Rajeev Nayan vs Sher Mohammed and Others

Kailash Gambhir, J.—By way of the present appeal the appellant seeks to challenge the impugned Award dated 11th December, 2006 so as to claim enhancement in the compensation amount over and above the amount of Rs. 9,23,310/- awarded by the Tribunal.

Brief summary of the facts of the present case are:

The appellant along with his friend was going to Haridwar by motor cycle bearing registration No. RJ-02 6M-6290 and when they reached at Kalu Sidh, a truck bearing registration No. UHQ-0387 came in a rash and negligent manner and hit the motor cycle, due to which they fell down on the road and sustained grievous injuries. The right leg of the appellant was amputated due to the accident and he also sustained other multiple injuries on his entire body. The appellant was taken to a nearby hospital from the spot of accident and thereafter he was referred to AIIMS hospital.

Mr. S.N. Parashar counsel appearing for the appellant contended that the Tribunal wrongly applied the multiplier of 13, which should have been 17 as per the Second Schedule of the Motor Vehicles Act. The contention of the counsel for the appellant is that the appellant was of 32 years of age on the relevant date of the accident and, therefore, applicable multiplier under the Second Schedule of the Motor Vehicles Act is 17 and not 13. Counsel for the appellant further contended that the appellant has suffered permanent disability to the extent of 85%, but the Tribunal has not awarded any compensation for the future loss and towards future medical treatment. The contention of the counsel for the appellant was that the appellant was working as construction supervisor at the time of his accident and he was earning a sum of Rs. 6,000/- per month and due to the amputation of his right leg the appellant became totally incapacitated to perform his job of construction supervisor. Counsel thus contended that the financial disability of the appellant is 100% as far as his job is concerned and he would have earned much more income in the near future, had the said tragedy not occurred to him. Counsel for the appellant further contended that the Tribunal has awarded very meager amount of compensation under non-pecuniary damages i.e. only a sum of Rs. 50,000/-. Counsel for the appellant placed reliance on the judgment of this Court reported in Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal and Others, , wherein this Court in similar circumstance of claimant suffering permanent disability to the extent of 60% due to the amputation of leg has granted Rs. 2,50,000/- under the head of non-pecuniary damages.

Per contra Mr. A.K. De, counsel appearing for the respondent vehemently refuted the submissions made by the counsel for the appellant. Mr. De submitted that the Tribunal has been very liberal in its approach to award compensation in favour of the appellant and therefore, he submitted that no fault can be found with the findings given by the Tribunal. Counsel for the respondent further contended that even in the absence of any evidence placed by the appellant with regard to the future loss of income, the Tribunal has been quite considerate to award a sum of Rs. 50,000/- under the head of non-pecuniary damages. Even Award of Rs. 7,95,000/- awarded by the Tribunal towards loss of earning capacity due to the said permanent disability is quite on the higher side. Counsel for the respondent thus submitted that this Court may not interfere in the compensation amount awarded by the Tribunal, which can not be considered either as unjust or unfair.

I have heard learned Counsel for the parties and perused the record.

Perusal of award shows that the appellant injured suffered disability to the extent of 85% as the leg of the petitioner was amputated from above the knee. The appellant injured was over 50 years of age on the relevant date of accident and his monthly income has been assessed at Rs. 6,000/- which he was found earning on his post of Construction Supervisor. The Tribunal has applied multiplier of 13 instead of 17 after placing reliance on the judgment of Supreme Court in U.P. State Road Transport Corporation Vs. Krishna Bala and Others, . The facts in UPSRTC case were different from the facts of the present case as the case before the Supreme Court involved death of a male person of 36 years of age while in the present case, permanent disability of the appellant is involved. This Court is of consistent view that the Tribunals should not normally deviate from the multiplier as given in the IInd Schedule of the Motor Vehicles Act and if in a given case deviation has to be made then reasons for the said deviation need to be spelt out. It is also settled legal position that observations of the Supreme Court are not applicable as Euclid''s theorem as the ratio of a particular judgment of the Supreme Court has to be applied considering the similarity of facts. Therefore, reliance on a particular decision can only be placed after discussing as to how the factual situation of a particular case of the High Court or of the Apex Court are similar to the factual situation of the case under consideration. The applicability of multiplier of 13 by the Tribunal does not appear to be justified, and therefore, the multiplier as laid down in the IInd Schedule of the Act for the age group of the appellant injured i.e. 17 is applied.

Coming to the second contention of learned Counsel for the appellant that the Tribunal has awarded a meager amount of Rs. 50,000/- under the non pecuniary damages, I find there is some merit in the submission made by counsel for the appellant. In the judgment relied upon by the counsel for the appellant Vijay Kumar Mittal and Ors. (Supra), this Court in similar facts of amputation of leg resulting into permanent disability of 60%, has granted non pecuniary damages in the sum of Rs. 2,50,000/-.

In the present case, the Tribunal has awarded Rs. 60,000/- towards pain and sufferings and Rs. 50,000/- towards loss of amenities of life but no separate amount has been awarded for suffering permanent disability. Agreeing with the decision of this Court in Oriental Insurance Co. Ltd v. Vijay Kumar Mittal and Ors. I am of the view that compensation granted by the Tribunal under non pecuniary damages can be enhanced from Rs. 1,10,000/- to Rs. 2,50,000/-.

As regards the contention of learned Counsel for the appellant that the Tribunal has not granted any compensation for future earnings of the appellant, I find that there is no merit in the submission of learned Counsel for the appellant as the Tribunal has already taken into consideration future earnings of the appellant injured for a period of 13 years which in view of the aforesaid discussion would be now 17 years and has taken into account almost the total loss of income during this period. Even otherwise, the appellant has not placed any evidence with regard to his deprivation of future income. The submission made by the counsel for the appellant on this aspect is repelled. The impugned award is thus modified to the extent of raising multiplier of 13 to 17 and non pecuniary damages of Rs. 1,10,000/- to Rs. 2,50,000/-.

The differential amount shall be paid by the respondent insurance company with up to date interest from the date of filing the petition till final payment at the rate of 7% per annum.

With these directions the appeal is disposed of.