ORIENTAL INSURANCE COMPANY LTD Vs. LILABEN RANCHHODBHAI

JUDGEMENT

(1.) Notice was issued by this Court on 29th April, 2010 returnable on 21st June, 2010. In response to that notice Ms. Amrita Ajmera appears for respondent No. 1-injured claimant in Motor Accident Claim Petition (M.A.C.P.) No. 377 of 1999. The Insurance Company is before this Court being aggrieved by judgment and award passed by the Motor Accident Claims Tribunal (Aux.) & Fast Track Court No. 1, Surendranagar ('Tribunal' for brevity) dated 20th October, 2008, whereby the Tribunal was pleased to allow M.A.C.P. No. 377 of 1999 in part. The Tribunal awarded a sum of Rs. 2,54,700/- with interest at the rate of 9% per annum from the date of application till realization with proportionate cost. Learned Advocate Mr. Anal S. Shah for the appellant vehemently submitted that the Tribunal has erred. According to him, grave error is committed by the Tribunal in awarding the multiplier of '10' to the claimant, who stated herself to be of 60 years of age on the date of the accident, i.e. 10-1-1999. He submitted that it is settled position that when the age of the injured is 60 years or above multiplier of more than '5' cannot be granted.

(2.) On the face of it, the submission is found acceptable, but then the same is not accepted by this Court making it clear that this case is not to be treated as a precedent so far as multiplier is concerned, because this Court is of the opinion that the case is having peculiar facts and in those facts the amount which is awarded applying multiplier 10 is found to be just reasonable. Those facts are that in an accident the claimant got injury on the left leg. That injury was such that she was required to undergo as many as six operations. It is mentioned that so as to save the leg from unwarranted amputation, the doctors undertook this exercise but they failed, and ultimately, the leg was required to be amputated from the thigh. This itself is suggestive of the fact that the claimant was required to undergo pain and agony which got multiplied as she was required to be operated on six different occasions.

(3.) The doctor has assessed the disability at 60% for the body as set out in Exh. 32-a certificate for the same. Dr. Parimal Doshi is examined at Exh.31. The doctor was cross-examined at length and the doctor had to admit that the leg was required to be amputated above knee-joint. He has also admitted in the cross-examination that it is true that normally, the disability when it is required to be assessed qua the whole body, it is reduced to half,viz. if the disability for a particular limb is 60%, it will be considered to be 30% disability for the entire body. Then the doctor himself has volunteered and said that, 'as the claimant was working as a labourer and as her leg was required to be amputated above knee-joint (from thigh) it will be appropriate in this case to consider 60% disability for the whole body'. The Tribunal assessed the monthly income of the claimant to be Rs. 2,250/- per month taking into consideration 60% disability, the loss per month works out to Rs.1,350/-, which is multiplied by 12 to arrive at loss of income per annum,that is, Rs. 16,200/-. Taking multiplier 10, it comes to Rs. 1,62,000/-. There also the Tribunal has mentioned that the Tribunal is conscious of the fact that when an injured is above 60 years of age, multiplier required to be given is 5 only, but in the present case the accident took place in 1999 and the petition came to be heard and decided in the year 2008 and the evidence was recorded on 9th February, 2005; the Tribunal records that as the claimant is alive till date, viz. for 6 years (even on the day of deciding the petition, the claimant was alive, that is, 9 years later), the Tribunal thought it fit to grant multiplier of 10. This Court is of the opinion that assuming for the sake of argument that multiplier is on a higher side, but the totality of facts do not warrant interference with the award by this Court. In support of this,the learned Advocate Ms. Ajmera for the claimant relied upon a decision of the Hon'ble the Apex Court in the matter of Pratap Narain Singh Deo v. Shrinivas Sabata, 1976 AIR(SC) 222, wherein the Hon'ble the Apex Court has observed that when there is amputation of the hand of a person,who was working as a carpenter, disability is to be assessed at 100%, because he will not be able to earn with an amputated hand. Similar reasoning will apply to the facts of the present case. The claimant was a labourer and her left leg is amputated above knee-joint (somewhere near the thigh) and that is why disability in her case is required to be considered at 100% and not 60%.