Madhya Pradesh High Court
Rajendra Patel vs Sandeep Kumre on 11 January, 2024
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 11th OF JANUARY, 2024
MISCELLANEOUS APPEAL NO.5961 OF 2022
BETWEEN:-
RAJENDRA PATEL S/O SHRI NARBAD PRASAD
PATEL, AGED ABOUT 40 YEARS, OCCUPATION
RAJMISTRI AND AGRICULTURIS, R/O VILLAGE
KHIRAHNI, TEHSIL AND THANA PANAGAR,
DISTRICT JABALPUR (MADHYA PRADESH)
.....APPELLANT
(SHRI VINIT MISHRA - ADVOCATE)
AND
1. SANDEEP KUMAR S/O SHRI SURESH KUMAR
MURARI R/O VILLAGE NANIYAKALA, TEHSIL
AND THANA PANAGAR DISTRICT JABALPUR
(MADHYA PRADESH)
2. NATIONAL INSURANCE COMPANY LTD.
THROUGH MANAGER, BRANCH OFFICE, MR-4
ROAD, VIJAY NAGAR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI ALOK HOONKA - ADVOCATE FOR THE RESPONDENT NO.2)
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This appeal coming on for admission this day, the court passed the following:
ORDER
Heard on IA No. 10624/2023, which is an application filed under Order 41 Rule 14(4) of CPC for dispensing the service of notice to respondent No.1/ driver & owner of the offending vehicle.
Signature Not Verified Signed by: ANURAG SONI Signing time: 18-01-2024 16:17:05 2Considering the averments mentioned in the application and looking to the facts that respondent No.1 was ex-parte before the Tribunal and he has not filed any written statement before the Tribunal, same is allowed and service of notice to respondent No.1 is hereby dispensed with. Accordingly, IA No. 10624/2023 stands disposed of.
Heard on the admission.
Admits.
With the consent of parties heard finally on appeal. The appellant/claimant has filed this Appeal under Section 173(1) of the Motor Vehicles Act, 1988 for enhancement of the compensation amount being aggrieved with the award dated 30/09/2022 passed by IX Additional Motor Accident Claims Tribunal, Jabalpur in MACC No.4044/2018, by which the learned Claims Tribunal awarded a total sum of Rs.10,80,628/- (Ten lakhs eighty thousand six hundred twenty eight) with 6% interest to the appellant/claimant by way of compensation for the injuries, which he has sustained in a motor vehicle accident.
2. According to claimant i.e. appellant herein, the compensation awarded by the learned Claims Tribunal is on lower side and hence, need to be enhanced.
3. Since, this appeal is for the enhancement in the compensation amount awarded by the Claims Tribunal, hence the question that arises for consideration is whether any case for enhancement in compensation awarded by the learned Claims Tribunal on facts and evidence adduced, is made out and if so to what extent?
4. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason Signature Not Verified Signed by: ANURAG SONI Signing time: 18-01-2024 16:17:05 3 that firstly all these findings are recorded in favour of appellant/claimant by the Tribunal. Secondly, the findings though recorded in claimant's favour are not under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of filing an appeal or cross-objection. In this view of the matter, there is no justification to burden this order by detailing facts on all these issues.
5. Learned counsel for the appellants submits that in a motor accident which took place on 23/07/2018 the appellant sustained multiple injuries including fracture of Tibia and Fibula bone in his left leg and learned Tribunal has awarded a sum of Rs.10,80,628/- (Ten lakhs eighty thousand six hundred twenty eight) breakup of which is as under :
Rs.5,000/- Towards pain and sufferings
Rs.9,32,003/- Towards medical expenses
Rs.4,000/- Towards attendant
Rs.5,000/- Towards special diet
Rs.1,31,625/- Towards future loss of income
Rs.3,000/- Towards loss of income
6. Learned counsel for the appellant further submits that the Claims Tribunal has assessed the income of appellant/injured @ Rs.6,000/- (Six thousand) per month; whereas in the year 2018 when accident took place, as per minimum wages Act it should be Rs.7,325/- (Seven thousand three hundred twenty five) per month. Learned counsel for appellant submits that due to motorcycle accident appellant has suffered permanent disability, in this regard disability certificate (Ex. P/22) has been filed, which is proved by statement of Dr. Naveen Kothari (AW 2), who has stated that the appellant suffered 45% permanent disability. However, the Tribunal has wrongly assessed the permanent disability @ 11.25% in paragraph 16 of impugned award, which should be at least 20%. Learned counsel also submitted that learned Tribunal awarded Signature Not Verified Signed by: ANURAG SONI Signing time: 18-01-2024 16:17:05 4 only Rs.5,000/- in the head of pain and suffering, which should be at least Rs.50,000/-. Learned counsel for appellant submits that meager amount has been awarded in the head of attendant and special diet, which should be enhanced. It is also submitted that learned Tribunal has not awarded any amount for the loss of amenities in life and the happiness, which should be awarded. It is prayed that the appeal be allowed and amount of compensation be enhanced substantially. In support of his arguments, learned counsel for appellant has placed reliance on the judgment of Hon'ble Supreme Court in the case of Sri. Benson George Vs. Reliance General Insurance Co. Ltd. & Another, 2022 LiveLaw (SC) 214.
7. Per contra, learned counsel for respondent No. 2 opposed the prayer by contending that Dr. Naveen Kothari (AW 2), who issued the permanent disability certificate (Ex. P/22) is not the treating doctor and treating doctor has not been examined by the appellant before the learned Tribunal, therefore, the findings recorded by learned Claims Tribunal in para No.16 of impugned award is proper. Learned counsel further submits that the learned Tribunal has awarded sufficient amount to the appellant after appreciating the evidence placed on record. Hence, he prays for dismissal of appeal. In support of his contentions learned counsel placed reliance on the judgment passed by Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar & Another, (2011) 1 SCC 343 and a judgment passed by this Court in the case of Kamal Kumar Jain Vs. Tazuddin & Others, 2004 SCC OnLine MP 104.
8. I have heard the learned counsel for the parties, perused the record and gone through the citations upon which reliance is placed by the learned counsel for the parties.
Signature Not Verified Signed by: ANURAG SONI Signing time: 18-01-2024 16:17:05 59. From perusal of impugned award it appears that the learned Tribunal has awarded a sum of Rs.1,31,625/- (One lakh thirty one thousand six hundred twenty five) towards future loss of income assessing the income of appellant @ Rs.6,000/- per month. In the accident appellant/claimant sustained permanent disability and also furnished disability certificate (Ex.P-22) in this regard, but the Doctor who issued the disability certificate (Ex.P-22) has not been examined before the trial Court. However, keeping in view the law laid down in the case of Kamal Kumar Jain (supra) it appears that the learned tribunal committed error in assessing the permanent disability @ 11.25%, which ought to have been 20% of the whole body.
10. Learned tribunal assessed the income of the appellant/claimant @ Rs.6,000/- per month. It is undisputed that the appellant/claimant was an unskilled labourer. The alleged incident is of the year 2018, so the income of the appellant is considered as Rs.7,200/- (Seven thousand two hundred) per month.
11. Thus, considering the monthly income of the appellant @ Rs.7,200/- per month, 25% of the assessed income is to be added towards future loss of income, which comes to Rs.9,000/- (Nine thousand). So, the yearly income comes to Rs.1,08,000/- (One lakh eight thousand). As discussed above, permanent disability of appellant/claimant is assessed @ 20%. Thus, the amount towards future loss of income after applying multiplier of 13 (looking to the age of appellant) comes to Rs.2,80,800/- (Two lakhs eighty thousand eight hundred).
12. Learned tribunal has not awarded any amount towards grievous injury caused to the appellant due to alleged incident and only awarded a sum of Rs.5,000/- under the head of pain and sufferings. Looking to the fact that in the alleged incident appellant sustained fracture of tibia and Signature Not Verified Signed by: ANURAG SONI Signing time: 18-01-2024 16:17:05 6 fibula bone in his left leg, so in the considered opinion of this Court a sum of Rs.50,000/- (Fifty thousand) will be sufficient to be awarded under the head of grievous injury and pain & suffering. The amount awarded towards special diet i.e. Rs.5,000/- (Five thousand) appears to be just and proper, however amount awarded towards attendant i.e. Rs.4,000/- (Four thousand) is enhanced to Rs.5,000/- (Five thousand). Similarly, the amount awarded by the learned Tribunal towards loss of income during treatment appears to be on lower side, which is enhanced to Rs.10,000/- (Ten thousand) from Rs.3,000/- (Three thousand).
13. In view of above discussion, appellant/claimant shall be entitled for the following amount of compensation :-
Sr.No. Head Compensation
1 Towards future loss of income Rs.2,80,800/-
2 Towards special diet Rs.5,000/-
3 Towards grievous injury, pain & suffering Rs.50,000/-
4 Towards attendant Rs.5,000/-
5 Towards loss of income during treatment Rs.10,000/-
6 Towards medical expenses Rs.9,32,000/-
Total Rs.12,82,800/-
14. Thus, appeal filed by the appellant/claimant is allowed. The appellant/claimant will be entitled for a total sum of Rs.12,82,800/- (Twelve lakhs eighty two thousand eight hundred) instead of Rs.10,80,628/- (Ten lakhs eighty thousand six hundred twenty eight). Thus, there shall be enhancement to the tune of Rs.2,02,172/- (Two lakhs two thousand one hundred seventy two), which shall fetch interest @ 6% per annum from the date of filing of claim petition till the date of actual payment. Other terms and condition of the award shall remain intact.
15. With the aforesaid, appeal stands disposed of.
Signature Not Verified Signed by: ANURAG SONI Signing time: 18-01-2024 16:17:05 716. Records of the claims Tribunal be sent back alongwith the copy of this order for information and necessary compliance.
No order as to costs.
(AMAR NATH (KESHARWANI)) JUDGE as.
Signature Not Verified Signed by: ANURAG SONI Signing time: 18-01-2024 16:17:05