Himachal Pradesh High Court
Vishal Walia vs Oriental Insurance Company And Others on 4 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No. 458 of 2012 .
Reserved on: 09.10.2023
Date of Decision : 04.11.2023
Vishal Walia ...Appellant.
of
Versus
Oriental Insurance Company and others ...Respondents.
rt
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Appellant : Mr. P.S. Goverdhan, Senior Advocate with Mr. Rakesh Thakur, Advocate.
For the Respondents : Mr. Ashwani K. Sharma, Senior Advocate with Mr. Ishan Sharma, Advocate, for respondent No.1.
None for remaining respondents.
Rakesh Kainthla, Judge The present appeal is directed against the award dated 28.7.2012, passed by the learned Motor Accident Claims Tribunal, (Fast Track Court), Solan (hereinafter referred to as 'MACT, Solan), vide which the appellant (petitioner before the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 04/11/2023 20:37:27 :::CIS 2learned MACT) was held entitled to ₹98,252/- along with interest @9% per annum from the date of filing of the petition .
till deposit of the amount. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present of appeal are that the petitioner filed a claim petition before rt learned MACT seeking compensation of ₹5,00,000/- for the injuries sustained by him in a motor vehicle accident involving the vehicles bearing registration no. HP-63-0862 and HP-14- 1581. It was asserted that the petitioner was riding the scooter.
Dinesh Kumar was sitting as a pillion rider. A truck bearing registration no. HP-63-0862 came from the opposite side and hit the scooter on the wrong side. The petitioner and the pillion rider sustained injuries. The driver of the truck ran away from the spot. Dinesh Kumar succumbed to his injuries in the hospital. The petitioner sustained multiple injuries in the accident and he remained admitted to the hospital. He remained confined to the bed for about one month including the time spent in the hospital. He spent more than ₹ 40,000/- on his treatment. An FIR No. 205 of 2004 was registered for the ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 3 commission of offences punishable under Sections 279 and 304- A IPC against the petitioner; however, it was wrongly .
manipulated by the truck driver taking advantage of the absence of the petitioner. The accident was caused due to the negligence of the driver of the truck. Hence, the petition was filed to seek the compensation mentioned above.
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3. The petition was opposed by respondents no.1 and 2 rt by filing a reply denying the contents of the claim petition. It was asserted that the petitioner and pillion rider were under the influence of liquor. The truck was on its correct side. The petitioner came to the wrong side and hit a stationary truck. The accident had taken place due to the negligence of the petitioner.
There was no negligence of the truck driver. The FIR was recorded on the basis of the facts. In the alternative, it was asserted that the vehicle was duly insured with respondent no.3- Insurance Company and compensation, if any, has to be paid by the Insurance Company. Hence, it was prayed that Insurance Company be directed to pay the same.
4. A separate reply was filed by respondent no. 3- Insurer, denying the contract between respondent no. 3 and ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 4 respondent no. 1 and taking preliminary objections regarding the driver not having a valid driving licence, vehicle not having a .
valid registration certificate, fitness certificate, route permit and other documents, respondent no.1 having no insurable interest in the vehicle, respondents no. 1 and 2 having violated the terms and conditions of the policy and the Motor Vehicles of Act and the petitioner not having come to the Tribunal with clean hands. The contents of the petition were denied on merits.
rt It was asserted that the accident occurred due to the negligence of the petitioner. The compensation sought is highly exaggerated, inflated, imaginary and without any basis. Hence, it was prayed that the petition be dismissed.
5. The following issues were framed by learned MACT on 6.5.2006:-
1. Whether the petitioner suffered injuries due to use of vehicle no. HP-63-862? OPP.
2. If Issue No.1 is proved, what amount the petitioner is entitled to by way of compensation and from whom? OPP.
3. Whether the petitioner sustained injuries due to his own negligence? OPR 1 & 2.
4. Whether respondent No.2 did not have a valid and effective driving licence? OPR-3.::: Downloaded on - 04/11/2023 20:37:27 :::CIS 5
5. Whether there did not exist a valid registration certificate, fitness certificate, route permit and other documents in respect of the vehicle at the time of the .
accident? OPR-3.
6. Whether the vehicle was being plied in violation of the terms and conditions of policy and provisions of the Motor Vehicle Act? OPR-3.
7. Relief.
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6. The parties were called upon to produce the evidence and the petitioner examined Dr. P.D. Sharma (PW-1), himself rt (PW-2), Narender Sharma (PW-3) and Prem Parkash (PW-4).
Respondent No. 1 examined herself (RW-1), Gian Singh (RW-2), and Ranjit Singh (RW-3). Respondent No. 3 examined Daleep Singh (RW-1), Mahender Lal (RW-2), Kanshi Ram (RW-3) and ASI Baldev Singh (RW-4).
7. Learned MACT held that the petitioner had sustained permanent disability to the extent of 30%. The version of the respondents that the scooter had hit the stationary truck was not believable. ASI Baldev Singh (RW-4) found that both vehicles were in motion. The petitioner was negligent to the extent of 50%. The income of the petitioner was taken as ₹3,000/- per month, loss of income due to permanent disability was taken as 30%, a multiplier of 16 was applied and future loss ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 6 of income was taken as ₹1,72,800/-. The petitioner was held entitled to an amount of ₹1,96,504/- but since his negligence .
was taken as 50%, therefore, only the amount of ₹98,252/- was awarded to him. Learned MACT answered issues no. 1 and 2 in affirmative, issue no. 3 discussed, issues no. 4 to 6 in negative and allowed the petition.
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8. Being aggrieved from the award passed by learned rt MACT, the present appeal has been filed asserting that learned MACT passed the award on surmises and conjectures. It was wrongly held that there was contributory negligence of the drivers of both vehicles. The eyewitnesses categorically deposed that the accident occurred due to the negligence of the driver of the truck. The driver did not step into the witness box and an adverse inference should have been drawn against him. The mere exhibition of the First Information Report does not absolve the respondents from discharging the onus of disproving the negligence of respondent no. 3. Learned MACT erred in rejecting the statement of the petitioner that he was earning ₹5,000/- per month. An amount of ₹10,000/- was awarded towards pain and suffering which is quite less. The cash memos worth ₹1903.5 were placed on record but the petitioner had spent more money ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 7 than that. The petitioner is entitled to a higher amount for the treatment. The petitioner had sustained permanent disability .
and he was entitled to compensation under the loss of amenities.
Two claim petitions were filed arising out of the same accident and both of them should have been tried together. Therefore, it was prayed that the present appeal be allowed and the award of passed by learned MACT be set-aside.
9. rt I have heard Mr. P.S. Goverdhan, learned Senior Counsel assisted by Mr. Rakesh Thakur, Advocate for the appellant/claimant and Mr. Ashwani K. Sharma, learned Senior Counsel assisted by Mr. Ishan Sharma, Advocate, for the respondent no.1/Insurer.
10. Mr. P.S. Goverdhan, learned Senior Counsel for the appellant/petitioner submitted that learned MACT erred in holding the petitioner to be guilty of contributory negligence.
The eyewitnesses had proved on record that the accident occurred due to the negligence of the driver of the truck. The driver of the truck did not appear in the witness box and adverse inference should have been drawn against him. The petitioner was even acquitted in the criminal case registered against him.
::: Downloaded on - 04/11/2023 20:37:27 :::CIS 8Learned MACT erred in taking the monthly income as ₹3,000/-
and not awarding any compensation for the loss of amenities.
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Hence, he prayed that the appeal be allowed and the compensation be enhanced.
11. Mr. Ashwani K. Sharma, learned Senior Counsel for respondent no.1/Insurer submitted that the learned MACT had of passed a reasoned award and no interference is required with rt the same. It was duly proved by the copy of FIR that the scooter had hit a stationary truck. The petitioner was heavily intoxicated and he did not have any documents with him. These facts show that the petitioner was negligent in driving the scooter. Learned MACT had rightly assessed the compensation. It was not proved that the petitioner's physical disability had resulted in any functional disability. The compensation was awarded in excess.
Hence, he prayed that the present appeal be dismissed.
12. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
13. The petitioner, Vishal Walia (PW-2) reiterated the contents of the petition in his proof affidavit. He stated in his ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 9 cross-examination that he was going to his home on 31.8.2004.
Dinesh Kumar was a pillion rider with him. He knew Prem .
Prakash. Narinder Sharma also knew him for a long time. He admitted that he had cited both these persons as witnesses in the present case. He admitted that an FIR was registered against him. He was holding fairs at different places in Himachal.
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14. It was not disputed in the claim petition that the rt matter was reported to the police. The petitioner also admitted in his cross-examination that an FIR was registered against him. Mohinder Lal (RW-2) proved the FIR (Ex.RW-3/A). It was recorded at the instance of Ashok Kumar. It reads that the informant was going to his home on 1.9.2004 at 9.15 PM. He saw a scooter bearing registration no. HP-14-1581 coming from Kotla Nallah at a high speed and hitting truck bearing registration no. HP-63-0862. The rider of the scooter and pillion rider sustained injuries. The truck was stationary and the accident occurred due to the negligence of the driver of the scooter. This was the earliest version of the incident and it was lodged at the instance of an independent person and not the driver of the truck. This version has to be given due weightage while assessing the evidence. It was laid down by the Hon'ble ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 10 Supreme Court in Ravi v. Badrinarayan (2011) 4 SCC 693 that the FIR is a vital document in deciding motor vehicle accident cases.
.
It was observed:-
"19. Lodging of FIR certainly proves the factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, of although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if the claimant has been able to demonstrate satisfactory and rt cogent reasons for it. There could be a variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than the delay in lodging thereof supported by cogent reasons."
15. Narinder Sharma (PW-3) stated in his proof affidavit (Ex.PW-3/A) that he saw a scooter, which was being driven slowly and towards its own side. A truck was being driven at a high speed towards the wrong side and hit the scooter. He stated in his cross-examination that the incident occurred on 31.8.2004. He denied that Vishal and the pillion rider were heavily intoxicated. He knew the petitioner for a long time because he was on visiting terms with the petitioner. He did not know that a case was registered against the petitioner regarding ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 11 this incident. The Police had made inquiries from him. He denied that he was making a false statement.
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16. Prem Prakash (PW-4) stated in his proof affidavit (Ex.PW-4/A) that he was going to Kotla Nallah on 31.8.2004.
When he reached near DC Office, a truck came at a high speed and hit the scooter. The accident occurred due to the negligence of of the driver of the truck. He stated in his cross-examination rt that he was going from the DC Office to Kotla Nallah on 31.8.2004. He did not know Vishal Walia, the petitioner. He denied that the scooter had hit the truck. The Police did not visit the spot in his presence. He volunteered to state that the Police had visited the hospital. The petitioner resides at some distance from Subji Mandi. He denied that he was making a false statement.
17. Both these persons stated that the incident had taken place on 31.8.2004, which is contrary to the FIR which was registered on 1.9.2004. Even the petitioner was admitted to the hospital on 1.9.2004 as per the discharge slip (Ex.PW-2/B). The petitioner admitted that he knew both the witnesses Narinder Sharma and Prem Prakash; however, Prem Prakash denied that ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 12 he knew the petitioner. This shows that Prem Prakash is not making the correct statement before the Court.
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18. The witnesses are not shown to have taken any steps to take the petitioner to the hospital. The petitioner was known to the witnesses and the normal reaction for them would have been to carry the injured to the hospital. They were not of examined by the Police and did not make any complaint to rt anyone that they were the eyewitnesses and their examination was necessary. They claimed that they knew the petitioner and it would have been natural for them to support the petitioner by saying that he was falsely implicated. The petitioner filed the copy of the judgment passed by learned Judicial Magistrate, First Class (JMFC), Kandaghat, Camp at Solan (Ex.PX) and the names of these witnesses are missing in the list of witnesses annexed to the judgment. They were not even examined by the petitioner in defence. Their conduct in not taking any steps to take the petitioner to the hospital or to make statements before the Police or the Criminal Court will make their presence suspect and their testimonies are not sufficient to discard the earliest version recorded in the FIR.
::: Downloaded on - 04/11/2023 20:37:27 :::CIS 1319. ASI Baldev Singh (RW-4) stated that he received intimation regarding the accident after which he visited the .
spot. He recorded the statement of Ashok Kumar and obtained the MLCs. He conducted the investigation and found that the accident had taken place due to the negligence of the driver of the scooter. He stated in his cross-examination that he had not of conducted any test regarding the alcohol with the help of an investigation kit. He did not know who had carried the injured to rt the hospital. The intimation was received that the injured was in the hospital. He did not know whether the truck had crossed the road or not. The truck was coming from the DC Office side and the scooter was being driven from Kotla Nallah. He admitted that the driver and cleaner were present on the spot at the time of his arrival. He prepared the site plan but did not bring the same. He denied that a false case was made against the driver of the scooter to save the driver of the truck. There was a mark on the right side of the truck. He admitted that there was no negligence on the part of the driver of the truck and the truck was parked towards his correct side. The scooterist had hit the stationary truck.
::: Downloaded on - 04/11/2023 20:37:27 :::CIS 1420. The statement of this witness does not show that the truck was moving as was inferred by the learned MACT; rather .
he had categorically stated in the cross-examination that the scooter had hit the stationary truck. He further stated that the truck was parked towards the correct side which means that the scooter had hit the truck towards the wrong side of the road.
of This is also as per the FIR, wherein it was mentioned that the scooter had hit the truck towards the wrong side of the road.
rt Hence, in these circumstances, the learned MACT had rightly held that the accident had occurred due to the contributory negligence of the scooterist.
21. Sh. P.S. Goverdhan, learned Senior Counsel relied upon the judgment of Hon'ble Supreme Court in Minu Rout v.
Satya Pradyumna Mohapatra, (2013) 10 SCC 695; Jiju Kuruvila v.
Kunjujamma Mohan, (2013) 9 SCC 166; Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma, (2015) 2 SCC 1801 and Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 to submit that learned MACT erred in holding the petitioner guilty of contributory negligence. All these judgments do not apply to the facts of the case.
::: Downloaded on - 04/11/2023 20:37:27 :::CIS 1522. In Minu Rout's case (supra), learned MACT had drawn the adverse inference for non-production of the FIR, however, .
in the present case, the FIR has been produced which shows that the accident had taken place due to the negligence of the petitioner. In Jiju Kuruvila's case (supra), the FIR was registered against the bus driver, a charge-sheet was also submitted of against him and it was held that there was nothing to suggest the negligence of the deceased. Since in the present case, the FIR rt has been registered against the petitioner, the Investigating Officer had also found that the scooter had hit the truck on the wrong side which corroborates the version in the FIR; therefore, this judgment will not help the petitioner. In Ashvinbhai Jayantilal Modi's case (supra), the two-wheeler was dragged to a distance of 20-25 ft. and an inference of the negligence of the truck was drawn. In the present case, there is no evidence that the scooter was dragged for some distance. Rather it was found that there was a mark on the right side of the bumper. Hence, this judgment will not help the petitioner. In Mangla Ram's case (supra) the Hon'ble Supreme Court held that the site plan does not assist in determining the negligence. In the present case, no ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 16 site plan has been produced. The respondents have relied upon the FIR and the statement of the Investigation Officer.
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23. In Sanjay Arora v. Pritam Singh, 2006 ACJ 1163 this Court held that when the scooter driver was under the influence of the liquor and had told the blatant lies in the Court, he cannot be granted any relief. It was observed:-
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24. This by itself may not be sufficient ground to hold that the claimant or the other scooter driver was rt negligent. However, when this is coupled with the fact that the claimant has tried to hide material facts, especially with regard to driving of the scooter, the number of persons on the scooter, the manner in which the accident occurred, etc., it can safely be presumed that accident had occurred due to rash and negligent driving of the scooter driver who along with pillion riders was under the influence of alcohol at the relevant time.
25. The claimant who has obviously violated sections 128 and 185 of the Motor Vehicles Act and has told blatant lies in court cannot be granted any relief. The claimant-
appellant has miserably failed to prove that the bus of the respondents was in any manner involved in the accident.
The appeal is devoid of any merit and the same is dismissed with costs quantified at ₹ 3,000."
24. In Raj Rani v. Oriental Insurance Co. Ltd., (2009) 13 SCC 654 a vehicle had hit the stationary truck, and the Hon'ble Court held that a deduction of 50% amount of the contributory negligence was justified. It was observed:-
::: Downloaded on - 04/11/2023 20:37:27 :::CIS 1717. So far as the issue of "contributory negligence" is concerned, we may notice that the Tribunal has deducted 1/3rd from the total compensation on the ground that the .
deceased had contributed to the accident. The same, we find, has been upheld by the High Court. This Court in Usha Rajkhowa v. Paramount Industries [(2009) 14 SCC 71] discussed the issue of contributory negligence noticing, inter alia, earlier decisions on the same topic. It was held that: (SCC p. 75, para 20) "20. The question of contributory negligence on the of part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveriv. Karmasey Kunvargi Tak[(2002) 6 SCC 455:
2002 SCC (Cri) 1355]. That was also a case of collision rt between a car and a truck. It was observed in SCC p. 458, para 8:
'8. ... The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as "negligence". Negligence ordinarily means a breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean a breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong".'
18. The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases before this Court. In Krishna Vishweshwar Hede v. Karnataka SRTC [(2008) 15 SCC 771: 2008 ACJ 1617] this Court upheld the judgment of the Tribunal assessing the ratio of liability at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility for the accident in the ratio of 50:50 on the driver of the bus and the appellant.::: Downloaded on - 04/11/2023 20:37:27 :::CIS 18
19. In this case, the truck was stationary. Some amount of negligence on the part of the deceased cannot be ruled out. Hence in the instant case, we find that there was .
contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50% of the total amount of loss of dependency."
25. It was submitted that the petitioner was acquitted in a criminal case by learned JMFC, which disproves the negligence of of the petitioner. This submission is not acceptable. It was laid down by this Court in H.R.T.C. vs. Jarnail Singh 2009 H.L.J. 173 rt that the findings of the Criminal Court regarding the negligence of the driver are not binding upon the MACT and the MACT has to give an independent findings regarding the negligence. It was observed:-
"9. A Division Bench of Punjab High Court in Brij Mohan Sahni v. Mohinder Kumar, 1966 ACJ 83 (Punj.), has held that the findings of the criminal Court are not relevant for the civil Court. Their Lordships have held as under:
"(12) One other matter may be noticed before we finally conclude. Mr Bedi has placed strong reliance on the order of acquittal recorded in favour of the defendant by a criminal court in a case brought against him under Sections 279/ 338, Indian Penal Code. As observed by a Full Bench of the Punjab High Court (Beckett, Abdur Rahman and Martin, JJ.) in B.N. Kashyap v. The Crown, ILR 1944 Lahore 408, the finding on certain facts by a civil Court is not relevant before the criminal Court under the provisions of Sections 40, 41, 42, 43, Indian Evidence Act, when it is called upon to give a finding on the same facts or vice versa. This ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 19 principle of law is equally applicable to the statements which were or were not made before the criminal Court. Mr Bedi has assailed the evidence of .
R.S. Batra, PW 4 and K.G. Ahuja, PW 6 on the ground that they did not appear in the criminal Court as witnesses although when they recognized the plaintiff in December 1950, they still had time to appear before the criminal Court whose judgment was delivered on 22.1.1951. We do not know whether the evidence had been actually recorded before of December 1950 and besides, this is a circumstance, which would not weigh with the decision of a civil Court.
In our opinion, the Trial Court's judgment is correct rt and on a review of the evidence should be upheld. In the result, both the appeal and the cross-objections fail and are dismissed with costs."
10. Their Lordships of the Hon'ble Supreme Court in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal, Reported in ACC on C.D. Rom=1980 ACJ 435 (SC), have held that the plea that the criminal case ended in acquittal has no bearing and was rightly rejected by the Courts below. Their Lordships have held as under:
"(2) The facts--A stage carriage belonging to the petitioner was on a trip when, after nightfall, the bus hit an overhanging high-tension wire resulting in 26 casualties of which 8 proved instantaneously fatal. A criminal case ensued but the accused driver was acquitted on the score that the tragedy that happened was an act of God. The Motor Accident Claims Tribunal which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court that despite the screams of the passengers about the dangerous overhanging wire ahead, the rash driver sped towards the lethal spot. Some lost their lives instantly; several lost their limbs likewise. The ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 20 High Court, after examining the materials, concluded:
'We, therefore, sustain the finding of the Tribunal .
that the accident had taken place due to rashness and negligence of RW 1 (driver) and consequently the appellant is vicariously liable to pay compensation to the claimant.' The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The of requirement of culpable rashness under Section 304A, Indian Penal Code is more drastic than negligence sufficient under the law of torts to create rt liability. The quantum of compensation was moderately fixed and although there was, perhaps, a case for enhancement, the High Court dismissed the cross-claims also. Being questions of fact, we are obviously unwilling to reopen the holdings on culpability and compensation."
11. The learned Single Judge of Delhi High Court in Delhi Transport Corporation v. Harbans Kaur, I (1984) ACC 415=23 (1983) DLT 152=1983 ACJ 110 (Del.), as held that the fact that the driver was acquitted by the criminal Court is no ground to hold in a civil case that he was not negligent. The learned Single Judge has held as under:
"(10) Counsel for the appellant submits that the driver was acquitted in the criminal case. This is no ground to hold in a civil case that he was not negligent. In N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal, 1980 ACJ 435 (SC), it has been held that the plea that the criminal case ended in acquittal has no bearing to reject the application for compensation under the Act."
12. The learned Single Judge of Madras High Court in Managing Director, Thanthai Periyar Trans. Corpn. Ltd. v. Ammani Ammal, II (1988) ACC 619=1989 ACJ 847 (Mad.), has held that irrespective of the order of acquittal or ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 21 conviction in a criminal case, the Tribunal is duty-bound to look into the entire evidence and come to an independent conclusion regarding the manner in which .
the vehicle was driven during the time of the accident.
Learned Single Judge held as under:
"(10) So far as the question of liability is concerned, it is seen that the evidence of RW 1 itself shows that his evidence cannot be relied on. His interested testimony cannot be made use of to hold that he was not responsible for the occurrence. The of evidence of PW 1 and PW 3 also can be looked into with respect to the occurrence in the instant case.
While taking the entire evidence thus available through PW 1 to PW 3 and the evidence of RW 1, it is rt seen that the evidence of PW 2 is to be given credence. Careful scrutiny of the evidence clearly discloses that it was only due to the rash and negligent driving of RW 1 that the occurrence took place. The judgment in Exh. Bl need not be relied on for coming to the conclusion in a claim petition filed under Section 110A of the Motor Vehicles Act. Irrespective of the order of acquittal or conviction in a criminal case, the Tribunal is duty-bound to look into the entire evidence adduced before it and come to an independent conclusion regarding the manner in which the vehicle was driven during the time of the occurrence. This Court finds that there is sufficient and adequate evidence available on record to confirm the finding of the Tribunal that it was only due to rash and negligent driving of the bus in question that the occurrence took place."
13. The learned Single Judge of the High Court of Andhra Pradesh in Andhra Pradesh State Road Transport Corpn. v. Sravaji Aruna, 1991 ACJ 542 (AP), has held that the judgment in the criminal Court is not conclusive. The learned Single Judge has held as under:
"In an accident that occurred on 16.5.1981 at Gudipet between milestones 241/6 and 241/8, the ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 22 appellant Corporation's bus No. APZ 7304 proceeding from Mancherial dashed against two persons by the name Venkatarao, scooter driver and .
Tirupathirao, the pillion rider, who died thereat.
The claimants are the widow and children of the deceased Tirupathirao and they laid the claim in a sum of Rs. 1,56,900. The Claims Tribunal below awarded a sum of Rs. 1,00,000 as against which the appeal has been filed. The trump card for the appellants is the judgment of the criminal Court in of C.C. No. 391 of 1981 dated 13.7.1982 on the file of the Judicial First Class Magistrate, Luxesettipet, in which the driver of the bus was acquitted of the charge under Section 304A, Indian Penal Code. It rt was marked as Exh. B2 in this case. Mr Harinath, learned Standing Counsel for the Corporation, placing reliance thereon has contended that it was the prosecution case that the deceased was attempting to overtake the bus which was going ahead of the scooter, they dashed against a stationed jeep bearing No. APH 1326 fell down and came under the wheel of the bus, as a result, the accident had occurred and it is not on account of the driver of the bus, but on account of the rash and negligent driving of the deceased. Therefore, the Tribunal is unjustified in awarding damages and the case should have been dismissed on the ground that the driver of the bus has not been established to have been driving the bus rashly and negligently. It is also contended that the judgment of the criminal Court recording the acquittal of the accused (driver) for the offence under Section 304A, of the Indian Penal Code has become final. The question, therefore, is whether the Tribunal is justified in not giving primacy to the findings recorded in that regard. It is no doubt true that in the above criminal case, the criminal Court acquitted the driver for the offence under Section 304A, Indian Penal Code. In that, the case set up by ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 23 the prosecution was that the deceased was trying to overtake the bus. On the other hand, the specific case now set up and the evidence adduced in proof .
thereof is that both the deceased were going on the scooter and the Corporation bus was coming behind and hit against them and it was on account of the rash and negligent driving of the driver of the bus and as a result of the hit, both the deceased fell under the wheels of the bus. This evidence was accepted and on the basis of the evidence, the of Tribunal below was not inclined to place reliance on the findings recorded by the criminal court in the above criminal case. It is now well settled that the judgment in the criminal Court is not conclusive. It rt is open to the claimants to adduce evidence aliunde dehors the finding that the accident had occurred as a result of the rash and negligent driving of the driver of the bus. In this regard, the evidence adduced is that of PWs 1 and 2 who are the direct witnesses to the occurrence. It is no doubt true as found in the judgment that the F.I.R. was registered on the basis of the statement made by the first informant who claims to be the direct witness. The evidence of PWs 1 and 2 was considered by the Tribunal below and accepting their evidence, the claimant's claim was accepted. It is no doubt true that PWs 1 and 2 were not examined in the criminal Court. But their non-examination in the criminal Court does not automatically disentitle the evidence of these witnesses who gave evidence here as direct witnesses, to be rejected outright. It is only a circumstance to be taken into account. But that circumstance alone is not sufficient to reject the evidence in toto. The evidence on record is clear that they have no interest in the deceased and they are the direct witnesses and their evidence is cogent and convincing. Once their evidence is accepted as trustworthy and acceptable, then merely because they were not examined in the criminal Court is not ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 24 a ground to throw their evidence overboard. Obviously, the Tribunal below considered from this perspective and was not inclined to give primacy to .
the judgment acquitting the accused (driver) under Section 304A of the Indian Penal Code. Considered from this perspective, I hold that the Tribunal below has not committed any error in recording that finding, warranting interference."
14. A Division Bench of the High Court of Calcutta in Banya Sarkar v. Sipra Guha Roy, I (1993) ACC 290 (DB)=1992 ACJ of 572 (Cal.), has held that standard of proof in a criminal Court and civil Court is not the same. Their Lordships have held as under:
rt "(9) In our view it was not necessary on the part of the Claims Tribunal to take into consideration the police report and the deposition recorded by the police. The accused may be discharged or acquitted in a criminal case but that does not show that the accident did not take place or that cannot have any repercussion on the finding of the Claims Tribunal on the basis of the evidence and documents on record. The standard of proof in a criminal Court and civil Court is not the same. In the instant case, the appellant failed to prove the fact that the said bus did not travel the area where the accident took place as per the stand taken."
15. The learned Single Judge of the High Court of Rajasthan in Nathu Singh Verma v. Behari Dass, 1993 ACJ 1233 (Raj.), has held that the acquittal of the driver of the offending vehicle by the criminal Court is not binding in claim proceedings. The learned Single Judge has held as under:
"(6) The learned Counsel for the appellants has contended that the acquittal of the vehicle driver by the criminal Court is not binding in claims proceedings and the evidence which had been led in these proceedings can be said to be relevant for the ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 25 purpose of arriving at a finding in these proceedings. For this proposition, reliance has been placed on Mahavir Pershad v. Municipal Corporation .
of Delhi, 1975 ACJ 190 (Delhi). This is not contested by the learned Counsel for the respondents and it can be said that the evidence in this particular case is to be looked into in order to decide as to how the accident occurred and who could be made liable for the same."
16. The learned Single Judge of the High Court of of Rajasthan in Chotu Lal v. Chamali Bai, II (1998) ACC 284=1997 ACJ 508 (Raj.), has held that the claim petition cannot fail merely because there has been acquittal of the driver in the criminal case. The learned Single Judge has rt held as under:
"(5) It is a well-established legal principle that findings given in the criminal Court judgment cannot be taken aid and cannot be taken advantage of in the civil or compensation claim matter.
Therefore, the claim petition cannot fail merely because there has been an acquittal in the criminal case. The plea that the criminal case ended in acquittal and, therefore, compensation claim must follow suit cannot be accepted and as such rejected."
17. Learned Single Judge of the High Court of Madhya Pradesh in Dharamvir Singh Punjabi v. Raghuvar, II (1999) ACC 416=1998 ACJ 1292 (MP), has held that the acquittal of the driver in the criminal trial is not binding upon the Claims Tribunals. The learned Single Judge has held as under:
"Attention of this Court was drawn to the fact that the driver of the tractor was tried for a criminal offence under Section 304A, Indian Penal Code and that case ended in acquittal in S.T. No. 131 of 1989. The judgment of S.T. No. 131 of 1989 is filed on record in which the benefit of the doubt has been ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 26 given to the accused in view of the fact that Sarupibai fell down from the tractor that could be by her own mistake, drowsiness or inadvertence.
.
The findings recorded in the said Sessions trial, however, were not assailed in appeal and it had become final. The findings recorded in the said Sessions trial only have given benefit of doubt to the accused. That is not binding upon the Claims Tribunal to accept the same as such. The Claims Tribunal has assessed the facts and the evidence led of in the claim case on their merits and came to the conclusion that rash and negligent driving by the driver was proved on record."
26. Therefore, the acquittal by the Criminal Court will rt not help the petitioner.
27. Thus, the learned MACT had rightly held the petitioner to be guilty of contributory negligence and as per the judgment of the Hon'ble Supreme Court, the deduction of 50% amount is justified on account of the contributory negligence of the petitioner.
28. Learned MACT had taken the income of the petitioner as ₹3,000/- per month and discarded the version of the petitioner that he was earning ₹5,000/-per month. The petitioner stated in his cross-examination that he participates in fairs in various places in Himachal. This means that the petitioner did not have a steady business and his work was ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 27 seasonal, dependent upon the fairs. The accident had taken place in the year 2004 and the income of ₹50,000/- to .
₹60,000/- carried the income tax @10% at that time. Therefore, the petitioner was under an obligation to file the income tax return had his income been ₹5,000/- per month. The minimum wages in Himachal Pradesh were enhanced in 2009 from ₹80/-
of to ₹100/- per day, which means that the minimum wages were less than ₹80/- per day in the year 2004, the date of the rt accident. It was laid down by the Hon'ble High Court in Oriental Insurance Company Versus Kanta Thakur 2021 Law Suit (HP) 721 that in the absence of any proof of income, the income has to be assessed based on the minimum wages. It was observed:
"24. It has been repeatedly held by Hon'ble Apex Court and this court that in cases, where no specific evidence is available on record with regard to the monthly income of the injured/deceased, courts having regard to the nature of the job of the injured/deceased, should assess income as per minimum wages payable at that time in terms of the Minimum Wages Act. This court in Reliance General Insurance Company Limited vs. Ishwar Singh 2018 Latest HLJ 750 HP has held that in the absence of specific evidence, if any, led on record by the claimant(s) with regard to income, the tribunal should assess the income on the basis of minimum wages prevalent at the time of the accident in the Government sector."::: Downloaded on - 04/11/2023 20:37:27 :::CIS 28
29. Hence, the income of the petitioner was to be taken as ₹80/- per day or ₹2400/- per month.
.
30. The petitioner stated that he was unable to work for about one month; therefore, he is entitled to ₹2400/- towards the actual loss of income.
of
31. Dr P.D. Sharma (PW-1) stated that the petitioner was found to be locomotor impaired and his disability was 30% with rt respect to his upper limb. The disability certificate (Ex.PW-1/A) shows that there was traumatic stiffness MC and IP. The discharge slip (Ex.PW-2/B) shows that there was a fracture of the phalanx of the index finger and head injuries. It is not shown that the petitioner was unable to take care of himself. The petitioner did not state in his proof affidavit that he was unable to take care of himself or had engaged any person as an attendant. He only mentioned that he had a permanent disability of the right hand. Even if some attendant had taken care of him, that would not have been for a whole period of one month. Keeping in view the nature of the injuries, it can be safely held based on guesswork that some attendant attended to ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 29 the petitioner for about 10 days. Hence, an amount of ₹800/- is awarded towards the cost of the attendant.
.
32. The petitioner has admittedly produced the bills worth ₹1,904/-. He claimed that he had spent much more money than what was mentioned in the bill, however, the discharge slip shows that the medicines were prescribed to the of petitioner and these medicines have been duly reflected in the rt bills produced by him. He claimed that he had spent money on the X-ray but no receipt of the bills issued by the hospital was produced by him. Therefore, the learned MACT had rightly awarded an amount of ₹1904/- to the petitioner towards the cost of treatment.
33. The petitioner had sustained 30% permanent disability with reference to the upper limb. The Medical Officer has not stated the extent of functional disability. It was laid down by the Hon'ble Supreme Court in National Insurance Company vs. Masabir Sahoo 2007(2) SCC 349 that loss of earning capacity is not a substitute for the percentage of physical disability. It is one of the factors taken into consideration.
Similarly, it was held by the Hon'ble High Court in Swaran Singh ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 30 vs. Achhar Singh 2010 HLJ 482 that the percentage of disability cannot be equated to the loss of earning capacity. It was .
observed:
"7. Percentage of disability suffered by an injured does not necessarily translate to the same amount of percentage in terms of loss of earning capacity. A person may be doing a desk job. Both his legs may be amputated.
of His physical disability may be assessed at 80-90% but his loss of earning capacity, if he is in organized employment, maybe nil because he continues to work in the same job. However, when a person who is trained to rt do a particular type of work suffers an injury whereby he cannot perform the work, which he is trained to do; even a small disability may translate to a much higher loss in earning capacity. One can give the example of a painter where even the loss of two fingers may virtually reduce his earning capacity to nil. The Tribunals cannot follow a pedantic and just translate the percentage of disability into the equivalent loss of earning capacity. What is the loss in earning capacity must be decided keeping in view the nature of injuries as well as the nature of the job, which the claimant was performing. There can be no exact formula for assessing the loss of earning capacity but the Tribunal must while awarding just compensation take a reasonable and pragmatic view of the matter."
34. This position was reiterated in Chandramma v. NCC Ltd., (2023) 2 SCC 144: 2022 SCC OnLine SC 1700 wherein it was observed at page 152:
24. There is no dispute that the appellant suffered from disablement of a permanent nature. The disablement has incapacitated her from doing the work which she was capable of doing. The said work was of that of a labourer.::: Downloaded on - 04/11/2023 20:37:27 :::CIS 31
Therefore, the Commissioner for Workmen's Compensation was wrong in holding that the disability of the appellant will have to be treated as 20% disability as .
the work of an appellant involves lifting heavy weights and the appellant has been rendered incapable of doing such work due to her disability. Hence, the case of the appellant will be covered by the definition of "total disablement", therefore, being 100% disabled.
25. Thus, it is an admitted position that the appellant can no longer pursue the work of a labourer. This Court of in Raj Kumar v. Ajay Kumar [Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] held that : (SCC pp. 350-51, paras 13-15) rt"13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be a hundred per cent, ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 32 if he is neither able to drive nor do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss .
of employment and he may still continue as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant of continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in rt service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be duplication in the award of compensation. Be that as it may."
26. Similarly, in K. Janardhan v. United India Insurance Co. Ltd. [K. Janardhan v. United India Insurance Co. Ltd., (2008) 8 SCC 518 : (2008) 2 SCC (L&S) 733], this Court held that:
"The loss of earning capacity in the case of tanker driver who had met with an accident, and lost one of ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 33 his legs due to amputation. The Commissioner for Workmen's Compensation assessed the functional disability of the tanker driver as 100 % and awarded .
compensation on that basis. The High Court, however, referred to Schedule 1 to the Workmen's Compensation Act, 1923, and held that the loss of a leg on amputation resulted in only a 60% loss of earning capacity. This Court set aside the judgment of the High Court, and held that since the workman could no longer earn his living as a tanker driver due to the loss of of one leg, the functional disability had to be assessed as 100%."
27. This Court in S. Suresh v. Oriental Insurance Co. Ltd. [S. Suresh v. Oriental Insurance Co. Ltd., (2010) 13 SCC rt 777 : (2011) 1 SCC (Civ) 807 : (2011) 2 SCC (Cri) 423], held that : (SCC p. 780, para 9) "9. We are of the opinion that on account of amputation of his right leg below the knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement.
Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act, 1988."
(emphasis supplied)
35. It was laid down by the Hon'ble Supreme Court in Jithendran versus New India Assurance Co Ltd & Anr. (2021) 10 S.C.R. 147, that the Tribunal has to determine the activities which the claimant could carry on, despite the permanent disability, to determine the profession and the age of the claimant and determine whether the claimant could carry out some activities if so the impact on the activities. It was observed:-
::: Downloaded on - 04/11/2023 20:37:27 :::CIS 34"[14] The test for determining the effect of permanent disability on future earning capacity involves the following 3 steps as was laid down in Raj Kumar (Ibid) and .
reiterated by Justice Indu Malhotra in Chanappa Nagappa Muchalagoda vs. Divisional Manager, New India Insurance Company Limited, 2020 1 SCC 796.
"13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the of permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to rt ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
[15] The above yardstick to be adopted in such exigencies was reaffirmed by Justice S. Ravindra Bhat in Pappu Deo Yadav vs. Naresh Kumar and others,2020 SCCOnline 752. The following was set out by the three Judges' Bench:
"13. The factual narrative discloses that the appellant, a 20-year-old data entry operator (who had studied up to 12th standard) incurred permanent disability, i.e. loss of his right hand (which was amputated). The disability was assessed to be 89%. However, the tribunal and the High Court re-assessed the disability to be only 45%, on ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 35 the assumption that the assessment for compensation was to be on a different basis, as the injury entailed a loss of only one arm. This .
approach, in the opinion of this court, is completely mechanical and entirely ignores realities. Whilst it is true that assessment of an injury of one limb or to one part may not entail permanent injury to the whole body, the inquiry, which the court has to conduct is the resultant loss which the injury entails to the earning or income-generating of capacity of the claimant. Thus, the loss of one leg to someone carrying on a vocation such as driving or something that entails walking or constant mobility results in severe income-generating rt impairment or its extinguishment altogether. Likewise, for one involved in a job like a carpenter or a hairdresser, or a machinist, and an experienced one at that, the loss of an arm, (more so a functional arm) leads to a near extinction of income generation. If the age of the victim is beyond 40, the scope of rehabilitation too diminishes. These individual factors are of crucial importance which are to be borne in mind while determining the extent of permanent disablement, for the purpose of assessment of loss of earning capacity."
"20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income-earning impairment upon the appellant. As a typist/data entry operator, the full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some 'proportionate' principle, ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 36 which was illogical and unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury on the income-
.
generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account are to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income-
of generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training rt (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case."
36. The petitioner was participating in the fairs. He had only suffered a fracture of the phalanx of his index finger. It is not shown that this disability had affected the income of the petitioner. The petitioner nowhere stated in his proof affidavit that he was unable to hold the fair. He only stated in his proof affidavit that he was unable to work with his right hand. This is not correct as the disability certificate only shows traumatic stiffness and not any amputation. Therefore, the functional disability cannot be taken as 30% but is taken as 15% and the petitioner will suffer a monthly loss of ₹360/-.
::: Downloaded on - 04/11/2023 20:37:27 :::CIS 3737. The petitioner was aged 30 years as per the discharge slip. Learned MACT had taken his age as 31 years and applied a .
multiplier of 16. The petitioner claimed his age as 32 years on 28.6.2006. He has not filed any document to prove his age, hence his age is taken as 30 years as per the discharge slip and the multiplier of 17 will be applicable as per the judgment of the of Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation 2009 (6) SCC 121.
rt
38. It was laid down by the Hon'ble Supreme Court in National Insurance Company Ltd. Versus Pranay Kumar Sethi (2017) 16 SCC 680 that the income has to be increased by 40% towards the future prospects where the claimant is a self-
employed person and below the age of 40 years. Therefore, income has to be increased by ₹144/- and the loss of future income has to be determined on an income of ₹504/-. Thus, the petitioner will be entitled to ₹504 x 17 x 12 = ₹ 1,02,816/-
towards the loss of future income.
39. Learned MACT awarded ₹10,000/- towards discomfort and inconvenience. The learned MACT had not awarded the amount towards loss of amenities but there is no ::: Downloaded on - 04/11/2023 20:37:27 :::CIS 38 head of future discomfort and inconvenience. Keeping in view the extent of disability, an amount of ₹30,000/- is awarded .
towards the loss of amenities.
40. Learned MACT awarded ₹ 10,000/- towards the pain and suffering. Keeping in view the nature of injuries, the amount of ₹30,000/- in 2004 is reasonable and the same is awarded to of the petitioners.
41. rt The petitioner would have taken extra diet and nutrition. Learned MACT had not awarded any amount towards the same. Hence, an amount of ₹2,000/- is awarded towards the extra diet and nutrition.
42. Thus, the petitioner is entitled to the following amount:-
(i) Actual Loss of income = ₹ 2,400/-
(ii) Cost of Attendant = ₹ 800/-
(iii) Cost of treatment = ₹ 1,904/-
(iv) Loss of future income = ₹1,02,816/-
(v) Loss of amenities = ₹ 30,000/-
(vi) Pain and sufferings = ₹ 30,000/-
(vi) Extra diet and nutrition = ₹ 2,000/-
___________
Total amount = ₹ 1,69,920/-
___________
::: Downloaded on - 04/11/2023 20:37:27 :::CIS
39
43. Since the petitioner was guilty of contributory negligence; hence, he is entitled to ₹84,960/-. The learned .
tribunal has already awarded ₹98,252/- which is more than the amount to which the petitioner is entitled. Hence, the petitioner is not entitled to any enhancement.
44. No other point was urged.
of Final order:
45. In view of the above, the present appeal fails and the rt same is dismissed, so also pending miscellaneous application(s), if any.
(Rakesh Kainthla) Judge 4th November, 2023 (Chander) ::: Downloaded on - 04/11/2023 20:37:27 :::CIS