Birendra Kumar, J
1. The appellant has challenged judgment and award dated 08.01.2015 made by the Motor Accident Claims Tribunal No.1, Udaipur in Motor Accident Claim Petition No.359/2011. The appellant had claimed compensation for serious injuries/ permanent disablement sustained by him.
2. Challenge is on the ground that the Tribunal has wrongly exonerated respondent no.3 Insurer of offending vehicle from liability on the ground that driver of the offending vehicle had no driving licence. Further challenge is on the ground that meager amount has been awarded, which should be enhanced.
3. Heard counsel for the appellant as well as respondent no.3-Insurance Company.
4. Brief facts of this case are that on 17.12.2010 appellant was driving motor-cycle bearing Regn.No.RJ27/SD-2446. One Dinesh Meena was a pillion. At 4:30 pm a loading Tempo bearing Regn. No.RJ27/GA-7847, being driven by respondent no.1, rashly and negligently caused accident to the motor-cycle riders, wherein the appellant sustained fracture on the right thigh and had to undergo continuous treatment of four months. Respondent no.2 was owner of the said vehicle. The owner and driver did not contest claim case nor produce any evidence. In the aforesaid circumstance, the injured had all the defences available to the owner and driver but the Insurer also did not substantiate the defence raised in the written statement that the driver was not holding any effective and valid driving licence.
5. Learned counsel for the appellant contends that Exhibit-11 is driving licence of driver of offending vehicle, which was issued on 10.11.2010 in favour of respondent no.1. The licence further reveals that it was for driving light motor-vehicle and light load vehicle. The genuineness of driving licence is not disputed herein. Section 2(21) of the Motor Vehicles Act, 1988 defines “Light Motor Vehicle” as a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 Kilograms.
6. Learned counsel for the Insurance Company opposed the prayer and submits that the finding of the Tribunal is consistent with the material available on record, however, does not dispute about the genuineness of the driving licence produced in the case nor the application of law in the matter of calculation of compensation for the injuries.
7. There is evidence that the offending vehicle was a light loading Tempo (three-wheeler). No contrary evidence has been brought on record that the said vehicle was a heavy motor-vehicle as defined under Section 2(16) or 2(17) of the Act, therefore, the only evidence on record was/is that the driver had a valid driving licence to drive a light motor-vehicle and the offending vehicle was within the category of “Light Motor Vehicle”, therefore, the Tribunal has committed error of record in holding that since the driver had no valid driving licence, there was violation of terms of policy of insurance, hence, the Insurer is not liable. Accordingly, finding of the Tribunal is set aside and respondent no.3 is held liable to pay the compensation.
8. Another point of consideration is whether the Tribunal has awarded just compensation based on the material available on the records. It is case of the appellant that at the time of sustaining serious injuries, he was aged about 22 years and was a labour earning Rs.4,500/- per month. No contrary evidence was on the record, hence, the Tribunal accepted the aforesaid income of the appellant and calculated the yearly income as Rs.54,000/-. Thereafter the Tribunal applied multiplier of 17 and the amount came after multiplication as Rs.9,18,000/-. 15% of the same i.e. Rs.1,37,700/- was awarded for permanent disablement. Besides the aforesaid, the Tribunal awarded Rs.14,500/- based on the vouchers as medical expenses and Rs.13,500/- as loss of three month’s income during treatment. Rs.12,000/- was allowed by the Tribunal jointly for diet, helper and transportation. Further Rs.30,000/- was allowed for pain and sufferings. Total Rs.2,07,700/- was awarded by the Tribunal alongwith 9% interest.
9. Exhibit-12 is a disability certificate issued in favour of the appellant on 07.04.2012, wherein the doctor has recorded 15% permanent disablement for the reason that fracture of mid-part of right femur was caused during the accident and even after treatment, the patient was suffering muscle infirmity, inability to comfortably sit and move.
10. In Raj Kumar Vs. Ajay Kumar & Anr., reported in (2011) 1 SCC 343, Hon’ble Supreme Court stated guiding factors for determining compensation for the personal injuries as follows :-
“6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life(shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amount with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii) (a). We are concerned with that assessment in this case.
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, I.e. the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.”
11. The Hon’ble Supreme Court further held that for assessing the future loss of earning due to permanent disability, the Tribunal/Court must be conscious that the criteria should not be the extent of permanent disability found by the medical experts, rather the assessment should be based on the percentage of inability to the injured, which prevented him from doing the same vocation or from performing other vocations. When the loss of future earning capacity is 100% or more than 50%, the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectations of life, as otherwise there may be a duplication in the award of compensation.
12. In Jagdish vs. Mohan and ors. reported in (2018) 4 SCC 571, the Hon’ble Supreme Court said in para 8 of the judgment as follows :
“8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects: (i) Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life.”
13. Evidently the appellant sustained serious injury of fracture on his right thigh, which must have affected his earning as labour because most of the labour work of an illiterate person is based on his physical fitness and lower limb is an important organ to sustain movement and ability to do physical work, therefore, yearly income of the appellant i.e. Rs.54,000/- is to be multiplied with multiplier of 18 considering age of the appellant at the time of accident, which was 22 years. The payable compensation is calculated as Rs.9,72,000/-.
14. This Court affirms award of the Tribunal to the extent of Rs.14,500/- for medical expenses based on vouchers, however, there is evidence of appellant that for continuous four months he was taking treatment of his fractured thigh. The Tribunal should have awarded loss of income for four months i.e. Rs.18,000/- and not for three months, as done. Very meager amount has been jointly allowed for diet, assistance and transportation. Rs.12,000/- would be payable for four months treatment under head for diet. The Tribunal should have allowed Rs.20,000/-separately for assistance of a helper for atleast four months. Likewise, transportation charges should have been separately allowed as Rs.10,000/- as claimed by the appellant in the claim petition because the claim was not exorbitant and excessive one. For pain and sufferings atleast Rs.1,00,000/- is payable. The total payable compensation is calculated at Rs.11,46,500/-. The aforesaid amount shall be payable minus, already paid amount, if any, alongwith interest of 7% on the enhanced amount within two months by the Insurance Company, failing which, the interest awarded by the Tribunal i.e. 9% per annum would be payable till recovery.
15. Accordingly, the instant civil misc. appeal is allowed.
