Puneet Gupta, J
1. The learned Motor Accident Claims Tribunal, Rajouri has vide award dated 21.10.2021 awarded Rs.8,96,520/- along with interest pendentelite and future @ 9% per annum in favour of the appellant-claimant. The liability has been fastened upon the respondent No.3-Insurance Company by the Tribunal.
2. The claimant has filed the present appeal for enhancement of compensation in his favour. The respondent Nos. 1 & 2 are not required in the case as the liability, as stated above, has been fastened upon the Insurance Company and the enhancement, if any, is to be directed the same is required to be met by the said respondent-Insurance Company.
3. The appellant met with an accident on 04.11.2018 and suffered permanent disability.
4. The Court need not go into the accident details and the basic liability of the Insurance Company to pay the compensation as may be determined by the Court as the Insurance Company has been held liable to pay the compensation to the claimant by the Tribunal and the same has attained finality. The respondent-Insurance Company has not filed any appeal against the award passed by the Tribunal.
5. The scanned record of the Tribunal is before the Court.
6. The just compensation is required to be awarded to the claimant in a claim petition filed under the Motor Vehicles Act.
7. The Tribunal while awarding compensation has assessed the monthly income of the appellant as Rs.8000/- who was second cook with the British Petroleum Shipping Company Limited. The argument of the counsel for the appellant is that he has placed on record the salary certificates issued by the Company and as per the same the monthly income of the appellant in Indian rupee comes to Rs.30,000/-. The Tribunal has not taken into consideration the said certificates as they are stated to have not been proved by the appellant.
8. The learned counsel for the respondents submits that there is no error in assessing the income of the appellant as Rs.8000/- per month in view of the aforesaid finding of the Court. The documents are not produced by the appellant.
9. The counsel for the appellant, however, submits that the respondent-Company did not dispute the certificates which were placed on record by the appellant.
10. The Court is of the view that it was for the appellant to prove sufficiently the documents placed on record as the same are produced by the appellant and purportedly issued by the foreign entity. The appellant was second cook with the said Company, however, need not be disbelieved. The Court can infuse some guess work while assessing the monthly income of the appellant. The appellant could be earning more than what an ordinarily the cook may earn in India. The income assessed by the Tribunal to the extent of Rs.8000/- does not reflect what could be more probable earning/salary of the appellant in the job in which he was at the time of accident. The Court cannot take pedantic view while assessing income of the claimant. The Court is of the view that the monthly income of the appellant can be assessed at Rs.15,000/- per month and not Rs.8000/- as held by the Tribunal. The appellant is also held entitled to 40% on account of future loss of income as the income of the appellant was not fixed and was 28 years of age at the time of accident.
11. As per the medical disability certificate issued by the board of doctors and the statement of the doctor, the appellant had suffered 36% permanent disability of lower limb. As per the statement of the doctor, the patient was operated by ORIF with proximal tibial locking plate for fracture intra articular proximal tibia left side on 06.11.2019. Doctor has further stated that the patient has decreased range of motion left knee joint with post traumatic stiffness and arthritis and atrophy of muscles of right thigh. The patient walks with limp and has permanent disability of 36%. It is correct that the percentage of disablement he had mentioned pertains to 36% of the left lower limb only. The disablement does not pertain to whole body.
12. The counsel for the appellant further argued that the Tribunal has committed mistake in assessing the permanent disability as 36% instead of 100% for the nature of disablement which the appellant has received. The medical board has assessed the injury at 36% of the lower limb which in the present circumstances can be considered as of the whole body.
13. The Court does not find any reason to interfere into the percentage of disability assessed by the Tribunal keeping in view the nature of injury suffered by the claimant.
14. The multiplier of 18 is required to be applied in the case in hand keeping in view the age of the appellant at the time of accident.
15. The Tribunal has taken care of the medical bills amounting to Rs.1,30,000/- placed on record and has also granted compensation to the tune of Rs.54000/- on account of expenditure for two attendants as the appellant initially was admitted in the District Hospital, Rajouri and then treated for injuries at Hardas Singh orthopedic hospital, Amritsar. The amount awarded on the aforesaid account is genuine and needs no interference from the court. Rs.50,000/- awarded for transportation need no increase.
16. The counsel for the appellant has strenuously argued that the Tribunal has failed to award the damages on account of pain and sufferings and loss of amenities adequately keeping in view the nature of injury received by the victim in capacitated him for rest of his life.
17. The counsel for the respondent-Company has submitted that the findings of the Tribunal require no amends from this Court. The appellant is not entitled to any enhanced compensation on account of aforesaid heads. The medical certificate issued by the Board of doctors coupled with the statement of Dr. Irfan Malik reveal that atrophy of muscles is recoverable and that the percentage assessed of 36% is of the left lower limb only. It has not come on record that the victim-claimant requires any special treatment which may require any additional spending of amount significantly by him.
18. The injury reflected in the medical evidence of the claimant is one for which the appellant has to suffer. The damages awarded for pain and suffering and loss of amenities do require increase in the case in hand. Accordingly, the amount awarded under the head pain and suffering is increased from Rs.35,000/- to Rs.50,000/- and for loss of amenities from Rs.25,000 to Rs. 60,000/-. The appellant has also been granted diet expenses to the tune of Rs. 10,000/-. No increase is either warranted under this head. Thus, the total amount to which the appellant is held entitled to under various heads is as under:
1. Income : Rs. 15,000/- P.M
2. Future prospects : (40% of Rs.15,000/- =Rs.6000/- )
Rs. 15,000 + Rs. 6000
= Rs. 21000/-
3. Multiplier : 18
4. Total income : Rs. 16,32,960/- (Rs.21000 x 12 x 18
x 36%)
5. Pain and suffering
and loss of amenities : Rs.1,10,000/-
6. Medical Bill : Rs.1,30,000/-
7. Expenses for (2) attendants : Rs.54,000/-
8. Transport Charges : Rs.50,000/-
9. Diet expenses : Rs.10,000/-
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Total : Rs.19,86,960/-
19. Thus the appellant-claimant is held entitled to Rs.19,86,960/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till realization of the whole amount.
20. The appeal is, accordingly, allowed and the award is modified on the aforesaid terms.
