Madhya Pradesh High Court
Hanif Khan vs Gaurav Kushwah on 31 October, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDOR E
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No.790/2017
BETWEEN:-
HANIF KHAN S/O ISMILE KHAN, AGED ABOUT 55 YEARS,
OCCUPATION: GOVT. SERVICE R/O D.R.P. LINE, DHAR /
HALMUKAM-NAHARSHAH NAGAR, KHAJRANA, INDORE
(MADHYA PRADESH)
.....APPELLANT
(SHRI ARUN KUMAR TRIPATHI, LEARNED COUNSEL FOR THE
APPELLANT)
AND
1. GAURAV KUSHWAH S/O SUBHASH KUSHWAH R/O GRAM
SADALPUR, TEH. AND DISTT. DHAR (MADHYA PRADESH)
2. SUBHASHCHANDRA PATEL S/O JAGANNATH JI PATEL
R/O VILLAGE SADALPUR, TEHSIL AND DISTRICT DHAR
(MADHYA PRADESH)
3. UNITED INDIA INSURANCE CO. LTD. ADD. INDORE -
AHMADABAD ROAD, DHAR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDHIR DANDWATE, LEARNED COUNSEL FOR THE
INSURANCE COMPANY)
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 10/31/2023
5:22:17 PM
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Reserved on : 20.10.2023.
Pronounced on : 31.10.2023.
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This miscellaneous appeal having been heard and reserved for
orders, coming on for pronouncement this day, Justice Achal Kumar
Paliwal pronounced the following:
ORDER
This appeal by the claimant under section 173(1) of the Motor Vehicles Act is arising out of the award dated 09.02.2017 passed by IInd Addl. MACT, Dhar in Claim Case No.115/2015 seeking enhancement of compensation amount awarded by the Tribunal.
2. The date of accident, negligence and the issue of liability are not in dispute and the findings recorded by the Tribunal in this regard are also not in question. As per the findings of the Tribunal, for the permanent disability suffered by the appellant/c laimant, the Tribunal has awarded a total compensation of Rs.4,97,350/- along with interest. The breakup of the compensation amount is as under:
Medical expenses -Rs.3,47,350/-
Other conventional heads like Pain &suffering/loss of amenities/ Loss of future prospects/attendant etc.-Rs.1,50,000/-
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TOTAL Rs.4,97,350/-
Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 10/31/2023 5:22:17 PM 33. Learned counsel for the appellant, after referring to para-27 of the impugned award and relying upon the decision of this Court in the case of United India Insurance Co.Ltd. vs. Shyam Kumar and others
- I (2007) ACC 919 submits that on account of injuries sustained in the accident, appellant was compelled to take leave of four months 20 days but Tribunal has not awarded any compensation for loss of leave which could have been utilized for some other purposes as held in United India Insurance Co. Ltd. Vs. Shyam Kumar (supra), therefore, for loss of leave of four months ten days, compensation be awarded to the appellant.
4. Learned counsel for the appellant has also submitted that at the time of accident, appellant was serving as Sub Inspector in Police Department and it is correct that on account of injuries/permanent disability sustained in the accident, career prospects of appellant were not adversely affected and he got timely increment as well as promotion and there is no break in the service as well as loss of income on account of the injuries/permanent disability but relying on the decision of the Calcutta High Court in the case of Pravat Chandra Maity vs. Oriental Insurance Co. Ltd. & Ors. - MACD 2008 (1) (Cal.) 407, it is urged that on account of permanent disability future prospects of appellant getting any job after retirement is adversely affected, therefore, Tribunal should have awarded compensation for future loss of income from the date of retirement of the appellant. It is also urged that Tribunal has not awarded appropriate amount under the head of pain and suffering, attendant expenses, loss of amenities etc., therefore, under other conventional heads also amount be enhanced.
Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 10/31/2023 5:22:17 PM 45. Learned counsel for the respondent submits that from evidence on record it is not proved that appellant took earned leave (EL) after the accident instead it is apparent that appellant availed sick leave which cannot be utilized for any other purpose whatsoever, therefore, no amount can be awarded under the head of loss of leave. In this connection he has referred to Ex.P/34. It is also urged that on account of injuries/permanent disability sustained in the accident, appellant did not suffer any loss of income/increment/promotion etc., therefore, no amount can be awarded under the head of future loss of income.
6. I have heard learned counsel for the parties and perused the record of the case.
7. So far as amount under the head of loss of leave is concerned , as per certificate Ex.P/34, on account of injuries sustained in the accident appellant was on sick leave. From Ex.P/34 and other evidence on record it is not established that on account of injuries sustained in the accident appellant was forced to take earned leave. Apparently, sick leave cannot be utilized for any other purpose whatsoever, therefore, appellant cannot be awarded any amount under the head of loss of leave. Hence, in view of above, principle laid down in Shyam Kumar (supra) does not help appellant in any way.
8. So far as loss of earning capacity/future loss of income is concerned, admittedly, at the time of accident, appellant was serving as Sub Inspector in Police Department and he did not suffer any loss of salary/increment/promotion etc.
9. But para-20 to 22 of the impugned award reveals that on account of injuries sustained in the accident, appellant suffered permanent disability and in para-22 Tribunal has assessed 15% permanent Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 10/31/2023 5:22:17 PM 5 disability in the right leg. Admittedly, at the time of accident, appellant was serving in the Police Department; therefore, there was every possibility of appellant getting some employment/job after retirement. In the instant case, appellant has suffered 15% permanent disability in his right leg, therefore, certainly above permanent disability would adversely affect his prospects of getting any job/employment after retirement. Hence it cannot be said that there is no future loss of income/ loss of earning capacity but in this Court's opinion, loss of earning capacity/future loss of income shall b e calculated after retirement. Therefore, multiplier of 7 would be applicable in the present case and appellant's income is assessed as Rs.10,000/- per month, without there being any addition under the head of loss of future prospects in view of the age of the appellant. Further, compensation under the head of loss of amenities etc. also needs to be enhanced.
10. Thus, the compensation amount in this case is calculated as under:
Permanent disability -Rs.1,26,000/- (i.e.Rs.10000x 12=Rs.1,20,000 x 7 (multiplier) x 15/100 (PD) Medical expenses -Rs.3,47,350/-
Other conventional heads like
Pain &suffering/loss of amenities/
/attendant etc. -Rs.2,50,000/-
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TOTAL Rs.7,23,350/-
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 10/31/2023
5:22:17 PM
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11. Thus, the just and proper amount of compensation in the instant case is Rs.7,23,350/- as against the award of the Tribunal of Rs.4,97,350/-. Accordingly, the appellant is entitled to an additional sum of Rs.2,26,000/- over and above the amount which has been awarded by the Tribunal.
12. In the result, the appeal is partly allowed by enhancing the compensation amount by a sum of Rs.2,26,000/-. The enhanced amount shall bear interest at the same rate as awarded by the Tribunal.
The other findings recorded by the Tribunal shall remain intact.
(ACHAL KUMAR PALIWAL) JUDGE hk/ Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 10/31/2023 5:22:17 PM