Radhey Shyam vs Pankaj and Others

Prakash Shrivastava, J.—This appeal u/s 173 of the Motor Vehicles Act is directed against the award dated 17th September, 2008 passed by the M.A.C.T., Indore in Claim Case No. 220/2007. The appellant had filed the claim petition before the Tribunal stating that he had suffered permanent disability in the accident which had taken place on 26th March, 2007. The Tribunal after appreciating the evidence on record, has reached to the conclusion that the appellant had suffered 25% permanent disability in the right hand and in reference to the whole body the said permanent disability is treated to be 15%. The Tribunal instead of applying the multiplier has awarded a lump sum amount of Rs. 28,000/- under the head of the permanent disability. Under the other heads the Tribunal has awarded a sum of Rs. 18,000/- for the expenses for keeping a driver for six months, Rs. 12,400/- towards actual medical expenses, Rs. 5,000/- for pain and suffering and Rs. 1,600/- for special diet and transportation charges. Thus, the Tribunal has passed an award of Rs. 65,000/- in favour of the appellant.

Learned Counsel appearing for the appellant submits that the Tribunal has rightly found that the appellant had suffered 25% permanent disability in the right hand but the Tribunal has committed an error in calculating the compensation on account of the permanent disability suffered by the appellant. He submits that the Tribunal ought to have calculated the compensation amount keeping in view the age and income of the appellant and extent of the permanent disability by applying the applicable multiplier.

Learned Counsel for the Respondent-Insurance Company has supported the award and submitted that the Tribunal has rightly granted the compensation amount keeping in view the injury suffered by the appellant.

I have heard the learned Counsel for the parties and perused the record.

The Tribunal after considering the evidence on record, has reached to the conclusion that the appellant had suffered 25% permanent disability. The appellant was examined before the Medical Board and the Medical Board had given the disability certificate (Ext.P/34) stating that the appellant had suffered 25% permanent disability in the right hand A.W. 4 Dr. Ashish, who is an orthopaedist and who was also the member of the District Medical Board, has stated that in the accident the humerus bone of right hand of the appellant was fractured and he was operated for the same. The doctor had opined that due to the fracture the muscles had become weak and movement of the shoulder and elbow was restricted and the appellant had difficulty in lifting the heavy weight. He has proved the disability certificate (Ext. P/34) and also the x-ray report (Ext. P/33), which was done before issuing the disability certificate. Thus, the Tribunal has not committed any error in reaching to the conclusion that the appellant had suffered 25% permanent disability in the right hand. The Tribunal has treated the permanent disability in reference to the whole body as 15% which is on the higher side, keeping in view the nature of the disability which the appellant has suffered. The relevant material on record indicate that the appellant had suffered at the most 12.5% permanent disability in reference to the whole body.

The Tribunal has found the annual income of the appellant as Rs. 1,18,000/- taking into account the income tax returns (Ext. P/18 to P/22) which were placed on record by the appellants The said finding of fact recorded by the Tribunal is based on the evidence on record. So far as the age of the appellant is concerned, the appellant has filed the mark-sheet (Ext. P/13) disclosing his date of birth as 26th March, 1974, therefore, on the date of accident on 26th March, 2007 the appellant was aged about 34 years. The disability certificate (Ext.P/34) also supports the said finding. Thus, it is found that at the time of accident the appellant was in the age group of 31 to 35 years and applicable multiplier would be 16. The evidence on record also indicates that the appellant was doing the work of construction service and painting. He has stated that he used to do the job work of painting. The permanent disability which he has suffered in the right hand would affect his earning.

Counsel for the Respondent-Insurance Company has stated that the A.W. 4. Dr. Ashish was not the treating doctor and the appellant had not suffered any future loss of income. Such an objection cannot be accepted in view of the fact that the appellant was examined by the Medical Board and the disability certificate was also issued by the Medical Board. A.W.4 Dr. Ashish is one of the member of the District Medical Board and he is an Orthopaedist, who has deposed before the Court on the basis of the relevant material perused by him. Counsel for the Respondent-Insurance Company has not pointed out any absolute rule to the effect that in all circumstances statement of the non-treating doctor is to be disbelieved. So far as the issue of loss of income is concerned, as discussed above the nature of work of the appellant and the nature of injury which he has suffered, clearly indicates that the appellant will suffer loss of income on account of the permanent disability which he had suffered.

Keeping in view the aforesaid relevant aspect of the matter, loss of earning due to the permanent disability comes to Rs. 1,18,000 x 12.5% x 16 = Rs. 2,36,000/-, whereas the Tribunal has awarded only a sum of Rs. 28,000/- under this head. Thus, the appellant is entitled to an enhancement of Rs. 2,08,000/- under the head of permanent disability. So far as the other heads are concerned, the Tribunal has not awarded adequate amount under these heads, therefore, the appellant is entitled for a lump sum amount of Rs. 7,000/- under these heads. Thus, the award passed by the Tribunal is enhanced by a sum of Rs. 2,15,000/-, which will bear interest at the same rate as awarded by the Tribunal. The appeal is accordingly disposed off.