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2021 DIGILAW 706 (RAJ)

Mohd. Riyaz v. Akbar Shah

2021-03-25

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. With the consent of the learned counsel for the parties, the matters are being heard and disposed of finally. S.B. Civil Misc. Appeal No. 1234/2017:- 2. The present appeal has been preferred by the appellant-claimant against the judgment and award dated 13.01.2017 passed by Motor Accident Claims Tribunal No.1, Udaipur in M.A.C. Case No. 965/2015, whereby the Tribunal awarded a sum of Rs.5,17,700/- to the appellant-claimant on account of the injuries suffered by him in the accident which occurred on 19.02.2015. 3. The learned Tribunal, after framing the issues, evaluating the evidence on record and hearing learned counsel for the parties decided the claim petition of the claimant-appellant. 4. Learned counsel for the appellant-claimant submits that the finding of the Tribunal recorded on Issue No.3 with respect to the consideration of the permanent disability is incorrect. He submits that the Medical Board gave the certificate of disability of the injured to the extent of 42%, whereas, the Tribunal took into consideration permanent disability to the extent of 20% only. He further submits that there were three fractures on the body of the injured-appellant and, therefore, the assessment of the permanent disability of the whole body to the extent of 20% only, is on the lower side. He submits that the loss of income towards future prospects is also wrongly assessed by the Tribunal and the same is required to be re-assessed in the light of the judgments of Hon'ble the Supreme Court in the case of Sanjay Verma V/s Haryana Roadways reported in AIR 2014 SC 995 & Pappu Deo Yadav V/s Naresh Kumar & Ors. reported in AIR 2020 SC 4424 . 5. Per contra, learned counsel for the Insurance Company submits that in view of the evidence produced by the appellant in support of his claim petition, the Tribunal correctly awarded the amount of compensation in the present case. He submits that the finding of the Tribunal on Issue No.3 does not suffer from any infirmity as the Medical Board assessed the disability of the injured only on the particular parts of the body which suffered injuries and not of the whole body. He submits that the finding of the Tribunal on Issue No.3 does not suffer from any infirmity as the Medical Board assessed the disability of the injured only on the particular parts of the body which suffered injuries and not of the whole body. He is not in a position to controvert the submissions of the learned counsel on the point of non-payment of the amount on account of loss of future prospects in the light of the judgments relied upon by the learned counsel for the appellant-claimant. 6. I have considered the submissions made at the Bar and have gone through the judgment and award dated 13.01.2017 as well as other relevant record of the case. 7. The appellant-injured suffered three fractures of left femur bone, left clavicle and right fibula respectively and the Certificate Ex.31 issued by the Medical Board shows the disability to the extent of 42%. Considering the fact that the appellant-claimant suffered three fractures in the accident, this Court feels that the ends of justice will be met, if the disability of the whole body is taken to be 30%. Thus, the finding of the Tribunal on Issue No.3 is modified and it is held that the disability of the injured-appellant is taken as 30% instead of 20% while computing the award. 8. Further, in view of the judgment of Hon'ble Supreme Court in the case of Sanjay Verma V/s Haryana Roadways (Supra) and Pappu Deo Yadav V/s Naresh Kumar & Ors. (Supra), 40% amount towards the loss of future prospects is required to be taken into consideration while recomputing the award in the present case. The joint re-computation of the award submitted by the learned counsel for the parties is as under : - Income of the claimant-appellant Rs. 90,000/- P.A. Towards Loss of Future Prospects 40% 90,000 X40/100 = Rs. 36,000/- Total Rs.1,26,000/- Permanent Disability 30% 1,26,000 X 30/100 = Rs. 37,800/- Multiplier 16 37,800 x 16= Rs.6,04,800/- Other heads Rs.2,29,700/- Total Rs.8,34,500/- Amount awarded by the Tribunal vide award dated 13.01.2017 Rs.5,17,700/- Enhanced Amount Rs.3,16,800/- 9. 90,000/- P.A. Towards Loss of Future Prospects 40% 90,000 X40/100 = Rs. 36,000/- Total Rs.1,26,000/- Permanent Disability 30% 1,26,000 X 30/100 = Rs. 37,800/- Multiplier 16 37,800 x 16= Rs.6,04,800/- Other heads Rs.2,29,700/- Total Rs.8,34,500/- Amount awarded by the Tribunal vide award dated 13.01.2017 Rs.5,17,700/- Enhanced Amount Rs.3,16,800/- 9. Thus, in view of the discussions made above, the present appeal is partly allowed and the amount of Rs.3,16,800/-(Rupees: Three Lac Sixteen Thousand Eight Hundred Only) is enhanced and the respondent-Insurance Company is directed to pay the enhanced amount in addition to the amount already awarded by the Tribunal vide judgment and award dated13.01.2017 within a period of six weeks from today. The enhanced amount shall carry an interest @ 7.5% from filing of the claim petition and till the same is paid. S.B. Civil Misc. Appeal No. 1033/2017:- 10. The instant appeal has been preferred by the appellants-claimants against the judgment and award dated 13.01.2017 passed by Motor Accident Claims Tribunal No.1, Udaipur in M.A.C. Case No. 416/2015, whereby the Tribunal awarded a sum of Rs.9,62,336/- to the appellants-claimants on account of the death of Mohd. Abdul Wahid in the accident which occurred on 19.02.2015. 11. Learned counsel for the appellants submits that the finding of the Tribunal on Issue No.3 suffers from gross and palpable errors. He submits that the Tribunal despite there being Income Tax Returns produced on record showing the income of the deceased did not take into consideration the entire income and considerably reduced the same on the ground that no evidence was produced as to whether the appellants are receiving the same amount as was received by the deceased from M/s. M.A. Handloom Enterprises, Udaipur or not. Learned counsel contended that despite there being conclusive proof of the income, while computing the award the same was not taken into consideration. Learned counsel further submits that there are four dependents in the family, therefore, the deduction towards personal expenditure is required to be l/4th instead of l/3rd. He, therefore, prays that the amount is required to be recomputed in the light of the judgment of Hon'ble the Supreme Court in the case of National Insurance Company Ltd. V/s. Pranay Sethi reported in (2017) SC 5157. 12. He, therefore, prays that the amount is required to be recomputed in the light of the judgment of Hon'ble the Supreme Court in the case of National Insurance Company Ltd. V/s. Pranay Sethi reported in (2017) SC 5157. 12. Per contra, learned counsel for the Insurance Company submits that the finding recorded by the Tribunal on Issue No.3 does not suffer from any infirmity as the appellant failed to disclose the source of income as projected in the Income Tax Returns. He further submits that nowhere in the pleadings made before the Tribunal or in the claim petition, the claimants showed the business as a source of income. Learned counsel emphatically argued that the Tribunal correctly discarded the income which was stated to be received by the claimants from M/s. M.A. Handloom Enterprises, Udaipur on the ground that no documentary evidence was placed on record to show that in what capacity the deceased was working in the M/s. M.A. Handloom Enterprises, Udaipur. Learned counsel, therefore, submits that while assessing the income of the deceased, entire income as projected in the Income Tax Returns should not be taken into consideration. Learned counsel also submits that no documentary evidence was produced in support of the source of income before the Tribunal. He, therefore, prays that in view of the detailed discussions made by the Tribunal, no interference in the award impugned is warranted. However, he is not in a position to dispute the re-computation of the award in the light of the judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi(Supra). 13. I have considered the submissions made at the Bar and have gone through the judgment and award dated 13.01.2017 as well as other relevant record of the case. 14. The finding of the Tribunal on Issue No.3 that the source of income of the deceased was not disclosed and, therefore, while computing the income, certain amount which was being received by the deceased from M/s. M.A. Handloom Enterprises, Udaipurcannot be taken into consideration, is not correct on the ground that the Insurance Company failed to bring on record the fact that the income which was being received by the deceased will not be received any further by the claimants in the event of the death of the deceased - Mohd. Abdul Wahid. Abdul Wahid. Once, the Income Tax Return was filed before the Tribunal and pleaded in para No.6 of the claim petition that the deceased was earning Rs.17,000/- per month the same gets corroborated by the Income Tax Return of 2014-15. Merely, because the source of income is not disclosed in the claim petition, the Income Tax Return for the assessment year 2014-15 cannot be discarded. Further, non-disclosure of the source of income also does not disentitle the appellants-claimants from assessing the monthly income of the deceased. Thus, the finding recorded by the Tribunal on Issue No.3 is not correct and it is held that income as projected in the Income Tax Return of the assessment year 2014-15 is required to be taken into consideration while computing the award which is Rs. 1,84,046/-. Admittedly, there are four dependents in the family of the deceased, therefore, the Tribunal wrongly deducted l/3rd amount from the income of the deceased towards personal expenditure. Thus, the deduction should have been l/4th instead of l/3rd of the income. 15. The Tribunal committed an error while taking into consideration 15% of amount towards the loss of future prospects. Since, the age of the deceased was 57 years, therefore, only 10% of the amount is required to be taken into consideration as the loss of income towards the future prospects. A joint calculation submitted by learned counsel for the parties for re-computation of the award is as under: - For future prospects: - 10% of Rs. 1,84,046/-(Yearly Income of deceased) Rs. 18,405/- Rs. 1,84,046/- + Rs. 18,405/- Rs. 2,02,451/- Amount to be deducted as spent on himself yearly. Rs. 2,02,451/-/ 1/4 = Rs. 50,613/- Dependence Amount Rs.2,02,451 Rs.50,613 = Rs. 1,51,838/- The age of deceased was 57 years and, therefore, a multiplier of 9 will be used. (I) Compensation due to death 1,51,838/- x 9 Rs. 13,66,542/- (II) Other conventional heads Rs. 70,000/- Total Rs. 14,36,542/- Amount awarded by the Tribunal vide award dated 13.01.2017 Rs. 9,62,336/- Enhanced amount Rs. 4,74,206/- 16. Thus, in view of the discussions made above, the present appeal is partly allowed and the amount of Rs.4,74,206/-(Rupees: Four Lac Seventy Four Thousand Two Hundred Six Only) is enhanced and the respondent-Insurance Company is directed to pay the enhanced amount in addition to the amount already awarded by the Tribunal vide its judgment and award dated 13.01.2017 within a period of six weeks from today. The enhanced amount shall carry an interest @ 7.5% from filing of the claim petition and till the same is paid.