Yusuf Hussain vs Bhanwar Lal And Ors
2021 Latest Caselaw 2137 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

S.B. Civil Misc. Appeal No. 5218/2011

Yusuf Hussain S/o Iqbal Hussail Bohra, aged about 36 years, R/o Kankroli, Tehsil & District Rajsamand, Rajasthan.

----Appellant Versus

1. Bhanwar Lal S/o Nathu Lal Meghwal, R/o Modwa, Tehsil- Nathdwara, District Rajsamand, Rajasthan-

Driver

2. Heera Lal S/o Pera Ji Meghwal, R/o Khajooro Ki Khedi, Tehsil Nathdwara, District Rajsamand-

Owner

3. The New India Assurance Company Limited, through Divisional Manager, Divisional Office, 3 Bapu Bazar, Udaipur-

Insurer

----Respondent

For Appellant(s) : Mr. Sandeep Saruparia.

For Respondent(s)          :    Mr. Sunil A Vyas.



        HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                 Judgment

27/01/2021

The matter comes up on an application for early hearing of

the appeal.

For the reasons mentioned in the application, the same is

allowed.

With the consent of counsel for the parties, the matter is

taken up and heard finally today itself.

The instant appeal has been preferred against the judgment

and award dated 18.10.2011 passed by Motor Accident Claims

Tribunal, Rajsamand in Motor Accident Claim Case No.169/2010

whereby the learned tribunal has awarded a sum of Rs.8,28,700/-

(2 of 6) [CMA-5218/2011]

in favour of the appellant-claimant with an interest @ 7% per

annum.

The counsel for the appellant submits that learned Tribunal

erred while computing income of the appellant to the tune of

Rs.1,39,462/- per annum, which is a mean amount of income

shown in the Income Tax Certificates of years 2008, 2009 and

2009 respectively. He further submits that appellant's business

was flourishing and was in ascending mode. In any case, the

income of the appellant in the Income Tax Returns of the

assessment year 2010 was shown to be Rs.1,60,011/-. Since, the

accident occurred in the month of November, 2009, therefore,

there was no reason for the tribunal not to consider the income of

the appellant as shown in the Income Tax Return of assessment

year 2010 and taking into consideration the Income Tax Return of

year 2010, the income of the appellant should have been

considered and assessed as Rs.1,60,011/- per annum. He further

submits that multiplier of 15 should have been applied by the

learned Tribunal for computing the compensation whereas in the

instant case, the Tribunal has wrongly applied the multiplier of 16.

So far as the disability sustained by the appellant in the

accident is concerned, the counsel submits that in view of number

of fractures suffered by the appellant and as per opinion of the

medical board, whereby permanent disability of the appellant was

assessed to the extent of 40%, the Tribunal reduced the

permanent disability sustained by the appellant to the extent of

25% only without there being any cogent reason. There was no

reason for the Tribunal to compute the permanent disability of the

appellant to the extent of 25% only and the same should be

considered as 40% as the appellant has virtually become disabled

(3 of 6) [CMA-5218/2011]

even to perform his day-to-day activities and undertake his

business with the same energy and ability. He further submits that

no amount has been awarded by learned Tribunal towards the

future prospects to the appellant in view of the judgment of the

Hon'ble Supreme Court in the case of Sanjay Verma V/s Haryana

Roadways, 2014 ACJ 692 and Pappu Deo Yadav V/s Naresh Kumar

& Ors., AIR 2020 SC 4424. The counsel further submits that the

finding arrived at by the learned Tribunal on issue No.4 is

erroneous as the insurance company has been exonerated in the

present case from its liability of paying compensation in view of

the fact that the driving license held by the driver of the offending

vehicle was not proper and valid. In view of the judgment of

Hon'ble Supreme Court in the case of Mukund Devangan V/s

Oriental Insurance Co. Ltd. (2017) 14 SCC 663, liability on the

part of insurance company cannot be escaped. The counsel

further submits that the Tribunal has not awarded any sum

towards pain and suffering suffered by the appellant in the

accident which occurred on 25.11.2009. Therefore, he prays that

the judgment and award passed by the Tribunal may be modified

suitably.

Per contra, learned counsel for the insurance company

submits that the computation of compensation undertaken by the

Tribunal is perfectly just and proper and does not call for any

interference by this court. He further submits that since the

appellant was a businessman, therefore, it cannot be assumed

that his business will flourish all the times, therefore, the Tribunal

was right in taking average of three years Income Tax Returns for

arriving at correct figure of the income earned by the appellant.

He further submits that the multiplier applied by the Tribunal is

(4 of 6) [CMA-5218/2011]

also on the higher side because at the time of the accident, the

appellant was 39 years of age, therefore, multiplier of 15 should

have been applied by the learned Tribunal. The counsel frankly

submits that in the light of the judgments of Hon'ble Supreme

Court in the case of Sanjay Verma (supra) and Pappu Deo Yadav

(supra), the appellant-claimant is entitled for computation of

compensation towards the loss of future prospects. It is also

contended that in the light of judgment rendered by the Hon'ble

Supreme Court in the case of Mukund Devangan (supra), the

insurance company will be liable to pay compensation as offending

vehicle was having its weight less than 7500 kg, the license of

Light Motor Vehicle held by the driver of the offending vehicle

would be valid and considered for the purpose.

In view of above, this court is of the view that the Income

Tax Return for the year 2010 should have been taken into

consideration for calculating income of the appellant because

admittedly, the appellant was doing the business and trend of

business was in ascending order where his income was increasing,

therefore, it cannot be said that on the date on which the accident

occurred, the appellant was having an income less than the

income which has been reflected in the Income Tax Return,

therefore, the income of the appellant shown in his income tax

return of year 2010 is required to be considered. The Tribunal

also erred in taking into consideration 25% disability of the

appellant as the injuries sustained by the appellant are quite

serious and having three fractures and the certificate issued by

the Medical Board categorically mentions the disability suffered by

the appellant to the extent of 40%. There was no reason for the

tribunal to disbelieve the same in the light of injuries sustained by

(5 of 6) [CMA-5218/2011]

the appellant. This court is of the opinion that disability of the

appellant is required to be adjudged to the extent of 40%.

Taking into consideration Income Tax Return of the appellant

of year 2010, applying multiplier of 15 instead of 16 as admitted

by both the parties and considering disability to the extent of

40%, the income assessed by this court will be as under:-

Rs.1,60,011 x 15 x 40/100 = Rs.9,60,066/-

The argument of learned counsel for the appellant with

respect to future prospects having not been taken into

consideration, has merit in the light of judgments of Hon'ble

Supreme Court rendered in the cases of Pappu Deo Yadav (supra)

and Sanjay Verma (supra). Thus, the same is awarded @ 40%

and the amount of Rs.3,84,000/- is awarded to the appellant

towards his future prospects.

So far as argument of the counsel for the appellant that the

Tribunal has not awarded any amount towards the pain and

suffering suffered by the appellant in the accident, this court

deems it proper that the appellant is entitled to receive an amount

of Rs.1,00,000/- as compensation towards pain and suffering.

Since, the counsel for the appellant has not disputed or touched

the amount of compensation assessed and awarded by the learned

Tribunal under other heads, this court does not feel inclined to

interfere in the same.

In view of discussions made above, the present appeal is

partly allowed. The judgment and award dated 18.10.2011

passed by Motor Accident Claims Tribunal, Rajsamand in MAC case

No.169/2010 is modified and the respondent insurance company

(6 of 6) [CMA-5218/2011]

is directed to pay compensation to the appellant to the tune of

Rs.17,14,940/- within a period of six weeks. The amount of

compensation shall carry an interest @6% p.a. from the date of

filing of the claim petition before the Tribunal.

It is made clear that the said amount will be full and final

settlement towards the claim raised by the appellant and will be

inclusive of amount already awarded by the Tribunal towards

medical expenses, loss of income during treatment, transport

expenses etc. in favour of the appellant.

The record of the case be sent forthwith.

(VINIT KUMAR MATHUR),J

S-145-Anil Singh/-

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