Full Text
JUDGMENT
KASIM @ PAPPU ..... Appellant Represented by: Mr. O.P. Mannie, Adv.
1. The present appeal has been preferred against the impugned award dated 20.02.2013, whereby, Ld. Tribunal has awarded compensation for an amount of Rs.1,98,679/- with interest @ 7.5% per annum from the date of filing of the Claim Petition till realization of the amount.
2. Vide the present appeal, the appellant is seeking enhancement of the compensation amount as noted above.
3. Mr. O.P. Mannie, Ld. Counsel appearing on behalf of the appellant submits that the appellant received injuries in an accident took place on 25.08.2008. He was 20 years of age on the date of accident and was working as a motor mechanic at a shop and stated to be earning Rs.5,000/- 2014:DHC:2614 per month. Since, he has failed to prove his avocation and salary, Ld. Tribunal has assessed his monthly income as Rs.3,683/- as per the Minimum Wages Act, 1948 applicable to unskilled worker prevalent at that time.
4. Mr. Mannie, further submits that in view of the facts noted above, Ld. Tribunal ought to have added 50% in his actual income towards future prospects, however, has erred in adding 30% to the same.
5. To strengthen his arguments, Ld. Counsel has relied upon a case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563 decided by the Full Bench of the Apex Court, whereby held as under:
the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
6. Mr. Mannie further submits that it is established that the accident had taken place due to the negligence of the driver of the offending vehicle and a criminal case was also registered against him. Despite, the Ld. Tribunal held the appellant liable for 20% of contributory negligence only for the reason that he was not holding valid licence on the date of the accident. He submits that the liability cannot be fastened upon the appellant on the basis of the above said reason.
7. To strengthen his arguments, Ld. Counsel has relied upon a case of Meera Devi and Anr. Vs. Himachal Road Transport Corporation 2014 ACJ 1012 decided by the Full Bench of the Apex Court, wherein held as under:
8. Mr. Mannie further submits that even in a case wherein a person was not holding a valid driving licence, the Apex Court has held that for this reason, he cannot be held liable until and unless the cause of accident is established.
9. The third ground argued by the Ld. Counsel for the appellant is that appellant was 20 years of age on the date of the accident. He was working as a motor mechanic at a shop and was earning Rs.5,000/- per month. He received 17% permanent disability. Despite, the Ld. Tribunal has not awarded compensation towards loss of amenities of life, Loss of expectation of life and also not granted any amount towards loss of marriage prospects.
10. On the other hand, Mr. K.L. Nandwani, ld. Counsel appearing on behalf of respondent / Insurance Company submits that appellant failed to prove his avocation and salary. Therefore, keeping in view the dictum of Sarla Verma Vs. DTC and Ors. 2009 (6) SCC 121, which has been further affirmed by the Full Bench of the Apex Court in the case of Reshma Kumari and Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65, Ld. Tribunal has rightly added 30% in his actual towards future prospects.
11. On the issue of liability, Mr. Nandwani submits that Ld. Tribunal has recorded in its impugned award that the appellant was not holding valid driving licence, which establishes that he was not having driving experience. Thus, the Ld. Tribunal has rightly held him liable for 20% contributory negligence.
12. Mr. Nandwani further submits that the appellant has received 17% of the disability. However, keeping in view the dictum of Raj Kumar v. Ajay Kumar and Anr. (2011)1SCC343, Ld. Tribunal has rightly assessed the same as 10%.
13. On the issue of non-pecuniary damages, Mr. Nandwani submits that keeping in view the facts and circumstances of the case and the injuries received by the appellant, ld. Tribunal has adequately granted the compensation on these heads.
14. I heard ld. Counsels for the parties.
15. The issue of future prospects has been dealt by this court in the case bearing MACA No.846/2011 titled as ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors., decided on 30.09.2013 while relying upon the dictum of Rajesh & Ors. (Supra).
16. Thus, keeping in view the age of the appellant as 20 years on the date of accident, I add 50% in his actual income towards future prospects.
17. As the issue of liability is concerned, it is pertinent to note that Ld. Tribunal has held that the appellant was not having valid driving licence on the date of the accident and has held that the Insurance Company is liable for 80% of the contributory negligence whereas the appellant has been held liable for 20% for the same.
18. In case of Meera Devi (Supra), the Apex Court has held that if the accident had taken place due to rash and negligent driving of the injured, he shall be held liable for contributory negligence. However, in the present case, cause of the accident is not due to the rash and negligent driving by the appellant, however, it is established that the driver of the offending vehicle was negligent. Therefore, I am of the considered opinion that the Ld. Tribunal has wrongly held the appellant was liable 20% for committing the accident.
19. Admittedly, the appellant received 17% disability in relation to left upper and lower limb due to the accident took place on 25.08.2008. However, while calculating the compensation, Ld. Tribunal has assessed 10% disability. He was working as a motor mechanic. In such a situation, a person who is a motor mechanic certainly would not be able to perform his work satisfactorily. The 17% disability would affect in his performance throughout his life. Therefore, I am of the considered opinion that Ld. Tribunal has wrongly assessed 10% disability. Hence, keeping in view the facts noted above, I assess his disability as 17%.
20. As the issue of compensation towards non-pecuniary damages are concerned, Dr. Harish Mansukhani, Chief Medical Officer of LBS Hospital, appeared as PW[3] before the Ld. Tribunal and produced a report, wherein it is stated that the appellant received permanent disability of 17% with regard to the left upper and lower limb. The disability certificate is proved as Ex.PW3/1. PW[3] identified the signatures of other Doctors of Medical Board at Point B, C and D. It is pertinent to note that the said disability certificate was issued after going through the treatment records from GTB Hospital as furnished by the appellant
21. Therefore, keeping in view the facts of the case and the injuries received by the appellant, I grant Rs.10,000/- each towards loss of amenities of Life and Loss of expectation of life and Rs.25,000/- for loss of marriage prospects.
22. Consequently, the compensation amount comes as under:- Sr. No. Heads Calculation as per MACT Calculation as per this Court i. For medicines and treatment Rs.29,410/- Rs.29,410/ii. Conveyance and diet charges Rs.20,000/- Rs.20,000/iii. Loss of income on account of leaves Rs.10,849/- Rs.10,849/iv. Loss of income on account of disability Rs.1,03,420/- Rs.2,02,860/v. Attendant charges Rs.10,000/- Rs.10,000/vi. Compensation for pain and sufferings Rs.25,000/- Rs.25,000/vi. Loss of amenities of life Nil Rs.10,000/vii. Loss of expectation of life Nil Rs.10,000/viii. Loss of marriage prospects Nil Rs.25,000/- Total Rs.1,98,679/- Rs.3,43,119/- Resultantly, the compensation is assessed at Rs.3,43,119/-.
23. The contributory negligence has been assessed by the Ld. Tribunal at 20% of the award amount, i.e., Rs.39,735.8/- (rounded off to Rs.39,736/-). Therefore, the award amount has been assessed at Rs.1,58,943/- by the Ld. Tribunal.
24. Accordingly, an amount of Rs. 1,84,176/- is enhanced (Rs.3,43,119 – Rs.1,58,943).
25. The enhanced amount shall carry interest @ 7.5% per annum from the date of filing of the claim petition till realization.
26. The respondent No.3/Insurance Company is directed to deposit the enhanced compensation amount with the Registrar General of this Court within a period of six weeks from today, failing which, appellant shall be entitled for penal interest @ 12% per annum on account of delayed payment.
27. On deposit, the Registrar General is directed to release 50% of the enhanced amount with proportionate interest in favour of the appellant and the balance 50% shall be kept in FDR for a period of 3 years.
28. In view of the above, the appeal is allowed.
SURESH KAIT, J MAY 16, 2014 jg