MA/78/2005 of MUSTAQ AHMAD Vs NATIONAL INSURANCE CO.LTD. AND ORS. on 26 December 2008

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CIMA no.78/2005

Date of Decision: 26.12.2008

Mushtaq Ahmad vs. National Insurance Co. Ltd. & Ors.

CORAM:

MR. JUSTICE J. P. SINGH, JUDGE.Appearing counsel: For Appellant : Mr. R. K. Bhatia, Advocate. For Respondents : Mr. Jugal Kishore, Advocate.

i)Whether approved for reporting in Press/Journal/Media : Yes/No ii)Whether to be reported in Digest/Journal : Yes/No _______________________________________________________________________________

While travelling in Bus bearing Registration no.

JK02B-3875 along with his brother and sister, Mushtaq Ahmad-appellant had suffered injuries when a Bomb had exploded in the Bus. Because of the injuries received in the blast, he suffered loss of hearing which Dr. Mohinder Paul, his witness, had assessed as 84% disability. His Claim petition no. 490/Claim was allowed by Motor Accidents Claims Tribunal, Jammu vide its award of January 29, 2005, awarding him compensation amounting to Rs. 95,000/-, i.e., Rs. 80,000/- for loss of amenities of life, Rs. 10,000/- for pain and suffering and Rs. 5,000/- for the expenditure he had incurred on his treatment.

Dis-satisfied with the quantum of compensation assessed by the Tribunal for the injuries he had received and the disability which he had suffered, the appellant has appealed to this Court.

I have considered the submissions made at the Bar by learned counsel for the parties.

While assessing compensation for loss of amenities of life, the Tribunal had disbelieved appellant’s witness Dr. Mohinder Paul who had certified him to be suffering from 84% loss of hearing power.

In disbelieving Dr. Mohinder Paul, the Tribunal has misconstrued the note which had been recorded during the course of recording claimant’s statement by the learned Presiding Officer of the Tribunal.

I have gone through the statement of the appellant and the note which learned Presiding Officer had made during the course of recording appellant’s statement.

A reading of the note indicates that in order to make the appellant hear, he had to be communicated in a very high pitch.

The Tribunal was not, therefore, right in rejecting Dr. Mohinder Paul’s testimony, in that, the note recorded by the learned Presiding Officer rather supports the expert opinion of Dr. Mohinder Paul. Even otherwise, there was nothing on records, on the basis whereof, the finding of the Tribunal in disbelieving appellant’s witness, may be justified.

The Statement of Dr. Mohinder Paul gets supported from the statement of the claimant as also the observations of the Presiding Officer who had recorded his statement.

The evidence on record further indicates that the injuries received by ten years old Mushtaq Ahmed in the Bomb blast, for no fault of his, has rendered him disabled of his hearing power to the extent of 84% throughout his life as the loss of hearing power, according to the expert witness, is irreparable. Impairment of hearing capacity would not permit him to continue his studies. He had, therefore, to shun his studies and thereby loose the career he had yearned.

Taking all the facts and circumstances of the case in view, in the light of the evidence which the appellant had produced before the Tribunal which had remained unrebutted, I am of the opinion that the compensation awarded to him by the Tribunal for loss of amenities of life, pain and suffering is inadequate which needs to be enhanced so that he gets just compensation in terms of Section 168 of the Motor Vehicles Act.

In order to assess just compensation for the injuries which the appellant had received and the disability which has been caused to him, regard needs to be had to what was held by Hon ble Supreme Court of India in dealing with the case of a boy aged 17 years who had suffered permanent disability of shortening of his right leg by three inches. Their lordships had observed as follows:-

2. In a motor accident which occurred on 6.1.1977, the appellant-Shashendra Lahri suffered multiple injuries which required his treatment as an indoor patient in a hospital at Bhopal and then in a Bombay hospital for a considerable period. The injuries caused several fractures and bone grafting disability of shortening of his right leg by three inches. He was then a student of B.Com. aged about 17 years. It is common ground that the appellant thereafter continued his education and has a good academic career. The Tribunal awarded the sum of Rs.33,000/- only with interest at the rate of 6& per annum towards the claim of more than Rs. 6 lakhs by the appellant. The High Court has enhanced that amount to the total of Rs.58,000/- with interest at the rate of 12% per annum from the date of the claim, until payment. This further appeal by the claimant is for enhancement of that amount.

3. The narration of facts as above is sufficient to indicate that the total award of Rs.58,000/- inclusive of the expenses, is too inadequate for the permanent disability suffered by the claimant. In the special leave petition, the appellant has said that the minimum enhancement of Rs. 4 lakhs should have been made by the High Court in the facts and circumstances of the present case. In our opinion, this prayer of the appellant is quite reasonable. In view of the age of the appellant at the time of the accident and the prospects in view of his good academic career, the adverse effect of his permanent disability as a result of the motor accident on his future prospects, is much more than that assessed by the High Court. The award of a further sum of Rs. 4 lakhs in addition to that awarded by the High Court is quite reasonable. In our opinion, enhancement of the amount of compensation to this extent has to be made at this stage.

Keeping in view appellant’s 84% loss of hearing power, burn injuries he had suffered on his both legs, the life of a disabled which he has to lead all through his life and the irreparable damage which has been caused to him in discontinuing his studies and marring his career he had aspired for, besides losing amenities of life to a great extent, I am of the opinion that an amount of Rs. 1.50 lacs more needs to be awarded to him for pain and suffering and loss of amenities of life.

The award of the Tribunal is, accordingly, modified to be an award for an amount of Rs.2,45,000/- along with interest @ 9% per annum.

This appeal, therefore, succeeds and is allowed as indicated above.

JAMMU 26.12.2008 Tilak, Secy.

(J. P. Singh) Judge