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Judgment
This Miscellaneous appeal has been filed by the claimant/ appellant Vinod Das in respect of the award dated 21.06.2010 passed by the Court of 17th Additional Motor Accident Claims Tribunal, Jabalpur in motor accident claim case no.176/2008, whereby compensation in the sum of Rs.2,56,267/- along with interest at the rate of 6% per annum from the date of the claim application till the date of the actual payment, was directed to be paid to the claimant for the injuries suffered by him in a motor accident.
The facts giving rise to this miscellaneous appeal may be summarized as hereunder: At about 02:00 p.m. on 08.10.2007, claimant Vinod Das was travelling in truck no. M.P.-20-G-1869 from Mandla to Jabalpur. The truck was loaded with sand and the claimant was travelling in the truck as an employee of respondent no. 2 Balnandan Das. The claimant is son of respondent no. 2 Balandas. The truck was being driven rashly and negligently. Near Katra Naka, it crashed into a parked vehicle. As a result, the claimant suffered a fracture in his left elbow and his left humorous and ulna bones were fractured.
The claimant was employed by his father respondent no. 2 Balnandas, who was the owner of the truck for managing affairs of the truck. He earned Rs.3,000/- per month. As a result of accident, he suffered 70% disability.
On the basis of the evidence on record, the Tribunal held that at the time of the accident, the claimant worked as employee/ representative of his father, the owner of the truck. However, no certificate in this regard was filed; therefore, his income was assessed on the basis of notional income taking minimum wages for a labourer fixed by the Government at Rs.100/-per day and it was assumed that he got employment for around 25 days in a month; therefore, his income was assessed at Rs.2,500/- per month or Rs. 30,000/- per annum.
On the basis of the age recorded in the medico-legal examination report, his age was held to be 35 years. On the strength of the certificate issued by the District Medical Board, it was held that the claimant had suffered 70% disability. A multiplier of 10 was selected and the loss of future income was assessed at 70% of 30,000 x 10 = Rs.2,10,000/-. In aforesaid income, Rs.5,000/- by way of operation charges, Rs.5,000/- by way of transportation charges, Rs.5,000/- by way of expenditure on special diet, Rs.5,000/- by way of pain and suffering, Rs.26,267/- by way of medical expenses (on actual basis) were added and an amount of Rs.2,56,267/- was arrived at as compensation.
Learned counsel for the appellant has assailed the compensation fixed by the Tribunal mainly on the ground that the Tribunal grievously erred in fixing the multiplier of 10. As per the table recommended by the Supreme Court in the case of Sarla Verma Vs. Delhi Transportation Corporation and another, (2009) 6 SCC 121 for the age of 35 years, a multiplier of 16 ought to have been selected. It has also been contended that the Tribunal did not fix any amount for the loss of income during the period subsequent to the accident in which the treatment continued.
Learned counsel for the respondent no. 3 Insurance Company has opposed the appeal contending that the Tribunal failed to take note of the fact that the disability of 70 % assessed by the District Medical Board related to left hand of the claimant and was not in respect of the entire body. It was incumbent upon the Tribunal to have assessed the functional disability with regard to the entire body, which could at best be 1/3 or 1/4 of the disability of a particular limb.
It may be noted here that no age certificate has been filed on behalf of the claimant; therefore, the Tribunal committee no error in assessing the age of the claimant on the basis of the age entered in the Medico-legal examination report; as such, it has been rightly held that on the date of the accident, the age of the claimant was 35 years.
So far as the nature of the employment and income of the claimant is concerned, we may see that as per the case of the claimant, he was deployed by his father on the truck to take care of the same. Thus, he was a sort of manager on the truck. His father was the owner thereof; therefore, it cannot be said that he was a labourer on the truck.
No income certificate has been filed; therefore, the Tribunal has rightly assessed the income of the claimant on the basis of the minimum wages fixed by the State at that point of time. It has also been correctly held that at an average, he would be employed for about 25 days in a month. Therefore, his income was Rs.2,500/- per month. Here, we have to take note of the fact that the accident took place as far back as in the year, 2007. Aforesaid aspects of the matter have also not been challenged before this Court by the learned counsel for the appellant claimant.
As held by the Supreme Court in the case of Raj Kumar Vs.
Ajay Kumar & Anr. (2011) 1 SCC 343, the Tribunal must assess the functional disability suffered by the claimant as a result of the accident. The claimant has examined two doctors namely Dr. Naveen Kothari (appellant''s witness no.2) and Dr. Sharad Dwivedi (appellant''s witness no.3), in order to prove the percentage of the disability suffered by him. Dr. Naveen Kothari had assessed his disability at 50% and Dr. Sharad Dwivedi had assessed the disability at 70 %. Since Dr. Sharad Dwivedi and other members of the District Medical Board had certified the disability to be 70%, the Court shall presume that the claimant had suffered 70% disability. However, it has to be taken note of that aforesaid disability is in respect of the limb involved i.e. the left hand of the claimant. The disability would be much less when assessed in relation to the entire body. No specific question has been asked from the aforesaid two doctors. Moreover, when we take into account the fact that the claimant was representative of the owner of the truck and was not a labourer, it becomes clear that he was not a manual worker but was a kind of manager deployed by his father to look after it''s affairs. Thus, even it is assumed that the claimant had sustained 70% of disability to his left hand, it is clear that keeping in view the nature of his employment, the functional disability would be much less. Thus, in view of all relevant factors, the functional disability in relation to entire body cannot be assessed at more than 50%.
In the case of Sarla Verma (supra) a multiplier of 16 for the age between 31 - 35 years, has been recommended; therefore, the Tribunal erred in selecting the multiplier of 10. It may also be noted that the left hand of the claimant was almost mangled, so it may safely be presumed that he would not have been able to perform his chores and performed his duties for a period of at least 4 months; therefore, he is entitled to the wages he would have earned during that period to that period.
Thus, the loss of future income may be assessed at 50 % of Rs.30,000/- (15,000/-) x 16=Rs.2,40,000/-. As such, the claimant is entitled to Rs. 2,40,000/- by way of loss of future income. He is also entitled to Rs.10,000/- by way of loss of wages for four months. The photographs filed by the claimant reveal the extent of injury sustained by him in his left hand. In view of the injury sustained, Rs.5,000/- for pain and suffering is too little. It is liable to be enhanced to Rs.15,000/- . As held by the Tribunal, he is entitled to Rs.5,000/- by way of Travelling charges, Rs.5,000/- for special diet, Rs.5,000-/ by way of fee of operation, Rs.26,267/- by way of actual expenses incurred upon treatment. The doctors have stated that his wound has still not healed and there was puss formation in the same. Thus, he would certainly require treatment in future also. Therefore, he is also entitled to Rs.10,000/- by way of future treatment; as such, the claimant is entitled to following amounts as compensation.
Rs.2,40,000/- for loss of future income, Rs. 10,000/- for loss of income due to accident, Rs. 15,000/- for pain and suffering, Rs. 5,000/- for travelling charges, Rs. 5,000/- for special diet Rs. 5,000/- for operation fees, Rs. 26,267/- for medical expenses and Rs. 10,000/- for future treatment.
Total- Rs. 3,16,267 Thus, in all he is entitled to Rs.3,16,267/-. Out of the aforesaid amount, he has already been awarded Rs. 2,56,267/- and he is entitled to the remainder amount.
On the basis of aforesaid discussions, the amount of compensation is enhanced from Rs.2,56,267/- to Rs. 3,16,267/-. The appellant claimant shall also be entitled to the interest at the rate of 6% per annum from the date of the filing the claim petition till the date of the actual payment upon the enhanced amount.
In the result, the appeal filed by the appellant claimant is allowed to the extent indicated above. The parties to bear their own costs of this appeal.