Jammu & Kashmir High Court

Raj Kumar Alias Raju vs National Insurance Company on 28 February, 2024

Author: Puneet Gupta

Bench: Puneet Gupta

                                                                            Sr. No. 07

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                                    Pronounced on : 28.02.2024

Case: Mac App No.22/2020
     CM No.351/2020

Raj Kumar alias Raju, Age 26 years,
S/o Sh. Babu Ram alias Bittu, R/o Village
Agra Chack, Tehsil R.S.Pura, District
Jammu.                                                               ..... Appellant(s)


                 Through :- Mr. Vishnu Gupta, Advocate

               Vs

1. National Insurance Company, Canal
   Road, Jammu through T.P.Hub,
   Shalamar Road, Jammu.
2. Om Parkash S/o Tirath Ram R/o Bain
   Bajalata, Tehsil and District Jammu.
   (Owner of Tanker No. JK02G/9185)
3. Puran Chand S/o Bodh Raj, Caste
   Brahaman, R/o Bakshi Nagar,
   Jammu.
   (Driver of Tanker No. JK02G/9185)                               .....Respondent(s)

                 Through :- Mr. Rajesh Kumar, Advocate for R-1.

       CORAM: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                    JUDGMENT

28.02.2024

01. The Motor Accident Claims Tribunal, Jammu, has awarded compensation to

the tune of Rs.4,74,000/- along with interest at the rate of 7.5% per annum in

favour of the appellant from the date of filing of the petition till the amount

is realized of the award amount except awarded under the Head 'Loss of

future earnings'. The appellant has suffered permanent disability in the

accident which took place on 03.06.2014. It is suffice to mention herein that

the liability has been fastened upon the Insurance Company-respondent No.1

herein. As the appellant has sought enhancement of compensation awarded

in his favour by the Tribunal and the Insurance Company has been held

liable to pay the compensation awarded by the Tribunal, therefore, the

respondent Nos.2 & 3 are not required to be heard in the matter.

02. The Tribunal has held respondent No.1-Insurance Company liable to pay the

compensation to the appellant. The respondent-Insurance Company has not

preferred any appeal against the award passed by the Tribunal. In the light of

the aforesaid fact the findings of the Tribunal with regard to the issue

regarding the accident having taken place due to rash and negligent driving

of respondent No.2, driver of vehicle bearing No.JK02G-9185, need not be

gone into by the Court in the appeal.

03. The only question with which this court is concerned is as to whether the

Tribunal has awarded the just compensation in favour of the appellant.

04. The appellant has claimed his occupation as Barbar at the time of accident.

The learned Tribunal did not agree with this submission of the appellant as it

has held that there was no record pertaining to registration of Barbar shop of

the appellant/petitioner and, therefore, treated the petitioner as labourer.

05. Learned counsel appearing for the appellant has submitted that the Tribunal

has erred in not holding the petitioner being a barbar at the time of accident

in spite of the fact that the evidence was produced by the appellant that his

occupation was Barbar at the time of accident. Learned counsel appearing

for the Insurance Company has, however, argued that there is no flaw in the

conclusion drawn by the Tribunal in this regard.

06. The Court is of the view that the Tribunal has taken hyper technical view of

the matter. The evidence produced by the appellant does make out that the

appellant was working as Barbar when the accident took place. The Tribunal

ought not to have taken a view that the appellant cannot be held to be in such

occupation only for the reason that the certificate under Shops Establishment

Act has not been placed on record by the appellant. The Tribunal is required

to take a very just view of what comes on record in the shape of evidence.

This Court holds that the appellant has fairly proved that his occupation was

Barbar at the time of accident. The income of the appellant is taken by the

Tribunal as Rs.6000/- per month. The Court is of the view that keeping in

view the occupation of the appellant in the year 2014 as Barbar, the monthly

income of the appellant can be fairly taken as Rs.8000/- per month and not

Rs.6000/- per month as awarded by the Tribunal. The court is also required

to take into consideration the future prospects of the income of the appellant.

The same is enhanced by 40% keeping in view the age of the appellant and

the fact that he cannot be said to have any fixed income at the time of

accident.

07. The Tribunal has slashed down the permanent disability recorded by the

Medical Board from 35% to 25%.

08. The appellant being Barbar, the disability suffered by him can bring some

disadvantage to him in the future course of his occupation cannot be ruled

out. As per the medical record EXPW-VKS and statement of Doctor V. K.

Sharma, Orthopedic Surgeon, the injury suffered by the appellant is on the

left leg and implant is in place which is grossly painful and the patient has

difficulty in standing for longer duration. He has further stated that the injury

is of permanent nature and 35% injury is in respect of left lower limb only

and would definitely diminish when considered in relation to the whole

body. Keeping in view the injury received by the appellant and that the same

is to persist in future also for all times to come, the Court is of the view that

the permanent disability suffered by the appellant should be considered at

35% and not 25% as considered by the Tribunal. The multiplier of 18

applied by the Tribunal does not require any interference keeping in view the

age of the victim at the time of accident.

09. The argument of learned counsel for the appellant is that the court should

enhance amount on account of other heads in which he has been granted

compensation by the Tribunal. The court is in agreement with the argument

of counsel for the appellant. The Tribunal has not adequately compensated

the appellant under different heads as mentioned in the award keeping in

view the age of the appellant and the nature of injuries received by him. The

appellant is held entitled to Rs.1,20,000/- on account of pain and suffering

and loss of amenities. The appellant is also held entitled to Rs.2,00,000/- on

account of medical expenses including medical bills, transport charges,

attendant charges and other allied expenses.

10. The appellant is, thus, held entitled to the amount of Rs.11,66,720/- under

the following heads :-

1. Loss of future earning (11200 x 12x 18 x 35%) :Rs.8,46,720/-

2. For pain and suffering and loss of amenities :Rs.1,20,000/-

3. Medical expenses including transport, attendant expenses and allied expenses : Rs.2,00,000/-

Total Compensation Awarded :Rs.11,66,720/-

11. Thus, the appellant is held entitled to compensation of Rs.11,66,720/- along

with the interest @ 7.5 % per annum from the date of filing of the claim

petition till realization of the amount to be paid by the respondent-Insurance

Company. The amount, if any, received by the appellant shall stand adjusted

and so will be the interest calculated accordingly.