Motor Accident Claim | Can't Compute Compensation On Basis Of 45% Permanent Disability In Case Of 100% Functional Disability: Bombay HC

The Bombay High court held on Monday that the Motor Accident Tribunal at Aurangabad has committed an error in accepting the permanent disability of the claimant of a motor accident at 45% when it is a case of 100% loss of earning capacity due to amputation of leg. Single judge Shrikant D. Kulkarni also awarded 1 lakh compensation for loss of marriage prospects and another lakh for loss of happiness, amenities and entertainment of life. The claimant was serving as a Cleaner on Tata Tempo vehicle. On 29.4.2014 at about midnight, his vehicle was punctured on Aurangabad-Beed highway. While he was replacing the tyre a truck driven in a rash and negligent manner crashed into the Tata Tempo vehicle which was in stationary condition. In the accident, his right leg was crushed and it had to be amputated, while his left leg was also severely damaged. The single judge noted that the impact of amputation of leg on the earning capacity of the claimant needs deep consideration. The claimant was working as a Cleaner on one vehicle Tata tempo and certainly he will be unable to discharge his work and job as a Cleaner on the vehicle. The accident has severely impacted his earning capacity. The court took into consideration the case of Anant Son of Sidheshwa Dukre Versus Pratap Son of Zhamnnappa Lamzane & Anr., (2018) ALL SCR (1814), where the Supreme Court has held that in cases of permanent disability, loss of earning capacity compensation needs to be assessed by applying multiplier method. It is incorrect to award compensation in such injury claims by awarding compensation in lump sum. Further, in the case of Jakir Hussein Vs. Sabir and ors., (2015), 7 SCC 752, it has been held by the Supreme Court that though the claimant is suffering from permanent disability 30% and 50%, the tribunal cannot overlook that it is a case of 100% functional disability as it is a case of amputation of one leg. The single judge also referred to Apex court judgment of Raj Kumar Vs. Ajay Kumar and anr., AIR Online 2010 SC 125, that lays down the parameters for calculation of compensation. The court noted that the case in hand is not a routine personal injury case. It is a case of amputation of one leg below thigh and another leg which is badly damaged due to injuries caused in the motor vehicular accident. The Single judge said, "In case of Sri Chanappa Nagappa Muchalagoda Vs. Divisional Manager, New India Insurance reported AIR 2020 SC 166, it is held by the Honourable Supreme Court about direct impact on the personal functional disability of the original claimant. In the cited case, the appellant/claimant was working as a tanker driver and he could not work as a tanker driver any longer. The Commissioner held that it was a disability of 50%. The High Court increased the same to 60%. The Honourable Supreme Court after appreciating the evidence on record and facts of the case held that it was a case of 100% personal functional disability of the appellant/original claimant and accordingly awarded the compensation . . . Here, in this case, the appellant/claimant was working as a Cleaner. He has sustained 85% permanent disability. Because of amputation of left leg below thigh and another leg badly damaged, it has caused severe impact on the job of the appellant/claimant. In this case, it must be held that it is a case of 100% loss of earning capacity…" The single judge observed that as per the case of National Insurance Company Ltd., Vs. Pranay Sethi and ors., 2017 (16) SCC 680 , while calculating loss of income and determining the monthly income of the injured in injury claim, there is no need to deduct 1/3rd from the monthly income of the claimant under the head of personal expenses. The tribunal's award of Rs.14,22,457/- as compensation appears to be on lower side. The claimant is entitled to get adequate compensation which includes compensation for loss of marriage prospects among other losses under other heads. Saying so, the court altered the compensation amount to Rs.21,14,400/- (including N.F.L. amount).Case Title :Akshay @ Vikas Ramesh Chavan vs Kailas Vitthalrao Shinde and ors Citation: 2022 LiveLaw (Bom) 149 Click Here To Read/Download Order

Motor Accident Claim | Can't Compute Compensation On Basis Of 45% Permanent Disability In Case Of 100% Functional Disability: Bombay HC

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