AI Structured Summary
Not yet generated for this judgment
Judgment
In the above-captioned two appeals, challenge is to impugned Award of 16th August, 2012 vide which compensation of Rs. 6,09,700/- with interest @ 9% per annum has been granted to Claimant-Jai Ram on account of injuries sustained by him in road accident on 15th June, 2007. 2. In the above-captioned first appeal, Insurer seeks exoneration and in the alternate, recovery rights against driver and owner of truck in question, as well as reduction of quantum of compensation granted. Whereas in above-captioned second appeal, Claimant seeks enhancement of compensation. With the consent of learned counsel for the parties, above captioned two appeals have been heard together and they are being disposed of by this common judgment. 3. As per orders of 30th July, 2013 and 5th September, 2013, service is complete in these two appeals, but none has appeared on behalf of owner and driver of truck in question. 4. The facts are already noted in the impugned Award and so need no reproduction. Suffice to note that there is evidence of an official (R3W1) of Insurer, who has deposed that driver of truck in question was not holding a valid driving licence on day of accident in question and he had so deposed on the basis of Verification Report [Ex.R3W1/8 (colly)] which has been placed on record by Insurer''s Investigator. It is relevant to note that driver and owner of truck in question had not led any evidence before learned Tribunal and on the basis of evidence led by the parties, impugned Award has been rendered. Breakup of compensation awarded by learned Tribunal is as under:-
Sr. No. Head Amount
1 Medical Expenses Rs.10,000/-
2 Pain & Sufferings & Enjoyment of Life Rs.30,000/-
3 Special Diet, Attendant charges & Conveyance Charges Rs.25,000/-
4 Loss of Income Rs.21,100/-
5 Loss of Income on Account of Permanent Disability Rs.4,93,700/-
6 Loss of Amenities Rs.30,000/-
Total Rs.6,09,700/-
Learned counsel for Insurer submits that as per Investigator''s report, driving licence of truck driver has been found fake and so, Insurer is not liable to pay awarded amount. It is submitted by learned counsel for Insurer that quantum of compensation granted is just and fair and no case for its enhancement is made out. 6. On the contrary, it is submitted by Claimant''s counsel that Claimant-injured was aged 20 years only on day of accident and as per medical evidence on record, he had suffered 75% permanent disability in relation to his lower limbs in accident in question and remains unemployed after this accident. 7. It is also pointed out by learned counsel for Claimant that Claimant cannot undertake his day-to-day activities without assistance of an attendant and the aspect of recurring attendant charges has not been considered in impugned Award. It is further submitted by learned counsel for Claimant that Claimant''s enjoyment of life is severely compromised and no compensation under the head of ''loss of marriage prospects'' has been granted. Compensation of Rs. 1 lac under this head is claimed by Claimant in his appeal. It is next submitted by learned counsel for Claimant that compensation of Rs.30,000/- under the head of ''loss of enjoyment of life'' is wholly inadequate. Lastly, it is submitted by learned counsel for Claimant that functional disability has been erroneously assessed at 50% whereas it should be taken to be 100 % and so compensation awarded needs to be suitably enhanced. Nothing else is urged by either side. 8. Upon hearing and on perusal of evidence on record and the impugned Award, I find that Insurer neither got its Investigator examined nor has produced any witness from the licensing authority to show that the driving licence of truck driver in question was fake. During the course of hearing, learned counsel for Insurer had sought to draw attention of this Court to summons issued to concerned licensing authority. This by itself is not enough. Even if, the concerned licensing authority is served and nobody has appeared on its behalf then in such a situation, Insurer is not left without remedy. Coercive steps to obtain presence of witness from licencing authority ought to have been sought, which has not been done. So, there is no basis to conclude that truck driver''s driving licence was fake. Thus, Insurer is liable to pay awarded compensation. 9. Regarding quantum of compensation granted, I find that there is no medical evidence on record to substantiate Claimant''s plea of 100 % permanent disability. It is evident from Disability Certificate that permanent disability is of 75%. Meaning thereby, there is strength of 25% in his lower limbs. No doubt, it has come in evidence that Claimant cannot walk on his own and is on wheelchair, but this by itself cannot be the basis to conclude that Claimant has suffered 100% permanent disability. 10. In a case of 70% permanent disability of lower limbs, Supreme Court in Sandeep Khanuja v. Atul Dande, 2017 SCC online SC 88, has treated it to be functional disability of 70% only and medical and transport expenses have been clubbed together and compensation of Rs. 3,10,227 has been granted under this head. Considering the fact that Claimant is already on wheelchair, his travelling expenses have to commensurate with 75% disability of lower limbs suffered by him. There is unchallenged evidence of Claimant, which speaks for itself and reads as under:- "That still as on date the deponent is on wheelchair because due to breakage of nervous of back bone, there is no possibility of any force in his legs and thus the deponent shall have to take help of an attendant for his whole life. It is very necessary to mention here that for going to any place, the deponent cannot use public conveyance but always has to hire the three wheeler auto rickshaw which is also a very costly affair." 11. In face of above referred unchallenged evidence, the functional disability is taken as 75% and not as 50%. In the face of Supreme Court''s decision in Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 grant of compensation towards future prospects to claimant, who was not in permanent employment is unjustified. After excluding addition of 30% towards ''future prospects'', ''loss of earning capacity'' is worked out as under: - "Rs.3,516 X 12 X 18 X 3 = Rs.5,69,592/- (rounded off to Rs. 5,70,000/-). 12. Under the head of ''loss of amenities/enjoyment of life'', compensation is reassessed as Rs. 1 lac and under the head of ''Travelling expenses'', compensation of Rs.1 lac is granted. Thus, enhanced compensation payable is as under:-
Sl.No. Head Amount
1 Loss of Income on account of permanent disability Rs.5,70,000/-
2 Loss of amenities/pain and suffering/enjoyment of life Rs.1,00,000/-
3 Loss of marriage prospects Rs.1,00,000/-
4 Medical expenses Rs.10,000/-
5 Loss of income Rs.21,100/-
6 Travelling expenses Rs.1,00,000/-
7 Special diet etc. Rs.25,000/-
Total Rs.9,26,100/-
Consequently, the enhanced compensation of Rs.9,26,100-Rs.6,09,700 = Rs.3,16,400/- would carry interest @ 7.5 % per annum from the date of filing of claim-petition till the date of deposit. Insurer is granted four weeks'' time to directly transmit the enhanced compensation into bank account of Claimant after supply of bank details within a week from today. Statutory deposit, if any, be refunded to Insurer as per Rules. 14. Impugned Award is accordingly modified and both the appeals and the application are disposed of. Appeals disposed of.