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2022 DIGILAW 953 (MP)

New India Assurance Co. Ltd. v. Pawan Samadhia

2022-07-20

DEEPAK KUMAR AGARWAL

body2022
ORDER 1. This order shall govern the disposal of both the Misc. Appeals (Misc. Appeals No.83/2021 & 714/2021). 2. Brief facts of the case are that on 10.5.2013 when the claimant was going towards Balaji Dham Temple on his motorcycle, driver of the Bus No.MP33 P 0886 Shyambabu Sharma by driving the bus rashly and negligently dashed the motorcycle, due to which claimant got injured. His right leg was amputated. As per the claimant, he was running a travel agency and also doing some work of RTO office. Due to accident, he has become invalid. He filed an application for compensation under section 166 of the Motor Vehicles Act and produced his evidence along with medical evidence and bills of treatment and estimate of artificial leg of Endolite India Ltd. of Rs.18,15,555/-. The offending vehicle was insured with New India Insurance Company Shivpuri. Driver of the offending vehicle was Shyambabu Sharma and its owner was Madan Shejwar. Before the Claims Tribunal, driver Shyambabu Sharma remained ex-parte and owner of the vehicle contested the case. After evidence learned Claims Tribunal partly allowed the application of the claimant Pawan Samadhiya and passed an award in his favour to the tune of Rs.26,51,938/- by considering the income of the claimant to be Rs.5,000/- per month because he could not produce any documentary evidence in support thereof. Being aggrieved by the award, claimant has filed M.A.No.714/2021 and Insurance Company has filed M.A.No.83/2021. 3. Learned counsel for the claimant submits that income of the claimant has been assessed by the Claims Tribunal as Rs.5,000/- per month which is on lower side. Tribunal has not considered the estimate of artificial leg of Rs. 18,15,555 which he has filed. It is further submitted that Claims Tribunal has awarded rate of interest at the rate of 4% per annum while it should be 6% per annum. 4. On the contrary, learned counsel for the Insurance Company submitted that accident took place in 2013 and claimant could not establish his income in 2013. It is further submitted that minimum wages of an unskilled labourer between 1.4.2013 to 30.9.2013 were Rs.5,270/-. Hence, learned Claims Tribunal has rightly assessed the income of the claimant to be Rs.5,000/- per month. 4. On the contrary, learned counsel for the Insurance Company submitted that accident took place in 2013 and claimant could not establish his income in 2013. It is further submitted that minimum wages of an unskilled labourer between 1.4.2013 to 30.9.2013 were Rs.5,270/-. Hence, learned Claims Tribunal has rightly assessed the income of the claimant to be Rs.5,000/- per month. It is further submitted that learned Claims Tribunal has erred in awarding a sum of Rs.11,70,337/- under the head of medical expenses as photocopy of bills of medicines were submitted by the claimant. 5. Heard learned counsel for the parties and perused the record. 6. On going through the bills/receipts filed by the claimant, it does not appear that any photocopy has been exhibited. 7. It does not disputed that right leg of the claimant has been amputated from thigh. He is aged about 42 years and has to survive at least for 30 years to look after his family, and therefore, he is in need of artificial leg for his day-to-day work and earning, due to which from the side of the claimant estimate (Ex.P/ 276) of Rs. 18,15,555/- was produced. The Claims Tribunal is of the opinion, as reflected from para 28 of the award, that doctor has not advised him for artificial leg, and therefore, has not taken into consideration the said estimate. Such observation of the Claims Tribunal is very surprising. When right leg of the claimant was amputated, he ought to have in need of artificial leg. In these circumstances, learned Claims Tribunal is not justified in not taking into account estimate of artificial leg of Rs. 18,15,555/-. 8. Respondents have not produced any evidence in support of their evidence and to contradict the evidence produced by the claimant. However, considering the minimum wages of an unskilled labourer at the time of accident, Claims Tribunal has not committed any mistake in assessing the income of the claimant to be Rs.5,000/- per month. But learned Claims Tribunal has awarded interest at the rate of 4% per annum, whereas as per the decision of the apex Court in the case of New India Assurance Co. Ltd. v. Satish Chandra Sharma and another, 2022 ACJ 1211 interest at the rate of 6% per annum should have been awarded. 9. But learned Claims Tribunal has awarded interest at the rate of 4% per annum, whereas as per the decision of the apex Court in the case of New India Assurance Co. Ltd. v. Satish Chandra Sharma and another, 2022 ACJ 1211 interest at the rate of 6% per annum should have been awarded. 9. In view of the overall facts and circumstances of the case, M.A.No.83/2021 filed by the Insurance Company stands dismissed and M.A.No.714/2021 filed by the claimant is partly allowed and claimant will be entitled to interest @ 6% per annum on the award amount in place of 4% per annum as awarded by the Claims Tribunal. Claimant will also be entitled to a sum of Rs.18,15,555/- in accordance with the estimate of Endolite India Ltd. for replacement of artificial leg.