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Rajasthan High Court · body

2021 DIGILAW 2247 (RAJ)

Rajesh Joshi v. Late Jaysingh

2021-11-30

RAMESHWAR VYAS

body2021
ORDER 1. Since both the appeals arise out of the same order, hence, both the appeals are being decided by this common order. 2. National Insurance Company has filed appeal under Section 173 of Motor Vehicle Act, 1988 (herein afterwards referred to as 'MV Act') against the award dated 28.10.2020 passed by Motor Accident Claims Tribunal, Banswara (herein afterwards referred to as 'the Tribunal') in Claim Case No. 454/2018 [Dr. Rajesh Joshi vs. Late Jai Singh & Ors], whereby respondent claimant was awarded Rs.5,97,692/- as compensation. Whereas, claimant Dr. Rajesh Joshi has filed the appeal for enhancement of the compensation awarded by the Tribunal. 3. Brief facts of the case are as under:- 4. On 14.1.2018, in the evening at 5:40 PM, claimant was going on a motorcycle from Banswara to Barodiya. On the way, Suraj respondent no.3 herein, while driving his motorcycle RJ 03-SS-8626 in a rash and negligent manner, hit the motorcycle of the claimant, on account of which, claimant sustained injuries. First Information Report No. 24/2018 was lodged by the nephew of the claimant. Police after investigation, filed charge-sheet against respondent no.3 Suraj. 5. The claimant filed a claim petition under Section 166 of M.V. Act. claiming compensation against the driver, owner and the insurer of the motorcycle of the RJ 03-SS-8626. The claim petition was contested. The claimant appeared as witness in support of his case and total 52 documents were exhibited to substantiate his claim. No evidence on behalf of the respondent was produced. 6. Learned Tribunal passed a claim of Rs.5,97,692/- with interest @ 6% per annum. 7. Terming quantum of compensation awarded by the Tribunal as excessive, the Insurance Company has filed the appeal with the averments that claimant was in the Government Job, working as Associate Professor in Govind Singh University, Banswara. It is alleged that on account the accident, no loss was incurred in the income of the claimant. Learned Tribunal erred in awarding Rs.5 Lakh in the head of loss of income. Learned Tribunal also erred in awarding lumpsum amount in the head of loss of earning, which is not in consonance with the law laid down by the Hon'ble Apex Court. Claimant sustained fracture in his leg for which disability certificate was produced but the doctor issuing the said disability certificate was not produced to prove the same. Learned Tribunal also erred in awarding lumpsum amount in the head of loss of earning, which is not in consonance with the law laid down by the Hon'ble Apex Court. Claimant sustained fracture in his leg for which disability certificate was produced but the doctor issuing the said disability certificate was not produced to prove the same. Learned Tribunal erred in relying upon the disability certificate and calculating loss of income on the basis of percentage of disability @ 15%. It is averred that though the learned Tribunal in its judgment referred the judgment of the Hon'ble Apex Court passed in the case of Raj Kumar vs. Ajay Kumar : 2011 TAC 1, however, that judgment was not considered in its true sense. 8. Learned counsel for the claimant has assailed the impugned award submitting that the learned Tribunal has awarded lesser compensation to the claimant, hence, he prayed to enhance the compensation. 9. Heard the learned counsel for the parties and perused the material available on record. 10. Learned counsel for the Insurance Company has challenged the impugned award on the point of quantum of compensation awarded by the learned Tribunal. Learned counsel for the Insurance Company has relied upon the judgment of the Hon'ble Apex Court in the matter of Raj Kumar (supra) and prayed to reduce the quantum of compensation awarded by the learned Tibunal, appropriately. 11. On the other hand, learned counsel for the claimant has submitted that the claimant remained hospitalized from 14.1.2018 to 20.20.1.2018 and from 24.1.2018 to 29.1.2018 for 11 to 12 days. The claimant suffered fracture in his leg on account of which his future prospectus have been adversely affected. Learned counsel for the claimant has submitted that the learned Tribunal has awarded meagre sum of amount and hence, appeal filed by the claimant be allowed and the amount of compensation be enhanced. 12. In the present case, it is not in dispute that the claimant is Government employee posted as Associate Professor in the Government College. On account of injury sustained in the accident, no loss of earning has been caused to the claimant. He is continuing in service. 12. In the present case, it is not in dispute that the claimant is Government employee posted as Associate Professor in the Government College. On account of injury sustained in the accident, no loss of earning has been caused to the claimant. He is continuing in service. In the case of Raj Kumar (supra) the Hon'ble Apex Court held that 'what requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of percentage of income, it has to be quantified in terms of money to arrive at future loss of earning'. In the present case, since no loss of income has been caused to the claimant on account of his injury, learned Tribunal grossly erred in awarding compensation in the head of loss of income. He is not entitled for loss of income, however, instead he may be awarded sufficient amount for pain and suffering. 13. From the perusal of the impugned judgment, it is also evident that no basis for calculating the loss of income of Rs. 5 Lakhs has been discussed. In the considered opinion of this court, awarding lump-sum amount in such a manner is not permissible in view of the well settled principles of law as laid down by the Hon'ble Apex Court in various judgments. Disability certificate Exhibit-P/50 shows that 20% of the disability was assessed on account of fracture in the leg only. No disability has been shown to be caused to the claimant on account of other injuries suffered by the claimant on other parts of the body as stated by the claimant in his statement on oath before the Tribunal. Claimant in his statement also did not disclose the grounds on the basis of which, it can be said that claimant suffered loss of future prospectus in his life. 14. After perusal of the statement claim, it is revealed that he suffered pain, suffering, inconvenience and pecuniary loss on account of injury sustained by him in the accident, which can be calculated in the following terms:- Expenses incurred on Medicine Rs.58,000/- Expenses incurred on transportation Rs. 10,000/- Expenses incurred on nursing and food Rs.10,000/- Misc. Expenses Rs. 14. After perusal of the statement claim, it is revealed that he suffered pain, suffering, inconvenience and pecuniary loss on account of injury sustained by him in the accident, which can be calculated in the following terms:- Expenses incurred on Medicine Rs.58,000/- Expenses incurred on transportation Rs. 10,000/- Expenses incurred on nursing and food Rs.10,000/- Misc. Expenses Rs. 10,000/- Loss of earning during period of treatment Rs.70,000/- Compensation in the head of pain and suffering Rs.100,000/- Total compensation awardable Rs.2,58,000/- Amount awarded by the Tribunal Rs.5,97,692/- 15. Consequently, S.B. Cr. Misc. Appeal No. 7/2021 filed by the claimant is dismissed. Whereas, S.B. Cr. Misc. Appeal No. 139/2021 filed by the Insurance Company is allowed. The award dated 28.10.2020 is modified to the extent that claimants would be entitled to a compensation of Rs. 2,58,000/- instead of Rs. 5,97,692/- as awarded by the Tribunal. On the modifed amount of compensation, the claimants would be entitled to interest @ 6% per annum from the date of claim petition till the date of actual payment. The insurance company is entitled to recover excess amount paid by it from the claimant.