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2022 DIGILAW 716 (JK)

Oriental Insurance Company Ltd. v. Harjit Singh

2022-12-15

PUNEET GUPTA

body2022
JUDGMENT : (Puneet Gupta, J.) : 1. The appellant-Insurance Company is aggrieved of the award dated 30.03.2013 passed by the learned Motor Accident Claims Tribunal, Jammu, whereby the respondent-victim has been awarded compensation to the tune of Rs. 15,50,000/- along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till the realization of the amount. The appellant has been held liable to satisfy the award. The award is challenged on the ground that the claimant-Harjit Singh is contributory to the accident and that the Tribunal has wrongly assessed the permanent disability of the claimant as 100% though the medical evidence speaks of 85% of disability incurred by the claimant. The award is also challenged on the ground that the compensation granted on account of other heads is also not as per law. 2. The learned counsel appearing for the respondent-claimant has argued that the findings of the Tribunal is tenable in law. In fact, the claimant was entitled to the higher amount of the compensation than the one awarded by the Tribunal. It is also submitted that though the claimant has not filed the appeal against the awarded amount, the court can still enhance the compensation if it is of the view that the compensation should be enhanced in facts and circumstance of the case. 3. The record of the Tribunal is also on the file. 4. The accident which took place on 25.05.2010 near Cantonment Crossing Gandhi Nagar, Jammu resulted into the serious injuries to the claimant-Harjit Singh and prompted the claimant to file the claim petition, seeking compensation on account of permanent disability suffered by him. The Tribunal framed following issues in the case:- 1. Whether an accident occurred on 25.05.2010 at about 5:00 a.m. at Cantonment Crossing, Gandhi Nagar, Jammu, by rash and negligent driving of offending No. JK02X-3130 by its driver Respondent No. 1 as a result of which petitioner Harjit Singh suffered grievous injuries? OPP 2. If Issue No. 1 is proved in affirmative, whether petitioner is entitled to the compensation, if so to what amount and from whom? OPP 3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving licence and whether there was violation of terms and conditions of policy of insurance policy? If so to what effect? O.P.R.-3 4. OPP 3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving licence and whether there was violation of terms and conditions of policy of insurance policy? If so to what effect? O.P.R.-3 4. Whether the accident was caused due to contributory negligence of petitioner? If so to what effect? O.P.R.-3 5. Relief O.P. parties 5. Issue Nos. 1&4 being co-related are taken up together for discussion. Learned counsel appearing for the Insurance Company submits that the evidence brought on record holds the claimant also responsible for the accident which took place on 25.05.2010. The claimant was not driving the auto rickshaw with care and took a wrong turn which also contributed in causing the accident in question. The Tribunal has taken into consideration the statement of the claimant-Harjit Singh and witness namely Ranjit Singh from wherein it was made out that the car bearing No. JK02X-3130 which came from Jammu city side at a high speed and in a rash manner collided with the Auto rickshaw being driven by the claimant and dragging it to some distance. The accident took place due to rash and negligent act of the driver of the car. The claimant denied the suggestion in cross examination that he did not look around before approaching the main road. The court finds no reason not to go along with the findings of the Tribunal on the Issue Nos. 1&4. The evidence produced by the claimant and the fact that the challan is produced by the police agency only against the driver of the car leave no room for accepting the contention of the learned counsel for the appellant that the claimant was contributory to the incident in question. 6. The finding on Issue No. 3 is not seriously contested by the appellant and rightly so in view of the findings by the Tribunal. 7. There can be no dispute with the proposition of law that this court can even enhance the compensation if it finds just to do so though the claimant-respondent may not have preferred the appeal against the award impugned in the appeal. The court can rely upon the Hon'ble Apex Court judgment reported in Civil Appeal No. 682 of 2008 titled 'The APSRTC, rep. by its General Manager & Anr. v. M. Ramadevi & Ors.' decided on 25.01.2008. 8. The court can rely upon the Hon'ble Apex Court judgment reported in Civil Appeal No. 682 of 2008 titled 'The APSRTC, rep. by its General Manager & Anr. v. M. Ramadevi & Ors.' decided on 25.01.2008. 8. The other finding with which the learned counsel for the appellant is aggrieved of pertains to the compensation which has been awarded in favour of the victim. The contention is that the medical evidence brought on record shows that the victim had not suffered permanent disablement beyond 85% though the Tribunal has held that the claimant has suffered 100% permanent disability. The medical evidence on record reveals that the victim has suffered above knee amputation of right thigh through lower 3rd with pain and stiff left knee and ankle due to fracture of leg bones of left side. The medical certificate issued by the Board refers to the permanent disability of the victim to the tune of 85%. The certificate is duly proved by EXPW Doctor Rakesh Sharma, Orthopedic Surgeon. As per the statement of said doctor, the petitioner will require artificial limb on right lower limb to be ambulatory. The claimant cannot run and will have difficulty in walking swiftly, sitting on feet and squatting. The victim may also require surgery for removal of implant from his left leg. It is impossible for petitioner to perform a profession like driving. The doctor has further stated that the victim does not require attendant for each and every routine activity because an artificial limb has been fixed which requires of replacement after every three to five years depending upon the quality of limb. The learned counsel for the appellant could not controvert the statement of the doctor read with medical certificate that the victim had received aforesaid injury. The Tribunal has assessed the permanent disability to be 100% vis-a-vis the earning capacity of the victim who is driver by profession. Admittedly, the victim is driver who has lost one leg and has fractures in other leg and he being 50 years of age at the time of accident the injuries suffered by him cannot drive the victim to hold on to his profession of driving or pursue any other occupation effectively. There cannot be any mathematical calculation of the permanent disability. In the present case the disability assessed at 100% by the Tribunal cannot be faulted with by this Court. 9. There cannot be any mathematical calculation of the permanent disability. In the present case the disability assessed at 100% by the Tribunal cannot be faulted with by this Court. 9. The monthly income of the claimant-Harjit Singh is assessed at Rs. 6,000/- per month by the Tribunal which comes to Rs. 72,000/- per annum. The Tribunal has not awarded any compensation on account of loss of future prospects of earning of the claimant. However, the court is of the view that though the claimant has not filed any appeal against the compensation awarded by the Tribunal yet the court should come to the rescue of the poor claimant and grant relief to him under the aforesaid head. The court can rely upon the Hon'ble Apex Court judgment reported in Civil Appeal No. 8510 of 2022 titled '[1]Divisional Manager, United India Insurance Company Ltd. & Anr. decided on 16.11.2022 as far as award of compensation on account of loss of future earning is concerned in disability case. 10. The Tribunal has applied the multiplier of 11 whereas the multiplier of 13 is required to be applied in the case in hand keeping in view the age of the victim as 50 at the time of accident as per the judgment in Pranay Sethi case (supra). 11. The claimant shall also be entitled to compensation under the head of 'pain and sufferings and for loss of amenities of life' to the tune of Rs. 5 lacs. The amount awarded by the Tribunal under other heads does not require any interference by this court in appeal. 12. The claimant is, thus, held entitled to the amount of Rs. 18,24,000/- under the following heads:- 1. Loss of future earning (6000 X 12 X 13 X 100%) : Rs. 9,36,000/- 2. For pain and suffering and for loss of amenities of life : Rs. 5,00,000/- 3. Medical Expenses : Rs. 2,46,000/- 4. Transport/attendance charges : Rs. 27,000/- 5. Special diet charges : Rs. 25,000/- 6. Cost of artificial limb : Rs. 30,000/- 7. Cost of artificial limbs for future : Rs. 60,000/- Total Compensation Awarded Rs. 18,24,000/- 13. Thus, the total amount to which the claimant-Harjit Singh is held entitled to comes to Rs. 18,24,000/-. Medical Expenses : Rs. 2,46,000/- 4. Transport/attendance charges : Rs. 27,000/- 5. Special diet charges : Rs. 25,000/- 6. Cost of artificial limb : Rs. 30,000/- 7. Cost of artificial limbs for future : Rs. 60,000/- Total Compensation Awarded Rs. 18,24,000/- 13. Thus, the total amount to which the claimant-Harjit Singh is held entitled to comes to Rs. 18,24,000/-. The claimant-Harjit Singh is also held entitled to 7.5% per annum from the date of filing of the claim petition till realization of the amount to be paid by the appellant-Insurance Company. The amount, if any, received by the claimant shall stand adjusted and so will be the interest calculated accordingly. 14. The appeal filed by the appellant-Insurance Company is dismissed and the award is modified on the aforesaid terms.