Hon'ble Visnhu Chandra Gupta,J.
(Delivered by Hon'ble Vishnu Chandra Gupta,J) J U D G M E N (1) A young boy of 22 years of age became the victim of motor accident when he was working as a cleaner upon a truck having registration no. UP32 T 9757 . His both the legs below knee-joint were amputated. He was awarded compensation of Rs. 3,66,000/- with pendente-lite and future simple interest at the rate of 6%p.a. in motor accident claim petition filed by him before Motor Accident Claim Tribunal/ Additional District Judge, Court No. 5, Barabanki (For short 'Tribunal') under section 166 of the Motor Vehicle Act (For short 'Act') against the insurer and owner of the truck.
(2) Aggrieved by the amount awarded ,the present appeal under Section 173 of the the Act has been preferred by Sri Dinesh Kumar (Claimant - injured) before this court.
(3) The factual matrix relevant for deciding this appeal is that on 31st March, 2004, the appellant Dinesh kumar was working as a cleaner of truck having registration No. UP 32 T 9757 ,owned by Sri Anil Kumar Mishra, the Respondent no. 2, on a monthly salary of Rs. 2,400/-. He was also getting Rs. 50 per day as diet money apart from the salary. On the fateful day, when this truck was at Ghaziabad, the driver of the truck went to take diesel from a petrol pump situated at Lalkua within Police Station Kavinagar, District - Ghaziabad. The truck touched with hanging electric wire and caught fire. In this accident the petitioner who was cleaner and sitting on the truck was badly injured. He was firstly admitted in Shankar Lal Hospital at Ghaziabad, then came to Lucknow and remain admitted in Chanda Nursing Home. Thereafter he was shifted to District Hospital, Barabanki and remained there till 14 June 2004. Again he was admitted in District Hospital, Barabanki and remain there till filing of petition.
(4) During the course of treatment and to save the life of the petitioner as per advice of doctor his both legs were amputated below the knee-joint, as such he became permanently disabled. He claimed a sum of Rs. 8,59,600/- as compensation in the claim petition. The petition was contested by owner and insurance company. On the basis of pleadings, several issued were framed.
(5) The parties adduced evidence in support of there contentions. The petitioner examined himself as PW.1 and filed plenty of papers relating to expenditure incurred in treatment and purchase of medicine. The F.I.R. Of this accident, the discharge certificates of different hospital of Ghaziabad Lucknow and Barabanki, permanent disability certificate issued by Competent Authority etc. were also filed. Owner of the vehicle did not adduce any oral evidence, but filed registration certificate of truck, policy of insurance , road permit and driving licence of driver, information letter and the copy of information given. The Insurance Company did not adduce any oral or documentary evidence.
(6) After considering the evidence on record, the tribunal held that this accident occurred due to negligence of the truck driver wherein the claimant Dinesh Kumar being cleaner of the truck become permanently disabled on account of injuries sustained to him in this accident. It was further held that vehicle was dully insured with Oriental Insurance Company Ltd Respondent no.2 on the date of accident. No breach of term and condition of policy of insurance was established by the Insurance Company. The vehicle in question was being driven under the valid permit and the driver was having valid driving licence. It was further observed that the claimant's income of Rs. 2,400/- per month had been admitted by the owner and he also admitted that he paid Rs. 50 per day as diet money to his cleaner.
(7) The tribunal awarded a sum of Rs. 3,66,000/- as compensation treating the petitioner's disability at 100 per cent. For the purpose of computing the compensation, the tribunal taken the income of deceased as Rs. 50 per day and annual income at Rs. 18,000/-. Multiplier of 17 was applied for awarding the compensation of Rs. 3,06,000/-. Apart from it a sum of Rs. 10,000/- was given for pain and suffering on account of grievous injuries, Rs. 30,000/- towards medical expenses, Rs. 4,000/- for special diet, Rs. 6000/- for loss of income and 10,000/- for loss of amenities of life. As such a sum of Rs.60,000 was further added and a total compensation of Rs. 3,66,000/- was awarded.
(8) The appellant in the memo of appeal challenge the determination of compensation and criticise the method of computing the income of the deceased for the purpose of determining the compensation. He vehementally argued that no reasons has been assigned for assessing the income at Rs. 50 per day for computation for compensation though the admitted and proved income of the claimant was Rs.2,400/- per month apart from diet money of Rs.50/- per day. It was further argued that no future prospect of claimant has been considered. As such compensation awarded by the tribunal is inadequate..
(9) We have heard learned counsel for the parties at length and perused the record.
(10) It is not in dispute that the petitioner was getting the salary of Rs. 2,400/- per month at the time of accident and was also getting of Rs. 50 per day as diet money. The diet money was meant for own use of the petitioner and could not be treated as his income. While determining the amount of compensation it is not in dispute that his both the legs were amputated below the knee-joint. The deceased was a young man of 22 years. He became permanently disabled. The tribunal observed that in certificate of disability the disability of 60% has been shown in each leg.
(11) We have considered the submissions of the learned counsel for the appellant and we find some force therein. The young boy have lost his both the lower limbs and he has to pass his whole life as permanently disabled. He has to take help of other to do his routine and usual work. His income has completely lost. He, now, could not assist his family, rather he become himself burden and dependent upon those who were expecting physical and financial assistance from him.
(12) The tribunal assessed the income of appellant at Rs. 50 per day, which comes to Rs. 1,500/- per month. Considering the age of the injured the tribunal applied the multiplier of 17 and assessed his income at Rs.18,000/ per annum. In this case the income established is Rs. 2,400/- per month. We cannot presume any other income for computation of compensation of the petitioner. In view of latest pronouncement of the Apex Court in Santosh Devi Vs. DTC and others, (2012) 6 SCC 421 there shall be an addition of 30% in the existing income of injured Claimant for loss of future prospect. Therefore an amount of Rs.600/- ought to be added in the income of claimant. As such for purpose of computation of compensation the income of appellant Claimant shall be of Rs.3,000/- per month. The tribunal considering 100% disability calculated compensation treating the claimant as dead and applied the same principal for computation of compensation on that basis therefore. We find no illegality or perversity in adopting this principal of calculating compensation. But the tribunal arbitrarily taken the income of Rs. 50/-per day for calculating the compensation which require correction.
(13) We are of the view that this can be done at appellate stage and there is no need to remand the matter to tribunal for re-determination of compensation (14) Thus,we are of the view that the income of Appellant/Claimant should be taken to be of Rs.3000/- per month as discussed herein above. Therefore, annual income shall be of Rs.36,000/-. After deducting one-third amount towards pocket expenses of the claimant the same remains of Rs. 24,000/- per annum for purpose of determining the compensation to the Appellant/Claimant. After applying the multiplier of 17 the compensation would be of Rs.4,08,000/- .
(15) We are also of the view that amount of Rs. 10,000/-which has been awarded by the tribunal towards pain and suffering to the petitioner is extremely in lower side. Considering the nature of injuries sustained by him and also due to amputation of his both lower limbs, we are of the view that petitioner should be paid at least a sum of Rs.25,000/-on this count. As such the petitioner is entitled the total compensation of Rs.4,33,000/-.
(16) No other point was pressed or argued by the Appellant.
(17) Hence, this appeal for enhancement of compensation is allowed. The Appellant/Claimant would be entitled to a compensation of Rs.4,33,000/- with pendente-lite and future simple interest at the rate of six percent per annum. The impugned award is accordingly modified to this extent.
(18) The unpaid amount after this enhancement shall be deposited before the tribunal by the Respondent No.2, the Oriental Insurance Co. Limited with in a month from the date of this order which shall be paid to the Appellant/Claimant expeditiously by the tribunal.
(19) There shall be no order as to costs.