MA/199/2005 of MOHD.TARIQ Vs NEW INDIA ASSURANCE CO.LTD.AND ORS on 9 December 2011

1) |Whether approved for reportingin Press/Journal/Media * Yeas/No.ii)VVhetner to be reportedin Digest/Journal: Yeas/No

1) |Engaged as labourer with Truck No.JKQ-5/798, theappellant suffered injuries on November 22, 2001 when, it.met with accident at 9.30 p.m near Malal-Manore.because of the rash and negligent driving of the Truck.|The injuries received by the appellant rendered him.permanently disabled to do any work. He approached the.Motor Accidents Claims Tribunal, Reasi seeking Rs.5.00.lac as compensation for loss of earnings, disablement,caused, and the expenses incurred on treatment. |

2) The New India Assurance Company Limited, the insurer,of the Vehicle, did not file its Response to the Claim.Petition despite availing several opportunities so to do. It.was thereafter set ex-parte.

3) |On the basis of ex-parte evidence, the Motor Accidents.Claims Tribunal, Reasi awarded Rs.1.00 lac along with.interest @ 6% p.a. aS compensation for appellants.

disablement and expenses incurred on treatment vide its.Award dated September 16, 2004.

4)

Dissatisfied with the quantum of compensation, theappellant has come up in Appeal to this Court seeking.modification of Tribunals Award and enhancement ot |compensation. The insurer too has filed Cross Appeal for.setting aside the Award urging that It was not based on.legal evidence. None,nowever, appearedfor|tne|Insurance Company when the Appeal and Cross Appeal,were taken up for consideration. Finding that on last.occasion too, the Insurance Company had opted not to.appear, the appellants Advocate alone was heard on the.

Appeal.

3) |The Statements of the appellant and his witnesses SushilKumar, Mukhtar Anmad and Jal Parkasn support the.appellants case of his disability to undertake any work.because of the Injuries received in motor accident due to.rash and negligent driving of Truck No.5/98-JKQ with,which the appellant was employed as labourer. According to them, the appellant was earning Rupees 4/5 thousand.per month and his ailing father, wife and minor son were.dependent on his earnings. According to the witnesses,|because of the injuries received in accident, the appellantwas unable to move without crutches.

6) |The Medical Certificate issued by Medical Record Officer, Medical College Hospital, Jammu, placed on the records.

of the Tribunal, certifies as follows:-.

Govt. Medical College Hospital JammuMedical Records DepartmentCERTIFICATE FORM

Medical Report submitted by Dr.Saleem Ahmed RegistrarOrtho IVth to the Medical Superintendent, Govt. MedicalHospital, Jammu.

Certified that | have examined Mr. Mohammad Tariq S/oMr. Abdul Rashid R/o Pouni Teh. Reasi Distt. Udhampur aged|about 21 yrs on 4.12.2003 vide OPD No. 5842. He is an old case of|type Illrd compound fracture of Lt. proximal tibia with intra-articular|

extension. He remained aadamitteaq in Ortno unit IVth wef22.11.2001 to 16.22.2002 vide MRD No. 2/9/53 and MLC No. 5009.He also nad fracture of Rt. patella. He was operated on22.11.01 and external fixator Lt. leg was applied popliteal artery|and vein were repaired and fracture patella on Rt. side was fixed|with K-wires and tension band wiring. At present he is suffering|from stiffness of Lt. ankle with equinus deformity and stiffness of Lt.knee with range of motion 15-30 with chronic osteomyelitis of Lt.tibia. He has also stiffness of Rt. Knee with range of motion 0-90.He Is permanently disabled by his Lt. Limb and Rt. Limb and Nis)comnilative disability amounts to 50% (Fifty percent).MOl. [wo black moles on left cheek.

Sd/-|CountersigneaDr. Saleem AnmeaDr. Anti GuptaRegistrar Ortho IVtnAct. H.O.U ortho IVth_

Government Medical College Hospital, Jammu.

No. MRD/4067

Dated 11.12.7003

Copy to tne:-_Mr. Mond. Tariq S/o Sn. Abdual Rashid R/o Pounl Ten.Reasl for Int.Signed in InkMedical Record Officer,Govt. Medical College Hospital,|Jammu(Seal)

1) |The Medical Certificate issued by Medical Record Officer, Medical College Hospital, Jammu _ corroborates thclaimants version of receiving Injuries in accident and.disablement caused thereby.

8) |While considering the appellants Claim, the Tribunal has_not taken note of his monthly income before he was.rendered disabled to earn living because of the injuries.received in accident. Although the Tribunal has indicated|in its Award that the appellant would be unable to move.without crutches for rest of his life, yet only Rs.1.00 lac.which includes Rs.25,565/- spent on treatment of Injuries, was awarded as compensation.

9) |During the course of consideration of Appeal, theappellant, who was on crutches, showed the condition ofhis lower limbs.

Tne wounds were oozing and the lower limbs wereIn bad snape. According to the appellant, the doctors had.advised amputation of leg but this could not be done.because of non-availability of funds.

10) || have considered the appellant and his learned counsels|submissions. Law laid down by Hon ble Supreme Court of|India In|Raj Kumar vs. Ajay Kumar and another, reported|as (2011) 1 SCC, 343 has been taken note of while.considering the material placed on records of the.Tripunal.

11) |Before examining the appellants case for enhancement,of compensation, It would be advantageous to refer towhat was said by Supreme Court of India on General,Principles relating to compensation in Injury cases. It reads thus:-|

General Principles relating to compensation in injury caseshe provision of the Motor Vehicles Act, 1988 (‘the|Act’), for short) makes it clear that the Award must be just,which means that compensation should, to the extentpossible, fully and adequately restore the claimant to the|position prior to the accident The Object of awardingdamages is to make good the loss suffered as a result ofwrong done as far aS money can do so, in a fair, reasonable|and equitable manner. The Court or the Tribunal shall haveto assess the damages objectively and exclude fromconsideration any speculation or fancy, though someconjecture with reference to the nature of disability and itsconsequences, is inevitable. A person is not only to becompensated for the physical injury, but also for the losswhich he suffered as a result of such injury. This means that.he is to be compensated for his inability to lead a full life, his’inability to enjoy those normal amenities which he wouldhave enjoyed but for the injuries, and his inability to earn asmucn as ne used to earn or coulda nave earned.

12) |The)evidence.producedby theappellant.amplydemonstrates that the injuries received by him in motorvehicular accident have disabled him for rest of life toearn his living. This apart, he has suffered pain andtrauma and continues to remain in painful condition as Itwas so demonstrated when he appeared in the Court.

Having been disabled to earn living because of theinjuries received in motor accident at the age of 19, hisdisability is required to be taken as hundred percentnotwithstanding the fact that the Medical Certificateindicates him to have suffered 50% disability. This is so

because nis permanent disablement to undertake anywork to earn living, entitles him to receive compensationfor the loss caused to him in his earnings for rest of thelife. In terms of the law laid down by Hon ble SupremeCourt of India, the loss caused to him because of hisdisablement is, therefore, required to be assessed,besides awarding him compensation for pain and trauma.Although the claimant did not produce any oral evidenceto prove the Medical Certificate and the bills in support ofhis claim for reimbursement of the amount spent on histreatment and there is no documentary evidence onrecords about his earning Rs.4/5 thousand per month, yetnon production of oral evidence in support of thedocuments placed on records and the documentaryevidence in support of his monthly income does not, Inany way, nullify the effect of unimpeachable oralevidence, which otherwise corroborates the case set upby the appellant about his employment as labourer andhaving suffered injuries disabling him to earn his living forrest of his life.

13) |

14) |In the absence of documentary evidence to support his:claim that he was earning Rs.4/5 thousand per month byworking as labourer with Truck, it is difficult to recordfinding as to the exact monthly income of the appellant.However, the oral evidence produced by him amplydemonstrates anda proves tnat he was working aslabourer and feeding his family from his income. In thesecircumstances, some guess work needs to be applied to.determine his income. It would be safe to take his.monthly income as Rs.2,000/- when he was disabledbecause of the injuries. The annual loss caused to himbecause of his. disablement would, therefore, beRs.24,Q000/-. The suitable multiplier in view of his age, as indicated In|Sarla Verma’scase, would be 18. Applying|multiplier method for assessing compensation, he wouldentitietO|Rs.4,32,000/-..AddingRs.25,000/-.as|compensation for pain and trauma and Rs.20,000/-,which may be needed by him for further operation, theappellant.IS.foundentitled|tO|Rs.4,/77,000/-as|compensation.

The above amount of compensation, taking over all|view of the appellants case, would be just andreasonable compensation to him for the disablementcaused, In that, if the above amount was kept In a FixedDeposit, it would yield near about the same amount, byway of monthly interest, which the appellant had beenSpending for his and his family’s sustenance.

15) |

In view of the above, finding of the Tribunal is modifiedand the appellant held entitled to Rs.4,/7,000/- ascompensation along with interest @ 6% per annum.This Appeal, accordingly, succeeds and is, therefore,allowed modifying the Motor Accidents Claims Tribunal,Reasli’s Award dated 16.09.2004 as Award for an amountof Rs.4,/7,Q000/- along with interest @ 6 % p.a. from thedate of filing of the Claim Petition till its realization.

16) |

Cross Appeal (C) No.6/2005 shall stand dismissed.

Insurance Company to satisfy the Award within six.weeks_

(J.P.Singh )Judge|

Jammu:09.17.2011Vinod.