Vishal Singh vs Shailendra Singh and Others

S.K. Gangele, J.—The appellant has filed this appeal u/s 173 of the Motor Vehicles Act, 1988 against the award dated 23.12.2003, passed by the First Additional Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 47 of 2002.

The appellant had been working as driver of a truck bearing registration No. MP09-KA 2751. On 15.11.2000, when he was driving the truck and coming from Indore to Mugawali, another truck bearing registration No. HR 38-E 5921, driven rashly and negligently, dashed against the truck of the appellant. In the aforesaid accident the appellant received serious injuries. The report of the accident was lodged at the Police Station, Dharnawada and a criminal case vide Crime No. 209/ 2000 was also registered. The appellant was treated various times at J.A. Hospital, Gwalior, ultimately his right leg above knee level was amputated. The appellant filed a claim application claiming total compensation of Rs. 11,00,000.

Learned Tribunal has held that the accident occurred due to rash and negligent driving of the driver of offending truck, hence, respondents are liable for payment of compensation. Tribunal further fixed the income of the appellant at Rs. 3,000 per month and awarded a total compensation of Rs. 3,00,000 on all the heads.

Mr. Mahesh Haswani, learned Counsel for the appellant has submitted that less compensation has been awarded by the Claims Tribunal in favour of the appellant. The Tribunal has not considered the loss of income and disability of the appellant properly. Neither it has awarded compensation on other heads including pain and suffering. In support of his contentions, learned Counsel relied on the following judgments:

(i) Pratap Narain Singh Deo v. Shrinivas Sabata 1976 ACJ 141 (SC).

(ii) Oriental Insurance Company Vs. Mani Ram and Another,

Contrary to this, Mr. B.N. Malhotra, learned Counsel for the insurance company and Mr. O.P. Mathur, learned Counsel for the respondent No. 2 have submitted that a proper compensation has been awarded to the appellant looking to the nature of the injuries. Hence, the appeal deserves to be dismissed. In support of his contention, learned Counsel for the insurance company relied on a judgment of the Supreme Court in the case of Sunil Kumar Vs. Ram Singh Gaud and Others, and in the case of Ramprasad Balmiki Vs. Anil Kumar Jain and Others,

Undisputed facts of the case are that the appellant suffered injuries in an accident occurred due to rash and negligent driving of the driver of the offending vehicle bearing registration No. HR 38-E 5921. The vehicle was insured at the relevant time by the respondent No. 3 insurance company. In such circumstances, in my opinion, the finding of the Tribunal that the respondents are liable for payment of compensation is as per law.

The Tribunal has fixed the age of the appellant as 35 years which is based on the pleadings and evidence on record. In such circumstances, in my opinion, there is no illegality in fixing the age of appellant as 35. It is an admitted fact that the accident occurred when appellant was driving the truck. In such circumstances, the finding of the Tribunal that appellant was driver by profession when the accident occurred is as per law. Tribunal also fixed income of the appellant at Rs. 3,000 per month, that in my opinion, is just and proper.

With regard to loss of earnings to the appellant and right of the appellant to receive compensation on different heads, as per the evidence of Dr. Sameer Gupta, who was working at the relevant time as the Assistant Professor, Orthopaedic, the appellant was admitted on 24.11.2000 at J.A. Hospital, Gwalior. He had received serious injuries on his right thigh which he sustained in the accident, occurred on 15.11.2000. On 7.12.2000 an operation of right thigh of the appellant was performed and a rod was inserted. The operation was not successful and there was a gangrene in the right leg. Thereafter again another operation was performed on 21.12.2000. On 26.12.2000 further operation was performed and his leg above knee level was amputated. Thereafter the appellant was discharged on 19.2.2001. He was again admitted in the hospital on 20.6.2001 and another operation was performed. The rod was removed and he was discharged on 25.6.2001.

It has further been stated that near about five operations had been performed on the appellant and appellant incurred the expenses of medicines and other materials for the operations. Blood was also given to the appellant. Looking to the nature and duration of treatment of the appellant and the fact that five operations were performed, in my opinion, it would be just and proper to award an amount of Rs. 50,000 to the appellant for medical expenses.

It is an admitted fact that the right leg of the appellant above knee level was amputated. Appellant was a driver. There is total disability to the appellant. As per the Second Schedule to the Motor Vehicles Act, u/s 163-A of Motor Vehicles Act, disability in non-fatal accidents as per Clause 5 shall be in accordance with the percentage of loss of earning capacity as per Schedule I of Workmen''s Compensation Act, 1923. Section 4 of the Workmen''s Compensation Act, 1923 provides amount of compensation and Section 4(1)(b) prescribes that where permanent disability results from the total injuries, the amount equal to 60 per cent of the monthly wages of the injured workman should be counted for compensation. The relevant portion is as under:

Amount of compensation.--(1)....

(b) Where an amount equal to permanent sixty per cent of total disable- the monthly wages ment results of the injured work- from the injury man multiplied by the relevant factor; or an amount of ninety thousand rupees, whichever is more;

The income of the appellant has been fixed as Rs. 3,000 per month, hence, the total income comes to Rs. 36,000 per year.

Hon''ble Supreme Court in the case of Sunil Kumar Vs. Ram Singh Gaud and Others, has fixed the compensation after calculating the loss of income in the case of Motor Vehicles Act and held as under:

(9) Taking into consideration the present income of the appellant as Rs. 4,000 per month and the permanent disability of 45 per cent suffered by him, we are of the view that the capacity of appellant to earn in future would be reduced by Rs. 1,800 per month approximately. If 1/3rd is deducted towards the miscellaneous expenses, the loss of income comes to Rs. 1,200 per month which, in turn, comes to Rs. 14,400 per annum. Appellant was 29 years of age at the time of accident. Taking the multiplier to be 18 (as per the Second Schedule to Section 163-A of the Act), the total loss of income comes to Rs. 2,59,200.

Applying the above principle of law as applied by Hon''ble Supreme Court, in my opinion, it would be just and proper to deduct 1/3rd towards the miscellaneous expenses. Hence, in that circumstances the loss of income comes to Rs. 24,000 per annum. The age of the appellant has been fixed as 35 years. Hence, as per the Second Schedule to the Motor Vehicles Act, the multiplier of 16 will be applicable, thus the total loss of income comes to Rs. 3,84,000. As held earlier, the appellant is entitled to Rs. 50,000 for medical expenses. Looking to the nature of the injuries and the fact that the appellant was under treatment for near about one year and he has undergone near about five operations, in my opinion, it would be just and proper to award another Rs. 50,000 to the appellant for pain and suffering. The appellant could not work for a period of one year completely when he was under treatment, hence, there was a loss of monetary income to the appellant for a period of one year which comes to Rs. 36,000. After calculating all the heads, in my opinion, the appellant is entitled to total compensation of Rs. 5,20,000.

This Court has taken into consideration of the applicability of the judgment of the Hon''ble Supreme Court passed in the case of Sunil Kumar Vs. Ram Singh Gaud and Others, As per the principle of law laid down by the Hon''ble Apex Court in the case of Punjab National Bank Vs. R.L. Vaid and Others, , where the Hon''ble Apex Court has held as under with regard to applicability of the law laid down by the law courts. The relevant portion is as under:

(5) We find that the High Court has merely referred to the decision in R.K. Jain''s case (supra) without even indicating as to applicability of the said decision and as to how it has any relevance to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in treating the words of a judgment as though they are words in a legislative enactment and it is to be remembered that the judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning, MR while speaking in the matter of applying precedents. The impugned order is certainly vague.

Consequently, the appeal of the appellant is allowed to the extent that the appellant will get a total compensation of Rs. 5,20,000 (rupees five lakh and twenty thousand). Claims Tribunal has granted Rs. 3,00,000. Hence, appellant will get the enhanced compensation of (Rs. 5,20,000 -Rs. 3,00,000) = Rs. 2,20,000. The enhanced amount shall carry an interest at the rate of 8 per cent per annum from the date of filing of the claim application before the Claims Tribunal up to its realization. Rest of the terms and conditions will be same as fixed by the Claims Tribunal.

Appeal is allowed to the extent as indicated above. No order as to costs.