Gauhati High Court
New India Assurance Co. Ltd vs Dilli Ram Sharma And 2 Ors on 16 November, 2021
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GAHC010198202015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./272/2015
NEW INDIA ASSURANCE CO. LTD.
HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT NEW INDIA
ASSURANCE BUILDING 87, MAHATMA GANDHI ROAD, FORT MUMBAI-
400001 AND REGIONAL OFFICE AT G.S. ROAD, GUWAHATI 781005
REPRESENTED BY THE CHIEF REGIONAL MANAGER
VERSUS
DILLI RAM SHARMA and 2 ORS.
S/O LATE PADMALAL SHARMA, R/O VILL. GEJEGAGURI, P.S. SIRAJULI, P.S.
DHEKIAJULI, DIST. SONITPUR, ASSAM.
Advocate for the Petitioner : MR.SIDHANT DUTTA
Advocate for the Respondent : MR. S C BISWAS
BEFORE
HONOURABLE MR. JUSTICE NANI TAGIA
ORDER
Date : 16.11.2021
Heard Mr. S. Dutta, learned counsel for the appellant /Insurance Company.
Also heard Mr. S. C. Biswas, learned counsel appearing on behalf of the
respondent No. 1/claimant.
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This is an appeal u/s. 173 of the M.V. Act, 1988, preferred against the
judgment & order, dated 10.01.2014, passed by the learned Member,
MACT/Addl. District Judge No. 2, Tezpur, in MAC. Case No. 345/2007, whereby a
compensation amount of Rs. 4,25,150/-, have been awarded to be paid to the
respondent No. 1/claimant.
The facts leading to the filing of the instant appeal, briefly stated, are as
follows:
The respondent No. 1/claimant Dilli Ram Sharma(since deceased) who is
now substituted by his legal heir, namely, Smt. Hima Devi, had instituted a
claim petition, praying for compensation for the injuries sustained by him in a
road accident on 20.04.2007, involving a vehicle bearing Registration No. AS-
12A-2445(Bus) which was insured with the appellant/ Insurance Company. In
the said claim petition, the claimant has stated that on 20.04.2007, while he
was going towards Orang Chariali from Gegengaguri Tiniali, National Highway
52, the said vehicle coming from Dhekiajuli side knocked him down as a result
of which, the claimant came under the front wheel of the vehicle and suffered
grievous injuries including fracture of the 6 th rib on the right side, crash injuries
on the right foot leading to debridement and disarticulation of right great toe.
After the accident, the claimant was immediately rushed to the Kanaklata Civil
Hospital, Tezpur, whereafter, he was referred to the Gauhati Medical College &
Hospital, Guwahati, where, he was admitted as an indoor patient on 25.04.2007
and discharged on 08.06.2007.
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The owner and driver of the vehicle did not contest the claim. The
respondent No. 3/Insurance Company contested the claim petition by filing a
written statement wherein, it was stated that the compensation claimed by the
claimant is highly exaggerated and speculative. It was further stated that the
insurer/Insurance Company is not liable to pay any compensation until and
unless, it is proved that the driver of the offending vehicle has a valid driving
license and the conditions of the insurance policy have not been violated by the
insured.
On basis of the rival pleadings, the learned Tribunal had framed 3(three)
issues for determination, which are, stated, as under:
1. Whether the accident took place due to rash and
negligent driving by the driver of the offending vehicle?
2. Whether the claimant is entitled to pay compensation as
prayed for?
3. To what relief, the parties are entitled?
The claimant had examined 4 witnesses viz. CW-1 is the claimant himself;
CW-2 is one Sri Dharmeswar Sharma who is the eye-witness of the accident;
CW-3 is Dr. Bhupendra Mohan Das, a Sr. Medical & Health Officer of Kanaklata
Civil Hospital, Tezpur, and also a Board Member of the District Disability
Rehabilitation Centre as Surgical Specialist; and CW-4 is one Sri Nail Nath, a
staff of the District Disability Rehabilitation Centre.
On the evidence tendered by CWs No. 1 to 4; the learned Tribunal had
answered all 3(three) issues in affirmative in favour of the claimant and a
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compensation amount was determined at Rs. 4,25,150/- under the following
heads:
Medical expenses : Rs. 28,550.00
Incidental expenses during treatment : 10,000.00
special diet, attendant, etc.
Loss of income : 9,000.00
Loss of future earning : 3,27,600.00
Pain, shock and suffering : 50,000.00
Total : Rs. 4,25,150.00
The limited grievance of the appellant, herein, is with regard to the
determination arrived at by the learned Tribunal in respect of loss of future
earning to the extent of Rs. 3,27,600/-.
According to Mr. Dutta, learned counsel for the appellant/ Insurance
Company, the learned Tribunal while determining at Rs. 3,27,600/- for the loss
of future earning; had arrived at the said figure by adding 30% on the monthly
income of the claimant which was determined at Rs. 3,000/- for the loss of
future prospect and a multiplier of 50% for the loss of future earning, which,
according to him, ought to have been 25% and 20% respectively, in terms of
the judgment rendered by the Hon'ble Apex Court in the case of National
Insurance Co. Ltd. Vs. Pranay Sheti & ors. [reported in (2017)16 SCC 680]
and in terms of Schedule I Part II Serial No. 24 of the Employee's Compensation
Act, 1923, respectively, as the claimant is stated to have suffered amputation of
only one toe.
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On the other hand, Mr. Biswas, learned counsel for the respondent No.
1/claimant, vehemently argues that CW-3, the Doctor who had treated the
claimant, had deposed that he had examined the claimant and on examination,
found amputation of right great toe with deformity of right foot and disability at
50%. Therefore, Mr. Biswas, contends that since the expert witness has
categorically stated that the disability suffered by the claimant was 50%, the
learned Tribunal had correctly applied the multiplier of 50% for loss of future
earning and hence, no interference is called for to the judgment and order,
impugned herein.
Rival contentions advanced by the learned counsels for the contesting
parties have received due consideration of this Court.
The limited question which calls for determination in this appeal as raised
by the appellant/Insurance Company is with regard to the award of Rs.
3,27,600/- for the loss of future earning of the claimant.
It is not disputed that as a result of the accident that took place on
20.04.2007 involving the vehicle bearing Registration No. AS-12A-2445(Bus)
insured with the appellant/Insurance Company, the claimant/respondent No. 1
had suffered grievous injuries leading to amputation of right great toe with
deformity of right foot.
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It is also not disputed that the percentage of disability suffered on basis of
the nature of injuries sustained by the claimant, according to the Doctor who is
CW-3, is stated to be 50%.
From a perusal of the impugned judgment & order, dated 10.01.2014, it is
noticed that while assessing the loss of future earning after the monthly income
of the claimant was taken at Rs. 3,000/-, the learned Tribunal had added 30%
for loss of future prospect and a multiplier of 50% for loss of future earning.
Under the M.V. Act, 1988, as it stood prior to 2019 amendment; in the
case of injury, Section 163A provided that in case of disability, the percentage of
disability suffered would be determined in accordance with Schedule I under the
Employee's Compensation Act, 1923.
A perusal of Schedule I Part II Serial No. 24 of the Employee's
Compensation Act, 1923, provides that the percentage of loss of earning
capacity in case of loss of all toes of one foot through the metatarso-phalangeal
joint is 20%. Thus, if all toes of one foot are lost in case of injury sustained, the
percentage of earning capacity shall be 20%. However, the learned Tribunal in
the impugned judgment & order, dated 10.01.2014, had taken the percentage
of earning capacity at 50% though the claimant had suffered amputation of
right great toe with deformity of right foot, which, in other words, would signify
that the percentage of loss of earning capacity ought to have been 20% as per
Serial No. 24 of Part II of Schedule I of the Employee's Compensation Act, 1923.
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Another grievance of the appellant/Insurance Company with regard to the
impugned judgment & order, dated 10.01.2014, is the addition of 30% as loss
of future prospect on the monthly income of Rs. 3,000/- of the injured/claimant,
which, according to the learned counsel for the appellant/ Insurance Company,
should have been 25% as provided in the judgment rendered by the Hon'ble
Apex Court in Pranay Sethi(supra).
On perusal of the judgment, it is noticed that in an injury case where the
injured is self-employed and aged between 40 to 50 years, another 25% of the
monthly income can be added as a future prospect. In the instant case,
admittedly, the claimant/ injured was aged 42 years at the time of the accident,
which have not been disputed by the parties and accordingly, in terms of the
ratio laid down by the Hon'ble Apex Court in Pranay Sethi(supra), the learned
Tribunal appears to have erred in adding 30% on the monthly income of the
claimant/injured instead of 25%.
Situated thus, the addition of 30% on the monthly income of the
claimant/injured and addition of 50% of multiplier for loss of future earning
capacity, so adopted by the learned Tribunal is hereby interfered with and it
shall stand modified to 25% and 20% respectively insofar as computation for
loss of future earning is concerned.
Thus calculated, the claimant/respondent No. 1 would be entitled to Rs.
1,26,000/- under the heading "loss of future earning" instead of Rs. 3,27,600/-
as awarded by the learned Tribunal vide impugned judgment & order, dated
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10.01.2014.
However, the compensation awarded by the learned Tribunal vide
impugned judgment & order, dated 10.01.2014, under the other headings
remaining unaltered; the claimant/ respondent No. 1 will now be entitled to a
total compensation of Rs. 2,23,550/-.
In view of the above, the judgment & order, dated 10.01.2014, passed by
the learned Member, MACT/Addl. District Judge No. 2, Tezpur, in MAC. Case No.
345/2007, stands modified to the extent as indicated above. However, the
interest to be paid by the appellant/Insurance Company to the
claimant/respondent No. 1 at the rate of 6% p.a. from the date of filing of the
claim petition by the said claimant i.e. 14.12.2007, till payment; shall remain
unchanged.
At this stage, it is submitted by Mr. Dutta, learned counsel for the
appellant/Insurance Company, that a sum of Rs. 2,00,000/- have already been
deposited before the Registry of this Court pursuant to this Court's order, dated
23.12.2015, passed in M.C. No. 1623/2015.
In view thereof, the appellant/Insurance Company shall deposit the
remainder balance amount of the total award, as indicated hereinabove, before
the Registry of this Court within a period of 6(six) weeks from today.
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The statutory deposit of Rs. 25,000/- made by the appellant/Insurance
Company shall be adjusted with the remainder balance amount to be deposited
by the appellant/ Insurance Company, within the period, noted-above.
With the above directions, the appeal stands allowed and accordingly
stands disposed of.
Send down the connected LCRs forthwith.
JUDGE
Comparing Assistant
