Arun Kumar Gupta vs Divisional Manager
2021 Latest Caselaw 3967 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   M.A. No. 497 of 2015
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             Arun Kumar Gupta                                   .... Appellant(s)
                                       Versus.

1. Divisional Manager, New India Insurance Company Ltd., Hazaribagh.

2. Jalsi Sahu

3. Pankaj Kumar Sahu

4. Vijay Kumar Gupta. ... Respondent(s).

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CORAM: HON'BLE MR. JUSTICE ANANDA SEN.

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For the appellant(s): Mr. Arun Kumar, Advocate.

For the Respondent(s): M/s G.C. Jha and Ranish Kumar, Advocates.

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C.A.V. on: 25.10.2021 Pronounced on: 24/11/2021.

10/ 24.11.2021: Heard the counsel for the parties.

2. This Miscellaneous Appeal has been filed under Section 173 of the Motors Vehicle Act by the appellant-claimant praying therein for enhancement of the amount of compensation, which has been awarded to him by judgment and award dated 31.7.2015 passed by the Principal District Judge-cum-MACT, Gumla in M.A.C. Case No. 31/2003.

3. The injured claimant along with two other person met with an accident when they were riding a motorcycle. The motorcycle was being driven by Vijay Kumar Gupta, the brother of this appellant. This appellant and one Bharat Oraon were the pillion riders. It is stated that when the motorcycle proceeded towards Gumla road, a Jeep bearing registration No. BR 41P 4059 came from opposite direction and dashed the motorcycle, which resulted in injury of the appellant. The appellant was treated at Sadar Hospital, Gumla and later on in R.M.C.H., Ranchi. It is also stated that the appellant had sustained several injuries as a result of which, his right leg was disabled to the extent of 70%. Claiming compensation of Rs.5,00,000/-, M.A.C. Case No. 31/2003 was filed before the Tribunal at Gumla.

4. After being noticed, the owner, the driver and the insurer of the Jeep appeared. The owner of the Jeep denied involvement of the jeep in the accident. He has also taken a plea that the vehicle was duly insured with New India Insurance Co. Ltd. The owner of the motorcycle had taken plea that the entire accident had occurred due to rash and negligent driving of the jeep which voluntarily dashed the motorcycle and fled away.

5. From the pleadings of the parties, six issues were framed, which are as under:-

(i) Whether the present claim petition is maintainable?

(ii) Whether the injured claimant sustained grievous injury of permanent nature in the motor accident on 20.7.2002 involving Jeep No. BR 41P 4059?

(iii) Whether there was any contributory negligence on the part of the injured claimant?

(iv) Whether there was breach of insurance policy on the part of insured i.e. owner of Jeep (O.P. No. 1)?

(v) Whether and from which O.P., the claimant is entitled to compensation, and if so the amount of compensation?

(vi) To what other relief the claimed is entitled there to?

6. Five witnesses were adduced on behalf of the claimant, who are as under:-

(i) A.W.1- Vinay Kumar Gupta (the driver of Boxer motor cycle No. JH 07A-0728).

(ii) A.W.2- Arun Kumar Gupta (Claimant himself).

(iii) A.W.3- Shiv Prasad Gupta (father of the claimant)

(iv) A.W.4- Sanjay Kumar Gupta

(v) A.W.5- Dr. Rajendra Narayan Yadav.

7. Several documents were also exhibited on behalf of the claimant, which are as under:-

            (i)     Ext.1- Driving Licence.
            (ii)    Ext.2 Series: -Cash Memos of medicines (total-7)
            (iii)   Ext.3: - X-ray cash memo
            (iv)    Ext.4 to Ext. 13:- Cash memos of medicines.
            (v)     Ext.14 series:- Bills of dressing charge.
            (vi)    Ext.15:- Cash memos of medicines.
            (vii)   Ext.16:- Discharge ticket.
            (viii) Ext.17- Insurance Policy Paper.
            (ix)    Ext.18:- Disability certificate.
            (x)     Ext.19:- C.C. of FIR.
            (xi)    Ext. 20:- C.C. of Charge-sheet.

8. No evidence was led by opposite party(s) in the claim case.

9. Considering the evidences, led by the parties, the Tribunal held that the accident had taken place because of rash and negligent driving of the offending jeep bearing Registration No. BR 41P- 4059. The tribunal also concluded that the offending jeep was duly insured and as per the insurance policy, the insurer had undertaken the liability to indemnify the owner for any loss and damages to the person or property of his own or any third party. The Tribunal further reached at a conclusion that since the jeep was insured and 3 rd party liability is covered, the injured being the 3 rd party is entitled to receive compensation from the Insurance Company. On the question of quantum, the Tribunal came to the conclusion that the claimant is entitled to receive Rs.1,01,764/- as compensation.

10. Challenging the aforesaid quantification of compensation, the claimant-appellant has filed this appeal.

11. Learned counsel for the appellant-claimant submitted that the Tribunal has granted only Rs.10,764/- as loss of earning, which is absolutely on lower side. He also submitted that for the purpose of calculating the loss of earning for the period, the claimant was incapable to work, the tribunal treated the appellant to be a daily wage mazdoor and assessed his income as Rs.69/- per day, which is absolutely against the evidence. He further submitted that for future medical treatment, only Rs.18,000/-has been awarded, which is also on much lower side and so is the compensation under the head of pain and suffering and loss of amenities. He also contended that the appellant has to take help of crutches during movement and that being so, for loss of amenities, only Rs.10,000/- has been awarded, which is a negligible amount. He further submitted that the interest has been awarded @ 6% per annum which is much on the lower side. He also submitted that future loss of earning has not been considered while awarding compensation. He lastly submitted that functional disability of the claimant is assessed to the extent of 70% so compensation for future loss of earning should have been awarded.

12. Learned counsel for the Insurance Company submitted that in absence of any specific documentary evidence in respect of actual loss of earning, the tribunal has rightly awarded Rs.10,764/- to the claimant as compensation under the said head. He also submitted that the doctor, who treated the claimant has not been examined as a witness, thus, the reliance on the disability certificate is unfounded. He submitted that the Tribunal has correctly assessed the quantum and has awarded Rs.1,01,764/- as compensation. So far as future income is concerned, as per him, there is evidence that the income of the claimant has increased after the accident, thus, he is not entitled to receive any further amount of compensation.

13. After hearing the parties and going through the record, I find that the only dispute is with regard to computation of compensation amount. The fact that the offending jeep was insured with New India Insurance Co. Ltd. at the time of accident, is not disputed nor it is disputed that at the relevant time of accident, the insurance policy was valid. It is also admitted that there was no violation of the conditions of the policy and thus, the insurance company is liable to pay the amount of compensation. The fact that the accident had occurred because of rash and negligent driving of jeep has also been established and has not been been disputed.

14. Be it noted that this appeal has been filed by the claimant. No appeal has been filed by the Insurance Company challenging any of the findings of the Tribunal or even the liability to pay compensation. Considering the aforesaid facts, I find that the appeal has to be decided on the point as to what would be the just and fair compensation. When I go through the impugned award, I find that the Tribunal has awarded Rs.1,01,764/- as compensation under different heads. It would be proper to reproduce the table, which the Tribunal has drawn up to depict the amount of compensation under each head.

                HEADS                                     Amount
(A)     Pecuniary damages
1      Actual loss of earning (in six months)           Rs.10,764/-
2      Future medical treatment (as per papers)         Rs.18,000/-
3      Food                                             Rs.15,000/-
4      Fruits                                           Rs.5,000/-
5      Medical Treatment                                Rs.16,000/-
6      Crutches                                         Rs.5,000/-
7      Transportation                                   Rs.7,000/-
B      Non Pecuniary Damages
1      Pain and sufferings                              Rs.15,000/-
2      Loss of amenities                                Rs.10,000/-
       Total                                            Rs.1,01,764/-

15. From the aforesaid table, I find that under the head of actual loss of earning, the Tribunal has awarded Rs.10,764/- and the aforesaid calculation is on the basis of 26 days of earning in each month and the income of the appellant has been considered Rs.69/- per day, considering the claimant to be a daily wage Mazdoor.

16. On this count, if I go through the evidence led by the claimant, I find that he in his examination-in-chief in para- 2 stated that he was allotted a government shop and he was running a hotel in the said shop and was earning Rs.6,000/- per month. On this point, there is nothing on record to disbelieve his submission. The claimant witness No. 1, who is Vinay Kumar Gupta, deposed that the injured was earning Rs.4,500-6,000/- per month by running his hotel. Thus, I find that there is sufficient evidence that the injured was running a hotel and was earning Rs.4500-6000/- per month at the time of accident. From the evidence on record, I further find that the injured had suffered actual loss of earning for six months after the accident. Considering the aforesaid evidence, I am of the opinion that fixing Rs.10,764/- as actual loss of earning for six months is improper. In terms of the evidence led, this Court is of the opinion that Rs.6000/- is to be considered as monthly income of the injured at the time of accident and considering this fact, he was in a position to earn the amount of Rs.6000/-X 6= Rs.36,000/-, which should be paid to the claimant on account of loss of income. Thus, the balance amount is Rs.25,236/- (Rs.36,000-Rs.10,764) which the claimant is entitled to receive under the aforesaid head.

17. The claimant has also brought on record the disability certificate, which suggests that the claimant has sustained disability to the extent of 70%. The claimant witness No. 5 Dr. Rajendra Narayan Yadav is a doctor, who was a member of the committee, who had granted the disability certificate to the claimant. This witness in his examination-in-chief stated that he along with other doctors had examined the claimant and has found that right leg of the appellant got damaged by 70%, which is permanent in nature, thus he and others have jointly issued the said certificate showing disability to the claimant the extent of 70%. From the aforesaid evidence, it is clear that the claimant sustained injury on his right leg and the disability is to the extent of 70%, which is permanent in nature. Further from the evidence of the claimant, it is also clear that he is still under treatment and he needs regular treatment. He also submits that due to the accident and damage sustained in his right leg, which is permanent in nature, people of the locality call him as "lame Arun". Considering the aforesaid evidence, I am of the opinion that since the appellant needs regular medical attention, on account of future medical treatment, a further amount of Rs.15,000/- needs to be awarded to the claimant. Further, considering the fact that the appellant has also suffered pain and suffering and loss of amenities because of permanent injury, on both the aforesaid heads, a further amount of Rs.50,000/- needs to be enhanced.

18. So far as amount of compensation on account of medical treatment, transportation, food etc., I find that the Tribunal has rightly assessed the compensation under each heads, which needs no interference.

19. The other point raised by the claimant is that the Tribunal has not granted any compensation on account of loss of future earning. The Hon'ble Supreme Court of India in the case of Govind Yadav Vs. The New India Insurance Co. Ltd. reported in (2011) 10 SCC 683 had held that if a victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life. Further in the case of Raj Kumar Vs. Ajay Kumar, reported in (2011) 1 SCC 343, the Hon'ble Supreme Court in paragraph has held as follows:-

"13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning and kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."

The Hon'ble Supreme Court has relied upon the aforesaid both judgments in the case of Parminder Singh Vs. New India Assurance Co. Ltd and Ors. reported in (2019) 7 SCC 217.

20. Now going through the aforesaid principle, it has to be seen as to whether the claimant is entitled to receive any amount of compensation on account of loss of future earnings. When I go through the evidence led by the claimant, I find that he himself stated that at the time of accident, he was running a hotel and was earning Rs.6,000/- per month. The claimant witness No. 1 in his statement reiterated the fact that the claimant was running a hotel and was earning Rs.4,500-6,000/- per month at the time of accident. The claimant in his evidence thereafter has deposed that after the accident and because of disability, he has changed his vocation and has opened a garment shop in the said allotted shop, where he was running a hotel. He admitted that from the said business, after deducting all the expenses, he is earning Rs.12,000-14,000/- per month. He admitted that if he would not have been disabled, he could have earn Rs.40,000- 50,000/- per month from the said shop. Thus, from the aforesaid evidence, it is quite clear that because of the said accident, the claimant has changed his business, but admittedly after the change of his business, he is earning more than what he was earning at the time of accident, as at the time of accident, he was earning Rs.4,500-6,000/- per month and after the accident by changing his business, he is earning Rs.12,000-14,000/- per month. Thus, it is admitted case that the income of the claimant has increased rather doubled after the accident. This prime evidence cannot be ignored.

I further find that the Tribunal has considered this aspect and has concluded that there was no loss of future income rather the income of the claimant has increased and thus, he is not entitled to receive any amount of compensation on account of loss of future earnings. I cannot find any fault in the said finding. Thus the appellant has failed to substantiate his case that he sustained loss of earnings, rather on the contrary, from the evidence, it is clear that the income of the claimant has increased rather the same has doubled. Considering the aforesaid fact, I hold that the claimant is not entitled to receive any amount on account of loss of future earnings.

21. Considering the aforesaid facts, this Court is of the opinion that the appellant-claimant is entitled to receive further amount of Rs. 25,236/-, Rs.15,000/- and Rs.50,000/- under the heads of loss of actual earnings, future medical treatment and pain and sufferings and loss of amenities, respectively.

22. Thus, the Insurance Company is directed to pay the amount Rs.25,236/-+Rs.15,000/-+Rs.50,000/-=Rs.90,236/- (ninety thousand two hundred thirty six only) to the claimant, which will carry interest @ 7% per annum from the date of filing of this appeal i.e. 27.10.2015 till the same is paid.

23. Accordingly, this appeal is partly allowed to the aforesaid extent.

Anu/-CP-2                                                    (ANANDA SEN, J.)