1. Heard Sri Pawan Kumar Singh, learned counsel for the appellants and Sri Sharad Sharma, learned counsel for the respondents.
2. These appeals have been filed by the Insurance Company being aggrieved of award dated 31.07.2017 passed by the learned Motor Accident Claims Tribunal/Additional District Judge, Court No.5, Rampur in Claim Case No.201 of 2014 and 198 of 2014 respectively, mainly on two grounds namely, there is delay in loding of FIR. Date of accident is 15.02.2014, whereas, FIR was lodged on 17.06.2014. It is submitted that witnesses who are allegedly injured and are claimants have given different versions about directions, in which they were moving on the Scooter. This difference in version of the two witnesses who were admittedly travelling together causes doubt about the factum of accident.
3. It is also submitted that learned Claims Tribunal has erred in taking total disability certified by the doctor in one of the lower limbs to be the actual functional disability, whereas, functional disability will be much less and should have been at least adjudged @ 50% of the certified disability, inasmuch as, compensation for future losses is to be computed in terms of functional disability and not the certified disability of one limb. It is further submitted that claimants were respectively working as Supervisor and Driver.
4. Learned counsel for the respondent, Sri Sharad Sharma in his turn, submits that functional disability for driver has been construed as 35%, whereas for Supervisor, it has been construed as 25%, which does not call for any interference.
5. Sri Sharma submits that there is no ambiguity in the impugned award calling for any interference and the award needs to be maintained especially looking to the fact that delay in FIR was on account of injured being under treatment. It is submitted that there is no iota of evidence to dispute involvement of the tractor insured with the appellant-Insurance Company. Once, Insurance Company has not been able to dislodge the case of the claimants in regard to involvement of the offending vehicle, then no indulgence is rerquired on such grounds like delay in FIR or diffence in version of eye-witnesses in regard to direction, in which they were travelling.
6. After hearing learned counsel for the parties and going through the record in Appeal no.3651 which is in respect of one Sri Parvez Khan son of Raees Ahmad. It is evident from the injury report and the X-Ray Report dated 15.02.2014 demonstrates that he had sustained compound fracture on upper 2/3 and 1/3 of shaft femur in the right thigh. Similarly, he had also sustained fracture of shaft tibia and fibula.
7. As per disability certificate issued on 03.03.2016 i.e. after more than two years of the accident, there is mention of 40% disability without giving any details to show that whether there was any shortening of the leg or wasting of musscles which was irreversible.
8. On the contrary, when testimony of Dr. H.K. Mitra, who was one of the authors of the disability certificate is read, then in cross examination, he has admitted that disability was temporary, it may increase or decrease with passage of time. This doctor has admitted that Parvez was never treated by him and he was never brought before him for any treatment in future. This doctor has also admitted that except for the allopath, nobody else is authorized to dispense with allopathic medicines and if they have been given by some other persons, then i.e. not acceptable.
9. Proper appreciation of the facts of the case reveals that in absence of the evidence of shortening, arbitrarily fixing functional disability at 35% cannot be accepted under the facts and circumstances of the case. In the light of decision in case of Raj Kumar Vs. Ajay Kumar; 2011 (1) SCC 343, functional disability can be assessed at 15 % in place of 35%.
10. Tribunal has accepted annual income of the injured at Rs.3,000/- per month for an accident, which took place on 15.02.2014. Whereas even if, income of an unskilled labour is taken on the date of the accident, it is in the tune of Rs.6,000/-, therefore, 15% of annual income of Rs.72,000/- will come to Rs.10,800/- Thus, loss of income will be to the extent of Rs.10,800/- per annum. Tribunal has applied multiplier of 14 which will take total loss of income to Rs.1,51,200/- (one lakh fifty one thousand and two hundred).
11. Learned Claims Tribunal has awarded a sum of Rs.34,550/-(thirty four thousand and five hundred fifty) under the head of treatment and a sum of Rs.5000/- under the head of pain and suffering and Rs.9000/- under the head of loss of income totalling Rs.2,24,900/-(Two lakhs twenty four thousand and nine hundred).
12. As this Court has accepted minimum wages @ Rs.6,000/- per month, and fundamental disability @ 15%, therefore, compensation under loss of income will be reduced from Rs.1,76,400/- (one lakh seventy six thousand and four hundred) to Rs.1,51,200/-(one lakh fifty one thousand and two hundred).
13. Learned Tribunal has awarded only a sum of Rs.5,000/- under the head of pain and suffering on account of a compound fracture sustained by the claimant. This needs to be enhanced to Rs.25,000/-. Besides this, claimants will also be entitled to an additional sum of Rs.12,000/- under the head of nutritious diet and attendant @ Rs.2,000/- per month for a period of six months and an additional sum of Rs.2,000/- under the head of transport. Therefore, claimants will be entitled to a sum of Rs.2,22,750/-(two lakhs twenty two thousand and seven hundred fifty) in place of Rs.2,24,900/-(two lakhs twenty four thousand and nine hundred) awarded by the learned Claims Tribunal. Thus, there will be a reduction in the amount of award to the extent of Rs.2,150/-.
14. To this extent, Appeal No.3651 of 2020 is allowed/disposed off.
15. Other terms and conditions of the award shall remain intact.
16. In F.A.F.O. Appeal No.3652 of 2017, again income of the injured has been taken at Rs.3,000/- per month which is to be treated at Rs.6,000/- per month or 72,000/-(seventy two thousand) per year. When 15% functional disability is taken into consideration, then loss of income will be Rs.10,800/-.
17. Tribunal has applied multiplier of 13, therefore, loss of income will be to the tune of Rs.1,40,400/-(one lakh fourty thousand and four hundred). Over and above which, claimants are entitled to a sum of Rs.1,84,917/-(one lakh eighty four thousand and nine hundred seventeen) awarded by learned Claims Tribunal under the head of treatment. Besides this, claimants are entitled to a sum of Rs.18,000/- under the head of loss of income for a period of three months and Rs.5000/- under the head of pain and suffering as has been awarded by the learned Claims Tribunal taking total compensation to Rs.3,48,317/- (three lakhs fourty eight thousand and three hundred seventeen).
18. Other terms and conditions of the award shall remain intact.
19. Appeal is, accordingly, disposed off.
Order Date :- 19.1.2021 Ashutosh