Oriental Insurance Co. vs Rakesh Gupta and Others

Mansoor Ahmad Mir, J.—This Civil 1st Miscellaneous Appeal is directed against award dated 30.09.2004 passed by the Motor Accidents

Claims Tribunal, Jammu in Claim Petition No. 655 (Claims) titled Rakesh Gupta v. Joginder Kumar and Ors. whereunder an amount of Rs.

8,76,684/- with 9% interest per annum came to be awarded in favour of the claimant/respondent No. 1 on the grounds taken in the memo of

appeal.

Precisely, the point involved in this appeal is whether the Tribunal was right in awarding the compensation while holding that the injuries have

permanently affected the earning capacity of the injured. In order to return findings, it is necessary to give brief resume of the case hereunder.

Claimant/respondent No. 1 being victim of the accident filed a claim petition before the Motor Accidents Claims Tribunal, Jammu on 11th

February, 2000 for grant of compensation on the ground that Joginder Kumar, driver, was driving the offending vehicle (Truck) bearing registration

No. JKU/625 rashly and negligently on 11th November, 1999 near Bari Brahmana and caused the accident in which the petitioner sustained

injuries. He has claimed compensation to the tune of Rs. 8 lacs as per breakup in para No. 15 of the claim petition.

Respondent No. 3 appellant-insurer filed the reply. Respondent No. 3 contested the claim petition and following issues came to be framed:

Whether an accident took place on 11.11.1999 near Bari Brahmana due to rash and negligent driving of the offending vehicle No. JKU/625 by

its driver/respondent No. 1 in which the petitioner sustained injuries, if so of what nature? OPP

If issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation if so of what amount and from whom? OPP

Whether the driver of offending vehicle was not holding a valid driving licence at the time of accident? OPR 3

Relief. O.P. Parties.

Claimant besides himself examined Raman Gupta and Dr. M.K. Mam as witnesses in support of his case.

Appellant-insurer has not examined any witness in support of its defence. Thus, the evidence of the claimant has remained unrebutted.

It is apt to mention herein that appellant-insurer was permitted to contest the claim petition on all the grounds in terms of order passed in

application filed u/s 170 of the Motor Vehicles Act.

Learned Counsel for the appellant argued that Tribunal has wrongly held that the disability has affected earning capacity of the claimant to the

extent of 75%.

Learned Counsel for the appellant has not disputed the findings on other issues. Thus, in the given circumstances, findings of the Tribunal on

issue Nos. l and 3 are upheld.

Now coming to issue No. 2, it is proper to reproduce the relevant portion out of the statement of Doctor examined by the claimant herein.

...Cross questioned by the Counsel for insurer states that I have only examined the petitioner and assess the disability but the disability certificate

has been issued by my junior on my directions. Dr. Shalinder Sadiq is still working in GMC as Lecturer with my unit. We have guidelines for

assessing the disability which is a manual called For Doctors to Evaluate Permanent Physical Impairment issued by Expert Group Meeting on

Disability Evaluation and National Seminar on Disability Evaluation and Dissemination i.e. called AIIMS. The 41% disability has been assessed of

the particular limb. If 41% definitely reduce. It will be reduced to 15 to 20%. I am not concerning with billing section. I can say only on the basis of

copies of admission in hospital on original record. Billing office would be right person to prove these. Petitioner can do sitting job on a chair with

more legs space. Petitioner can do the job of a tea stall with some limitation.

While going through the evidence on record and the statement of Doctor (supra), one comes to the conclusion that at the best the claimant has

suffered 41% of disability which is permanent in nature. But how Learned Presiding Officer came to the conclusion that said disability has affected

75% of the earning capacity of the claimant is not forthcoming from the record and is best known to the Learned Presiding Officer. Doctor/Expert

has categorically stated that claimant can do sitting job on a chair with more legs space and he can also perform the job of a tea stall with some

difficulties/limitations/inconvenience.

Keeping in view the statement of the Doctor (supra) and the provisions of the Workmen's Compensation Act, 1923, it can safely be held that

the injuries in question at the best has affected the earning capacity of the claimant to the extent of 41% and not 75%. Tribunal has assessed the

income of the claimant at Rs. 5500/- per month. Claimant-respondent No. 1 has not disputed the same, accordingly, it is upheld. Claimant has lost

earning capacity to the extent of 41% meaning thereby that claimant has lost source of income to the extent of Rs. 2255/- per month. Claimant-

Respondent No. 1 claimed to be the age of 23 years at the time of accident and there is no rebuttal on behalf of appellant-insurer, accordingly, it is

held that the age of the claimant was 23 years at the time of accident.

While going through Schedule Second appended to the Motor Vehicles Act, 1988, multiplier 'seventeen' is applicable. However, Tribunal has

only applied/used multiplier of 'twelve'.

Keeping in view the age of the claimant and the statement of Doctor and other circumstances of the case, I deem it proper to apply multiplier

of 'fifteen'. Thus, the claimant is entitled to Rs. 2255 x 12 x 15 = Rs. 4,05,900/- under the head future income. It is apt to mention herein that

Learned Counsel for the appellant has not questioned the compensation granted under the heads treatment, special diet, pain and sufferings and

amenities of life.

The Tribunal has rightly awarded Rs. 1,62,684/- under the head cost of treatment, Rs. 30,000/- as Special Diet, Rs. 40,000/- under the head

pain and sufferings and Rs. 60,000/- under the head loss of amenities of life.

Keeping in view the above discussion, the claimant is entitled to Rs. 4,05,900/-, Rs. 1,62,684/-, Rs. 30,000/-, Rs. 40,000/-, and Rs. 60,000/-

under the heads income, treatment, special diet, pain and sufferings and loss of amenities of life, totaling Rs. 6,98,584/-, with 6% per annum

interest from the date of the impugned award i.e. 30,09.2004 till its realization.

Accordingly, appeal is allowed and impugned award is modified as indicated above.

Appeal along with all CMPs disposed of.