HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1737/2008
New India Insurance Company Ltd., Branch Office: Jhunjhunu,
through its Regional Office at Nehru Place, Tonk Road, Jaipur
----Defendant-Appellant
Versus
1. Satya Prakash S/o Rajendra Prasad, resident of Haripura,
Police Station Malsisar, District Jhunjhunu (Rajasthan)
----Claimant-Respondent
2. Raju Singh S/o Mahavir Prasad, resident of Ward No.1 Rajota Tehsil Kehtari District Jhunjhunu (Rajasthan)
----Jeep Driver-Respondent
3. Hari Ram S/o Mahavir Prasad, resident of Ward No.1 Rajota Tehsil Khetri District Jhunjhunu (Rajasthan)
----Power of Attorney holder of Jeep-Respondent
4. Laxmi Devi W/o Hari Ram Jangid, resident of Ward No.1 Rajota, Tehsil Khetri District Jhunjhunu (Rajasthan)
----Owner Jeep-Respondent
5. Vikram Singh S/o Ram Singh, resident of Tyonda, Tehsil Khetri District Jhunjhunu (Rajasthan)
----Owner Motor Cycle-Respondent
6. Bajaj Alliance General Insurance Co. Ltd., registered office G Plazma Airport Road, Yrwada, Pune-411006 (Maharashtra) Insurer of Motor Cycle
----Insurer Motor Cycle-Respondent For Appellant(s) : Mr. S.R. Joshi with Mr. Ganesh Joshi For Respondent(s) : Mr. S.K. Singodiya HON'BLE MR. JUSTICE BIRENDRA KUMAR Judgment reserved on : 01/04/2022 Date of Pronouncement : 13/04/2022
1. The appellant-New India Insurance Company Ltd. is insurer of the Jeep bearing registration No.RJ-21C-5056. The appellant has challenged the award dated 04.03.2008 passed by the Motor Accident Claims Tribunal, Khetri in Claim Case No.59/2006, by (Downloaded on 18/04/2022 at 08:35:10 PM) (2 of 8) [CMA-1737/2008] Additional District Judge, Khetri, whereby the learned Tribunal awarded Rs.7,97,850/- in favour of the injured-Satya Prakash, respondent No.1 herein along with 9% interest from the date of application.
2. Undisputed facts of the case are that on 25.05.2006, Satya Prakash was a pillion rider on the motorcycle being driven by Ajay Kumar Bhargava (A.W.2). Case of the claimant is that as soon as the motorcycle reached near Khetri Bus Stand, the rash and negligent Jeep above mentioned dashed against the motorcycle causing fracture of tibia and fibula on left leg. The injury resulted in permanent disability. For the accident aforesaid, FIR No.163/2006 was registered with Khetri Police Station. After investigation of the case, police submitted charge-sheet against the driver of above referred Jeep with the conclusion that the accident was as a result of rash and negligent driving of the jeep driver.
3. Two witnesses were produced by the claimant before the Tribunal besides several documentary evidences. No evidence was led by the defendants of the claim case. Appellant was one of the defendants.
4. The motor accident as well as insurance of the Jeep with the appellant is established by documentary evidence as exhibited on the record as FIR, charge-sheet and policy of insurance.
5. Mr. S.R. Joshi with Mr. Ganesh Joshi, learned counsel for the appellant challenges the award on the ground that due to injuries, there was no loss of salary to the claimant as he was a Government Employee and his disability did not lead him to leave the job or being demoted to some other post. Further contention is that the learned Tribunal has awarded compensation on (Downloaded on 18/04/2022 at 08:35:10 PM) (3 of 8) [CMA-1737/2008] assumption without any material to support the income of the claimant.
6. Claimant-Satya Prakash A.W.1 has specifically stated that at the time of accident, his monthly salary was Rs.12,341/-. The fact was not controverted during cross-examination of this witness. Ex.49 is the certificate issued by the Head Master of the school, where claimant was a Teacher. The certificate shows that the claimant was on medical leave for 74 days after the accident and in July, 2006 his salary was Rs.12,662/-. Since the finding of the Tribunal is based on evidence on record, it cannot be argued that the learned Tribunal awarded compensation under the head "loss of income" on mere assumption.
7. The learned Tribunal multiplied the monthly income of the claimant taking round-figure of Rs.12,000/- per month with multiplier of 12 months to get yearly loss of income and thereafter, calculated 30% of the same as loss of income due to permanent disability. Contention is that the learned Tribunal has gone against the decision of the Hon'ble Supreme Court in the case of Raj Kumar v. Ajay Kumar and anr. reported in (2011) 1 SCC 343, wherein the Hon'ble Supreme Court said that for assessing the future loss of earning due to permanent disability, the Tribunal/Court must be conscious that the criteria should not be the extent of permanent disability found by the medical reports, rather the assessment should be based on the basis of inability to the injured, which prevented him from doing the same vocation or from performing other vocations. The Medical Board of three doctors found that due to compound fracture, 1/4 of the left leg led to permanent disability of about 30%. (Downloaded on 18/04/2022 at 08:35:10 PM)
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8. The disability of a limb aforesaid did not affect the vocation of the claimant as a Teacher in Government School. Therefore, considering the settled principles referred above, the claimant was not affected by the disability aforesaid, as regards loss of income is concerned, however, the claimant has deposed that due to disability aforesaid, he feels incapacitated in normal walk, he cannot lift weights, after his retirement he was to pursue his agricultural activity but now he cannot do it. The disability has led him to lead a life of mental and physical pains and agony. He has been incapacitated to perform his social and family responsibility. He has to undergo further surgery for removal of the implants put by the doctors in the first surgery.
9. Learned counsel for the appellant has relied on the judgment of Hon'ble Supreme Court in the case of Rajesh Kumar v. Yudhvir Singh and anr. reported in (2008) ACJ 2131 for his submission that disability certificate was granted by the team of doctors which had no occasion to examine the injured at initial stage.
10. In Rajesh Kumar's case (supra), civil surgeon had issued the certificate and it was not established that civil surgeon was competent to issue the same. In the present case, the medical board of doctors had issued the certificate and the certificate was issued on 13.11.2006 after examining the injured and the finding is based on objective observations.
11. On these issues, the witness has not been confronted in the cross-examination rather the cross-examination is confined to the extent that there was no reason for getting no treatment in the Government Hospital rather preferring private hospital and further that a government servant is entitled for reimbursement of the (Downloaded on 18/04/2022 at 08:35:10 PM) (5 of 8) [CMA-1737/2008] medical expenses. This cannot be a ground to not award "just compensation" because a victim of motor accident injury always prefers better treatment of his choice and satisfaction.
12. Learned counsel for the appellant next contends that the site-plan of the accident would show that the accident took place at the mid of the road, hence contributory negligence of the motorcycle rider cannot be ruled out. The learned Tribunal has wrongly not apportioned for the contributory negligence of the motorcycle.
13. The evidence of A.W.2-Ajay Kumar Bhargava, who was eye- witness of the accident is unrebutted and uncontroverted that the accident took place when the rash Jeep came to the side of motorcycle, which was moving at a mild speed. Unless there is evidence to disbelieve the eye-witness, only on the basis of site- plan, his testimony cannot be ignored. The site-plan is prepared after the accident and position of the vehicles involved in the accident does not remain the same, which was at the time of accident because accident itself throws the vehicle against the force used, therefore, this was not a case of contributory negligence.
14. The cases relied upon by learned counsel for the appellant i.e. Bhajan Singh v. Jarnail Singh and ors. reported in (2014) ACJ 2370 (Uttarakhand High Court), Oriental Insurance Co. Ltd. v. Narinder Kaur and ors. (2002) ACJ 1116 (Punjab and Haryana High Court), Om Wati (since deceased) through L.Rs v. Mohd. Din and ors. reported in (2002) ACJ 868 (Delhi High Court) and Ganesh v. Syed Munned Ahamed and ors. (2000) ACJ 1463 (Karnataka High Court), were decided on different facts and circumstances of the case and the evidences as available on (Downloaded on 18/04/2022 at 08:35:10 PM) (6 of 8) [CMA-1737/2008] record. In the present case, there is nothing to disbelieve the testimony of eye-witness, who is specific that the accident was a result of rash and negligent driving of the Jeep driver only.
15. In the case of Raj Kumar (supra), the Hon'ble Supreme Court in para Nos. 6 & 7 stated as follows :-
"6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life(shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding (Downloaded on 18/04/2022 at 08:35:10 PM) (7 of 8) [CMA-1737/2008] need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv),
(v) and (vi) --involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)
(a). We are concerned with that assessment in this case."
16. Considering the aforesaid guidelines and assuming that this was not a case of permanent disablement leading to permanent loss of income of the claimant, the claimant would be entitled for compensation under following heads :-
(i) Loss of salary for 75 days equals to -
Rs.12,662x75 days = Rs.37,924/-.
(ii) Expenses related to treatment, hospitalization, medicines, transportation, nourishing food and misc. expenditure :- The claimant got treatment at Raj Hospitals and Fracture Clinic. He had undergone surgery, metals were implanted to join the fractured bone and the medical prescription shows that the hospital had charged Rs.27,470/- and the injured had purchased medicines from outside of Rs.13,577/-. Total expenses were Rs.41,047/- for medical treatment, hospitalization and medicines. The Tribunal has awarded Rs.1,000/- for conveyance, that should be Rs.10,000/- considering the nature of injury sustained by the claimant and difficulty in carrying him in any public conveyance. For nourishment, the Tribunal has awarded Rs.3,000/-. The Tribunal has not awarded anything for services of the (Downloaded on 18/04/2022 at 08:35:10 PM) (8 of 8) [CMA-1737/2008] helper during treatment. The aforesaid amount must be Rs.60,000/- for three months. This head further needs an addition of Rs.64,000/-.
17. Under head, future medical expenses, the Tribunal has awarded Rs.1,00,000/- which is not excessive one because the appellant would have to undergo further surgery for removal of implants. For the injury and disability aforesaid and the damages under the head, pains, suffering and trauma as a consequence of the injuries, it cannot be less than Rs.1,50,000/-. Besides the aforesaid, the claimant would be entitled under the head for loss of expectation of life (including loss of prospects of marriage and other amenities), it cannot be less than Rs.2,00,000/-. He will further be entitled for compensation under the head inability to lead normal life to Rs.1,00,000/-. Thus, the total payable compensation is calculated as Rs.8,00,000/-.
18. Therefore, I do not find that in this case, erroneous calculation and determination of compensation has been made by the Tribunal.
19. In the result, I do not find any merit in this appeal, accordingly it stands dismissed.
(BIRENDRA KUMAR),J BMG (Downloaded on 18/04/2022 at 08:35:10 PM) Powered by TCPDF (www.tcpdf.org)