SRI KUMARESH Vs THE DIVN.MANAGER NATIONAL INS.CO.LTD.ANR
Bench: G.S. SINGHVI,ASOK KUMAR GANGULY, , ,
Case number: C.A. No.-003784-003784 / 2011
Diary number: 4628 / 2010
Advocates: V. N. RAGHUPATHY Vs
R. D. UPADHYAY
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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3784 OF 2011 (Arising out of Special Leave Petition (C) No.5454/2010)
Sri Kumaresh ...Appellant(s)
- Versus -
The Divl. Manager National Insurance Co. Ltd. & Anr. ...Respondent(s)
J U D G M E N T 1
GANGULY, J.
1.Leave granted.
1.On 1.11.2006, at about 7.15 p.m., the appellant
was proceeding on a motorcycle (No. KA-04-X-4576)
as a pillion rider on T.C. Palya Miand Road, near
Raghawendranagar, when a lorry (No. KA-22-A-6772)
came from behind at a high speed and dashed
against the motorcycle. The left wheel of the
lorry ran over the right leg of the appellant,
due to which he sustained grievous injuries. The
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right leg of the appellant had to be amputated as
a result of the accident.
1.The appellant filed a claim petition under
section 166 of the Motor Vehicles Act, 1988
claiming Rs.15 lacs as compensation. At the time
of the accident, the appellant was aged 20 years
and claimed to be earning Rs.6000/- per month as
salary as a building centering worker.
1.The Motor Accident Claims Tribunal (MACT) held
that in motor accidents cases, strict proof of
rash and negligence need not be established as
was required in criminal cases, and accordingly 3
concluded that it was clearly established that
the appellant sustained injuries as a result of
the accident. The appellant had sustained
fracture to both bones of lower 1/3 tibia and
fibula, and the right leg below knee was
amputated. Thus, the MACT awarded Rs.50,000/- for
pain and suffering. Due to the accident, the
appellant was treated as both an in-patient and
out-patient, and considering the nature of
injuries, MACT awarded Rs.15,000/- under the head
of loss of income during treatment period. MACT
also awarded Rs.5,000/- for medical expenses to
the appellant even though no medical bills or
prescriptions were produced. MACT assessed 4
disability of the whole body at 20%, and took
monthly salary to be Rs.3,500/- and hence
assessed loss of future income at Rs.1,51,200/-
(Rs.3500 X 12 X 18 X 20/100). MACT also awarded
Rs.10,000/- towards loss of marriage prospects
and Rs.10,000/- toward frustration, unhappiness
and discomfort, Rs.10,000/- towards transport and
conveyance and Rs.15,000/- towards loss of
amenities of life, Rs.5000/- towards attendant
charges and Rs.10,000/- towards food and
nourishment. Accordingly, total compensation
payable to the appellant amounted to
Rs.2,81,200/- with costs and simple interest at
6% p.a. It was payable jointly and severally by 5
the owner and Insurance Company respectively.
However, in view of the insurance policy only the
Insurance Company was liable to pay the entire
compensation.
1.Aggrieved, the appellant preferred an appeal to
the High Court of Karnataka. The High Court
partly allowed the appeal and modified the
compensation awarded by the MACT as follows:-
Rs.50,000/- for pain and suffering, Rs.15,000/-
for loss of income during period of treatment,
Rs.5,000/- for medical expenses, Rs.3,78,000/-
(Rs.3500 X 12 X 18 X 50%) for loss of earning
capacity and loss of future earnings, Rs.75,000/- 6
for loss of amenities and enjoyment of life,
including loss of marital prospects, Rs.10,000/-
for conveyance charges, Rs.5,000/- towards
attendant charges and Rs.10,000/- towards food
and nourishment. Thus, total compensation was
enhanced to Rs.5,48,000/- with 6% interest p.a.
payable from date of the claim petition till
realization.
1.Being still aggrieved, the appellant preferred
the present appeal for further enhancement of
compensation. Having gone through the material on
record and after hearing the parties, we are of
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the opinion that the compensation amount deserves
to be enhanced.
1.We note that before the MACT, the appellant
contended that he was earning a monthly salary of
Rs.6000/- as a centering worker. He produced a
salary certificate to that effect. Further, his
employer also stated that the appellant was
working under him as a building centering worker
for the last two years and was drawing a salary
of Rs.6,000/- per month. The appellant was also
getting boarding and lodging in the house of his
employer. However, from the cross-examination of
his employer, it does not appear that the 8
appellant was earning Rs.6,000/- per month. We
accept that the monthly income of the appellant
cannot exceed Rs.4,000/-.
1.High Court arrived at a disability of 50% by
looking into Schedule-I to the Workmen
Compensation Act, 1923, where percentage of loss
of earning capacity due to amputation below knee
with stump exceeding 12.70 cms. was determined at
50%. In the present case, the doctor had assessed
permanent residual physical disability of about
70% of right lower limb, which is about 35% of
the whole body.
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1.It is clear that the appellant is a manual
labourer and loss of his leg below the knee will
drastically affect his ability to perform
building centering work, or even any other manual
labour. Hence, we sustain the disability
assessment by the High Court. As the appellant
is aged 20 years, a multiplier of 18 has been
correctly selected.
1.Accordingly, compensation for loss of future
earnings amounts to Rs.4,32,000/- (Rs.4000 X 12 X
18 X 50%).
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1.The appellant is aged just 20 years and one of
his legs has been amputated below the knee. It
will not only severely affect his future
prospects of earning, but he will also have to be
permanently disabled for life and suffer the
necessary discomforts accompanying living without
a leg. It greatly minimizes his chances of
getting married. In light of all this, we enhance
amount awarded for loss of amenities and
enjoyment of life, including loss of marital
prospects, to Rs.3,00,000/-. We also enhance the
amount awarded for medical expenses for his whole
life to Rs.1,00,000/-, conveyance charges to
Rs.50,000/- and for food and nourishment to 1
Rs.50,000/- considering the nature of injuries
sustained by the appellant. Compensation awarded
by the High Court under the other heads is
sustained.
1.Accordingly, the break-up of compensation is as
follows:
Pain and suffering -Rs. 50,000/-
Loss of income during treatment -Rs. 15,000/-
Medical expenses for whole life -Rs.1,00,000/-
Loss of future earnings -Rs.4,32,000/-
Loss of amenities & enjoyment of Life Including loss of marital Prospects -Rs.3,00,000/-
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Conveyance charges -Rs. 50,000/-
Food and nourishment -Rs. 50,000/-
TOTAL -Rs.9,97,000/-
1.Accordingly, compensation is enhances to
Rs.9,97,000/-, which we round off to
Rs.10,00,000/- (Rupees Ten Lacs). Interest shall
be payable on the enhanced amount at 9% p.a.
1.It appears that by an order of this Court dated
30.3.2011, the name of the driver of the
offending vehicle was deleted from the array of
parties. Thus, compensation shall be paid to the
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appellant jointly and severally by the
respondents.
1.The appeal is partly allowed.
1.No order as to costs.
.......................J. (G.S. SINGHVI)
.......................J. New Delhi (ASOK KUMAR GANGULY) April 29, 2011
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