Rajasthan High Court - Jodhpur
Subhash vs Oriental Insurance Co Ltd. And Ors on 9 April, 2021
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 805/2004
Subhash S/o Hajari Ram Vishnoi, Age 28 years, R/o Alai Tehsil
and District Nagaur
----Appellant
Versus
1. Oriental Insurance Company Ltd. through its Branch Manager,
Nagaur and Divisional Office at Residency Road, Jodhpur
2. Mohd. Sharif S/o Hamid Khan B/c Musalman, R/o Bandro Ka
Bas, Bikaner, District Bikaner.
3. Sukh Dev S/o Nathu Ram, B/c Acharya, R/o Kotdi Tehsil
Kolayat, District Bikaner.
----Respondents
For Appellant(s) : Mr. Prashant Panwar
For Respondent(s) : Mr. U.C.S. Singhvi
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Judgment
Reserved on; 07/04/2021
Pronounced on; 09/04/2021
Learned counsel for the parties stated that the matter may
be heard and finally decided at this stage.
The present appeal has been preferred by the appellant-
claimant against the Judgment and Award dated 15.11.2003
passed by the Motor Accident Claims Tribunal, Nagaur, in M.A.C.
Case No.14/2003, whereby the Tribunal partly allowed the claim
petition and awarded an amount of Rs.1,60,000/- as
(2 of 4) [CMA-805/2004]
compensation for the injuries suffered to the claimant in the
accident occurred on 25.11.2002.
Learned counsel for the appellant-claimant stated that
appellant was doing the job of driver and as per permanent
disablement certificate (Annex.7), medical expert found 80%
permanent disability. Learned counsel further stated that as per
the statement of AW-2 Chenaram (vehicle owner), appellant was
the driver on his vehicle and therefore, in present case since, by
profession, appellant is driver, he become jobless after the
accident, therefore, 100% disablement may be treated in the
present case. Learned counsel further stated that as per the
guidelines issued by the Apex Court in the case of National
Insurance Company Ltd. Vs. Pranay Sethi & Ors. reported in
AIR 2017 SC 5157, income towards future prospects was also
not awarded by the learned Tribunal. Learned counsel also stated
that at the time of accident, appellant was 27 years old, therefore,
he is entitled to 40% future prospects and multiplier of 17 should
be applied instead of 16. Learned counsel also stated that no
compensation towards of pain and sufferings was awarded by the
Tribunal, therefore, 25% of the amount awarded may be awarded
towards pain and sufferings as per the guidelines dated
05.11.2018 issued by the Rajasthan State Legal Services
Authority.
Per contra, learned counsel appearing on behalf of the
respondent-Insurance Company stated that since 80% permanent
disablement is proved as per the permanent disablement
certificate (Annex-7), therefore, Tribunal has rightly assessed the
disablement at 80%. Learned counsel for the respondent further
(3 of 4) [CMA-805/2004]
sated that AW-2 Chenaram (Vehicle Owner) admitted in his cross
examination that he was giving wages not salary to the appellant.
In reply, learned counsel for the appellant claimant stated
that the amount is required to be recomputed in the light of
guidelines issued by the Rajasthan State Legal Services Authority
guidelines dated 05.11.2018.
Having regard to the facts and circumstances of the case, it
is proved by evidence of appellant as well as AW-2 Chenaram that
at the time of the accident, appellant was working as driver on his
vehicle, and since appellant-claimant was performing the job of
driver and due to accident, his left leg was amputated, hence, the
claimant-appellant would not be able to work as professional
driver in future, therefore, looking to the nature of the work, in
my humble opinion, this is a case of 100% loss of income due to
permanent disablement and hence, the appellant-claimant
deserves to be allowed 100% loss of income due to permanent
disablement and accordingly, award deserves to be modified by
enhancing the amount.
It is also proved by learned counsel for the appellant
claimant that performing the job of driver and getting monthly
salary of Rs.3,500/- which is normally possible in routine and the
said evidence remains unrebutted. It is also pertinent to mention
here that income of driver was proved by claimant himself as well
as AW-2 Chenaram, owner of the vehicle and the said evidence
remains uncontroverted.
The recalculation of the award in the present case is required
to be made in accordance with the guidelines dated 05.11.2018
issued by Rajasthan State Legal Services Authority in following
manner:-
(4 of 4) [CMA-805/2004]
For Simple Injury Rs.2,500/-
For Hospitalization (18 Days x Rs.10,800/-
Rs.600)
Age 27 years
Permanent Disability (100%) Rs.9,99,600/-
(3500x40/100=1,400),so
(4900x12x17x100%)
Loss of Income (Rs. 117 per day Rs.2,106/-
x 18 Days)
Medical Expenses Rs.25,000/-
Pain and Suffering Rs.2,53,752/-
(2500+10,800+9,99,600+2106
x 25%)
Total Award 12,93,758/-
Compensation awarded by the Rs.1,60,000/-
Tribunal
Enhanced Compensation Rs.11,33,758/-
In view of the discussions made hereinabove, the present
appeal is allowed. The respondents are directed to pay an amount
of Rs.11,33,758/- in addition to the amount already awarded by
the Tribunal vide its Judgment dated 15.11.2003, within a period
of six weeks. The enhanced amount shall carry interest @ 6%
from the date of filing the claim-petition till the same is paid.
The amount so deposited by the respondents shall be
disbursed by the Tribunal in the saving bank account of the
claimant in accordance with law.
(DEVENDRA KACHHAWAHA),J
21-Arvind/-
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