1. Heard Sri Radhey Shyam, learned counsel for the appellant and Sri Ram Shiromani Yadav, learned counsel for the respondents.
2. This appeal has been filed by the Insurance Company being aggrieved of award dated 28.05.2008 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No.9, Moradabad in M.A.C.P. No.113 of 2006 on the ground that Tribunal has accepted the disability certificate issued in favour of the claimant showing deformity of the right eye to the extent of 20%, but has arbitrarily construed this disability to be 40% without there being any basis, and similarly disability of the left lower limb which was noted to have shortened by one inch has been construed to be 18% and only arithmatical addition has been made without adverting to the aspect of functional disability of the claimant who was admittedly owner driver of the truck.
3. Sri Ram Shiromani Yadav, learned counsel for the respondents supports the award.
4. After hearing learned counsel for the parties and perusing the available record and also going through the judgment rendered by Supreme Court in case of Raj Kumar Vs. Ajay Kumar; (2011) 1 SCC 343, this Court is of the opinion that Tribunal erred in construing 58% of functional disability without there being any basis for the same.
5. In my opinion, since there is no cogent evidence or expert evidence to the effect that 20% disability in eye or coupled with the 18% disability in left leg will dis-entitle the driver of the motor vehicle to continue with his occupation but taking into consideration that there will be limitations on the capacity of the claimant on account of such permanent disability, it will be appropriate to construe total permanent disability at 25% in terms of the functional disability and also in terms of law laid down by Hon'ble Supreme Court in case of Raj Kumar Vs. Ajay Kumar; (2011) 1 SCC 343.
6. Learned Claims Tribunal has considered age of the claimant to be 25 years, therefore, in place of 17, multiplier of 18 will be applicable. Thus, the claim amount will be Rs.(5000 x 25/100) = 1250/- per month will be loss of income. Over and above which 40% is to be added towards future prospects taking monthly loss to Rs.1750/- per month or Rs.21000/-(twenty one thousand) per annum. Multiplier of 18 will be applicable taking total compensation under the head of loss of income to Rs.3,78,000/-(three lakhs and seventy eight thousand)
7. Tribunal has awarded a sum of Rs.5000/- under the head of pain and suffering and another sum of Rs.102023/-(one lakh two thousand and twenty three) under the head of bills of treatment proved by the claimant which needs to be added. There will be an addition of Rs.20,000/- under the head of pain and suffering and another sum of Rs.10,000/- under other miscellaneous head, thus, taking total compensation to Rs.5,15,023/-(five lakhs fifteen thousand and twenty three).
8. In above terms, appeal is allowed in part and disposed off.
Order Date :- 3.2.2021 Ashutosh