Madhya Pradesh High Court
The New India Assurance Company ... vs Gulshan Jain on 13 October, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 13 th OF OCTOBER, 2023
MISC. APPEAL No. 1446 of 2018
BETWEEN:-
THE NEW INDIA ASSURANCE COMPANY LTD. THR.
TEHSIL AND DIST. JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI DINESH KOUSHAL - ADVOCATE)
AND
1. GULSHAN JAIN S/O SANTOSH JAIN, AGED ABOUT
20 YEARS, R/O WARD NO. 2 TENDUKHEDA THANA
AND TEHSIL TENDUKHEDA (MADHYA PRADESH)
2. SMT. GEETANJALI TIWARI W/O PRASANNA
T I WA R I R/O FALTE NO.03, P.W.D. COLONY
NARSINGHPUR THANA AND TAHSIL
NARSINGPUR (MADHYA PRADESH)
3. SANDEEP GHOSHI S/O RAMKISHAN GHOSHI,
AGED ABOUT 29 YEARS, R/O WARD NO.8,
TEBNDUKHEDA THANA AND TAHSIL
NARSINGHPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI NITIN KUMAR AGRAWAL - ADVOCATE FOR RESPONDENT NO. 1)
MISC. APPEAL No. 2834 of 2018
BETWEEN:-
GULSHAN JAIN S/O SANTOSH JAIN, AGED ABOUT 20
YEAR S , WARD NO.2, TENDUKHEDA T;NBANA TAH
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI NITIN KUMAR AGRAWAL - ADVOCATE)
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 17-10-2023
10:47:06
2
AND
1. SMT GEETANJALI TIWARI W/O PRASANN TIWARI
FLAT NO.3, PWD COLONY (MADHYA PRADESH)
2. SANDEEP GHOSHI S/O RAMKISHAN GHOSHI,
AGED ABOUT 29 YEARS, WARD NO 8 THANA AND
TEHSIL TENDUKHEDA (MADHYA PRADESH)
3. THE NEW INDIA ASSURANCE CO. LTD. JABALPUR
TEHSIL JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DINESH KOUSHAL - ADVOCATE FOR RESPONDENT NO. 3)
These appeals coming on for admission this day, the court passed the
following:
ORDER
Heard on I.A. No. 7309/2018, an application for condonation of delay
in filing M.A. No. 2834/2018.
On due consideration, I.A. No. 7309/2018 is allowed.
The delay in filing M.A. No. 2834/2018 is condoned.
These appeals are filed by the Insurance Company and the claimants
respectively being aggrieved of the award dated 31/01/2018 passed by the
learned IIIrd Additional Motor Claims Tribunal, Gadarwara, District
Narsinghpur in Claim Case No. 65/2016 on the ground that the Doctor was not
examined and yet Tribunal has accepted a permanent disability to the extent of
75 %.
It is submitted that this kind of treatment is arbitrary and illegal.
Learned counsel for the claimant submits that injured/appellant was a boy
of 20 years at the time of the accident which took place on 18/03/2016. The
Tribunal has construed his notional income at Rs. 5,000/- per month whereas
minimum wages even for an unskilled labourer were to the tune of Rs. 6,575/-
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 17-10-2023
10:47:06
per month and accordingly, compensation should have been awarded.
After hearing learned counsel for the parties and going through the
record, it is true that the Doctor was not examined but Ex. P-201 which is a
certificate from the District Medical Board, Narsinghpur revealed that injury to
the vertebra D-5 to D-10 resulting in Quadriplegia for which 75% disability was
certified. In para 17, the Tribunal itself witnessed the condition of the claimant
and observed that below waist, his body was paralysed and was not functional
and noted that permanent disability appears to be to the extent of cent percent
but has computed compensation @ 90%.
As far as appeal filed by the Insurance Company is concerned, when
judgment of the Supreme Court in Raj Kumar Vs. Ajay Kumar & another
(2011) 1 SCC 343 is taken into consideration, then functional disability is
required to be seen. The Tribunal has noted a fact that body parts below waist
had become unfunctional. There was a paralysis of the lower body which was
not recoverable on account of injury to vertebra D-5 to D-10. Therefore,
computing disability to the extent of 90% cannot be said to be arbitrary and
illegal. On this ground, the appeal filed by the Insurance Company deserves to
be dismissed and is hereby dismissed.
As far as compensation is concerned, the Tribunal has taken income at
Rs. 5,000/- which will be at Rs. 6,575/- per month or Rs. 78,900/- per annum.
90% of this comes out to Rs. 71,010/-. 40% is to be added towards future
prospects and then when multiplier of 18 is applied, total compensation for loss
of future earning will come out to Rs.17,89,452/- as against a sum of Rs.
13,60,800/- awarded by the learned Claims Tribunal. Thus, there will be an
enhancement to the tune of Rs. 4,28,652/-.
The Tribunal has only awarded a sum of Rs. 5,000/- under the head of
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 17-10-2023
10:47:06
nutritious diet and Rs. 5,000/- under the head of pain and suffering. The
amount under the head of pain and suffering is enhanced to Rs. 30,000/-. Thus,
there will be an addition of Rs. 25,000/- under that head.
The amount of Rs. 5,000/- under the head of nutritious diet is enhanced
to Rs. 20,000/- @ Rs. 5,000/- per month for a period of four months. Thus,
there will be an addition of Rs. 15,000/- under that head. Thus, total addition
will come out to Rs. 4,68,652/- (Rupees Four Lakhs sixty eight thousand six
hundred and fifty two).
This additional amount shall earn interest @ 6% per annum from the date
of filing of the claim petition till the date of actual payment.
This enhanced amount along with the accrued interest will remain
deposited in a Monthly Income Scheme of the Indian Post Office or in a
Nationalized Bank in the name of the claimant for a period of ten years. The
claimant will be entitled to utilize its monthly interest for his well being and
maintenance, but the principal amount will not be allowed to be withdrawn for a
period of ten years.
In above terms, the appeals are disposed of.
Record of the Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
vy
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 17-10-2023
10:47:06
