Partly allowed

Rakesh Kumar Singhal v. New India Insurance Co. Ltd. and Another

Allahabad HC23 Apr 2019FAFO/2878/2013

Case brief

AI extract

What is this about?

In a first appeal against a Motor Accident Claim Tribunal award, the judge recalculated compensation for income loss and expenses based on income tax returns proving lower income than claimed. The court increased pain and suffering and future medical expenses, enhanced the interest rate to 7% per annum, and ordered the insurer to deposit funds including a fixed deposit component.

What did the court decide?

The impugned award was modified to award total compensation of Rs. 3,92,000, including enhanced interest at 7% per annum and a sum in a fixed deposit scheme.

Rakesh Kumar Singhal Vs New India Insurance Co. Ltd… — Motor Accident Claims | Allahabad HC (2019)

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Court No. - 40

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Case :- FIRST APPEAL FROM ORDER No. - 2878 of 2013

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Appellant :- Rakesh Kumar Singhal Respondent :- New India Insurance Co. Ltd. And Another Counsel for Appellant :- Ajay Dubey,Kamini Pandey Counsel for Respondent :- Hitesh Pachori,Krishna Agarawal

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Hon'ble Harsh Kumar,J.

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Heard Smt. Kamini Pandey, learned counsel for claimantappellant, Shri Krishna Agrawal, learned counsel for respondent No.1, New India Insurance Company Ltd. and Shri S.N. Mishra, Advocate holding brief of Shri Hitesh Pachori, learned counsel for respondent No.2.

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Present FAFO has been filed by claimant against the impugned award and decree dated 5.8.2013 passed by Motor Vehicle Claim Tribunal, Agra, hereinafter referred to as "Tribunal", in Motor Accident Claim Petition No.662 of 2009.

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Upon hearing parties counsel and perusal of lower court record I find that M.A.C.P. No.662/2009 was filed by Rakesh Kumar Singhal on 6.10.2009 stating that he is 49 years old and working as insurance agent of Reliance General Insurance Company, ICICI Lombard General Insurance Company and Tata AIG Insurance Company and was earning a sum of Rs.35,000/- per month and on 5.6.2009 at about 4.30 p.m. when he was waiting for a passenger vehicle, offending vehicle in question Tata 407 No. UP 83 K 9399 being driven by its driver rashly and negligently hit him resulting in grievous injuries resulting in compound fracture in left leg due to which he was admitted to G.G. Nursing Home, Agra and was operated and iron plate and iron rod were implanted in his left leg.

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Upon evidence of parties Tribunal decided issue No.1 in favour of claimant holding that the accident was caused due to rash and negligent driving on the part of driver of offending vehicle, on issue No.2 it came to the conclusion that the driver of offending vehicle, Ram Naresh was not holding valid driving licence. On issue No.3 Tribunal came to the conclusion that at the time of accident offending vehicle was duly insured with respondent No.1, New India Assurance Company Ltd. and on issue No.4 upon analyzing the evidence on record it found the claimant-appellant entitled to sum of Rs.1,50,000/- as compensation towards medical expenses and Rs.5,000/towards pain and sufferings total Rs.1,55,000/- with interest @ 6% per annum and ordered Insurance Company to deposit the

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amount of compensation in favour of claimant with the Tribunal with rights of recovery from owner of vehicle.

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Learned counsel for the appellant contended that the learned Tribunal has acted wrongly in not considering papers filed by claimant per list 63C for non payment of heavy cost imposed by it; that since the claimant had suffered adversely due to grievous injuries sustained in the accident, he was not in a position to make payment of heavy cost of Rs.2,500/- imposed by Tribunal; that in cases of compensation, claimant must not be saddled with cost and the learned Tribunal has acted wrongly in not considering income tax returns as well as disability certificate of claimant.

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Per contra learned counsel for respondent Nos.1 & 2, supported the impugned award and contended that the claimant-appellant, failed to prove his income as insurance agent and also failed to prove any monetary loss or disability due to injuries sustained in accident in question; that since the claimant failed to make payment of cost of Rs.2,500/- imposed on admitted paper at belated stage, the papers filed per list 63C were not admissible in evidence.

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Upon hearing parties counsel and perusal of record I find that the learned Tribunal acted wrongly in imposing heavy costs for filing paper per list 63C at belated stage and in not considering evidence for non payment of cost.

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Perusal of lower court record shows that Claimant filed several papers per list 63G 3 I.T. returns, disability certificate etc. which were not taken into consideration by Tribunal. Amongst paper filed per list 63C copy of income tax return of claimant for the year 2008-2009 shows his income from commission from Insurance Companies was 47,500/-, which was around Rs.36,000/- as per copy of income tax return for the year 20092010 according to which his monthly income comes to Rs.4,000/- per month for previous year 2007-2008 and Rs.3,000/- per month for the previous year 2008-2009. Claimant-appellant has also filed disability certificate dated 27.10.2010, Paper No.64C/25 on lower court record, according to which due to post traumatic partial stiffness 40% disability has been certified by Medical Board, Agra.

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Tribunal has not awarded any amount of compensation to the claimant-appellant towards monitory loss while he has stated that due to injuries sustained in the accident he remained hospitalized for a period of 14 days and remain confined to bed for a period of 1-1/2 years. PW-4, Dr. Vijay Pal Singh of G.G. Medical Institute, Sanjay Place, Agra in his statement on oath

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has stated that the left leg of claimant was operated on 14th June by implanting iron plate with screws and he was discharged on 19.6.2009 with advise of complete bed rest for three months and he continued to visit him up to 22.1.2010. He has also stated that there was limping at the time of walking by him. The above uncontroverted statement indicates that the claimant-appellant on account of compound fracture as well as surgery of his left leg with implant of iron plate would have remained confined to bed and it would not have been possible for him to return to his routine at least for a period of six months and for next six months he would have been able to work only partially up to 50%.

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In view of the disability certificate which states that disability due to post traumatic partial stiffness, I find that above disability certificate has been issued on 27.10.2010 and above stiffness would have decreased in due course of time. In view of above disability certificate, there is no evidence on record that earnings of claimant were reduced by 40% but in any case due to above disability/stiffness his income may have been reduced only to the extent of 20%. As per evidence on record as well as High School certificate of claimant-appellant paper No.64C/22, he was 49 years of age at the time of accident and for calculating loss of income multiplier of 13 would be applicable in view of settled principles of law laid down by the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121.

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Upon hearing parties counsel and in view of the discussions made above, I find that the income of claimant-appellant at the time of accident is found to be proved between Rs.3,000/- and Rs.4,000/- per month, as against averment of Rs.35,000/- per month in the petition for the purpose of calculating monetary loss to petitioner it is taken at Rs.4,000/- per month and calculating compensation to which the petitioner is entitled as under :

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(a) complete loss of income for a period of six months Rs.4,000/- X 6 = Rs.24,000/-;

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(b) 50% loss of income for a period of another six months Rs.2,000/- X 6 = Rs.12,000/-;

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(c) 20% loss of income, which comes to Rs.800/- per month or Rs.9,600/- per annum with enhancement of 25% in view of age of claimant-appellant 49 years comes to Rs.12,000/- per annum and for loss of future income 12,000 X 13= Rs.1,56,000/-. Total Rs. 1,92,000/- towards monetary loss.

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As far as compensation under conventional heads is concerned, for pain and sufferings Tribunal has granted him meagre amount of Rs.5,000/-. In view of settled principles of law, I find him entitled a sum of Rs.30,000/- towards pain and sufferings and is also entitled to get Rs.20,000/- towards future medical expenses apart from Rs.1,50,000/- granted by Tribunal towards actual medical expenses incurred by him, total Rs.24,000/-+ Rs.12,000/- + Rs.1,56,000/-+Rs.30,000/- + Rs.20,000/-+ Rs.1,50,000= Rs.3,92,000/-. Tribunal has also acted wrongly in granting interest @ 6% per annum which should have been granted @ 7% per annum in view of prevalent rate of interest as well as 220A (6) of U.P. Motor Vehicles Rules 1998.

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Appeal is partly allowed and impugned award stands modified accordingly.

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Respondent No.1, New India Insurance Company Ltd. shall deposit entire amount of compensation with simple interest @ 7% per annum from 6.10.2009 till date of deposit with the Tribunal, which shall be payable to appellant and out of total amount a sum of Rs.1,00,000/- will be deposited in the name of claimant-appellant in fixed deposit scheme of some nationalized bank for a period of three years. Respondent No.1, New India Insurance Company Ltd. will be entitled to recover the amount of compensation so deposited from respondent No.2.

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

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Order Date :- 23.4.2019 T. Sinha

Rakesh Kumar Singhal v. New India Insurance Co. Ltd. and Another

Case brief

What is this about?

What did the court decide?

Rakesh Kumar Singhal v. New India Insurance Co. Ltd. and Another

Case brief

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What did the court decide?

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