MISC APPEAL No 470 of 2006
1 Baghel Badoi
2 Sushant Chakravarty
3 Rajendra Kumar
4 Branch Manager Oriental Insurance Company Limited ...Respondents
! Shri Goutam Bhaduri and Shri SSRajput counsel for the appellants ^ Shri Ashish Beck counsel for respondent No 4 CORAM: Hon Shri Rajeev Gupta CJ & Hon Shri NK Agarwal J Dated: 02/12/2011
Passed on 02122011
APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT AS AMENDED BY ACT OF 1994 Per N.K. Agarwal, J.
This is claimant's appeal for enhancement of compensation awarded by the Additional Motor Accidents Claims Tribunal, Dhamtari Civil Dist. Raipur (for short `the Tribunal') in Claim Case No.251/2005 vide its award dated 15th February, 2006.
2. As against compensation of Rs.21,00,000/- claimed by the appellant/claimant - Khemlal by filing claim application under Section 166 of the Motor Vehicles Act, 1988 (henceforth `the Act') for the injuries sustained in the motor accident on 09.12.2003, the Tribunal has awarded a total sum of Rs.2,71,750/- as compensation along with interest @ 6% per annum.
3. The Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to rash and negligent driving of Matador bearing registration No.C.G. 04-A/8027 by its driver Baghel Badoi/respondent No.1; appellant/claimant sustained multiple injuries in the said accident resulting in permanent disability to the extent of 85%; respondent No.4/the Oriental Insurance Company liable for payment of compensation as it could not establish violation of policy conditions; assessed awarded Rs.2,71,750/- as compensation to the claimant along with interest at 6% per annum.
4. Shri Goutam Bhaduri and Shri S.S.Rajput, learned counsel appearing for the appellant would submit: the Tribunal has erred in disbelieving the income of the appellant; in not assessing loss of earning capacity of the appellant as 100%; in awarding Rs.45,000/- only for medical expenses and Rs.10,000/- only for pain and mental agony and thus has fallen in error in awarding low amount of compensation of Rs.2,71,750/- only.
5. On the other hand, Shri Ashish Beck, learned counsel appearing for respondent No.3 - insurance company supported the award and submitted: in the facts and circumstances of the present case, the amount of compensation awarded by the Tribunal is just and proper compensation which does not call for any interference.
6. We have heard learned counsel for the parties and have perused the record of the Tribunal including the award impugned.
7. Indisputably, the appellant sustained multiple injuries including fracture on dorsal bone and spinal cord injury, on account of which, both of his lower limbs were crippled and he became paraplegic. Although as per the doctors' evidence, his permanent disability is to the extent of 85% but admittedly due to above injury/permanent disability, the appellant/claimant became unable to use his both lower limbs throughout his life, unable to sit for a long period and also unable to perform his job.
8. The Supreme Court, in the matter of Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, has held, in most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability and observed in paragraph 10 as under:
"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation."
9. By applying the ratio of law laid down by the Supreme Court in the case referred hereinabove, in the facts and circumstances, it would be amply clear that though the physical permanent disability of the appellant is 85% but his loss of earning capacity is 100% and the Tribunal has erred in calculating the amount of compensation by taking into consideration the appellant's loss of earning capacity to the extent of 85% only. 10 The claimant pleaded that he was earning Rs.4,000/- per month by working as mechanic in Ashish Electonics, Dhamtari, but failed to substantiate the same by leading cogent and clinching evidence in this regard. Therefore,, we do not find any infirmity in the approach of the Tribunal in discarding the above plea raised by the appellant/claimant in the claim petition.
11. Nevertheless, the Tribunal has wrongly assessed the income of the appellant as Rs.15,000/- per annum on the basis of notional income prescribed in Second Schedule to Section 163-A of the Act. In our opinion, in the facts and circumstances of the case, the appellant could have easily earned Rs.1500/- per month and Rs.18000/- in the year 2003, i.e. the year of accident. Therefore, we propose to re-compute the amount of compensation by taking into consideration the notional income of the appellant/claimant at Rs.18,000/- per annum and by taking his loss earning capacity as 100%.
12. The appellant was aged about 24 years at the time of accident. Multiplier of 18 would be appropriate in view of the judgment of Supreme Court in the case of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 wherein multiplier of 18 has been prescribed for the age group between 21 to 25 years.
13. By multiplying the claimant's annual loss of earning capacity of Rs.18,000/- with the multiplier of 18, the amount of compensation towards claimant's loss of earning capacity works out to Rs.3,24,000/-.
14. Besides, the appellant/claimant is also entitled for Rs.45,000/- towards medical expenses as awarded by the Tribunal, Rs.20,000/- towards pain and suffering instead of Rs.10,000/- awarded by the Tribunal, Rs.20,000/- towards attendant, Rs.5,000/- for special diet and Rs.5,000/- for conveyance and thus he is entitled for Rs.4,09,000/- as compensation for the injuries sustained by him in the said accident.
15. Appellant is further awarded Rs.22,750/- as quantified interest on the enhanced amount of compensation.
16. For the foregoing, the appeal is allowed in part. The appellant is further awarded Rs.1,70,000/- (Rs.1,47,250/- towards enhanced amount + Rs.22,750/- towards quantified interest on the enhanced amount of Rs.1,47,250/-), over and above the amount of compensation of Rs.2,71,750/- awarded by the Tribunal. The award is modified to the above extent. Rest of the conditions of the award shall remain intact.
17. The insurance company / respondent No.4 is granted three months' time to deposit the aforesaid amount before the concerned Claims Tribunal.
18. No order as to costs.Chief Justice