Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 1772 of 2001
Appellant :- The Oriental Insurance Co. Ltd. Mathura Respondent :- Fateh Mohammad And Another Counsel for Appellant :- Nagendra Kr. Srivastava,
Counsel for Respondent :- Shahid Masud,B.P.Verma,Bhanu Prakash Verma
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Nagendra Kumar Srivastava, learned counsel for the appellant and Sri B.P. Verma, learned counsel for the respondent.
2. This appeal, at the behest of the claimant, challenges the judgment and order dated 18.08.2001 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Mathura (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 341 of 1998 awarding a sum of Rs.2,75,000/- with 9% interest in favour of the claimants.
3. The accident is not in dispute. The injured having amputated one limb is not in dispute and his age is also not in dispute. There was no breach of policy condition is also not in dispute. Both the claimant and the Insurance Company have felt aggrieved by the compensation awarded. The appellant- Insurance Company has challenged the appeal on the following grounds:
(i). In view of the disability certificate and finding of the Tribunal, there is 75% disability to the claimant as such the compensation had to be assessed on the basis of the 75% of the income of the claimant-injured but the Tribunal illegally assessed the amount of compensation on the basis of 100% income of the claimant, hence, this finding requires to be set aside by this Court.
(ii). There is finding of the Tribunal that there was no loss of earning capacity of the deceased as the claimant is doing the profession of welding which can be easily performed by the claimant by his hand even today, even then, the Tribunal in contrary to it awarded compensation of Rs. 2,16,000/-.
4. Factual data goes to show that the injured while traveling in jeep bearing No. UP-24 9907 while returning from Aurangabad to Mathura got injured as the jeep turned turtle. He was admitted in the hospital and during the treatment his lower limb below the knee had to be amputated. He was engaged in a welding work and had to keep a person. He was earning Rs.6000/- per month and there was 100% loss of income. The Insurance Company and the owner did not dispute the accident but contended that there was no negligence of the driver. The Insurance Company took the usual stand of breach of policy condition but had not proved the same.
5. The only issue raised by the Insurance Company and the claimants relates to issue No.4. While going through the record, the Tribunal has considered that the claimant had incurred Rs.80,000/- for medical expenses but the bills were only for Rs.55,000/- and that is why the Tribunal has awarded the said amount which this Court does not disturb.
Age of the injured
6. There is dispute between the Insurance Company and the injured about the age of the injured. The injured has stated that his age is about 35 years whereas the Insurance Company has contended that he has above 50 years. They have examined, Gyanendra Kumar Rawat and the certificate issued by Chief Medical Officer shows his age to be 45 years. The Tribunal has considered his age to be 50 years which cannot be accepted. Hence, his age is determined to be 45 years on the basis of the medical certificate produced and on the photographs before the Medical Officer.
Income of the Injured
7. The injured has contended that he has employed one employee and his own son as employee. He earns Rs.6000/- from his shop but there is no registration. According to him he was paying Rs.1500/- to Fateh Mohammad which fact has not been proved or believed by the Tribunal.
8. The accident occurred in the year 1998. He was a skilled labourer and, therefore his income can be considered to be Rs.2400/- per month and being 45 years of age and being self- employed, 25% would have to be added as future loss of income to the injured in view of the decision of the Apex Court in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 and Syed. Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735;. Hence, the income can be assessed as Rs.3,000/- per month namely Rs.36,000/-. I am in agreement with the submission of the counsel for the appellant that in absence of any certificate certifying what is the functional disability, his disability can be considered to be 75% and not 100%. Hence, he would be entitled to Rs. 27,000 x 14 = 3,78,000. In addition to that, Rs. 1,00,000 for pain shock and suffering as there is amputation of left lower limb, Rs.50,000/- for future medical expenses and Rs. 25,000/- for other expenses is. This additional amount will be over and above the other non-pecuniary amounts granted by the Tribunal.
9. The appeal of the Insurance Company is partly allowed. Cross-objection is allowed. The additional amount be recalculated at the rate of 9% and deposited within 12 weeks from today. Record and proceedings be sent back to the Tribunal forthwith. The judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent.
Order Date :- 31.7.2019 DKS