Khamhan Lal Sahu vs Sanjiv Kumar Patel

Pritinker Diwaker, J.

This appeal arises out of the award dated 10.8.2005 passed by 5th Additional Motor Accident Claims Tribunal, Raipur (hereinafter referred to as "the Tribunal") in claim case No. 32/05 awarding compensation of Rs. 1.52-lacs in favour of the injured-claimant with interest @ 6% per annum from the date of claim petition. Facts of the case, in brief, are that on 29.1.2004 when injured appellant was travelling as a labour (Hamal) in Matador bearing registration No. C.G. 04 Z.D. 9246, the said Matador collided with a truck bearing registration No. M.P. 20 G 1998 on account of rash and negligent driving of the truck driver. As a result thereof, the appellant claimant sustained grievous injuries on various parts of his body, including fracture and crushing of his both the legs, breaking of tooth as also disfigurement of his face.

A claim case was filed by the injured-claimant before the Tribunal for compensation of Rs. 15 lacs, inter alia, pleading that before the accident he was doing agricultural work and thereby earning Rs. 6,000/- per month, he was also engaged in labour (Hamal) work, thereby earning Rs. 200/- per day, at the time of accident he was 25 years of age and on account of the injuries sustained in the accident he is unable to earn his livelihood. In the claim petition, the driver, owner and insurer of the offending vehicle truck were impleaded as non-applicants.

Respondents No. 1 & 2/driver & owner of the vehicle did not file their written statements and were also proceeded ex-parte. However, respondent No. 3/insurance company by filing its written statement denied the claim of the claimant mainly on the ground that the accident occurred due to negligence on the part of driver of the Matador and that driver of the offending vehicle, which was insured with respondent No. 3, was not having a valid and effective driving licence on the date of accident. In the alternative, it has been pleaded by the insurance company that if the vehicle insured by it is found to have contributed to the accident in any manner, then it being the case of contributory negligence, the liability to pay compensation to be assessed by the Tribunal be fastened proportionately.

However, the Tribunal after appreciation of the evidence on record by the impugned award granted a total compensation of Rs. 1.52 lacs in favour of the claimant along with interest @ 6% p.a. from the date of application till realization on the following heads:

Learned counsel for the appellant submits that the compensation awarded by the Tribunal is very much on the lower side and is required to be increased suitably for the following reasons:

(i) that the Tribunal without assessing the monthly income of the claimant and without applying the appropriate multiplier, in mechanical manner has awarded a meager amount of Rs. 40,000/- towards the loss of earning, whereas on account of permanent disability to the extent of 75%, the appellant is unable to do the work of labour and as such, his loss of income is 100%;

(ii) that the amount of Rs. 15,000/- awarded towards medical expenses as against the claimed amount of Rs. 2,11,665/- is also on the lower side because the appellant remained hospitalized for more than three months and thereafter also for some more period and during this period, he was operated for about 10 times and somehow his legs could be saved;

(iii) that the Tribunal has also committed an illegality in not awarding any amount towards conveyance;

(v) that looking to the nature of injuries and the period of hospitalization, the amount awarded towards permanent disability as also under the conventional heads is also on the lower side and calls for suitable enhancement.

On the other hand, supporting the impugned award learned counsel appearing for the insurance company submits that looking to the nature of injuries sustained by the appellant and the evidence adduced by the parties on record, the compensation awarded by the Tribunal can not be termed as "insufficient" or "inadequate", warranting interference by this Court.

Heard learned counsel for the parties and perused the material available on record.

From the evidence of Dr. Sunil Khemka (AW-2), it is apparent that in the said accident, the appellant had suffered grievous injuries and both his legs were crushed. He was hospitalized for more than three months and had also undergone operations for 10 times. The appellant had produced bills amounting to Rs. 2,11,665/-, out of which some of the bills are computerized and the Tribunal has disbelieved all these documents just because original of the same were not brought by the doctor in the Tribunal.

Assuming that the appellant could not produce and prove the bills as required under the law, though it is difficult to quantify the amount under the head of medical expenses, but in the peculiar facts and circumstances of the case, especially the fact that he remained hospitalized for about more than three months and was operated for about 10 times and produced certain bills in this regard, in the opinion of this Court, the appellant is held entitled for a sum of Rs. 1 lac instead of Rs. 15,000/- as awarded by the Tribunal, under this head - medical expenses.

So far as loss of future earning capacity is concerned, the Tribunal in a mechanical manner has awarded a sum of Rs. 40,000/- under this head. However, looking - to the nature of injuries and the extent of disablement, the same appears to be inadequate and calls for reassessment. Though multiplier method can not be mechanically applied to ascertain the future loss of income or earning power, however, depending on various factors such as nature and extent of disablement, avocation of the injured, whether it would affect his or her employment or earning power, the loss of income or earning may be ascertained by applying the same multiplier as provided under the second schedule to the Motor Vehicles Act, 1988 (in short "the Act").

The appellant has pleaded in his claim petition that he by doing the agricultural work was getting Rs. 6,000/- per month and in addition thereto, he was also engaged in labour work and thereby earning Rs. 200 per day. However, the appellant could not prove his income by leading cogent and legally admissible evidence in such a case, for the purpose of assessing compensation, notional income has to be taken into consideration. The accident is of the year 2004 when notional income was Rs. 36,000/-. In the absence of proof regarding income, the Tribunal while assessing compensation should have taken this notional income into account. However, that has not been done.

Undisputedly, the appellant has sustained 75% permanent disability in the said accident vide Ex. A-191. As per statement of treating Dr. Khemka (AW-2) who had issued this certificate, the appellant was hardly in a position to stand on his one leg. At the time of accident, the appellant was working as labour (Hamal). As already discussed above, the appellant has failed to prove his income by leading any cogent and legally admissible evidence, therefore, for the purpose of computing compensation, notional income is to be made the basis. As such, the annual income of the appellant is assessed as Rs. 36,000/-.

In the case on hand, at the time of accident, the appellant was 40 years of age and as per medical certificate he has suffered 75% permanent disability. Therefore, the loss of future annual income of the appellant comes to Rs. 27,000/-. After applying multiplier of 15, the total loss of future earning comes to Rs. 4,05,000/-. However, the Tribunal under this head has awarded only Rs. 40,000/- which is hereby enhanced to Rs. 4,05,000/-.

So far as compensation of Rs. 80,000/- awarded towards permanent disability of both the legs is concerned, in the total it of facts and circumstances of the case, the same appears to be just and reasonable and therefore, is kept intact.

As regards the amount awarded towards pain and suffering, special diet and attendant, considering the nature of injuries, the period of hospitalization, the trauma as a consequence of the injuries, his sufferings including his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries, the compensation awarded under the aforesaid heads certainly appears to be on the lower side and calls for suitable enhancement. Accordingly, the amount of Rs. 10,000/- awarded under the head of pain and suffering is enhanced to Rs. 40,000/-; the amount awarded for special diet of Rs. 5,000/- is enhanced to Rs. 20,000/- and the amount of Rs. 2,000/- awarded towards attendant is enhanced to Rs. 6,000/-.

The Tribunal has not awarded any amount towards conveyance and considering the fact that for his treatment, the appellant would have to incur expenditure towards conveyance also, this Court feels that the appellant is also entitled for a sum of Rs. 10,000/- under this head.

In view of what has been discussed above, the appellant is held entitled for a total compensation of Rs. 6,61,000/- and since the Tribunal has already awarded Rs. 1.52 lacs, after deducting the same the appellant is entitled for enhancement of Rs. 5,09,000/-. This additional amount of compensation shall carry the interest @ 6% p.a. as awarded by the Tribunal from the date of filing of claim petition till realization. In the result, the appeal is allowed and the award impugned stands modified to the above extent.