Amar Singh vs Samsher Khan and Others

R.S. Chauhan, J.—Employed with the Public Works Department as a driver, at the age of 55 years, on 29.5.1995 the appellant met with an accident with the truck in village Rampura in the early hours of the morning. Consequently, he sustained fracture, in both his legs and in his hands and injuries on his knees and his teeth. According to the permanent disability certificate the appellant suffered permanent disability up to 58.08 per cent. Because of his disability he could no longer drive a car. Hence, his means of livelihood had suddenly ended. Appellant had filed a claim petition before the Motor Accidents Claims Tribunal, Jaipur District, Jaipur. Vide the award dated 19.8.2002, the learned Tribunal was pleased to grant the compensation of Rs. 2,25,000. However, as the appellant is aggrieved by the said award, he has filed the present appeal before us.

Mr. M.C. Jain, the learned Counsel for the appellant, has argued that because of the accident the appellant''s leg has been shortened by one inch. He is unable to walk or run or to squat normally. He has sustained a physical disability of 58.08 per cent. Furthermore, he has argued that item 5 of Second Schedule attached to the Motor Vehicles Act, 1988 (henceforth to be referred to as ''the Act'' for short) prescribes a formula for computing the compensation payable to a person for a non-fatal accident. According to the learned Counsel, the Tribunal has not applied the said formula to the present case. Therefore, it has failed to apply the relevant provisions of law.

On the other hand, Mr. Rishipal Agarwal, the learned Counsel for the insurance company, has argued that a compensation of Rs. 2,25,000 is more than just and reasonable for the appellant who has suffered 58.08 per cent disability. Therefore, he has supported the impugned award.

We have heard the learned Counsel for both the parties and have perused the impugned award.

A human body when damaged can never be restored to its original form. Therefore, no amount of money can ever repair the damage caused by an accident. The monetary award is made only to compensate for the loss, mental and physical, professional and personal suffered by the injured. The legislature in its wisdom has prescribed a formula under item 5 of the Second Schedule to the Act. Item 5 of the Second Schedule reads as under:

Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:

Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.

Plus either of the following:

(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen''s Compensation Act, 1923.

A bare perusal of the said item would clearly reveal that the compensation is to be paid in two parts; firstly, the loss of income, if any, for the actual period of disablement but not exceeding 52 weeks. Secondly, in addition, in case of permanent total disablement the amount payable would be arrived at by multiplying the annual loss of income by the multiplier applicable to the age of the injured on the date of determining the compensation. In case of permanent partial disablement, the said amount would be calculated according to the formula given above, but the said amount would be to the extent of percentage of the disability sustained by the injured. Since the formula is part of statute, it has to be implemented mandatorily. Therefore, while considering the appellant''s case, the learned Tribunal should have applied the said formula. But, the learned Tribunal has failed to do so.

The said formula has been applied by this Court in the case of Prabhu Mehta Vs. Jagannath and Others, It has also been applied in the case of Harminder Singh Vs. Gopal Singh and Others, In that case the injured was 23 years old engineer who was earning Rs. 5,000 per month. He had suffered a disability of 40 per cent and had been awarded Rs. 50,000 by the Claims Tribunal. However, by applying the formula stated above, this Court enhanced the compensation from Rs. 50,000 to Rs. 4,98,000 and awarded an interest of 6 per cent per annum from the date of the appeal. Since the award had been enhanced steeply, the insurance company, the respondent in that case, filed an appeal before the Division Bench. However, vide judgment dated 1.2.2005 the Division Bench was pleased to dismiss the appeal and to uphold and confirm the judgment of single Bench. The said decision has been reported as United India Insurance Co. Ltd. v. Harminder Singh 2005 RAR 429 (Rajasthan). Thus, the formula is not only statutorily given, but has also been upheld by this Court. Therefore, both on the basis of law and case-law, the formula is legally sanctified. Therefore, both according to law and case-law the application of the formula is mandatory and not directory in nature. The learned Tribunal has overlooked the existence of this formula in the Act.

At the time of accident the appellant was working as a driver in Public Works Department and was earning Rs. 5,000 per month. 58.08 per cent of Rs. 5,000 comes to Rs. 2,904. Since appellant was 55 years old, the multiplier of 11 should be applied. Thus the compensation comes to Rs. 2,904 x 12 x 11 = Rs. 3,83,328. Therefore, we are inclined to enhance the compensation from Rs. 2,25,000 to Rs. 3,83,328. The said compensation shall be paid to the appellant at the rate of 6 per cent per annum from the date of filing of this appeal which is 20.11.2002. Insurance company is directed to deposit the said amount with the Tribunal within a period of 2 weeks and Claims Tribunal is directed to release the said amount within a period of 15 days thereafter. The award dated 18.10.2002 stands modified only to this extent and the rest of the terms and conditions of the award are confirmed. This appeal is accordingly allowed to this extent.