HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No. 2814/2012

Jagdish S/o Shri Panchu Lal Meena, aged about 63 years, R/o
Suthda Tehsil Uniara, District Tonk (Raj.)
----Claimant/Appellant

Versus

1. Virendra Singh S/o Shri Hoshiyar Singh, R/o Revadi, P.S.

Revadi (Hariyana) (Driver)
2. Hoshiyar Singh and Kasturi Devi, Saini, R/o Revadi
(Hariyana) (Owner)
3. The New India Assurance Company Limited, Regional
Office, Nehru Place, Tonk Road, Jaipur (Raj.) Through
Regional Manager
----Non-Claimants-Respondents

For Appellant(s) : Mr. Sandeep Mathur through VC

For Respondent(s) : Mr. Gaurav Jain through VC

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment Reserved on : 01/02/2022

Judgment Pronounced on : 04/02/2022

1. The sole appellant Jagdish is not satisfied with the quantum

of compensation decided by the Motor Accident Claims Tribunal,

Tonk for permanent disablement of the appellant in a motor

vehicle accident. Hence this appeal.

2. One Ram Kishan Meena lodged Duni PS Case No.194/1999

regarding the accident wherein Ram Kishan Meena stated that he

had gone to take a holy dip at Pushkar alongwith Giriraj and the

appellant Jagdish. After taking holy dip, all the three were

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returning to their village. At Dolta Mor, they took a lift on Truck

No.HR-36-G-9282. The driver gave them seat in the cabin of the

truck. The truck was loaded with stone chips. Near Dhadholi

Puliya, due to rash and negligent driving by the driver, the truck

turned turtle. The informant and the appellant Jagdish sustained

serious injuries on their body whereas Giriraj Meena lost his life.

After investigation of the case, the police submitted charge sheet

against the driver of the truck vide Ex-2.

3. The legal representatives of the deceased, the appellant and

Ram Kishan filed separate claim cases for compensation. The case

filed by the appellant was Claim Case No.(1131/2001) (510/99)

327/2011. All the cases were initially decided by the judgment

and award dated 14.05.2002 whereunder the appellant was

awarded Rs.2,50,000/- against his claim of Rs.6,94,000/-. The

appellant challenged the inadequacy of the compensation in S.B.

Civil Misc. Appeal No.1440/2002. After hearing the parties, a

Bench of this Court by judgment dated 12.07.2011 remitted back

the matter to the Tribunal to decide issue Nos.2 & 6 afresh

considering judgment of this Court in K.G. Saxena Vs. Anil

Kumar & Ors., reported in 2006 RAR page 43 (Rajasthan).

The two issues were; (a). is the claimant entitled for

compensation from the respondents; and (b) What should be the

compensation amount. Learned Tribunal by the impugned

judgment and award dated 01.03.2012 awarded Rs.2,62,640/- to

the claimant alongwith interest of 7% from the date of application

dated 10.09.1999 till recovery.

4. Learned Counsel for the appellant Mr. Sandeep Mathur

submits that the claimant stated his age as 50 years in the claim

petition and 52 years at the time of his deposition in this Court

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after two years of the filing of the claim petition. The doctor

simply on assessment, recorded age of the claimant as 55 years

without any forensic examination for age determination. In the

circumstance, learned Tribunal fell in error, while applying

multiplier, in taking age of the appellant as 55 years relying on the

medical report which was based on conjectures and surmises.

Since the age of the appellant was in the slab of 45 to 50 years,

he was entitled for a multiplier of 13.

Learned counsel next contends that the learned Tribunal

without any rhyme and reason did not accept the claim of the

appellant that he was earning Rs.3000/- per month from his

business of green grocery. Learned counsel contends that the

Tribunal arbitrarily adopted the daily wages rate of the time which

was Rs.60 while deciding multiplicand. Learned counsel for the

appellant relied on the judgment of the Hon’ble Supreme Court in

Jagdish Vs. Mohan and Others, reported in (2018) 4 SCC

571, wherein the Hon’ble Supreme Court accepted the claim of

the appellant’s earning of Rs.6000/- per month as the appellant

was a carpenter. The Hon’ble Supreme Court found that the

amount was not unreasonable or contrary to the realistic

assessment of the situation on the date of accident. Learned

counsel next contends that the Tribunal fell in error in not

awarding any compensation under the head, future prospect,

expenses incurred during treatment, extra nursing meeted out nor

the Tribunal made any apportionment under the head, expenses

for attendant and future treatment. A meager amount was allowed

for pain, suffering and loss of amenities.

5. Mr. Gaurav Jain learned counsel for the respondent-The New

India Assurance Company Limited contends that since the

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offending vehicle was for carrying goods and not for carrying

passengers, the driver violated the terms and conditions of the

policy as the policy was carrying risk only to the extent for

carrying goods.

It is well settled that the insurer cannot avoid its

responsibility to pay compensation to the third party who suffered

injuries or death in a motor vehicle accident. If the terms of the

policy was violated by the insured, it would be open for the insurer

to take up the matter under appropriate proceeding for the

recovery, of the paid compensation, from the owner of the vehicle.

In the present case, the issue that the appellant sustained injuries

in the motor vehicle accident caused by Truck bearing Registration

No.HR-36-G-9282 and other issues stand decided and got finality.

The said vehicle was insured with the respondent-The New India

Assurance Company Limited, hence the joint and sever liability of

the insurer is also established.

6. The only point for consideration is whether the Tribunal has

come to a just compensation in the facts and circumstances of this

case.

After the accident on 30.08.1999 the appellant was referred

to Sadar Hospital, Tonk, where his X-ray was done and X-ray

report dated 31.08.1999 Ex-5 reveals that the appellant had

sustained fracture on upper end of Tibia and Fibula, fracture of 2 nd

to 11th ribs of left side, fracture of clavicle, left hand was fractured

and little and index finger were cut. On 07.09.1999 vide Ex-6

another medical report was submitted alongwith opinion based on

the same X-ray report disclosing that injury Nos.1, 4, 5 & 6 were

grievous in nature and rest were simple in nature. On 10.05.2000

the appellant was reexamined by the doctor, who found that the

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appellant was still unable to stand because of no motor power in

both feet. Knee movement was restricted up to 70%. The

appellant was unable to cross-legged sit and squatting. The

appellant was catheterized because of no control on urination

bladder and bowel. The doctor concluded that the appellant was

having permanent disablement of 90%. When the appellant was

brought before the Court for deposition, he was brought on a cot

in a lying position. He made the statement before the Court in

lying position. The Tribunal recorded everything in the impugned

judgment. The appellant deposed in details about the accident. He

stated that he was in the business of selling vegetables. He stated

about his inability to move now rather his ordinary and natural

pursuits were not possible without help and support of others. He

deposed about the medical expenses meeted out by him which

was recurring one for the ongoing treatment. The nature of

disablement of the appellant disclosed in the medical evidence

goes to show that he suffered 100% permanent disablement. In

Jagdish (supra) the Hon’ble Supreme Court stated in para 8 of

the judgment as follows for keeping in mind while assessing the

compensation payable to the victim of injury:-

“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;

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(iv) Medical expenses including those that

the victim may be required to undertake in
future; and
(v) Loss of expectation of life.”

7. In view of the settled guidelines for assessing compensation

payable to the victim who suffered permanent disability arising out

of the use of motor vehicle, in my view, there was nothing before

the Tribunal to reject the claim of the appellant that he was

earning Rs.3,000/- per month by selling vegetables. Therefore the

multiplicand of Rs.3000X12=Rs.36000/- per annum would be

appropriate in the facts and circumstances of this case. Since the

appellant was of 50 years of age at the time of accident, the

correct multiplier would be of 13. Thus, the loss caused to the

appellant’s life was Rs.4,68,000/-. The appellant is entitled for

addition of 25% of future prospect considering his age and settled

principles in National Insurance Company Limited Vs. Pranay

Sethi and Others, reported in (2017) 16 SCC 680 case.

Besides the aforesaid, Rs.3,00,000/- would be just for pains and

suffers and loss of amenities to the appellant. The appellant would

be entitled for Rs.2,00,000/- as medical expenses incurred by

him. Non-production of vouchers would not mitigate the claim and

the Court is competent to decide the just compensation

considering the nature of injuries found by the doctor. Therefore,

in my view, Rs.2,00,000/- for medical expenses alongwith

Rs.1,00,000/- for attendant would be just for the appellant.

Besides the aforesaid the appellant is entitled for Rs.3,00,000/-

for his future treatment and Rs.2,00,000/- for loss of expectation

in life. Thus, the total payable compensation comes to

Rs.16,85,000/-(in words Rupees Sixteen Lacs and Eighty Five

Thousand only). The insurer is directed to make payment of the

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aforesaid amount alongwith interest of 9%. The insurer shall

deduct already paid amount and this 9% interest would be

payable on the remaining amount till its realization.

8. This appeal stands allowed to the aforesaid extent.

(BIRENDRA KUMAR),J

/RAJAT KUMAR

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