Madhya Pradesh High Court
Gokul vs National Insurance Company Ltd. on 19 October, 2023
Author: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDOR E
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No.446/2021
BETWEEN:-
GOKUL S/O RAMCHANDRA CHOUHAN, AGED ABOUT 33
YEARS, OCCUPATION: LABOUR GRAM BARLAAI, SHIPRA
SANVER (MADHYA PRADESH)
.....APPELLANT
(SHRI ABHISHEK GILKE, LEARNED COUNSEL FOR THE
APPELLANT)
AND
1. NATIONAL INSURANCE COMPANY LTD. THROUGH
MANAGER APOLLO TOWER, M.G. ROAD (MADHYA
PRADESH)
2. PRATAPSINGH S/O PRABHATILAL CHAUDHARY, AGED
ABOUT 39 YEARS, AMARPURA, P.S. SAMOD JAIPUR
(RAJASTHAN)
3. GOKUL S/O PUKHRAM, AGED ABOUT 35 YEARS,
MOHAPURA MAALPURA, TEHSIL KOTPUTALI (RAJASTHAN)
.....RESPONDENTS
(SHRI ANIL KUMAR GOYAL, LEARNED COUNSEL FOR THE
INSURANCE COMPANY)
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 10/19/2023
6:42:49 PM
2
........................................................................................................
Reserved on : 10.10.2023.
Pronounced on : 19.10.2023.
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This miscellaneous appeal having been heard and reserved for
orders, coming on for pronouncement this day, Justice Achal Kumar
Paliwal pronounced the following:
ORDER
This appeal by the claimant under section 173(1) of the Motor
Vehicles Act is arising out of the award dated 21.01.2020 passed by 8th
Addl. MACT, Indore in Claim Case No.515/2016 seeking
enhancement of compensation amount awarded by the Tribunal.
2. As per the findings of the Tribunal, for the injuries sustained by
the appellant, the Tribunal has awarded a total compensation of
Rs.1,00,000/- along with interest.
3. Learned counsel for the appellant has submitted that in cases of
amputation, it is not necessary to examine doctor to prove permanent
disability and for assessing compensation in the cases of amputation,
schedule as prescribed in Workmen's Compensation Act can be used.
In this connection learned counsel for the appellant has relied upon the
judgment in the case of Sarnam Singh vs. Shriram General
Insurance Co. Ltd & others reported in 2023 Live Law (SC) 498 and
Beer Narayan Singh vs. Ghanshyam reported in (2017) ACJ 1474.
4. Learned counsel for the appellant after relying on S.Monickam
vs. Metropolitan Transport Corporation Ltd. reported in (2013)
AIR (SC) 2629 submits that compensation is payable both for loss of
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 10/19/2023
6:42:49 PM
earning capacity as well as for permanent disability. Learned Tribunal
has not awarded any amount with respect to loss of earning capacity. In
the instant case, appellant was working as a labourer and four fingers
of his left hand have been amputated, therefore, Tribunal should have
awarded compensation under the head of loss of earning capacity.
5. Before accident, appellant was working as labourer and thereby
earning Rs.3000/- per month but on account of amputation of fingers
etc. of left hand he is unable to work as a labourer. On above grounds,
it is urged that appropriate and just compensation be awarded under the
head of loss of earning capacity and other heads.
6. Learned counsel for the respondent has submitted that
appellant's application under Workmen's compensation Act has
already been rejected, therefore, in the instant case provisions of above
Act would not apply. It is a case of 2002, therefore, appellant's per
month income cannot be assessed as Rs.3000/-. At the most it can be
assessed as Rs.1500 to Rs.2000/- per month. It is also urged that
learned Tribunal has awarded just and proper amount of compensation
and no enhancement is required in the instant case, therefore, appeal be
dismissed.
7. I have heard counsel for the parties and perused the record of the
case.
8. So far as permanent disability to appellant/claimant is concerned,
it is correct that claimant has not examined any doctor to prove fact of
permanent disability/permanent disability certificate Ex.P/9-C, P/10-C
& P/11-C but from deposition of appellant/injured Gokul and his
witness Kamal and charge sheet Ex.P/2, FIR Ex.P/3, medical
documents Ex.P/4, disability certificate Ex.P/9-C, P/10-C & P/11-C it
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 10/19/2023
6:42:49 PM
is clearly established that in the accident four fingers of appellant's left
hand have been amputated. In view of the above, in the considered
opinion of this Court, non-examination of any doctor to prove
disability certificate etc. is inconsequential. Thus, permanent disability
as above is clearly established in the instant case.
9. It is well established that in the case of permanent disability
compensation has to be awarded both for loss of earning
capacity/functional disability as well as for physical permanent
disability/loss of amenities (S.Manickam supra). So far as effect of
permanent disability on actual earning capacity of appellant is
concerned, it is evident from deposition of appellant Gokul himself and
Kamal that before / at the time of accident appellant was working as a
labourer and at the time of accident also appellant was working at
thresher machine.
10. In the instant case, it is established that four fingers of left hand
of appellant have been amputated, therefore, in view of the occupation
of the appellant, in the facts and circumstances of the case, future loss
of earning/earning capacity is assessed to be 50%. It is correct that in
Beer Narayan (supra) High Court of Chhatisgarh has assessed loss of
earning capacity with reference to schedule-1 of the Employees
Compensation Act but it was a case where right hand was amputated
below the shoulder.
11. Present case pertains to the year 2002, therefore, claimants'
monthly income is assessed at Rs.2,000/- per month. From medical
documents on record, age of appellant on the date of the accident was
23 years, therefore, considering his age, the multiplier which would be
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 10/19/2023
6:42:49 PM
applied in this case would be 18. Thus, calculation of future loss of
earnings will be as follows:
Rs.2000 x 12=24000 per annum x 50/100 (PD)=12000 x 18
(multiplier)=2,16,000/-
12. Therefore, appellant is entitled to receive Rs.2,16,000/ - as loss of
future earnings/earning capacity in the present case.
13. At the time of accident, age of appellant is proved to be 23 years
and he sustained partial permanent physical disability in his left arm in
the accident as above, therefore, he is also entitled to receive
Rs.1,00,000/- for loss of amenities of life.
14. As appellant's four fingers of left hand were amputated and
taking into consideration the occupation of the appellant at the time of
accident, it can be assumed that appellant might not have been able to
do any work for about three months. Therefore, in the considered
opinion of this Court, appellant is entitled to receive Rs.6,000/- as loss
of earnings during the period of treatment.
15. Besides, keeping in view the above discussion and evidence on
record, injuries suffered, period of treatment etc., the appellant is also
entitled to receive Rs.25,000/- as compensation under the head of pain,
suffering and expenses relating to nutritious food/diet, conveyance
attendant etc.
16. Thus, the just and proper amount of total compensation in the
instant case is Rs.3,47,000/- (i.e. Rs.2,16,000+1,00,000+6,000+25,000)
as against the award of the Tribunal of Rs.1,00,000/-. Accordingly, the
appellant is entitled to an additional sum of Rs.2,47,000/- over and
above the amount which has been awarded by the Tribunal.
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 10/19/2023
6:42:49 PM
17. In the result, the appeal is partly allowed by enhancing the
compensation amount by a sum of Rs.2,47,000/-. The enhanced
amount shall carry interest at the rate of 7.5% per annum as awarded
by the Tribunal. The other findings recorded by the Tribunal shall
remain intact.
(ACHAL KUMAR PALIWAL)
JUDGE
hk/
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 10/19/2023
6:42:49 PM
