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2022 DIGILAW 87 (JK)

Naresh Singh v. Vijay Kumar

2022-03-07

PUNEET GUPTA

body2022
JUDGMENT : PUNEET GUPTA, J. 1. The appellant seeks enhancement of award, passed by the learned Motor Accident Claims Tribunal, Udhampur, whereby the appellant has been awarded compensation to the tune of Rs. 7.57 lacs. It is suffice to mention that the insurer-respondent No. 3 has been held liable to pay compensation to the petitioner with the liberty to recover the same from the private respondent Nos. 1 and 2. 2. The respondent Nos. 1 and 2 appeared through their counsel but did not appear later on and the case was heard in the absence of the said respondents. 3. The appellant submits that the Tribunal has not awarded the compensation as per the disability suffered by him. The appellant has submitted that the Tribunal has not otherwise awarded the compensation to the appellant keeping in view the facts that have come on record and also recorded by the Tribunal in its Award dated 26.12.2015. The learned counsel for the appellant has reiterated the submissions made in the appeal. 4. The learned counsel appearing for the Insurance Company has submitted that the appellant has been awarded just compensation by the Tribunal and there is no reason to enhance the award as pleaded in the appeal. The learned counsel has cited Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 in support of his contention that the appellant cannot be granted compensation on his mere asking and the compensation is to be awarded on the basis of permanent disability suffered qua loss of earning capacity. There can be no dispute with what has been held by the Hon'ble Apex Court while awarding the compensation after taking into account the factual aspects of the case also. 5. As the award has not been challenged by the respondents, therefore, the finding of the Tribunal that the appellant has suffered injuries due to the rash and negligent act of the respondent-driver of the Vehicle No. JK-14B/7831 need not be gone into by the Court in the present appeal. 6. The Tribunal has awarded compensation to the tune of Rs. 7,57,000/- along with interest @ 7% per annum from the date of filing of the petition till payment of insurance. However, while awarding interest the Tribunal has directed that the same will not be applicable on future loss of income. 7. The Tribunal has taken the income of the appellant as Rs. 7,57,000/- along with interest @ 7% per annum from the date of filing of the petition till payment of insurance. However, while awarding interest the Tribunal has directed that the same will not be applicable on future loss of income. 7. The Tribunal has taken the income of the appellant as Rs. 4,500/- per month though the counsel for the appellant submits that the appellant has proved the income to the tune of Rs. 6,000/- per month who was working as labourer. The Tribunal has not faulted while taking into consideration the earning of the appellant as Rs. 4,500/- per month as per the argument of learned counsel for the Insurance Company. The appellant has not recorded any fixed income for the work he was performing as labourer at the time of accident. This Court is of the view that there cannot be fixed income of the appellant taking into view the nature of the work which was being done by him at the time of accident as the labourer may not get the work for all days of the month. The court does not find any fault in assessing the income of the appellant at Rs. 4,500/- per month by the Tribunal while noting that a semi-skilled worker is to get Rs. 150/- daily. No interference is called for on this aspect of the matter. 8. Loss of future earning: The future earning of the appellant has been assessed by the Tribunal to the tune of Rs. 6 lacs. This Court is of the view that the compensation awarded by the Tribunal requires correction under this head keeping in view the decision of the Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and Others, AIR 2017 SC 5157 : 2018 (1) JKJ 25 (SC). In this case the Supreme Court has laid down the criteria for calculating the loss of future earning in case of the victim who has no fixed income or is not in permanent job. Adding 40% as future earning to the income of Rs. 4,500/- of the appellant on the basis of his nature of job, it works out to be Rs. 6,300/- per month and Rs. 75,600/- per annum. Applying the multiplier of 18 keeping in view the age of the appellant being 20 years, the amount on this count comes to Rs. 13,60,800/- which is rounded to Rs. 13,61,000/-. 9. 4,500/- of the appellant on the basis of his nature of job, it works out to be Rs. 6,300/- per month and Rs. 75,600/- per annum. Applying the multiplier of 18 keeping in view the age of the appellant being 20 years, the amount on this count comes to Rs. 13,60,800/- which is rounded to Rs. 13,61,000/-. 9. Medical expenses including Transportation and Hospitalization: The Tribunal has awarded Rs. 50,000/- to the appellant on account of purchase of medicines and Rs. 30,000/- on account of transport/attendant charges in favour of the appellant. The learned counsel for the appellant submits that the Tribunal has inadequately compensated the appellant under this head. The appellant has spent much more amount than what has been awarded by the appellant and also requires future medical expenses keeping in view the injury received by the appellant. It is submitted that there is every reason to purchase artificial limb for the amputation suffered by the appellant due to accident. The ankle joint of the appellant has been amputated and of course there is no denial of the same. The appellant has also remained admitted in Amandeep Hospital, Amritsar. Taking into account that the appellant has remained in the hospital for some time and had to go to Amritsar for treatment in connection with the injury suffered by him and that the appellant had to bear transport charges and purchase medicines, the amount awarded by the Tribunal under this head is also required to be enhanced. The Court taking into view over all facts and circumstances enhances the compensation under this head from Rs. 80,000/- to Rs. 1,20,000/-. 10. Pain and suffering and loss of amenities: The appellant has not been awarded any amount on account of pain and sufferings by the Tribunal. From the record, it is revealed that the appellant has suffered ankle injury and the permanent disability of 50% has been assessed as per the certificate issued by the Medical Board. The permanent disability of the body is to reduce by 4% to 5% as per the opinion of the Dr. Naresh Chopra, who had examined the victim and was one of the members of the Medical Board. The court is of the opinion that the permanent disability of the body which has been reduced to 45% is reasonable one keeping in view the nature of the injury suffered by the appellant. Naresh Chopra, who had examined the victim and was one of the members of the Medical Board. The court is of the opinion that the permanent disability of the body which has been reduced to 45% is reasonable one keeping in view the nature of the injury suffered by the appellant. One can imagine the pain and suffering which has been caused to the appellant because of the amputation of ankle and is to remain lifelong. Of course, the appellant cannot lead a normal life as he was leading before the unfortunate accident took place. The compensation cannot be substitute for the suffering which the appellant has undergone or is to undergo for all times to come. The compensation is only a means to sustain the appellant for what the appellant has suffered and is to suffer in future due to the accident. The compensation has to be awarded assessing the injury with loss of expected earning and the impact on the life of the appellant. The Court is of the view that the appellant can be compensated by awarding Rs. 3 lacs under the aforesaid head as the same will be just and reasonable. 11. The appellant is, thus, held entitled to the amount as indicated under the following heads as under: (I) Loss of future earning Rs. 13,61,000/- (II) Medical expenses Rs. 1,20,000/- (III) Pain and suffering and loss of amenities Rs. 3,00,000/- Total Rs. 17,81,000/- 12. Thus, the appellant is held entitled to compensation to the tune of Rs. 17,81,000/- along with interest @ 7% per annum from the date of filing of the claim petition till its realization. The liability of the respondents to pay and recover the amount shall remain as directed by the Tribunal. The amount, if any, received earlier by the appellant shall stand deducted from the aforesaid amount. The interest shall also stand calculated accordingly in case any amount stands deposited earlier by the Insurance Company-respondent No. 3. The appeal is allowed to the extent award has been modified. 13. Disposed of.