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Judgment
1.Heard Ms. S. Roy, learned counsel appearing for the appellant. Also heard Mr. S. K. Goswami, learned counsel appearing for the respondent No. 1,
who has also filed a cross-objection for enhancement of award.
By this appeal under Section 173 of the Motor Vehicles Act, 1988, the appellant has challenged the judgment and order dated 13.05.2010 passed by
the learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati in MAC Case No. 27 of 2008, thereby awarding an sum of Rs.6,32,000/-
with interest @ 6% per annum as compensation.
The case projected by the respondent No. 1, in brief, was that on 20.12.2007 at 8.45 PM at Paltan Bazar, Guwahati, while the respondent No. 1
was waiting to cross the road, he was hit by a bus bearing Registration No. WB-73A-2639 on his right side. As a result of the accident, the
respondent No. 1 had suffered grievous injury. He was taken to Mahendra Mohan Choudhury Hospital, Panbazar, Guwahati, where his guillotine
amputation through upper right thigh was done on 24.12.2007. It was projected that the respondent No. 1 was working as a motor mechanic prior to
the accident and was earning Rs.5,000/- to Rs.5,500/-per month, but he lost his job after the accident and is no longer capable of earning his livelihood.
The police registered a case, being Paltan Bazar PS Case No. 785/07 under Section 279/338 IPC. The offending vehicle was owned by respondent
No. 2 and was being driven by the respondent No. 3. By filing a claim petition, the respondent No. 1 had claimed compensation of Rs.8,00,000/-.
The respondent No. 2 & 3 herein did not contest the claim. The appellant decided the claim by denying the statements made in the claim petition. It
was stated that the claim was exaggerated and speculative and the respondent No. 1 was put to strict proof of the claim.
On the basis of the pleadings of the parties, the following issues were framed for trial:-
(1) Whether claimant, Gobinda Kalita, was injured in the alleged road accident dated 20.12.07 involving vehicle No. WB/73-A-2639 (Bus) and
whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?
(2) Whether the claimant is entitled to get any compensation for the grievous injuries sustained by him/her and if yes, to what extent and by whom
amongst the opposite parties, the said compensation amount will be payable?
On the basis of evidence on record, specially, the Accident Information Report (Ext.1) and medical documents (being Exts. 2 to 6), the learned
Tribunal held that the accident took place due to rash and negligent driving of the offending vehicle, which was insured by the appellant. Hence, the
issue No.1 was decided in favour of the respondent No. 1. In respect of issue No. 2, the learned Tribunal accepted the age of the respondent No. 1 to
be 26 years. On the basis of the salary certificate (Ext. 8), the learned Tribunal accepted the monthly income of the respondent No. 1 at Rs.3,500/-.
Applying the multiplier of 17 and the loss of earning capacity at 50%, the assessment of compensation was done as under:-
Medical expenditure : Rs.25,000.00-
Pain, shock and suffering etc. : Rs.50,000.00 Incidental expenses during Treatment such as transportation,Â
Attended, special food etc : Rs.50,000.00
Loss of earning due to disability : Rs.3,57,000.00-
Loss of amenities of life :Â Rs.1,50,000.00
Total Rs.6,32,000.00
Accordingly, the sum of Rs.6,32,000/- was awarded with the interest @ 6% per annum.
The learned counsel for the appellant has opposed the prayer for enhancement of the award and by challenging the award, it is submitted that as
the learned Tribunal had applied the principles of Workmen’s Compensation Act, 1923 for determination of loss of earning capacity, the award of
compensation under the Motor Vehicles Act, without following the factor applicable under the Workmen’s Compensation Act, 1923, the impugned
judgment and award was bad in law and liable to be set aside. It is submitted that the award of compensation was highly exorbitant and unjust and it is
submitted that the compensation of award ought to be granted under Section 163A of the Motor Vehicles Act.
Per contra, the learned counsel for the respondent No. 1, thereby placing reliance on the entry made in serial No. 17 of part II of Schedule I of the
Employees Compensation Act, 1923, submits that for an amputation of leg below hip with stump not exceeding 12.70cm in length measured from tip of
great trochanter, qualified for assessment of percentage of loss of earning capacity at 80%. By referring to Medical Certificate (Ext. 4) dated
04.02.2009 issued by Mahendra Mohan Choudhury Hospital, Panbazar, Guwahati-1 and addressed to District Social Welfare Officer, Kamrup, the
said hospital had assessed the percentage of permanent disability at 85%. It is submitted that on the face of the entries made in Ext.4 as well as entry
serial No. 17 of Part II of Schedule 1 of the Workmen’s Compensation Act, 1923, the learned Tribunal had erred in law and on facts in holding
the loss of earning capacity of the respondent No. 1 was 50%. According to the learned counsel for the respondent No.1, loss of earning capacity
should have been assessed either at 85% on the basis of the Medical Certificate (Ext.4) or @ 80% as provided in the Workmen’s Compensation
Act.
By referring to the case of Syed Sadiq Etc Vs. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735:2014 SEJ 627 and
M.D. Jacob Vs. United India Insurance Company Limited, (2014) 9 SCC 234: 2014 SEJ 648 as well as State of Himachal Pradesh and Ors. Vs Naval
Kumar, (2017) 3 SCC, 115, it is submitted by the learned counsel for the respondent No. 1 that the respondent No. 1 was entitled to enhancement of
his income towards future prospects, as settled according to the case of National Insurance Company Limited Vs Pranay Sethi and Ors,
MANU/SC/1366/2017 : (2017) 8 Supreme 107, where addition of income on account of future prospects has been held to be 40% for victims whose
age is below 40 years. It is submitted that the respondent No. 1 was 26 years old at the time of the accident and, as such, he was entitled to
enhancement of compensation by taking into account 40% addition of his income on account of his future prospects.
In view of the submissions made by the learned counsels for the both the sides, the only issue to be decided in the present appeal is that - whether
the learned Tribunal had awarded just and proper compensation to the respondent No. 1?
It appears from the materials available on record that the appellant has not disputed the accident or the injury suffered in the accident by the
respondent No. 1. There is also no dispute as regard to the age or income of the respondent No. 1. The only contentious issue between the appellant
and the respondent No. 1 is the quantification of the compensation.
On perusal of entry at serial No. 17 of Part II of the Schedule I of the Workmen’s Compensation Act, (Now Employees Compensation Act),
amputation below hip entitles the respondent No. 1 to 80% loss of earning capacity.
However, it is seen that if amputation was below the knee with stump exceeding 8.89 cm but not exceeding 12.70cm which entitles calculation of
percentage of loss of earning capacity at 80%. On the contrary, amputation of one foot resulting in end bearing or amputation of below knee with
stump exceeding 12.70 cm or amputation through one foot proximal to the metatarso-phalangeal joint could lead to 50% of earning capacity under
entry 22 and 23 of Part II of Schedule 1 of the Employees’ Compensation Act. Therefore, it appears that the learned Tribunal, by assessing the
loss of earning capacity to the extent of 50%, by referring to Schedule 1 of the Workmen’s Compensation Act, was bad in law and on facts,
because the loss of earning capacity ought to have been assessed at 80%.
In the above referred case of Syed Sadiq (supra) as well as Pranay Sethi (supra), the Hon’ble Apex Court have considered the addition of
income of loss of future prospects. As per the decision rendered in the case of Pranay Sethi (supra), the Constitution Bench of Hon’ble Apex
Court has settled the percentage of addition on account of future prospects at 40% for persons under the age of 40 years having established income.
Accordingly, this Court is inclined to hold that the respondent No. 1 was entitled to enhancement of his income by considering the future prospects at
40%.
The learned counsel for the respondent No. 1 has submitted that in the case of Syed Sadiq (supra), although the claimant therein was claiming to
have a monthly income of Rs.4,500/- per month and although the learned Tribunal had accepted the income to be Rs.3,500/-, the Hon’ble Apex
Court had held that the victim had accepted the earning capacity to be Rs.6,500/- per month, by considering the present state of economy and
therefore, the learned counsel for the respondent No.1 prays for accepting the monthly income of the respondent No.1 at Rs.5,000/- per month
because apart from having a fixed salary of Rs.3,000/- per month, he was having an additional income of his own being a mechanic. In this
connection, this Court is of the view that as the respondent no. 1 had produced the salary certificate (Ext.8) showing the monthly income of Rs.3,500/-
per month, it is not open for this Court to presume that the respondent No.1 was having an income of Rs.5,000/- to Rs.5,500/- per month. In the
opinion of this Court, the Hon’ble Apex Court has the power under Article 142 of the Constitution of India to pass such order as may be required
in the interest of justice. However, this Court, being the first Appellate Court cannot overlook the evidence tendered by the respondent No. 1 in the
form of salary certificate (Ext.8) to presume that the respondent No.1 was having a higher income. It would have been something else if the
respondent No. 1 would have proved his additional income by producing evidence to that effect. However, in the present case, as the respondent No.
1 did not lead any evidence to show that he had an income of more than what was given to him by way of salary. Therefore, this Court is not inclined
to presume that the earning capacity of the respondent No. 1 was higher than the proof tendered by way of Ext. 8. Accordingly, this Court is inclined
to hold, that the learned Tribunal had correctly assessed the monthly income of the respondent No. 1 at Rs.3,500/- per month, based on the salary
certificate (Ext.8).
Therefore, this Court is inclined to hold that the learned Tribunal had not correctly assessed the quantum of compensation to be awarded to
respondent No. 1, as such, the point of determination as formulated above, is answered accordingly. This Court finds that the respondent No. 1 is
entitled to enhancement of compensation by considering the future prospects as a component for calculating the monthly income of the respondent
No. 1 for the purpose of determining compensation. The compensation is reassessed as under:-
Monthly income =Rs.3,500/-
Add on account of 40% of =Rs.1,400/-
income towards future prospects   Â
Total =Rs.4,900/-
Loss of earning due to disability =Rs.7,99,680/-
(Rs.4,900/- X 12 X 17 X 80%)Â Â Â Â
Pain, shock and suffering (as per award)Â Â =Rs.50,000/-
For institutional expenses, transportation, =Rs.50,000/-
Attendents, special food etc. (as per award)
Loss of amenities of life (as per award)Â Â =Rs.1,50,000/-
Total =Rs.10,49,680/-
(Rupees ten lakh forty nine thousand six hundred eighty only)
The learned counsel for the respondent No. 1 has referred to the case of Ramrao Lala Borse and anr. vs New India Assurance Company Ltd.
and anr., (2018) 3 SCC 204 and has submitted that as the respondent No.1 had suffered the accident on 20.12.2007, he was entitled to interest @ 9%
as awarded in the above cited case. In this regard, he has also referred to the case of Municipal Corporation of Delhi Vs. Association of Victims of
Upahaar Tragedy, 2011 14 SCC 481. It is submitted that in both the cases, the Hon’ble Apex Court had awarded interest @ 9%.
In this connection, this Court is of the view that the banks in the country, at present, are not offering more than 7.5% interest on any Fixed
Deposit/Term Deposit Accounts. Therefore, even if the respondent No. 1 would have received the entire compensation amount from the date of
accident, then also, if such money was kept in bank, he would not get interest of more than 7.5%. Therefore, this Court is inclined to grant interest @
7.5% and not 9% as prayed for by learned counsel for the respondent No. 1. This Court is of the view that the Court is required to grant just and fair
compensation to the victim and if interest at the rate of 9% is granted, it cannot be said to be just and fair as it could be in excess of the interest
granted on a term deposit by a nationalised bank.
Accordingly, the aforesaid award of Rs.10,49,680/- (Rupees Ten Lakh Forty Nine Thousand Six Hundred Eighty only) would carry interest rate of
7.5 % per annum, which would be from the date of filing of claim petition, i.e., 17.01.2008 till realization.
The appellant is directed to deposit the enhanced award before the Motor Accident Claim Tribunal No.1, Kamrup (Metropolitan), Guwahati within
a period of two months. The appellant shall be entitled to adjustment of any money deposited towards part satisfaction of the award as well as
payment made under the “no fault liabilityâ€, if any. On satisfaction of the award, the appellant shall be entitled to refund of the statutory deposit
lying before the Registry of this Court.
In order to safeguard the money due to the respondent No. 1, it is provided that 50% of the awarded sum should be converted to a fixed deposit
for a period of (5) five years in any nationalized bank where banking is convenient for the respondent No. 1 The balance amount may be released to
the respondent No.1, on being duly identified by his learned counsel.
As a result, the appeal stands dismissed and the cross-objections stands allowed to the extent as indicated above.
Let the LCR be returned back.