Amir vs Rajeev Kumar And 2 Others
2021 Latest Caselaw 88 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 1
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1710 of 2020
 

 
Appellant :- Amir
 
Respondent :- Rajeev Kumar And 2 Others
 
Counsel for Appellant :- Radhey Shyam
 

 
Hon'ble Vivek Agarwal,J.

1. Heard Sri Radhey Shyam, learned counsel for the appellant and Sri Rahul Sahai, learned counsel for respondents.

2. This appeal has been filed by the insurance company being aggrieved of the award dated 02.09.2020 passed by the learned Motor Accidents Claims Tribunal, Etawah in Claim Case No. 390 of 2017 (Amir vs. Rajeev Kumar and Others) on two grounds namely, that the vehicle insured with the insurance company has been falsely implicated, therefore, the award passed by learned claims tribunal needs to be set aside in toto and secondly in the light of the law laid down in case of Raj Kumar vs. Ajay Kumar, (2011) 1 SCC 343, on the point that learned tribunal has failed to appreciate the nature of injury/deprivation/disability, suffered by the claimant and the effect thereof on the future life of the claimant.

3. It is submitted that the ratio which has been laid down in case of Raj Kumar (supra) on the assessment of loss of future earning on account of permanent disability is to be taken into consideration, but has been overlooked by the learned tribunal.

4. After hearing learned counsel for the appellant and going through records, it is evident that plea of false implication of the vehicle in question i.e., tractor bearing registration no. UP 75 Q 3639 has been dealt with by the learned tribunal, as issue no. 1.

5. While deciding issue no. 1, learned tribunal has dealt with evidence of injured PW2-Amir @ Guddu to the effect that accident took place on 13.02.2017 at 8 pm, when this witness was travelling with his friend Mukeem on his motorcycle from Jaswant Nagar to Kudarkot, when close to the house of Janvedan Pradhan of Gram Baharpura, tractor bearing registration no. UP 75 Q 3639 came from the side of Kudarkot on the wrong side and had hit the motorcycle, causing serious injuries in his right leg, causing multiple fractures, beside injuring pillion rider Mukeem. This accident was seen by other co-travelers, travelling on a different motorcycle namely, Navshad, when tractor driver had abandon the tractor and report was lodged by his father Musha at Police Station Bharthana, District Etawah.

6. Learned tribunal has also dealt with the spot map, exhibit 32Ga/8, which substantiate the finding of the learned tribunal that tractor had hit the motorcycle at spot 'A' on the wrong side. On the criminal side, cognizance was taken by the Judicial Magistrate as has been discussed by the learned tribunal and is evident from the order of cognizance taken by the learned Judicial Magistrate First Class, certified copy of the order is on record as document no. 32Ga/5-6. It has also came on record that owner of the tractor namely, Rajiv Kumar had filed an application at Police Station Kotwali, District Bharthana on 07.06.2017, document no. 32Ga/10, in which it is mentioned that on 13.02.2017, his Mahindra tractor bearing registration no. UP 75 Q 3639 was taken by one Pradumn s/o Nahar Singh, who is member of his family to Talpar Village and on return had informed him that because of negligence of the motorcycle, accident had taken place with the tractor. Thus factum of accident is admitted even by the owner of the tractor and there is no effective cross-examination on any of these witnesses to contradict the evidence which has come on record. It appears that insurance company only relied on the factum of delay in FIR and had not adduced any other witness.

7. On the contrary, informant clearly deposed that he was busy in the treatment of his son for which purpose, he was taken to several hospitals starting from U.P. Rural Institute of Medical Sciences and Research, Saifai, Etawah to Paras Hospital, Agra where several operations were performed on the right leg of his son, but due to non-union of the bone, treatment continued resulting in delay in filing the FIR.

8. This exigency of delay in filing the FIR, is covered by the judgment of Hon'ble Supreme Court in case of Ravi vs. Badrinarayan and Others, 2011 (1) TAC 867 SC. Thus, delay in FIR cannot be a ground to dispute the factum of accident, when there is injured eye-witness account on record. Coupled with admission of the owner of the tractor, who had filed an application before Police Station Kotwali on 07.06.2017. Therefore, no indulgence is required on the ground of false implication.

9. As far as percentage of disability and the occupational handicap are concerned, they need to be re-examined in the light of the law laid down in case of Raj Kumar (supra).

10. Learned tribunal has relied on the evidence of PW1-Kailash Srivastava, Medical Record Officer, Saifai, PW2-claimant Amir and PW3-Dr. Vishnu Malhotra, Orthopedic Specialist, so also the documents enclosed.

11. Learned tribunal has dealt with the evidence on record and found that claimant was firstly taken to Bharthana Health Centre from where he was referred to District Hospital, Etawah and thereafter, Saifai Hospital where operation was conducted. On 03.03.2017, he was referred for skin grafting and thereafter again his leg was operated at Saifai, so to fix the fracture with plating. Tribunal has dealt with the issue that right leg of the claimant has developed deformity as his knee bone had not fused properly, as a result, he is not in a position to fold his leg nor he is able to ride a bicycle or is able to sit in squatting position. Tribunal has considered disability certificate to the extent of 40%, issued by District Hospital, Etawah and has correlated it with the occupation of injured namely, carpentry from which claimant, claimed to have been earning Rs. 10,000/- (ten thousand rupees) per month.

12. After taking all these issues into consideration, tribunal has awarded a sum of Rs. 1,40,000/- (one lakh forty thousand rupees) towards the treatment etc, but has accepted income of the claimant to be Rs. 8,000/- (eight thousand rupees) per month and taking 40% disability as certified by the doctor in the right leg held that there was loss of income of Rs. 3,200/- (three thousand two hundred rupees) per month or Rs. 38,400/- (thirty eight thousand four hundred rupees) per annum. Adding 25% towards future prospects has applied multiplier of 17 and has awarded a sum of Rs. 10,60,800/- (ten lakhs sixty thousand eight hundred rupees) towards loss of income.

13. The standard to be adopted is that functional disability in relation to whole body is to be taken into consideration and therefore, when there is 40% disability only in one limb and there is no evidence on record that claimant will not be able to function while sitting on a chair and table in regard to which posture, no disability has been pointed out, it will be safe to compute total disability in relation to body at 20% in place of 40%.

14. Thus, taking income as fixed by the tribunal at Rs. 8,000/- (eight thousand rupees) per month, loss of income on account of 20%, functional disability will come out to Rs. 1,600/- (one thousand six hundred rupees) per month. When 25% is added towards future prospects, as has been done by learned claims tribunal, then total loss of earning capacity will come out to Rs. 2,000/- (two thousand rupees) per month or Rs. 24,000/- (twenty four thousand rupees) per annum. When multiplier of 17, as has been applied by learned tribunal, is applied, then under the head of loss of earning capacity, claimant will be entitled to a sum of Rs. 4,08,000/- (four lakhs eight thousand rupees) in place of Rs. 10,60,800/- (ten lakhs sixty thousand eight hundred rupees), awarded by learned claims tribunal. Over and above this, learned claims tribunal has awarded a sum of Rs. 1,40,000/- (one lakh forty thousand rupees) spent by the claimants on his treatment, Rs. 10,000/- (ten thousand rupees) under the head of physical and mental agony and another Rs. 10,000/- (ten thousand rupees) under the head of travel expenses.

15. I am of the view that under the head of pain and suffering, a sum of Rs. 50,000/- (fifty thousand rupees) should have been awarded in place of Rs. 10,000/- (ten thousand rupees), as has been awarded by learned claims tribunal. Similarly, claims tribunal has not awarded any amount under the head of nutritious diet and attendant. They are to be computed respectively @ Rs. 5,000/- (five thousand rupees) per month for a period of six months, taking total compensation to Rs. 6,68,000/- (six lakhs sixty eight thousand rupees), in place of 12,20,800/- (twelve lakhs twenty thousand eight hundred rupees) awarded by learned claims tribunal, therefore, there will be a reduction of Rs. 5,52,800/- (five lakhs fifty two thousand eight hundred rupees) which in the estimation of this court has been awarded in excess by the learned claims tribunal without taking into consideration totality of the facts and circumstances and the law on the subject.

16. In above terms, appeal is partly allowed and disposed off.

Order Date :- 5.1.2021

Vikram/-