Claimant v. Anil Das Panika fAPPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT) & Ors.

HIGH COURT OF CHHATTISGARH AT BILASPUR MACQ No. 673 of2011 APPELLANT Claimant Ratu Ram @ Rajkumar VERSUS RESPONDENTS Anil Das Panika & others fAPPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT) (SB: Hon'ble Mr. N.K. Asarwai, J.) Present : Shri BP Singh, Advocate for the appellant. Shri AK Athaley, Advocate for respondentNo. 3. ORALAWARD (Passedon 02.04.2013)

1. This is claimant's appeal seeking enhancement of compensation awarded by the Addl. Motor Accident Claims Tribunal, Balod Distt. Durg (for short 'the Tribunal') in claim case No. 67/2011 vide award dated 29.04.2011.

2. As against ths compensation ofRs. 16,30,000/- claimed by the appellant/claimant by filing application under Section 166 ofthe Motor Vehicles Act, 1988 (for short 'MV Act?) for the injuries sustained by him in the motor accident on 16.09.2009, Tribunal awarded a total suni of Rs. 40,720/- as compensation along with interest @ 6 percent per annum from the date of application tiil its actual payment.

3. The Tribunal, on a close scmtiny ofthe evidence led, held : the accident had occurred due to rash and negligent driving ofTmck bearing registration No. CG-07-C-5545 by its driver Aail Das; -}3 appellant suslained multiple injuries m the said accident; respondent No. 3/insurance company liable for payment of compensation to the claimant as it could not establish violation ofpolicy conditions; and assessed and awarded aforesaid sum as compensation to the appellant/claimant.

4. Leamed counsel appearing for the appellant submits that the appellant has suffered amputation ofright !eg and is permanently disabled and has also lost his eaming capacity to the extent of70 percent, hovvever, the Tribunal has fallen in error in not avvarding any sum on account of loss of eaming capacity. It was farther contended; the Tribunal has further erred in not awarding adequate compensation on the heads of pain & suffering, attendant, special diet and conveyance, and therefore, award amount deserves to be suitably enhanced.

5. On the other hand, leamed counsel appearing for the respondent No. 3/insumnce company supported the award inipugned and submitted in the facts and circumstances ofthe case the Tribunal has awarded just and proper compensation which does not call for any interference.

6. I have heard the counsel appearing for the parties and perused the award impugned including records ofthe Tribunal.

7. The facts that accident had occurred due to rash and negligent driving of driver of Truck, appellant sulfered amputetion of his ^y right leg below knee and that the insurance company is liable for payment ofcompensation to the claimant are now not in dlspute.

8. On the face, the Tribunal has erred in holding that the appellant has suffered simple injury, inasmuch as, even as per discharge ticket (Ex. P/108), the appellant suffered mid foot amputation (R). Therefore, considering the Schedule aanexed to Employee's Compensation Act, 1923, and thejudgment ofSupreme Court in case of Raj Kumar v. Ajay Kumar and Another , in my opinion, the claimant must have suffered loss of earning capacity to the extent of60 percent,

9. The Tribunal has further erred in not awarding adequate sum on the head ofpain & sufiering and in not awarding any sum on the heads of attendant, special diet and conveyance. Therefore, I propose to re-compute the amount of compensation by taking into consideration loss ofeaming capacity ofthe appellant to the extent of60 percent.

10. True, the appellant has pieaded he was eaming Rs. 200-250 per day by selling vegetables, but no cogsnt and clinching evidence has been adduced to substantiate the same. However, looking to the nature ofwork, in my opinion, the appellant inust have been earning at least Rs. 100/- per day i.e. Rs. 36,000/- per annum. Since, the appellant sufiered peniianent disabiiity to the extent ' 2011 (l)SCC 343 a^ /".^' J' %-^/ ^ of 60 percent, therefore, appeilant's annual loss of earning capacity would be Rs. 21,600/-.

11. The appellant was aged about 50 years at the time of accident. The Supreme Court in case of Sarla Verma (Smt.) & others v. Delhi Transport Corpomtion & another2 has prescribed multiplier of 13 for the age group between 46 to 50. Therefore, by multiplying the clainiant's annual loss ofeaming capacity of Rs. 21,600/- with the multiplier of 13, the amount of compensation on account of future loss of income would be Rs. 2,80,800/-. The appellant is farther entitled for Rs. 36,000/- (R/o Rs. 35,720/- as awarded by the Tribunal) towards medical bills, Rs. 20,000/- towards pain and sufiering and Rs. 30,000/- (Rs. 10,000/- each towards attendanl, special diet and conveyance) and thus, the claimaat would become entitle for Rs. 3,66,800/- as compensation in place of Rs. 40,720/- as awarded by the Tribunal.

12. In view of foregoing, the appeal is allowed in part. The compensation of Rs. 40,720/- awarded by the Tribunal enhanced to Rs. 3,66,800A. The appellant is entitled fbr a further sum ofRs. 3,26,080/- over and above the amount ofRs. 40,720/- awarded by the Tribunal.

13. The above enhanced amount of compensation of Rs. 3,,26,080/- shall carry interest @ 6 percent per annum from the date of i2009(6)SCC121 ^ ^'?^s?%. ^ "% ,.?rc %."% f 1 ^ss^^ g %9sy9/ .l^-'^.^" '^Vaess^^' Sahu "^i ^J application till actual paymont. Rest of the conditions mentioned in the award shall remain intact. The award stands modified to the above extent.

14. The respondent No. 3/The Oriental Insurance Company Ltd. is granted two months' tinie to deposit enhanced amount of compensation of Rs. 3,26,080/- along with interest before the concemed Tribunal. No order asto costs. Sd/- N.K. Agarwal Judge