Allahabad High Court
Arun Bajpai vs Mushir Ahmad And Others on 17 October, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. 3183 of 2009 Appellant :- Arun Bajpai Respondent :- Mushir Ahmad And Others Counsel for Appellant :- Vishwa Ratna Dwivedi,B.R. Dwivedi,Vidya Kant Shukla Counsel for Respondent :- Smt. Archana Singh Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Vidya Kant Shukla for the appellant and the counsel holding brief of Smt. Archana Singh for the respondents.
2. This appeal, at the behest of the claimant, challenges the judgment and award dated 17.7.2007 passed by Motor Accident Claims Tribunal, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 705 of 2006 awarding a sum of Rs.2,77,000/- with interest at the rate of 6%.
3. The facts in brief is that on 27.5.2006 at about 10.00 p.m. Arun Kumar Bajpai after purchasing of some vegetables was returning home and when he reached near Shitla Devi Mandir at Kalpi Road, a truck bearing no. UP-32-Z-0280 being driven by a driver rashly and negligently came and dashed the appellant due to which he received severe injury on his body.
4. Sri Shukla, learned counsel for the appellant, has relied on the following judgments of the Apex Court as well as this Court:-
(I) Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768;
(II) Anu Bhanvara etc. Vs. IFFCo Tokio General Insurance Company Limited and others; and (III) Sunil Kumar @ Sandeep Kumar Vs. Bilal and others, 2017 0 Supreme (All) 1243.
5. As against this, learned counsel for the respondents has submitted that the judgment in other matters cannot be pressed into service. The disability certificate causing injury was properly considered and the interim order passed by this Court cannot be permitted to be now looked into. It is further submitted that the Tribunal has considered all the facets while passing the impugned judgment and no error can be found in the decision of the Tribunal and has heavily relied on the counter-affidavit filed in this matter.
6. The factual data goes to show that the Tribunal dismissed the claim petition of the appellant on the ground that the original document of disability certificate was not produced and the xerox copy was proved. It has been held that the xerox copy was not admissible as the evidence.
7. The judgment in Vimla Devi and Sunil Kumar (supra) go to the root of the matter. The Tribunal while rejecting to consider the xerox copy did not grant any amount for the loss of income suffered due to the disability which was occurred by the claimant herein. The Tribunal granted Rs.2,65,000/- for the medicine though vouchers to the tune of Rs.3,48,491/- was produced. The Tribunal unfortunately granted only a sum of Rs.15,000/-. Rs.5,000/- for pain shock suffering as per 163-A of Motor Vehicles Act, 1988.
8. The findings are perverse. The disability certificate was produced along with application under Order 41 Rule 27 of C.P. Code, 1908, pursuant to the following order passed on 13.12.2017 by the Division Bench which reads as follows:-
"Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Shailendra Kumar Agrawal,J.
Heard Sri Vidya Kant Shukla, learned counsel for the appellant and Ms. Pragya Pandey holding brief of Smt. Archana Singh, learned counsel for the respondent-Insurance Company.
This appeal has been filed by the injured-appellant/ claimant praying for enhancing the amount of compensation, which according to him has been erroneously awarded without considering the material on record relating to status of the injuries sustained by the appellant and ignoring the genuine bills, which had been proved for medical treatment. It is urged that a wrong application of the provisions of the schedule appended to Section 163-A of the Motor Vehicles Act, 1988 has been applied while the claim was under Section 166 of the 1988 Act.
The Court had earlier passed the following order on 09.11.2017:-
"Heard learned counsel for the appellant and the learned counsel for the respondent Insurance Company. Directions were issued for summoning the records on 16.08.2017 for which steps have been taken, but the records have not yet been received from the Lower Court. The records appear to be necessary, keeping in view the nature of the submissions raised particularly with regard to the status of disability of the injured as also the payment as against the claim of medical reimbursement which according to the appellant has been done on the lower side for no justification.
The office shall send a reminder and get the records immediately and place it before the Court.
The matter shall be listed immediately after two weeks."
In response thereto the lower court records have been placed before us and we find that the photostat copy of the disability certificate indicates an injury causing disability to the extent of 55%. There is yet another document namely the initial medical report date 27.05.2006 indicating the nature of the injuries sustained by the appellant crushing his left leg in an accident which he had met with a truck. The entire receipts to the extent of Rs.3,48,491/- have also been placed on record, which includes the receipt dated 1st July, 2006 indicating the rail assembly required for the said purpose on a surgery being performed on the appellant/ claimant. Further the discharge card of the Hospital, which is Paper No.198-Kha indicates discharge after surgery and bone grafting.
The aforesaid documents prima facie do indicate that an injury had been sustained by the appellant, the treatment whereof was carried out by the performance of surgery and other medical equipments required for the same.
In order to prove the said injuries and the percentage of disability caused, the appellant appears to have obtained a certificate of disability from the Disability Board and a photostat copy thereof was issued by the Chief Medical Officer, Kanpur Nagar that had been produced before the court below. The same, however, could not be proved as neither the original thereof was produced nor any attempt was made to get it proved.
In order to do complete justice for the purpose of just and fair compensation, we direct the appellant/ claimant to produce himself before the Chief Medical Officer, Kanpur Nagar within three weeks from today. The accident is stated to have occurred on 27th May, 2006. The Chief Medical Officer shall get the injuries examined in the light of the said fact and also indicate the nature of disability suffered by the appellant/ claimant, if any, as well as the loss of earning capacity in relation thereto. We are exercising our appellate powers in order to ensure that the compensation is fairly and justly awarded in the event the injuries have been sustained by the appellant in the accident. For this the Chief Medical Officer/ Disability Board shall issue a certificate after examination in relation to the injuries of the appellant and such certificate shall be filed along with an application under Order 41 Rule 27 of the Civil Procedure Code in the present appeal.
Let the matter be listed after three weeks.
Order Date :- 13.12.2017 Anoop"
9. The claimant was examined by the C.M.O., Kanpur Nagar, who found that there was 65% disability. This can be now considered to be 30% functional disability. The Tribunal has rightly assessed the income of the deceased to be Rs.7,000/- per month namely Rs.84,000/- per year. To which as the injured was aged about 50 years at the time of accident, 50% of the income would have to be added as future loss of income to the injured in view of the decision of the Apex Court in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 and Syed. Sadiq and others (Supra) which would bring the figure to Rs.84,000 + 42,000 = Rs.1,26,000/-. The annual loss of the injured would be 30% namely Rs.37,800/-. Multiplier of 15 has been rightly granted by the Tribunal. Hence, he would be entitled to Rs. 37,800 x 15 = Rs. 5,67,000/-.
10. To this, a sum of Rs.35,000/- requires to be added for pain shock suffering as he was in hospital for a very long time, operated time and again has to spent more than Rs.2 Lacs on medicines.
11. The claimant - appellant would be entitled to a sum of Rs. 50,000/- under other non-pecuniary damages.
12. The Tribunal has considered that he would be entitled to only Rs. 15,000/- for medical bills is erroneous and perverse as it is not a petition under Section 163-A but was a petition under 166 of the Motor Vehicles Act, 1988. The said finding being perverse is quashed and set aside. He would be entitled to Rs.2,65,000/- for which he has produced all vouchers on record which is evident from the finding itself that vouchers of Rs.3,48,491/- has already produced and, therefore, in the light of all these factual data, he has been operated for Rs.3,00,000/- and bills and vouchers have already there hence he would be entitled for the said amount.
13. As far as issue of rate of interest is concerned, a Division Bench of Lucknow Bench in F.A.F.O. No. 199 of 2017 (National Insurance Company Limited Vs. Lavkush and another), decided on 21.3.2017, have interpreted the Rules, which has been followed by this Court time and again, will enure for the benefit of the appellant and, therefore, the rate of interest would be 9% as held in catena of decisions of this High Court.
10. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent - Insurance company shall deposit the additional amount with interest at the rate of 9% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount be deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.
14. The record and proceedings be sent back to the Tribunal forthwith.
Order Date :- 17.10.2019 Irshad