Vijay Nandkishore Bhave vs Sukhvinder Singh Kamal Singh Kang & Anr.

The appellant is challenging the judgment and award dated 20.03.2023 rendered by the Member, Motor Accident Claims Tribunal, Osmanabad, in Motor Accident Claim Petition No.426 of 2018, partly awarding the compensation of Rs.6,42,000/- with interest @ 7% per annum from the date of petition till its realization.

The appellant/claimant sustained injuries in a vehicle accident involving crane bearing registration No. MH-40-P-1055 and appellant's motorcycle. The factum of the accident and the involvement of the offending vehicle are not in dispute. The Tribunal attributed 70% negligence to the driver of the crane and 30% contributory negligence to the claimant.

The grievance of the appellant is regarding the assessment on lower side of income, functional disability, future prospects, medical expenses and contributory negligence. The appellant has claimed an enhancement contending monthly income ought to have been taken at Rs.15,000/- and functional disability at 100%.

In support, the learned counsel for the appellant has relied upon following judgments;

The learned counsel for the appellant further relied on the notifications of Ministry of Labour and Employment, dated 03.01.2020 and 28.09.2018 issued by the Ministry of Labour and Employment, Government of India.

The Tribunal attributed 70% negligence to the driver of the Crane and 30% contributory negligence to the claimant. The appellant has admitted that he was not wearing a helmet at the time of the accident. Having regard to the said admission, the findings of the Tribunal, attributing 30% contributory negligence to the claimant cannot be said to be without basis or unsupported by the material on record. Therefore, there is no reason to interfere with the said finding in relation to contributory negligence.

The claimant asserted earning of Rs.15,000/- per month from a tea stall. However, no documentary evidence was produced to establish the actual income. Therefore, the said income could not be accepted. Learned counsel for the appellant has relied upon notification dated 28.09.2018 issued by the Ministry of Labour and Employment, Government of India, prescribing revised minimum rates of wages, which came into effect from 01.10.2018. Since the accident in the present case occurred on 18.07.2018, the said notification, having come into force subsequently, cannot be directly applied for determining the income as on the date of accident. Whereas the notification dated 03.04.2018 issued by the said Ministry, which was operative during the relevant period, therefore, provides an appropriate benchmark for assessing the income in the absence of proof of actual earnings.

Having regard to the nature of the claimant's asserted occupation and in the absence of documentary evidence regarding actual income, the claimant is to be treated as an unskilled worker same falls within Zone 'C', applying the notification dated 03.04.2018 is taken as the appropriate basis for assessing his income. Accordingly, the monthly income of the claimant is assessed at Rs.8,268/-, calculated @ Rs.318/- per day for 26 days in a month.

The claimant was aged about 26 years and the multiplier of 17 adopted by the Tribunal is maintained. Considering age and self-employment, an addition of 40% towards future prospects would be appropriate.

Accordingly, the annual income of the claimant comes to Rs.8,268 × 12 = Rs.99,216/-. Adding 40% towards future prospects, it comes to Rs.1,38,902/-. Applying the multiplier of ‘17’, the amount comes to Rs.23,61,334/-.

In the present case, the Medical Officer has deposed that the claimant is unable to do the labor work. The claimant was engaged in the same nature of work prior to the accident. The effect of permanent disability is not merely physical but directly impacts earning capacity. In view of the judgment rendered by Apex Court, in the case of Shankar Dutt versus United India Insurance Company Limited and others, (2026) INSC 656, observed as under;

The fact that medical disability is assessed at 55% by the Tribunal does not preclude the court from assessing the functional disability at 100%, when the evidence establishes that the claimant is unable to perform labor work which he was discharging prior to accident. Having regards to the nature of injuries, permanent disability, age of the claimant, occupation and examination of Medical Officer regarding inability to do labor work, the functional disability affecting earning capacity is assessed at 100%.

So far as the medical expenses are concerned, the determination by the Tribunal deserves to be maintained. The amount awarded towards pain and suffering, loss of amenities, and special diet, transportation and attendant charges, being Rs.50,000/- each, are also maintained, after addition it comes Rs.29,11,334/-.

Since the claimant is held to be 30% contributory negligent, an amount of Rs.8,73,400/-. is deducted from Rs.29,11,334/-. Thus, the claimant is entitled to Rs.20,37,934/- towards compensation. The Tribunal has awarded to Rs.6,42,000/-. Consequently, the claimant is entitled to an enhanced compensation of Rs.13,95,934/-. The amount of compensation shall carry interest @ 7% per annum from the date of the presentation of claim petition till its realization.

In view of the above, following order is passed;