Reserved on 04.08.2021. Delivered on 13.08.2021
Case :- FIRST APPEAL FROM ORDER No. - 4101 of 2018
Appellant :- Ishaqat
Respondent :- National Insurance Co. Ltd. And 2 Others Counsel for Appellant :- Sanjay Singh,Amrendra Nath Rai Counsel for Respondent :- Ashish Kumar Bhattacharya
Hon'ble Siddharth,J.
Heard Sri Sanjay Singh and Sri Amrendra Nath Rai, learned counsels for the appellant and Sri Ashish Kumar Bhattacharya, learned counsel for the respondent no.1.
This first appeal from order is directed against the judgment and award dated 31.08.2016 passed by Motor Accidents Claims Tribunal/Additional District Judge, Court no.8, Barielly in MAC Petition No.152 of 2013 (Ishaqat Vs. National Insurance Company and others).
The brief facts of the case are that the claimant-appellant filed an application under Section 166 of Motor Vehicles Act, 1988 praying for award of compensation of Rs.2,50,000/- along with 12% interest per annum before the Motor Accidents Claims Tribunal, Bareilly on account of injury suffered by him in accident.
The aforesaid application was registered as MAC Petition No.152 of 2013. The claimant’s case is that on 15.11.2012 he was hit by Tractor No.UP-25-6105, which was being driven by its driver rashly and negligently on high speed. Along with him one, Sarvar, was also injured by the same tractor and he later died. The claimant was operated and iron rod was inserted in his right leg. He was doing the business of jari and earning Rs.12,000/ per month.
Opposite party no.1, National Insurance Company, denied the averments made in the claim petition and further stated that in the alleged accident there is no fault of the driver of the Tractor. The tractor driver did not had valid driving licence. There was violation of Section 64 (V) (B) of the Insurance Act. On the driving licence of driver there was no endorsement of driving vehicle carrying hazardous goods. The first information report of the incident was lodged belatedly. The claimant may be directed to file the insurance policy, driving licence, first information report, charge-sheet, registration certificate, permit, road tax and fitness certificate. There has been violation of policy since passengers were carried in the ensured tractor when it was insured for carrying goods only.
Opposite party no.2, owner of the vehicle, filed his written statement stating that there was no fault on the part of the tractor driver in the accident in dispute. Driver had valid licence and all the documents of the tractor were there. There was no violation of the insurance policy.
No one appeared on behalf of the respondent no.3, driver of the vehicle, before the Tribunal to file written statement.
The Motor Accidents Claims Tribunal framed issue no.I regarding the question whether tractor in dispute was being driven rashly and negligently and caused injuries to the claimant. This issue was decided in favour of the claimant holding that it was being driven by the driver rashly and negligently which resulted into injury to the claimant and death of another person, Sarvar.
Regarding issue no.II, whether the tractor driver had valid and effective driving licence, the Tribunal found that the driver had valid and effective driving licence.
Regarding issue nos. III and IV, whether the tractor owner had valid insurance and the tractor was being driven as per the terms and conditions of insurance, the Tribunal decided the issues in favour of the claimant.
Regarding issue no.V, the Tribunal held that the claimant is entitled to an amount of Rs.61,867/- along 7% interest from the date of filing of claim petition by the award dated 31.08.2016.
This appeal has been preferred by the claimant appellant on the ground that the learned Tribunal has erred in fixing the income of the claimant at Rs.3,000/- per month ignoring the evidence of income duly proved by the claimant-appellant. He used to earn about Rs.12,000/- per month from the business of jari and the business being in unorganised sector, no evidence could have been led. The opposite parties did not produced any evidence in rebuttal. Learned Tribunal has awarded only Rs.5,000/- towards pain and suffering when it should have been at least Rs.50,000/- since the claimant-appellant has become permanently disabled after several operations. The Tribunal has awarded a sum of Rs.41,000/- towards medical expenses when document any evidence of Rs.74,000/- was on record, which was verified by the Insurance Company and not disputed before the Tribunal. Tribunal has awarded only Rs.7,000/- for the expenditure on special diet, attendant and conveyance when the hospital from the residence of claimant was 20 km away. He was hospitalised thrice but Tribunal did not considered the disability certificate certifying 45% permanent physical disability and nothing was awarded under the head of future loss of earnings..
Learned counsel for the appellant relied upon judgment of the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and another (2011)1 SCC 343 and has placed before this Court para 18 of the same.
The Apex Court has held in the above case that where permanent disability of claimant was found to be 45 % for the whole body, in the absence of clear and sufficient evidence the permanent functional disability of left lower limb was assessed as 25% and loss of future earning capacity as 20%.
The next reliance has been place on the judgment of the Chattisgarh High Court in the case Jitendra Tandon Vs. Rakesh Kumar Sharma, reported in 2020(4) T.A.C 82 (Chhattis). In this case High Court directed for payment of entire amount of medical bills and Rs.25,000/- was awarded to the claimants regarding pain and sufferings suffered by the claimant. The amount of Rs.30,000/- was awarded towards permanent disability suffered by fracture of upper shaft right tibia of right leg and fracture of lower part of right patella. Rs.10,000/- was awarded towards transportation charges in place of Rs.4,000/-. Rs.20,000/- was awarded for loss amenities of life to the claimant and Rs.5,000/- towards special diet and Rs.18,000/- loss of income for a period of four months.
Learned counsel for the claimant-appellant has submitted that full amount claimed by the claimant-appellant under different heads should have been awarded to him Learned counsel for the opposite party-respondent no.1, has opposed the submissions made on behalf of the appellant. He has submitted that Tribunal has rightly awarded compensation under different heads and no further amount is required to be paid to the claimant-appellant. He has further submitted that the appeal is devoid of merits and deserves to be dismissed with costs.
After hearing learned counsel for he parties, this court finds that the following amounts have been awarded by the Tribunal under different heads to the claimant :
(I) Medical expenses ---- Rs. 41,667/-
(2) Mental and physical pain ---- Rs. 5,000/-
(3) Expenses for special diet, conveyance, attendant, etc. ---- Rs. 7,000/-
(4) Loss of income during 22 days of hospitalization ---- Rs. 8,200/-
(5) Loss of earning capacity on account of disability suffered --- Nil.
This Court after going through the record has found that the learned Tribunal has considered the medical bills, record of hospitalization etc., proved before it and has arrived at the conclusion that out of the amount Rs.74,000/- claimant towards medical expenses reliable evidence of only Rs.41,667/- is on record. This finding has not been specifically challenged by the claimant-appellant. Hence it is affirmed.
However, regarding the other heads of the claim award needs modification. The reliance of the Tribunal on the second schedule to the Motor Vehicles Act, 1988, when the Claim Petition was filed under Section 166 of the Act has resulted in defects in the award.
The amount of Rs.5,000/- awarded towards mental pain and suffering is not justified. The Chattisgarh High Court in the case of Jeetendra Tandon (supra) has awarded the same as Rs.25,000/- for two fractures in leg. In the present case there was only one fracture, therefore, the amount regarding pain and suffering should have been Rs.12,500/- in place of Rs.5,000/-
Amount spent on conveyance, special diet and attendant has been awarded to the tune of Rs.7,000/- only when the house of the claimant was 20 km away from the hospital. The aforesaid amount deserves to be enhanced to Rs.25,000/- by conservative standards. Attendant charges are minimum Rs.1000/- for eight hours, now in the hospitals and in the year 2012 it was about Rs.600/-. The expenses in conveyance for 22 days cannot be less tan Rs.200/- per day by public transport. Special food given was also expensive. Therefore, the amount Rs.25,000/- appears to be reasonable amount under all the heads together.
Because the disability certificate of the claimant-appellant shows permanent physical disability of 45% and possibility of improvement. His loss of earning can be considered to be 10% only. The business of “jari” does not involves the legs like the work of driver of vehicle and hence at the most some difficulty in walking and other leg movements can be suffered by the claimant-appellant in his life. He deserves to be compensated for the same in respect of his future loss of earning. Relying upon the judgement of Apex Court in the Raj Kumar (Supra) 10% permanent functional disability suffered by the claimant in one leg can only be considered and loss of 10% of income of Rs.3000/- per month comes to Rs.300/- per month.
On the basis of multiplier of 16 applicable to person aged 36 years, the loss of earning comes to Rs.300 x 12 x 16 = 57,600/- on the basis of income of Rs.3,000/- per month as assessed by the Tribunal. The amount of Rs.8,200/- paid forwards loss of income during hospitalisation is required to be deducted from the aforesaid amount.
The compensation under different heads is being modified as follows.
(1) Medical expenses Rs.41,667/-
(2) Mental and physical pain Rs.12,500/-
(3) Expenses for special meal, conveyance, attendants, etc., Rs.25,000/-
(4) Total loss of future income Rs. 57,600/-
(including period of hospitalization) Rs.1,36,767/-
After deduction of the amount awarded by the Tribunal the modified award comes Rs. 1,36,767/- . If Rs.61,867/- is deducted from Rs.1,36,767/-, claimant-appellant would be entitled to further amount of Rs.74,900/- from the respondent no.1, National Insurance Company Limited along with 6% simple interest per annum from the date of filing of claim petition.
The appeal stands partly allowed.
Order Date :- 13.08.2021
SS