Punjab-Haryana High Court
National Insurance Company Limited vs Subodh Kant And Ots on 5 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:031488
FAO No.3470 of 2021(O&M) -1- 2024:PHHC:031488
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.3470 of 2021(O&M)
Date of Order:05.03.2024
National Insurance Company Limited
.Appellant
Versus
Subodh Kant and Others ..Respondents
FAO No.3812 of 2022(O&M)
Subodh Kant Yadav
.Appellant
Versus
Aas Mohd. and others ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Vinod Gupta, Advocate
for the appellant (in FAO-3470 of 2021)
Mr. Atul Yadav, Advocate
for the appellant (in FAO-3812-2022)
Mr. Ankush Choudhary, Advocate
for the claimant/Subodh Kant (in FAO-3470-2021)
ANIL KSHETARPAL, J
1. On 20.02.2024, the learned counsel representing the parties
were heard at some length and the following order was recorded:-
"On 15.02.2024, the following order was passed:-
"1.These two cross-appeals have been filed to
challenge the correctness of the amount of
compensation awarded by the Motor Accident
Claims Tribunal, Gurugram (hereinafter referred
to as "the Tribunal") on account of the injuries
suffered by Subodh Kant Yadav (appellant in First
Appeal Order No.3812 of 2022).
2. The learned counsel representing the parties
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have been heard at some length.
3. The learned counsel representing the insurance
company submits that the award passed by the
Tribunal is erroneous on the following three
grounds:-
I) The Tribunal has increased the income of the
claimant by 50% on account of future prospects,
though he was entitled to 40% increase.
II) The Tribunal has assessed the loss of income @
90%, though, the claimant has suffered disability
of 64%. He submits that though there is an
amputation of right leg below knee of the claimant,
who is 23 years old boy, however, he claims to be
working as a Pharmacist running a shop and,
therefore, the loss of income, keeping in view the
nature of his work, to the extent of 90% is
excessive.
III) The Tribunal has granted ₹10,00,000/-
towards pain and suffering, transportation, special
diet and loss amenities of life, which is also
excessive.
4. The learned counsel representing the claimant
submits that Subodh Kant Yadav, aged about 23
years, has suffered grievous injuries in the accident
resulting in amputation of his right leg. He will
have to lead a life of cripple. However, he prays
for a short accommodation to further prepare the
case.
5. List on 20.02.2024, in the urgent list.
6. No further request, written or oral, for grant of
an adjournment, shall be entertained.
7. A photocopy of this order be placed on the file of
another connected case.
Learned counsel representing the parties have
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again been heard at some length.
Learned counsel representing the claimant has
drawn the
attention of the Court to the findings recorded by the
Motor Accident Claims Tribunal, Gurugram in para 18,
19 and 20 of the award. He further submits that the
Tribunal has erred in assessing the income of the
claimant @ Rs. 9,500/- per month while ignoring that the
claimant was licensed Pharmacist, who had opened his
pharmacy in the area of Pataudi, District Gurugram. He
further submits that not only the right leg below knee of
the claimant was amputated but he also suffered multiple
grievous injuries and as per disability certificate, there is
restricted movement of shoulder to the extent of 12%.
Keeping in view the aforesaid facts, learned
counsel representing the parties are requested to prepare
a convenience note while identifying the issues, which
require adjudication.
List on 23.02.2024, in the urgent list, for final
disposal.
A photocopy of this order be placed on the file of
connected case."
2. In these two cross appeals, the parties are neither disputing the
correctness of the findings of fact arrived at by the Motor Accident Claims
Tribunal (hereinafter referred to as 'the Tribunal') with respect to the manner
in which the accident took place not the findings of the Tribunal with regard
to rash and negligent driving of the driver of Trola Truck is assailed. The
parties have challenged the correctness of the assessment made by the
Tribunal.
3. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book along
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with the requisitioned record of the Tribunal.
4. The Tribunal has assessed that the claimant-Subodh Kant
Yadav is entitled to total compensation of Rs.52,86,967.65/-. The amount
has been arrived at in the following manner:-
Sr.No. Heads Awarded by the claims Tribunal
1. Income of the injured Rs.9518.49/- P.M.
2. Treatment including Rs.16,09,333-304845=13,01,488/-
medicines
3. Loss of earning due to
disability
(i) during the period of (a) Rs.19,9,888.29
treatment
(ii) loss of future earnings (b) Rs.27,75,591.36
4. Loss of amenities of life Rs.2,00,000/-
6. Pain and suffering Rs.5,00,000/-
7. Transportation, special diet Rs.1,00,000/-
and attendant charges
8. Loss of prospects of marriage Rs.1,00,000/-
9. Cost of Artificial limb Rs.10,000/-
10. Future Medical Expenses and Rs.1,00,000/-
Attendant Charges
11. Total compensation Rs.52,86,967.65
12. Rate of interest awarded 6%
5. The first argument put forth by the Insurance Company has
substance. The learned cousnel representing the claimant does not dispute
this fact. Hence, the increase in the income of the claimant on account of
future prospects shall be 40% and not 50%.
6. With regard to the second argument of the Insurance Company,
the learned counsel relies upon the judgment passed by the Supreme Court
in Raj Kumar vs. Ajay Kumar,(Civil Appeal No.8981 of 2010 (Arising out
of SLP(C) No.10383 of 2007), decided on 18.10.2010.
7. It is evident that the claimant, a 23 years old boy, suffered
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amputation of his right leg below knee on account of the accident. At the
relevant time, the claimant was running a pharmacy in the area of Pataudi,
District Gurugram. He had opened the pharmacy after taking permission
from the concerned authorities. At the time of the accident, he was not a
qualified pharmacist and he had hired another qualified person to work for
him. The Tribunal has assessed the loss of income @ 90% of his earning
capacity. The Insurance Company contends that the amount assessed by the
Tribunal is excessive.
8. Per contra, the learned counsel representing the claimant
submits that the income assessed by the Tribunal is wrong. He submits that
though the Medical Board has certified that the claimant has suffered
disability of 64%, however, the functional disability of the claimant is not
less than 90%.
9. This court has considered the submissions of the learned
counsel representing the claimant.
10. The claimant is running a pharmacy. The learned counsel
representing the claimant submits that the claimant's wife has now got the
pharmacist's licence. However, the claimant is now permanently
functionally disabled. His entire life lies ahead of him. He was only 23
years old when he lost his lower right leg.
11. Keeping in view the aforesaid facts, the claimant's functional
disability is assessed at 64% as per the assessment by the Medical Board.
The Tribunal's award to that effect shall stand modified.
12. With regard to the third argument, it may be noted that the
Tribunal has awarded Rs.10,00,000/- towards pain and suffering,
transportation, special diet and loss amenities of life. This court does not
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find it appropriate to interfere in the aforesaid finding. However, the
claimant was already married, he shall not be awarded Rs.1,00,000/- as
awarded by the Tribunal on marriage prospects. Hence, the same shall be
deemed as not granted.
13. The learned counsel representing the claimant submits that the
Tribunal has erred in assessing his income at par with a skilled worker i.e.
Rs.9518.49 per month particularly when the claimant was running a
pharmacy in the area of Gurugram. The appellant has produced the licence
issued by the authorities permitting the claimant to open the pharmacy shop
which is owned by his father.
14. In these circumstances, the income assessed by the Tribunal is
not appropriate. The claimant is residing in the area of District Gurugram
which abuts the National Capital Region Delhi. Undoubtedly, he was
running his pharmacy in Pataudi, which is a sub-division of District
Gurugram. However, the claimants have not brought any documentary
evidence to prove their income except the oral evidence.
15. Considering the facts of the case, this court is required to use
the Thumb Rule in assessing the income of the claimant. Hence, the income
of the claimant is conservatively assessed at Rs.20,000/- per month.
Accordingly, the loss of the income of the claimant is assessed at
Rs.12,800/- per month. On account of future prospects, his income will be
increased by 40%.
16. Apart from that, the claimant has been awarded Rs.10,000/-
towards artificial limb which would periodically need replacement. The
learned counsel representing the Insurance Company submits that the
Tribunal while awarding Rs.13,01,488/-, has added Rs.90,000/- as the cost of
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artificial limb, however, in the considered view of this Court, the artificial
limb would need periodical repair as well as replacement.
17. Keeping in view the aforesaid facts, the cost of artificial limb
and its repair and replacement, is conservatively assessed at Rs.2,50,000/-.
18. Similarly, the Tribunal has also erred in assessing the future
medical expenses and attendant charges, only @ Rs.1,00,000/-. Keeping in
view the young age of the claimant, the aforesaid amount is revised to
Rs.2.50,000/-.
21. Hence, the amount of compensation is re-worked as under:-
Heads Compensation awarded by Compensation awarded by
MACT High Court
Income of injured Rs.9518.49 per month Rs.20,000/- per month
Treatment including Rs.16,09,333- Rs.13,01,488/-
medicines 30,4845=13,01,488/-
Loss of earning due to
(i) during the period of (a) Rs.1,99,888.29 (a) 20,000x21=4,20,000/-
treatment.
(ii) loss of future earning (b) Rs.27,75,591.36(50%) (b) Loss of earning due to
functional disability(64%)
=20,000x64/100=12,800/-
per month.
(Loss of earning due to
functional disability + loss
of future prospects(40%))x
MultiplierxAnnual income =
(12,800x12)+40%x18=
Rs.38,70,720/-
Loss of amenities for life Rs.2,00,000/- Rs,2,00,000/-
Pain and suffering Rs.5,00,000/- Rs.5,00,000/-
Transportation, special diet Rs.1,00,000/- Rs.1,00,000/-
and attendant charges
Loss of prospects of Rs.1,00,000/- NIL
marriage
Cost of artificial limb Rs.10,000/- Rs.2,50,000/-
Future Medical expenses Rs.1,00,000/- Rs.2,50,000/-
and attendant charges
Total compensation Rs.52,86,967.65/- Rs.68,92,208/-
Rate of Interest 6% 9%
Compensation Awarded by the High Court :Rs.68,92,208/-
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(-) Compensation Awarded by the MACT :Rs.52,86,967.65/-
Enhanced Compensation :Rs.16,05,240.35/-
19. With these modifications, both the appeals are disposed of.
20. The enhanced amount i.e. Rs.16,05,240.35/- shall carry interest @
9% from the date of filing of the claim petition till its realization.
21. All the pending miscellaneous applications, if any, are also
disposed of.
March 05, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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