Babasaheb vs Tajju
2024 Latest Caselaw 14966 MP

Madhya Pradesh High Court

Babasaheb vs Tajju on 20 May, 2024

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
                                                  ON THE 20 th OF MAY, 2024
                                               MISC. APPEAL No. 2649 of 2008

                          BETWEEN:-
                          BABASAHEB S/O DATTA PADAKRAO, AGED ABOUT 24
                          Y E A R S , BALAGANJ MOHALLA   HOSHANGABAD
                          DI.HOSHANGABAD (MADHYA PRADESH)

                                                                                          .....APPELANT
                          (BY SHRI SUSHIL GIRI GOSWAMI - ADVOCATE )

                          AND
                          1.    TAJJU S/O YAKUB KHAN, AGED ABOUT 30 YEARS,
                                VILL.THEEKRI    TH.GAUHARGANJ    DI.RAISEN
                                (MADHYA PRADESH)

                          2.    MOHAMMAD ZAFAR S/O-ASGAR MOHAMMAD,
                                AGED ABOUT 47 YEARS, 5,FIZA PALACE, KOH-E-
                                FIZA, BHOPAL (MADHYA PRADESH)

                          3.    UNITED INDIA INSURANCE CO.LTD. ITARSI,
                                HOSHANGABAD (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                          (BY MS. ASHGARI KHAN - ADVOCATE FOR RESPONDENT NO.3. )

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

This appeal was listed at motion stage but, with the consent of parties on IA No. 8423/24, the appeal is being heard finally.

2. This appeal has been filed being aggrieved with the award passed by the 4th Additional Motor Accident Claims Tribunal ( Fast Track Court ) Hoshangabad ( Narmadapuram ) in MACT No. 76/06 by order dated 19-05-

2007.

3. The facts before the Claims Tribunal in nutshell was that on 28-02- 2006, the claimant/ appellant was working in the Jhirnapur sand mines. At the night time, the driver of the offending vehicle in rash and negligent manner reversed the vehicle without any indicator or horn and the vehicle passed over the left leg and it was crushed and he was admitted for treatment and during treatment after two surgeries,his left leg was amputated below the knee.

4. The applicant has filed application under Section 5 of Limitation Act, 1963 vide IA No. 5876/06. In this application, the appellant has submitted that the impugned award was passed on 19-05-2007 and the limitation to file the

appeal has been expired on 28-08-2007 and the appeal is filed on 11-05-2008 with a delay of 256 days ( 257 days ).

5. Learned counsel for the appellant has submitted that the appellant was earning member of the family and he has incurred huge amount of money in treatment and due to non-availability of funds and being unaware of the period of limitation in filing the appeal, he could not file the appeal within time. He has contacted the counsel on 10-05-2008 and on his advice, the appeal was drafted on 11-05-2008 and filed on 12-05-2008. The circumstances were out of control hence, the appeal be admitted for hearing condoning the delay. The IA is supported by an affidavit.

6. The Insurance Company has not objected to the application by filing its reply. Hence, looking to the legislation that is welfare legislation incorporated under Section 5 liberally, IA No. 5876/06 is allowed and the delay of 256 days in filing the appeal is hereby condoned.

6. Learned counsel for the appellant has submitted that the Claims Tribunal have wrongly assessed the disability at 50% as the appellant was

earning through labour work and his leg was amputated below the knee and hence, in this condition, he is unable to work as labourer or work based on physical labour. He has relied on the judgment of Sarnam Singh vs. Shriram General Insurance Co. Ltd and Ors. decision of the Apex Court in Civil Appeal No. 3900/ 2023 dated 04-07-2023 in paragraph-9 of its judgment, the Apex Court has held that when a person who is engaged in the work relating to physical activities as 'rickshaw puller' if his leg is amputated, his disability is of 90%, there is no chances that he will get employment. He has also relied on the judgment of Jithendran Vs. The New India Assurance Co. Ltd & Anr. judgment of the Apex Court in Civil Appeal No. 6494/21 dated 27-10-2021.

7. Learned counsel for the appellant has further submitted that the Claims Tribunal has assessed the monthly income of the appellant only as Rs. 1500/- just half of the amount payable to an unskilled labour at the relevant time. He has also submitted that no income on the head of future prospect was awarded that should also be added in the income of the appellant.

8. Learned counsel for the respondent-Insurance Company has submitted that the Claims Tribunal has rightly assessed the income of the Claimant at that time. There was no judgment regarding future prospect at that time hence, the claimant is not entitled for enhancement on future prospect. The Claims Tribunal has assessed the permanent disability as 50% as the claimant

can work where the lower part of the body is not involved.

9. I have gone through the judgment.

10. The Apex Court in the case of Jithendran vs. The New India Assuarance Co. Ltd & Anr. after considering the judgment in Helen C. Rebello and Ors. vs. Maharashtra and Anr (1991)1 SCC 90, Jagdish vs.

Mohan and Ors (2018) 4 SCC 571 and Raj Kumar vs. Ajay Kumar and Anr. (2011) 1 SCC 343 and other judgments in paragraph-16 has held as under :-

"16. As noted earlier, the impact on the earning capacity for claimant by virtue of his 69% disability must not be measured as a proportionate loss of his earning capacity. The earning life for the appellant is over and as such his income loss has to be quantified as 100%. There is no other way to assess the earning loss since the appellant is incapacitated for life and is confined to home. In such circumstances, his loss of earning capacity must be fixed at 100%. As his monthly income was Rs.4,500/-, adding 40% future prospect thereto, the monthly loss of earning is quantified as Rs.6,300/. We therefore deem it appropriate to quantify Rs.13,60,800/- (Rs.6,300 x 12 x

18) as compensation for 100% loss of earning for the claimant. Accordingly, under this head, the amount awarded by the High Court is enhanced proportionately."

11. Looking to the above principle as laid down by the Apex Court in the above judgment and the evidence of Dr. A.K.Damle (AW-2) in which Dr. A.K.Damle stated that he has examined the claimant on 07-02-2007 in the accident he has suffered grievous injuries in the left leg. The left leg was badly crushed above the knee and he was operated in different hospitals and his left leg was amputated above the knee and 80% disability was found. The disability certificate is Ex. P/39. In the cross-examination, he has admitted that if prosthetic leg of good quality is applied then, he may work and he may also earn by working in which he had to work by sitting in chair. Nothing adverse has been found in the statement of the witness.

12. From the statement of the claimant it is also clear that he was working in sand mines as Supervisor and it has not been brought on record that he was skilled labour and he may earn his livelihood by sitting in chair and cost

of prosthetic leg differs as per quality hence, this fact is not being taken into consideration treating the appellant as general unskilled labour. But, looking to his age the disability is assessed 80%.

13. At the time of incident, different notifications by the Central and State Govt., the minimum wages was near about Rs. 3,000/-. At the time of accident, the appellant was of 25-27 age group hence, 40% income will be awarded in the head of future prospect thus, his income on the basis of minimum wages is assessed at Rs. 3,000/- per month and 40% enhancement is Rs. 1200/- thus, monthly income comes to Rs. 4200/-. Annual income is Rs. 50,400/-. Applying the multiplier of 18 @80% disability , the total loss of disability comes to Rs. 7,25,760/-. The Claims Tribunal has awarded Rs. 1,50,000/- in the head of disability and prosthetic leg. If this amount is reduced in the amount awarded, Rs. 5,75,760/- is enhanced in the head of permanent loss due to disability.

14. Rs. 96,055/- has been awarded on the other heads for expenditure in the treatment, special diet, attendant charges etc. Loss of income during treatment and for the mental pain and sufferings that amount being reasonable is kept intact. Thus, the appellant is entitled to Rs. 6,71,815/-. The appellant shall be entitled to interest in the enhanced amount of Rs. 5,75,760/- @ 6% per annum from the date of application till the amount is deposited before the Court. In counting interest, 256 days, the time spent in delay of filing the appeal shall be excluded. The Insurance Company shall bear the cost of the claim of this appeal.

(DEVNARAYAN MISHRA) JUDGE PG