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2021 DIGILAW 207 (JK)

New India Assurance Co. Ltd. v. Pawan Singh

2021-04-29

RAJNESH OSWAL

body2021
JUDGMENT : RAJNESH OSWAL, J. 1. The present appeal has been preferred by the appellant-Insurance Company against the judgment/award dated 30.04.2010 passed by the Motor Accident Claims Tribunal, Jammu (herein after to be referred as the Tribunal) in Claim Petition No. 92/claim, titled, Pawan Singh vs. Arun Kumar and Others, by virtue of which a sum of Rs. 24,83,108/- has been awarded as compensation to respondent No. 1 on account of the injuries sustained to him in a road traffic accident on 13.12.2004 caused by the vehicle bearing registration No. JK02L- 3756 being driven by respondent No. 3 and owned by respondent No. 2. 2. The appeal has been filed on the ground that the quantum of compensation awarded to respondent No. 1 is excessive as the Tribunal has wrongly assessed the income of the claimant as Rs. 4500/- per month as the respondent No. 1 was a student and not having any source of income at the time of accident. The award has also been assailed on the ground that the Tribunal has assessed the compensation for loss of future income on the basis of 70% permanent disability of whole body, whereas the fact remains that the claimant had suffered 70 % permanent disability of his left lower limb only. It is also submitted that compensation of Rs. 10.50 lacs as cost of artificial limb is without any basis, whereas as per the statement of Dr. Sudesh Sharma, the cost for fixation of artificial limb expenditure is between Rs. 20,000/- to Rs. 50,000/-. It is further contended that the Tribunal has granted excessive compensation on account of pain and sufferings as well as for loss of amenities of life and also that the Tribunal has erred in awarding Rs. 3,66,108/- for medical expenses. 3. Mr. Jugal Kishore Gupta, learned counsel for the appellant vehemently argued and has laid much stress on the award of Rs. 10.50 lacs as cost of replacement of artificial limb. He also urged that a sum of Rs. 2,50,000/- lacs each awarded under the head “pain and sufferings” and “lost of amenities of life” are on higher side. 4. Per contra, Mr. A.S. Manhas, learned counsel for respondent No. 1 supported the judgment/award impugned and submits that the award passed by the learned Tribunal is well within the domain of law. 5. Heard learned counsel for the parties and perused the record. 6. 4. Per contra, Mr. A.S. Manhas, learned counsel for respondent No. 1 supported the judgment/award impugned and submits that the award passed by the learned Tribunal is well within the domain of law. 5. Heard learned counsel for the parties and perused the record. 6. The appellant has raised dispute only with regard to the compensation awarded to respondent No. 1. From the statement of petitioner-Pawan Singh, it is evident that he was a student and beside studies, he was also involved in vocation of agriculture and also used to grow and sell vegetables. The claimant has not been cross-examined by the appellant- Insurance Company with regard to this, as such, it cannot be accepted that the claimant was only a student having no source of income. Therefore, there is no perversity in taking the income of the respondent No. 1 as Rs. 4500/- per month. 7. The brief facts necessary for disposal of the present appeal are that the claimant filed claim petition for grant of compensation on account of injuries suffered in a road traffic accident on 13.12.2004, as the claimant while travelling as a pillion rider on a motorcycle met with an accident, which was being driven by Prince Jasrotia. The said motorcycle was hit by a truck bearing No. JK-02L-3756 that was being driven by respondent No. 3 in a rash and negligent manner. Both the motorcyclist as well as pillion rider fell down. The driver of the motorcycle died, however, the claimant sustained grievous injuries. The petitioner was taken to Arora Neuro Center, Ludhiana and he went into comatose condition. He suffered grievous injuries, which caused amputation of left lower limb at Supra condylar cord with infected stumps. The claimant underwent surgery. It is further contended that the claimant also remained hospitalized at Sidhra Medical College and 4/5 lacs were spent on his treatment. 8. The appellant-insurance company contested the claim petition. From the pleadings of the parties, the following issues were framed:- “1. Whether an accident occurred on 13.12.2004 at Kathua District by the rash and negligent driving of the offending vehicle no. JK-02L-3756 being driven in the hands of erring driver in which Pawan Singh sustained grievous injuries and fatal injuries to deceased Prince Jasrotia? OPP 2. If issue no. From the pleadings of the parties, the following issues were framed:- “1. Whether an accident occurred on 13.12.2004 at Kathua District by the rash and negligent driving of the offending vehicle no. JK-02L-3756 being driven in the hands of erring driver in which Pawan Singh sustained grievous injuries and fatal injuries to deceased Prince Jasrotia? OPP 2. If issue no. 1 is prove in affirmative whether petitioners in each case are entitled to the compensation in both cases, if so to what amount and from whom? OPP 3. Whether at the time of accident driver of the offending vehicle was not holding valid and effective driving license and drove the in contravention of the terms and conditions of the insurance policy; if so how? OPR-3 4. Relief.” 9. The claimant, besides examining himself, examined PW Ranjeet, Singh, PW Head Constable Mohinder Singh, PW Om Parkash, PW Yashpal Singh, record keeper ASCOM Hospital, Sidhra Jammu, PW Vikas Sharma, PW Dr. Sudesh Sharma, PW Joginder Raj, PW S. Baldev Singh, Supervisor Arora Neuro Centre and PW Dr. S.K. Bansal, Consultant Neuro Surgeon, Arora Neura Centre, Ludhiana. 10. A perusal of the record reveals that the learned Tribunal has applied the multiplier of 15, whereas the multiplier in the instant case was required to applied as 18 as the respondent No. 1 was only 21 years of age at the time of accident so the loss of future income comes around Rs. 6,42,600/- From the statement of Dr. Sudesh Sharma, it is evident that the petitioner with 70% disability, cannot join belt force as it affects his mobility. Even if, he is provided an artificial limb, the same cannot compensate for the loss of original because the same requires frequent changes due to wear and tear and also involves expenditure for about Rs. 20,000/- to 50,000/- depending upon availability and quality of the limb. It is further stated that the petitioner requires assistance of an helper even now and in future also and he has not remained fit to indulge in agricultural vocation for the reason that it requires involvement of full body. In cross-examination, Dr. Sudesh Sharma has stated that with injuries suffered by the respondent No. 1, he cannot do any job up to the 85% of the capability. Further, Dr. In cross-examination, Dr. Sudesh Sharma has stated that with injuries suffered by the respondent No. 1, he cannot do any job up to the 85% of the capability. Further, Dr. S.K. Bansal in his cross-examination has stated that the patient with such type of injuries and operations may have further problems and usually requires a long term treatment. He has further stated that he has not done any statistical analysis but many of the patients may suffer from one or the other problems, such as, epilepsy despite being on regular treatment. 11. From the medical evidence brought on record by respondent No. 1, there is no infirmity in taking the 70% permanent disability for the purpose of determining the compensation for loss of future income, particularly in view of the statement of Dr. Sudesh Sharma that respondent No. 1 cannot do any job up to 85 of the capability. So far as compensation of Rs. 10,50,000/- for the cost of artificial limb awarded to respondent No. 1 is concerned, this Court finds that the Tribunal without any evidence has taken the cost of the artificial limb at Rs. 1,50,000/- which is contrary to the statement of Dr. Sudesh Sharma. Even if, it taken that respondent No. 1 being 21 years of age has to replace the limb seven times in future, even then a sum of Rs. 1,50,000/- per limb as estimated by the learned Tribunal, is not correct. Assuming that with inflation the cost of artificial limb would increase in future, even then the cost of artificial limb as Rs. 1,50,000/- is on higher side and the same can be taken as Rs. 75,000/- per limb. 12. It is contended that the claimant has undergone surgery and also remained in comatose condition, as such, the amount of Rs. 2,50,000/- awarded under the head “pain and sufferings” cannot be said to be an excessive amount. Likewise, the claimant has suffered amputation of left lower limb and because of that he is not able to enjoy his life normally, the amount of Rs. 2,50,000/- awarded under the head “loss of amenities of life” cannot be excessive. 13. For what has been discussed above, the award dated 30.04.2010 is required to be modified and the same is, accordingly, modified to the extent below: 1. For loss of future income Rs. 6,80,400/- 2. For medical Hospitalization transportation etc. Rs. 3,66,108/- 3. 2,50,000/- awarded under the head “loss of amenities of life” cannot be excessive. 13. For what has been discussed above, the award dated 30.04.2010 is required to be modified and the same is, accordingly, modified to the extent below: 1. For loss of future income Rs. 6,80,400/- 2. For medical Hospitalization transportation etc. Rs. 3,66,108/- 3. Cost of artificial limb Rs. 5,25,000/- 4. For pain and sufferings Rs. 2,50,000/- 5. For loss of amenities of life Rs. 2,50.000/- Total Rs. 20,71,508/- 14. The remaining award amount shall be released in favour of the claimant/respondent No. 1 after due verification by his counsel along with interest as per the impugned judgment/ award and excess amount, if any, shall be returned to the Appellant-Insurance Company. 15. Appeal Disposed of.