1. Heard Sri Rajesh Kumar, learned counsel for the appellant in appeal no.454 of 2016, Sri Aditya Singh Parihar, learned counsel for the appellant-Insurance Company in appeal no.1448 of 2015, Sri Rajesh Kumar, learned counsel for the respondents in appeal No.1448 of 2015 and Sri Amit Manohar, learned counsel for the respondent-Insurance Company in appeal no.454 of 2016.
2. This appeal has been filed on behalf of the Insurance Company and the claimants respectively being aggrieved of the award dated 03.03.2015 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Bareilly in M.A.C.P. No.583 of 2010 on the ground that once, Tribunal accepted the aspect of contributory negligence in the ratio of 40:60 between the driver of the two wheeler i.e. the claimant, and the driver of the offending vehicle, then claim amount too should have been apportioned in the same ratio. It is further submitted that Tribunal has wrongly computed 30% functional disability though P.W.-4, Doctor had categorically mentioned that 50% disability is temporary in nature.
3. Learned counsel for the claimants submits that they have filed appeal because Tribunal has accepted medical bills to the tune of Rs.2,31,134/-(two lakhs thirty one thousand and one hundred thirty four only), whereas, bills of higher amount were filed and there was no justification in rejecting those bills.
4. After hearing learned counsel for the parties and going through the records, I am in agreement with the learned counsel for the Insurance Company that once, finding of fact has been recorded by the Tribunal that, driver of the two wheeler i.e. the claimant was responsible for contributory negligence to the extent of 40%, then that amount should have been deducted from the amount awarded on account of incurring disability by the claimants and to this extent appeal needs to be allowed.
5. It has come on record that deceased had suffered compound fracture in both the legs. His fractures were fixed through nailing and this fact can be corroborated from the Discharge Card issued by Sri Ram Murti Smarak Institute of Medical Science, Bareilly, according to which, claimant was admitted on 24.05.2010 and was discharged on 07.06.2010. According to the clinical summary, he was suffering from FUC of polytrauma with head injury. History of trauma on 15th February, 2010. A/K cast applied over left lower limb and then external fixator removal done and POP applied.
6. Prior to that, there is another Discharge Card available on record of the Tribunal showing that F.U.C. of head injury with polytrauma recon nailing done for fracture of trochanter and fracture of shaft femur fixation done for fracture of condylar of left femur. External fixation applied for computed fracture of right femur. Plating done for compound fracture of tibia and bone grafting. Thus, factual finding of the Tribunal to take functional disability at 30% cannot be faulted with.
7. Tribunal has accepted income of the deceased, who was working as medical rep. to be Rs.7000/- per month, taking 30% functional disability looking to the occupation of the claimant, Rs.2100/- per month shall be accepted to be the loss of income or Rs.25,200/- per annum. Admittedly, claimant was engaged as a medical rep. with NOVITEC Company as is apparent from the record. Therefore, taking age of the deceased to be 42 years, there will be addition of 25% towards future prospects fixing Rs.31,500/-. Tribunal has committed a grave error in reducing the multiplier from 14 to 7. In fact, multiplier of 14 will be applicable taking total compensation to Rs.4,41,000/-(four lakhs and fourty one thousand). Over and above which, Tribunal has awarded a sum of Rs.12,000/- under different heads of pain and suffering, nutritious diet and attendant. These amounts needs to be enhanced in the following manner:-
8. In place of Rs.2000/- under the head of pain and suffering, Rs.25000/- will be payable under the head of pain and suffering taking into consideration the nature of fractures and the usual time of healing to be 12 weeks, sum under the head of nutritious diet is enhanced to Rs.12000/-. Similarly, under the head of attendant, sum is enhanced to Rs.12000/-. No amount has been awarded under the head of future treatment for removal of plates and fixator which is now allowed at Rs.25,000/-. Another sum of Rs.5000/- under the head of transport is also allowed taking total compensation to Rs.5,20,000/-(five lakhs and twenty thousand). However, claimants will be entitled to only 60% of this as there is a finding of contributory negligence which could not be dislodged, thus actual payable compensation comes out to Rs.3,12,000/-(three lakhs and twelve thousand), besides amount of bills accepted and granted by learned Tribunal totaling Rs.2,31,134/-(two lakhs thirty one thousand and one hundred thirty four) taking total compensation to Rs.5,43,134/-(five lakhs fourty three thousand and one hundred thirty four).
9. In above terms, appeals are partly allowed and disposed off.
10. Lower court record be sent back forthwith.
Order Date :- 9.2.2021 Ashutosh