Calcutta High Court (Appellete Side)

National Insurance Co. Ltd vs Sri Abhijit Mazumder & Anr on 13 December, 2023

                 IN THE HIGH COURT AT CALCUTTA
                  CIVIL APPELLATE JURISDICTION
                         APPELLATE SIDE

PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
                           FMA 237 of 2022
                            CAN 1 of 2022
                     National Insurance Co. Ltd.
                                 versus
                     Sri Abhijit Mazumder & Anr.
                                  With
                            COT 10 of 2022
              Abhijit Majumder Alias Abhijit Mazumder
                                 versus
             National Insurance Company Limited & Anr.


For the Appellant-Insurance     : Mr. Sanjay Paul, Advocate
Company

For the Respondent-Claimant     : Mr. Ashique Mondal, Advocate

Heard on                        : 17.03.2023, 20.03.2023

Judgment on                     : 13.12.2023


Bivas Pattanayak, J. :-

1. This appeal is preferred against the judgment and award dated 23rd

July, 2021 passed by learned Additional District Judge-cum-Judge, Motor

Accident Claims Tribunal, 6th Court, Alipore, South 24 Parganas in M.A.C.

Case No. 41 of 2016 granting compensation of Rs.18,87,243.04/- together

with interest in favour of the claimant-injured under Section 166 of the

Motor Vehicles Act, 1988.

2. The brief fact of the case is that on 24th April, 2015 at about 12:20

hours while the victim was proceeding on his motorcycle bearing

registration no. WB-20/K-1438 along Taratala Road and when he reached

near Brace Bridge vegetable market, the offending vehicle bearing

registration no. WB-73/B-8930, which was also proceeding along Taratala

Road in the same direction in a rash and negligent manner, dashed the

victim from behind, as a result of which, the victim sustained grievous

injuries on his person. Immediately the victim was removed to "Cure

Centre Nursing Home" wherefrom he was shifted to "AMRI Hospital" and

later on discharged on 4th May, 2015. The right hand of the victim had to

be amputated from shoulder region. Due to the injuries sustained, the

victim suffered permanent disablement. On account of the injuries

sustained and the subsequent disablement, the victim-injured filed

application for compensation of Rs. 60,00,000/- together with interest

under Section 166 of the Motor Vehicles Act, 1988.

3. The claimant-injured in order to establish his case examined six

witnesses and produced documents which have been marked as Exhibits-

1 to 27 respectively.

4. The appellant-insurance company also adduced the evidence of one

witness and produced documents which have been marked as Exhibit- A

to F respectively.

5. Despite service of notice of appeal, respondent no.2-owner of the

offending vehicle remained unrepresented.

6. Upon considering the materials on record and the evidence adduced on

behalf of the respective parties, the learned Tribunal granted compensation

of Rs.18,87,243.04/- together with interest in favour of the claimant-

injured under Section 166 of the Motor Vehicles Act, 1988.

7. Being aggrieved by and dissatisfied with the impugned judgment and

award of the learned Tribunal, the insurance company has preferred the

present appeal.

8. Challenging the aforesaid judgment and award of the learned Tribunal,

the claimant-injured has also filed cross-objection being COT 10 of 2022.

9. Both the appeal and the cross-objection are taken up together for

consideration and disposal.

10. Mr. Sanjay Paul, learned advocate for insurance company submitted

that the offending vehicle in the present case is an oil tanker. Though as

per the extract of the driving licence (Exhibit-F), the driver of the offending

vehicle had valid licence to driver transport and non-transport vehicles on

the relevant date of accident, yet he did not have any effective and valid

licence to drive vehicles containing hazardous substances such as

petroleum etc. The insurance company by adducing the evidence of

Dealing Assistant of Motor Vehicle Department, Howrah (D.W.1) has

proved the extract of the driving licence. The evidence of the said witness

as well as the extract of driving licence clearly shows that such driving

licence does not empower the driver to drive vehicles containing hazardous

substances. Since the driver was not qualified to drive vehicles carrying

hazardous substances, there was violation of terms and conditions of the

policy of insurance. Section 14 (2) of the Motor Vehicles Act, 1988 provides

that the licence to drive a transport vehicle carrying goods of dangerous or

hazardous nature be effective for a period of three years and such licence

is to be renewed subject to conditions as may be prescribed by the Central

Government. The provisions embodied therein clearly manifest that the

driver holding a driving licence to drive transport vehicle, in order to drive

vehicles carrying goods of dangerous or hazardous nature, should have

specific licence to that effect. Since the driver of the offending vehicle on

the relevant date was not holding driving licence to drive vehicles, carrying

goods of dangerous or hazardous nature, hence there is breach of policy of

insurance and, therefore, as per settled proposition of law, in the event of

breach of condition of insurance policy, the insurance company be directed

to satisfy the award with liberty to recover the said amount from the

insured i.e. the owner of the offending vehicle in accordance with law. To

buttress his contentions, he relied on the decision of the Hon'ble Supreme

Court passed in S. Iyyapan versus United India Insurance Company

Limited and Another1.

He further submitted that the learned Tribunal erred in granting interest

on compensation @ 8% per annum which should be scaled down in view of

prevailing banking rate of interest.

In light of his aforesaid submissions, he prayed for modification of the

impugned judgment and award of the learned Tribunal.

11. In reply to the contentions raised on behalf of the appellant-insurance

company, Mr. Ashique Mondal, learned advocate for respondent no.1-

claimant submitted that the learned Tribunal has erred in considering the

income of the victim on the basis of income tax return for the Assessment

Year 2016-2017 since the same pertains to the income of the victim after

the accident. The learned Tribunal ought to have considered the income

1 (2013) 7 SCC 62

disclosed in the Assessment Year 2015-2016 which shows the income of

the victim just prior to the accident. Further, it failed to consider the

memorandum of understanding for retainership (Exhibit-21) where the

victim was given retainership fee of US $ 2,000.00 from April, 2015 for six

months by Principals M/s. Patriot Engineering Services, U.S.A.

He further submitted that the victim, due to the injuries received in the

said accident, sustained physical disablement of 85%. However, since due

to the injuries sustained in the said accident, the right hand of the victim

had to be amputated, hence, his functional disability should be considered

at 100% leading to the loss of earnings at 100%. In support of his

contention, he relied on the decision of this Court passed in National

Insurance Co. Ltd. (CR)-I versus Sri Subhasis Manna & Anr.2

Moreover, he submitted that the victim since amputation of his right hand

requires further treatment and quotation for above elbow prosthesis for the

victim as been submitted by Endolite India Limited (Exhibit-24) be allowed

along with future medical expenses bearing in mind the effect of

amputation on the day to day functioning of the victim. To buttress his

contention, he relied on the decision of the Hon'ble Supreme Court passed

in Mohd. Sabeer alias Shabir Hussain versus Regional Manager, U.P.

State Road Transport Corporation3.

He further submitted that the learned Tribunal granted a meagre sum of

Rs. 30,000/- towards pain and agony which needs to be increased.

2 FMA 1544 of 2018

3 2022 SCC OnLine SC 1701

Moreover, he submitted that the victim is also entitled to future prospect of

10% of his annual income.

In light of his aforesaid submissions, he prayed for enhancement of

compensation amount.

12. In reply to the contentions raised on behalf of the respondent no.1-

claimant, Mr. Paul, learned advocate for appellant-insurance company

submitted that the retainership has been terminated by the concerned

company vide letter dated 5th May, 2015 (Exhibit-D) for unsatisfactory

performance. So far as the claim of 100% functional disability is

concerned, he submitted that the victim being a consultant continued with

his job and is sufficiently performing his job in spite of amputation of his

right limb, therefore, the extent of functional disability of 100% does not

arise at all. Though the quotation of Endolite India Limited relating to

prosthesis has been proved, but, precisely there is no evidence in support

of future medical expenses.

13. Having heard learned advocates for respective parties, following issues

have fallen for consideration:

Firstly, whether the driver of the offending vehicle had valid and effective

driving licence to drive the vehicle on the relevant date of accident or not.

Secondly, whether the learned Tribunal erred in determining the income of

the victim.

Thirdly, whether the victim sustained 100% functional disability resulting

in 100% loss of earnings.

Fourthly, whether the claimant-victim is entitled to compensation for

fixation of prosthetic limb and future medical expenses.

Fifthly, whether the compensation towards pain and sufferings requires to

be increased.

Sixthly, whether the claimant-victim is entitled to future prospect of 10% of

his annual income.

And lastly, whether the interest on compensation @ 8% per annum needs

to be scaled down.

14. With regard to the first issue as to whether the driver of the offending

vehicle on the relevant date of accident had valid and effective licence or

not, it is found that the insurance company in its written statement has

categorically raised the plea that on the relevant date of accident, the

driver of the alleged vehicle was not holding the valid licence to drive oil

tanker. In order to establish such defence, the insurance company

adduced the evidence of one Rajdip Khastgir, Dealing Assistant of Renewal

Driving Licence Section of Motor Vehicle Department, Howrah as D.W.1.

He proved the extract of driving licence of the driver of the offending

vehicle being no. WB1119940064896 (Exhibit-F). He deposed that such

driving licence was issued on 3rd January, 1994. The extract of the driving

licence reflects that validity period for non-transport category is from 31st

March, 2009 to 13th October, 2023 and for transport vehicle validity is

from 6th September, 2018 to 5th September, 2021. He further deposed that

the driving licence does not empower the driver to drive any hazardous

vehicle. Upon perusal of the extract of the driving license of the driver

(Exhibit-F), it is found that the validity and effectiveness of driving licence

to drive in respect of non-transport vehicle is for the period from 31st

March, 2009 to 13th October, 2023 and in respect of transport vehicle for

the period from 6th September, 2018 till 5th September, 2021. Admittedly,

the offending vehicle is an oil tanker which is also reflected in the seizure

list (Exhibit-6). Thus, the offending vehicle is meant for carrying

inflammable hazardous substances. Section 14 of the Motor Vehicles Act,

1988 dealing with currency of licences to drive motor vehicles provides

that in the case of licence to drive a transport vehicle carrying goods of

dangerous or hazardous nature it shall be effective for a period of three

years and renewal thereof shall be subject to such conditions as the

Central Government may prescribe. The aforesaid provision makes it

imperative that in order to drive vehicle carrying goods of dangerous or

hazardous nature, a driver should have valid and effective driving licence

for the same. The extract of driving licence (Exhibit-F) clearly manifests

that the driver of the offending vehicle did not have any valid and effective

licence to drive vehicles carrying hazardous substances. Now it is to be

seen whether there was any breach of condition of insurance policy for the

reason of the offending vehicle (Oil Tanker) being driven by the driver

without valid and effective licence to drive such vehicle.

14.1. In National Insurance Company Limited versus Swaran Singh4,

the Hon'ble Supreme Court held as hereunder:

"110. The summary of our findings to the various issues as raised in these petitions is as follows:

4 (2004) 3 SCC 297

(i) x x x x x

(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.

(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving license of the driver, as contained in sub-

section(2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.

(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.

. . . . . . . . . . . . . . . . . . . . . ."

14.2. Bearing in mind the aforesaid proposition of the Hon'ble Court, let

me revert to the materials on record. The insurance company by adducing

the evidence of D.W.1 and through the extract of driving licence (Exhibit-

F) could establish the fact the driver of the offending vehicle was not

holding valid and effective driving license to drive such vehicle. However,

mere absence of valid and effective driving licence of the driver for driving

such vehicle at the relevant time, are not in themselves defences available

to the insurer against either the insured or the third parties. To avoid its

liability towards the insured, the insurer has to prove that the insured was

guilty of negligence and failed to exercise reasonable care in the matter of

fulfilling the condition of the policy regarding use of vehicles by duly

licensed driver or one who was not disqualified to drive at the relevant time

and such burden of proof lies with the insurer to establish 'breach' on the

part of the owner of the vehicle. At this juncture, it is to be seen as to

whether such burden has been discharged by the insurance company. The

owner of the vehicle was aware that the vehicle was meant for carrying

hazardous substances like inflammable oil. It was incumbent upon the

owner of the vehicle to ensure that all safety protocols has been reasonably

taken care of including the fact that the driver was qualified to drive such

vehicle carrying hazardous substances. Allowing a driver to drive such

vehicle without having proper licence to drive hazardous substance by

itself makes the owner of the vehicle guilty of negligence since he failed to

take reasonable care for fulfilling the condition of policy. Since there is

breach of condition of the policy of insurance, the principle of pay and

recovery applies to the facts and circumstances of this case. The learned

Tribunal though observed that the proposition in S. Iyyapan (supra)

applies in the factual matrix of the case, but no such order of pay and

recovery was passed giving liberty to the insurance company to recover the

compensation amount from the owner of the offending vehicle. I find

substance in the submissions of Mr. Paul, learned advocate for appellant-

insurance company relying on S. Iyyapan (supra) that liberty to recover the

compensation amount from the owner of the offending vehicle shall be

given to the insurer in the facts and circumstances of the present case.

15. With regard to the second issue pertaining to the determination of

income of the victim, it is found that the learned Tribunal has determined

the annual income of the victim at Rs. 1,51,614/- per annum on the basis

of income tax return for the Assessment Year 2016-2017 since the road

traffic accident has taken place on 24th April, 2015 which falls within

Financial Year 2015-16 corresponding to Assessment Year 2016-17. Upon

going through the income tax return acknowledgement for Assessment

Year 2016-2017, it is seen that the income tax return has been filed on 4th

August, 2016 which is much later after the date of occurrence on 24th

April, 2015. From an income tax perspective, Financial Year is the year in

which the assessee earns the income. Assessment Year is the following

year in which the evaluation of previous year's income is made and the

assessee pays taxes on it. For instance, if the Financial Year (2015-16) is

from 1st April, 2015 to 31st March, 2016, then the assessment year for the

money earned to the aforesaid period would begin after the Financial Year

ends and would be Assessment Year 2016-2017. Since income for any

particular Financial Year is evaluated and taxed in the Assessment Year,

income tax return forms have Assessment Year (AY). As the income earned

in a Financial Year cannot be taxed before it is earned so it is taxed in the

following year. The accident having taken place on 24th April, 2015,

maximum period of earnings during the Financial Year 2015-16 falls after

the date of accident. Hence, it would not be appropriate to rely on the

income of the victim disclosed in the Income Tax Return for Assessment

Year 2016-2017. It is trite law the income of the victim assessed should

pertain to the date of accident. In order to establish his income, the

injured-victim has also produced his income tax return acknowledgement

along with Form 16 issued by the employer under Section 203 of the

Income Tax Act, 1961 for Assessment Year 2015-2016. On perusal of

income tax return acknowledgement for Assessment Year 2015-16, it is

found that it has been filed on 28th August, 2015 which is also after the

accident. Be that as it may, the Form 16 issued by the employer of the

victim under the Income Tax Act for Assessment Year 2015-2016 shows

income for the period 1st April, 2014 to 31st March, 2015 (Exhibit-1),

which period is just prior to the accident and it discloses the total annual

income of the victim for the aforementioned period, falling just prior to the

accident, to be Rs.5,67,924/-and the tax deducted at source under Section

192 of the Income Tax Act to be Rs.48,200/-. Therefore, the total annual

income of the victim would be the amount equivalent to total income less

tax paid on the income (i.e. Rs.5,67,924/- - Rs.48,200/-) which comes to

Rs.5,19,724/-. Mr. Mondal, learned advocate for respondent no.1-claimant

argued that the victim, as per the memorandum of understanding

(Exhibit-21), was given retainership fees of US $ 2,000/- for a period of six

months commencing from April, 2015 by the Principals M/s. Patriot

Engineering Services, U.S.A which should also be considered for

determination of the income of the victim. Per contra, Mr. Paul, learned

advocate for appellant-insurance company referring to letter dated 5th May,

2015 (Exhibit-D) submitted that such memorandum of understanding has

been terminated by the said company and thus the retainership fees has

got no bearing so far as determination of income of the victim is concerned.

On perusal of letter dated 20th March, 2015 issued in respect of

memorandum of understanding (Exhibit-21), it is found that the Principals

M/s. Patriot Engineering Services, U.S.A, as per such memorandum, was

supposed to pay directly a monthly retainership fees of US $ 2,000/- for a

period of six months commencing from April, 2015 to the victim. However,

by subsequent letter dated 5th May, 2015 (Exhibit-D), the victim was

informed that the memorandum of understanding may be treated as void.

Further though by dint of the letter dated 5th May, 2015 (Exhibit-D), the

victim was informed that he would be provided with a lump sum amount

of Rs.1 lakh against his activities from 1st April, 2015 to 23rd April, 2015

but the same has been granted after the accident. For the aforesaid

reasons, the income claimed in respect of retainership fees cannot be

taken into account.

16. The third issue is whether the victim due to injuries sustained in the

said accident resulting in amputation of right upper arm had functional

disability of 100% leading to 100% loss of earnings. In order to appreciate

the present issue, it would be apposite to refer to the principles laid down

by the Hon'ble Supreme Court in the decision of Raj Kumar versus Ajay

Kumar & Anr.5 which is reproduced hereunder:

"12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:

                                 (i)    whether the disablement is permanent or
                            temporary;
                                 (ii) if the disablement is permanent, whether it

is permanent total disablement or permanent partial disablement;

(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.

If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the

5 (2011) 1 SCC 343

permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or

(ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his

disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.

15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. . . . ."

16.1. Bearing in mind the aforesaid principles laid down by the Hon'ble

Supreme Court, let me first decide whether the victim sustained any

permanent disability due to the accident and, if so, to what extent. The

victim in his claim application at column 11 stated that the he sustained

multiple bleeding injuries on his person especially crush injury on his

right hand. The discharge summary of the victim-injured issued by AMRI

hospitals, Dhakuria (Exhibit-26) shows that the victim sustained crush

injury of right upper limb and amputation (humerus upper one-third) was

done on 24th April, 2015. The disability certificate (Exhibit-15) issued by

Bangur Hospital, Kolkata also shows amputation of above elbow upto

upper one third right arm and the disability is 85%. Considering the

aforesaid evidence on record, it goes without saying that the victim

sustained permanent disablement to the extent of 85%. Now it is to be

seen as to what would be the effect of the aforesaid disablement. Mr.

Mondal, learned advocate for the respondent no.1-claimant argued that

though the physical disablement of the victim is 85%, yet his functional

disability is 100%. Learned Tribunal has considered the disablement of

85% as the loss of earnings while assessing the compensation amount.

Though the victim due to the injuries sustained in the accident had to

undergo amputation of above elbow upto upper one third right arm, yet

there is no evidence that the day-to-day functions, mobility and other

aspects necessary for carrying daily pursuits have been totally affected.

Due to such reasons, the argument advanced on behalf of respondent

no.1-claimant that the functional disability of the victim should be

considered at 100% is not sustainable. Be that as it may, bearing in mind

the extent of disablement and keeping in mind that the victim is a

technical consultant, the loss of earnings of 75% would be appropriate in

the facts and circumstances of this case.

16.2. In Sri Subhasis Manna (supra), the claimant, who was working as a

salesman in a medical shop, lost his job as the result of the accident. As

per the disability certificate, he suffered permanent disability of 70% and

was unable to travel without assistance of an escort and earn his

livelihood. In such circumstances, this Court affirmed the assessment of

functional disability of 100% by the learned Tribunal. The facts in the cited

decision is distinguishable from the case at hand, hence, the ratio is not

applicable to the present case.

17. The fourth issue relates to whether the injured is entitled to receive

compensation for fixation of prosthetic limb and future medical expenses.

Mr. Mondal, learned advocate for the respondent no.1-claimant referring to

quotation of Endolite India Limited (Exhibit-24) submitted that in order to

perform his day to day functions, the victim needs prosthetic limb and the

quotation for such prosthetic limb shows that the price of the same is Rs.

7,52,800/- which should be granted to the victim. To buttress his

contention, he relied on the decision of the Hon'ble Supreme Court passed

in Mohd. Sabeer alias Shabir Hussain (supra). Per contra, Mr. Paul, learned

advocate for appellate-insurance company submitted that in the absence

of cogent evidence, the claimant is not entitled to future medical expenses.

The quotation of prosthetic limb of Endolite India Limited has been proved

by P.W.5, Mukesh Kumar who is a Prosthetist & Orthotist, which has been

marked as Exhibit-24. The aforementioned quotation shows that the price

of Endolite Std. Above Elbow Myo-Electric Three-Degree hand with

Electrode Cable + Cosmetic Glove + Battery + Battery Charge + Socket &

fabrication charge is Rs. 7,52,800/-. Be that as it may, there is no medical

evidence that it is advisable for the victim to have fixation of the

aforementioned prosthetic limb. There is also no recommendation of

fixation of such prosthetic limb by any prosthetist. Though P.W.5 is a

prosthetist and orthotist but in his evidence save and except proving the

quotation there is no evidence that the witness has advised the victim for

fixation of the aforementioned prosthetic limb. In Mohd. Sabeer alias

Shabir Hussain (supra), the claimant is a scrap dealer whose right leg

below the knee was amputated. The Hon'ble Court has considered that the

claimant to be able to augment his income is most definitely required to

move around. In such circumstances, allowed compensation towards

prosthetic leg and its maintenance. The facts involved in the cited decision

is quite dissimilar to the case at hand where the victim-claimant is a

technical consultant and there is amputation of one-third of his right arm

above elbow. Hence the ratio is not applicable to the fact of the case at

hand. Therefore, the claim of aforesaid amount towards prosthetic limb

falls short of merit. However, bearing in mind that the victim had

undergone amputation of above elbow upto upper one third right arm, I am

of the opinion that an amount of Rs. 2,00,000/-would be reasonable

towards future medical expenses.

18. With regard to the fifth issue relating to escalation of the

compensation under the head of pain and agony, it is found that the

learned Tribunal has granted Rs.30,000/- on such head. However, bearing

in mind that the victim due to the injuries sustained in the said accident

had undergone amputation of above elbow upto upper one third right arm,

an amount of Rs.50,000/- would be appropriate in the present case.

19. So far as the sixth issue relating to future prospect is concerned,

since the victim at the time of accident was admittedly 50 years and 1

month of age and was on fixed salary, following the observation of Hon'ble

Supreme Court in National Insurance Company Limited versus Pranay

Sethi and Others6, the victim is entitled to an amount equivalent to 10%

of his annual income towards future prospect.

20. Coming to the last issue relating to grant of interest on compensation

amount, it is found that the learned Tribunal has granted interest @ 8%

6 (2017) 16 SCC 680

per annum on the compensation amount. Mr. Paul, learned advocate for

appellant-insurance company argued that the interest on the

compensation amount should be scaled down bearing in mind the

prevalent banking rate of interest. In view of the aforesaid submissions

and also considering the prevalent banking rate of interest, the

compensation amount shall carry interest @ 6% per annum.

21. In view of the above discussion, the calculation of compensation is

made hereunder:

Calculation of Compensation

Annual income Rs. 5,19,724/-

         Add: Future prospect @ 10%                Rs. 51,972/-
              of the annual income
                                                   Rs. 5,71,696/-
         Loss of earnings: 75% loss of income      Rs. 4,28,772/-
         Adopting multiplier 13                    Rs. 55,74,036/-
         (Rs. 4,28,772/- x 13)
         Add: Medical expenses incurred            Rs. 1,81,908/-
         Add: Pain and agony                       Rs. 50,000/-
         Add: Future medical expenses              Rs. 2,00,000/-
         Total compensation                        Rs. 60,05,944/-