FAO No.2865 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2865 of 2008 Date of Decision: 8.01.2010 Sant Lal ..Appellant Vs. Surinder Kumar and Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Dheeraj Narula,, Advocate, for the appellant. Mr. Sandeep Suri, Advocate, for Insurance Company. Vinod K.Sharma,J. (Oral) This order shall dispose of FAO Nos.2865 and 2866 of 2008, titled Sant Lal Vs. Surinder Kumar & Ors., and Vijay Kumar Vs. Surinder Kumar & Ors, respectively. Both these appeals have been filed by the appellants, challenging the joint award dated 14.12.2007 passed by the learned Motor Accident Claims Tribunal, Sirsa (for short the Tribunal). Claimants by way of these appeals seek enhancement of compensation for the injuries suffered by them in a motor vehicular FAO No.2865 of 2008 2 accident. Brief facts giving rise to the appeals are that on 24.9.2003 at about 8.30/9.00 PM after selling the milk in the village the appellants were coming back from Mithanpur side to Ellenabad on a motor cycle, driven by Vijay Kumar son of Devi Lal resident of Ellenabad, and Sant Lal was the pillion rider on this motor cycle. When they reached near R.K. Factory, Mohar Road, near Ellenabad a jeep bearing registration No.RJ-31C/1249 driven by respondent No.1 rashly and negligently came from the side of Ellenabad and by coming on the wrong side struck against the motor cycle from the front side. As a result of the accident both the claimants fell down and received serious injuries. Regarding the accident FIR No.274 dated 26.9.2003 under sections 279/336/337 IPC was registered against respondent No.1 in Police station Ellenabad. Claim was contested by raising preliminary objections regarding maintainability, cause of action and it was also asserted that the claim petition was false and frivolous. It was denied that the accident had taken place due to rash and negligent driving by respondent No.1. It was alleged that fault was with the motor-cyclist. A separate written statement was filed by respondent No.3 by claiming, that injuries were not suffered in the accident. Respondent No.1 was said to be not holding a valid and effective driving license at the time of accident. Plea that the accident was not caused by rash and negligent driving by respondent No.1 was also taken. The Insurance Company denied its liability to make the payment, on the ground of violation of terms and FAO No.2865 of 2008 3 conditions of the Insurance Policy. On appreciation of evidence, learned Tribunal recorded a finding that the accident in question took place due to rash and negligent driving of Jeep No.RJ-31C/1249 by respondent No.1. On issue No.2 the claimants were held entitled to compensation for the injuries suffered by them. Issue No.3 was decided against the respondents and in favour of the claimants as respondents failed to lead any evidence to show that respondent No.1 did not hold valid driving licence. Issue No.4 regarding maintainability of the claim petition was not pressed. Learned Tribunal on appreciation of evidence found, that Sant Lal appellant in FAO No.2865 of 2008 was not in a position to speak. It was also found as a fact that the appellant Sant Lal had spent an amount of Rs.56,148/- (Rupees fifty six thousand one hundred and forty eight only) on his treatment, and that he had a permanent disability to the extent of 50.5 per cent. Learned Tribunal, therefore, held that the Sant Lal appellant was entitled to a sum of rs.56,148/- (Rupees fifty six thousand one hundred and forty eight only) on account of medical expenses as per bills placed on record. On account of disability he was allowed a sum of Rs.1,11,000/- (Rupees one lac and eleven thousand only) and additional amount for pain and suffering amounting to Rs.25000/- (Rupees twenty five thousand only) and for loss of speech he was allowed a sum of Rs.30,000/- (Rupees thirty thousand only). A total sum of Rs.2,22,148/- (Rupees two lacs twenty two thousand one hundred and forty eight only) was allowed to him as FAO No.2865 of 2008 4 compensation. He was also granted interest at the rate of 8 per cent per annum from the date of filing of claim petition till realization. In case of Vijay Kumar in FAO No.2866 of 2008, learned Tribunal came to the conclusion that Vijay Kumar spent a sum of Rs.16,865/- (Rupees sixteen thousand eight hundred and sixty five only) on his medical treatment and his permanent disability was assessed at 60 per cert. He was accordingly allowed a sum of Rs.1,20,000/- (Rupees one lac twenty thousand only); Rs.25000/- (Rupees twenty five thousand only) for pain and suffering and Rs.50,000/- (Rupees fifty thousand only) for right arm which was said to have been crippled. A total sum of Rs.2,11,865/- (Rupees two lacs eleven thousand eight hundred and sixty five only) along with interest at the rate of 8 per cent per annum was allowed. Workmen Compensation Act shows percentage of loss of earning capacity in pursuance to the injuries which resulted in permanent disablement, and Schedule-II of Motor Vehicles Act gives the formula to assess the compensation payable. Mr.Dheeraj Narula, learned counsel appearing on behalf of the appellants, challenged the findings of learned Tribunal on issue No.3 regarding the grant of compensation, by claiming that compensation was inadequate, keeping in view the injuries and disability suffered by the appellants. Learned counsel for the appellants contended that in order to assess the compensation payable, it was necessary for the Tribunal to have taken into consideration the annual loss of income by applying multiplier FAO No.2865 of 2008 5 applicable keeping in view the age on the date of accident in determining the compensation. He referred to Clause-V of Schedule II of the Motor Vehicles Act which reads as under: “Disability in non-fatal accidents: The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following:- (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923. It was contended that in view of the injuries and disability suffered and keeping in view the loss of income as envisaged under Schedule-II, the appellants in both the cases were entitled to compensation to the tune of Rs.10 lacs each, as there was total loss of income which they FAO No.2865 of 2008 6 were earning. It is not disputed that no proof of income was produced on record, nor it was shown that the appellants were carrying on the business of dairy farming. Keeping in view the fact that the appellants were able bodied persons, therefore, they must be earning at least a sum of Rs.3000/- (Rupees three thousand only) per month and keeping in view the age of the appellants, a multiplier of seventeen was to be applied to the loss of income. Loss of income in view of the disability suffered and the nature of business being run by the appellant it can safely be said to be 50 per cent loss qua Sant Lal and keeping in view his permanent disability and 60 per qua Vijay Kumar. The compensation payable for the injuries suffered by Sant Lal would come to Rs.3,06,000/- (Rupees three lacs and six thousand only) (1500 x 12 x 17). In addition thereto, the appellant shall be entitled to a sum of Rs.56,148/- (Rupees fifty six thousand one hundred and forty eight only) on account of medical reimbursement; Rs.25000/- (Rupees twenty five thousand only) for pain and suffering. The appellant would, therefore, be entitled to an amount of Rs.3,87,148/- rounded off to Rs.3,87,000/- (Rupees three lacs eighty seven thousand only). In addition, the appellant is held entitled to interest at the rate of 8 per cent per annum, on the enhanced amount of compensation from the date of filing of claim petition till realisation. In case of Vijay Kumar, keeping in view the age and permanent disability of 60 per cent and in view of the fact that he was able bodied FAO No.2865 of 2008 7 person his loss of income is assessed at Rs.3,67,200/- (Rupees three lacs sixty seven thousand and two hundred only) (1800 x 12 x 17). In addition thereto, appellant Vijay Kumar would be entitled to a sum of Rs.16,865/- (Rupees sixteen thousand eight hundred and sixty five only) towards the medical expenses as per bills and Rs.25,000/- (Rupees twenty five thousand only) towards pain and suffering, totaling to Rs.4,09,065/- (Rupees four lacs nine thousand sixty five only) rounded off to Rs.4,09,000/- (Rupees four lacs and nine thousand only). He shall also be entitled to interest at the rate of 8 per cent per annum on the enhanced compensation from the date of filing of the claim petition till realization. Both the appeals are disposed off by enhancing the compensation payable. No costs. (Vinod K.Sharma) 8.01.2010 Judge rp