Rajan Kumar v. Raj Singh & ORS

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 31.10.2019 Rajan Kumar ...Appellant Vs.

Raj Singh and ors.

..Respondents CORAM: HON'BLE MS.JUSTICE RITU BAHRI

Present:

Mr. Dheeraj Mahajan, Advocate for the appellant. Mr. Amit Kundra, Advocate for respondent No.3. RITU BAHRI, J.

The claimant has come up in appeal against the award of the Motor Accidents Claim Tribunal, Gurdaspur dated 30.03.2016 whereby compensation of Rs.15,93,911/- has been awarded on account of injuries suffered by appellant in a road side accident on 16.10.2014. FACTS NOT IN DISPUTE On 16.10.2014, appellant was coming on his motorcycle bearing registration No. PB-58-O-5718 from Mahindra Car Agency to Gurdaspur side and when he reached the bridge of a drain near Income Tax Office, Batala Road, Gurdaspur, then a bus bearing No. PB-02-BG-9695 being driven by respondent No. 1 carelessly, came from Gurdaspur side and hit the motorcycle of the appellant. The appellant received grievous injuries. F.I.R No. 102 dated 16.10.2014 under Sections 279/337/338/427 IPC was registered at P.S. Sadar, Gurdaspur against the driver of the offending bus.

-2COMPENSATION ASSESSED BY THE MACT On the basis of evidence led by the parties, the Tribunal assessed the compensation as under:

Head Amount (` ) Sr.

No .

Income Rs.5000/- perr month Multiplier of 17 Rs.5000 X 12 x 17=Rs.10,20,000/- Loss of earning capacity as 50% Rs.10,20,000-Rs.5,10,000=Rs.5,10,000/- Medical bills Rs.9,23,911/- Pain and suffering Rs.1,00,000/- Conveyance charges Rs.50,000/- Attendant charges Rs.10,000/- Total Rs.15,93,911/- Counsel for the claimant-appellant has referred to statement of Dr. Deepak Sahota, who has proved the disability certificate C.W.1/A and as per this disability certificate, the appellant has suffered 80% physical disability in relation to his right leg. It is a case of below knee amputation of leg. Learned counsel for the appellant submitted that disability has affected the normal day to day life of the appellant and the appellant is not able to pursue his regular activity.

Learned counsel for the appellant has further referred to statement of Swaran Singh, Sales Manager C.W.3 who proved the factum of job of the appellant as Field Sales Consultant with Grover Auto P. Ltd.. He deposed that appellant was getting salary of Rs.5000/- per month. The income taken by the Tribunal is on the lower side, as the appellant was a skiller labourer.

Counsel for the respondent-Insurance Company has submitted that the compensation awarded by the Tribunal is adequate and no interference is required.

-3It is not in dispute that there is disability of 80% with regard to right leg of the appellant which is permanent in nature and appellant was doing the job of Field Sales Consultant.

Reference at this stage can be made to judgment of Hon'ble the Supreme Court of India in the case of Sanjay Kumar vs. Ashok Kumar and another 2014(1) RCR (Civil) 875, wherein the claimant who was earning Rs.4500/- per month suffered 70% permanent disability in motor accident, it was held that 'Loss of future prospects' should be added to this amount as it cannot be accepted that an embroiderer will not have a future increment. In that case keeping in mind the young age of victim he was held entitled to 50% of his income as future increase in income. In another judgment by Hon'ble the Supreme Court of India in the case of Rajan vs. Soly Sebastian and others, 2015(3) RCR (Civil) 962, wherein the victim was a professional driver, the Tribunal assessed his notional income at Rs.2000/- p.m. It was held that income was not correctly assessed.

Income should have been assessed after taking into consideration the relevant Minimum Wages fixed by Government. Income be taken at Rs.3500/- p.m to work out compensation. Victim though suffered 60% bodily disability, but suffered 100% permanent disability with regard to his earning capacity. After considering 50% enhancement for future prospects, the compensation for permanent disability was calculated at (Rs.3500/-+ Rs. 1750/-)x12x17=Rs. 10,71,000/-.

Reference at this stage can be made to a judgment of Hon'ble the Supreme Court in a case of Raj Kumar vs. Ajay Kumar and others, 2011(2) RCR (Civil) 101 wherein the Apex Court had laid down the

-4principles for determining the loss and the affect of permanent disability on the actual earning capacity. It would be useful to refer to the relevant paragraphs:- "9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.

If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

10. 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 ability (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

-5third 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. 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 hundred percent, if he is neither able to drive or 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 be continued 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 continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand.

-6discharging 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. 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 a duplication in the award of compensation. Be that as it may."

Since the appellant in the present case was doing the job of Field Sales Consultant and will face difficulty in now doing his work, his monthly income can be taken at Rs.10000/- per month as skilled labourer for determining the compensation. Applying the ratio of the above mentioned judgments, the compensation is re-assessed as under by taking the disability of the appellant at 70% qua whole body:- Sr.

No.

Head Amount (` ) Loss of income by multiplier method (10000 X 12 X 17) X 70% qua whole body=14,28,000/- 2 Medical bills Rs.9,23,911/- 3 Pain and suffering Rs.1,00,000/- 4 Conveyance charges Rs.50,000/- 5 Attendant charges Rs.10,000/- 6 Loss of marriage prospects Rs.1,00,000/-

-7Sr.

No.

Head Amount (` ) 7 Loss of amenities Rs1,00,000Total compensation awarded Rs.27,11,911/- Enhanced amount of compensation Rs.2711911-1593911=Rs.1118000/- The enhanced amount of compensation of Rs.11,18,000/- shall be payable within a period of forty five days from the date of receipt of certified copy of this order. The enhanced amount of compensation shall carry interest @ 9% per annum in view of judgment of Hon'ble the Apex Court in Civil Appeal No. 4528-2019 titled as Dara Singh @ Dhara Banjara vs. Shyam Singh Varma and ors, decided on 01.05.2019. The remaining conditions of disbursal of amount and recovery rights shall remain unaltered.

Accordingly, the award stands modified to the above extent and the present appeal is partly allowed.

( RITU BAHRI ) 31.10.2019 JUDGE G Arora Whether speaking/reasoned - Yes Whether Reportable - No