The main legal point established in the judgment is the criteria for calculating the loss of future earning in cases where the victim has no fixed income or is not in a permanent job, as laid down by the Supreme Court in National Insurance Company Limited vs. Pranay Sethi and Others.

JUDGMENT :

PUNEET GUPTA, J.

1. The appellant seeks enhancement of award, passed by the learned Motor Accident Claims Tribunal, Udhampur, whereby the appellant has been awarded compensation to the tune of Rs. 7.57 lacs. It is suffice to mention that the insurer-respondent No. 3 has been held liable to pay compensation to the petitioner with the liberty to recover the same from the private respondent Nos. 1 and 2.

2. The respondent Nos. 1 and 2 appeared through their counsel but did not appear later on and the case was heard in the absence of the said respondents.

3. The appellant submits that the Tribunal has not awarded the compensation as per the disability suffered by him. The appellant has submitted that the Tribunal has not otherwise awarded the compensation to the appellant keeping in view the facts that have come on record and also recorded by the Tribunal in its Award dated 26.12.2015. The learned counsel for the appellant has reiterated the submissions made in the appeal.

4. The learned counsel appearing for the Insurance Company has submitted that the appellant has been awarded just compensation by the Tribunal and there is no reason to enhance the award as pleaded in the appeal. The learned counsel has cited Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 in support of his contention that the appellant cannot be granted compensation on his mere asking and the compensation is to be awarded on the basis of permanent disability suffered qua loss of earning capacity. There can be no dispute with what has been held by the Hon'ble Apex Court while awarding the compensation after taking into account the factual aspects of the case also.

5. As the award has not been challenged by the respondents, therefore, the finding of the Tribunal that the appellant has suffered injuries due to the rash and negligent act of the respondent-driver of the Vehicle No. JK-14B/7831 need not be gone into by the Court in the present appeal.

6. The Tribunal has awarded compensation to the tune of Rs. 7,57,000/- along with interest @ 7% per annum from the date of filing of the petition till payment of insurance. However, while awarding interest the Tribunal has directed that the same will not be applicable on future loss of income.

7. The Tribunal has taken the income of the appellant as Rs. 4,500/- per month though the counsel for the appellant submits that the appellant has proved the income to the tune of Rs. 6,000/- per month who was working as labourer. The Tribunal has not faulted while taking into consideration the earning of the appellant as Rs. 4,500/- per month as per the argument of learned counsel for the Insurance Company. The appellant has not recorded any fixed income for the work he was performing as labourer at the time of accident. This Court is of the view that there cannot be fixed income of the appellant taking into view the nature of the work which was being done by him at the time of accident as the labourer may not get the work for all days of the month. The court does not find any fault in assessing the income of the appellant at Rs. 4,500/- per month by the Tribunal while noting that a semi-skilled worker is to get Rs. 150/- daily. No interference is called for on this aspect of the matter.

8. Loss of future earning:

The future earning of the appellant has been assessed by the Tribunal to the tune of Rs. 6 lacs. This Court is of the view that the compensation awarded by the Tribunal requires correction under this head keeping in view the decision of the Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and Others, AIR 2017 SC 5157 : 2018 (1) JKJ 25 (SC). In this case the Supreme Court has laid down the criteria for calculating the loss of future earning in case of the victim who has no fixed income or is not in permanent job. Adding 40% as future earning to the income of Rs. 4,500/- of the appella