Madhya Pradesh High Court
Satanarayan Gupta vs Durgesh Kumar Gupta on 2 August, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2nd OF AUGUST, 2022
MISC. APPEAL No. 1979 of 2015
Between:-
SATANARAYAN GUPTA S/O MOHANLAL GUPTA,
AGED ABOUT 30 YEARS, R/O NEW COLONY
KHUNTHI WARD NO. 29 THANA CITY KOTWALI,
TEHSIL RAGHURAJNAGAR, DISTRICT SATNA
.....APPELLANT
(BY SHRI KAPIL PATWARDHAN, ADVOCATE)
AND
1. DURGESH KUMAR GUPTA S/O MOHANLAL
GUPTA, AGED ABOUT 34 YEARS, R/O NEW
COLONY KHUNTHI WARD NO.29 THANA CITY
KOTWALI GAGHURAJNAGAR, DISTRICT SATNA
2. SHAILENDRA KUMAR GUPTA S/O MOHANLAL
GUPTA R/O NEAR PREMNAGAR POWER HOUSE,
THANA CITY KOTWALI, TEH.
RAGHURAJNAGAR, DISTRICT SATNA
3. DIVISIONAL MANAGER, THE ORIENTAL
INSURANCE CO. LTD. DIVISIONAL OFFICE,
CHOURASIA COMPLEX, SEMARIA CHOWK
STANA, TEHSIL RAGHURAJNAGAR, DISTRICT
SATN
.....RESPONDENTS
(BY SHRI KRISHNA KESHAV SINGH, ADVOCATE)
This appeal coming up for hearing on admission this day, th e court
passed the following:
ORDER
This appeal is filed by the claimant being aggrieved of award dated Signature Not Verified SAN 01.05.2015 passed by learned 6th Additional Motor Claims Tribunal, Satna in Digitally signed by MOHD TABISH KHAN Date: 2022.08.03 17:08:12 IST Claim Case No.52/2014.
2Appellant's contention is that Tribunal has arbitrarily considered 20% disability sustained on account of head injury contacted by the Claimant due to fall from Motorcycle. He also submits that Tribunal erred in considering income of the injured at Rs.6,000/- per month whereas income tax returns for the financial year 2009-20010 and 2008-2009 were available on record as Ex.P268(c) and Ex.P269(c) showing net income of Rs.1,64,558/- (Rupees One Lakh Sixty Four Thousand Five Hundred and Fifty Eight Only) and Rs.1,08,220/- (Rupees One Lakh Eight Thousand Two Hundred and Twenty Two Only) respectively.
It is submitted that Tribunal has rejected these income tax returns only on the ground that they were two years old and the current income tax return was not filed on record whereas average income should have been taken into consideration for purposes of computation of loss of income on account of permanent disability as has been certified by Dr. R.N. Soni, Chief Medical Officer of District Hospital, Satna.
Learned counsel for the appellant submits that two other Doctors who had actually treated the claimant were examined before the Court of law namely B.K. Panse, Neurosurgeon, who had conducted operation at Anant Hospital, Jabalpur and then Dr. Chandrashekhar Pakhmode of Getwell Hospital Nagpur. It is submitted that in evidence of Dr. Chandrashekhar Pakhmode fact of claimant suffering from right hand side Paralysis on account of accident has been verified which has been certified by Dr. R.N. Soni along with his team of medical experts at District Hospital, Satna vide disability certificate Ex.P267 Signature Not Verified where Doctors have certified 60% disability of the whole body on account of SAN Digitally signed by MOHD TABISH KHAN post head injury right Hematoma resulting in Paralysis of right hand side of Date: 2022.08.03 17:08:12 IST body and Mental Psychosis.
3Discharge card of M.P. Birla Hospital is also on record as Ex.P262 so the discharge summary from Getwell Hospital and Research Institute, Ex.P-63.
In Ex.P-63 which is discharge summary from Getwell Hospital and Research Institute there is a mention of an important fact that there was improvement of the power of limbs of the right hand side and, therefore, patient was shifted to ward and later on discharged in stable condition with R.T. and Foley's Catheter.
As far as evidence of Dr. R.N. Soni is concerned. He has admitted that he never treated the patient and patient was never under his treatment. Disability certificate was issued on the basis of certain X-rays and earlier prescription but that is not sufficient in my opinion to construe 60% disability sustained by the Claimant Satya Narayan Gupta.
This Court would like peg the total functional disability at 20% on account of the fact that treating Dr. Chandrashekhar Pakhmode has admitted in his cross-examination that he had not seen the patient in the year 2014 to point out progression of injured and actual status of Paralysis which was sustained by the Claimant on right hand side of the body and when this aspect is tested on the touch stone of the discharge card Ex.P-63 issued by the Get Well Hospital, Nagpur wherein it is categorically mentioned that there was improvement in the power of right hand side, then this Court will be committing a mistake in accepting 60% disability as is certified by the District Medical Board.
Shri K.K. Singh places reliance on the judgment of the Supreme Court in Signature Not Verified SAN case of Raj Kumar Vs. Ajay Kumar and Anr., (2011)1 SCC 343.
Digitally signed by MOHD TABISH KHAN Date: 2022.08.03 17:08:12 ISTTaking this judgment into consideration and also the evidence which has 4 c o me on record, this Court deems it proper to maintain the percentage of functional disability at 20% as is accepted by the learned Tribunal.
After hearing learned counsel for the parties and perusing the record, I am of the opinion that Tribunal erred in computing the income of the claimant at Rs.72,000/- (Rupees Seventy Two Thousand Only) per annum in an arbitrary and illegal manner despite presence of income tax returns Ex.P-268(c) and 269(c) as are available on record, therefore, an average income of the two years can be drawn for computing the loss of income as a save criteria. Average income will come out to Rs.1,36,389/- (Rupees One Lakh Thirty Six Thousand Three Hundred and Eighty Nine Only). When even if 20% disability as is accepted by Tribunal is taken into account then loss of income comes out to Rs.27,278/- (Rupees Twenty Seven Thousand Two Hundred and Seventy Eight Only) per annum. 40% is to be added towards future prospects, taking into consideration age of the Claimant to be 32 years as is accepted by the Tribunal. When 40% is added then total loss of annual income comes out to Rs.38,189/- (Rupees Thirty Eight Thousand One Hundred and Eighty Nine Only). In light of the law laid down by Supreme Court in case of Sarla Verma (Smt.) & Ors Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , multiplier of 16 will be applicable, taking total computation under the head of loss of future income to Rs.6,11,024/- (Rupees Six Lakh Eleven Thousand and Twenty Four Only) against to Rs.2,30,400/- (Rupees Two Lakh Thirty Thousand Four Hundred Only) awarded by learned Claims Tribunal. Thus, there will be enhancement to the tune of Rs.3,80,624/- (Rupees Three Lakh Eight Thousand Six Hundred and Twenty Four Only).
Signature Not Verified SANTribunal has awarded a sum of Rs.36,000/- (Rupees Thirty Six Digitally signed by MOHD TABISH KHAN Date: 2022.08.03 17:08:12 IST Thousand Only) treating that claimant was not in a position to work for 180 5 days. When this Court has accepted income of the claimant to be Rs.11,366/- (Rupees Eleven Thousand Three Sixty Six Only) per month on the basis of past income tax returns then loss of income will be Rs.68,196/- (Rupees Sixty Eight Thousand One Hundred and Ninety Six Only) in place of 36,000/- (Rupees Thirty Six Thousand Only) awarded by learned Claims Tribunal. Thus there will be addition of Rs.32,196/- (Rupees Thirty Two Thousand One Hundred and Ninety Six Only) under the head of loss of income.
Tribunal has awarded only a sum of Rs.9,000/- under the head of special diet whereas it has come on record that claimant required special diet atleast for a period of six months, therefore, at the rate of Rs.3,000/- (Rupees Three Thousand Only) per month claimant will be entitled to sum of Rs.15,000/- (Rupees Fifteen Thousand Only) under head of special diet in place of Rs.9,000/- (Rupees Nine Thousand Only) awarded by learned Claims Tribunal. Claims Tribunal has awarded only a sum of Rs.3600/- (Rupees Three Thousand Six Hundred Only) under the head of attendant whereas in my opinion that will be Rs.18000/- @ 3,000/- per month and thus there will be enhancement to the tune of Rs.14,400/- (Rupees Fourteen Thousand Four Hundred Only) under the head of attendant. Tribunal has awarded only a sum of Rs.20,000/- (Rupees Twenty Thousand Only) under the head of pain and suffering which is enhanced to Rs.1,00,000/- (Rupees One Lakh Thousand Only), taking into consideration nature of injuries namely head injury resulting in partial Paralysis of right side of the body, fracture of Clavicle Bone and fracture in four ribs. Thus, there will be addition of Rs.80,000/- (Rupees Eighty Signature Not Verified SAN Thousand Only) under the head of pain and suffering. Tribunal has not awarded Digitally signed by MOHD TABISH KHAN any amount under the head of transport. Taking this fact into consideration that Date: 2022.08.03 17:08:12 IST 6 Claimant was taken to Jabalpur for treatment from Satna and then to Nagpur and he too follow up treatment at Nagpur for us suitably long duration of about one year, a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) is awarded under the head of transport. Tribunal has already awarded a sum of Rs.3,00,000/- (Rupees Three Lakh Only) under the head of treatment which does not call for any interference.
Thus, claimant will be entitled to enhancement of Rs.5,41,220/- (Rupees Five Lakh Fourty One Thousand Two Hundred and Twenty Only) as per the discussion made above. This additional amount will also carry interest @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment.
In above terms, this appeal is disposed of.
Record of the Claims Tribunal be sent back.
(VIVEK AGARWAL) JUDGE Tabish Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.08.03 17:08:12 IST