Chattisgarh High Court
Manish Kumar Khaparde vs Narsingh Gond on 16 November, 2021
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No. 1334 of 2015
Judgment Reserved On : 01/11/2021
Judgment Delivered On : 16/11/2021
Manish Kumar Khaparde S/o Late Bhavan Singh, Aged About 20 Years
R/o Saat-Para, P.S. And Tahsil- Abhanpur, Distt. Raipur, Chhattisgarh
---- Appellant/Claimant
Versus
1. Narsingh Gond S/o Jagannath Gond, R/o Sec.-7, Street No.26, Qtr. No.
26-D, Bhilai, P.S. Kotwali, Distt. Durg, Chhattisgarh
(Driver Of Bus No. C.G. 04/ E/ 1282)
2. Bhavesh Dubey S/o Mani Lal Dubey, Through M/s Dubey Travels,
Pandari Bus Stand, Raipur, Tah. And Distt. Raipur, Chhattisgarh
(Owner Of Bus No. C.G. 04/ E/ 1282)
3. The Oriental Insurance Co. Ltd., Through Divisional Manager, The
Oriental Insurance Company Ltd., Near Kachery Chowk, Jail Road,
Raipur, Distt. Raipur, Chhattisgarh
(Insurer Of Bus No. C.G. 04/ E/ 1282)
---- Respondent
For Appellant : Shri Amiyakant Tiwari, Advocate.
For Respondent No.3 : Shri Anumeh Shrivastava, Advocate.
Hon'ble Shri Deepak Kumar Tiwari, J
C A V Order
1. The appellant would call in question the impugned order dated
27.2.2015 passed by the 1st Additional Motor Accident Claims Tribunal,
Raipur in Claim Case No.17/2013 whereby the appellant has been
awarded compensation of Rs.3,39,000/- jointly and separately, which
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was directed to be deposited within one month from the date of award.
Interest @ 6% was also awarded from the date of filing of claim
petition till the actual payment is made. By way of present Appeal the
appellant seeks to enhance the award amount.
2. Facts
of the case, in brief, are that on 10.11.2012 at about 10.30 pm the
present appellant along with his friends was going to Abhanpur in a
auto-rickshaw bearing registration No.CG-04/T/7773. When they
reached near Village Gotiyardih, respondent No.1 dashed the said auto-
rickshaw by driving the Bus No.CG-04E/1282 in a rash and negligent
manner resulting into grievous injuries to the present appellant and
death of two persons. In the said accident, the appellant had received
several injuries including multiple fracture on his right hand, jaw and
right leg. He also received injury on his head resulting in blood
clotting, as a result thereof his left hand and left leg were paralyzed.
The eye ball of right eye came out because of which the appellant lost
proper vision.
3. It was argued that at the time of accident the appellant was aged about
20 years and was working as Wall Putty Worker. He used to earn
Rs.250/- per day. The appellant has now become a permanent disable
person and unable to perform his work due to paraplegic condition, as
also because of loss of vision. In order to prove the factum of
permanent disability, the appellant examined Dr. PK Gupta (AW-2),
who proved the endorsement in the official register and the disability
certificate assessing the extent of disdablement up to 45%.
4. While deciding the claim of the appellant, the Claims Tribunal accepted
the evidence of the doctor and found the disablement up to 45% but did
not accept the plea that the appellant was earning Rs.250/- per day and
assumed his income at the rate of Rs.36,000/- per annum and applied
multiplier of 17. Since in the said accident the appellant is found to
suffer only 45% permanent disability, in that event the compensation
was assessed at Rs.6,12,000x45% which comes to Rs.2,75,400/-. The
Claims Tribunal allowed Rs.52,200/- for medical expenses, Rs.5400/-
towards special diet and Rs.6,000/- towards pain and suffering.
5. I have heard learned counsel for the parties and perused the record.
6. Manish Kumar (AW-1) is the injured in whose favour the Medical
Board has issued 45% permanent disability certificate (Ex.-P/68). By
the impugned award, after considering the age of the victim and
applying multiplier of 17, the following compensation was awarded:-
Sr. No. Heads Amount
1. For loss of earning Rs.2,75,400/-
2. For treatment supported by the Rs.52,200/-
medical bills
3. For Special Diet Rs.5400/-
4. For pain and suffering Rs.6,000/-
Total 3,39,000/-
7. Learned counsel for the appellant submitted that the Tribunal has not
properly assessed the loss of earning capacity. The victim was doing
the work of Painting and was earning Rs.250/- per day. Looking to the
nature of job, his income has to be presumed 100%. In the said
accident, the injured has sustained injuries on his jaw, right leg, blood
clotting on his head and fracture on the right hand. His left hand and
left leg were paralyzed. Dr. PK Gupta, Member of the Medical Board,
has proved the disability certificate and stated that the victim has
suffered Locomotor disability on left upper and lower limb. The
Medical Board opined that it was a case of Post Head injury Residual
Hemiparesis. In the cross-examination, he has admitted that the
disability was counted for a particular limb and not for the whole body.
As the injured has no permanent job and for want of documentary
evidence, then in such cases, normally guess work is required. Hence,
the Tribunal has rightly assessed the notional income of the victim at
Rs.3,000/-.
8. After considering the age of injured to be 20 years, multiplier of 17 has
been applied. In Sarla Verma (Smt) and Others Vs. Delhi Transport
Corporation and Another (2009) 6 SCC 121} it was held by the
Hon'ble Supreme Court that the multiplier of 18 for the age group of
15-20 years should be applied. Therefore, the correct multiplier of 18
has to be applied instead of 17. Looking to the nature of disability, the
learned Tribunal has rightly found his functional disability and loss of
income at the same rate of 45%, as assessed by the Medical Board.
Therefore, this Court after considering the evidence, does not find any
justification to change the assessment, as the finding is rational on this
score.
9. Learned Tribunal has not awarded any amount on the head of future
prospects. Even in injury cases the future prospects is given. In the
matter of Lalan D. Alias Lal Vs. Oriental Insurance Company Ltd.
{AIR Online 2020 SC 734, decided on 17 th September, 2020}, applying
the ratio given in the matter of National Insurance Company Ltd Vs.
Pranay Sethi and Others {(2017) 16 SCC 680}, it was observed that
where the victim had no permanent job and self employed, the loss of
future prospects at the rate of 40% is to be added for below the age of
40 years.
10.Therefore, loss of earning is assessed on notional yearly income
Rs.36,000x18x45% at Rs.2,91,600/- in which 40% for future prospects
i.e. the amount of Rs.1,16,640/- is to be added on this head. Thus total
amount on this head comes to Rs.4,08,240/-.
11.For the treatment supported by the medical bills, the Tribunal has
awarded Rs.52,200/-. Looking to the nature of injuries, the victim
would have to take some treatment in the future also and some bills may
not have been filed, therefore, on this head, Rs.20,000/- is required to be
added. Hence total amount on this head comes to Rs.52,200+20,000/- =
72,200/-.
12.For loss of expectancy of life, no amount has been awarded, therefore,
Rs.10,000/- is added on this head.
13.For pain and suffering, an amount of Rs.6,000/- is awarded, which is
modified at Rs.10,000/-. For Special Diet, only Rs.5400/- has been
awarded, which is required to be modified at Rs.10,000/-. On the head
of attendant, no amount has been awarded, therefore, an amount of
Rs.10,000/- is awarded on this head also.
14.Thus, the claimant would be entitled for the following compensation :-
Sr. No. Head Amount
1. Loss of Earning Rs.2,91,600/-
2. For Future Prospects Rs.1,16,640/-
3. For Medical treatment Rs.72,200/-
4. For loss of expectancy of life Rs.10,000/-
5. For pain and suffering Rs.10,000/-
6. For Special diet Rs.10,000/-
7. For attendant Rs.10,000/-
Total Rs.5,20,440/-
Amount already awarded Rs.3,39,000/-
Enhanced amount Rs.1,81,440/-
15.The appellant is held to be entitled for total compensation of
Rs.5,20,440/- with 6% interest per annum from the date of filing of
claim petition i.e. 8.4.2013 till its realization. Other conditions of the
award passed by the learned Claims Tribunal shall remain in tact.
16.In the result, the Appeal filed by the Claimant is allowed in part to the
extent as indicated above.
Sd/-
(Deepak Kumar Tiwari)
Judge
Barve
