Banwari Lal Son Of Damodar Lal vs Bhag Chand Prajapat Son Of ...
2022 Latest Caselaw 1979 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           S.B. Civil Miscellaneous Appeal No. 2965/2019

Banwari Lal Son Of Damodar Lal, Aged About 46 Years, Resident
of In Front Of Shivcharan Singh Petrolpump, Karauli, Tehsil And
District Karauli (Rajasthan)
                                                                      ----Appellant
                                     Versus
1.     Bhag Chand Prajapat Son Of Radhakishan Kumhar, Aged
       About 28 Years, Resident Of Patudi, Police Station, Dudu,
       Tehsil Dudu, District Jaipur (Rajasthan) (Owner And
       Driver Of The Vehicle)
2.     United India Insurance Company Limited Through Its
       Zonal Manager, Zonal Office, Teachers Colony, Baba
       Market,     Main       Market,      Ajmer        Road,         DCM,   Jaipur
       (Rajasthan) (Insurance Company Of Vehicle)
                                                                 ----Respondents

For Appellant(s)          :    Mr. Dinesh Kumar Garg
For Respondent(s)         :    Mr. Chanderdeep Singh Jodha
                               Mr. Ravindra Kumar Paliwal


           HON'BLE MR. JUSTICE BIRENDRA KUMAR
                                Judgment

Reserved on                            :                        02/03/2022
Date of Pronouncement                  :                        05/03/2022

1.   The   appellant    is     not    satisfied      with       the    quantum   of

compensation awarded by the learned Motor Accident Claims

Tribunal, Karauli in Claim Case No.15/2018 vide award dated

29.03.2019. The Tribunal has awarded Rs.8,78,109/- along with

interest of 8% from the date of application against claim of

Rs.47,09,000/-.

2. The appellant was driving his Tempo on 23.08.2017 at about

7 PM near Gulab Bagh, Karauli. A Tanker bearing registration

No.RJ-47/GA-0612 came rashly and negligently and hit the Tempo

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as a result whereof the appellant got serious injuries and during

course of treatment, his right leg was amputated. One more

person in the Tempo namely Chiranji Lal died at the spot due to

the accident.

3. The accident and the insurance of the offending Tanker with

respondent No.2 are established by evidences on record and the

same are not challenged in this appeal. The appellant was a

Driver, which is established by driving license of the appellant at

Ex.131. The certificate of registration of the Tempo in the name of

the appellant is Ex.133 and the certificate of permanent

disablement i.e. amputation of one of the leg is at Ex.132. The

appellant claimed that he was contributing to the family

Rs.12,000/- per month by earning from the said Tempo and after

accident and amputation of leg is completely unable to drive the

vehicle in future. The appellant further claimed that he was aged

about 45 years at the time of accident. The Tribunal accepted the

claim of 70% disablement of the appellant and decided following

compensation.

4. In absence of proof of income of the appellant Rs.5,382/- per

month was taken, which was minimum wages of an unskilled

labourer. The Tribunal multiplied Rs.5,382/- with 12 months and

again with multiplier of 14 considering the age of the appellant as

45 years. Besides the aforesaid, the Tribunal awarded

Rs.2,00,000/- for mental agony and pain and other small amounts

relating to medical expenses for minor injuries etc. detailed in the

impugned order and in total Rs.8,78,109/-.

5. Mr. Dinesh Kumar Garg, learned counsel for the appellant

contends that in Jagdish Vs. Mohan & Ors. reported in (2018) 4

SCC 571, a three Judges Bench of the Hon'ble Supreme Court

(3 of 6) [CMA-2965/2019]

accepted the claim of the claimant, who was a Carpenter and had

claimed income of Rs.6,000/- per month. The Court held that the

claim of income of the Carpenter cannot be discarded as being

unreasonable or contrary to a realistic assessment of situation on

the date of accident. In Jagdish's case (supra), accident had

taken place on 24.11.2011. In the case on hand, the accident took

place on 23.08.2017. In between the said period, the value of

money drastically came down. Moreover, claim of a Driver having

valid driving license of income of Rs.400/- per day by plying his

own vehicle cannot be termed as exorbitant and unreasonable.

Further, no documentary evidence of income of an Auto Driver

from his own Auto, is normally possible unless the income is

within the taxable range. Oral evidence of the claimant regarding

his contribution to the family per month of Rs.12,000/- is already

on the record. Therefore, there is no hesitation in accepting the

claim of income of the appellant as Rs.12,000/- per month,

therefore, yearly loss of income was Rs.1,44,000/-.

6. Learned counsel for the Insurance Company contends that

the learned Tribunal has adopted a just multiplicand in absence of

any documentary evidence of the income of appellant. Reliance

has been placed on the judgment of the Hon'ble Supreme Court in

Kirti & Anr. Etc. v. Oriental Insurance Company Ltd. disposed

of on 05.01.2021.

The Hon'ble Supreme Court has not stated in Kirti's case

(supra) in unequivocal terms that in each and every case, in

absence of any documentary evidence of income, the daily

wagers' income should be taken as multiplicand. Moreover, three

Judges Bench judgment of the Hon'ble Supreme Court in

Jagdish's case (supra), was not placed before the Hon'ble Bench

(4 of 6) [CMA-2965/2019]

deciding Kirti's case (supra). In my view, there was no conflict

between the two judgments.

7. Since, the appellant suffered amputation of one of the leg,

he was unable to perform the vocation of Driver in future.

Moreover, he was unable to earn other livelihood easily, therefore,

it was a case of 100% disablement.

8. In my view, 75% of the aforesaid income of the appellant

would have been taken as loss of future income. Rs.48,000/-,

which is 75% of Rs.1,44,000/- yearly income, requires to be

multiplied by multiplier of 11 as date of birth of the appellant in

the driving license has been mentioned as 03.02.1967. Therefore,

on the date of accident, he was above 50 years of age and for are

between 50 to 55 years multiplier of 11 is applicable. Hence, I

accept the submission of learned counsel for the Insurance

Company that the Tribunal has wrongly applied the multiplier of

14.

9. In para 8 of Jagdish Vs. Mohan & Ors. reported in (2018)

4 SCC 571, the Hon'ble Supreme Court has observed as follows:

"8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:

(i) Pain, suffering and trauma resulting from the accident;

(ii) Loss of income including future income;

(iii) The inability of the victim to lead a normal life together with its amenities;

(iv) Medical expenses including those that the victim may be required to undertake in future; and

(v) Loss of expectation of life."

10. In Raj Kumar vs. Ajay Kumar and anr. reported in (2011)

1 SCC 343, the Hon'ble Supreme Court said that when the

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compensation is awarded by treating loss of future earning

capacity to be hundred per cent or anything more than 50 per

cent, need to award compensation separately under loss of

amenities or loss of expectation of life may disappear. Only a

token/nominal amount has to be awarded.

The learned Tribunal has awarded only Rs.11,000/- for

twenty days treatment undergone by the appellant as indoor

patient and Rs.23,186/- for medical expenses based on vouchers

produced by the appellant. In my view, the aforesaid amount is

not just compensation considering the nature of disablement

suffered by the appellant and nature of treatment meeted to him

for twenty days. The approach should be humanitarian and not

pedantic. In my view, Rs.1,00,000/- is payable under this head.

The amount is just and reasonable and no documentary

evidence of expenses is needed when it is established that while

undergoing treatment of accident, the appellant lost his one leg to

save his future life. Considering the nature of disablement, the

appellant would need assistance of some others and other

expenses to follow his daily pursuits and under this head

Rs.2,00,000/- is payable.

Thus, 'just compensation' would be as follows :-

S.No.                                                                  Amount
 1.     Loss of income                                      Rs.12,000x12=Rs.1,44,000/-
 2.     Loss of future income                             Rs.9,000x11x12=Rs.11,88,000/-
 3.     Pains suffering and trauma resulting from                     Rs.10,000/-
        the accident
 4.     Loss of expectation of life                                   Rs.10,000/-
 5.     Medical expenses including those that the                     Rs.3,00,000/-
        victim may be required to undertake in
        future
 6.     The inability of the victim to lead a normal                  Rs.1,00,000/-
        life together with its amenities
                                                               Total = Rs.17,52,000/-




                                                                            (6 of 6)                [CMA-2965/2019]

11. This Court is not inclined to interfere with the interest

awarded by the Tribunal. The aforesaid amount shall be payable

by the Insurance Company after deducting already paid amount

within one month, falling which, 12% would be payable till the

date of recovery.

12. The appeal stands allowed to the aforesaid extent.

(BIRENDRA KUMAR),J

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