BILASPUR (C.G.) v. Khireshwar Kumar Mahapatra

Single Bench: Hon'bie Shri Justice Sanjay K. Agrawal Misc. Appeal (0 No. 1937 of 2012 Triotochan Giri RESPONDENTS Versus Khireshwar others. ' Kumar Mahapatra & IVIiscellaneous appeal underSection 173ofttieMotor VehidesAct.1988 Appearances ofthe counsel: Shri Goutam Khetrapal, counsel for the appellant. Shri Abhishek Sinha & Shri Ghanshyam Patsl, counsel respondent No.3. ORDER (11.11.2013)

1. This ciaimant's appeal seeking enhancement compensation awarded by T^" Additional Motor Accident Claims 'the Tribunal') in Claim Case No. Tribunai, Raipur (for short 137/2011, vide award dated 29.02.2012.

2. As against the compensation of Rs. 9,40,000/- claimed by appetlanyctaimant, by filing claim petition under Section 166 of the Motor Vehides Act, 1988 (for short 'the Act') for the injuries sustained by him in the motor accident on 17.8.2010, Tribunal awarded a totat sum of Rs. 2,35,800/- along with intersst @ 6% per annum from the date of filing of claim petition till its actual payment.

3. The Tribunal, on a close scrutiny of the evidence led, held that the accicient had occurred due to rash and negligent driving of ^?S^;:;'3;-t toiero Vehicte (offending vehicfe) bearing registration No. OR- 17 G.4101; appellant, who was sittmg in fhe vehicle, sustained multiple injuries resulting in permanent disability to the extent of 55% in the said accident;. respondent No. 4/lnsurance Company tiabte for payment of compensation as it could not establish vjolation of policy conditions; assessed S awarded aforesaid sum as compensation.

4. Leamed counsel appearing for the appellant woutd submit: the Tribunal has erred in aayarding a low amount of Rs.43,200/- towards loss of earning capacity of the claimant inasmuch, the cfaimant has suffered permanent disability to the extent of 55% vide Ex. 261 and thereby in awarding a low compensation of Rs.2,35,800/-

5. On the other hand, leamed counsel appearing for respondent No. 3/Bajaj Allianz General Insurance Company Limited supported fhe award impugned and submitted, m the Tacts and circumstances of the case, compensation awarded by I" ]• the Tribunal !s just and proper compensation which does not cait for any interference.

7. ! have heard learned counsel appearing for the parties and considered the rival submissions made by the parties. The claimant has fited and proved disability Certificate Ex.259, in which he has been certified to have suffered 60% temporary disability in his right ieg and after two years the claimant has -filed and proved another disabiiity certificate Ex.281 inwhich he ^K;i^^': Iffi aa'"•!fMa v^ 1 ^—^ r^y has been certified to have suffered 55% permanent dlsability in his right leg.

8. Dr. Sharad Awasthy, (AW-5) has been examined to prove the said medscal certificate of-the claimant but he has ctearty deposed that before issulng temporary or permanent disability certificate he saw the claimant X ray's report and thereafter he has issued the permanent disability certificate certifying 55% (Ex.261) permanent disability fo the claimant. ..•Wy

9. The Tribunal, based on temporary disability certificate Ex.259 , has held that the ciaimant has suffered 60% temporary and, thereafter assessed compensation of Rs.43,200/- towards loss of earning capacity for two years. The Tribunal further awarded Rs.1,92,600/- on other heads and thus has awarded a total sum of Rs.2,35,800/- to the claimant along with interest @ 6% per annum from the date of filing of claim petitioner till its actual payment.

10. Fact remains that 55% permanent disability suffered by the claimant vide Ex.261 is not scheduled injury as deflned under the provisions of Employee's Compensation Act, 1923. 11 As per the evidence of Dr. Sharad Awasthy (AW-5), who has Issued the permanent disabj!ity certificate to the claimant, appetlanVclaimant is said to have suffered permanent disability to the extent of 55% in his right leg but he has not stated anything with regard to functiona! disability suffered by the IS': I'?B" claimant. •iEassscSis,S£S&,^^ :^~~^v ^'-•^^h l,'i"J/ 11 "^'J?'^ ^

12. The Supreme Court in case of Rai Kumar Vs. Aiav Kumar and another1 has held as under: lower limb and not "(25) The Tribunal has proceeded on the basis that the permanent disabitity of the injured claimant was 45% and the loss of his future eaming capacity was atso 46%. The Tribunal overlooked the fact that the disability certificate referred to 45% disability with reference to the left regard to the entire body. The said extent of the limb could not be permanent disability of considered to be the fujietional disability of the in a body nor could it be assumed to result corresponding exj^nt of loss of earning capacity, as the disability would not have prevented him from carrying on his avocation as a cheese vendor, though it might impede in his smooth functioning. Normally, the absence of clear and sufficient evidence would have necessitated remand of the case for further evidence on this aspect. However, instead of remanding the matter for a finding on this issue, at this distance of time after nearly two to do decades, on the facts and circumstances, complete justice, we propose to assess the permanent functional disability of the body as 25% and the loss offuture earning capacity as 20%."

13. In the instant case, the permanent disability of the injured claimant was 55% and the loss of his future eaming capacity was not taken into consideration. Thus, applying the ratio of law laid down by the Supreme Court in the above referred case, 1 propose to assess the permanent functional disability of the body as 15% and loss of future earning capacity as 10%.

14. The Claims Tribunal has assessed the monthly income of the claimant as Rs.3,000/- per month. Looking to the claimant's loss of earning capacity as 10%, clatmant's Income would be 300/-per month and Rs 3,600/- per annum. By multiplying the annual loss of eaming capacity of the deceased as Rs.3,600/- ' (2011) 1SCC 343 ,^' ^ per month with the muftiplier of 16 in view of the judgment of Supreme Court in case of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another2 , the amount of compensation towards future loss of income works out Rs.57,600/- in place of Rs.43,200/- as awarded by the Tribunal on account of claimant's loss of eaming capacity. The appellant/claimant further entitled for Rs. 14,400/- on account of loss of earning capac'rty and thus has awarded a total sum of ? 2,50,200^

15. For the foregoing reasons, the appeal filed by the appeflant for enhancement compensation partly allowed. The compensation of Rs.2,35,800/- awarded by the Tribunal enhanced to Rs.2,50,200/-. The appellanVctaimant is further entitled to receive Rs. 14,400/- over and above the amount awarded by the Tribunal. Enhanced amount of Rs.14,400/- shall carry interest @ 6% per annum from the date of filing of claim petition till its actuat payments. Award is modified to the above extent. Rest of the conditions mentioned in the award shall remain intact.

16. The respondent 3- Bajaj Allianz General Insurance Company Limited is granted three months time to deposit enhanced amount of compensation of Rs.14,400/- atong with interest 6% per annum simple interest before the concemed Claims Tribunal.

17. No order as to costs. (2009)68cci21 Sd/- Sanjay K. Agrawal Judge