1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Lali vs. Hari Singh & Ors. S.B. CIVIL MISC. APPEAL NO.1553/2007 against the judgment and award dated 11.12.2004 passed by the learned Judge, Motor Accident Claims Tribunal, Rajsamand , in Motor Accident Claim Case No.110/2004. DATE OF JUDGMENT :: 13th October , 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. Sudhir Saruparia for the appellant. Mr.Om Prakash Joshi ] for the respondent/s. Mr. A.K.Dadhich ] BY THE COURT : The present appeal has been filed by the claimant- appellant against the judgment and award dated 11.12.2004 passed by learned Judge, Motor Accident Claims Tribunal, Rajsamand (in short 'the Tribunal') in Motor Accident Claim 2 Case No. 110/2004 , whereby the learned Tribunal has partly allowed the claim petition in favour of the claimant-appellant and against respondents, holding their joint and several responsibility to pay a total compensation of Rs.1,82,460/- including the interim relief of Rs.25,000/-, with interest @ 6% per annum on due amount from the date of filing of the claim petition, i.e. 05.11.2003 and directed the non-claimants to make the entire payment to claimant appellant. The brief facts of the case which are relevant for the disposal of the appeal are that on 14.09.03, in the morning at 06.00 AM, the claimao.nt appellant was going on the footpath along with her cows, at that time a speedy truck came from the side of village Diver, bearing No.RJ-02 G-0586, which was being driven by its driver Hari Singh in most rash and negligent manner knocked her down, as a result of that her leg was crushed and she also sustained several other grievous injuries. She was taken to the hospital and as a result of the injuries, her leg had to be amputed. The report of the said incident was lodged at Police Station, Diver and the police, after usual investigation, filed challan against the driver of the 3 truck for committing the offence of rash and negligent driving and causing injuries to the claimant -appellant. It was stated that non-claimant No.2 Sanwal Ram was the owner of the truck and the said truck was insured with non-claimant No.3, The United India Insurance Company. The claimant appellant submitted a claim petition before the Motor Accident Claims Tribunal, Rajsamand on 05.11.2003 under Section 166 of the M.V. Act for awarding adequate compensation for her permanent disability , i.e. amputation of leg and several other injuries sustained by her in the said motor accident. In the claim petition, it was averred that the claimant was only of 38 years at the time of accident, and she was earning Rs.3,000/- per month by doing labour and other agricultural work and on account of said accident, she became unable to move without crutches. She remained under treatment since the date of accident for several months. It was stated that due to these injuries, she became totally handicapped and she cannot perform her daily routine work without the aid of others. It was further stated that she became permanently disabled upto 70% (EX.13) and she cannot work 4 to earn income thus, her income has been adversely effected. Thus, it was submitted that due to the injuries, she suffered a lot of monitory loss as well as mental shock. On the basis of these facts, a total sum of Rs.9,20,000/- was claimed as compensation under various heads. Non-claimant No.1 and 2, driver, as well as owner of the truck, filed their reply and denied all the allegations mentioned in the claim petition and prayed to dismiss the claim petition against them. Non-claimant No.3, insurer of the truck , filed its reply and denied almost all the allegations but accepted the fact that the said truck was insured with it but denied the contention that the said truck was involved in the accident. It was also averred that the claim petition has been filed on wrong facts, and prayed to dismiss the claim petition against it. The learned Tribunal, on the basis of pleadings of the parties, framed the relevant issues with regard to responsibility of causing accident and with regard to quantum of compensation and liability to pay thereof. 5 The claimant-appellant, examined herself as AW/1 and got exhibited documents produced by her , Ex.1 to Ex.34 in support of her claim. In rebuttal, non-claimant No.3, insurer, got exhibited Insurance Policy Ex.A/1. The learned Tribunal, after hearing both the sides, held that the truck was driven at a high speed and in negligent manner due to that the accident occurred, in which the appellant Smt. Lali sustained several injuries and vide its judgment and award dated 11.12.2004, awarded a total compensation of Rs.1,82,460/- plus interest thereon @ 6% per annum, holding non-claimants jointly and severally responsible for the payment of the same. The claimant being felt aggrieved and dissatisfied with the amount of compensation, as awarded by the learned Tribunal, has preferred this appeal, against the judgment and award dated 11.12.2004 to the extent of quantum of compensation and made submissions for enhancement of the same. Notice of appeal was given to the respondents. Record of the case 6 was called and the parties were heard. During the course of arguments, learned counsel for the claimant-appellant submitted that the learned Tribunal has not properly considered and appreciated the material for awarding adequate compensation, and has given an erroneous finding with regard to the quantum of compensation, therefore, the judgment and award is not sustainable and is required to be modified to this extent and prayed that adequate and reasonable amount of compensation may be enhanced. It was further contended that the learned tribunal, while awarding compensation under different heads,has not properly assessed the income of the injured. It was stated in her statement that from labour and other agricultural work,she used to earn Rs.3,000/- per month and at the time of accident she was of 38 years. Looking to her age, the income shown by her is not excessive and there is no rebuttal from the other side. Thus, her income should have been taken proved as stated but the learned tribunal assessed her income to be Rs.15,000/- per annum only. It is further contended that her age at the time of the incident was 38 years and the injuries 7 sustained in accident are of severe nature. Looking to the gravity of the injuries, the doctor has certified permanent disability up to 70%, after examination, vide Certificate Ex.30. It was stated by the learned counsel for the appellant that looking to the injury and the certificate given by the doctor, it should have been treated as 100% while computing compensation. But the learned tribunal, on the basis of erroneous assessment with regard to income and permanent disability , loss of income has been assessed as Rs.10,500/- per annum and awarded a meagre amount of Rs.1,68,000/-. Further, the learned tribunal has awarded medical expenses , which has been incurred by the claimant during treatment only of Rs.15,000/-. Thus a total amount of Rs.1,82,460/- has been awarded but this amount is not adequate. It was contended that it may be enhanced and prayed that the appeal may be allowed. On the contrary, learned counsel for the respondents refuted the contentions and submitted that already just and reasonable amount has been awarded , therefore, there is no scope for further enhancement and prayed that appeal may be dismissed. 8 I have considered the rival submissions and perused the finding and the conclusion drawn thereon. The main question comes for consideration in this appeal is whether the awarded compensation is not just and reasonable and does it requires enhancement ?. So far as the finding with regard to factum of accident is concerned, I have seen the finding arrived at by the learned tribunal, that is based on the material available on record , that does not suffer from any infirmity, that deserves to be maintained and during the course of argument, no one has agitated the same. So far as the quantum of compensation is concerned, I have seen the finding on issue No. 3. I have perused the statement of injured claimant Smt. Lali she has stated in her statement that near about Rs.50,000/- to Rs.60,000/- have been incurred on medicine and other expenses, she has stated that she used to earn Rs.100/- per day from labour work and also earned Rs.40/- to Rs.50/- per day by cutting fodder etc. and she has further stated that a huge sum was incurred in the treatment. On the basis of injuries sustained by 9 her, after examination a team of doctors have certified permanent disability upto 70% vide Ex.30. She has further stated in her statement that she used to earn Rs.3,000/- per month by doing labour and agricultural job and that does not seem excessive. The learned tribunal tribunal has assessed her income to be Rs.15,000/- per annum and while assessing the future loss on the basis of permanent disability, applying the multiplier of 16, looking to her age and considering the permanent disability upto 70% determined the yearly loss of Rs.10,500/- (10,500x16) and has assessed compensation of = Rs.1,68,000/- that does not seem to be adequate. Looking to the facts of the case, that deserves to be enhanced. Taking into consideration the injuries and the role of limbs and body efficiency in working of manual labour in which she was engaged, certainly the injuries sustained in the accident will permanently adversely effect her working efficiency and income. She has stated in her statement that due to accident her one leg was amputed and she is unable to work for gain , she was all alone bread-earner. Therefore, after assessing her minimum income of Rs.2100/- per 10 month, thus the annual income comes to Rs.25,200/- and considering her permanent disability of 70% yearly future loss of income comes to Rs.17,640/-per annum. Again taking multiplier of 16 according to her age, the compensation under this head comes to Rs.2,82,240/- (17,640x16) . Thus, after deducting the amount awarded by the learned tribunal of Rs.1,68,600/- the net enhanced amount comes to Rs.1,13,640/-. The claimant appellant is held entitled to recover the same. The tribunal has further awarded for the expenses incurred by her for medical treatment, pain and suffering, diet and other expenses a total sum of Rs.14,460/-, looking to the awarded amount a sum of Rs.10,000/- is further enhanced under different heads and that comes to Rs.24,460/-.Thus, the total amount comes to (1,82,460+1,13,640+10,000) =Rs.3,06,100/-. The learned tribunal has awarded 6% interest per annum on the amount of compensation that is on lower side that deserves to be enhanced to 7.5% per annum. On the basis of aforesaid discussion, the appeal is partly allowed and the awarded compensation of Rs.1,82,460/- is further enhanced by Rs.1,23,640/- that comes to 11 Rs.3,06,100/- with further enhancement in the rate of interest from 6% per annum to 7.5% per annum on the awarded as well as on the enhanced amount of compensation. For the payment of enhanced compensation and interest thereon the respondents are held jointly and severally responsible, as held earlier by the tribunal. Insurance Company is further directed to make payment within a period of two months from the date of order, failing which the claimant will be entitled to start recovery proceedings as per provisions of law. Rest of the judgment is maintained. No order as to costs. (MANAK MOHTA), J. l.george