Rajasthan High Court - Jodhpur

Saleem vs Lal Chand @ Nand Kishore And Ors. ... on 8 October, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
              S.B. Civil Misc. Appeal No. 1005/2015

Saleem S/o Ahmed, aged about 48 years, R/o Daman Ganga
Colony, Block Number G house No.10, Valsad (Gujrat)
                                                                  ----Appellant
                                   Versus
1. Lal Chand @ Nand Kishore S/o Bhagirath Prasad Sharma R/o
Khud, District Sikar (Driver of offending Vehicle)
2. Ratan Lal S/o Suva Lal, R/o 268, Bajaj Road, Opposite Jain
School, Sikar, District Sikar (Owner of offending vehicle)
3. The National Insurance Company Ltd. Through Divisional
Manager, Divisional Office, Delhi Gate, Udaipur (Insurer).
                                                                ----Respondent
                             Connected With
              S.B. Civil Misc. Appeal No. 963/2015
Sheikh Naseem Bano W/o Saleem, aged about 33 years, R/o
Daman Ganga Colony, Block Number G house No.10, Valsad
(Gujrat)
                                                                  ----Appellant
                                   Versus
1. Lal Chand @ Nand Kishore S/o Bhagirath Prasad Sharma R/o
Khud, District Sikar (Driver of offending Vehicle)
2. Ratan Lal S/o Suva Lal, R/o 268, Bajaj Road, Opposite Jain
School, Sikar, District Sikar (Owner of offending vehicle)
3. The National Insurance Company Ltd. Through Divisional
Manager, Divisional Office, Delhi Gate, Udaipur (Insurer).
                                                                ----Respondent


For Appellant(s)         :     Mr. AK Babel
For Respondent(s)        :     Mr. Sunil Vyas for the Insurance
                               Company



            HON'BLE DR. JUSTICE NUPUR BHATI

Order

08/10/2024

1. Both these appeals are being decided by this common order.

(2 of 10) [CMA-1005/2015]

2. By way of these instant misc. appeals filed under Section

173 of the Motor Vehicles Act, 1988 ('the Act of 1988'), the

appellants/claimants have sought enhancement of the

compensation and has sought modification of the judgment &

award dated 23.02.2015 passed by the learned Judge MACT,

Rajsamand in MACT Cases No.191/2012 and 193/2012,

respectively, whereby the learned Tribunal partly allowed the claim

of the claimants by awarding an amount to the tune of Rs.

1,07,000/- and Rs.9,10,000/-, respectively, @ 9% p.a. in their

favour, while fastening the liability upon the respondent no.

2/owner and the respondent-Insurance Company.

3. Succinctly stated facts of the case are that on 06.09.2011,

Saleem and his wife Sheikh Naseem Bano along with their son met

with an accident due to rash and negligent driving of the driver of

Bus bearing No.RJ-23-PA-2727 on account of which, Saleem and

his wife Sheikh Naseem Bano sustained grievous injuries.

Thereupon, they preferred claim petitions for compensation.

4. Subsequently, learned Tribunal issued the notices. Despite

being served the notice, none appeared for respondent No.1 and

therefore, ex-parte proceedings was initiated against him. The

respondent No.2 and respondent No.3-Insurance Company in its

reply denied all averments made in the claim petition.

5. In support of their claim petition, the appellants-claimants

produced 2 witnesses and exhibited documents to prove their

case. Oral as well as documentary evidence were also produced to

prove the case. No evidence was produced in defence. As per

pleadings, issues were framed by the learned Tribunal and after

hearing both the parties, the learned Tribunal passed the award in

(3 of 10) [CMA-1005/2015]

favour of the appellants/claimants and being dissatisfied from the

award, the appellants have preferred the instant misc. appeals.

S.B. Civil Misc. Appeal No. 1005/2015

6. Learned counsel for the appellant makes a limited

submission while disputing the quantum of compensation awarded

by the learned Tribunal towards the grievous injury suffered by the

appellant-claimant, including a fracture in his left clavicle bone and

the permanent disability suffered to the extent of 14%. He

submits that the learned Tribunal has disregarded the evidence

available on record in form of the Injury Report (Ex.11) and the

Physical Disability Certificate (Ex.12). He also submits that the

respondents have not rebutted the said certificate, in the absence

of which the learned Tribunal ought to have considered the

Physical Disability Certificate (Ex.12) while awarding the

compensation.

7. Learned counsel for the appellant-claimant also submits that

the learned Tribunal has also erred in not providing any

compensation towards the loss of future income inasmuch as the

injury suffered by the appellant-claimant is a fracture in his

clavicle bone, on account of which the appellant-claimant still

faces difficulty in the normal course of activities and that, he is not

able to move his hand properly and the movement of his shoulder

is also restricted.

8. Learned counsel for the appellant-claimant also submits that

the amount awarded by the learned Tribunal under the heads of

pain and suffering as well as loss of amenities is also on a lower

side and deserves to be enhanced. He also submits that the

learned Tribunal has awarded Rs. 3,000/- towards the

(4 of 10) [CMA-1005/2015]

transportation expenses, against Rs. 20,000/- as claimed by the

appellant-claimant. He further submits that the rate of interest

awarded by the learned Tribunal is also on the lower side and

thus, the same deserves to be enhanced.

9. Per contra, learned counsel for the respondents submits that

the learned Tribunal has rightly awarded the compensation looking

into the facts and circumstances of the case and thus, the appeal

filed by the appellant-claimant deserves to be dismissed.

10. Heard learned counsel for the parties.

11. This Court finds that the learned Tribunal has observed that

the appellant-claimant used to work as a Watchman under the

Daman Ganga Canal Project wherein his dearness allowance

increases twice in a year and also, he took a medical leave during

his treatment, on account of which he did not suffer any loss

towards his income. It is also seen that the learned Tribunal has

taken note of the fact that the appellant-claimant was not releived

from his work on account of the said injury and thus, in light of

the judgment passed by the Hon'ble Apex Court in the case of Raj

Kumar v. Ajay Kumar [Civil Appeal No. 8981 of 2010 decided on

18.10.2010], the learned Tribunal was right in not awarding

compensation towards the loss of future income, on account of the

injury suffered by the appellant-claimant. It is also seen that the

appellant-claimant has not produced any evidence with respect to

the requirement of treatment in future and the expenses to be

incurred thereto, and in the absence of such evidence, the learned

Tribunal has rightly not awarded compensation towards any

medical expenses that may be incurred by the appellant-claimant

in future, on account of the injury suffered by the appellant-

(5 of 10) [CMA-1005/2015]

claimant. The relevant part of the judgment passed by the Hon'ble

Apex Court in the case of Raj Kumar (supra) reads as under:

"13. We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."

Therefore, this Court finds that, the learned Tribunal has rightly

held that there is no actual loss of income incurred by the

appellant-claimant on account of the injury sustained inasmuch

as, learned Tribunal, while relying upon the evidence has

categorically observed that permanent disability suffered by the

appellant-claimant will not hamper his work and therefore, no

compensation has been provided towards loss of future income.

12. This Court also finds that the appellant-claimant has

produced Ex.16 and Ex.17 as medical bills towards his treatment,

which amounts to Rs. 32 and therefore, on account of the

(6 of 10) [CMA-1005/2015]

evidence produced, the learned Tribunal has rightly assessed the

quantum towards expenses incurred by the appellant-claimant for

his treatment, on account of the injury suffered by him. It is also

seen that the learned Tribunal has taken note of the fact that the

appellant-claimant has not produced any discharge ticket for the

period of his hospitalization on account of the injuries suffered by

him, and thus, the learned Tribunal has rightly not awarded any

amount towards the head of hospitalization, in the absence of any

evidence produced by the appellant-claimant.

13. It is also seen that the learned Tribunal, while considering

the evidence produced, has rightly awarded Rs. 3,000/- towards

transportation expenses, Rs. 2,000/- towards his special diet and

Rs. 1,500/- for the loss of estates, and thus, this Court deems it

fit not to grant indulgence in the same.

14. Furthermore, this Court also finds that the learned Tribunal

has observed that the appellant-claimant had to take a leave of 40

days from his work, on account of the injury suffered by him and

thus, while taking into consideration the salary certificate (Ex.14)

for the year 2011, after deducting the annual increement and

dearness allowance, the learned Tribunal has assessed the salary

of the appellant-claimant as Rs. 500/- per day. Thus, the learned

Tribunal has rightly ascertained the loss of income for a period of

40 days as Rs. 20,000/-.

15. This Court also finds that the learned Tribunal has taken into

account the fact that though the permanent disability suffered by

the appellant-claimant is not with respect to the whole body,

however it has been categorically observed that the appellant-

(7 of 10) [CMA-1005/2015]

claimant's movement of the shoulder had been restricted and it is

likely that he will be facing difficulties in future, on account of the

said injury and thus, the learned Tribunal has rightly awarded Rs.

70,000/- towards the pain and suffering caused to the appellant-

claimant on account of the said injury. This Court also finds that

the learned Tribunal has also considered the fact that the

appellant-claimant is bound to suffer difficulties while performing

daily work, and thus, in view of this Court, has rightly awarded Rs.

10,000- for the loss of amenities suffered by the appellant-

claimant.

16. Therefore, looking into the facts and circumstances of the

case, this Court concurs with the finding of the learned Tribunal,

whereby the learned Tribunal has rightly taken into account all the

factors along with the intent of the MV Act, which is a beneficial

legislation, while awarding a compensation to the tune of Rs.

1,07,000/- at the interest of 9% p.a. from the date of filing the

claim, and thus, this Court deems it fit not to grant indulgence in

the judgment and award passed by the learned Tribunal dated

23.02.2015.

17. Accordingly, in the light of discussion made hereinabove, the

appeal, S.B. Civil Misc. Appeal No. 1005/2015, preferred by the

appellant-claimant is dismissed. No costs.

S.B. Civil Misc. Appeal No. 963/2015

18. Learned counsel for the appellant/claimant submits that the

learned Tribunal has erred in awarding meager compensation and

therefore, the award deserves to be modified and the

compensation deserves to be enhanced. It is also submitted by

(8 of 10) [CMA-1005/2015]

the learned counsel for the appellant that the injuries sustained by

her in that accident is serious in nature as the claimant-Sheikh

Naseem Bano was engaged in doing stitching work and sustained

permanent disability to the extent of 80% which resulted into

100% loss of income.

19. Learned counsel for the appellant submits that the

claimants/appellants were not awarded under the head 'Future

Prospects' the appellant/claimant-Sheikh Naseem Bano was 30

years at the time of incident and she has become virtually

incapable of doing anything on account of the injuries cause to

her. He further submits that the learned Tribunal seriously erred in

awarding meager compensation under the pain and suffering, thus

under this head, amount should be enhanced. He also submits

that the award passed by the learned Tribunal towards loss of

income suffered during the medical treatment, is slightly on a

lower side and thus, the same needs to be enhanced.

20. Per contra, learned counsel for the respondent-Insurance

Company vehemently opposes the submissions advanced by the

learned counsel for the claimants/appellants and submits that the

learned Tribunal has rightly passed the award and the same does

not call for any interference. He further submits that inasmuch as

this is a matter wherein the claimants have suffered injuries, the

future prospects, towards loss of income has rightly not been

considered by the learned Tribunal while awarding compensation.

21. I have given my thoughtful consideration to the submissions

advanced at Bar and have gone through the material available on

record.

(9 of 10) [CMA-1005/2015]

22. This Court finds that the learned Tribunal has observed that

the Disability Certificate (Ex.20) clearly stipulates that the

appellant-claimant has suffered the permanent disability to the

extent of 80%, however, has erred, while calculating the loss of

income on account of the permanent disability suffered by the

appellant-claimant, the learned Tribunal has considered the

permanent disability to the extent of 70%, and thus, this Court

deems it fit to enhance the compensation awarded under the head

of loss of income while taking the permanent disability suffered by

the appellant-claimant to be 80%. It is also important to take note

of the fact that the appellant-claimant's left arm has been

amputed from the shoulder on account of which she would be

facing hardship in day to day activities too, apart from earning her

livelihood.

23. Also, looking to the factual matrix of the case and applying

the ratio of the judgment rendered by Hon'ble the Apex Court in

the case of National Insurance Company Limited Vs. Pranay

Sethi & Ors. : 2017 16 SCC 680, Sarla Verma v. Delhi

Transport Corporation : AIR 2009 SC 3104 along with Pappu

Deo Yadav Vs. Naresh Kumar : AIR 2020 SC4424, the instant

misc. appeal are partly allowed and the award passed by the

learned MACT, Pali in MACT Case No. 193/2012 stands modified to

the extent of awarding Future Prospect for loss of income, and

calculating the loss of income while considering permanent

disability to the extent of 80%. After this Court came to the

conclusion that the award passed by the learned Tribunal deserves

to be enhanced and modified, both the counsel were directed to

(10 of 10) [CMA-1005/2015]

submit the calculation and the compensation is enhanced in the

following manner:-

Monthly Income assessed by the Tribunal Rs.4,350/-

Applying the multiplier on the said income and taking Rs. 7,09,920/- into consideration 80% permanent disability suffered by the claimant (4,350X17X80%) Applying future prospects @ 40% i.e. 7,09,920 + 40% Rs. 9,93,888/- of 7,09,920/- [A] (Add) Loss of Income for the period of Hospitalization Rs. 26,100/-

                                   (as awarded by the Tribunal) [B]
                                   (Add) Medical Bills [C]                                                   Rs. 2,516/-
                                   (Add) Traveling expenses [D]                                             Rs.10,000/-
                                   (Add) Special Diet [E]                                                    Rs. 3,000/-
                                   (Add) Loss of Estates [F]                                                 Rs. 2,000/-
                                   (Add) Compensation towards Hospitalization for 20                        Rs.15,000/-
                                   days (as awarded by the Tribunal) [G]
                                   (Add) Attendant Charges for 20 days (as awarded by                      Rs. 30,000/-
                                   the Tribunal) [H]
                                   Pain and suffering, Loss of Amenities, Loss of                         Rs.2,00,000/-