DIPAL BORDOLOI @ DIPUL BORDOLOI vs THE DIVISIONAL MANAGER and 2 ORS

1.Heard Mr. N.D. Bhuyan, learned counsel for the appellant and Mr. S. Dutta for the respondent No. 1.

Unsatisfied with the award made by the Motor Accident Claims Tribunal, Guwahati in MAC Case No. 791/2008, the claimant preferred the instant

appeal seeking enhancement of the compensation.

The claimant Dipal Bordoloi sustained injury in a motor vehicle accident on 26/4/2006 involving the vehicle bearing registration No. AS 14-6411

owned by the respondent No. 2 and insured with the respondent No. 1, which led to the amputation of his left leg. The claimant by filing an application

before the MACT, Dhubri prayed for compensation and the learned tribunal by the impugned judgment, awarded compensation of Rs. 1,20,512/-

which comprised of Rs. 45,512/- towards medical expenses, 15,000/- towards pain and suffering, Rs. 50,000/- towards disability and Rs. 10,000/- for

miscellaneous expenses.

Learned counsel, Mr. ND Bhuyan submits that the claimant having sustained permanent disability because of amputation of the left leg, learned

tribunal ought to have assessed just compensation by adopting multiplier method with regard to loss of earning suffered by the claimant. However, in

the instant case, learned tribunal granted only a lump-sum amount of Rs. 50,000/- towards loss of earning. Learned counsel, Mr. Bhuyan further

submits that that the quantum of non-pecuniary damages, more particularly towards pain and suffering was also on the lower side and requires to be

enhanced.

From the evidence adduced by the claimant, it appears that the claimant sustained grievous injury which led to amputation of his left leg. Though the

extent of physical disability of the claimant was not assessed by doctor, the fact of amputation of the left leg of the claimant was not disputed.

Learned counsel for the appellant submits that because of the permanent disability resulting from amputation of the left leg, the claimant was entitled

to at least 50% loss of earning as per the Schedule â€"I of the Employees Compensation Act. The Apex Court, in Raj Kumar â€"VS- Ajay Kumar

and Ors. reported in (2011) 1 SCC 343, succinctly laid down the guidelines for granting compensation in case of personal injury as under :- (Pecuniary

damages (Special damages)

(ii) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the inured would have made had he not been injured, comprising :

(a) Loss of earning during the period of treatment ;

(b) Loss of earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is

specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (ii), (v) and (vi)

relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage)

and loss of expectation of life.

The impugned award transpires that the learned tribunal apparently failed to appreciate the loss of income suffered by the claimant for the

permanent disability because of amputation of his left leg and granted only a lump-sum amount of Rs. 50,000/-.It is not difficult to comprehend that the

disability due to amputation of leg certainly affected the earning capacity of the claimant to a great extent, as the occupation of the claimant, as

revealed from the materials brought on record, would require physical movement. The submission of the learned counsel for the claimant with regard

to 50% loss of earning due to the disability has not been contested by the respondent and as such, I am of the view, in the facts and circumstances of

the case and the nature of occupation of the claimant, he is entitled to loss of earning for an amount equal to 50% of his income.

The claimant stated in his evidence that he was earning Rs. 7,000/- from business. Besides, the oral evidence, no other evidence was adduced to

substantiate the claim that he was earning Rs. 7,000/- per month at the relevant time. May that as it be, evidently this is not a case where the claimant

was a non-earning person, inasmuch as, the factum of the claimant being a working person and maintaining his family was not in dispute. When the

claimant was an earning person, even going by the wages of an unskilled worker under Minimum Wage Act, the income of the deceased at the

relevant time could not be less than Rs. 3,000/-.

Keeping in view the relevant time, when the accident occurred, this court is inclined to accept the income of the deceased as Rs. 3,000/. An amount

equal to 40% of the income is also required to be added towards future prospects in view of the age of the claimant. By adding 40 % of the income as

future prospects, the monthly income comes to Rs. 4,200/-. With the above income, yearly loss of earning of the claimant shall be Rs. 4,200/- /½ =

Rs. 2100 X 12=Rs.25,200/-. That the deceased was 38 years of age at the relevant time was also not in dispute and as such, the appropriate multiplier

to be adopted in the instant case shall be 15. With the multiplier 15 the total loss of earning shall be Rs. 25,200/-X15= Rs.3,78,000/-.Evidently claimant

incurred medical expenses of Rs. 45,512/-.

Having considered the gravity of the injury and sufferings of the injured, this Court is of the view that an amount of Rs. 50,000/- towards pain and

sufferings, an amount of Rs. 1 lac towards loss of amenities in life and an amount of Rs. 50,000/- towards loss of expectation of life would meet the

ends of justice. Adding the above non-pecuniary damages and the medical expenses to the loss of earning, total enhanced compensation comes to Rs.

6,23,512/-. Say 6,24,000/- (rounded up).

The respondent No. 1 Insurance Co. shall satisfy the above compensation of Rs. 6,24,000/- along with interest @ 6 % from the date of filing the

claim petition by depositing the awarded amount with the tribunal within six weeks. The amount of future prospects added to the actual income shall

not carry the above interest. Tribunal shall ensure that 50% of the awarded amount be fixed deposited in the name of the claimant in a nationalized

bank for two years and 20% be fixed deposited in the name of the claimant in a nationalized bank for six months.

The appeal is accordingly allowed.

Send back the LCR.