Hitendra Sharma Vs. New India Assurance Co. Ltd. and ors. - Court Judgment

Arun Mishra, J.

1. The appeal has been preferred by claimant assailing the award dated 3.8.2004 passed by the Tenth Addl. M.A.C.T. (Fast Track), Gwalior in Claim Case No. 35 of 2003.

2. The claimant preferred claim petition on account of personal injury sustained in an accident dated 20.6.2002, he sustained injuries on radius ulna and other parts of the body. He became permanent disabled, he cannot work as a sports teacher. The claimant was working as sports teacher in Wendy School, he used to earn Rs. 4,500 per month. The claimant has suffered surgery twice as well as obtained continuous treatment. Compensation of Rs. 24,00,000 was claimed.

3. The owner and driver of the vehicle remain ex parte.

4. Insurer in the reply denied the liability to make the payment of compensation on the ground that excessive compensation has been awarded to the claimant. Driver of the tanker in question was not having valid and effective licence, the intimation of the accident was not given.

5. The Tribunal has found that accident was outcome of rash and negligent act of driver Whaid Khan. 50 per cent permanent disability has been caused to the claimant and compensation of Rs. 4,64,000 has been awarded, out of which Rs. 3,06,000 has been awarded on account of 50 per cent permanent disability by applying the multiplier of 17 as the claimant was between the age group of 30 and 35 years. For the aforesaid disability Tribunal has awarded a further sum of Rs. 15,000 for further treatment, Rs. 1,38,000 has been awarded towards medical expenditure and Rs. 5,000 was awarded for special diet. Dissatisfied with the quantum of compensation the claimant has preferred the appeal.

6. Mr. B.D. Verma, the learned Counsel appearing for claimant has submitted that appellant was employed as sports teacher in Wendy School. Doctor has opined disability in the right leg was to the extent of 80 per cent to 90 per cent and overall disability has been certified to be 50 per cent. However, the work of the sports teacher requires arduous nature of the duty claimant cannot render the services which he was doing as such, the disability should have been assessed at 100 per cent. There was substantial loss of vision in the right eye and loss of three teeth also. Income of the claimant has not been properly assessed. The claimant used to earn Rs. 4,500 per month and on account of discontinuance of employment due to accident he is unable to earn the livelihood. The amount has not been awarded towards conveyance and on attendant, etc.

7. Mr. Arvind Agarwal, appearing for the insurer has supported the award. The claimant has already been awarded excessive compensation, claimant is able to do any other job, no case for enhancement is made out in the appeal.

8. Considering the nature of injuries and medical evidence, the finding as to the disability as opined by the Medical Board to be 50 per cent arrived at by the Tribunal is hereby affirmed. However, the income has not been properly assessed by the Tribunal. Certificate, Exh. A235 issued by the Wendy School is on record which indicate that he was getting salary of Rs. 4,500 per month. It is also submitted that he was sincere worker of the school, he has lost the job. Thus the annual loss of earning capacity comes to Rs. 2,250 x 12 = Rs. 27,000, the age of the claimant was between 30 and 35 years, multiplier of 17 is applicable and the same is applied. Consequently, on account of loss of earning capacity compensation comes to Rs. 4,59,000. The claimant can perform some other kind of light job. We hereby affirm award of Rs. 1,38,000 for medical expenses, Rs. 30,000 for further treatment as application under Order 41, rule 27, Civil Procedure Code indicates that it is required which application have been allowed in the facts of the case and Rs. 5,000 for special diet. For pain and suffering the Tribunal has not awarded any amount, Rs. 25,000 is awarded on account of physical pain and mental suffering and Rs. 5,000 is awarded for conveyance and expenditure on attendant. Thus, the total compensation under these heads are as under:

(1) For 50 per cent disability Rs. 4,59,000(2) For medical expenses Rs. 1,38,000(3) For further treatment Rs. 30,000(4) Loss of vision Rs. 25,000(5) For special diet Rs. 5,000(6) For conveyance and attendant Rs. 5,000

9. Thus, total compensation amount of Rs. 6,62,000 (rupees six lakh sixty-two thousand) is awarded to the claimants. The enhanced compensation to carry interest at the rate of 7 per cent per annum from the date of filing of claim application till realization.

10. Cross-objection filed by the insurer has not been pressed, the same is dismissed. Appeal is partly allowed.