Gautam Yadav Vs Chhattu Dhruv

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 1476 of 2015

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Gautam Yadav, S/o Prahlad Yadav, Aged About 23 Years, R/o Pathraguda Jagdalpur, District Bastar Chhattisgarh.

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---- Appellant

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Versus

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Chhattu Dhruv, S/o Dindayal Dhruv, Aged About 47 Years, through Saiyyad Anwar Ali, S/o Saiyyad Ahmad Ali, Director Royal Travels, Bus Stand Pandari, Raipur, District Raipur, Chhattisgarh.

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Saiyyad Anwar Ali, S/o Saiyyad Ahmad Ali, Director Royal Travels, Bus Stand Pandari, Raipur, District Raipur, Chhattisgarh.

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The Branch Manager, the Oriental Insurance Company Limited, Branch Office opposite Krishi Mandi, Hotel Laxman Avenue, Jagdalpur, District Bastar, Chhattisgarh.

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---- Respondents

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For Appellant : Mr. Praveen Dhurandhar, Advocate For Respondents No.1 & 2 : None. For Respondent No.3 : Mr. Raj Awasthi, Advocate

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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06.05.2024

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1. This appeal filed by the appellant/claimant under Section 173 (2) of the Motor Vehicles Act, 1988 (hereinafter referred

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to as “M.V. Act”) is directed against the impugned award dated 07.08.2015 passed by the Additional Motor Accident Claims Tribunal (F.T.C.), Bastar at Jagdalpur, Chhattisgarh (hereinafter referred to as “Claims Tribunal”) in Claim Case No.141 of 2014, whereby learned Claims Tribunal awarded a compensation of Rs.3,52,800/- with interest @ 9% per annum from the date of filing of claim petition till its realization.

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2. Brief facts for disposal of the appeal, are that, on 28.11.2012, at about 12.00 noon, claimant Gautam Yadav was going to Bastar Haat on his motorcycle, at that relevant time, a bus bearing registration No.CG-04-CY-7867 (hereinafter referred to as “offending vehicle”) coming from Bastar to Jagdalpur, dashed the motorcycle of Gautam Yadav, due to which, he suffered fracture on his left leg and injuries over left wrist and left shoulder. He also suffered injuries over his head, due to which, he went to coma. After seeing his situation, he was referred to higher medical institution and he was admitted in Shri Ramkrishna Hospital, Raipur from 29.11.2012 to 06.12.2012. Thereafter, crime was registered against respondent No.1 at Police Station Kotwali, Jagdalpur for the offence punishable under Section 279, 337 and 338 of the Indian Penal Code, 1860

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(hereinafter referred to as “IPC”).

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3. After recovery from injuries, appellant/claimant filed a claim petition under Section 166/140 of M.V. Act seeking total compensation of Rs.17,11,800/- pleading therein that in motor accident, he suffered fracture injury over his left leg as well as left shoulder. He undergone operation of his left leg and a rod was inserted on his left leg. Prior to date of accident, appellant was working as driver, but on account of motor accidental injuries, he was not able to perform his work, which he was doing prior to the date of accident.

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4. After appreciating the evidence available on record as well as after hearing learned counsel for the parties as also considering the pleadings made in the claim petition, learned Claims Tribunal considered the notional income of claimant as Rs.4,000/- per month. After assessing 20% permanent disability, his loss of earning capacity was reckoned as Rs.800/- per month i.e. Rs.9,600/- per annum and after applying the multiplier of 18, total loss of earning comes out to Rs.1,72,800/-. It was further held that claimant was also entitled to Rs.1,70,000/- towards medical and conveyance expenses and Rs.10,000/- towards pain and suffering, mental agony as well as special diet, as such, awarded total compensation of Rs.3,52,800/- with interest

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@ 9% per annum from the date of filing of the claim petition till its realization. Hence, this appeal for enhancement.

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5. Learned counsel for the appellant/claimant submits that learned Claims Tribunal erred in awarding meagre amount of compensation in favour of the claimant. He further submits that appellant was working as a driver and learned Claims Tribunal has erred in assessing monthly income of claimant as Rs.4,000/- per month. He next submits that learned Claims Tribunal erred in not awarding any amount towards future prospects and awarded meagre amount of compensation in other heads as the claimant was remained in hospital for about 7 days. He lastly submits that in the given facts and circumstances of the case, appeal may be allowed and compensation amount needs to be enhanced suitably.

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6. Per contra, learned counsel for respondent No.3/insurance company submits that in the facts and circumstances of case, learned Claims Tribunal has awarded just amount of compensation, which requires no further enhancement.

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7. I have heard learned counsel for the parties and perused the record of claim cases carefully.

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8. In a motor accident claim case, what is important is that, the

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compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza.

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9. Now I shall examine as to whether the compensation of Rs.3,52,800/- awarded by the Claims Tribunal is just and proper compensation in the facts and circumstances of the present case.

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10. Admittedly, in an vehicular accident that had taken place on 28.11.2012, the appellant/claimant sustained fracture injury on his left leg and left shoulder. Looking to the grievous injuries, he was admitted in hospital for about 7 days. Dr. Lakhan Lal Thakur (AW-2) has stated in his evidence that appellant/claimant has suffered fracture injury on his left leg and left shoulder, in which a steel rod was inserted. Due to stiffness in the knee he had no support in sitting down, cross legged sitting and squatting. His right shoulder could not be raised and the muscles are become week. In this regard, permanent disability certificate has been issued by the District Medical Board opining 55% permanent disability vide Ex.A/10. Learned Claims Tribunal after appreciating the evidence in this regard held that appellant/claimant has suffered only 20% earning capacity in the given nature of

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work. The said finding is a correct finding of fact and requires no interference. I hereby affirm the said finding.

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11. The aforementioned assessment of loss of earning capacity by this Court is upon considering the ruling of Supreme Court in cases of R. D. Hattangadi v. Pest Control (India) Pvt. Ltd. and others reported in (1995) 1 SCC 551 and Raj Kumar v. Ajay Kumar and another reported in (2011) 1 SCC 343 .

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12. Considering the date of accident i.e. 28.11.2012, age of appellant as 23 years, in absence of reliable evidence, income of deceased is to be assessed on notional basis keeping in mind the nature of occupation, date of accident, wage structure prevailing on the date of accident, price index and cost of living etc. specially notification by Labourer Department for minimum wages are required to be taken into consideration as well as the fact that appellant has produced his driving licence (Ex.A/9) authorizing him to drive “LMV and MCWG”, I find it appropriate to reckon income of appellant as Rs.5,088/- per month treating him to be skilled labour. As this Court has held that appellant suffered loss of earning capacity to the extent of 20%, therefore, amount of compensation is to be assessed by applying multiplier system.

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13. Hon'ble Supreme Court in case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680 has considered the issue of award of compensation towards future prospects and held that where the victim is less than 40 years of age and not in permanent employment, there shall be addition of 40% of established income towards future prospects for ascertaining total income on the date of accident. In the case at hand, appellant was less than 40 years of age on the date of accident, hence, I find it appropriate to add 40% of established income towards future prospects. It is ordered accordingly.

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14. Hon'ble Supreme Court has issued guidelines for awarding amount of compensation in personal injury cases in case of R. D. Hattangadi v. Pest Control (India) Pvt. Ltd. (supra) and held thus :

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“12. In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.”

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15. For the foregoing reasons as well as the facts and circumstances of the case, I deem it fit and proper to

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calculate the amount of compensation as under :

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Income of appellant is assessed as Rs.5,088/- per month and Rs.61,056/- (5,088 x 12) per annum. By adding 40% of the income towards future prospects i.e. Rs.24,422/(61,056 x 40%), total annual income of appellant will come to Rs.85,478/- (61,056 + 24,422). As this Court held that appellant suffered 20% loss of earning capacity as assessed by learned Claims Tribunal, annual loss of income of appellant will come to Rs.17,096/- (85,478 x 20%). On the date of accident, appellant was shown to be 23 years of age, therefore, in view of law laid down by Hon'ble Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 , appropriate multiplier would be 18 as applied by learned Claims Tribunal. By applying the multiplier of 18 to annual loss of income, total loss of future income of appellant will come to Rs.3,07,728/- (17,096 x 18).

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16. Considering the facts and circumstances of the case, the nature of injuries sustained by the claimant/injured, the period of his hospitalization (7 days), during which period, he had to undergo continuous treatment, further considering the fact that during treatment of claimant, the family members must have also suffered severe mental agony

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looking to the condition of the injured, the expenses incurred by him during the course of treatment and the unrebutted evidence adduced in support thereof, this Court is of the opinion that the claimant is entitled for an amount towards other heads, which would meet the ends of justice.

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17. Apart from above loss of income, appellant will be further entitled to Rs.1,70,000/- towards medical and conveyance expenses as awarded by learned Claims Tribunal. In addition thereof, appellant will be entitled to Rs.20,000/towards pain and suffering, mental agony, special diet and attendant as well as Rs.15,000/- towards loss of income for three months. Now, appellant/claimant is entitled for total compensation of Rs.5,12,728/- (3,07,728 + 1,70,000 + 20,000 + 15,000).

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18. Thus, the total compensation is recomputed as Rs.5,12,728/-. After deducting Rs.3,52,800/- as awarded by the Claims Tribunal, enhancement would be Rs.1,59,928/-.

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19. In the result, the appeal is allowed in part . The appellant/ claimant shall be entitled to Rs.1,59,928/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. However, rest

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of the conditions as imposed by the learned Claims Tribunal in the impugned award shall remain intact.

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20. The Registry is directed to communicate the claimant in writing “the enhanced amount” in this appeal as against the awards passed by the learned Claims Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a coordination of Secretary, Legal Aid of the concerned area wherein the claimant resides.

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(Sanjay Kumar Jaiswal) Judge

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Yogesh

Gautam Yadav v. Chhattu Dhruv

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Gautam Yadav v. Chhattu Dhruv

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