Bony Dubey Vs M/S Shyam Bidi Works and Another

Reserved on: 14.12. 2021 Delivered on: 03.01.2022

Court No. - 2

Case :- FIRST APPEAL FROM ORDER No. - 3336 of 2013

Appellant :- Bony Dubey Respondent :- M/S Shyam Bidi Works And Another Counsel for Appellant :- Amit Kumar Sinha Counsel for Respondent :- Saurabh Srivastava,Suyash Agarwal

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Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Ajai Tyagi,J.

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1. Heard learned counsel for the parties and perused the judgment and order impugned.

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2. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellant-Bony Dubey, being aggrieved by judgment and award dated 05.08.2013 passed by Motor Accident Claims Tribunal, Allahabad (hereinafter referred to as 'Tribunal') in Claim Petition No. 249 of 2010 awarding a sum of Rs.15,72,848/- with interest at the rate of 6% to the injured.

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3. The accident having taken place is not in dispute. The appellant having suffered loss of income besides other grievous injuries fracture in Spinal Cord from several places and as such all body parts below waist became senseless and he is on wheelchair is not in dispute. The vehicle being insured with insurance company and there is no breach of policy condition is not in dispute. The accident occurred way back in the year 2010 is not in dispute. The involvement of the vehicle is not in dispute and it is proved before the Tribunal that the driver was negligent.

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4. The appellant challenges the findings as they are perverse and against the record and, therefore, factual data is not adverted to except that the accident occurred on 23.1.2010 at 12.30 when rashly and

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negligently driven Vehicle No.UP 70 X 9756 hit the Motorcycle No.UP 70 AS 3148 coming from opposite direction as such appellant (pillion rider on the motorcycle) sustained grievous injuries resulting in permanent disability to the appellant. The appellant(minor) was about 15 years of age when the accident occurred and he would be by now 25 years of age. But unfortunately tribunal has considered yearly income Rs.36,000/-, loss of income Rs.5,40,000/-, Medical Bill & Vouchers Rs.9,99,848/-, Rs.10,000/- for pain & sufferings, Rs.15,000/- for Extra Diet & Nourishment and total Award of Tribunal Rs.15,72,848 with 6% rate of interest.

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5. It is submitted by the learned counsel for the appellant claimant that the Tribunal has materially erred in calculating the amount of claim. According to the learned counsel for the appellant Yearly income of the injured Rs.60,000/- per annum; 40% addition towards future prospect; multiplier of 15; loss of earning capacity 100%; loss of income 12,60,000/-; Rs.2,50,000/- for addition towards permanent disability as per the ratio laid down by Hon’ble Apex Court in paragraph 29 of the (2012) 12 SCC 274 K. Suresh V. New India Assurance Company Ltd.; Rs.3,00,000/- for addition towards Bleak prospect of marriage life., as per the ratio laid down by Hon’ble Apex court in Paragraph No.23 of the case reported (2014) 11 SCC 178 titled V. Mekala Vs. M. Malathi & Another; Rs.15,00,000/- for addition towards Pain & sufferings as per the ratio laid down by Hon’ble Apex Court in Paragraph Nos. 26 & 27 of the 2020 (1) TAC 705 (SC) Kajal v. Jagdish Chand & others; Rs.60,000/- per annum for addition towards cost of attendants as per ratio laid down by Hon’ble Apex Court in Paragraph No.22 to 25 of the 2020 (1) TAC 705 (SC) Kajal v. Jagdish Chand & Others; Rs.10,000/- for medical expenses; and total amount of compensation Rs.52,10,000/- demanded would just and proper and would be adequate compensation..

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6. Recently the Supreme Court had an occasion of deciding a similar matter relating to a minor who had become practically crippled. The principles of just compensation have been laid in the said judgment.

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7. Victim was 15 years of age who has been rendered totally incapacitated. As per the medical advice, he has suffered 90% disability for the body as a whole which means it would be 100% disability for earning, he has to move in a wheel-chair and his chances of marriage have become practically nil. The accident occurred before a decade, namely, 2010. Hence he would be at the age of 25 years as of today.

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8. We, therefore, would fall back judgment on the Kajal (Supra) and in this backdrop let us evaluate the income in view of the decisions of the Apex Court titled Hdfc Ergo General Insurance Co. Ltd. v. Mukesh Kumar, 2021 (0) AJEL-SC 67851 and Jithendran v. New India Assurance Co. Ltd., 2021 (0) AIJEL-SC 67944 and, the recalculate the compensation which would be as follows:

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i. Income Rs.5,000 x 12=60,000/-p.a.

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ii. Percentage towards future prospects : 40% namely Rs.24,000/-

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iii. Total income : Rs.60,000+24,000 = Rs.84,000/-

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iv. Multiplier applicable : 15

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v. Loss of dependency: Rs.84,000 x 15 = Rs.12,60,000/-

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vi. Bleak prospect of Marriage: Rs.1,00,000/vii. For pain & sufferings: Rs.5,00,000/-

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viii. Future medicine expenses = Rs.5,00,000/-

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ix. All other heads for wheelchair = Rs.1,20,000/-

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x. Total compensation : Rs.12,60,000 + Rs. 1,00,000 + 5,00,000 + 5,00,000 + Rs.1,20,000 =24,80,000/-

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9. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

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"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

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10. No other grounds are urged orally when the matter was heard.

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11. In view of the above, the appeal is partly allowed and oral counter claim is allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

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12. The lower court record be sent back, if here, to the tribunal for disbursement.

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(Ajai Tyagi, J.) (Dr.Kaushal Jayendra Thaker, J.)

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Order Date: 03.01.2022 A.N. Mishra

Bony Dubey v. M/S Shyam Bidi Works and Another

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Bony Dubey v. M/S Shyam Bidi Works and Another

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