Jammu & Kashmir High Court - Srinagar Bench
National Insurance Company ... vs Mohammad Ramzan Ganaie & Others on 23 March, 2021
Suppl. Cause List
S.No. J1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Pronounced on: 23.03.2021
CMAM No. 24/2016
National Insurance Company Limited ...Appellant(s)
Through :- Mr. Nisar A. Dandro, Advocate.
v/s
Mohammad Ramzan Ganaie & others ...Respondent(s)..
Through :- Mr. B. A. Tak, Advocate.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: :
JUDGMENT
1. The appellant-Insurance Company has challenged the Award of the
learned Motor Accidents Claims Tribunal, Srinagar on the following
grounds:-
a) The award dated 19.11.2015, passed by the Tribunal is bad in law
as the Tribunal has not decided the compensation amount in
accordance with the Schedule (I) attached to the Employees
Compensation Act, 1923 but as per the provisions of the Motor
Vehicles Act.
b) The quantum of compensation assessed by the Tribunal is on higher
side.
c) The liability of the appellant, if any, to pay compensation to the
victim is restricted one as per the Policy.
2. The learned counsel for the appellant has indeed argued the appeal in
consonance with the averments contained in the appeal. The learned
counsel appearing for the claimant/respondent No.1 has submitted that
the Tribunal has passed the order in accordance with law. The
compensation awarded is 'Just' in the facts and circumstances of the
case.
3. The record of the Tribunal is also before the Court for perusal.
4. The learned Tribunal has awarded Rs.5,52,888/- with interest @ 6%
per annum from the date of institution of claim petition till realization
of the amount in favour of the claimant/respondent No.1 herein.
5. Before proceeding further, it is profitable to place on record the claim
raised by the respondent No.1 before the Tribunal. The
claimant/respondent No.1 preferred claim petition before the Tribunal
with the averments that he had incurred permanent disablement as he
suffered the injuries while the vehicle (Tipper) bearing No. JK01E-
1910 was in use at the time of accident on 01.06.2008. The claimant
was engaged as labourer in loading/unloading of stones with the
offending vehicle at the time of accident. The claimant suffered
injuries on his left hand as a result he had to undergo treatment at
different hospitals. The claimants suffered amputation of the left,
middle and ring finger. The Tribunal held the claimant entitled for
aforesaid amount after going through the evidence that came on record.
6. The first question which requires determination is whether the
Tribunal erred in granting compensation to the claimant as per the
provisions of the Motor Vehicles Act and not the Employees
Compensation Act as stated in appeal. The appellant while filing the
appeal has admitted that the claimant was entitled to avail the remedy
under Section 167 of the Motor Vehicles Act or the labour law. The
claimant has opted to avail the remedy under the provisions of the
Motor Vehicles Act though he could avail the remedy under the
Labour Law as he was performing the duties as labourer at the time of
accident. Once the claimant opted to avail the remedy under the Motor
Vehicles Act, the consequence of the same is that the case of the
claimant is to be dealt with under the provisions of the Motor Vehicles
Act and not under the other Act. The argument raised by the learned
counsel is without any basis and stands rejected.
7. The next issue which is required to be determined is: whether the
compensation awarded by the Tribunal is 'just' in the facts and
circumstances of the case. The amount to which the claimant may be
entitled to has to be as per the spirit of the Motor Vehicles Act and not
otherwise. There can neither be windfall or bounty nor there should be
pittance to the claimant in case he is to be awarded the compensation
for the injuries suffered by him as a result of accident. The insurer is
not normally entitled to challenge the compensation awarded to the
claimant by the Tribunal. The insurer can take the defences as
available to it only after the permission is granted by the Tribunal for
the same and not otherwise. In the present case, the insurance company
though has filed reply to the claim petition yet failed to apply and
obtain permission before the Tribunal for taking defences available as
per the Motor Vehicles Act. Not only that, it is also evident from the
record that the appellant was set ex-parte during the course of
proceedings and failed to cross-examine the witnesses who appeared
before the Tribunal in support of the claim petition. The Court however
proceeds to decide the argument of the appellant that the amount
awarded to the claimant/respondent No.1 is in excess of what was due
to the claimant and therefore cannot be said that the claimant has been
awarded 'just' compensation by the Tribunal.
8. In Kajal Versus Jagdish Chand & ors. (Civil Appeal 735 of 2020
decided on 5.2.2020) the Hon'ble Supreme Court while deciding the
appeal increased the compensation from 11 lacs, awarded by the
Tribunal, to 62 lacs to the girl-claimant, who had suffered physically
and had even acute mental problem due to the accident, after taking
into consideration various factors.
9. The learned Tribunal while deciding the claim petition has held that
the claimant suffered injuries as a result of negligence and carelessness
of the driver of the vehicle. The evidence produced by the claimant in
respect of Issue No.1 framed before the Tribunal regarding the
accident taking place due to the careless and negligent driving of the
driver before the Tribunal was not rebutted by the respondents. This
Court finds no reason to disagree with the findings of the learned
Tribunal on Issue No.1 framed by the Tribunal. Otherwise too, the
appellant has also not for all practical purposes disputed the accident.
10. The learned Tribunal while awarding the compensation in favour of the
claimant therein has taken note of the pronouncements of the Apex
Court. It may be relevant to take into consideration the nature of
disability incurred by the claimant due to the accident. The claimant
has remained admitted in the Bone and Joint Hospital, Srinagar and
thereafter in SKIMS, Srinagar for a period of more than one month and
was subjected to the surgeries. Dr. Khursheed Ahmad Kangoo,
Associate Professor, B&J Hospital, Srinagar has deposed before the
Tribunal and has also examined the claimant during the course of his
examination as a witness before the Tribunal. The Doctor has
examined the claimant at the initial stage in B&J Hospital, Srinagar
and has stated that the case of the claimant was a case of fresh injury of
left hand with loss of third and fourth fingers and exposed tendons and
bone of the left hand. The wound debridement and Kwire fixation was
done to the patient in the said hospital. The patient was advised for
plastic surgical consultation at SKIMS, Soura. As per the witness, the
petitioner has 55% permanent disablement of left upper limb and being
labourer the disability is to definitely affect his capacity to earn. The
discharge summary certificate issued by the SKIMS, Srinagar is also
on the record. The Tribunal has held that the evidence on record fully
substantiates the issue of the claimant having received injuries on the
left hand. The appellate court also finds no reason to disturb the
findings of the learned Tribunal on this aspect of the case.
11. The Tribunal while awarding the compensation has held that the
claimant while having permanent disability of 55% his earning
capacity stands effected to the extent of 90%. The learned counsel for
the appellant has submitted that there was no reason for the Tribunal to
reach such finding. In other words, the 90% disability in earning
capacity of the claimant does not co-relate with the disability of 55%
suffered by him. It may be mentioned herein that the certificate of
disability showed 40% of disability at the initial stage. The
disablement of left upper limb was found to the extent of 55% during
the proceedings of the claim petition by the doctor at the time of
examination of the claimant on 20.08.2011. The assessment made by
the Tribunal that the claimant had suffered 55% permanent disability is
not unjustified or unreasonable which may require any interference in
the appeal on that score. As far as the Tribunal holding that the loss of
earning capacity of the claimant as labourer cannot be less than 90%
the same cannot be sustained keeping in view that the claimant who is
labourer had suffered the injury of two fingers of left hand only. The
90% disability means almost complete inability of the petitioner to
carry his vocation which cannot be held to be the case in the present
matter. There cannot be calculation with mathematical precision as to
how much the claimant can be said to have suffered qua the earning
capacity as a result of permanent disability incurred by him due to
accident. However, keeping in view the nature of injury received and
the occupation of the claimant the loss of earning capacity of the
victim is assessed at 65%.
12. Now taking stock of the actual compensation awarded by the Tribunal
under various heads to the claimant, the Tribunal has assessed the
income of the claimant being labourer as Rs.3000/-per month. The
Court does not find any fault in the conclusion reached by the Tribunal
in this regard. The Tribunal has deducted 1/5th of the income of the
claimant for his personal expenditure keeping in view the fact that the
claimant had six dependents including his brothers. There is no
question of taking into consideration dependency factor in the present
case as the claimant has suffered personal disability and is not the case
of death where the dependency factor is to be taken into consideration
and therefore the deduction factor cannot sustain.
13. The Tribunal has applied multiplier of 11 taking into consideration the
age of the claimant and has added 15% to the future income which the
claimant could have earned. On the above account, the compensation
has been awarded to the tune of Rs.3,27,888/-.
14. The manner in which the Tribunal has calculated compensation on the
aspect under discussion requires correction in the appeal. Taking
earning of the claimant as Rs. 3000-/- per month, the loss of future
earning of the claimant is assessed at 40% instead of 15% as the
petitioner has no fixed income with loss of earning capacity as 65%
and applying multiplier of 11 keeping in view the age of the petitioner,
as rightly done by the Tribunal, the compensation to which the
petitioner is entitled to comes to Rs. 3,60,360-/- the figure being
rounded at Rs. 3,60,000.
15. In addition, the claimant has been awarded Rs.50,000/- on account of
medicines, transportation, food etc. during his hospitalization. Though
the claimant has not enclosed any medical bills with the claim petition
yet it can be fathomed that the amount awarded by the Tribunal in this
regard cannot be said to be in any way excessive or unjust. The
claimant who is labourer is not supposed to be that much meticulous so
as to maintain the bills for any future use. The claimant has remained
in the hospital on two occasions for a period of more than one month
and must have incurred that much of expenses. No interference is
required on the compensation awarded on the above account.
16. The injuries suffered by the claimant could require further medical
expenditure cannot be ruled out. The Tribunal has also awarded future
medical expenses to the claimant to the tune of Rs.50,000/- which
appears to be just one and needs no modification.
17. The Tribunal has also awarded Rs.1,00,000/- to the claimant for the
loss of amenities of life. Without doubt, the person who suffers
permanent disability cannot lead a normal life and any amount of
compensation cannot make the life of the injured normal one as it was
before the accident. The compensation is only the means to grant some
support for the loss he has suffered with which he is expected to live
for the rest of his life. The amount awarded under this head has to
commensurate with the injury and its impact on the claimant. The court
is of the view that the Tribunal has granted compensation somewhat in
excess of what is due to the claimant and accordingly the
compensation under this head is assessed at Rs.80,000-/-.
18. Lastly, the claimant has been awarded Rs.25000/- for the pain and
sufferings due to the severe disablement of the claimant. To say the
least, the amount awarded by the Tribunal cannot be held to be
unreasonable requiring any modification under the said head also. The
total compensation assessed in appeal is Rs.5,65,000-/. No fault is
found either in the interest awarded by the Tribunal. The appellant is
only liable to compensate the claimant as the appellant has not brought
evidence on record of the Tribunal that the liability of the appellant is
limited one as pleaded in the appeal.
19. Thus, the compensation awarded by the tribunal is maintained and the
difference that occurs in the amount awarded by the Tribunal and this
court being not significant one and the claimant having not filed any
appeal against the award the claimant will not be entitled to the
difference of two amounts.
20. In view of the discussion made above, the court does not find any
reason to vary the compensation amount awarded along with interest to
the claimant to be paid by the appellant herein by the Tribunal though
this court has dealt with the compensation issue in certain respects
differently, as discussed above, from the one by the Tribunal. The
appeal is dismissed. The respondent No.1/claimant is entitled to the
release of balance amount, if any, on the filing of application by him
before the Registrar Judicial, Srinagar. The record of Tribunal be sent
back if attached with the appeal.
(PUNEET GUPTA)
JUDGE
Srinagar:
23.03.2021
Shammi
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
SHAMMI KUMAR
2021.03.24 10:45
I attest to the accuracy and
integrity of this document
