Kajodmal vs Ram Karan and Others

R.S. Chauhan, J.—The appellant has challenged the award dated 6.9.2002 passed by Motor Accidents Claims Tribunal, Tonk, whereby the learned Tribunal had awarded a compensation of Rs. 61,000 for 25 per cent permanent disability suffered by the appellant in a road accident.

The brief facts of the case are that on 16.3.1996 when the appellant was travelling in a tanker on National Highway 12, a truck bearing registration No. RJ 26-G 221 being driven rashly and negligently collided with the tanker. Because of the said accident, the appellant suffered a fracture of left leg, left hand and also sustained injuries on his fingers, head and heel. He also sustained three stitches on his eyebrow and 10-12 stitches on his head. According to the disability certificate issued by the doctor he had suffered 25 per cent of permanent disability. In order to receive some compensation, the appellant filed a claim petition before the learned Tribunal. In order to substantiate his case the appellant examined himself as a witness and submitted 22 documents. Non-claimants neither examined any witness nor submitted any document. After going through the oral and documentary evidence produced by the appellant, the learned Tribunal was pleased to grant the compensation as aforementioned. Since the appellant is still not satisfied with the said award, he has filed this appeal before us.

According to Mr. Sandeep Mathur, the learned Counsel for the appellant, the appellant''s left leg has been shortened by four centimetres. For the rest of his life, he would have to limp while walking. His permanent disability, as stated above, is 25 per cent. According to the learned Counsel item No. 5 of the Second Schedule attached to the Motor Vehicles Act, 1988 (henceforth to be referred to as ''the Act'', for short) prescribes a formula for calculating the compensation in case of non-fatal accidents. In case the said formula were applied the actual income loss would have to be multiplied by multiplier of 18. But the said formula has not been applied by the learned Tribunal. Hence, the Tribunal has failed to apply proper provision of law.

On the other hand, Mrs. Archana Mantri, learned Counsel for the insurance company, the respondent No. 3, has argued that the disability certificate submitted by the appellant has been signed by a single doctor. The said disability certificate has not been issued by a Medical Board as required by law. Moreover, no evidence has been shown about the income of the appellant. With regard to the application of the formula given in item No. 5 of the Second Schedule, she has no answer.

In rejoinder, Mr. Sandeep Mathur has submitted that according to the Rajasthan Motor Vehicles Rules, 1990, there is no requirement that the physical disability certificate should be issued by a Medical Board. In fact, a pro forma given in the said Rules merely states that it can be given by a government doctor. According to Exh. 12 the medical certificate, the said certificate was issued by a Medical Officer, Dr. R.S. Gupta. Therefore, the medical certificate is in conformity with the Rules. Furthermore, he has argued that the claimant himself had stated that he was earning Rs. 3,000 per month. In fact in his cross-examination, the appellant had explained the source of his income. According to the appellant he was selling vegetables daily which he would take from his village to be sold in Delhi. He was also engaged as a labourer in his free time. Therefore, he clearly justifies his income. The insurance company has not brought any evidence on record to contradict the appellant''s testimony on this point.

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

The pro forma attached with the Rules, clearly shows that the medical certificate can be issued by a single government doctor. Exh. 12 has been issued by Dr. R.S. Gupta, a Medical Officer and a Junior Specialist in Orthopaedics. According to the said certificate, the injuries were sustained on 16.3.1996. Even after one and a half years, the injured was limping because of shortening of left leg by four centimetres. He could bend his knees only up to 30 degrees, was unable to squat or to sit cross-legged. He could not run or jump and he is unable to walk for long distances. According to the said certificate, the injured has suffered 25 per cent of permanent disability. Hence, the certificate is not only in accordance with the pro forma given in the Rules, but also reveals the physical condition of the appellant even after one and a half years of the said accident. Therefore, the first contention of the learned Counsel for insurance company is meritless.

The appellant in his testimony has clearly explained the source of his income. Since his testimony has not been shaken in the cross-examination, there is no reason for disbelieving his statement. Hence, the learned Tribunal was certainly justified in accepting his statement as true. It is, indeed, a common knowledge that a person working as a blue collar worker would hardly have any documentary evidence to prove his income. Firstly, no such documents are even given by the employers. Secondly, even if such documents were given, the illiterate labourer may not even realise its importance and may not keep such documents in safe custody. Therefore, to insist on documentary evidence in this background is to ignore the harsh reality of this country. At best, the Claims Tribunal can make an intelligent and reasonable estimate of the income looking to the facts and circumstances of each case.

The aim of the Claims Tribunal is to award just and reasonable compensation to the injured or to claimants of the deceased persons. In order to facilitate this task, Second Schedule to the Act has been added to the Act. Although in a claim petition u/s 166, the Second Schedule is not binding but the same can be used as a guideline. Item No. 5 of 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.

Therefore, a formula for calculating the compensation in non-fatal accidents has been statutorily provided. In the case of Harendra Singh v. Gopal Sinh 2005 RAR 280 (Raj), this court had applied the said formula. In that case the injured had suffered a permanent disability of 40 per cent but was awarded a meagre amount of Rs. 50,000 by the Claims Tribunal. While applying the formula given in item 5 (b) this court was pleased to enhance the compensation from Rs. 50,000 to Rs. 4,98,000. Since the enhancement was a very steep one, the insurance company filed an appeal before the Hon''ble Division Bench. However, in the appeal, in the case of United India Insurance Co. Ltd. v. Harendra Singh 2005 RAR 429 (Rajasthan), the Hon''ble Division Bench was pleased to uphold the judgment of the learned single Bench. Hence, item No. 5 has not only statutory sanction, but is also upheld by this court. Thus, item No. 5 has the backing of the law and the case-law. Considering the fact that the appellant was 27 years old when he met with the accident which has permanently disabled him, the formula as given in item No. 5 (b) should have been applied by the learned Tribunal. Applying the said formula and taking the appellant''s income to be Rs. 3,000 per month, the compensation is to be calculated as under:

Rs. 750x12 x 18 = Rs. 1,62,000.

Hence, the compensation should be Rs. 1,62,000. Therefore, we enhance the compensation amount from Rs. 61,000 to Rs. 1,62,000. The insurance company is directed to deposit the enhanced amount, after adjusting the amount already paid by it to the appellant, along with interest of 6 per cent per annum from the date of the filing of the appeal, i.e., from 10.12.2002 till the present within a period of one month with the Tribunal. Learned Tribunal is directed to disburse the said amount to the claimants within a period of one month thereafter.

In the result, this appeal is allowed.