Murlidhar Dewangan vs Dinesh Ram and Others

Pritinker Diwaker, J.�This appeal arises out of the award dated 27.6.2006 passed by Additional Motor Accident Claims Tribunal (for short the "Tribunal") Dhamtari in Claim Case No. 286/2004 awarding a compensation of Rs. 2,23,000/- in favour of the appellant/claimant. Facts of the case in brief are that on 29.7.2003 the motorcycle bearing registration No. CG-5A-3501 driven by injured Rameshwar alias Ramesh carrying the appellant/claimant as pillion rider, was dashed by a jeep bearing registration No. CG-05-ZA/2118 as a result of which both, the driver and the pillion rider suffered grievous injuries including fracture.

Claim case was filed by the appellant/claimant claiming compensation of Rs. 14,35,000/- in his favour inter alia pleading that in the accident he suffered permanent disability to the extent of 65%, he remained hospitalised for about a month and underwent operation necessitating insertion of rod in his leg, suitable compensation may be awarded to him.

Insurance company however contested the claim and denied its liability to satisfy the same. However, by the award impugned the Tribunal has awarded a compensation of Rs. 2,23,000/- in favour of the claimant with interest at the rate of 6% per annum.

Counsel for the appellant/claimant makes the following submissions:

(i) That the Tribunal has incorrectly assessed the monthly income of the claimant/injured though he was an income tax payee and has pleaded and proved his annual income to be Rs. 60,000/-.

(ii) That under some of the conventional heads the Tribunal has not awarded any compensation and under whichever heads it has been awarded, is on the lower side.

(iii) That the Tribunal has overlooked the fact that by profession the appellant/claimant was a tailor and on account of the accident and resultant permanent disability to the extent of 65% it would not be possible for him to perform his regular work as usual.

Counsel for the respondent/insurance company has not only seriously opposed the contention of the appellant/claimant but even a cross appeal has been filed on its behalf challenging the award impugned though after a period of six years. The grounds taken by the insurance company are as under:

(i) That no independent eyewitness has been examined by the claimant and thus he has failed to prove the accident.

(ii) That the treating doctor (AW-3) has stated in his court statement that while being discharged the claimant was in a better condition and in view of this it cannot be said that he had suffered 65% permanent disability.

(iii) That though cross appeal is time barred by six years, the delay so occasioned, is bona fide and has occurred on account of certain procedural formalities.

Counsel for respondents No. 1 and 2 duly assisted the Court.

In support of his contention, claimant/appellant has examined himself and described the manner in which the accident had taken place in which he suffered injuries. He has stated that the accident occurred on account of rash and negligent driving of the offending vehicle and he received grievous injuries in his leg for which he was initially hospitalised at Dhamtari for 27-28 days. Thereafter, he took treatment for about six months by Dr. Iqbal and then was referred to Bilaspur where he was operated upon and remained in the hospital for more than 10 days. He is stated to have been confined to bed for about 2-3 months and is unable to fold his leg. According to him, by profession he is a tailor and on account of the injuries sustained by him in the accident he is unable to perform his tailoring work and has employed three persons to look after his shop by paying salary. He has stated that the treating doctor has advised him for another operation. Ex. P-169 is the permanent disability certificate issued by the medical board certifying that 65% permanent disability has been suffered by the appellant/claimant. This certificate has been duly proved by Dr. R.S. Thakur (AW-2) who has stated that on account of plates and screws put in the leg of the claimant, he is unable to fold his leg and that he cannot perform his tailoring work as he was doing earlier and would be permanently disabled for his entire life. Dr. Iqbal Parvej (AW-3) -orthopedic surgeon has described the injuries sustained by the claimant and the expenditure incurred on treatment of the same. Gopal Yadav (AW-4) - income tax inspector has stated that in the year 2002-03 earning of the injured/claimant was Rs. 72,000/- and in the year 2003-04 it was Rs. 60,000/- per annum.

Considering the fact that the appellant/claimant was a skilled worker and an income tax payee, his annual income after making necessary deductions is assessed at Rs. 40,000/-. Looking to the permanent disability to the extent of 65%, the loss of income comes to Rs. 26,000/- and then applying the multiplier of 14 the total loss of income is assessed at Rs. 3,64,000/-. This apart, the amount of Rs. 20,000/- awarded by the Tribunal for pain and suffering appears to be on the lower side and is enhanced to Rs. 30,000/- whereas the amount of Rs. 57,000/- awarded for medical expenses appears to be just and proper and is left as it is. Tribunal has not awarded any amount for transportation, nutritional diet, attendant, loss of amentias and loss of expectation of life. This Court hereby holds him entitled for Rs. 15,000/- each for transportation, nutritional diet and attendant (totaling to Rs. 45,000/-) as well as Rs. 25,000/- for loss of amenities and Rs. 10,000/- for expectation of life. Total amount thus awarded under the conventional heads comes to Rs. 1,67,000/-. Since the Tribunal has already awarded a sum of Rs. 2,23,000/- the same is required to be deducted and after doing so the enhanced sum for which the claimant is entitled comes to Rs. 08,000/-. This enhanced amount shall carry interest at the rate of 6% per annum.

Appeal of the claimant is thus partly allowed with the aforesaid modification in the award impugned.

So far as the cross appeal preferred by the insurance company is concerned, the same is hopelessly barred by limitation and no satisfactory explanation for the same has been offered by it. The ground taken in the cross appeal by the insurance company that while discharging the claimant from the hospital the doctor had stated that he was in a better position and therefore cannot-be termed as permanently disabled to the extent of 65%, is really shocking. If any person under treatment is discharged from the hospital, obviously the doctor would say like this unless he is referring the patient to some other medical centre or hospital for further treatment. Conclusion of the insurance company that while discharging the appellant/claimant the doctor has used such words, permanent disability to the extent of 65% has not been proved by the appellant is beyond comprehension of this Court. True it is that it is the right of the insurance company to file the cross appeal but such right should not be exercised in air and there must be some basis for it that too keeping in mind the point of limitation. Such random choice at the instance of insurance company cannot be appreciated by any Court. That being the position, the cross appeal preferred by the insurance company has no substance and the same is accordingly dismissed. There would be a litigation cost of Rs. 5,000/- payable to the appellant/claimant.