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2022 DIGILAW 1943 (PNJ)

Surender Kumar v. Dharam Pal

2022-11-03

HARKESH MANUJA

body2022
JUDGMENT Harkesh Manuja, J. - By way of present appeal, a challenge has been made at the instance of appellant/claimant to an award dated 22.04.2016 passed by the Court of learned MACT, Kaithal, with a prayer for seeking modification of the Award for the purpose of enhancement of compensation. 2. The facts leading to the present case are that the appellant who happens to be a photographer by profession was coming back from Kurukshetra to Kaithal on 11.01.2015 after having boarded a Haryana Roadways bus bearing No.HR-39C-9470. While the bus reached bus stand, Kaithal, respondent No.1 stopped the vehicle. While the appellant was in the process of alighting from the bus (offending vehicle), respondent No.1 without giving any signal, suddenly, started the bus and that too at a high speed, as a result thereof, the appellant fell down on the road and the rear wheel of the Bus ran over his right leg. FIR No.14 dated 13.01.2015, under Sections 279/337 IPC was also registered in this regard. The appellant being claimant filed a claim petition before the learned Tribunal seeking compensation to the tune of Rs. 20,00,000/- along with interest on account of injuries sustained in the aforementioned accident alleging rash and negligent driving of the offending vehicle by respondent No.1. 3. On the other hand, the factum of accident as well as the averments regarding rash and negligent driving were denied by the respondents. The learned Tribunal vide its impugned Award recorded a finding in favour of appellant to the effect that the offending vehicle was involved in the aforementioned accident and the same was being driven in a rash and negligent manner by respondent No.1 which resulted into the said accident. Besides it, considering the nature of injuries which resulted into amputation of right leg of the appellant below knee, a sum of Rs.10,27,000/- was awarded in favour of the appellant along with interest @ 9% per annum from the date of filing the petition till its realization. The details of compensation awarded are given hereinbelow:- Sr. No. Head of compensation Awarded amount 1. Loss of income Rs. 3,60,000/- 2. Medical expenses Rs.5,66,818/- 3. Loss of amenities Rs. 80,000/- 4. Transportation charges Rs. 10,000/- 5. Special diet Rs. 10,000/- 6. Pain and Suffering Rs. 10,000 Total Rs.10,26,818 rounded off Rs.10,27,000/- 4. The details of compensation awarded are given hereinbelow:- Sr. No. Head of compensation Awarded amount 1. Loss of income Rs. 3,60,000/- 2. Medical expenses Rs.5,66,818/- 3. Loss of amenities Rs. 80,000/- 4. Transportation charges Rs. 10,000/- 5. Special diet Rs. 10,000/- 6. Pain and Suffering Rs. 10,000 Total Rs.10,26,818 rounded off Rs.10,27,000/- 4. In the present appeal, while praying for enhancement of compensation, learned counsel for the appellant submits that while assessing notional income of the appellant/injured @ 6,000/- per month, learned Tribunal has gone wrong while assessing the loss of income @ Rs.2000/- per month only. He further submits that in view of the fact that the appellant was working as photographer, the 80% disability incurred by him on account of amputation of right leg below knee resulted into his functional disability much more than 10% as assessed by the learned Tribunal. Learned counsel for the appellant also submits that his grievance was also as regards inadequate compensation awarded on account of pain and suffering, loss of amenities of life and future enjoyment of life besides, special diet and future medical expenses as well as no compensation having been granted towards final replacement of artificial limb on his body. 5. On the other hand, learned counsel for respondent No.3-Insurance Company submits that the impugned award does not warrant any interference as the appellant/claimant has already been granted just and sufficient compensation. 6. I have heard learned counsel for the parties and perused the paper-book as well. I find force in the argument raised by learned counsel of the appellant that while calculating the pecuniary compensation. Learned Tribunal failed to adopt the appropriate mechanism as neither it assessed the monthly income of the appellant correctly nor it determined the functional disability to properly assess the loss of future income. Therefore, just compensation as stipulated in the Motor Vehicles Act, is required to be determined in view of principles of law laid down in R.D.Hattangadi Vs. Pest Control (India) (P) Ltd., reported as (1995) 1 SCC 551 ; Raj Kumar Vs. Ajay Kumar, reported as (2011) 1 SCC (Civ) 164 as well as Pappu Deo Yadav Vs. Naresh Kumar and others, reported as AIR 2020 SC 4424 . 7. Pest Control (India) (P) Ltd., reported as (1995) 1 SCC 551 ; Raj Kumar Vs. Ajay Kumar, reported as (2011) 1 SCC (Civ) 164 as well as Pappu Deo Yadav Vs. Naresh Kumar and others, reported as AIR 2020 SC 4424 . 7. Learned Tribunal while assessing the 'Loss of Future Income' by the appellant did not assess his functional disability, however while granting compensation for loss of amenities, learned Tribunal assessed his disability @ 40%. In this case appellant has suffered 80% permanent disability as his right leg below the knee has been amputated as shown in the disability certificate brought on record as PW4/A which was duly proved and supported by the statement of PW4 - Dr. Aman Sood. Though, this is on record that the appellant has got an artificial limb and due to this advancement of technology, his movements have been made relatively easier, but there cannot be any doubt that on account of this disability, appellant has been subjected to restricted movements. A photographer is not only required to go at different places to diversify his portfolio, but apart from that he also need to cover different subjects from different angles which require agile movements and this restriction will surely affect his ability to efficiently pursue his vocation, therefore, in my considered opinion, functional disability should be considered at least @ 50%. 8. With respect to the income of the appellant, no documentary proof was brought on record however it has been stated in his statement that he was working as a photographer and running a shop in the name and style of Studio Classic in Polytechnic Jat College. As nothing was brought on record regarding his income, learned Tribunal assessed his income on the basis of collector rate as Rs. 6000/- per month. Though it is settled law that in the absence of any proof regarding income, it could be assessed by taking minimum wages prevailing at that time but learned Tribunal erred in taking it as Rs. 6000/-, as vide gazette notification dated 21.10.2015 by Labour Department of Haryana Government, minimum wages for skilled person in November, 2015 was Rs.9237.85 per month. As the appellant was working as a photographer and running a shop, his income could be taken as Rs.10,000 per month. Further in view of Pappu Deo Yadav (supra) and "National Insurance Company Ltd. Vs. 6000/-, as vide gazette notification dated 21.10.2015 by Labour Department of Haryana Government, minimum wages for skilled person in November, 2015 was Rs.9237.85 per month. As the appellant was working as a photographer and running a shop, his income could be taken as Rs.10,000 per month. Further in view of Pappu Deo Yadav (supra) and "National Insurance Company Ltd. Vs. Pranay Sethi and others", 2017(4) RCR (Civil) 1009, future prospects @ 40% of the annual income also needs to be awarded. 9. Appellant was discharged from the hospital on 06.02.2015 and he visited PW3 - Sh. Suhail Khan for the artificial leg on 10.03.2015. Subsequently this process also might have taken sometime and only after that he would have been able to pursue his life in a routine, therefore, for 03 months, appellant is required to be compensated for 'loss of income during treatment' and 'attendant charges' as well. 10. There is substance in the argument of learned counsel for the appellant/ claimant that though the cost of artificial limb has already been taken into account while awarding the compensation, however, the cost of its fixation is still required to be taken into consideration including the cost of its maintenance. It cannot be denied that appellant/ claimant has to incur expenses in this regard and thus, needs to be appropriately compensated under the head of future medical expenses as not only the artificial limb will require maintenance; but might require replacement as well, therefore, Rs.1 lac are awarded under this head. 11. In view of the discussions made hereinabove, the appellant is entitled for following enhanced compensation, as detailed in the table given hereunder:- Sr.No. Nature Amount in Rupees 1. Annual Income of deceased (Rs.10,000x 12) 0S. 1,20,000/- 2. Add 40% of Future prospects Rs.48,000/- 3. Total Income (Rs.48,000/-+ Rs. 1,20,000/-) Rs.1,68,000/- 4. Multiplier of 15 as per age of 38 years (Rs.1,68,000/-X 15) Rs. 25,20,000/- 5. Loss of future earning capacity/ income [50% (percentage disability) of total income] Rs. 12,60,000/- 6. Transportation (as awarded by Ld Tribunal) Rs. 10,000/- 7. Special Diet (as awarded by Ld Tribunal) Rs. 10,000/- 8 Medical Expenses (as awarded by Ld Tribunal) Rs.5,66,818/- 9. Pain and sufferings and mental agony (as awarded by Ld Tribunal) Rs. 10,000/- 10. Disability to the extent of 50% and Loss of amenities and enjoyment of life (at the rate awarded by Ld Tribunal) Rs. 1,00,000/- 11. 10,000/- 7. Special Diet (as awarded by Ld Tribunal) Rs. 10,000/- 8 Medical Expenses (as awarded by Ld Tribunal) Rs.5,66,818/- 9. Pain and sufferings and mental agony (as awarded by Ld Tribunal) Rs. 10,000/- 10. Disability to the extent of 50% and Loss of amenities and enjoyment of life (at the rate awarded by Ld Tribunal) Rs. 1,00,000/- 11. Compensation for attendant (Rs. 5000 x 3) Rs. 15,000/- 12. Loss of income during treatment (Rs. 10000/- x 3) Rs.30,000/- 13. Future Medial Expenses Rs. 1,00,000/- Total Compensation Rs.21,01,818/- Amount Awarded by the Tribunal Rs.10,27,000/- Enhanced Amount Rs.10,74,818/- 12. The grant of interest @ 9% per annum is just in view of the facts and circumstances of the present case and does not warrant any interference. 13. Consequently, the present appeal is disposed off in the above terms. 14. Pending miscellaneous application(s), if any, shall also stand disposed of.