Rajasthan High Court - Jaipur
United India Insurance Co Ltd vs Vijay Kumar & Anr on 4 May, 2011
THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
JUDGMENT
(1) UNITED INDIA INSURANCE CO. LTD. VS. VIJAY KUMAR AND ANR.
( S.B.Civil Misc. Appeal No. 202/2010)
(2) UNITED INDIA INSURANCE CO. LTD. VS. VIJAY KUMAR AND ANR.
( Cross Objection No.46/2010)
In
S.B.Civil Misc. Appeal No. 202/2010
Appeal Under Section 173 of the Motor Vehicle Act, 1989 and Cross Objection under Order 41 Rule 22 CPC against the Award dated 30.9.2009 passed by Judge, Motor Accident Claims Tribunal, Jaipur in Claim Case No. 1620/2007.
Date of Order : May 4, 2011
PRESENT
HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA
Mr. Abhay Jain and Mrs. Parinitoo Jain for the appellant
Mr. J.P. Goyal for the claimant
Mr. Ganesh Joshi for the respondent No. 2 (driver/owner)
---
REPORTABLE BY THE COURT :
Since the appeal and the cross objection relate to award dated 30.9.2009 passed by Judge, Motor Accident Claims Tribunal, Jaipur in Claim Case No. 1620/2007, they are being disposed by this common judgment.
2. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary.
3. Facts in brief are that on 2.5.2007 at about 7 a.m. Vijay Kumar was going on his Hero Puch bearing No. RJ 14 32 M 4833 from his house to the High Court for duty. When he was nearing Ambedkar Circle after crossing Janpath, opposite LIC office then Santro Car bearing No. DL 3 C AB 4515 hit the claimant from back resulted in accident. The FIR bearing No. 115/2007 was lodged before the Police Station Jyoti Nagar Jaipur on 18.5.2007 stating therein that he received injuries on his body and his right hand. The passerby colleagues took him to the SMS Hjospital for treatment where he was admitted on 2.5.2007 and discharged on 9.5.2007. The FIR was lodged on 18.5.2007 on account of busy in the treatment. The Medical Board issued a disability certificate on 11.2.2008 for 18.68 % disablement due to operation of Ulna bone of right hand. The claimant filed claim petition before the MACT.
4. The defendant No.1 owner/ driver of the Santro Car did not file any reply to the claim petition before the Tribunal. The Insurance Company filed a detailed reply raising preliminary objections before the MACT. The FIR was lodged after 16 days of the accident and no evidence was brought on record that why he has not lodge the report in these 16 days. The claim petition has been filed merely to get the compensation based on surmises and conjectures. It was further stated in the written statement that the claimant was required to prove that the driver/ owner of the car was holding the valid driving license and as per the insurance policy, the insurance company was not informed about the accident. It was further stated that the claimant was required to prove that at the time of accident he was holding a valid license.
5. While deciding the issues l and 2 the MACT has considered the statement of Vijay Kumar that he was not rash and negligent in driving rather the car driver was rash and negligent in driving and therefore hit the claimant from the back as a result of which the claimant got some injuries and his vehicle was also damaged hence the accident occurred due to mistake of the car driver. On the FIR lodged by the claimant challan was filed before the ACJM No.4 Jaipur on 26.5.2007 in which charge under sections 279 and 339 of IPC was framed against the driver/owner. In respect of issues l and 2 it was stated by the defendant insurance company that the claimant himself was rash and negligent in driving. The MACT after considering the evidence of AW 1 claimant and reply filed by the defendant company held that the accident occurred due to the rash and negligent driving of the Santro Car because of which the claimant got injuries on his body and therefore the driver and owner of the car was held responsible for the accident. While deciding the Issue 4 the MACT has held that the claimant was entitled to compensation of Rs. 3,70,806 out of which Rs. 12,600 has been awarded in respect of loss of income and Rs. 13,000 in respect of treatment and healthy food etc. and Rs. 3,45,206 in respect of loss of future income.
6. The learned counsel for the appellant has argued that the MACT has committed serious error by not deciding the preliminary objections raised by the appellant and has simply decided the same against the appellant without assigning any reason. The MACT has committed an error in not appreciating and considering the fact that he FIR was lodged by the claimant himself after 16 days after the accident which apparently appears to be a connivance and after thought. His colleague who took him to SMS Ghospital, also did not lodge the FIR on his behalf. The claimant was discharged on 9.5.2007 still he has lodged the FIR on 18.5.2007. The learned counsel argued that the alleged accident and the FIR seems to be an after thought just to take compensation. The claimant has not produced any proof regarding his age and medical bills after 9.8.2007 have not been produced. Hence the multiplier applied in absence of birth certificate by the MACT cannot be said to be correct and hence the amount of compensation calculated as per Second Schedule deserves to be set aside. It was argued that the salary of the claimant at the time of accident was Rs. 14000 and on the date of award his salary was Rs. 28,000/- i.e. the claimant is drawing double the salary today than he was drawing on the date of accident. This clearly shows that after the accident there had been increase in his income and no loss at all has occurred to him as far as his future income is concerned. While awarding compensation the MACT has not given any deduction for the expenses and also has taken the entire salary for calculating the compensation. The award of the MACT deserves to be set aside because of the fact that the claimant is a Government servant i.e. Court Master in the High Court, whose salary has actually doubled after the accident and there is no loss for future promotion also it is not the case of the claimant that had he worked somewhere else he would not have earned Rs. 14,000/- and Rs.28000/- salary. Therefore awarding compensation without considering these three aspects i.e. increased salary, no impediment in future promotion and continuity in service is unjustified which needs to be quashed and set aside. The learned counsel for the appellant placed reliance on Tejinder Singh Gujral vs. Inderjeet Singh and others (2007) (1) SCC 508.
7. The learned counsel for the claimant opposed the arguments raised by the learned counsel for the appellant and has stated that the award passed by the MACT is just and proper and it does not call for any interference by this court in the appeal filed by the insurance company. On the other hand the claimant has also filed cross objection after service of notice of this appeal. In the cross objection it was submitted that the MACT while deciding the issue of loss of income to the claimant only granted Rs. 12,600/- for 27 days on account of privilege leave according to the salary used to be drawn by him on the date of accident, while the claimant has claimed Rs. 1,68,096/-. It was susbmitted that looking to the loss incurred by the claimant the award of Rs. 12,600 cannot be said to be justified. The claimant remained under treatment continuously for one year and had to incur expenditure on visitors who used to have care and look after him, as such the claimant prayed for granting Rs. 40,000 but the MACT has only awarded a sum of Rs. 13,000/- on this head. The MACT has not considered that the claimant suffered 18.68 % disability which is proved by the disability certificate Ex. 13 and on the date of accident, determined the age above 50 years while as per the document produced on record, the claimant was about 50 years of age on the date of accident, therefore while determining the loss of income due to incapacity held by him ought to have been assessed by applying multiplier of 13 below the age of 50 years and should have determined the loss of income on the income derived by him as Rs. 23,140/- as has ben stated by him, therefore the assessment of the income derived under the said head Rs. 3,45,206/- cannot be said to be justified. The MACT has intermixed with the determination of loss of income due to incapacity with the physical and mental agony, which he would have to suffer for whole of his future life for which nothing has been awarded in the award. The MACT has granted 6% interest on the said amount from the date of filing of the claim petition which is at lower side and should have been atleast 12 % per annum.
8. I have considered the arguments of both the learned counsel for the parties on the appeal filed by the insurance company and on the cross objection filed by the claimant.
9. Before proceeding further it would be necessary to have a look at the judgment of the the Apex Court in Raj Kumar v. Ajay Kumar,(2011) 1 SCC 343, wherein following principles have been enunciated :
i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
10. After the insertion of Section 163-A in the Act (with effect from 14-11-1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the Second Schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation:
5. Disability in non-fatal accidents. The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:
Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks. PLUS either of the following:
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under Item (a) above.
Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmens Compensation Act, 1923.
(emphasis supplied)
11. In the case of Raj Kumar v. Ajay Kumar,(2011) 1 SCC 343 regarding assessment of compensation in paras 24,25, 26, 27, 28 and 29, observed as under :
24. In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons. Firstly, though the accident occurred in Delhi and the injured claimant was treated in a Delhi hospital after the accident, as he hailed from Chirori Mandi in the neighbouring district of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the treatment in the place where he resided. Secondly, the certificate has been issued by the Chief Medical Officer, Ghaziabad, on the assessment made by the Medical Board which also consisted of an orthopaedic surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate.
25. The Tribunal has proceeded on the basis that the permanent disability of the injured claimant was 45% and the loss of his future earning capacity was also 45%. The Tribunal overlooked the fact that the disability certificate referred to 45% disability with reference to the left lower limb and not in regard to the entire body. The said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent 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 decades, on the facts and circumstances, to do complete justice, we propose to assess the permanent functional disability of the body as 25% and the loss of future earning capacity as 20%.
26. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of `3000 per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at `900 per month as the minimum wage was `891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least `1500 per month (at the rate of `50 per day) or `18,000 per annum, even in the absence of specific documentary evidence regarding income.
27. In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to the claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore, there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses.
28. As the income of the appellant is assessed at `18,000 per annum, the loss of earning due to functional disability would be 20% of `18,000 which is `3600 per annum. As the age of the appellant at the time of the accident was 25, the multiplier applicable would be 18. Therefore, the loss of future earnings would be `3600 x 18 = `64,800 (as against `55,080 determined by the Tribunal). We are also of the view that the loss of earning during the period of treatment (1-10-1991 to 16-6-1992) should be `12,750 at the rate of `1500 for eight-and-half months instead of `3600 determined by the Tribunal. The increase under the two heads is rounded off to `20,000.
29. In view of the above, we allow this appeal in part and increase the compensation by `20,000 which shall carry interest at the rate awarded by the Tribunal, from the date of petition to the date of payment.
12. Now I may consider the findings of the MACT and the arguments of the learned counsel for the appellant and the arguments of the claimant regarding grant of compensation.
13. First I my consider the certificate on permanent disablement Ex. 13 issued bythe Jaipuria Hospital. The extract of the certificate reads as under :
On taking the relevant injury report, medical record including X-ray plates and detailed clinical examination of the injury into consideration. We the members of medical board are of opinion that the injury/ injuries which the injured suffered by reason of the accident, involve and MLC x-ray reports SMS Hospital Jaipur.
(a) Operation notes :- ORIF with TBW Clecrnon SCB on 8.5.07 Ortho Unit III SMS Hospital Jaipur.
(b) Destruction or permanent impairing of the power of nay member or joint, ( mention if any ) Restricted movemenmts of WRIST & ELBOW ( R ) wrist Dorsiflext Palmar Flex Anc. 0-120 degree Loss ;25 % Radial Ulnar dev. 0- 40 27.3 degree 7.84 % ( R ) Elbow Flexion Ext Arc 0- 100 degree 33,4 Sap. Pronation 0-110 degree 38.9 36.15x 0.30 = 10.84% (d ) The other material observation having adverse bearing on the life expectancy or normal functioning of the body/limb injured/ affected.
Difficulty in Lifting overhead objects, putting on garments, eating Indian style and writing Total permanent physical impairment : 7.84+ 10.84 18.68 %
14. Thus it is clear that the claimant is having difficulty in lifting overhead objects, putting on garments, eating Indian style and writing. The permanent disablement suffered by the claimant is not related to official work and as per the doctors report it is difficulty in lifting overhead objects, putting on garments, eating Indian style and writing. Thus it is clear that not only about the putting of garments and eating it is also difficult for him to lifting overhead objects. In both way in his personal life or in the official duty he suffered on account of accident permanent disability to the extent of 18.68 %, as per the opinion of the doctors who issued the certificate. The MACT in the award regarding disability certificate observed as under :
????? ?? ??????? ??? ??? ?? ?? ???? ?? ???????? ??? ???? ???? ??? ?? ???? ??? ??? ???????? ?? ??? ? ??? ?? ??? ?? ? ???? ?? ???? ???? ??? ?? ???? ??? ???????? ??? ?? ???? ?? ???? ???? ??? ????? , ????? ?? ??????, ???? ???? ???, ????? ??? ????? ????? ???? ??? ??????? ???? ??
????? ?? ????? ??????, ???????, ????? ????????? ?????? ???? ???????? 13 ????????? ???? ??????? 14 , ??? ????????? ??????? 9 . ???? ?? ??????? ??????? 10 . ??????? ???????? 15, 17, ??? ?? ?? ??, ????? ?????? ????? ?? ??? 50 ???? ???? ????? ??? ????? ?? ???? ????, ???????? ??????? ?? ?????? ???? ?? ?? ???? ???????? ???? ??? ?????????? ??? ??? ???? ??? ??? ??: ????????? ??????????? ?? ?????? ?? ????? ?? ??? ???? ???????? 50-51 ???? ???? ????? ???? ???? ?? ??.??.???? ?? ??????? ??????? ?? ?????? ???? ??? ???? ?? ??? 11 ?? ???? ???? ?? ??: 11 ?? ?????? ???? ???? ????? ?? ???? ???????? ??? ????? ????? ?? ???? ??? ????? ????????? ?? ???? ????? ?????? ??? ??? ?? ???? ?? ?? ???? ? ???? ?? ???? ????? ??????? ? ?????? ???? ?? ??? ??????????? ?????? ???? ???? ?? ????? ?? ????? ?? ??????? ?????? ?? ???????? 14000 ????? ????? ???? ????? ?? ?? ???
14000x12x11= 18,48000/- ?????
18,48000 ?? 18.68 ??????? = 3,45,206/-?????
15. I have gone through the findings of the MACT in regard to award of compensation on account of loss of future income on account of permanent disability. I have also gone through the salary certificate of May 2009 showing gross pay of the claimant Rs. 23140 per month, which has been marked as Ex. 41 by the MACT. On the basis of the documents enclosed by the claimant the MACT rightly assessed the age of the claimant and rightly applied the multiplier of 11 as per the second schedule attached to the Motor Vehicles Act. The MACT in my view rightly computed the monthly income of the claimant to be Rs. 14,000/- per month at the time of accident. After applying the multiplier of 11 to the income of 14,000/- per month the MACT came to the conclusion that the claimant is entitled for disability of 18.68 % an amount of Rs. 3,45,206/-. This amount cannot be said to be excessive looking to the fact that not only in the official work but in his personal life the claimant is not in a position to lifting overhead objects with difficulty and also not in a position to putting garments and eating in Indian style and writing. Thus the findings arrived at by the MACT for computation of income on 18.68 % disability for physical and mental agony is just and proper.
16. I have also gone through the findings of the MACT for computing loss of income in the amount of Rs. 12,600/-. The claimant enclosed order dated 20.7.2007 Ex. 42 showing sanction of 57 days leave issued by the Deputy Registrar, Rajasthan High Court. The MACT in its finding only computed the income of 27 days.
17. I have also gone through the findings of the MACT for granting medical expenses, nutrition food etc. in the amount of Rs. 13,000/-. This amount is also on the lower side. But looking to the fact that the on all heads the MACT awarded in total Rs. 3,70,806 with an interest of 6 per cent per annum is sufficient. Thus in my view the findings arrived at by the MACT stands confirmed for awarding of compensation in the amount of Rs. 3,70,806/- to the claimant. Looking to the facts and circumstances of the case I am not disturbing the award of Rs. 3,70,806 to the claimant and hence the cross objections filed by the claimant also stands rejected.
18. In view of the above the misc. appeal No.202 of 2010 filed by the Insurance Company stands rejected and the cross objection 46 of 2010 filed by the claimant also stands rejected and the award dated 30.9.2009 passed in claim case No. 1620 of 2008 stands confirmed.
19. At this stage, Mr. J.P. Goyal, learned counsel for the claimant submitted that the insurance company has not complied with the order of this court dated 25.1.2011. The insurance company is directed to comply with the order dated 25.1.2011 and shall disburse the award money to the claimant within a period of one month. The stay application also stands rejected. The parties are directed to bear their own costs.
(MAHESH CHANDRA SHARMA )J. OPPareek/ All corrections made in the judgment/order have been incorporated in the judgment/ order being emailed (O P Pareek) PS-cum JW