Madhya Pradesh High Court
Santosh vs Sikandar on 4 March, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 4th OF MARCH, 2024
MISC. APPEAL No. 1984 of 2021
BETWEEN:-
SANTOSH S/O MOHANLAL MARU, AGED ABOUT 34
YEARS, OCCUPATION: AGRICULTURE KHAMLIYA,
TEHSIL SARDARPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI MANISH JAIN - ADVOCATE)
AND
1. SIKANDAR S/O VASUDEV YADAV, AGED ABOUT 32
YEARS, OCCUPATION: DRIVER MADANGUNDI, P.S.
AND POST CHANDWARA DISTRICT KONDARMA
(JHARKHAND)
2. MAHESH S/O MANI YADAV OCCUPATION: OWNER
MADANGUNDI P.S. AND POST CHANDWARA
DISTRICT KONDARMA (JHARKHAND)
3. CHOLAMANDLAM M.S. GEN. INS. COM. LTD THR.
B.M. METRO TOWER MANGAL CITY VIJAY
NAGAR SQUARE INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PANKAJ KUMAR JAIN - ADVOCATE FOR RESPONDENT NO.3)
---------------------------------------------------------------------------------------------------------------
This appeal coming on for admission this day, the court passed the
following:
ORDER
This appeal has been filed by the appellant-claimant under Section
173(1) of Motor Vehicles Act, 1988, against the award dated20.11.2020 passed
by Ist Additional Member, MACT Sardarpur, district Dhar in Claim Case
No.76/2017 on account of inadequacy of compensation and seeking
enhancement of amount of compensation.
2. The date of accident, negligence and the issue of liability are not in
dispute and the findings recorded by the Tribunal in this regard are also not in
question. As per the findings of the Tribunal, in case of permanent disability of
Santosh, the Tribunal has awarded a total compensation of Rs.6,63,115/- along
with interest.
3. Learned counsel for the appellant submits that the Tribunal has erred in
not assessing and granting the general damages on the basis of 83% and 44%
permanent disability of right leg and hand as total loss of earning capacity, loss
of physical and bodily integrity, Rs. 20,000/- per month from agricultural
works and by further adding 50% future prospects as per law. He further
submitted that findings regarding nature of injuries, only 25% future loss of
income as permanent disability, assessing amount of income as Rs.7,000/- by
the Tribunal is arbitrary, erroneous and illegal and deserves to be set aside. He
further submitted that Tribunal has grossly erred in not assessing and granting
the general damages on the basis of 83% and 44% permanent disability of right
hand and leg as total 100% future loss of earning capacity. The Tribunal erred
in granting meagre sum for permanent disability and general damages. Hence,
prays for enhancement of compensation.
4. On the other hand, learned counsel for the Insurance Company argued in
support of the impugned award and contended that the Claims Tribunal has
rightly awarded the compensation amount in the case which does not call for
any interference by this Court and prays for dismissal of the appeal.
5. Heard the learned counsel for the parties and perused the record.
6. Learned counsel for the appellant submitted that Tribunal has committed
error in holding 25% permanent disability. He relied on the judgment in the
case of Raj Kumar Vs. Ajay Kumar and another 2011 ACJ 1. Para 10 of
the judgment reads as under:-
"10. Ascertainment of the effect of the permanent disability
on the actual earning capacity involves three steps. The
Tribunal has to first ascertain what activities the claimant
could carry on in spite of the permanent disability and what he
could not do as a result of the permanent ability (this is also
relevant for awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the accident,
as also his age. The third step is to find out whether (i) the
claimant is totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent disability,
the claimant could still effectively carry on the activities and
functions, which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his previous
activities and functions, but could carry on some other or
lesser scale of activities and functions so that he continues to
earn or can continue to earn his livelihood. For example, if the
left hand of a claimant is amputated, the permanent physical
or functional disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss of earning
capacity may virtually be hundred percent, if he is neither able
to drive or do carpentry. On the other hand, if the claimant
was a clerk in government service, the loss of his left hand
may not result in loss of employment and he may still be
continued as a clerk as he could perform his clerical functions;
and in that event the loss of earning capacity will not be 100%
as in the case of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact, there may not
be any need to award any compensation under the head of
`loss of future earnings', if the claimant continues in
government service, though he may be awarded compensation
under the head of loss of amenities as a consequence of losing
his hand. Sometimes the injured claimant may be continued in
service, but may not found suitable for discharging the duties
attached to the post or job which he was earlier holding, on
account of his disability, and may therefore be shifted to some
other suitable but lesser post with lesser emoluments, in which
case there should be a limited award under the head of loss of
future earning capacity, taking note of the reduced earning
capacity. It may be noted that when compensation is awarded
by treating the loss of future earning capacity as 100% (or
even anything more than 50%), the need to award
compensation separately under the head of loss of amenities
or loss of expectation of life may disappear and as a result,
only a token or nominal amount may have to be awarded
under the head of loss of amenities or loss of expectation of
life, as otherwise there may be a duplication in the award of
compensation. Be that as it may."
7. He also relied on the judgment in the case of Jagdish Vs. Mohan and
others 2018 ACJ 1011. Para 8 reads as under:-
In Laxman Vs. Divisional Manager, Oriental Insurance
Company Ltd., 2012 ACJ 191, this Court held:
"The ratio of the above noted judgments is that if the victim of an
accident suffers permanent or temporary disability, then efforts
should always be made to award adequate compensation not
only for the physical injury and treatment, but also for the pain,
suffering and trauma caused due to accident, loss of earnings and
victim's inability to lead a normal life and enjoy amenities, which
he would have enjoyed but for the disability caused due to the
accident."
8. In view of the above verdict of Hon'ble Apex Court, perusal of the
record it is found that claimant Dr.Devendera Mandloi PW-1 who gave
permanent disability certificate Ex.P-1 in which he stated as under:-
"This is to certify that I have examined Santosh S/o Mohanlal 40 yr
male residence of Khamaliya Tehsil Sardarpur District Dhar for
assessing his disablement. On measurement of functional
impairment, he has 44% (Forty four percent) permanent physical
impairment in his right upper limb & 83% (eighty three percent)
permanent physical impairment in his right lower limb. His
disablement has been calculated on the basis of manual for doctors
to evaluate permanent physical impairment using modified Kessles
formula."
9. Considering the evidence of the claimant at the time of passing the
award, the Presiding Officer of the Tribunal gave a note of deposition sheet
that:
"साक्ष्यh के दौरान आहत के पैर की स्थितत को दे खा
गया तो यह पाया गया कक उसका घुटना मौजूद नह ीं है
तिा घुटने के नीचे का पूरा पैर अत्यौतिक खराब
स्थितत में है तिा मवाद भी पड़ रहा है और आहत
स्थवयीं न तो खड़ा हो सकता है एवीं नाह चऱ किर
सकता है वह न्या याऱय में साक्ष्यव हे तु भी जमीन पर
बैठकर तघसट-तघसटकर आया है ।"
10. Considering the evidence of the claimant, it is found that he was
agriculturist, but he is unable to produce any document that he holds an
agricultural land, but he was young man near about 40-50 years old and
Tribunal has rightly assessed his income as Rs.7,000/- per month. Taking into
consideration the evidence of the Dr.Devendera Mandloi (PW-1) it is found
that he examined the claimant and found that claimant sustained fracture of
femur right with fracture tibia fibula right side with fracture radius ulna right
side with fracture right 2nd and 3rd metacarpal. He also found that right thigh
AP and lateral shows mal united fracture femur, right leg AP and lateral shows
malunited fracture tibia fibula and patella. Right forearm AP and lateral shows
malunited fracture radius with non united fracture ulna with bone loss, right
hand AP and oblique shows malunited fracture 2nd 3rdmetacarpal. He also
found total disability for upper limb due to arm component and total disability
for lower limb due to mobility component. He found 44% permanent physical
impairment in his right upper limb and 83% permanent physical impairment in
his right lower limb.
11. Considering the evidence of Dr. Devendera Mandloi (PW-1) and the
note by the Presiding Officer of the Tribunal at the time of recording of
evidence of the claimant, it is found that claimant was totally disabled. As
aforesaid discussion, in the considered opinion of this Court, the disability of
the claimant with regard to income is 100%. Hence the Tribunal has committed
error in holding 25% disability with regard to the income of the claimant which
needs to be modified as mentioned above.
12. Learned counsel for the appellant submitted that he filed driving licence
of the appellant-claimant, but it was not exhibited. He submitted that non
exhibition of document is a procedural lapse. He relied on the judgment in the
case of Vimla Devi and others Vs. National Insurance Company Limited
(2019) SCC 186 in which the Apex Court held that non exhibition of document
is a procedural lapse. It is not to disentitle a claim, when otherwise sufficient
evidence is adduced and documents established the identity of the offending
vehicle.
13. The aforesaid judgment relied upon by the learned counsel for the
appellant does not help the appellant because it is the duty of the appellant to
produce the original driving licence when he gave his evidence before the
Tribunal, but he has not produced the original driving licence at the time of his
evidence.
14. In view of the aforesaid discussion, the compensation is calculated as
follows:-
Income of the claimant Rs.7,000/- p.m.X 12 X 14=11,76,000/-
Loss of Income Rs.42,000/-
Medical Expenses Rs.2,27,115/-
Special Diet Rs.30,000/-
Transport Expenses Rs.20,000/-
Total Amount Rs.14,95,115/-
15. Thus, the just and proper amount of compensation in the instant case is
Rs.14,95,115/- as against the award of the Tribunal of Rs.6,63,115/-.
Accordingly, the appellant is entitled to an additional sum of Rs.8,32,000/-
over and above the amount which has been awarded by the Tribunal.
16. The appellant has valued the appeal only to the extent of Rs.5,00,000/-
and paid the Court fee accordingly, however, for the remaining amount, the
Court fee shall be paid by the appellant within a period of one month and
thereafter the amount shall be released by the Insurance Company on receiving
the certificate. In case the certificate has not been filed before the Insurance
Company up to a period of three months, the claimant shall not be entitled to
receive the interest on the enhanced amount of compensation.
17. In the result, the appeal is partly allowed to the extent as indicated
above. The enhanced amount shall bear interest at the same rate as awarded by
the Tribunal. The other findings recorded by the Tribunal shall remain intact.
(HIRDESH)
JUDGE
RJ
