Nirdhar Singh @ Hritik Thakur vs Jaskour Singh
2023 Latest Caselaw 13789 MP

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                      BEFORE
                                         HON'BLE SMT. JUSTICE SUNITA YADAV
                                               ON THE 23 rd OF AUGUST, 2023
                                                MISC. APPEAL No. 475 of 2013

                          BETWEEN:-
                          NIRDHAR SINGH @ HRITIK THAKUR S/O KHUSILAL,
                          AGED ABOUT 25 YEARS, JAITPURA THANA DEHAT
                          TAHSIL DATIA (MADHYA PRADESH)

                                                                                          .....APPELLANT
                          (BY MR. S. S. RAJPUT - ADVOCATE)

                          AND
                          1.    JASKOUR SINGH S/O BALDEV SINGH, AGED
                                ABOUT 58 YEARS, MAKAN NO. 17, SWARYKAR
                                COLONYM, VIDISHA (MADHYA PRADESH)

                          2.    SHRI RAM GENERAL INSURANCE COMPANY LTD.
                                TH: BRANCH MANAGER BRANCH OFFICE 1ST
                                FLOOR,P.NO.48,M.P.NAGAR BHOPAL (MADHYA
                                PRADESH)

                                                                                       .....RESPONDENTS
                          (MR. M. L. TOMAR - ADVOCATE FOR RESPONDENT NO. 1 AND MR.
                          KAMAL S.ROCHLANI - ADVOCATE FOR RESPONDENT NO. 2 -
                          INSURANCE COMPANY)

                                T h is appeal coming on for orders this day, t h e cou rt passed the
                          following:
                                                           JUDGMENT

Present miscellaneous appeal has been filed assailing the award dated 26.3.2013 passed in Claim Case No. 01/2012 by Member, Motor Accident Claims Tribunal, Vidisha (M.P.), whereby claim petition filed by appellant - claimant for grant of compensation on account of injuries sustained by him in a road traffic accident occurred on 14.10.2011 involving truck bearing registration Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Aug-23 10:26:15 AM

No. MP40-H-0151, which the appellant was driving. At the time of accident, respondent No. 1 was the owner of the truck and the truck was insured with respondent No. 2 - insurance company.

Respondent No. 1 remained absent before the learned claims tribunal and was proceeded ex-parte.

Respondent No. 2 - insurance company filed its written statement and denied the averments made in the claim petition and further stated that at the time of accident, the offending vehicle was being plied in breach of the policy terms and conditions, therefore, insurance company is not liable to pay the compensation.

Learned claims tribunal after hearing both the parties and going through the evidence available on record dismissed the claim petition of the appellant being not maintainable.

Learned counsel for the appellant argued that learned claims tribunal has wrongly dismissed the claim petition of the appellant only on the ground that the appellant / claimant in his statement submitted that he was getting Rs.3,000/- per month as salary and Rs.3000 per month as allowance and, therefore, his annual income would become Rs.72,000/-, hence, the case is not covered under Section 163-A of Motor Vehicle Act. Further argument is that learned claims tribunal has not calculated or assessed the amount of compensation whereas he had to decide all the issues framed in accordance with the evidence and law. Under these circumstances, the impugned award be set aside and appropriate compensation be granted.

On the other hand, learned counsel for the respondents supported the impugned award and prayed for rejection of the appeal.

Heard learned counsel for the rival parties and perused the available Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Aug-23 10:26:15 AM

record.

The perusal of record reveals that learned claims tribunal has held that with allowance, salary of the claimant comes to the tune of Rs.6000/- per month and, therefore, the case is not maintainable, however, the above finding is erroneous as allowance does not come within the meaning of salary.

In this case, the appellant - claimant has examined himself as AW-1 who corroborated the facts mentioned in the claim petition in respect to the accident. As per his statement, at the time of accident, he was driving truck No. MP40-H- 0151 and on account of failure of break, the truck overturned and he suffered serious injuries on account of which his left leg got amputated from above the knee. His statement remained unchallenged in the cross-examination.

Dinesh Rajput (AW-2), who was travelling in the same truck has also supported the statement of the claimant. Documents Ex.P-1 to P-5 of the challan papers filed in the criminal case in respect to this accident also corroborate the story of the claimant that he suffered grievous injury while driving truck No. MP40-H-0151. The claimant has filed permanent disability certificate Ex.P-97 according to which, left leg of the claimant got amputated and he suffered 50% permanent disability.

Claimant has examined Dr. B.L. Arya (AW-3) to prove the permanent disability certificate. This witness has stated that he is a member of Medical

Board and after examination of the claimant, permanent disability certificate Ex.P-97 was given according to which, claimant had suffered 50% permanent disability. This witness has also stated that the left leg of the claimant was amputated from above the knee. The evidence of this witness remained unchallenged in his cross-examination, therefore, on the basis of the statement

Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Aug-23 10:26:15 AM

of AW-3 as well as Ex.P-97, it is found that the claimant has suffered 50% permanent disability.

Learned counsel for the appellant argued that though claimant has suffered 50% disability in the leg, however, in view of the fact that he was a driver, he lost 100% earning capacity.

In reply, learned counsel for the insurance company has argued that claimant has failed to prove that he was a driver and also not proved his driving license, therefore, the factum that he lost 100% of his earning capacity cannot be believed upon.

The perusal of record reveals that the claimant has not filed any documentary evidence that at the time of accident, he was a driver and was getting Rs.3,000/- per month as salary and also getting Rs.3000/- per month as allowance, therefore, it is not found to be proved that the claimant suffered 100% loss in his earning capacity.

In view of the above discussion, in the considered opinion of this Court, the percentage of permanent disability will be calculated as per the schedule of Workmen's Compensation Act according to which 60% loss in earning capacity of the claimant would be applicable.

In view of the above and as per the Second Schedule of Section 163-A of Motor Vehicles Act as well as in the light of the case law of Puttamma & Ors. vs. K.L. Narayana Reddy & Anr.; (2013) 15 SCC 45 , considering the annual income of the claimant @ Rs.40,000/-, 60% loss in earning capacity, multiplier of 17, Rs.1,56,000/- towards medical expenses and Rs.25,000/- towards pain and suffering, total compensation amount comes to Rs.5,89,000/- [(40,000x17)x60/100 + 1,56,000 + 25,000/-].

As such, the appellant - claimant is entitled for compensation to the tune Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Aug-23 10:26:15 AM

o f Rs.5,89,000/- (Rupees Five Lakh Eighty Nine Thousand only), with interest at the rate of 6% per annum from the date of filing of the claim petition till realization which is directed to be paid to the claimant by the insurance company within 12 weeks from the date of production of a certified copy of this order. Rest of the award impugned passed by the Tribunal shall remain intact.

If the enhanced amount of compensation is in excess to the valuation of appeal, the difference of the Court fee (if not already paid) shall be deposited by the appellant / claimant within four weeks' from today and proof thereof shall be submitted before the Registry. Thereafter, Registry shall issue the certified copy of the order passed today.

Appeal stands allowed to the aforesaid extent and disposed of.

(SUNITA YADAV) JUDGE AKS

Signature Not Verified Signed by: ALOK KUMAR Signing time: 25-Aug-23 10:26:15 AM