Babu @ Brijlal Kushwaha vs Vijay Sharma
2021 Latest Caselaw 6359 MP

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



MISC. APPEAL NO.                                    999/2017
Parties Name                   BABU @ BRIJLAL KUSHWAHA

                                              VS.

                               VIJAY SHARMA
                               AND OTHERS
Bench Constituted              Single Bench
Judgment delivered By          HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether       approved   for
reporting
Name of counsel for parties For appellant: Shri Neeraj Ashar, Advocate

                               For Respondent nos.1 & 4 : Shri C. P. Dwivedi, Advocate

For Respondent no.3 : Smt. Asghari Khan, Advocate Law laid down Significant paragraph number

(O R D E R ) 04/10/2021

1. Appellant Babu @ Brijlal Kushwaha, who was claimant

before Claims Tribunal has filed the present Misc. Appeal for

enhancement of compensation award dated 20.2.2017

passed by 3rd Additional Motor Accident Claims Tribunal,

Jabalpur in Claim Case No.397/2012.

2. Learned counsel for appellant submitted that appellant

suffered 10% permanent disability. He suffered fracture in

ankle joint and 5th bone of right feet. For proving disability,

documents Annexure P-8, P-15, P-17, P-27 and deposition of

P.W-2 Dr. Sharad Dwivedi was relied upon for establishing

permanent disability. It is submitted that learned Claims

Tribunal took notional income of Rs.3,000/- per month and

held that appellant suffered loss of income of Rs.27,000/-.

Loss of income was determined on the lower side. Claims

Tribunal has not considered the present price index into

consideration and, therefore, compensation awarded by the

Claims Tribunal is to be enhanced. It was also argued that

learned Claims Tribunal committed an error of law in

reducing permanent disability from 10% to 5%. Appellant

ought to have been awarded compensation on 10%

permanent disability. On basis of said argument, learned

counsel for appellant made a prayer for enhancement of

compensation amount.

3. Learned counsel for Insurance Company submitted that

Claims Tribunal has rightly held that there was breach of

Insurance Policy. Driver Vijay Sharma was driving Auto

bearing No.MP-20-R-1287 without valid and effective license.

There was no endorsement on his license that driver of

vehicle is allowed to drive Light Transport Vehicle and,

therefore, Claims Tribunal rightly held that there was breach

of Insurance Policy. Learned counsel for Insurance Company

submitted that appellant has failed to prove his income and,

therefore, Tribunal rightly took notional income of appellant

at Rs.3,000/- p.m and calculated compensation on basis of

notional income. Disability of 10% has been suffered by

appellant on his leg and not on whole of his body and,

therefore, Claims Tribunal rightly took permanent disability

of 5% and awarded just compensation to the appellant.

Learned counsel for Insurance Company made a prayer for

dismissal of this Misc. Appeal.

4. Heard learned counsel for the appellant as well as

Insurance Company.

5. Appellant is working as a vegetable vendor and he is

required to do physical work for earning his livelihood. He

has suffered fracture in the ankle joint of bones and also on

bone of right feet. Said fracture in joint will effect his

mobility and his future income as he will not be able to do as

much physical labour as he used to do before the accident.

6. In view of same, learned Claims Tribunal has wrongly

reduced permanent disability to 5%. Learned Claims

Tribunal ought to have calculated the loss of income on basis

of permanent disability of 10%. Unskilled labour earn

Rs.5,000/- per month as charges of labour is between 300-

500 per day and State is also giving Rs.5,000/- per month to

unskilled workers, therefore, I deem it fit and appropriate to

take notional income at Rs.5,000/- per month.

7. In view of aforesaid facts and circumstances of the case

compensation awarded to appellant is as under:-

i. Notional income @ Rs.5,000/- p.m x 12 = Rs.60,000/-

p.a.

ii. Loss of income = 60,000/- x 15 = 9,00,000 x 10% =

Rs.90,000/-.

iii. Claims Tribunal had already awarded an amount of

Rs.1,984/- as medical expenses, which is not disturbed by

this Court.

8. In view of same, appellant is entitled to receive total

compensation of Rs.91,984/-. Learned Claims Tribunal has

awarded compensation amount of Rs.59,984/-.

9. Appellant is entitled to get enhanced amount of

Rs.32,000/- (Rupees Thirtytwo thousand only). The

enhanced amount will carry interest @ 6% per annum from

the date of filing of appeal before this Court.

10. With the aforesaid direction, this appeal is disposed

of.

(VISHAL DHAGAT) JUDGE mms

Digitally signed by MONSI M SIMON Date: 2021.10.05 14:24:50 +05'30'