Mukesh Lodha vs Durga Ram and Others

Sandeep Mehta, J.—Heard the learned counsel for the appellant and learned counsel for the respondent No. 3, insurance company. None has appeared for the respondent No. 2, the owner of the offending vehicle, despite service. The instant appeal has been filed by the appellant-claimant seeking enhancement of the compensation awarded to him by the learned Judge, Motor Accidents Claims Tribunal-I, Jodhpur vide judgment and award dated 26.9.2002 in Claim Case No. 123 of 1998 whereby he was awarded Rs. 5,65,000 as compensation for the injuries received by him in a road accident as against a claim of Rs. 57,99,000.

Facts relevant for the purpose of disposal of the instant appeal are noticed at the outset. On 1.12.1997, appellant herein was going from Jodhpur to Ahmedabad in bus No. RJ 22-P 0405 which was driven by Durga Ram (respondent No. 1), owned by Bhika Ram (respondent No. 2) and insured by New India Assurance Co. Ltd. (respondent No. 3). On the way, the driver drove the bus rashly and negligently and lost control thereof. Resultantly, at about 3 o''clock in the night, 5 km from Ambaji, the bus overturned causing injuries to a number of passengers. The appellant herein was injured seriously and was taken to Ambaji Hospital from where he was discharged after primary aid and was taken to Palanpur. At Palanpur, the appellant''s right hand had to be operated because of the serious injuries received by him.

He was referred to Ahmedabad where he remained hospitalised till 27.12.1997. The appellant''s right hand had to be amputated due to the injuries suffered by him in the accident.

It was averred in the claim application that the claimant''s eyeball was dislocated from the socket and had to be reinserted. Thereby his vision was diminished for the rest of his life. A criminal case was registered at P.S. Ambaji in relation to the aforesaid accident.

The claim petition was filed by the appellant-claimant before the Claims Tribunal claiming a total compensation to the tune of Rs. 57,99,000. It was averred in the claim petition that the claimant was working as a typist-cum-cashier in a firm named Chordia Electricals and thereby he was earning Rs. 5,000 per month. He was also working with a tax practitioner, R.R. Singhvi, who used to pay him a salary of Rs. 1,000 per month.

Learned Tribunal framed the usual issues regarding rash and negligent driving by the driver of the bus being the cause of the accident, the defences available to the insurance company, the entitlement of the appellant to receive compensation and if so, the quantum thereof.

All the issues were decided in favour of the appellant-claimant and against the respondents-non-claimants and ultimately, an award for a sum of Rs. 5,65,000 was passed in favour of the claimant with interest of 9 per cent per annum from the date of filing of the claim application. None of the above findings have been challenged by any of the respondents and thus, have become final qua them.

The only issue which thus calls for the consideration of this court in this appeal is whether the quantum of award passed by the learned Tribunal in lieu of the injuries to the claimant is inadequate and if so, the extent of enhancement to which he is entitled.

Learned counsel for the appellant contends that the learned Tribunal committed apparent errors while computing the compensation awardable to the appellant on the following counts:

(1) The learned Tribunal held the appellant''s income to be Rs. 45,000 per year only despite oral evidence led to the effect that he was earning a salary of Rs. 6,000 per month by working as typist-cum-cashier. Due to amputation of his right arm, he totally lost his earning capacity. Thus, the loss of income should be calculated by treating the disability to be 100 per cent instead of 50 per cent as done by the learned Tribunal.

(2) The award of Rs. 50,000 by the learned Tribunal to the appellant for pain, suffering and mental agony due to loss of right arm is also inadequate and the same also deserves to be enhanced.

(3) Further, the appellant would have to get an artificial limb for carrying out his day-to-day affairs but no provision for future treatment was made in the compensation awarded to him which also deserves to be awarded to him.

(4) The appellant also received serious injuries on his head and 56 stitches had to be applied for repairing the same. No separate compensation was awarded under this head.

(5) The appellant having lost his right hand in the accident would require an attendant for the remainder of his life to assist him in day-to-day functioning. A specific prayer was made for awarding compensation to the claimant under this head but the learned Tribunal did not advert to the said aspect at all.

He thus prays that the compensation awarded is inadequate and the same deserves to be enhanced.

Per contra, learned counsel for the respondent insurance company opposed the submissions advanced on behalf of the appellant-claimant. He submits that the compensation awarded to the appellant is just and proper and does not call for any interference.

Heard the learned counsel for the parties and perused the impugned judgment as well as the record.

Appellant came out with a specific averment in the claim petition that he was working as typist-cum-cashier at the time of accident. No evidence to controvert the said plea was led by the insurance company or the non-claimants. The Tribunal accepted the plea and held that the appellant was working as typist-cum-cashier for earning his livelihood.

Dr. Vinod Katju was examined as PW 4 for proving the appellant''s permanent disability. He deposed that in reference to the whole body, the disability was 50 per cent whereas the right hand was disabled cent per cent.

The percentage of disability has to be considered in reference to the profession of the victim. A mechanical approach on the basis of the medical certificate would not be appropriate in the light of the recent decision of the Hon''ble Apex Court in the case of Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company,

Appellant claimed in his evidence that he was earning Rs. 6,000 per month. The learned Tribunal held the income of the appellant to be Rs. 45,000 per year looking to the income tax returns filed by him. As per the income tax returns, the gross income of the appellant for the relevant period was Rs. 43,370. There cannot be any reason to differ with the said figure for assessing the income of the appellant. Therefore, the income of the appellant is held to be Rs. 43,370 per annum.

No consideration for future prospects and rise in income was made by the learned Tribunal while assessing the compensation. The appellant was just 25 years at the time of accident. The appellant in his deposition stated that after the accident, he is not able to do any work whatsoever. He received serious injuries on his head and 56 stitches had to be applied for repairing the same. 16 units of blood had to be infused for treating him. He had to keep an attendant with him for about 18-19 months. A specific statement was made by him that because of the amputation of the right hand from below elbow, he has been deprived of all avenues of earning his livelihood. No cross-examination was conducted from the appellant on this aspect on behalf of the respondents.

As the appellant was working as typist-cum-cashier at the time of accident, there cannot be any reason to discard the appellant''s claim that he lost the ability to earn his livelihood totally because of the amputation of his right arm. The right hand is an inseparable tool essential for typing purposes. Therefore, the disability of the appellant in reference to the nature of his job and loss of earning capability has to be taken at 100 per cent and not 50 per cent as done by the learned Tribunal.

The appellant also deposed in his examination-in-chief that there was likelihood of rise in his income as long as he worked. No consideration for future prospects and rise in income was made by the learned Tribunal. Therefore, applying the principles as enumerated in the case of Syed Sadiq (supra) and in the case of Sanjay Verma Vs. Haryana Roadways, , an addition of 50 per cent under the head of future prospects deserves to be approved in the income of the appellant for calculating the compensation as the age of the appellant was 25 years at the time of the accident.

The amount of Rs. 50,000 awarded to the appellant under the head of suffering from pain and mental agony is highly inadequate and the same deserves to be enhanced to Rs. 1,00,000.

As the appellant was 25 years of age at the time of accident, the multiplier of 18 was rightly applied by the Tribunal.

No amount was awarded to the appellant for the cost of engaging an attendant for the remainder of his life. It goes without saying that the appellant would be needing an attendant during his entire remaining life on account of amputation of his right arm and thus, an amount of Rs. 2,00,000 is awarded under this head.

In view of the aforesaid discussion, this court is of the opinion that the appellant is entitled to enhanced compensation as per the Table given below:

The payment of the original awarded amount shall be made in terms of the order passed by learned Tribunal, whereas on the enhanced amount, the claimant-appellant shall be entitled to an interest at the rate of 7.5 per cent per annum from the date of filing of the claim petition.

In order to ascertain that the claimant is benefited to the maximum by the enhancement in the award, the following directions are given for the disbursal of the awarded amount:

(1) 20 per cent of the enhanced amount shall be paid to the claimant in cash.

(2) The remaining 80 per cent shall be deposited in fixed deposits in any nationalised bank with a lock-in period of 5 years by applying the best available fixed deposit term plan. The interest upon the fixed deposits shall be disbursed to the claimant periodically. The banker shall be instructed not to issue any loan against the fixed deposits.

(3) If in any emergent condition the claimant requires the modification of the said direction, he shall be at liberty to file a writ petition before this court for the release of the amount from the fixed deposit(s).

Any amount already paid by the insurance company under section 140 and/or proviso to section 173 or any other amount, shall be adjusted towards the amount finally awarded by this court.

Accordingly, the appeal filed by the claimant-appellant is allowed as aforesaid.

There shall be no order as to costs. Record of the learned Tribunal be sent back forthwith.