National Insurance Co. Ltd. ... vs Brakhbhan @ Brajbhan
2021 Latest Caselaw 1641 MP

                          -( 1 )-       MA No. 1038/2017
 National Insurance Co.Ltd. vs. Brakhbhan @ Brajbhan & Ors.

             HIGH COURT OF MADHYA PRADESH
                   BENCH AT GWALIOR

                               (Single Bench)

                 MISC. APPEAL NO. 1038 OF 2017

National Insurance Co.Ltd.                          ..... APPELLANT
                          Versus
Brakhbhan @ Brajbhan & Others                    .....RESPONDENTS

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CORAM

           Hon. Shri Justice Rajeev Kumar Shrivastava

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Appearance

       Shri S.N.Gajendragadkar, learned counsel for the Appellant.
       Smt. Meena Singhal, learned counsel for the Respondent
No.1.
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Whether approved for Reporting :                     No

Reserved on            :      05.04.2021
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                             JUDGMENT

(Passed on 29th April, 2021)

Assailing the award dated 18.07.2017 passed by Third Motor Accident Claims Tribunal, District Gwalior, in Claim Case No. 1800187/2016, this appeal has been preferred by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988.

2. The facts of the case in short are that the respondent No.1 preferred a claim application under the provisions of Section 166

-( 2 )- MA No. 1038/2017 National Insurance Co.Ltd. vs. Brakhbhan @ Brajbhan & Ors.

of Motor Vehicles Act for realizing amount of compensation to the tune of Rs.66,50,000/- for the permanent disability sustained by him in a road accident dated 8.2.2016 involving truck bearing No. RJ11-GA-6507. On the fateful day the aforesaid truck was insured with the appellant-insurance company. The aforesaid claim application was opposed by the appellant-insurance company on the grounds that the alleged accident took place owing to negligence on the part of the respondent No.1 himself, hence the claim application under Section 166 of Motor Vehicles Act was not tenable and the appellant-insurance company was not liable to pay any amount as compensation. The Tribunal vide impugned award held that the respondent No.1 is entitled for compensation to the tune of Rs.16,68,000/- along with interest and liability as to pay aforesaid amount of compensation has been fastened on the appellant jointly and severally with respondents No.2 and 3. Being aggrieved by the impugned award passed by the Tribunal, the present appeal has been filed by the appellant-insurance company.

3. Learned counsel for the appellant has submitted that the impugned award passed by the Claims Tribunal is against the settled principles of law, hence the same is liable to be set aside. The Tribunal has erred in saddling the liability to pay the amount of compensation on the insurance company on the ground that the respondent No.1 was walking on the road and was dashed by the truck, therefore, on account of negligence of respondent No.1 the amount of compensation to the extent of contributory negligence on the part of respondent No.1 is liable to be deducted. It is further submitted that the disability certificate (Ex.P/53) has not been proved, despite the Tribunal has committed error in relying upon the same. It is also submitted that 90% disability has been mentioned in the certificate (Ex.P/53) but the Claims Tribunal has

-( 3 )- MA No. 1038/2017 National Insurance Co.Ltd. vs. Brakhbhan @ Brajbhan & Ors.

erred in assessing the disability to the extent of 100%. The Tribunal has also erroneously applied the multiplier of 20. Hence, prayed for setting aside the impugned award passed by the Claims Tribunal.

4. Per Contra, learned counsel for the respondents have opposed the submissions and have submitted that the Tribunal has rightly awarded the compensation payable by insurance company, respondents No.2 and 3, jointly and severally. Hence, prayed for dismissal of the appeal.

5. Heard learned counsel for the rival parties and perused the record.

6. The present case is of permanent disability, wherein the injured has suffered crushed injury on both the limbs when he was standing by the side of the road. Both the legs of the injured were completely crushed by the offending truck by passing through the legs. The injured's both the legs have been amputated from the thigh region. At the time of accident, the injured was aged around 24 years and was working as meson. It is also apparent from the record that the injured was crushed by front wheel of the truck.

7. Learned counsel for the insurance company has submitted that as the injured was negligently crossing the road, therefore the accident took place, hence, the case is of contributory negligence but in my opinion, as the legs of the injured were crushed by front wheel of the truck and it is not proved before the Tribunal that the injured was crossing the road negligently, therefore, the present case is not of contributory negligence. As per Disability Certificate, the injured had suffered 100% disability, as his both legs are amputated from thigh region.

8. Hon'ble Apex Court in Shree Anthony @ Anthony Swami vs. Managing Director, KSRTC, in CIVIL APPEAL NO(s).

-( 4 )- MA No. 1038/2017 National Insurance Co.Ltd. vs. Brakhbhan @ Brajbhan & Ors.

2551 OF 2020, decided on 10.6.2020, reiterated the principles set out for grant of compensation in case of permanent physical functional disability in a case titled Rajkumar vs. Ajay Kumar and another [(2000) 1 SCC 343], that "Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability." It is further observed that "Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation." Further, it is observed that "What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of

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earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation."

9. Definitely the injury affects also future prospects. In the recent judgment passed by Hon'ble Supreme Court of India in Master Aditya Singh vs. Naveen Mohammadr case title Pappu Deo Yadav vs. Naresh Kumar and Ors., [Civil Appeal No. 2567 of 2020], wherein it was held that "future prospects must be considered even in the case of permanent disability. In the aforesaid case, as per the disability certificate the petitioner has suffered 74% permanent physical impairment in relation to his left lower limb. As per the Aadhar Card of the petitioner Ex.PW1/1, the date of birth of the injured is 22.12.2002, the accident took place on 22.11.2017. Therefore, he was 15 years of age at the time of accident. This disability would definitely affect his future working/prospects as well as his day to day movement. As a matter of rule the half of the functional disability of anyone of the limb has to be taken off for the purpose of calculation of future prospects. However, looking into the age of the petitioner and the disability I take him functional disability as 40%. Taking a multiplier of 18 and minimum wages of unskilled person prevailing in Delhi in the year 2017, the future loss of income comes to Rs. 19,454/- (Rs. 13,896/- + Rs. 13,896/- x 40/100) x 12 x 18 x 40% = Rs. 16,80,860/-. I therefore, award Rs. 16,80,860/- to the petitioner towards future income on account of permanent disability."

10. The present case is an exceptional one wherein both the limbs of the injured have been amputated due to injury caused by the front wheel of the truck. At the time of accident, the injured

-( 6 )- MA No. 1038/2017 National Insurance Co.Ltd. vs. Brakhbhan @ Brajbhan & Ors.

was aged around 24 years, therefore, the contention of learned counsel for the appellant-insurance company that the Tribunal has erred in applying multiplier of 20, worth acceptance. Hence, in the light of judgment in Sarla Verma vs. DTC [(2009) 6 SCC 121], multiplier of 18 in the present case would be just and proper instead of 20 applied by the Tribunal.

11. The Tribunal has awarded Rs.50000/- towards pain and suffering, which in the opinion of this Court appears to be on lower side. Considering the fact that both the legs of the injured have been amputated, aspect of pain and suffering would be just if it is enhanced by Rs.1.00 lac more. Thus, the total amount under pain and suffering is enhanced by Rs.1,50,000/-. Hence, the respondent No.1 would be entitled to the amount of compensation as under :-

        Name of Heads                               Amount awarded     by Amount awarded    by
                                                    Claims Tribunal       High Court
                      Loss of Income                    15,78,000=00         14,20,200=00
                      (6575x12x20)                                           (6575x12x18)
              Medical Expenses                           10,000=00            10,000=00
          Expenses on Special                            50,000=00            50,000=00
           Diet & Attendant
              Pain & Suffering                           50,000=00            1,50,000=00
                                      Total             16,88,000=00         16,30,200=00

12. Consequently, the appeal stands partly allowed. The impugned award dated 18.7.2017 passed by the Claims Tribunal is modified to the extent that the respondent No.1 would be entitled to the total compensation of Rs.16,30,200/-, which would be payable as per paragraphs 23 and 24 of the impugned judgment of the Claims Tribunal.

                                                             (Rajeev Kumar Shrivastava)
(yog)                                                                   Judge.


                                 YOGESH VERMA
                                 2021.04.30
              VALSALA
              VASUDEVAN
              2018.10.26
              15:14:29 -07'00'
                                 12:12:43 +05'30'