Case: Syed Sadiq Etc Vs. Divisional Manager,United India Ins.Co

On 14.8.2008, all the three appellants/ claimants in the appeals herein were proceeding on the left side of the road by pushing the motorcycle bearing Registration no.since it was punctured. When the appellants/ claimants came near the Coper Petrol Bunk, opposite to Jai Hind Hotel, a tractor bearing nocame from the opposite direction on its right side in rash and negligent manner and dashed into the motor cycle and the appellants/claimants. This resulted in all the appellants/claimants sustaining grievous injuries.4. They filed MV Case Nos. 149, 147 and 148 of 2010 respectively before the Motor Accident Claim Tribunal, Chitradurga (for short ‘theThe Tribunal awarded different awards in the three different appeals which had been heard together by the High Court of Karnataka. Since the injuries suffered by the three appellants are different, we are inclined to decide upon the appeals individually. As far as injuries sustained by the appellants in the road accident are concerned, there is no dispute that the accident occurred on 14.02.2008 due to the rash and negligent driving of the tractortrailer bearing registration No.by its driver. The appeals therefore, are confined to determining whether the quantum of compensation which was enhanced by the High Court from that of the Tribunal is just and proper or whether it requires further enhancement in the interest of justice. We take up the appeals one at a time.

Reasoning:
5. It is evident from the material and legal evidence produced on record that the appellant/ claimant in this appeal had sustained injuries to lower end of right femur and his right leg was amputated. Further, he had sustained injury over his left upper arm. The injuries sustained by him and the treatment taken by him are evident from the wound certificate Ex.;8, disability certificate Ex.18 and was further supported by oral evidence of the appellant/claimant and the doctor examined asDr. Rajesh had stated in his evidence that the appellant/claimant had suffered disability of 24% to upper limb and 85% to lower limb. The Tribunal, however, had considered the disability of the appellant/claimant caused to whole body at 30%. The High Court however, taking into consideration the amputation of the right leg of the appellant/claimant, determined the disability at 65% without assigning any proper reason for coming to this conclusion. Therefore, we intend to assign our reasons to hold that the High Court has erred in concluding the disability atAppeal @ MFA 1131/2011 (MVC No. 149/It is evident from the material and legal evidence produced on record that the appellant/ claimant in this appeal had sustained injuries to lower end of right femur and his right leg was amputated. Further, he had sustained injury over his left upper arm. The injuries sustained by him and the treatment taken by him are evident from the wound certificate Ex.;8, disability certificate Ex.18 and was further supported by oral evidence of the appellant/claimant and the doctor examined asDr. Rajesh had stated in his evidence that the appellant/claimant had suffered disability of 24% to upper limb and 85% to lower limb. The Tribunal, however, had considered the disability of the appellant/claimant caused to whole body at 30%. The High Court however, taking into consideration the amputation of the right leg of the appellant/claimant, determined the disability at 65% without assigning any proper reason for coming to this conclusion. Therefore, we intend to assign our reasons to hold that the High Court has erred in concluding the disability atare required to be sensitive while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood. Yet, considering that the appellant/claimant is still capable to fend for his livelihood once he is brought in the market place, we determine the disability at 85% to determine the loss of income.There is no reason, in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning [pic]6,500/. Further, regarding the use of multiplier, it was held in the Sarla Verma v. DTC [2009) 6 SCC 121 ] which was upheld in Santosh Devi case (supra), asWe therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that isfor 26 to 30 years,for 31 to 35 years,for 36 to 40 years,for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is,for 51 to 55 years,for 56 to 60 years,for 61 to 65 years andfor 66 to 70applying the principle of Sarla Verma in the present case, we hold that the High Court was correct in applying the multiplier of 18 and we uphold the same for the purpose for calculating the amount of compensation to which the appellant/ claimant is entitled to.Further, along with compensation under conventional heads, the appellant/claimant is also entitled to the cost of litigation as per the legal principle laid down by this Court in the case of Balram Prasad v. Kunal Saha [Civil Appeal no. 2867 of 2012]. Therefore, under this head, we find it just and proper to allowAlso, by relying upon the principle laid down by this Court in the case of Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy [AIR 2012 SC 100 ], we find it just and proper to allow interest at the rate of 9% perAppeal @ MFA 1132/2011 (MVC No. 147/2010)17. The appellant/claimant in this appeal has sustained type3 compound fracture of right femur, fracture of tibia, fracture of middle shaft tibia and fibula. The injuries sustained and the treatment taken by the appellant/claimant are evident from discharge card Ex.photographs marked as Ex.4, disability certificate marked as Ex.y films Ex.supported by the oral evidence of the claimant and the doctor examined asDr. Rajesh had stated in his evidence that the appellant/ claimant has suffered from permanent disability of 69% to lower limb. The High Court has taken his functional disability at 25%. However, while determining the disability of the claimants in motor accidents cases, this Court might be sensitive about the functional disability involved and the nature of the occupation, particularly, if the occupation involves manual labour. Therefore, we hold that the High Court erred in determining the functional disability of the appellant in the present appeal on the lower side. Since, the appellant/claimant in the present appeal is also a vegetable vendor like the appellant/claimant in Civil Appeal @ MFA 1131/2011, we take his monthly income at [pic]6,500/on average and for the reasons recorded in that appeal, we determine the functional disability of the appellant/claimant in the present appeal at 35%. Considering his age, and based on the legal principle laid down by this Court in the cases mentioned supra, we hold his increment on future income at 50% and the multiplier at 18. Therefore, he is entitled to [pic]7,37,100/The amount awarded by the Tribunal and the High Court under other conventional heads have not been disputed by the appellant/claimant by producing contrary evidence. Therefore, the amount awarded under those heads shall remain constant. Based on the reasoning given by us in the earlier appeal, the appellant/claimant is also entitled to the cost of litigation atAppeal @ MFA 1133/2011 (MVC No. 148/2010)21. The appellant/claimant in this appeal has identified himself as a cleaner of lorries by profession. As per the wound certificate Ex. P219, it has been established that the appellant/ claimant has sustained fracture on middle 1/3rd of right humerus and comminuted fracture at the junction of upper 1/3rd and middle 1/3rd of right tibia. The injuries sustained by him and the treatment taken by him is evident from the disability certificate marked as Ex.y film marked as Ex.which is supported by oral evidence of the claimant and doctor examined asDr. Rajesh has stated in his evidence that the claimant has suffered 22% permanent disability to upper limb and 29% to lower limb. The High Court has calculated the functional disability to 13%. We are inclined to hold that the High Court has erred in ascertaining the functional disability to such a low percentage considering that the appellant/claimant earns his livelihood through manual labour. It is evident from the material evidence produced on record that the appellant/claimant has suffered from comminuted fracture in the accident as a result of which he will not be able to bend, stretch or rotate his right hand. He will also not be able to lift heavy material which is so essential to carry on with his business to earn his livelihood. Therefore, we are inclined to observe that the appellant/claimant suffers from a functional disability to the extent of 85%.On the matter of extent of contribution to the accident, it is held by the Tribunal that the appellants/claimants herein should have taken utmost care while moving on the highway. Looking at the spot of the accident, the Tribunal concluded that the appellants/claimants were moving on the middle of the road which led to the accident. Therefore, the Tribunal concluded that though the tractor has been charge sheeted under sections 279 and 338 of IPC, but given the facts and circumstances of the case, the appellants/claimants also contributed to the accident to the extent of 25%. The High Court without assigning any reason concurred with the findings of the Tribunal with respect to contributory negligence. We find it pertinent to observe that both the Tribunal and the High Court erred in holding the appellants/ claimants in these appeals liable for contributory negligence. The Tribunal arrived at the above conclusion only on the basis of the fact that the accident took place in the middle of the road in the absence of any evidence to prove the same. Therefore, we are inclined to hold that the contribution of the appellants/claimants in the accident is not proved by the respondents by producing evidence and therefore, the finding of the Tribunal regarding contributory negligence, which has been upheld by the High Court, is set aside.We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, Appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between [pic]100/er day or [pic]4500/per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the Appellant from [pic]4500/e is no reason, in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning [pic]6,500/per month.10. Further, it is evident from the material evidence on record that the appellant/claimant was 24 years old at the time of occurrence of the accident. It is also established on record that he was earning his livelihood by vending vegetables.