Rajasthan High Court - Jodhpur

Dr. Rajesh Joshi vs Late Jaysingh on 30 November, 2021

Bench: Rameshwar Vyas

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 139/2021

National Insurance Co. Ltd., Regional Manager, National Insurance Co. Ltd. Pal Road, Jodhpur

----Appellant Versus

1. Rajesh Joshi S/o Moti Lal Joshi, Badodiya, At Present Ambika Colony, Bansara Tehsil And Dis. Banswara

2. Lrs Of Jai Singh S/o Gabaji,, Ward No. 8, Ratitalai, Banswara Tehsil And Dis. Banswara

3. Smt Sanju W/o Jai Singh, Ward No. 8, Ratitalai, Banswara Tehsil And Dis. Banswara

4. Suraj S/o Gulab, Banjara Colony, Ratitalai, Banswara Tehsil And Dis. Banswara

----Respondents Connected With S.B. Civil Misc. Appeal No. 7/2021 Dr. Rajesh Joshi S/o Motilal Joshi, Aged About 48 Years, R/o Barodiya, At Present Ambika Colony, Banswara, Tehsil And Dist. Banswara.

----Appellant Versus

1. Late Jaysingh S/o Shri Gabbaji, By Cast Banjara Legal Repreventative Smt. Sanju W/o Late Jaysingh, By Cast Banjara, R/o Ward No 8 Ratitali Basnwara, Tehsil And Dist. Basnwara. (Owner).

2. The National Insurance Company Ltd., Branch Commercial Area Dhod Road Banswara. (Insurer).

3. Suraj S/o Shri Gulab,, By Cast Bangara, R/o Banjara Colony Ratitali Basnwara, Tehsil And Dist. Banswara.

                                                               ----Respondents


For Appellant             :     Mr. Anil Kaushik
Insurance Company
For Respondent            :     Mr. Parikshit Nayak
Claimant





                                         (2 of 6)               [CMA-139/2021]


          HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                   Order

30 November, 2021

Since both the appeals arise out of the same order,

hence, both the appeals are being decided by this common order.

National Insurance Company has filed appeal under

Section 173 of Motor Vehicle Act, 1988 (herein afterwards referred

to as 'MV Act') against the award dated 28.10.2020 passed by

Motor Accident Claims Tribunal, Banswara (herein afterwards

referred to as 'the Tribunal') in Claim Case No. 454/2018 [Dr.

Rajesh Joshi vs. Late Jai Singh & Ors], whereby respondent

claimant was awarded Rs.5,97,692/- as compensation. Whereas,

claimant Dr. Rajesh Joshi has filed the appeal for enhancement of

the compensation awarded by the Tribunal.

Brief facts of the case are as under:-

On 14.1.2018, in the evening at 5:40 PM, claimant was

was going on a motorcycle from Banswara to Barodiya. On the

way, Suraj respondent no.3 herein, while driving his motorcycle RJ

03-SS-8626 in a rash and negligent manner, hit the motorcycle of

the claimant, on account of which, claimant sustained injuries.

First Information Report No. 24/2018 was lodged by the nephew

of the claimant. Police after investigation, filed charge-sheet

against respondent no.3 Suraj.

The claimant filed a claim petition under Section 166 of

M.V. Act. claiming compensation against the driver, owner and the

insurer of the motorcycle of the RJ 03-SS-8626. The claim petition

was contested. The claimant appeared as witness in support of his

case and total 52 documents were exhibited to substantiate his

claim. No evidence on behalf of the respondent was produced.

(3 of 6) [CMA-139/2021]

Learned Tribunal passed a claim of Rs.5,97,692/- with interest @

6% per annum.

Terming quantum of compensation awarded by the

Tribunal as excessive, the Insurance Company has filed the appeal

with the averments that claimant was in the Government Job,

working as Associate Professor in Govind Singh University,

Banswara. It is alleged that on account the accident, no loss was

incurred in the income of the claimant. Learned Tribunal erred in

awarding Rs.5 Lakh in the head of loss of income. Learned

Tribunal also erred in awarding lumpsum amount in the head of

loss of earning, which is not in consonance with the law laid down

by the Hon'ble Apex Court. Claimant sustained fracture in his leg

for which disability certificate was produced but the doctor issuing

the said disability certificate was not produced to prove the same.

Learned Tribunal erred in relying upon the disability certificate and

calculating loss of income on the basis of percentage of disability

@ 15%. It is averred that though the learned Tribunal in its

judgment referred the judgment of the Hon'ble Apex Court passed

in the case of Raj Kumar vs. Ajay Kumar : 2011 TAC 1, however,

that judgment was not considered in its true sense.

Learned counsel for the claimant has assailed the

impugned award submitting that the learned Tribunal has awarded

lesser compensation to the claimant, hence, he prayed to enhance

the compensation.

Heard the learned counsel for the parties and perused

the material available on record.

Learned counsel for the Insurance Company has

challenged the impugned award on the point of quantum of

compensation awarded by the learned Tribunal. Learned counsel

(4 of 6) [CMA-139/2021]

for the Insurance Company has relied upon the judgment of the

Hon'ble Apex Court in the matter of Raj Kumar (supra) and prayed

to reduce the quantum of compensation awarded by the learned

Tibunal, appropriately.

On the other hand, learned counsel for the claimant has

submitted that the claimant remained hospitalized from 14.1.2018

to 20.20.1.2018 and from 24.1.2018 to 29.1.2018 for 11 to 12

days. The claimant suffered fracture in his leg on account of which

his future prospectus have been adversely affected. Learned

counsel for the claimant has submitted that the learned Tribunal

has awarded meagre sum of amount and hence, appeal filed by

the claimant be allowed and the amount of compensation be

enhanced.

In the present case, it is not in dispute that the

claimant is Government employee posted as Associate Professor in

the Government College. On account of injury sustained in the

accident, no loss of earning has been caused to the claimant. He is

continuing in service. In the case of Raj Kumar (supra) the Hon'ble

Apex Court held that 'what requires to be assessed by the Tribunal

is the effect of permanent disability on the earning capacity of the

injured; and after assessing the loss of earning capacity in terms

of percentage of income, it has to be quantified in terms of money

to arrive at future loss of earning'. In the present case, since no

loss of income has been caused to the claimant on account of his

injury, learned Tribunal grossly erred in awarding compensation in

the head of loss of income. He is not entitled for loss of income,

however, instead he may be awarded sufficient amount for pain

and suffering.

(5 of 6) [CMA-139/2021]

From the perusal of the impugned judgment, it is also

evident that no basis for calculating the loss of income of Rs. 5

Lakhs has been discussed. In the considered opinion of this court,

awarding lump-sum amount in such a manner is not permissible in

view of the well settled principles of law as laid down by the

Hon'ble Apex Court in various judgments. Disability certificate

Exhibit-P/50 shows that 20% of the disability was assessed on

account of fracture in the leg only. No disability has been shown to

be caused to the claimant on account of other injuries suffered by

the claimant on other parts of the body as stated by the claimant

in his statement on oath before the Tribunal. Claimant in his

statement also did not disclose the grounds on the basis of which,

it can be said that claimant suffered loss of future prospectus in

his life.

After perusal of the statement claim, it is revealed that

he suffered pain, suffering, inconvenience and pecuniary loss on

account of injury sustained by him in the accident, which can be

calculated in the following terms:-

Expenses incurred on Medicine Rs.58,000/- Expenses incurred on transportation Rs.10,000/- Expenses incurred on nursing and Rs.10,000/-

      food
      Misc. Expenses                                            Rs.10,000/-
      Loss of earning during period of                           Rs.70,000/-
      treatment
      Compensation in the head of pain                          Rs.100,000/-
      and suffering
      Total compensation awardable                          Rs.2,58,000/-
      Amount awarded by the Tribunal                        Rs.5,97,692/-

Consequently, S.B. Cr. Misc. Appeal No. 7/2021 filed by

the claimant is dismissed. Whereas, S.B. Cr. Misc. Appeal No.

139/2021 filed by the Insurance Company is allowed. The award

(6 of 6) [CMA-139/2021]

dated 28.10.2020 is modified to the extent that claimants would

be entitled to a compensation of Rs. 2,58,000/- instead of Rs.

5,97,692/- as awarded by the Tribunal. On the modifed amount of

compensation, the claimants would be entitled to interest @ 6%

per annum from the date of claim petition till the date of actual

payment. The insurance company is entitled to recover excess

amount paid by it from the claimant.