Partly allowed

U.P.S.R.T.C. Thru Regional Mananger v. Dilip Kumar @ Munna and Another

Allahabad HC7 Feb 2020FAFO/2/2010

Case brief

AI extract

What is this about?

In this appeal under Section 173 of the Motor Vehicles Act, the High Court partly allowed the UPSRTC's appeal against a Motor Accident Claims Tribunal award. While rejecting the challenge to the multiplier, the Court enhanced compensation for permanent disability, pain and suffering, nutritious diet, attendant care, and future treatment.

What did the court decide?

Enhanced compensation for loss of income due to permanent disability, pain and suffering, nutritious diet, attendant care, and future treatment awarded with 6% interest.

U.P.S.R.T.C. Thru Regional Mananger Vs Dilip Kumar @… — Motor Accident Claims | Allahabad HC (2020)

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Court No. - 53

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Case :- FIRST APPEAL FROM ORDER No. - 2 of 2010

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Appellant :- U.P.S.R.T.C. Thru Regional Mananger Respondent :- Dilip Kumar @ Munna And Another Counsel for Appellant :- S.K. Mishra Counsel for Respondent :- Abhishek Kumar Srivastava,Ram Singh

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Hon'ble Vivek Agarwal,J.

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Heard Sri S.K. Mishra, learned counsel for the appellant - Uttar Pradesh State Road Transport Corporation (UPSRTC) and Sri Mohd. Asim, learned counsel for the respondent-claimant.

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As far as cross objection is concerned, the application for condonation of delay is sketchy and does not explain the delay properly. Therefore, the delay being not explained sufficiently, Application to condone delay is dismissed, so accordingly the cross objection is also rejected.

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The present appeal, under section 173 of the Motor Vehicles Act, has been preferred by the appellant – UPSRTC being aggrieved of the award dated 22.09.2009 passed by the Motor Accident Claims Tribunal / Additional District Judge, Court No. 16, Alahabad ( in short the learned Claims Tribunal) in MACP No. 68 of 1998, Dilip Kumar @ Munna Vs. UPSRTC and another.

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The brief facts of the case are that on 13.12.1995 at 9:30 pm, a driver of Roadways Bus No. UP-70 B/8195 while driving the Bus rashly and negligently on GT Road near Kalyanpur Hotel under Kalyanpur police station, district Fatehpur hit from behind to a DCM Toyata bearing registration No. UP-78 B-1838 which was going to Kanpur in which the claimant-injured was travelling sitting on the back side of the DCM Toyota with his goods of iron filings and was going to Kanpur for selling the same, which is his business. Because of hitting of DCM Toyota by the offending Bus, the claimant had fallen from the DCM Toyota and got several grievous injuries in whole of his body and thereafter he got treated himself in District Hospital, Fatehpur and then SRN Hospital, Allahabad.

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Thereafter the claimant filed aforesaid Motor Accident Clams Petition No. 68 of 1998 before the learned Claims Tribunal, Allahabad.

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This appeal has been moved by the UPSRTC raising the following grounds:-

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(i) That since the age of the injured was 30-years at the time of accident, the multiplier of 17 has been incorrectly applied by the learned Claims Tribunal and as per law laid down by Hon’ble Supreme Court in case in case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another as reported in (2009) 6 SCC 121, multiplier of 16 will be applicable.

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(ii) That Doctor, who has issued medical certificate, has not been examined before the learned Claims Tribunal.

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On the other hand, Sri Mohd Asim, learned counsel for the claimantrespondent submits that in cross-objection, he has raised the issue of loss of earning capacity to the extent of 10% on the ground that there is paralysis of one limb of the injured Dilip Kumar @ Munna (Claimant), S/ o Deena Nath. He further submits that income of the injured-claimant has been considered on the lower side of Rs. 60/- per day whereas looking to the date of accident which took place on 13.12.1995, the income should have been considered on higher side.

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This court after going through the record, considering facts and circumstances of the case and hearing arguments of counsel for both the parties, deems it appropriate to partly allow this appeal as per following terms.

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As far as the appellant is concerned, there is no challenge to the evidence led by the claimant himself as to the disability as has been accepted by the learned Claims Tribunal. Therefore this aspect that doctor, who has issued certificate, has not been not examined before the learned Claims

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Tribunal loses its sanctity specially when learned Claims Tribunal has referred to medical documentation as was produced before it in great detail and has taken note of the fact that on the basis of grievous injuries which were sustained by the claimant and also on the basis of record of District Hospital, Fatehpur as well as of SRN Hospital, Allahabad which were produced by the claimant, it was evident that the disability as has been claimed by the claimant has been proved beyond reasonable doubt.

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However, there is substance in the argument put forth by learned counsel for the appellant (UPSRTC) that instead of multiplier of 17, multiplier of 16 should have been applied and, therefore, in place of sum of Rs. 2,41,320/- on account of loss of income due to permanent disability to the extent of 60% as has been fixed by the learned Claims Tribunal, the claimant will be entitled to a sum of Rs. 2,07,360/-. Apart from it, it is also to be seen that just compensation is to be awarded to the claimant.

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Argument of claimant-respondent that Rs. 60/- per day has been computed at lower side deserves to be rejected because there is no evidence on record to substantiate that minimum wages of an unskilled labourer were more than 60/- per day or Rs. 1800/- per month on the date of accident. However, the learned Claims Tribunal has awarded only a sum of Rs. 5000/- under the head of pain and suffering which needs to be enhanced to Rs. 20,000/-. Similarly, learned Claims Tribunal has awarded only a sum of Rs. 3000/- under the head of nutritious diet, but taking into consideration the fact that accident was taken place on 13.12.1995 and claimant suffered grievous injuries as a result of which he remained hospitalized for over a period of 2 months and thereafter looking to the nature of injuries, he continued to be under nursing for a period of at least 3 more months, therefore, the compensation under the head of nutritious diet should have been at least Rs. 6000/- and therefore there will be enhancement under the head of nutritious diet to the tune to Rs. 3000/-.

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No amount has been awarded under the head of attendant aspect and future treatment. Looking to the nature of the injuries, which has come on record, a sum of Rs. 6000/- is awarded under the head of attendant for a period of 4 months as Rs. 50/- per day. Similarly, Rs. 2000/- is awarded under the head of transport and another sum of Rs. 5000/- is awarded under the head of future treatment, be it physiotherapy or other treatment. Therefore there will be enhancement of Rs. 23,040/- to which claimant will be entitled at the rate of 6% interest per annum as has been awarded by the learned Claims Tribunal.

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Another argument put forth by the counsel for the claimant that in the light of law laid down by Hon’ble Supreme Court in case of Khenyei Vs. New India Assurance Co. Ltd & another as reported in 2015(2) TAC 677 (SC) , it is open to the claimant to seek payment of compensation from one of joint tort-feasors and the one which has been fastened with the whole liability can recover the amount fixed by the learned Claims Tribunal as liability on the tort-feasors, he be allowed to claim compensation from UPSRTC leaving it open to them to recover it from the owner of the DCM Toyota vehicle, that argument appears to be just in term of para-18 of the judgment rendered by Hon’ble Supreme Court in case of Khenyei (Supra) and at the stage of execution of award, it will be open to the claimant to seek such adjustment.

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In view of above, the appeal is partly allowed.

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Order Date :- 7.2.2020 S.K.S.

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U.P.S.R.T.C. Thru Regional Mananger v. Dilip Kumar @ Munna and Another

Case brief

What is this about?

What did the court decide?

U.P.S.R.T.C. Thru Regional Mananger v. Dilip Kumar @ Munna and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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