Partly allowed

Shamshad Khan v. Ashraf and Others

Allahabad HC8 Apr 2019FAFO/1772/2012

Case brief

AI extract

What is this about?

This appeal modified the Motor Accident Claim Tribunal's award. The Hon'ble Court enhanced the claimant's stated monthly income from Rs.1,500 to Rs.4,200, increased medical and pain-and-suffering compensation, and added transportation charges, resulting in a total award of Rs.5,75,000 with 9% interest.

What did the court decide?

Compensation fixed at Rs.5,75,000 with 9% simple interest per annum; insurer to deposit amount within three months; 50% immediately to appellant, 50% in fixed deposit for 10 years.

Shamshad Khan Vs Ashraf and Others — Medical Negligence | Allahabad HC (2019)

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Court No. - 25

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Case :- FIRST APPEAL FROM ORDER No. - 1772 of 2012

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Appellant :- Shamshad Khan Respondent :- Ashraf And Others Counsel for Appellant :- Ram Singh Counsel for Respondent :- N.K. Chatterjee,P.K.Rao

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Hon'ble Harsh Kumar,J.

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Heard Shri Ram Singh, learned counsel for the appellant, Shri P.K. Rao, learned counsel for respondent Nos.1 & 2 and Shri Mrityunjay Dutt Tiwari, Advocate holding brief of Shri N.K. Chatterjee, learned counsel for respondent No.3, Oriental Insurance Company.

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Appeal has been filed against award dated 1.2.2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.2,. Banda in Motor Accident Claim Petition No.86/70/2009.

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Brief facts of the appeal are on 31.3.2009 Appellant filed claim petition stating that on 13.4.2008 at about 1.30 a.m. he, 25 years old cleaner of truck No.MP 09 KC-1810 due to accident between his truck and a roadways bus at Sahibabad, Red Light Chowk, P.S. Link Road, Ghaziabad, he fell down from the truck and rear wheel of truck passed over his thighs resulting in grievous injuries in his two legs and upon his treatment in Guru Teg Bahadur Hospital, Delhi his right leg was amputated above knee and in left leg after surgery iron plate and rod were placed and he was discharged on 18.6.2008 and upon follow up visit on 23.7.2008 was advised some medicines, which were continuing till filing of petition. Claimant-appellant claimed a sum of Rs.12,40,000/- as compensation with 9% interest.

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After recording evidence of parties learned Tribunal while deciding various issues held that sustaining of injuries by appellant in the accident in question are proved and at the time of accident truck in question was insured with Oriental Insurance Company, which was driven by duly licensed driver and the accident did take place due to rashness and negligence on the part of truck driver and considering the evidence on record, treating monthly income of appellant to be Rs.18,000/- per month in view of the contention of truck owner that he was paid only Rs.50/- per day awarded a sum of Rs.1,83,600/- towards loss of income, Rs.11,000/- towards expenses of medicines against the prescription, bills and receipts for Rs.10,835/- and Rs.2,000/- for pain and sufferings.

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Feeling aggrieved claimant has preferred this appeal for enhancement of compensation.

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Issues relating to occurrence of accident in question, negligence of driver of truck, insurance of respondent No.3 and holding of valid driving licence by respondent No.2 are not in dispute and only quantum of compensation is to be

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considered.

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In view of the arguments advanced by learned counsel for the appellant and perusal of lower court record, I find that appellant has stated that he was cleaner over the truck in question at a salary of Rs.3,000/- per month and has repeated his contention in his statement on oath before the Tribunal as PW-1. Respondent Nos.1 & 2, owner and driver have not disputed that claimant was working as cleaner over the truck in question, but have stated in their written statement that he was being paid only Rs.50/- per day as diet money. Neither respondent No.1 nor respondent No.2 have been produced before the Tribunal to state on oath that claimant was not being paid Rs.3,000/- per month as salary and was being paid only Rs.50/- per day in absence of which, uncontroverted statement of claimant-appellant has to be accepted. The learned Tribunal has acted wrongly in disbelieving that he was getting Rs.3,000/- per month as salary and assessing his monthly income @ Rs.50/- per day or Rs.1,500/- per month.

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Disability certificate has been issued to the appellant to the extent of 60% disability which has been upheld by Tribunal in view of provisions of Workmen Compensation Act as well as in view of the fact that right leg of appellant was amputated above knee. It is also noteworthy that learned Tribunal has not taken into consideration of future prospects of appellant, who was 30 years old at the time of accident as per medical papers filed by him on record and undisputedly in view of his age in such matters, 40% enhancement in view of future prospects ought to have been considered.

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As far as medical expenses are concerned against the bills, cash memos, prescriptions etc. for Rs.10,835/-, Tribunal has awarded a sum of Rs.11,000/- in view of fact that treatment of appellant was conducted at Govt. Hospital. In view of fact that appellant remained hospitalized in Guru Teg Bahadur Hospital, Delhi for a period from 13.4.2008 to 18.6.2008, over two months and his further treatment continued for long time even at home subject to amputation of right leg and insertion of rod and plate in left leg, I find that the amount awarded towards medical expenses is also inadequate and a sum of Rs.25,000/- ought to be awarded in such a case, considering.

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It is also noteworthy that the appellant is resident of District Banda and he met with accident in District Ghaziabad at the border of Delhi and was treated at Guru Teg Bahadur Hospital, Delhi. In view of above facts, I find that he is also entitled for transportation charges and a sum of Rs.15,000/- would be just and adequate amount of compensation towards transportation charges.

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Learned Tribunal has awarded a sum of Rs.2,000/- towards pain and sufferings, which is too low in view of the fact that right leg of appellant was amputated above knee and in left leg iron rod and plate were inserted upon surgery. So considering the surgery undergone by appellant with transfusion of blood as well as amputation of right leg, a sum of Rs.25,000/- would be just and adequate amount of compensation towards pain and sufferings.

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In view of above, considering monthly income of appellant at Rs.3,000/- per

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month with 40% enhancement, his monthly income comes to Rs.4,200/- per month and annual income comes to Rs.49,400/- rounded to Rs.50,000/- per annum and in view of 60% disability, his annual loss of income comes to Rs.30,000/-. Considering his age of 30 years multiplier of 17 used by trial court is correct and by applying same multiplier appellant is entitled to get Rs.30,000/x 17=Rs.5,10,000/- toward loss of income due to disability, Rs.25,000/- towards medical expenses, Rs.15,000/- towards transportation charges and Rs.25,000/towards pain and sufferings, total Rs.5,75,000/- as compensation with 9% simple interest per annum.

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Appeal is partly allowed and the award passed by Motor Accident Claim Tribunal stands modified accordingly.

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Amount of compensation will be deposited by respondent No.3, Insurer with the Tribunal in favour of claimant-appellant within three months after deducting the amount, if any, deposited earlier. Upon deposit of total amount with interest 50% thereof will be paid to appellant and rest 50% will be deposited in his name in fixed deposit scheme in some Nationalized Bank for a period of 10 years.

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Let lower court record of claim petition be sent back to M.A.C.T./District Judge, Banda forthwith, along with a copy of this judgment, for necessary action, if any.

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Order Date :- 8.4.2019 T. Sinha

Shamshad Khan v. Ashraf and Others

Case brief

What is this about?

What did the court decide?

Shamshad Khan v. Ashraf and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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