Mohandas vs Karamat Khan and Others

S.R. Waghmare, J—This is an appeal filed by claimant/appellant Mohandas under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred as "the Act") against the impugned judgment dated 30/1/2014 passed by the XIV Additional Member, Motor Accident Claims Tribunal, Indore in Claim Case No. 295/2011. By the impugned award, the Claims Tribunal has awarded only Rs. 49,312/- (Rupees Forty nine thousand three hundred twelve only) for the disability and injuries sustained by the appellant in the road accident.

Briefly stated the facts of the case are that on the date of the accident i.e. 10/10/2007 appellant Mohandas was going as a passenger in the bus bearing registration No. MP 13/P-0195, which was driven by the respondent No. 1, from Gram Patadiya Dhakad Sarangpur to Ujjain when the bus reached at Maksi-Ujjain road Dhandhly at that time on account of the rashness and negligence of the respondent No. 2 the bus turned turtled and as a result of which the passengers of the bus sustained grievous injuries and the present appellant has received injuries on the head and he a fracture and also received injuries on his sole (bottom of the foot) and fingers and the appellant has lost his memory and he treated in the Murelydhar hospital Maksi and Sudhanshu Charitable Trust hospital and he was referred to M.Y. Hospital and he had admitted there from 10/10/2007 to 12/10/2007. The appellant incurred Rs. 50,000/- as medical expenses. The appellant was aged 41 years at the time of the accident and was earning Rs. 10,000/- per month since he was a Teacher by profession. As a result of the accident, he is unable to walk properly and also he is not fit for his day-today work. A report was filed at the police station Maksi, District Shajapur against the respondent No. 1 and crime was registered. The bus was owned by the respondent No. 2 and the respondent No. 3 is the Insurance Company with whom the vehicle has been insured. The appellant claimed a sum of Rs. 5,00,000/- as compensation for the injuries sustained by him. Non-applicant Nos. 1 & 2 remained ex-parte in the lower Court. The non-applicant No. 3/respondent Insurance Company resisted the claim and took up the stock plea that the driver did not have any proper valid licence and hence the Insurance Company is not liable to pay the compensation.

The Claims Tribunal however, on considering the evidence on record, came to a conclusion that the appellant is suffering from 5% disability and awarded a sum of Rs. 49,312/- as compensation and the respondents are jointly and severally liable to pay the compensation.

Counsel for the appellant/claimant has vehemently urged the fact that the Claims Tribunal had erred in awarding such a meager amount. Counsel submitted that the permanent disability has not been properly assessed by the Tribunal. He contended that the appellant sustained 15% disability due to fracture on the head and the sole and fingers. Firstly the appellant claimant had been treated in the Murelydhar hospital Maksi and Sudhanshu Charitable Trust hospital and thereafter he referred to M.Y. Hospital and he was admitted there from 10/10/2007 to 12/10/2007. Counsel submitted that according to the certificate issued by Dr. Bapat, the appellant got 15% disability. Whereas, Counsel for the insurance company submitted that only 5% disability has been assessed in the whole body by the Tribunal, which is inappropriate under the circumstances.

Similarly Counsel urged that the income of the appellant has wrongly been assessed by the Tribunal since the appellant was a private Teacher by profession and his actual monthly income is Rs. 10,000/- per month., whereas the Tribunal has assessed the same at Rs. 3,200/- per month only. On this count, Counsel submitted that the income of the appellant has not been properly assessed. Placing reliance on Jakir Hussein Vs. Sabir and Others(2015) 2 ACC 1 : (2015) ACJ 721 : (2015) 2 AD 567 : (2015) 2 RCR(Civil) 141 : (2015) 2 SCALE 582 : (2015) 3 SCJ 5 whereby the injured has sustained severe compound fractures in right arm and hand completely crushed and there was deformation. The injured has been hospitalized for 3 1/2 months on two occasions and undergone surgery. The Tribunal had awarded Rs. 4,38,000/- and the High Court had further allowed Rs. 1,77,200/- for permanent disability. The Apex Court had awarded Rs. 8,64,000/- towards loss of income. Counsel further placed reliance on Kumari Kiran Vs. Sajjan Singh, (2014) AIRSCW 6328 : (2014) 10 SCALE 462 whereby the injured sustained fractures of femur, tibia and fibula bones of right leg. The High Court had enhanced the award for Rs. 60,000/-; whereas the Apex Court had correctly assessed the income and the award enhanced to Rs. 5,80,154/-.

Counsel also submitted that the appellant is not now in a position to be as fit as he was prior to accident in his day-to-day work. He contended that the appellant was prevented from discharging his previous activities and hence, the loss of earning capacity is, therefore, to be assessed keeping this fact in mind. Although there is a loss of income, the Apex Court has held that due to the permanent disability results in loss of earning capacity to be 100% or less, Counsel submitted that considering the fact that the appellant was working as a Teacher. Whereas the Tribunal has only taken nominal income of Rs. 3,200/- per month which is highly inadequate today. Besides, the appellant has to be indemnified regarding the future losses also. Hence, Counsel prayed that the impugned award be modified and the appeal be allowed.

Counsel for the respondent/Insurance Company has vehemently opposed the submissions put forth by the Counsel for the appellant. He has vehemently urged the fact that the permanent disability of 15% has not been properly proved. There is a certificate of the non-treating doctor and if the testimony of the treating doctor is considered, the appellant is suffering from 5% disability in the whole body, which was correctly observed by the Claims Tribunal. Counsel further submitted that the accident itself is not properly proved and the driver did not have any valid licence. Moreover, Counsel submitted that more than sufficient amount has been awarded by the Claims Tribunal and there is no loss of income as is being alleged and the appellant has started working. Hence, Counsel submitted that the appellant did not deserve any sympathy and prayed for dismissal of the appeal.

I find that the compensation awarded to the claimant must be just, reasonable and proper looking to the facts and circumstances of each case and taking into account the law laid down by the Supreme Court in various cases. However, no fixed or static formula as such is provided for determining the compensation and the same is required to be determined on the basis of totality of evidence adduced and the relevant factors which are required to be taken into consideration as mentioned supra. It is on this basis, the Courts have to work out award of reasonable compensation to the claimant for the injuries sustained.

On considering the above submissions and the evidence adduced by the claimant on the issue of the injury sustained by him, I find that the future loss of income has been assessed at a nominal rate and it needs to be modified under the circumstances. The appellant has been hospitalized there was a fracture on the head, as a result of which the appellant is suffering from pain and disability and he also lost his memory. Besides a lot of expenditure has been incurred which has not been properly assessed. The medical bills only have been properly granted to the claimant as already stated and no static formula as such provided for determining the compensation; and the same is required to be determined on the basis of totality of evidence adduced and the relevant factors which are required to be taken into consideration. Under the circumstances, I find that it would be proper to enhance the compensation as loss not properly assessed towards the future loss of income and companion and loss of amenities of life. In view of the above, the claimant is held entitled as follows:

Thus the compensation is enhanced by Rs. 31280/- [enhance with interest with cost]

In this view of the matter, the appeal is partly allowed and the impugned Award of the Claims Tribunal is hereby modified to the extent indicated above. The enhanced amount will carry interest at the rate of 9% p.a. from the date of application till realization. All other findings are upheld being not under challenge.

Counsel fees Rs. 3,000/-, if certified.