Uttarakhand High Court
Through: Shri Tapan Singh vs State Of Uttarakhand on 11 October, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Appeal From Order No. 64 of 2016
Suneel Kumar Sharma. ................Appellant.
Through: Shri Tapan Singh, learned counsel
for the appellant.
-Versus-
State of Uttarakhand
and another. .........Respondents.
Through: Shri T.A. Khan, Sr. Advocate
assisted by Ms. Sadaf, learned counsel for the
respondents.
Date of hearing : 01.09.2022
Date of Judgment :11.10.2022
Shri Sanjaya Kumar Mishra, J.
1. This appeal has been filed by claimant appellant - Suneel
Kumar Sharma, an Advocate, for enhancement of compensation
awarded by the Motor Accident Claims Tribunal in MACP No.
176 of 2013 vide judgment and order dated 18.11.2015. He has
been granted a compensation of Rs. 32,46,120/- along with
interest @ 7% per annum from 08.08.2013.
2. The appellant's case, in short, is that on 24.04.2012, at about
08.00 p.m., after completing his work in the chamber, attached to
the Court at Dehradun, he was proceedings to his house on his
motor cycle bearing registration no. UA 07 AK 6613. As he was
proceedings on Haridwar road, near Kohli Nursing Home at
about 08.15 p.m. a vehicle (Maruti Car) bearing registration no.
UK 07 AS 5381 being driven in rash and negligent manner,
dashed on the front side of the motor cycle. As a result of which,
he sustained severe injuries on his person and was shifted to
Mahant Indresh Hospital and later to Max Hospital. Operation
was carried out on his spinal cord but he sustained severe injuries
leading to his complete paralysis and dependence on others. In
the operation, he spent about Rs. 5,00,000/- and thereafter, he is
continuously paying extra money for his treatment. Appellant
submits that he is dependent upon others to perform his daily
routine works.
3. Respondent no. 1 - the owner of the vehicle (Maruti Car),
has stated that he was driving the car with utmost care and
accident occurred because of appellant's rash and negligent act.
He has further submitted that the vehicle was duly insured with
respondent no. 2 and that he had a valid driving license.
Respondent no. 2 is New India Insurance Company (hereinafter
referred to as "Insurance Company" for brevity). It took a plea
that owner was not having a valid driving license and that the
claimant-appellant was driving his motorcycle in a rash and
negligent manner, due to which accident occurred, therefore, the
Insurance Company is not liable to pay any compensation.
4. However, it is noted, after careful examination of the
records that the Insurance Company has not taken a specific that
the claimant was not having any valid driving license at the time
of accident. In fact, additional evidence has been produced in this
case, which is an original driving license of the claimant -
appellant bearing no. UA - 0720010054051, which shows that the
appellant Sunil Kumar Sharma was having a valid driving license
on the date of occurrence.
5. The Motor Accident Claims Tribunal has held that the
accident took place due to rash and negligent act of respondent
no. 1 but while deciding the issue no. 2, it held that the appellant
claimant is guilty of contributory negligence, therefore, he is
entitled for 60% of the total compensation amount and that for his
own negligence, 40% of the amount should be reduced from the
total compensation. The Tribunal has considered that annual
income of the appellant as Rs. 2,94,000/- as per income tax return.
It took the multiplier of 14, as age of the appellant was 42 years at
the time of incident. It calculated the total amount of
compensation as Rs. 2,94,000 X 14 = 41,16,000/-. The Tribunal has
reduced the income of the appellant - claimant further by 5%
towards income tax, now, the compensation comes to Rs.
39,10,200/-. The Tribunal has further reduced the compensation
by 40% on account of contributory negligence and held that total
loss of income comes to Rs. 23,46,120/-.
6. As noted earlier that the appellant has filed his original
driving license by way of affidavit issued in his favour, which is
accepted as additional evidence by exercising powers under
Order 41 Rule 27 of the Code of Civil Procedure, 1908. Its perusal
shows that it is valid on the date of accident. Therefore, Tribunal
went wrong in holding that the appellant is guilty of contributory
negligence in the process, it should not have reduced the total
loss of income to 40%. There is no specific plea either by
respondent no. 1 or by respondent no. 2 that claimant had no
driving license, so no specific issue was framed to the effect that
claimant was not having a valid driving license on the date of
occurrence. In that view of the matter, it was wholly unjustified
on the part of the Tribunal to hold that he was not having valid
driving license at the time of accident.
7. Be that as it may, this Court comes to conclusion that
appellant was having valid driving license, which was issued in
his favour by the RTO, Dehradun and it was valid from
02.02.2001 to 06.02.2019. Thus, this Court is of the opinion that
reduction of the amount of loss of income is wholly unjustified. It
is also seen that the claimant was a practicing Advocate and that
he suffered complete disability because of the accident. He was
paying income tax, showing his income to be Rs. 2,94,000/- per
annum. Thus, as per the ratio decided by the Hon'ble Supreme
Court in the case National Insurance Company Vs. Pranay Sethi
and others (2017) 16 SCC 680, the claimant appellant is entitled to
get additional amount of 50% towards future prospects. It is well
known that an Advocate, who is earning about Rs. 3,00,000/- per
annum and paying income tax for that amount, at the age of 42,
has statable probability of earning much more, as he gathers
experience. Hence, this Court, keeping in view the aforesaid
consideration, is of the opinion that he should be given an
additional amount of 50% on the total amount of loss of income,
as calculated. Thus, keeping in view the aforesaid consideration,
this Court is of the opinion that annual income of the appellant
claimant should be taken as Rs. 2,94,000/-, which is rounded up
to Rs. 3,00,000/- and by applying the multiple of 14, the amount
comes to Rs. 42,00,000/- plus 50% towards future prospects, of an
Advocate paying income tax, it comes to Rs. 21,00,000/-.
Therefore, total amount of loss of income is re-calculated as Rs.
63,00,000/- (Rs. 42,00,000/- + Rs. 21,00,000/-); expenses incurred
for treatment Rs. 5,00,000/-; Rs. 10,00,000/- towards future
expenses on medical treatment; Rs. 1,00,000/- towards mental
agony and physical pain; loss of consortium Rs. 1,00,000/-. Thus,
total compensation comes to Rs. 80,00,000/-. The appellant has
already granted a sum of Rs. 32,46,120/-. Thus, appeal is allowed.
Compensation awarded in favour of the appellant is enhanced
from Rs. 32,46,120/- to Rs. 80,00,000/-. The appellant is also
entitled to 7% annual interest on the differential amount i.e. Rs.
80,00,000 - Rs. 32,46,120 = Rs. 47,53,880/- from the date of filing
of the application i.e. 08.08.2013. Differential amount be paid by
the respondent no. 2 to the appellant within 45 days from the
date of production of certified copy of this judgment. No costs.
(Sanjaya Kumar Mishra, J.)
(Grant urgent certified copy of this judgment, as per Rules)
SKS
