Vijay Kumar Kesarwani Alias Pappu vs Shiv Asare Singh And Others
2017 Latest Caselaw 4532 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 41
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1104 of 2006
 

 
Appellant :- Vijay Kumar Kesarwani Alias Pappu
 
Respondent :- Shiv Asare Singh And Others
 
Counsel for Appellant :- Ram Singh,Amit Kumar Sinha,Deepali Srivastava Sinha
 
Counsel for Respondent :- Archana Singh
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Krishna Singh,J.

(Delivered by: Hon'ble Krishna Singh, J.)

Present appeal has been filed by the appellant claimant being aggrieved against the impugned judgment and award dated 13.1.2006 passed by the Motor Accident Claims Tribunal/Additional District Judge, Allahabad in M.A.C.P. No. 782 of 2000 (Vijay Kumar Kesarwani @ Pappu Vs. Shiv Asare Singh and another) awarding compensation to the tune of Rs. 1,64,000/- alongwith 6% interest per annum to the appellant claimant inter alia on the ground that the compensation awarded by the Tribunal is inadequate and also that the Tribunal has not calculated the compensation as contemplated in law.

Brief facts giving rise to the instant appeal are that in the intervening night of 25/26.8.2000 the appellant claimant was travelling in truck no. U.P. 78 N 3666 alongwith his goods (fruits) when the said truck reached near village Saura, police station Malwa, district Fatehpur hit from behind a stationed unknown truck on GT Road. The said accident had occurred due to rash and negligent driving of the driver of the said truck. Appellant claimant has sustained grievous injuries in the said accident. During treatment his left hand was amputated above elbow causing permanent disability. FIR of the said accident was lodged at police station Malwa. After investigation in the case police has submitted the charge-sheet against the driver of the said truck under Section 279/338 IPC. At the time of accident appellant claimant was aged about 35 years and running the shop of pan and fruit juice and was earning Rs. 5000/- per month. Due to the injuries sustained in the said accident he has become permanently disabled and dependent on others. At the time of accident the said truck was insured with the respondent insurance company.

Respondent owner of the said offending truck did not choose to contest the claim petition. The claim petition was contested by the respondent insurance company by filing the written statement wherein it was pleaded that claim petition has been filed on false and concocted story and at the time of accident the driver of the said truck was not having valid and effective driving license and, as such, the claim petition was liable to be dismissed.

In support of the allegations made in the claim petition appellant claimant examined himself as PW-1 and also filed a copy of FIR, site plan, charge-sheet, treatment papers, disability certificate issued by the Chief Medical Officer, Allahabad, driving license of the driver of the said truck, insurance policy cover note of the said truck and order passed by the Chief Judicial Magistrate, Fatehpur on the basis of confessional statement made by the driver of the said truck.

We have heard learned counsel for the parties and perused the record.

Learned counsel for the appellant claimant has submitted that while awarding compensation the Tribunal wrongly disbelieved the occupation and income of the appellant claimant and assessed the notional income as Rs. 15,000/- per annum. Learned counsel for the appellant further submitted that while awarding the compensation against the loss of earning capacity, the Tribunal has assessed the same as 60% on the basis of disability certificate issued by the Chief Medical Officer, loss of earning capacity ought to have been assessed 80% in view of Second Schedule (Clause 5) of the Motor Vehicle Act read with Employees Compensation Act, 1923 Schedule 1st (Part II). Learned counsel further submitted that appellant claimant has become permanently handicapped due to injuries sustained in the accident in question. While awarding compensation Tribunal has not awarded any amount of compensation towards helper/attendant and further treatment. Learned counsel further submitted that compensation awarded by the Tribunal is inadequate and, therefore, the same is liable to be enhanced.

Per contra learned counsel for the respondent insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and reasonable and, therefore, it does not require any interference by this Court, as such, present appeal is liable to be dismissed.

It is evident from the record that the appellant claimant has not filed any documentary evidence in support of his alleged occupation and income. To support the claim, appellant claimant has examined himself as PW-1. It is to be noted here that he has stated in his cross-examination as under "यह कहना सही है की मैं फल के ठेले पर न तो बैठता न तो व्यवसाय करता था सिवाय इसके जब पिताजी खाना खाने जाते थे उस वक़्त मैं ठेले की देखरेख कर लेता था I"

In view of the above statement and considering the entire facts and circumstances of the case, we are also of the considered view that at the time of accident appellant claimant was not having any independent occupation and he was just assisting his father occasionally. In view of the discussions made above, we are of the view that claim and statement made by the appellant claimant in regard to the occupation and income is not trustworthy and notional income Rs. 15,000/- assessed by the Tribunal for awarding the compensation is just and proper.

It is evident from the copy of disability certificate dated 30.11.2000 issued from the office of the Chief Medical Officer, Allahabad that Medical Board has assessed disability of the appellant claimant 60%, while awarding the compensation towards the loss of earnings, Tribunal has assessed the same percentage of the loss of earnings capacity of the appellant claimant.

The relevant provisions under which the compensation can be awarded are Second Schedule (Clause 5) of the Motor Vehicle Act and Schedule 1st (Part II) of Employees Compensation Act, 1923. The said provisions have been taken into consideration and for ready reference same is quoted below;

"The Second Schedule

(See Section 163-A)

5. Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:-

Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.

PLUS either of the following:-

(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."

"Employee's Compensation Act, 1923

Part II

LIST OF INJURIES DEEMED TO RESULT IN PERMANENT PARTIALDISABLEMENT.

Amputation cases - Upper limbs (either arm)

Sr. No.

Description of injury

Percentage of loss of earning capacity

Amputation through shoulder joint

Amputation below shoulder with stump less than [20.32 cms] from tip of acromion

Amputation form [20.32 cms] from tip of acromion to less than [11.43 cms] below tip of olecranon

Loss of a hand or of the thumb and four fingers of one hand or amputation from [11.43 cms] below tip of olecranon

Loss of thumb

Loss of thumb and its metacarpal bone

Loss of four fingers of one hand

Loss of three fingers of one hand

Loss of two fingers of one hand

Loss of terminal phalanx of thumb

10-A

Guillotine amputation of tip of thumb without loss of bone

It is not in dispute that appellant claimant has sustained grievous injuries in the said accident and during treatment his left hand was amputated above the elbow causing permanent disability. In view of the Second Schedule (Clause 5) of the Motor Vehicle Act read with Schedule 1st (Part II) of Employees Compensation Act, 1923, we are of the considered view that percentage of loss of earning capacity ought to have been assessed 80% by the Tribunal while awarding the compensation. We, accordingly, provide that percentage of loss of earning capacity should be assumed 80% for awarding just and reasonable compensation.

Taking into account the permanent disability of the appellant claimant and considering the entire facts and circumstances of the case, we are of the considered opinion that Tribunal has committed error in not awarding the compensation towards the helper/attendant and future treatment. The compensation awarded by the Tribunal is not just and reasonable, therefore, it should be enhanced.

In the case of Smt. Sarla Verma and others Vs. Delhi Transport Corp. and another, 2009 (6) SCC 121 Hon'ble Apex Court in paragraph no. 21 held as under:-

"21. We, therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

In the case of R.D. Hattangadi Vs. Pest Control India Private Limited, Laws (SC) 1995 1 109, Hon'ble Apex Court in paragraph nos. 9 and 12 has held as under:

"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

12. In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards."

In view of the above, considering the law laid down by Hon'ble Apex Court in the case of R.D. Hattangadi (supra) and Smt. Sarla Verma (supra), the compensation payable to the claimant respondent is worked out as under:

a.

Income of the appellant claimant

Rs. 15,000/- per annum

b.

Multiplier applied as per Smt. Sarla Verma's case with reference to the age of appellant claimant

c.

Compensation for loss of earnings on account of permanent disability as per Second Schedule (Clause 5) of the Motor Vehicle Act read with Schedule 1st (Part II) of Employees Compensation Act, 1923 to the extent of 80%

Rs. 15,000 x 16 = Rs. 2,40,000/- its 80% is Rs. 1,92,000/-

d.

Compensation for attendant/helper

Rs. 1,00,000/-

e.

Compensation for transportation, nourishing foods and medical expanses already incurred

Rs. 25,000/-

f.

Compensation for future medical expanses

Rs. 25,000/-

g.

Compensation for pain, suffering and trauma as a consequence of the injuries

Rs. 25,000/-

h.

Compensation for loss of amenities

Rs. 25,000/-

i.

Total amount of compensation

Rs. 3,92,000/-

j.

Amount of compensation already awarded by the Tribunal

Rs. 1,64,000/-

k.

Amount enhanced by this Court

Rs. 3,92,000 - Rs. 1,64,000 = Rs. 2,28,000/-

On the basis of discussions made above, present appeal is allowed by modifying the impugned judgment and award by increasing the compensation awarded from Rs. 1,64,000/- to Rs. 3,92,000/-, as such, the appellant claimant will be entitled to enhanced amount of award Rs. 2,28,000/- in addition to what is already awarded by the Tribunal. The appellant claimant will also be entitled to the interest at the rate of 6% per annum to the aforesaid total amount of compensation (Rs. 3,92,000/-) from the date of filing of claim petition till its realization. Respondent insurance company is directed to pay the enhanced amount of compensation to the appellant claimant alongwith interest within a period of three months from the date of receipt of certified copy of this order in the form of account payee cheque.

To secure the enhanced amount it is deemed appropriate that upon deposit it shall be converted into an FDR initially for a period of 3 years with automatic renewals and appellant claimant would be entitled to the monthly interest accruing thereon.

There would be no order as to costs.

[Krishna Singh, J.]                   [Satyendra Singh Chauhan, J.]
 

 
Order Date :- 18.9.2017
 
Shekhar