FAO/141/2017 of SUSHIL BHIMTA Vs VIJAY on 31 December 2018

1. FAO No. 79 of 2017.

Bajaj Allianz General Insurance Co. Ltd.

…..Appellant.

Versus

Sushil Bhimta & Others

....Respondents.

1. FAO No.141 of 2017.

Sushil Bhimta

…..Appellant.

Versus

Vijay & Others

....Respondents.

Coram:

.The Hon’ble Mr. Justice Sureshwar Thakur, Judge Whether approved for reporting?[1] Yes.

For the Appellant(s):

Mr. Jagdish Thakur, Advocate, forthe appellant in FAO No. 79 of2017 and Mr. Virender Sharma,Advocate, for the appellant in FAONo. 141 of 2018.

1 Whether reporters of the local papers may be allowed to see the judgment?

Sureshwar Thakur, Judge.

Both the afore FAOs, arise, from a awardpronounced, by the learned Motor Accidents ClaimsTribunal (IV), Shimla, H. P., upon, MACT Petition RBT No.112/-S/2 of 2014, and, the respectively aggrievedtherefrom, the claimant, and, the insurer, respectivelyraised contention(s) therein, vis-a-vis, the amount ofcompensationdeterminedtherein,warrantingenhancement, and, reduction. Since, obviously both theafore FAOs, stand directed against a common award, hence, both are amenable for rendition of a commonverdict thereon.

2. The learned counsel, appearing for the insurerof the offending vehicle, does not, contest the validity, of,affirmative findings returned, (a) upon, the issueappertaining to the relevant accident, being a sequel ofrash and negligent manner of driving of the offendingvehicle, by its driver, namely, Vishal Shankra, and, (b) norhe contests, the, fastening of the appositeindemnificatory liability, upon, the insurer of theoffending vehicle.

3. In sequel to the injuries entailed, upon, theclaimant, 90% disability as encapsulated, in, the appositedisability certificate, embodied in Ex.PW6/M, hence stoodencumbered, upon, the claimant. Dr. Lokinder Sharma,who stepped into the witness box, as PW-7, (a) has, in hisdeposition comprised in his examination-in-chief, madegraphic echoings, qua with the passage of time, the, physical condition of the claimant, rather, than improvingwould deteriorate, and, he has further voiced therein,that, the claimant would be requiring regular follow uptreatment. He has also in his deposition, echoed, qua thedisability would impede the claimant, in his enjoyinghence connubial bliss. The insurer has not contestedthe factum, that, the disability, certificate borne inEx.PW6/M, being connected with the injuries, hence,suffered, in the relevant accident, by the claimant.However, the learned counsel for the insurer hascontended, with much vigour before this Court, (i) thatthe afore echoings, borne in the deposition of PW-7, whoauthored Ex.PW6/M, coming under an eclipse, (ii) givenRW-2, an Investigator appointed by the Insurer, fordetermining the physical condition, of the claimant, afterinteracting with the claimant, his preparing CD, borne inEx.RW2/A, and, also with his in consonance therewith,rendering, a, deposition qua his, at the relevant time,

hence noticing the petitioner/claimant's movement oflimbs, being free from any hindrance, (iii) and, also withRW-4, (Dr. Jabon Pramodh Kumar), in his depositioncomprised in his examination-in-chief, testifying, qua aperson, suffering from quardi paralegia rather beingunable to move his four limbs, i.e. both hands and bothlegs, and, with his further testifying, that, on hiswatching, the CD, borne in Ex.RW2/A, his noticing thatthe claimant, is, standing with help of his hands, and, hisalso noticing, in, the CD that the claimant is sitting withthe help of his hands, (iv) thereupon, the per centum ofdisability pronounced in Ex.PW6/M, being amenable fordiscarding, and, also hence no invincible conclusion beingformable (a) qua any permanent loss of enjoyment of life,hence, besetting the claimant; (b) or any permanent lossof income to the claimant, from his purported avocation,also being beset upon him, (c) and, nor permanent lossof enjoyment of connubial bliss, rather also being encumbered, upon, him, hence compensation asassessed upon the claimant, rather warranting reduction.However, the afore evidence, does not, have the aptbefittingeffect,for,hencerepulsingthepronouncement(s), occurring in Ex.PW6/M, (d) given RW-2in his cross-examination, making an echoing, that, his notholding, a, MBBS degree, and, with his also making, an,articulation qua, a, patient afflicted with quardicparaplegia, being hindered or precluded, to perform dayto day activities, except with the help, of attendants, (e)and, further with PW-4, in his cross-examination,admitting that Ex.PW6/M, stands issued by the MedicalBoard, as per the norms, and, his also admitting, that, apatient of quadriplegia, can have sensation in his limbs,but, he cannot move them, (f) and, with RW4 thereafteradmitting, that the if, there were chances improvement,in the condition of the claimant, rather only, a, temporarydisability certificate, would stand issued, than, a permanent disability certificate. Consequently, thefurther effect, thereof, is that rather there being, a, totalimpairment of the limbs of the claimant, and, henceconcomitant loss of enjoyment of life, and, permanentloss of income, permanent loss of enjoyment, of, maritalbliss, rather besetting him (g) thereupon, in the learnedtribunal hence meteing 10% deductions, vis-a-vis, theloss of earning capacity, vis-a-vis, the hitherto incomederived by the claimants, as a class-C contractor, or asagriculturist, rather is, amenable for interference.

4. The learned counsel appearing, for the insurer,(i) does not contest the factum of the claimant, prior tothe befallment of the disability, upon, him, being anenlisted class-C contractor with the HPPWD, factumwhereof, is, pronounced in the deposition of PW-8. (ii)Though, the petitioner/claimant, has contended, that, hewas drawing an income of Rs.65,000/- per month, from,his avocation. However, the learned tribunal, in respect of the afore avocation, and, on anvil of Ex.PW5/A toEx.PW5/J, has determined, qua his apposite incometherefrom, being pegged in a sum of Rs.20,000/- permonth. However, the afore exhibits respectively,pronounce qua the works awarded to the claimantsrather standing respectively comprised, in, a sum ofRs.3,75,215/-, Rs.32,000/-, Rs.40,000/-, Rs.45,600,Rs.61,600/-, Rs.26,950, Rs.24,000/-, Rs.2,40,000 andRs.2,40,000/-. Even though, the awarding of the aforeworks, hence, occur in close proximity to the accident,and, may constrain this Court, to hold qua the claimant,hence, earning a handsome amount, from his avocation,as, an enlisted Class-C contractor, with the HPPWDdepartment, (a) yet with the afore exhibits ratherdisclosing the afore awarded works, being comprised insums of money, lesser than the per mensem income aspleaded, by the claimant, to, stand reared by him, as, anenlisted Class-C contractor, (b) hence it was unbefitting

to the learned tribunal, to hold, that, the claimant, is,deriving a sum of Rs.20,000/- per mensem, as an enlistedClass-C contractor, with, the HPPWD department.Nonetheless, it is contended by the learned counsel, forthe claimant, that with no evidence hence coming onrecord, that, during the period of his being, enlisted as aClass-C contractor with the HPPWD department, hisbeing black listed, thereupon, he would in futureassuredly stand enlisted, as, a Class-A contractor, and,stand awarded works, holding a sum higher than the onein respect whereof, he stood awarded works, as disclosedin Ex.PW5/A to Ex.PW5/J. However, the afore contention,remains in the realm of conjectures, presumptions, and,assumption, and, it cannot be accepted. Consequently, itis to be concluded, that, the claimant, hence, reasonablyderiving an income of Rs.5000/- per month from hisavocation, as an enlisted Class-C contractor, and, qua therewith given his being incapacitated, by, perennialdisability, to, rear it, hence his being recompensed.5.The learned counsel for the claimant hascontended with much vigour, that, in consonance withthe verdict, pronounced by the Hon'ble Apex Court incase titled as National Insurance Co. Ltd. vs. PranaySethi and others, reported in 2017 ACJ 2700, (i) evenwith respect, to, a person employed in a non governmentorganization, and, vis-a-vis, the self employed person, themeteing(s), of hikes towards future prospects, in therelevant income, is, enjoined to be meted, (i) thereupon,the meteing of hikes, towards, future prospects alsobeing meteable to the claimant, who was, at the relevanttime, engaged as a Class-C, contractor, and, was alsoderiving income, from his horticultural and agriculturalavocations, as evident, from, his uncontrovertedly,hence, holding five bighas of land, whereon, he hasreared an apple orchard, (ii) and, his also making disclosure in his examination-in-chief, qua, his rearing anincome of Rs.four lacs therefrom. However, the aforecontention cannot be accepted, given, the meteing ofhikes towards future prospects, being only, vis-a-vis,employees in a government sector, or, in a nongovernment sector, or, vis-a-vis, self employed person,(iii) or, vis-a-vis, entrepreneurs rearing settled, and,secure incomes, and also all, the afore employment(s) orentrepreneurship(s), necessarily enjoin eruption(s) ofcertain income(s) therefrom, or eruption(s) of certainincome(s), from, any afore employment(s), also, holdingan aura of continuity in future. Since, the awarding ofworks to the claimant, as an enlisted class-C contractor,and, his rearing income, from his orchard, comprised in asum of Rs. Four lacs per mensem, are both entrenchedwith an aura of uncertainty, (iv) AND, the rearings, of,income, from, the apple orchard owned by the claimant,is, also subject, to, variations, rather is dependent, upon, vagaries, of,nature (v) thereupon, when the afore hithertosources, of, incomes hence cannot be concluded tosatiate the afore parameters, applicable, to certain, and,settled incomes, reared from, a partnership firm, or froma private limited company, nor when the afore sourcescan be concluded, to, fall within the category, of,employment, (vi) thereupon, it would be unbefitting toconclude, that, there would be any accretions, in theincome(s) reared therefrom, nor it can be concluded,that, it being appropriate, to mete hikes towards futuregains, if any, thereto.

6. Be that as it may, the learned counselappearing for the insurer has contended, with muchvigour while relying, upon, a judgment of the Hon'bleApex Court rendered in a case titled as State ofHaryana and another vs. Jasbir Kaur and others,reported in 2003 ACJ 1800, that, despite 100% disabilityentailed, upon, the claimant, with, concomitant

permanent loss of income, to the claimant, from, hisavocation as an horticulturist, and, as an agriculturist, (i)nonetheless, with the land whereon, the, apple orchardexists, yet remaining intact, and, rather it beingamenable, for rearing apple crops thereon, rather byengagement of persons, thereupon, a sum of Rs.12,500/-per mensem, assessed as loss of agricultural income,does rather warrant interference. The relevantparagraph No.8, of, the afore verdict, stands extractedhereinafter:- “8. It is clear on a bare reading of the Tribunal's decisionas affirmed by the High Court that no material was placedbefore the former to prove as to what was the income. Asrightly contended by learned counsel for the appellants,there was not even any material adduced to show type ofland which the deceased possessed. The matter can beapproached from a different angle. The land possessed bythe deceased still remains with the claimants as his legalheirs. There is however a possibility that the claimants may be required to engage persons to look afteragriculture. Therefore, the normal rule about thedeprivation of income is not strictly applicable to caseswhere agricultural income is the source. Attendantcircumstances have to be considered. Furthermore, therewas no material before the Tribunal to arrive at the figureof Rs.4500 per month. No reason has been indicated toarrive at this figure. In the light of what has been discussedabove about "just compensation" the income cannot beestimated without any material to justify the estimation. Inthe normal course, we would have remitted the matterback to the Tribunal for fresh consideration. Butconsidering the fact that one young person lost his life,and the matter was pending before the Tribunal and theHigh Court for some years, we feel it appropriate to takeall relevant factors into consideration, and decide thematter. Gauzing the relevant aspects, noted above, themonthly income is fixed at Rs.3000/- per month, and afterdeducting Rs.1,000/- for personal expenses, financialcontribution so far as the claimants are concerned is fixedat Rs.2,000/- per month. Worked out on the basis of multiplier of 18, the compensation is fixed atRs.4,32,000/-. The amount of Rs.2,000/- awarded by theTribunal for funeral expenses is not interfered with andthus the total compensation comes to Rs.4,34,000/-. Therate of interest i.e. 9% per annum as fixed by the Tribunaland affirmed by the High Court is appropriate, and doesnot need any alteration. After adjusting the sum which wasdeposited pursuant to the order of this Court dated14.12.2001, the balance amount along with interest shallbe deposited within three months from today before theTribunal. On the deposit being made along with theamount already deposited, a sum of Rs.3 lakhs shall bekept in the fixed deposit in the name of the claimants and asum of Rs.50,000/- shall be kept in fixed deposit in thename of Smt. Baldev Kaur, mother of the deceased. Theyshall be entitled to draw interest on the deposit, whichshall be re-deposited for further terms of five years. Incase of urgent need, it shall be open to the claimants tomove Tribunal for release of any part of the amount indeposit. The Tribunal shall consider the request forwithdrawal and shall direct withdrawal in case of an

urgent need and not otherwise of such sum as would meetthe need. It shall be specifically indicated to the Bankwhere the deposits are to be made that no advance orwithdrawal of any kind shall be permitted without theorder of the Tribunal. It shall be open to the claimants toapproach the Tribunal for variance of the order relating todeposit in fixed deposit, if any other scheme would fetchbetter returns and also would provide regular andpermanent income.”

The afore decision would be applicable hereat, onlywhen, the claimant, was hitherto evidently hencepersonally performing, the apt agricultural work, (I) and,upon entailment, of, a disability, upon, him, his, beingconstrained, to engage hence attendants or supervisorshence for the relevant purpose. Moreover, in the aforeextracted portion thereof, no, rigorous principle hencestands propounded qua the learned tribunals, despite, a100% disability, being encumbered, upon, the claimant,with a concomitant 100% loss of income, from, his agricultural, and, horticultural pursuits, and, with the landyet remaining intact, for rearing crops therefrom, hence,it being unbefitting, to, award compensation, to, theclaimant towards loss of income, from, horticultural oragricultural sources, (ii) rather when it impliedly standspropounded therein, that, in the absence of the disabledclaimant, hence, personally attending, the, apthorticultural or agricultural work, his, in the face of thedisability encumbered upon him, being led to engageother persons, to perform, the apt agricultural work, and,the expenses incurred by him, for his engaging, otherpersons, being rather befittingly assessable towards loss,of, agricultural income, arising from, a, 100% disabilitybeing encumbered, upon, the claimant. Consequently,when in concurrence, with the latter parameter, hence,the claimant in his cross-examination, rather denied thesuggestion qua his not engaging attendants, for,attending the apt agricultural or horticultural works, upon, his land, and, his paying them Rs.6000, to, Rs.8000per mensem, (iii) AND, further, with the claimant in hisdeposition comprised in his examination-in-chief, makingechoings qua, a, caretaker standing engaged by him, ona monthly salary, and, the insurer, omitting to subjecthim to cross-examination, qua the afore facet, (iv)thereupon, it is to be concluded, that, in the face of thedisability encumbered, upon, the claimant, he isdefraying to the afore two attendants, a, sum ofRs.15,000/- per mensem. 7.However, the claimant, in his depositionomitted to disclose that prior to his being encumberedwith 100% disability, his personally, hence performingthe relevant avocation, of, agriculture or horticulture, (i)thereupon, it stands concluded, that, even prior to therelevant mishap, he, was engaging hence labourers, fordoing the relevant works, and, when he further discloses,that, thereafter also his engaging attendants, for doing, the relevant works, (ii) AND with his disclosing, in his,testification, that, he was drawing an income of Rs.fourlacs per annum, from, his orchard, hence, without hisproducing any record or bills personifying, qua theapposite sale proceeds rather carrying sums equivalentthereto, hence, after deducting, all the relevantexpenditures, rather it deemed fit to infer qua hisdrawing, an, income of Rs.2 lacs per annum, from, hisorchard.

7. In the result, both the appeals are partlyallowed, and, the impugned award is modified, and, it isheld, that, the appellant, shall be entitled, tocompensation under different heads, details whereof, areenunciated hereinafter:- …20…

Compensation on accountAs awarded by the learnedRs.16,00,000/-ofexpenditureontribunalmedicinesCompensation on accountAs awarded by the learnedRs.28,000/-of Hospitalization chargestribunalCompensation on accountAs awarded by the learnedRs.30,000/-of attendant chargestribunal.during hospitalization Compensation on accountAs awarded by the learnedRs.24,00,000/-of future attendant chargesTribunalCompensation on accountAs awarded by the learnedRs.9,00,000/-of future medical expensesTribunal Compensation on accountAs awarded by the learnedRs.1,00,000/-of amenities and loss oftribunalexpectation of lifeLoss of enjoyment ofRs.3,00,000/-connubial blissLoss of AgriculturalRs.15,000/-x12x15Rs,27,00,000/-income/ labour charges forperforming the agriculturalworkTotalRs,90,58,000/-

8. Consequently, the insurer of the offendingvehicle is directed to defray to the claimant totalcompensation of Rs.90,58,000 (Rs. Ninety lacs, fifty eightthousand only) along with interest @ 9% per annum fromthe date of filing of the petition till deposit thereof, withina period of three months from today. All pending …21…

applications also stand disposed of. Records be sentback forthwith.

(Sureshwar Thakur)

31[st] December, 2018. (jai)

Judge.