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2024 DIGILAW 193 (CHH)

Shashi Baghel, W/o Mohan Baghel v. Mahendra Kumar Baghel S/o Sataram Baghel

2024-02-28

ARVIND KUMAR VERMA

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ORDER : 1. This appeal is under Section 173 (2) of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') has been filed by the appellant/claimant being aggrieved by the award dated 05.09.2017 passed by the learned 3rd Additional Motor Accident Claims Tribunal (in short 'the Tribunal'), Bastar, Jagdalpur (C.G.), in Claim Case No.114/2016. 2. Facts relevant for disposal of this appeal are that on 15.03.2016, the appellant/claimant was traveling in her relative's Maruti car bearing registration No. CG 17 KF/1910 (hereinafter referred to as 'the offending vehicle') along with other family members. When they were returning back from Village Dashapal to their Village Bade Arapur. On the way, near Morenga Petrol Pump, an unknown vehicle was coming from the front side on the main road, the driver of the said vehicle hit the offending vehicle, due to which non-applicant No.1/driver of the offending vehicle lost his control over the vehicle and turned turtle. As a result of which the appellant suffered various grievous injuries on various parts of her body. After the accident, the appellant was admitted to Maharani Hospital, Jagdalpur for treatment. After that she was admitted to Shri Balaji Hospital, Raipur for better treatment, wherein she treated and suffered permanent disability. Thus, accident was reported to the Police Station- Parpa based upon which crime was registered against non-applicant No.1. 3. Appellant/Claimant filed an application under Section 166/140 of the Act, 1988 Amendment 1994 before the Tribunal seeking amount of Rs.16,20,000/- as compensation pleading therein that on the date of accident, she was working as 'labourer' and earning Rs.5,000/- per mensem and as of now unable to earn her livelihood. 4. Non-applicant No.1 has submitted reply to the application, denying the averment made in the pleadings and it has been pleaded that the accident did not occur due to negligent driving by him. At the time of accident, he was driving his vehicle in slowly and carefully manner. Suddenly, due to being hit by an unknown vehicle coming from the front side, the offending vehicle went out of control and overturned. He further pleaded that at the time of accident, the vehicle in question was insured with non-applicant No.2/Insurance Company, hence, the responsibility of paying the compensation lies with non-applicant No.2. 5. Non-applicant No.2/Insurance Company filed its written statement also denied the averment made in the claim petition. He further pleaded that at the time of accident, the vehicle in question was insured with non-applicant No.2/Insurance Company, hence, the responsibility of paying the compensation lies with non-applicant No.2. 5. Non-applicant No.2/Insurance Company filed its written statement also denied the averment made in the claim petition. It is specifically pleaded that non-applicant No.1/driver has not presented such document in support of the claim. It was further pleaded that at the time of accident, the driver of the offending vehicle did not possess valid and effective driving license and the offending vehicle was driving without permit fitness. Therefore, driver of the offending vehicle has knowingly violated the conditions of Insurance Policy. Thus, the Insurance Company is not liable to pay any compensation. 6. On appreciation of pleadings and evidence placed on record by the respective parties, the Tribunal held that the appellant /claimant suffered grievous injuries and permanently disabled to the extent of 21% due to rash and negligent driving of offending vehicle by non-applicant No.1. Breach of policy condition was found to be proved. From the above discussion, the Tribunal finds that the appellant has been successful in proving her claim against non-applicants. The Tribunal allowed application in part, awarded a sum of Rs.2,35,520/- as compensation along with interest @ 9% per annum and fastened liability upon non-applicant No.2/Insurance Company to pay the amount of compensation. 7. Learned counsel appearing for the appellant/claimant submits that the Tribunal erred in awarding very meager amount of compensation in the facts of the case. He further submits that no future prospect is added by the Tribunal. Doctor who examined the claimant has issued disability certificate to the extent of 68.33% (Ex.A-1) but the Tribunal has erroneously held that claimant suffered disability to the extent of 21% only. He further submits that the Tribunal erred in assessing income of appellant as Rs.3,000/- per month only, overlooking the date of accident and specific pleading and oral statement of claimant that on the date of accident, he was working as 'labourer' and earning Rs.5,000/- per month. The Tribunal has awarded very meager amount on other pecuniary damages and erred in not awarding appropriate amount of compensation towards nonpecuniary damages. He prays that amount of compensation be suitably enhanced. 8. On the other hand, learned counsel appearing for non-applicant No.1/driver of offending vehicle, submitted his reply to application and denied the pleadings made therein. The Tribunal has awarded very meager amount on other pecuniary damages and erred in not awarding appropriate amount of compensation towards nonpecuniary damages. He prays that amount of compensation be suitably enhanced. 8. On the other hand, learned counsel appearing for non-applicant No.1/driver of offending vehicle, submitted his reply to application and denied the pleadings made therein. It was further pleaded that on the date of accident, he was possessing valid and effective driving license issued by non-applicant No.2/Insurance Company, hence, liability if any to satisfy the amount of compensation would be of Insurance Company. 9. I have heard learned counsel appearing for the parties, considered their rival submissions and perused the record with utmost circumspection. 10. Finding recorded by the Tribunal with regard to accident and liability is not under challenge, appeal is by claimant seeking enhancement of amount of compensation. 11. Learned Tribunal has awarded the compensation as under: Sl. No. Particular Awarded by the Tribunal (in Rs.) 1. Monthly income of the appellant/ claimant 3,000/- 2. Yearly income of the claimant 36,000/ 3. Yearly loss of income 21% 7,560/- 4. Multiplier of 17 applied to assess total loss of dependency 1,28,520/- 5. Medical expenditure & transportation 1,00,000/- 6. Physical and mental agony 5,000/- 7. Special diet 2,000/- 8. Total compensation Rs.2,35,520/- 12. So far as submission with regard to assessment of disability/loss of earning capacity to the extent of 21% is concerned. In Ex.A-1 issued by the District Medical Board, Maharani Hospital, Jagdalpur, Bastar, it is mentioned that claimant suffered disability to the extent of 68.33% on the basis of disability in both legs and shoulders. If seen from the perspective of the entire body, it can be up to 21%. 13. In view of aforesaid documentary and oral evidence it is apparent that disability suffered by claimant could not be fully cured. Tribunal while assessing loss of earning capacity has discussed the evidence and disability certificate in Para No.08 of impugned award in detail. Claimant in her application has pleaded that she was working as 'labourer'. 13. In view of aforesaid documentary and oral evidence it is apparent that disability suffered by claimant could not be fully cured. Tribunal while assessing loss of earning capacity has discussed the evidence and disability certificate in Para No.08 of impugned award in detail. Claimant in her application has pleaded that she was working as 'labourer'. Though she was examined the doctor to prove disability but no specific question has been put to her that which type of work claimant could not able to do with said disability, but then uncontroverted statement of doctor would show that doctor has found that she was lying on her back and was not able to sit and was not able to walk without support. Looking to the nature of employment of claimant to be of 'labourer' for which he needs fitness of every part of body. More so when it comes to disability suffered by any of the labourer on her leg, in view of disability suffered by claimant on her both legs and shoulders she may not able to use her legs with same efficiency as of her right legs and definitely she may not able to do all nature of work. Tribunal has not assigned any reason for arriving at a conclusion that claimant suffered loss of earning capacity to the extent of 21% only. In view of above discussion, in the considered opinion of this Court Tribunal erred in assessing loss of earning capacity on lower side, which is not sustainable. Though the Courts cannot be said to be an expert in the field to assess the loss of earning capacity but in view of documentary evidence and statement of doctor as well as nature of occupation of appellant and part of the body both legs and shoulders affected with disability, I find it appropriate to assess loss of earning capacity of claimant to the extent of 30%. It is order accordingly. 14. Now, I will consider quantum of compensation awarded by Tribunal. The Tribunal has assessed income of claimant as Rs.3,000/- per month. Accident took place on 15.03.2016, claimant has been shown to be working as ‘labourer’, there is no specific evidence to prove her income as Rs.5,000/- per month. It is order accordingly. 14. Now, I will consider quantum of compensation awarded by Tribunal. The Tribunal has assessed income of claimant as Rs.3,000/- per month. Accident took place on 15.03.2016, claimant has been shown to be working as ‘labourer’, there is no specific evidence to prove her income as Rs.5,000/- per month. Hence, income of claimant is to be assessed on notional basis keeping in mind wage structure, cost of living and price index prevailing at the time of accident in the year 2016. At the time of accident, minimum wage of unskilled labour was Rs.5,850/- but the claimant herself stated in evidence that she was earning Rs.5,000/- per month. Accordingly, I find it appropriate to asses income of claimant as Rs.5,000/- per month. 15. Apart from the award of loss of income due to earning capacity. Tribunal has awarded Rs.1,00,000/- towards medical expenditure and transportation, Rs.5,000/- towards physical and mental agony and Rs.2,000/- towards special diet which are on lower side. The Tribunal has also failed to consider the compensation towards attendant. 16. For the foregoing reasons, I propose to recompute the amount of compensation awarded by the Tribunal. 17. Income of claimant is taken as Rs.5,000/- as held above. The Tribunal has wrongly assessed the aged of the claimant that at the time of accident, the claimant was 30 years of age and used multiplier of 17'. As per Exhibits A-4 & A-7, claimant is 40 years of age and as per disability certificate (Ex.A-1), she is 36 years of age so there is no certainty with regard to the age of the claimant on the date of accident, hence, age of the claimant is determined as 36-40 years. Therefore, there will be addition of 40% towards future prospects which brings total income of claimant to Rs.7,000/- per month (5,000 + 40% of 5,000) and accordingly yearly income of claimant comes to Rs.84,000/- (7,000X12), appropriate multiplier would be 15'. By applying multiplier of 15 total income of claimant would come to Rs. 12,60,000/- (84,000 X 15). As this Court has assessed 30% loss of earning capacity, loss of income of claimant comes to Rs.3,78,000/- (30% of Rs.12,60,000/-). 18. The view of this Court stands fortified from the decision of the Hon’ble Supreme Court in the case of Nagarajappa Vs. By applying multiplier of 15 total income of claimant would come to Rs. 12,60,000/- (84,000 X 15). As this Court has assessed 30% loss of earning capacity, loss of income of claimant comes to Rs.3,78,000/- (30% of Rs.12,60,000/-). 18. The view of this Court stands fortified from the decision of the Hon’ble Supreme Court in the case of Nagarajappa Vs. Divisional Manager, Oriental Insurance Company Ltd. reported in AIR 2011 Supreme Court 1785 :: 2011 AIR SCW 2609, Sanjay Kumar Vs. Ashok Kumar & Another reported in AIR 2014 SC (Supp) 1584 and Sebastiani Lakra & Ors. Vs. National Insurance Company Ltd. & Another reported in 2019(17) SCC 465 . 19. Now, this Court is recomputing the compensation as below:- Sr. No. Particular Awarded by this Court (in Rs.) 1. Monthly Income of the appellant/claimant 5,000/- 2. Future prospects @ 40% 2,000/- 3. Total Monthly Income 7,000/- 4. Loss of functional disability to the extent of 30% 7,000 x 30% = 2,100/- 5. Total yearly Income 2,100 x12= 25,200/- 6. Multiplier of 15 applied to assess total 25,200 x 15 = 3,78,000/- 7. Medical expenditure & transportation 1,00,000/- 8. Physical & mental agony 25,000/- 9. For special diet 10,000/- 10 For attendant 10,000/- 11. Total compensation Rs.5,23,000/- 20. For the forgoing reasons, the appeal is allowed in part. The amount of compensation of Rs.2,35,520/- awarded by the Tribunal is enhanced to Rs.5,23,000/- (rupees five lakh twenty three thousands only). Hence, after deducting the amount of Rs.2,35,520/-, the Claimant is held entitled to get for an additional amount of Rs.2,87,480/-, the additional amount shall carry interest @ 6% per annum from the date of filing of claim application. Non-applicant No.2/Insurance Company is directed to deposit the enhanced amount of compensation within a period of 60 days. Rest of the conditions of impugned award shall remain intact. 21. The impugned award stands modified to the above extent. On deposit the amount, the Tribunal shall pass appropriate order with regard to apportionment, investment and disbursement of the enhance amount of compensation. 22. In the result, appeal is allowed in part and the impugned award stands modified to the extent as indicated herein-above.