1. The captioned appeal and cross objections have been
preferred against the impugned judgment and award dated
19.02.2016 passed by the learned Motor Accident Claims
Tribunal (Aux.), Gandhidham at Kachchh in M.A.C.P. No. 30 of
2001, whereby the learned Tribunal partly allowed the Claim
Petition and awarded a sum of Rs.3,51,000/- (Rupees Three
Lakh Fifty-One Thousand Only) along with interest at the rate
of 9% per annum, from the date of filing of the claim petition
till its realization, as compensation.
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2. The succinct facts, which led to the filing of the
captioned appeal and cross objections are summarized as
under:-
v. In order to prove his case, the original claimant
led oral as well as documentary evidence, such
as:-
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Sr. No. Description of documents Exh. No.
1 Affidavit in examination-in-chief of 31
Claimant.
witness - Khengar Bhurabhai Madhavi
Patel
accident
hospital
Sajan Gova Rabari
with disabilities given by G. K. General
Hospital, Bhuj
claimant
issued by KPT
opponent No.1
making amputation of claimant's leg
18 Blood Group Report of the claimant 53 to 54
Radhanpur Government Hospital
20 Xerox copy of Case papers of 56 to 58
Radhanpur Government Hospital
Oza,Radhanpur
22 Salary Slip of the claimant 60 to 63
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Rajendra Shah
Prashanti Hospital of Dr. Hotchandani
Mahesh Khandelval, M.S. Ortho
Mehsana for taking treatment w.e.f.
7/3/05 to 26/3/05
Micro for taking blood
27 Xerox copy of bill of Dr. Vikram Patel, M. 68
D., Mehsana
28 Xerox copy of bill of Sarvoday Blood 69 to 70
Bank
Gandhidham of Rs. 12,000/-
by Prashanti Hospital Gandhidham from
5/7/2000 to 5/8/2000
31 Xerox copy of bill of Prashanti Hospital, 73 to 76
Gandhidham
Hospital, Gandhidham
Mehsana
Gandhidham
Hospital, Gandhidham
Gandhidham Blood Report
37 Prescriptions of Dr. Hemang Patel 82 to 83
bills
39 X-ray Plates claimant's leg 85 to 93
moped No.GJ-12-S-962
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GJ-32 12-C-5356
Scooter No. GJ-12-C-5356
Opponent No.1
claimant
47 Prashanti Orthopaedic Hospital,
Gandhidham
vi. Having considered the oral as well as
documentary evidence on record, the learned
Tribunal partly allowed the Claim Petition and
awarded a sum of Rs.3,51,000/- (Rupees Three
Lakh Fifty-One Thousand Only) along with
interest at the rate of 9% per annum, from the
date of filing of the claim petition till its
realization, as compensation.
vii. Being aggrieved and dissatisfied with the
impugned judgment and award, the appellant -
Insurance Company has preferred the captioned
appeal on the ground of quantum and original
claimant has preferred the cross objections on the
ground of quantum.
3. Heard learned counsels for the parties.
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4. Mr. R. G. Dwivedi, learned counsel appearing on behalf
of the appellant - Insurance Company vehemently submitted
that the original claimant has not sustained any loss,
therefore, the learned Tribunal has committed error in
awarding a sum of Rs.3,40,800/- under the head of Loss of
amenities of life. In support of his contentions, learned
counsel appearing for the Insurance Company relied upon the
judgment rendered by the Hon'ble Apex Court in the case of
New India Assurance Company Limited vs. Sathish Chandra
Sharma and Anr. reported in 2022 ACJ 1211. He further
submitted that the learned Tribunal has awarded the
compensation at a higher side, therefore, the same is required
to be reduced and the impugned judgment and award be
modified accordingly.
5. Per contra, Mr. Y. J. Patel, learned counsel appearing on
behalf of the original claimant/objector herein vehemently
submitted that the learned Tribunal has awarded a meagre
amount of Rs.3,40,800/- under the head of Loss of amenities
of life. He further submitted that the learned Tribunal has
committed error in applying the multiplier of "5", though at
the time of accident the claimant was aged about 46 years,
therefore, in view of the judgment rendered by the Hon'ble
Apex Court in the case of Sarla Verma and Ors. Vs. Delhi
Transport Corporation reported in 2009 AIR (SC) 3104 and
National Insurance Company Ltd. Vs. Pranay Sethi reported
in 2017 (16) SCC 680, the multiplier according to the age of
the claimant ought to have been applied for calculating the
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Loss of amenities of life. He further submitted that the
learned Tribunal has awarded a meagre amount under the
head of Actual loss of income though it is on record that the
claimant has sustained grievous injuries in the vehicular
accident and resultantly his left leg was amputated above the
knee. He further submitted that the learned Tribunal has
awarded a meagre amount of Rs.25,000/- under the head of
Pain, shock and suffering. He contended that the learned
Tribunal failed to appreciate that the claimant had to undergo
surgical operations and medical treatment for a long period of
time, resultantly, his leg was amputated above the knee.
Therefore, the amount awarded under the head of Pain, shock
and suffering is required to be enhanced. In support of his
contentions, learned counsel appearing for the original
claimant placed reliance upon the judgement rendered by the
Hon'ble Apex Court in the case of Jagdish v. Mohan & Ors.
reported in 2018 (O) AIJEL-SC-61861 and Karthik
Subramanian v. B. Sarath Babu & Anr. rendered by the
Hon'ble Apex Court in Civil Appeal Nos.799-800 of 2021. He
further submitted that the learned Tribunal has awarded
meagre amount under the head of Special diet, transportation
& attendant charges. He contended that the compensation
awarded by the learned Tribunal is required to be enhanced
and the impugned judgment and award be modified to that
extent.
6. Having considered the submissions of the learned
counsels for the parties and having perused the material
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available on record, it is to be noted that the issue of
negligence has not been raised either by the appellant -
Insurance Company or Cross Objector - original claimant.
Both the parties have challenged the impugned judgment and
award on the ground of quantum.
7. It is undisputed fact that at the time of accident, the
original claimant was aged about 46 years and was working as
chowkidhar at Kandla Port, thereby earning salary of
Rs.7,049/- per month. It is also not in dispute that in the said
accident, the claimant sustained fracture on the left leg and as
a result, his left leg was amputated above the knee, and as per
the disability certificate, he sustained the disability of 80%
and the learned Tribunal has considered the said disability of
the claimant as 80% body as a whole.
8. The learned Tribunal for assessing the Loss of amenities
of life applied the multiplier of "5". It has been argued on
behalf of the learned counsel for the original claimant that the
multiplier in accordance to the age of the claimant is required
to be applied in view of the judgment rendered by the Hon'ble
Apex Court in the case of Karthik Subramanian (supra). In the
case of Karthik Subramanian (supra), the Hon'ble Apex Court
had applied the multiplier in accordance to the age and
thereafter considered 50% of the monthly income to calculate
the Loss of earning power. In the judgment of Raj Kumar Vs
Ajay Kumar & anr. reported in 2011 (1) SCC 343, the
Hon'ble Apex Court observed that in the case of an employee
where the claimant has not sustained any monetary loss on
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account of the disability, the Tribunal has to award the
compensation under the head of Loss of amenities in the place
of Future loss of income. In the case on hand, the learned
Tribunal has awarded a sum of Rs.3,40,800 under the head of
Loss of amenities of life. In my considered view, the learned
Tribunal has not committed any error in awarding a sum of
Rs.3,40,800/- under the head of Loss of amenities of life, as
such, the compensation awarded the head of Loss of amenities
of life is maintained, and the same is not required to be
interfered with.
9. So far as the compensation awarded under the head of
Actual loss of income is concerned, the learned Tribunal has
awarded a sum of Rs.14,200/- as a Loss of actual income. It is
on record that the original claimant sustained grievous
injuries of fracture in the vehicular accident, as result of
which, his left leg was amputated above the knee. The doctor
has certified that the original claimant has sustained the
disability of 80%. It is also on record that the claimant was
admitted as an indoor patient and was treated at several
medical facilities, including those of Dr. Hotchandani,
Rajasthan Hospital, the Government Hospital at Radhanpur,
Dr. Khandelwal (Mehsana), Dr. Vikram Patel (Mehsana), and
Dr. Hemant Patel (Khachchh-Bhuj, Gandhidham). Therefore, it
is on record that the claimant has undergone medical
treatment from many doctors. Thus, considering the nature of
injuries, period of medical treatment undergone, it would be
just and proper if the Actual loss of income is considered for a
period of four months. Accordingly, a sum of Rs.28,400/- (i.e.,
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Rs.7,100/- X 4 months) is awarded under the head of Actual
loss of income and accordingly, the compensation awarded
under the head of Actual loss of income is enhanced from
Rs.14,200/- to Rs.28,400/-.
10. The learned Tribunal had awarded a sum of Rs.25,000/-
under the head of Pain, shock and sufferings. It is on record
that the claimant's left leg was amputated above the knee and
he remained hospitalized for a long period of time. Thus,
considering the nature of injuries and amputation of the left
leg above the knee, it would be just and proper if a sum of
Rs.2,00,000/- is awarded under the head of Pain, shock &
sufferings in view of the ratio of judgment of Mohd. Sabeer @
Shabir Hussain v. Regional Manager, U.P. State Road
Transport Corporation reported in [2022 SCC Online SC
1701]. Accordingly, the compensation awarded under the
head of Pain, shock & sufferings is enhanced from Rs.25,000/-
to Rs.2,00,000/-.
11. Further, the learned Tribunal had awarded a meagre
amount of Rs.10,000/- under the head of Special diet,
transportation and attendant charges. Considering the nature
of injuries and period of hospitalization undergone by the
claimant, it would be just and proper if a sum of Rs.30,000/- is
awarded under the head of Special diet, transportation and
attendant charges and accordingly, the compensation
awarded under the head of Special diet, transportation and
attendant charges is enhanced from Rs.10,000/- to
Rs.30,000/-.
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12. Therefore, in view of the above discussion, the original
claimant herein shall be entitled for the compensation under
the following heads:-
Sr. Head Amount in rupees.
No.
1 Loss of amenities of life. 3,40,800/-
2 Actual loss of income for four (+) 28,400/-
months.
3 Pain, shock & sufferings. (+) 2,00,000/-
4 Special diet, transportation and (+) 30,000/-
attendant charges.
5 Total Compensation 5,99,200/-
13. The claimant was held negligent to the extent of 10% for
causing the accident. Therefore, 10% of the total
compensation amount is to be deducted on account of the
claimant's contributory negligence. After such deduction, the
original claimant shall be entitled to receive a total
compensation of Rs. 5,39,280/- (i.e., Rs. 5,99,200/- minus 10%
of Rs. 5,99,200/-).
14. The learned Tribunal vide its impugned judgment and
award awarded a total compensation of Rs.3,51,000/- after
deducting 10% on account of the negligence of the original
claimant. Therefore, the original claimant shall be entitled for
an additional compensation to the tune of Rs.1,88,280/-
(Rs.5,39,280/- minus Rs.3,51,000/-). The learned Tribunal has
awarded interest at the rate of 9% per annum from the date of
filing of the Claim Petition till realization. The said rate of
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interest is maintained; accordingly, the original claimant
herein shall be entitled to 9% of interest per annum on the
additional amount of compensation from the date of filing of
the Claim Petition till its realization.
15. Thus, in view of the above discussion, the impugned
judgment and award stands modified to the aforesaid extent
and accordingly, the captioned appeal stands dismissed, and
the cross objections filed by the original claimant stands
allowed.
16. The appellant - Insurance Company shall deposit the
enhanced amount of compensation along with interest within
a period of six weeks from today. Upon depositing the said
amount, the learned Tribunal shall disburse the entire
awarded amount to the original claimant (deducting deficit
Court fee, if any), after due verification.
17. Amount, if any, lying deposited with the Registry of this
Court shall be transmitted to the learned Tribunal concerned
forthwith. Records & Proceedings if any, be sent to the
learned Tribunal concerned. No order as to costs.
18. Pending application, if any, stands disposed of,
accordingly.
(MOOL CHAND TYAGI, J)
ARUN.
