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2024 DIGILAW 131 (RAJ)

Dungar Ram S/o Shri Tulcha Ram v. Simbhu Ram S/o Shri Puna Ram

2024-01-18

BIRENDRA KUMAR

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JUDGMENT : 1. On 27.6.1999, the sole appellant Dungar Ram was inside a bus bearing Registration No. RJ-21-P-0528. The driver was rash and negligent as a result whereof near Power House, Khinvsar, the Bus turned down and 15 persons including the appellant sustained injuries. The left-hand of the appellant got multiple fracture and ultimately, the left hand was amputated. 2. It is not disputed that the Bus was insured with the respondent-insurer for the period covering the date of accident. There is disability certificate at Ex.1 which shows that 85% disability was suffered by the appellant. The Doctor had noted that there was dis-articulation of left shoulder. For the incident aforesaid, an FIR was lodged with -Khinvsar Police Station bearing No. 61/1999 and after investigation, the police had submitted charge-sheet against the Driver of the offending Bus. 3. The Tribunal has made award of Rs. 2,79,600/- along with 9% interest against claim of 18,71,000/-. The appellant is not satisfied with the quantum of award made by the Tribunal vide impugned judgment dated 10.5.2004 passed in M.A.C.T. Case No. 468/1999. 4. At the time of accident, the appellant was a cleaner of the Bus and he was getting Rs. 1500/- per month from his employer. The appellant was aged about 20 years. These facts are stated in the evidence of the appellant before the Tribunal. 5. No contrary evidence was brought on record by any of the respondents or even by the insurer who is contesting the appeal. Ex.10 is the Driving License of the Driver and Ex.9 is certificate of insurance which are not controverted. 6. The appellant has claimed Rs. 20,000/- for special diet during treatment and Rs. 3,00,000/- for amputation as well as Rs. 1,00,000/- for pains and sufferings and Rs. 500 for the helper. 7. The learned Tribunal awarded Rs. 7,000/- for other injuries, Rs. 2,60,100/- for permanent disablement, Rs. 4500/- for medical expenses based on vouchers Rs. 5,000/- for diet and Rs. 3,000/-for loss of income. 8. Learned counsel for the appellant has relied upon the judgment of the Hon’ble Supreme Court in Raj Kumar vs. Ajay Kumar and anr. reported in (2011) 1 SCC 343 and Jagdish Vs. Mohan & ors., (2018) 4 SCC 571 . 9. 4500/- for medical expenses based on vouchers Rs. 5,000/- for diet and Rs. 3,000/-for loss of income. 8. Learned counsel for the appellant has relied upon the judgment of the Hon’ble Supreme Court in Raj Kumar vs. Ajay Kumar and anr. reported in (2011) 1 SCC 343 and Jagdish Vs. Mohan & ors., (2018) 4 SCC 571 . 9. Learned counsel for the respondents opposed the prayer for enhancement of compensation, however does not dispute that the Tribunal has adopted the amount of compensation in lump sum without any material in support of the same. 10. The following observations in Raj Kumar (supra) requires reproduction: “12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. 15. 15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.” 11. The judgment in Raj Kumar (supra) was noticed by a Three Judges Bench in Jagdish (supra) and in para 8 of the judgment, the Court observed as follows: “8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects: (i) Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life. 12. Evidently, the appellant lost his one hand. He was not a literate person rather a labour doing cleaning of a bus. Therefore, he lost 100% capacity to follow the same vocation. Therefore, in view of the observations in para 14 of Raj Kumar (supra), this Court is of the view that this is a case of permanent disablement affecting 100% working capacity of the appellant. Therefore, monthly income of the appellant i.e. Rs. 1500/- is multiplied with multiplier of 12 to get yearly income and the said amount is again multiplied with 18 considering the age of the appellant and principles laid down in National Insurance Company Ltd. Vs. Pranay Sethi & ors., (2017) 16 SCC 680 . The payable compensation is calculated as Rs. 3,24,000/-. The appellant would be entitled to 30% of the same for loss of future prospects in view of the judgment in Raj Kumar and Jagdish (supra). This amount comes to Rs. 97,200/- besides the aforesaid this Court is inclined to allow Rs. 25,000/- for diet, Rs. 25,000/- for future medical expenses, Rs. The payable compensation is calculated as Rs. 3,24,000/-. The appellant would be entitled to 30% of the same for loss of future prospects in view of the judgment in Raj Kumar and Jagdish (supra). This amount comes to Rs. 97,200/- besides the aforesaid this Court is inclined to allow Rs. 25,000/- for diet, Rs. 25,000/- for future medical expenses, Rs. 5,000/- for helper/assistance and Rs. 2,00,000/- for loss of future prospects of life including chances of marital life. The appellant has deposed that he was already engaged but after accident, the engagement broke up. Thus, total compensation is calculated as Rs. 6,76,200/-. 13. The insurer is directed to pay the aforesaid amount along with interest @ 7% from the date of filing the claim petition minus already paid amount within two months, failing which 9% interest would be payable till the date of realization. 14. This appeal stands allowed to the aforesaid extent.