Court No. - 26
Case :- FIRST APPEAL FROM ORDER No.1081 of 2004 Appellant :- Atul Kumar Respondent :- National Insurance Co And Others Counsel for Appellant :- A.K. Pandey,Bhanu Bhushan Jauhari Counsel for Respondent :- R. Bagga
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Bhanu Bhushan Jauhari, counsel for the appellant. None appears for the owner of the vehicle.
2. This is an appeal of the year 2004 and the appeal was admitted belatedly in the year 2015.
3. After notices came to be issued, Sri Rakesh Bagga's name is shown for the respondents but he has absented himself today. National Insurance company, though represented by Sri Rakesh Bagga, has not contested this appeal.
4. This appeal challenges the award passed by Motor Accident Claims Tribunal, Shahjahanpur, wherein the present appellant - claimant preferred claim petition no.128 of 2001.
5. The claimant originally preferred a claim petition claiming Rs.13,30,000/- under Section 166 of the Motor Vehicles Act, 1988, for the accident which took place on 6.11.2000 at about 1.15 p.m. When he was going from his factory on his two wheeler and when he reached near Vidya Plywood Factory, a tempo, bearing no.UP-27-C-5099 driven by the driver rashly and negligently, dashed with the Scooter. The appellant - claimant sustained serious injuries. His right lower limb sustained fracture and he was operated on them and a ring and a rod was inserted. The right collar-bone also sustained fracture and he had several multiple injuries on his body. He was rushed to H.P. Mission Hospital and he remained there for a period of about one month as patient. It is say of the appellant that he has his general store shop and by which he was earning Rs.6,000/- per month. He has his parents, wife and 2 children. He is unable to perform any work.
6. The Insurance company, on being summoned, filed their written statement negativing even the factum of accident and, therefore, the Insurance company was not liable. It is submitted that they would be liable only when driving licence of the driver and the vehicle was driven as per the policy conditions. The owner and the driver also filed their written statement. The cover note of the said insurance was produced before the trial court which was in vogue on 19.12.2004. The Tribunal framed about 6 issues and all of them have been answered in favour of the claimant. This appeal is restricted only to the quantum and, therefore, this Court is not called upon to decide any other issue as they remained concluded.
7. It is submitted that the injured was 40 years of age. The criteria for calculation is based on erroneous reading. The interest awarded should have been 12% and not 6.5%. The balance sheet of the appellant was not properly seen. The expenses for medical treatment is on the lower side and according to Sri Jauhari calculating that the appellant was disabled to the tune of 25% only is perverse as the doctor, who had examined the appellant, categorically conveyed that he had sustained 45% of disability which was proved by the certificate issued by Chief Medical Officer. The non-pecuniary damages also are on the lower side. The income of the appellant is also considered on the lower side despite he proving the income by producing balance-sheet of this business.
8. The appellant sustained the injuries as follows. His right collarbone was fractured, his right thigh had multiple fractures. He was admitted with these injuries in the hospital of Dr. Akash Srivastava for one month where his leg was operated and rod and ring were inserted in his right thigh, about after 7 months, it was found that the rod had bent, therefore, he had been re-operated for removal of the rod and for that he was admitted in the hospital for 5 days. Because of the rod, he sustained permanent partial disability. He was operated on 6.11.2000 and was discharged after one month on 6.12.2000. It is submitted that he has produced documents which show that these are the bills regarding purchase of medicines. He was again operated by Dr. K.L. Kalra and was admitted from 4.6.2001 to 9.6.2001 and he had spent Rs.65,616/- for which the bills were produced. He submits that he has also spent Rs.80,000/-. However, even on his deposition, he has mentioned figure of Rs. 65,620/- which does not require any interference as his submission of Rs.80,000/- was not even pleaded before the Tribunal. This takes this court to the issue of disability as according to the learned counsel for the appellant the disability which has been considered by the Tribunal is against the evidence of the Chief Medical Officer, Shahjahanpur, who has given the disability certificate as Ext-32-Ga. The Chief Medical Officer, Shahjahanpur, has held that he has 45% of disability, whereas the Insurance company produced the medical certificate given by Dr. Kalra, who had treated him and he had opined that he had 25% disability. The Tribunal did not believe the certificate given by Chief Medical Officer, Shahjahanpur, and believed the subsequent report. The injured was having a provision store in Oswal Nagar and was earning Rs.6,000/- to Rs.7,000/- per month. He has to give Rs.600/- to Oswal Company as rent. He has produced the balance-sheet for the year 1999-2000 and in the year 2001 his income had reduced. The Tribunal considered the income of the injured in 2001 as Rs.44,636/-. The money which he was earning was more than Rs.88,000/- and, therefore, the Tribunal has held that as he has not filed any income-tax return, the balance- sheet cannot be believed.
9. The balance-sheet is a mirror of one's business and, therefore, the yearly income of Rs.44,000/- vis a vis income of Rs. 5,000/- goes to show that he has considerable loss and it has been wrongly not believed by the Tribunal. The income of Rs. 24,000/- per year is based on no evidence and it can be safely believed that the injured was earning Rs.4,000/- per month even if we consider his balance-sheet on absolute conservative side. The photocopy of disablement certificate of 25% and 45% show that either the Chief Medical Officer gave disability on the higher side. None of two doctors have shown what was the functional disability and, therefore, no fault can be found with the Tribunal in considering disability at 25%. Hence, the amount under the head of loss of income because of the injury would be Rs.12,000/- per year. He was 39 years of age. The multiplier admissible to a person of the said age would be 15 and not 10 as granted by the Tribunal hence Rs.12,000.00 x 15 = Rs.1,80,000.00 to that additional sum of Rs.50,000/- under the head of pain shock suffering and for other non-pecuniary damages required to be granted. The Tribunal has awarded a sum of Rs.1,37,620/- with 6.5% rate of interest. If the amount was not deposited within time, this conditional order could not have been passed. The rate of interest would be 9% from the date of claim petition. The amount be deposited within 12 weeks from today.
The appeal is partly allowed. The judgment and decree is modified to the aforesaid extent.
Order Date :- 31.1.2019 Irshad