Mahesh Prasad Mishra vs Mohd. Yaseen & Others
2017 Latest Caselaw 4764 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Reserved
 
Court No. - 41
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2546 of 2003
 

 
Appellant :- Mahesh Prasad Mishra
 
Respondent :- Mohd. Yaseen & Others
 
Counsel for Appellant :- Ram Singh
 
Counsel for Respondent :- Ratnesh Srivastava,S.N. Ojha,V.C.Dixit
 

 
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 27.5.2003 passed by the Motor Accident Claims Tribunal / Additional District Judge, Allahabad in MACP No. 461 of 1999 (Mahesh Prasad Mishra vs. Mohd. Yaseen & Others) awarding compensation to the tune of Rs. 1,32,000/- alongwith interest at the rate of 8% per annum to the appellant claimant inter-alia on the ground that 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 present appeal are that on 1.5.1999 at about 1:30 P.M. on G.T. Road near the gate of Block-Bahadurpur, appellant claimant Mahesh Prasad Mishra met with an accident with a jeep bearing registration No.U.P. 70 G-2020, which was driven by its driver in a rash and negligent manner. On account of said accident appellant claimant has sustained grievous injuries (compound fracture in left leg) causing permanent disability. At the time of accident, said jeep was insured with the respondent-Insurance Company. FIR of the said accident was lodged at Police Station-Sarai Inayat, Dist-Allahabad. After investigation in the case, police has submitted the charge-sheet No. 268 of 1999 under Sections-279, 338 of IPC against the driver of the said jeep.

The owner of the said jeep has pleaded that the accident in question had not occured due to rash and negligent driving of the driver of the jeep and in any view of the matter since at the time of accident driver was having a valid driving license and the said jeep was duly insured with the respondent-Insurance Company liability was on the Insurance Company.

It was pleaded on behalf of the Insurance Company that claim petition has been filed on false and concocted story and at the time of accident driver of the said jeep was not having valid and effective driving license as such the claim petition was liable to be dismissed.

To support allegation made in the claim petition, the appellant / claimant has examined himself as PW-1 and also produced Jagannath Prasad as PW-2. The appellant claimant has also filed a copy of FIR, site plan, charge-sheet, treatment papers and disability certificate issued from the Office of the Chief Medical Officer, Allahabad on 6.9.2001.

To support the allegation made in the written statement, owner of the said jeep has filed a copy of registration certificate, insurance policy of the said jeep and driving license of the driver of the jeep.

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

Learned counsel for the appellant claimant has submitted that at the time of accident appellant claimant was working in "Anurag Security Services" and getting salary of Rs. 2,500/- per month while awarding compensation the Tribunal has wrongly disbelieved the job and income of the appellant claimant and assessed notional income Rs. 15,000/- per annum, which is very low. Learned counsel has further submitted that due to accidental injuries appellant claimant has become permanent disabled. While awarding compensation, the Tribunal has not taken into account the future prospects of the appellant claimant. Learned counsel has further submitted that at the time of accident appellant claimant was aged about 22 years. While awarding the compensation, Tribunal wrongly applied the multiplier of 16 and according to the Smt Sarla Verma's Case, the multiplier of 18 should be applied. Learned counsel has further submitted that while awarding compensation the Tribunal has failed to award compensation towards future treatment of the appellant claimant. Learned counsel has further submitted that compensation awarded by the Tribunal is inadequate therefore, it should be enhanced.

Per contra, learned counsel for the respondent-Insurance Company has submitted that compensation awarded by the Tribunal is just and reasonable therefore does not warrant interference for enhancement of compensation as claimed by the appellant claimant.

We have carefully examined the facts of the case and material evidence available on record in the light of rival legal contentions argued before us by the learned counsel on behalf of the parties.

The Tribunal on the basis of oral and documentary evidence adduced by the appellant claimants has held that accident in question had occured due to rash and negligent driving of the driver of the said jeep in which claimant has sustained grievous injuries causing 50% disability.

Considering the entire facts and circumstances of the case, we feel that finding recorded by the Tribunal in regard to the accident is duly supported by evidence and is correct.

In the case of Smt Sarla Verma and others vs. Delhi Transport Corporation and another 2009 (3) AWC 2138 (SC), the Apex Court in Para 11 and 21 has held as follows:-

11. We are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax'. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years.

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.

It is evident from the record that appellant claimant PW-1 to support the pleading / claim has stated in his statement on oath that at the time of accident he was working in Anurag Security Services and getting salary of Rs.2,500/- per month. In absence of any contrary evidence, we see no reason to disbelieve the statement of appellant claimant. Considering the entire facts and circumstances, we are of the considered opinion that it is proved from the oral and documentary evidence adduced by the appellant claimant that at the time of accident he was working in Anurag Security Services and getting salary of Rs. 2,500/- per month i.e. Rs.30,000/- per annum and while awarding compensation, the Tribunal wrongly disbelieved the occupation and salary of the appellant claimant and assessed his notional income Rs. 15, 000/- per annum. We accordingly provide that for awarding the just and reasonable compensation towards loss of earnings income of the appellant claimants should be assessed as Rs. 30,000/- per annum.

It is pertinent to be noted here that it is not proved from the evidence adduced by the claimant that his job was of permanent nature. In view of the above and law laid down by the Apex Court in the case of Smt Sarla Verma (supra), we are of the considered view that appellant claimant is not entitled to get any amount of compensation towards future prospects. It is evident from the oral and documentary evidence adduced by the appellant claimant that at the time of accident he was aged about 22 years while awarding the compensation towards loss of earnings due to permanent disability the Tribunal wrongly applied the multiplier of 16. In view of the above and law laid down by the Apex Court in the case of Smt Sarla Verma (supra), we are of the considered view that for awarding the just and reasonable compensation with reference to the age of the appellant claimant, multiplier of 18 should be applied.

After going through the treatment papers, disability certificate and statement of the appellant claimant, we are of the considered view that he has sustained grievous injuries in the accident in question causing 50% permanent disability. It is evident from the evidence available on record that at the time of accident appellant claimant was doing job in Anurag Security Services as Security Guard. Looking to the nature of job of claimant he has been incapacitated for security job. In view of the above, we are of the considered view that this would be a case to treat the functional disability (loss of earning capacity) to be 50% for awarding compensation towards the loss of earnings.

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."

It is also evident from the record that while awarding compensation, Tribunal has failed to award compensation towards future treatment of the appellant claimant. Considering the entire facts and circumstances of the case, we are also of the considered view that reasonable amount should be awarded as compensation towards future treatment of the appellant claimant.

In view of the discussion made above and law laid down by the Apex Court in the case of R.D. Hattangadi (supra) and Smt Sarla Verma (supra) compensation payable to the appellant claimant is worked out as under:-

(i)

Income of the appellant claimant

Rs.2,500/-per month

Rs.30,000/-per annum

(ii)

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

(iii)

Compensation for loss of earnings on account of permanent functional disability to the extent of 50%.

Rs.30,000 x 18 = Rs.5,40,000/- its 50% is Rs.2,70,000/-

(iv)

Compensation for future medical

expenses

Rs.15,000/-

(v)

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

Rs.10,000/-

(vi)

Compensation for loss of amenities

Rs.10,000/-

(vii)

Compensation for medical expenses already occured

Rs.7,200/-

(viii)

Total amount of compensation

Rs.3,12,200/-

(ix)

Amount awarded by the Tribunal

Rs.1,32,200/-

(x)

Amount enhanced by this Court

Rs.3,12,200 - Rs.1,32,200

=Rs.1,80,200/-

In view of the discussion made above, the present appeal is allowed accordingly by modifying the impugned judgment and award by increasing the compensation awarded from Rs. 1,32,200/- to Rs. 3,12,200/- as such the appellant claimant will be entitled to enhanced amount of award in addition to what is already awarded by the Tribunal alongwith interest at the rate of 8% per annum from the date of filing of the claim petition till its realisation.

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 of compensation it is deemed appropriate that upon deposit it shall be converted into an FDR intially for a period of three 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:-21.9.2017

S Rawat