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Rajasthan High Court · body

2021 DIGILAW 212 (RAJ)

Yusuf Hussain v. Bhanwar Lal

2021-01-27

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. The matter comes up on an application for early hearing of the appeal. 2. For the reasons mentioned in the application, the same is allowed. 3. With the consent of counsel for the parties, the matter is taken up and heard finally today itself. 4. The instant appeal has been preferred against the judgment and award dated 18.10.2011 passed by Motor Accident Claims Tribunal, Rajsamand in Motor Accident Claim Case No.169/2010 whereby the learned tribunal has awarded a sum of Rs.8,28,700/-in favour of the appellant-claimant with an interest @ 7% per annum. 5. The counsel for the appellant submits that learned Tribunal erred while computing income of the appellant to the tune of Rs.1,39,462/- per annum, which is a mean amount of income shown in the Income Tax Certificates of years 2008, 2009 and 2009 respectively. He further submits that appellant's business was flourishing and was in ascending mode. In any case, the income of the appellant in the Income Tax Returns of the assessment year 2010 was shown to be Rs.1,60,011/-. Since, the accident occurred in the month of November, 2009, therefore, there was no reason for the tribunal not to consider the income of the appellant as shown in the Income Tax Return of assessment year 2010 and taking into consideration the Income Tax Return of year 2010, the income of the appellant should have been considered and assessed as Rs.1,60,011/- per annum. He further submits that multiplier of 15 should have been applied by the learned Tribunal for computing the compensation whereas in the instant case, the Tribunal has wrongly applied the multiplier of 16. 6. So far as the disability sustained by the appellant in the accident is concerned, the counsel submits that in view of number of fractures suffered by the appellant and as per opinion of the medical board, whereby permanent disability of the appellant was assessed to the extent of 40%, the Tribunal reduced the permanent disability sustained by the appellant to the extent of 25% only without there being any cogent reason. There was no reason for the Tribunal to compute the permanent disability of the appellant to the extent of 25% only and the same should be considered as 40% as the appellant has virtually become disabled even to perform his day-to-day activities and undertake his business with the same energy and ability. There was no reason for the Tribunal to compute the permanent disability of the appellant to the extent of 25% only and the same should be considered as 40% as the appellant has virtually become disabled even to perform his day-to-day activities and undertake his business with the same energy and ability. He further submits that no amount has been awarded by learned Tribunal towards the future prospects to the appellant in view of the judgment of the Hon'ble Supreme Court in the case of Sanjay Verma V/s Haryana Roadways, 2014 ACJ 692 and Pappu Deo Yadav V/s Naresh Kumar & Ors., AIR 2020 SC 4424 . The counsel further submits that the finding arrived at by the learned Tribunal on issue No.4 is erroneous as the insurance company has been exonerated in the present case from its liability of paying compensation in view of the fact that the driving license held by the driver of the offending vehicle was not proper and valid. In view of the judgment of Hon'ble Supreme Court in the case of Mukund Devangan V/s Oriental Insurance Co. Ltd. (2017) 14 SCC 663 . liability on the part of insurance company cannot be escaped. The counsel further submits that the Tribunal has not awarded any sum towards pain and suffering suffered by the appellant in the accident which occurred on 25.11.2009. Therefore, he prays that the judgment and award passed by the Tribunal may be modified suitably. 7. Per contra, learned counsel for the insurance company submits that the computation of compensation undertaken by the Tribunal is perfectly just and proper and does not call for any interference by this court. He further submits that since the appellant was a businessman, therefore, it cannot be assumed that his business will flourish all the times, therefore, the Tribunal was right in taking average of three years Income Tax Returns for arriving at correct figure of the income earned by the appellant. He further submits that the multiplier applied by the Tribunal is also on the higher side because at the time of the accident, the appellant was 39 years of age, therefore, multiplier of 15 should have been applied by the learned Tribunal. He further submits that the multiplier applied by the Tribunal is also on the higher side because at the time of the accident, the appellant was 39 years of age, therefore, multiplier of 15 should have been applied by the learned Tribunal. The counsel frankly submits that in the light of the judgments of Hon'ble Supreme Court in the case of San jay Verma (supra) and Pappu Deo Yadav (supra), the appellant-claimant is entitled for computation of compensation towards the loss of future prospects. It is also contended that in the light of judgment rendered by the Hon'ble Supreme Court in the case of Mukund Devangan (supra), the insurance company will be liable to pay compensation as offending vehicle was having its weight less than 7500 kg, the license of Light Motor Vehicle held by the driver of the offending vehicle would be valid and considered for the purpose. 8. In view of above, this court is of the view that the Income Tax Return for the year 2010 should have been taken into consideration for calculating income of the appellant because admittedly, the appellant was doing the business and trend of business was in ascending order where his income was increasing, therefore, it cannot be said that on the date on which the accident occurred, the appellant was having an income less than the income which has been reflected in the Income Tax Return, therefore, the income of the appellant shown in his income tax return of year 2010 is required to be considered. The Tribunal also erred in taking into consideration 25% disability of the appellant as the injuries sustained by the appellant are quite serious and having three fractures and the certificate issued by the Medical Board categorically mentions the disability suffered by the appellant to the extent of 40%. There was no reason for the tribunal to disbelieve the same in the light of injuries sustained by the appellant. This court is of the opinion that disability of the appellant is required to be adjudged to the extent of 40%. 9. Taking into consideration Income Tax Return of the appellant of year 2010, applying multiplier of 15 instead of 16 as admitted by both the parties and considering disability to the extent of 40%, the income assessed by this court will be as under:- Rs.1,60,011 x 15 x 40/100 = Rs.9,60,066/- 10. 9. Taking into consideration Income Tax Return of the appellant of year 2010, applying multiplier of 15 instead of 16 as admitted by both the parties and considering disability to the extent of 40%, the income assessed by this court will be as under:- Rs.1,60,011 x 15 x 40/100 = Rs.9,60,066/- 10. The argument of learned counsel for the appellant with respect to future prospects having not been taken into consideration, has merit in the light of judgments of Hon'ble Supreme Court rendered in the cases of Pappu Deo Yadav (supra) and Sanjay Verma (supra). Thus, the same is awarded @ 40% and the amount of Rs.3,84,000/- is awarded to the appellant towards his future prospects. 11. So far as argument of the counsel for the appellant that the Tribunal has not awarded any amount towards the pain and suffering suffered by the appellant in the accident, this court deems it proper that the appellant is entitled to receive an amount of Rs. 1,00,000/- as compensation towards pain and suffering. Since, the counsel for the appellant has not disputed or touched the amount of compensation assessed and awarded by the learned Tribunal under other heads, this court does not feel inclined to interfere in the same. 12. In view of discussions made above, the present appeal is partly allowed. The judgment and award dated 18.10.2011 passed by Motor Accident Claims Tribunal, Rajsamand in MAC case No.169/2010 is modified and the respondent insurance company is directed to pay compensation to the appellant to the tune of Rs. 17,14,940/- within a period of six weeks. The amount of compensation shall carry an interest @6% p.a. from the date of filing of the claim petition before the Tribunal. 13. It is made clear that the said amount will be full and final settlement towards the claim raised by the appellant and will be inclusive of amount already awarded by the Tribunal towards medical expenses, loss of income during treatment, transport expenses etc. in favour of the appellant. 14. The record of the case be sent forthwith.