Shriram General Insurance Company Ltd. vs Sumerram and Others

Arun Bhansali, J.—This appeal u/s 173 of the Motor Vehicles Act, 1988 (''the Act'') has been filed by the appellant-insurance company aggrieved by the judgment and award dated 21.1.2013 passed by the Motor Accident Claims Tribunal, Balotra (''the Tribunal''), whereby the respondent No. 1- Sumerram (claimant) has been awarded a sum of Rs. 5,51,130/- as compensation alongwith interest @ 6% p.a. from the date of filing of the claim application. The brief facts of the case are that the respondent No. 1-claimant was travelling from Dhawa to Doli on 2.8.2011 post mid-night at about 2:00 a.m. alongwith one Kanhaiyalal on a motor-cycle, when a truck No. RJ-19-GA-8528 came from the opposite direction and was allegedly being driven rashly and negligently by respondent No. 2 Oma Ram, collided with the motor-cycle, which resulted in serious injuries to the occupants of the motor-cycle. The right leg of claimant Sumerram was amputated from under his knee during the course of treatment.

An application seeking compensation to the tune of Rs. 45,90,000/- was filed by the claimant before the Tribunal.

A reply was filed by the owner and driver of the vehicle denying the averments contained in the said application. A reply was also filed by the appellant-insurance company separately denying contents of the application for compensation besides denying the fact of accident, taking standard objections like absence of driving licence with the driver of the truck and driving the same without valid permit and fitness.

The Tribunal framed three issues. The claimant was examined as AW-1 and he exhibited 63 documents. No evidence was led by the driver, owner and insurer.

After hearing the parties, the learned Tribunal came to the conclusion that the truck was being driven rashly and negligently by driver Oma Ram, which resulted in the accident causing simple and grievous injuries to the claimant Sumerram. The Tribunal also rejected the plea raised by the insurance company about non-involvement of the vehicle.

On the issue relating to grant of compensation to the claimant, the Tribunal noticing that the right leg of the claimant was amputated from below his knee and on considering the medical certificate Ex-53A issued by the Mahatma Gandhi Hospital, Jodhpur indicating disability of the claimant to the extent of 35%, while taking the monthly income of the claimant at Rs. 6,000/- took the loss of income at Rs. 25,200/- p.a. and after applying a multiplier of 18, awarded a sum of Rs. 4,53,600/- towards loss of income, Rs. 10,000/- for additional diet and mental stress, Rs. 5,000/- towards conveyance charges, Rs. 27,530/- towards medical expenses and Rs. 55,000/- towards hospital expenses, in all a sum of Rs. 5,51,130/- alongwith interest @ 6% p.a. from the date of application.

It is submitted by learned counsel for the appellant that the claimant had failed to place any proof regarding the income as claimed and the learned Tribunal was not justified in awarding the impugned sum. It was further submitted that in view of the principles laid down by the Hon''ble Supreme Court in Raj Kumar Vs. Ajay Kumar and Another, the amount awarded by the learned Tribunal is excessive.

I have considered the submissions made by learned counsel for the appellant and has perused the award impugned.

It is an admitted position that the claimant examined himself and was put to cross-examination, however, no evidence whatsoever was led by the respondents on any of the issues framed by the Claims Tribunal. The fact that right leg of the claimant from below the knee was amputated on account of the injuries suffered by him in the accident is also not in dispute. The specific case of the claimant was that he was working as a tractor driver and he also produced a driving licence Ex.-57A. Further a certificate issued by the Government Hospital indicating 35% disability was also placed on record. The claimant claimed monthly income of Rs. 6,000/- while working as tractor driver, which amount, it cannot be said, was excessive and there was no reason for the Claims Tribunal to disbelieve the version of the claimant in absence of any material cross-examination. Further in a case of driver, whose leg from below the knee has been amputated cannot be said to be in a position to even continue to work as a driver, therefore, even taking the disability at 35% in such case cannot be said to be incorrect.

The Hon''ble Supreme Court in the case of Raj Kumar (supra) has observed thus:

Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.

(Emphasis supplied)

The example indicated by the Hon''ble Supreme Court in para 14 (supra) clearly takes care of the present case where in fact, the disability would be far more than what was assessed by way of disability certificate by the concerned hospital keeping in view that the claimant is a driver.

Be that as it may, in view of the above facts and law laid down by the Hon''ble Supreme Court this Court finds no reason to interfere with the award as the same is just and proper in the facts and circumstances. Consequently, the appeal has no substance and the same is, therefore, dismissed. The stay application also stands dismissed.