder compensation of Rs. 2,25,000/- has been awarded and Insurance Company has been directed to indemnify the whole awarded compensation amount within one month of the Judgment/ order together with interest @6% w.e.f. 08.01.2010. 2. Claim application was preferred by the claimants under Sections 140/166 of M.V. Act against owner of the alleged vehicle and also against the New India Assurance Company Ltd., insurer of the vehicle for the damages/ compensation against the injuries caused to him in motor accident. 3. It is alleged in the claim case that on 19.11.2002, owner of the Poclain sent a Truck for loading that Poclain on Truck No. MH 34A 5978. Claimant and other employees/ operator of that Poclain got the Poclain loaded on that Truck. The loading took place at Nancherla village under Pegdapall P.S. of District Karim Nagar, Andhra Pradesh. The claimant was deployed on Poclain, which itself was loaded on truck. The truck proceeded towards its destination. The driver of the truck was allegedly driving the same very rashly and negligently, due to which Poclain came in contact with live electric wires. In order to save himself, claimant got down from the Poclain but he came into contact with those live electric wires whereby he sustained serious injuries. He received burnt injuries on both legs and right arm. Claimant was taken to the Government Hospital, Jagtlal in a Jeep. Thereafter he was taken to Hyderabad and was admitted at Government Hospital on 27.11.2001 for better treatment. Due to said injuries, his right foot and three toes of the left foot had to be amputated. After his treatment, claimant returned from Hyderabad and lodged a Criminal Case being Cr. No. 111/01, under Section 337 of the Indian Penal Code. It is further alleged that due to said injuries, claimant became out of job and lost his earning capacity by 100%. He has put a claim of loss of earning @Rs.4,500/- per month from 19.11.2001 till disposal of the case. He has also put claim of future loss of earning till rest of his life @Rs.4,500/- per month. Age of the claimant has been disclosed as 33 years. 4. Parties were noticed and Insurance Company put their appearance. He has put a claim of loss of earning @Rs.4,500/- per month from 19.11.2001 till disposal of the case. He has also put claim of future loss of earning till rest of his life @Rs.4,500/- per month. Age of the claimant has been disclosed as 33 years. 4. Parties were noticed and Insurance Company put their appearance. However, owner of the vehicle has not put his appearance. Evidences were led and after hearing the parties, learned Tribunal framed issues for just adjudication of the claim. After considering written statements, examination of witnesses, evidences laid and documents brought on record, the Tribunal decided the issues and partly allowed the claim application with following directions: (a) Injured/ claimant is entitled for an Award of Rs.2,25,000/- against New India Assurance Company Ltd; (b) The claimant/ injured has concluded his evidence on 08.01.2010. Therefore, the claimant shall be also entitled for an interest @6% with effect from 08.01.2010 on the amount of compensation mentioned in Clause (a); (c) The Insurance Company has been directed to make payment of Award money within one month of the Judgment and order. 5. Mr. Shahid Khan, learned counsel appearing on behalf of the appellant argues that learned Tribunal has erred in deciding the issues and looking into the fact that there is 100% loss to the earning of the claimant, a suitable amount ought to have been awarded in his favour for his sustenance. 6. Mr. G.C. Jha, learned counsel appearing on behalf of the Insurance Company vehemently opposes contention of learned counsel for the appellant and further submits that sufficient amount of compensation has already been awarded. The impugned order needs no interference and as such this appeal is fit to be dismissed. The appellant has already received amount of compensation and as such no right has accrued to prefer this appeal for enhancement of amount of compensation. 7. Be that as it may, having gone through submission of the parties as well as materials on record, I am not impressed with the arguments advanced by counsel for the Insurance Company that as appellant has already received the amount awarded by Tribunal his appeal should be dismissed. No document has been produced before this Court to show that appellant has at any time agreed that he would not file any appeal before this Court if he was paid amount of compensation. No document has been produced before this Court to show that appellant has at any time agreed that he would not file any appeal before this Court if he was paid amount of compensation. Consequently, this appeal is allowed and the impugned Judgment and Award stands modified in the following manner: S. No. Particulars Amount (Rs.) 1 Towards pain and suffering Rs. 1,00,000.00 2. Towards Medical Expenses Rs.40,000.00 3. Towards conveyance, nourishing, food and attendant charges Rs.40,000.00 4. Towards loss of income during laid up period (during treatment) Rs.18,000.00 5. Towards loss of amenities of life Rs.1,00,000.00 6. Total Rs.2,98,000.00 7. Towards loss of future earnings; Rs. 3,000 (earning) x 12 months = Rs.36,000/- (per annum) 90% disability of 36,000/- = Rs.32,400/- Multiplier of 16 (as he was 33 years old at the time of accident) 32,400 x 16 = Rs.5,18,400/- Rs.5,18,400.00 [to be dividing between two vehicles = Rs.2,59,200.00] 7. Towards future medical expenses Rs.30,000.00 8. Total Amount : [2,98,000 + 2,59,200 + 30,000] Rs.5,87,200.00 Accordingly, amount of compensation is enhanced from Rs.2,25,000/- to Rs.5,87,200/- with interest @6% per annum to be paid by the insurer of the Truck. 8. At this juncture, learned counsel for the appellant submits that as the conducting counsel in the Tribunal has already died, suffice it would be for the ends of justice that the amount be deposited before the Member Secretary, JHALSA. 9. Mr. G.C. Jha, learned counsel appearing for the Insurance Company submits that though the Insurance Company has been indemnified for making payment of enhanced compensation but as the Insurance Company has already paid the amount awarded by the Tribunal with interest on the principal amount, the Company is not liable to pay interest on the enhanced amount. 10. In view of submission of learned counsel for the appellant, let the enhanced amount i.e. Rs.3,62,000/- with interest @6% per annum, as ordered, be deposited before the Member Secretary, JHALSA, Ranchi who shall disburse the same to the claimant upon proper identification. If the amount is so deposited, the claimant is free to receive the same. After the amount is received by the claimant, a communication to that effect be given to the Tribunal. 11. With aforesaid observations and directions, this appeal stands allowed. 12. Let the lower court record sent back to the court concerned.