Rajasthan High Court - Jodhpur

Rajendra Singh vs Ramilal And Ors on 30 January, 2021

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 321/2003

Rajendra Singh Son of Shri Purushottam Singh, By Caste Rajput (Khinchi), Aged 32 years, Resident of Kothariya, Tehsil Nathdwara, District Rajsamand (Raj.)

----Appellant Versus

1. Ramlal son of Shri Chandanram @ Shri Dhana Ram, By Caste Rajput Oad Resident of Khatalbana, District Ganganagar.

2. Ishwarsingh son of Shri Suraj Bhan Soni, Residetn of Sri Ganganagar, District Shri Ganganagar.

3. The New India Insurance Co. Ltd., Shri Ganganagar, District Shri Ganganagar (Raj.)

----Respondents

For Appellant(s) : Mr. Dilip Kawadia For Respondent(s) : Mr. Sanjeev Johari Mr. Shubhankar Johari

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

30/01/2021

The instant appeal under Section 173 of the Motor Vehicles

Act, 1988 for enhancement of compensation has been filed by the

appellant-claimant against the award dated 01.10.2002, passed

by the learned Judge, Motor Accident Claims Tribunal, Nathdwara

(afterwards referred as 'Tribunal') in MAC No.62/2002 (168/2000)

whereby learned Tribunal has awarded a sum of Rs.2,85,000/- as

compensation money.

Brief facts of the case are that a road accident took place on

09.10.1999, in which claimant Rajendra Singh sustained many

injuries; injured was going to Kothariya on his motorcycle, near

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bus stand Nathdwara, offending Truck bearing registration

No.R.J.13.G.0830 hit the motorcycle of the injured. A claim

petition was filed by the injured on 06.06.2000 against driver,

owner and Insurance Company of the Truck. After due inquiry,

learned Tribunal awarded a sum of Rs.2,85,000/- as compensation

in the following term:-

For injuries and permanent disability Rs. 50,000/- For pain & suffering and nutritious diet Rs. 20,000/-

 For Transportation                                                Rs.      10,000/-
 For Medical Expenses                                              Rs.    2,00,000/-
 Other Loss                                                        Rs.       5,000/-
 Total                                                             Rs. 2,85,000/-

Not satisfied with the quantum of award, this appeal has

been filed.

Learned counsel for the appellant contended that in the

accident, claimant sustained grievous injuries on his left leg, jaw

and nose, for which, Medical Board has assessed 40% permanent

disability. Due to injuries sustained by him, he cannot walk

properly and is unable to drive motor-cycle; his capacity to earn

money has also been reduced substantially. Before the said

accident, he was earning Rs.20,000/- per month, regarding which,

he has placed on record income tax return.

It was submitted by learned counsel for the appellant that

learned Tribunal without applying multiplier has assessed the loss

of income as Rs.50,000/- only, which is not justified.

Relying on the judgment of Hon'ble Apex Court in the matter

of Kajal Vs. Jagdish Chand and Ors: Civil Appeal No.735/2020:

(2020) 4 SCC p.413, learned counsel submitted that as per the

income shown in the income tax return and by applying the

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multiplier of 16 prescribed for the age group of 31 to 35 years,

adequate compensation should be awarded to the appellant. It

was further contended that for the injuries sustained in the

accident, treatment is continuing, for which, learned Tribunal has

not awarded any amount as also in the head of loss of future

amenities in life. Compensation towards loss of earning during the

period of treatment, expenses incurred towards attendant charges

have also not been awarded by the learned Tribunal.

It was also contended that the statement made by the

claimant-appellant in examination-in-chief regarding his income

has not been rebutted during cross-examination; mental pain and

agony has also not been compensated properly. Learned Tribunal

has awarded interest @ 9% per annum, which should be

enhanced to 12% per annum.

On the other hand, learned counsel for the respondents has

contended that in the present case, there is no necessity to award

any amount for the loss of future amenity in life. Claimant does

not require any further treatment. The victim sustained grievous

injuries for which, he can be compensated as per the RSLSA

guidelines.

In written submissions filed by learned counsel for the

respondent, it was submitted that the judgment passed by the

Hon'ble Apex Court in the matter of Kajal (supra) is not applicable

in view of the facts and circumstances involved in the present

case. The said judgment essentially speaks about peculiar facts of

the said case of victim of younger age and other family

circumstances.

Relying on the judgment of Hon'ble Supreme Court in the

matter of Lalan D. @ Lal and Anr. Vs. Oriental Insurance Company

(4 of 9) [CMA-321/2003]

Ltd: Civil Special Appeal No.2855/2020 reported in (2020) 9 SCC

805, learned counsel contended that judgment of Hon'ble

Supreme Court in Kajal's case is distinguishable to the facts of

present case.

As per the Medical Board certificate (Ex.216), produced by

claimant during the trial, the Medical Board was of the opinion that

Rajendra Singh has 40% permanent disability due to injuries

sustained in the accident. As per report of Medical Board it was

found that:-

"We certify that on 25.10.2000 Rajendra Singh appeared before the Medical Board and gave us history of Road Traffic Accident on 09.10.99 having sustained multiple injuries with allusion injury in ankle and heel, operated at Ahmedabad three times. Grafting also done with fixation of pin, subluxation ramus, left side mandible fracture, both maxilla fracture, ethmoidal bone faciomaxillary soft injury, fracture crown of front teeth of both jaw.

Now the patient complains headache, scars on face, ankle and heel pain and difficulty in walking, severe stiffness left ankle and shortening of left heel with discharging sinus heel and ankle, painful walking, difficulty in chewing and mastication.

On examination it was found that pus discharging sinus, left ankle and on heel, severe stiffness, left ankle, scar on right chin, on face and below lower lip, no heel soft tissue of heel missing left foot with pus discharging sinus. Painful walking, mouth-opening.

Opinion: On examination the Board has the opinion that the above mentioned person has 40% (Forty percent) permanent disability due to the injuries sustained in the accident."

Rajendra Singh (P.W.1) in his statement on oath stated as

under:-

"eSa uhps fxjk ftlls esjk iwjk eaqg ?kwe x;kA ukd Vs<k gks x;kA nkar VwV x;sA uhps ls iwjk tcM+k fudy x;kA esjs gksaB dV x;sA tcM+s ds LFkku ij QSDpj gks x;kA nksuksa vka[kksa ds uhps QSDpj gks

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x;kA esjk iwjk eqag fc[kj x;kA QSDpj brus gks x;s fd fxu ugha ldrsA esjk ck;sa ikao esa ,M+h dV x;hA esjs "kjhj ij vkSj Hkh NksVh&eksVh pksVsa vk;hA eSa ?kk;y gks x;kA"

He further stated that:-

"esjk nwljk ikao nq?kZVuk ls igys ls gh [kjkc gSA nwljs ikao dh nq?kZVuk esa ,M+h dVus ds dkj.k pyus&fQjus esa dkQh ijs"kkuh gksrh gSA "kkSpkfn esa dkQh dfBukbZ gksrh gSA"

Above statement in chief has not been rebutted in

cross-examination. No evidence has been produced by the

respondent, hence, it is clear that due to injuries, particularly, the

injury in left ankle, permanent disability has been caused to the

claimant, which is assessed by Medical Board as 40%.

As per the statement of claimant, claimant was doing

business of marble on commission basis, selling fish and was also

working on farm house, from which, he was earning Rs.20,000/-

per month. Claimant further stated that due to injuries sustained

in the accident, now, he is not able to do business and also unable

to drive motor-cycle. With regard to income of the claimant,

income tax return of a financial year i.e. 1988-89 has been

produced; according to which, income other than agricultural

income was shown as Rs.59,760/-. Though, agricultural income

has also been shown in the income tax return, but evidence

regarding availability of land has not been produced.

Learned Tribunal has ascertained income of the claimant as

Rs.5,000/- per month. The conclusion of the learned Tribunal is

justified. There is no cogent evidence on record to assume that

claimant was earning more than Rs.5,000/- per month. As per

income tax return also, in that particular year, he earned

Rs.59,760 from his business.

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Regarding impact of disability on future income, Hon'ble

Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Ors :

Civil Appeal No.8981/2010, observed as under:-

"8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. - 2010(10) SCALE 298 and

(7 of 9) [CMA-321/2003]

Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567)."

Coming to the facts of present case, looking to the nature of

injury sustained by the claimant, the nature of work and income of

the claimant, this Court is of the opinion that permanent disability

would not affect future earning of the claimant to the extent of

40%. Keeping in view the statement of the claimant, opinion of

the Medical Board and other evidence on record, loss of future

earning is assessed as 20% of the income of claimant.

There is no dispute regarding age of the appellant; as per

the claim petition, the date of birth of appellant is 07.06.1968 and

hence, on the date of accident i.e. 09.10.1999, claimant was more

than 30 years old. As per the principles laid down by the Hon'ble

Apex Court in the matter of Sarla Verma (supra), for the age

group of 31-35 years, the multiplier of 16 is applicable.

Regarding compensation in the head of future treatment,

record reveals that the last prescription slip is of year 2000 and

afterwards no prescription or bill for medical expenses are

available. In the absence of any evidence on this count, no

money can be awarded for future medical expenses.

In the facts and circumstances of the present case,

particularly, looking to the nature of injury sustained by the

claimant, there is no basis to award any money for the loss of

amenities in life. The facts in the matter of Kajal (supra) are

distinguishable from the facts of the present case. The Hon'ble

Supreme Court in Kajal's case observed that a young girl

sustained grievous brain injury, on account of which, she became

100% disabled.

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It is true that learned Tribunal has not awarded any money

in the head of expenses towards attendant and loss of earning

during the period of treatment, for which reasonable amount

should be awarded.

As per discharge card (Ex.213) submitted by the appellant,

he remained hospitalized from 26.11.1999 to 04.12.1999 for nine

days.

Learned Tribunal has awarded Rs.2,00,000/- for expenses

relating to treatment on the basis of bill, hence, there is no ground

to enhance money in this head.

On the basis of above discussion and evidence available on

record, claimant is entitled for compensation in the manner

enumerated below:-

Loss of income Rs.5000 X 12 X 20/100 = Rs. 12000/- Rs. 1,92,000/- 12,000X16 = 1,92,000/-

Expenses relating to treatment as assessed by Rs. 2,00,000/-

Tribunal
Transportation                                                    Rs.      10,000/-
Nourishing Diet                                                   Rs.       5,000/-
Attendants and misc. expenses                                     Rs.      10,000/-
Loss of earnings during the period of treatment                   Rs.      10,000/-
Compensation for pain and suffering                               Rs.      10,000/-
Total compensation awardable                                      Rs. 4,37,000/-
Less amount awarded by the Tribunal                               Rs. 2,85,000/-
Enhanced amount of compensation                                   Rs. 1,52,000/-

In view of the above, the appellant-claimant would be

entitled to get a further sum of Rs.1,52,000/-, which shall carry

interest @ 6% per annum from the date of filing claim petition.

Consequently, the appeal is partly allowed. The award dated

01.10.2002 is modified to the extent that the claimant would be

entitled to a compensation of Rs.4,37,000/- instead of

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Rs.2,85,000/- as awarded by the Tribunal. On the enhanced

amount of compensation, looking to the present rate of interest,

as per the present guidelines of RBI, the appellant-claimant is also

entitled to get interest @6% per annum. The enhanced

compensation amount shall be paid in the saving bank account of