ORIENTAL INSURANCE CO. LTD. vs BALAK RAM AND OTHERS

The Oriental Insurance Company Limited is an appeal against the award dated 30.05.2017 passed by the Motor Accident Claims Tribunal, Jammu

(hereinafter called as “the Tribunalâ€​) in claim petition No.247 titled Balak Ram v. Prem Kumar and others.

Briefly stated, the facts leading to the filing of this appeal are that respondent No.1 sustained injury in a motor vehicular accident which occurred on

17.01.2014 at Satwari Bridge, Jammu on account of rash and negligent driving of the offending vehicle bearing Regd. No.JK02P-5069 by the

respondent No.2. Since the vehicle was insured with the appellant-Company, as such, claim was lodged against the Insurance Company by impleading

driver and owner as also party respondents before the Tribunal. On being put to notice, the appellant-Company filed objections. On the basis of the

pleadings of the parties, the Tribunal framed the following issues:-

 “1. Whether an accident took place on 17.01.2014 at Satwari Bridge Jammu involving offending vehicle bearing registration no.JK02P5069 as

a result of which petitioner Balak Ram received grievous injuries and has been disabled? OPP

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

Whether there was any violation of terms and conditions of insurance policy with respect to the vehicle no.JK02P-5069 on the date of occurrence,

if yes, what is its effect? OPR-3

Relief? OP.Partiesâ€​

Parties led their evidence and on appreciation whereof the Tribunal awarded the following amount of compensation:-

Loss of future income = Rs. 3,68,082/-

Expenditure of attendants = Rs.20,000/-

Pain and sufferings =Rs.30,000/-

Loss of amenities and pleasure=Rs.25,000/-

Expenses on medicine = Rs. 2,10,960/-

Special diet =Rs.l0,000/-

Fare vehicle =Rs.20,000/-

Total       =    Rs.6,84,042/-

In the appeal, the appellant has assailed the award of the Tribunal primarily on the ground that the respondent No.1 was working as a daily wager

with the Boarder Road Organization (GREF) and that there was no evidence brought on record to show that in view of the injury sustained by him he

has been ousted from the job. It is, thus, pleaded by the appellant that in the absence of any evidence on the aforesaid aspect, the Tribunal was not

justified to work out loss of future income that too in the manner it has been done by the Tribunal.

Learned counsel for the appellant has further submitted that since the respondent No.1 was in private employment, as such, going by his age which

was 48 years at the time of accident, loss of future earning should have been computed @ 25% and not 33% as has been done by the Tribunal.

Per contra, learned counsel appearing for the respondent No.1 submits that award of the Tribunal is perfectly valid and is based on the evidence

that was led by the respondent No.1 in the claim petition. It is stated that at the time of accident respondent No.1 was working as daily wager with

Border Roads Organization (GREF) and was earning Rs.5,500/- per month. It is stated by the learned counsel for the respondent No.1 that the

employment of the petitioner as daily wager is temporary and because of the injury sustained by him in the accident, his earning capacity has been

impaired to the extent of 33%. He, therefore, supports the award.

Having heard the learned counsel for the parties and perused the record, it is seen that respondent No.1 at the time of accident was working as

daily wager and was in private employment of the Border Roads Organization (GREF) and was earning a sum of Rs.5,500/- per month. Because of

the injury sustained he has suffered disability to the extent of 33% which would necessarily impair his earning capacity to the aforesaid extent.

Keeping in view the nature of job which is required to be performed by a daily wager lower limb plays an important role and any disability suffered in

the aforesaid limb would definitely impair the earning capacity of such person. Therefore, I am not persuaded to agree with the argument of learned

counsel for the appellant that the disability of 33% suffered by the respondent No.1 would not necessarily impair his earning capacity by 33%. The

argument made in this regard is, therefore, rejected.

Coming to the contention of the learned counsel for the appellant that at the time of accident respondent No.1 was 48 years of age and was in

private employment, the future prospects should have been added @ 25% and not @ 30% as has been done by the Tribunal. I find substance in the

submission of learned counsel for the appellant. In terms of the judgment rendered by the Supreme Court in the case of National Insurance Co. Ltd. v.

Pranay Sethi and others; 2017 ACJ 2700 keeping in view the age of the claimant/respondent No.1 at the time of accident, 25% should be added

towards future prospects. Taking the monthly income of the claimant at Rs.5,500/-, loss of earning capacity @ 33% and adding 25% towards future

prospects, annual loss of earning capacity would come to Rs. 27,225/-. Adopting the multiplier of 13, the total loss of future earning comes to

Rs.3,53,925/-. Rest of the award of the Tribunal is upheld. Accordingly, the award impugned is modified and the claimant is held entitled to following

amount of compensation:-

           1. Loss of future income = Rs.

       3,53,925/-

Expenditure of attendants =

Rs.20,000/-

            3. Pain and sufferings =Rs.30,000/-

          Â

Loss of amenities and pleasure =Rs.25,000/-

            5. Expenses on medicine = Rs.

       2,10,960/-

            6. Special diet =Rs.l0,000/-

                      Â

           7. Fare of vehicle =Rs.20,000/-

                Â

Â

                        =

Total             Rs.6,69,885/-

            Â

Registry shall release the amount in favour of the claimant/respondent No.1 in terms of the modified award after proper identification and excess, if

any, be refunded back to the appellant-Company.