Sohnu @ Sonu vs Rajesh Guwa

Kailash Gambhir, J.—The present appeal arises out of the impugned order passed by the Learned Motor Accident Claims Tribunal vide order dated 16th October 1998 in an injury case. The Tribunal vide the said order awarded a compensation of Rs. 8,000/- along with interest @ 12% pa from the date of filing of the petition till realization.

Brief facts of the case are as follows:

The claimant appellant Mr. Sohnu @ Sonu, aged 24 years was working as a constable home guard earning a daily pay of Rs 36.60/-. On 3/5/1990 at about 10 p.m. when he was going to P.S. Seelampur with another constable to attend to his duty he met with an accident at road No. 66 near Gali No. 21, Jabrabad with a Maruti car bearing registration No. DBB 5439, which was being driven in a rash and negligent manner by its driver. His left leg was fractured in this accident.

The present appeal is preferred for enhancement of award passed by the Tribunal. Learned Counsel for the appellants, Mr. J.S. Kanwar, submitted before this Court that the award of compensation of Rs. 8,000/- passed by the Learned Tribunal is inadequate and against the mandate of law laid down by the Hon''ble Apex Court. He urged that the Tribunal has not awarded any compensation for the loss of income for period of 6 months, as the injured claimant could not work for the said period. The counsel submitted that the tribunal erred in not granting compensation towards loss of amenities, temporary/partial disablement and loss of earnings during the period of treatment. He contended that Tribunal should have awarded compensation for loss of amenities as he was removed from the job as a consequence of the injury sustained by him in this accident. He further urged enhancement of the amount awarded towards the head of pain & sufferings and the compensation for medical expenses. It was contended by him that the Tribunal awarded a meager amount of Rs. 5,000/- towards the pain and suffering caused to the claimant, and the amount of Rs. 3,000/- towards medical expenses is also on the lower side. Counsel stated that the compensation for the pain & suffering caused should be enhanced and for the medical expenses, conveyance and special diet the said compensation should be Rs. 13,000/-.

Counsel further contended that the monthly income of the injured claimant was about Rs. 1100/- and as he was disabled for a period of six months, he is entitled to be compensated with the loss of income for the said period, i.e. Rs. 6600/-.

Nobody has been appearing for the respondents.

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

On perusal of the award it comes in to light that the appellant did not produce anything on record to show that he spent Rs. 13,000/- towards medical expenses, conveyance and special diet. Also it is manifest that he has not been able to prove by any cogent evidence that he was earning Rs. 36.60 per day i.e. Rs. 1100/- per month. The employment certificate dated 16th July 1996, which has been brought on record, only shows that the appellant served since 9.11.89 to 23.2.93 but nothing has been brought on record to show his income. The witness brought on record by the appellant claimant has also not been of much help to him. Neither a doctor has been brought before the court nor any disability certificate has been brought on record. On perusal of award it also comes to light that no cross-examination was put to the appellant, PW 4 about his salary and expenses incurred by him on his treatment. PW 6, Sh. Hira Lal deposed that allowance is paid to the home guard only on his attending to his duty and if a home guard does not attend to his duty, he is not paid his salary.

It is settled law that mere bald assertions regarding the income of the deceased are of no help to the claimants in the absence of any reliable, reasonable and cogent evidence being brought on record. In this regard the Hon''ble Apex Court has in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, observed as under: It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer company? Is there anything in the Motor Vehicles Act, which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think not. Here again, the position that the Motor Vehicles Act vis-a-vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the income that was being derived by the deceased from his employment.

The thumb rule is that in the absence of clear and cogent evidence pertaining to income of the deceased learned Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act.

No compensation has been granted to the appellant for loss of earning for the period of 6 months, during which he was under medical treatment and could not work. The tribunal has not granted any compensation towards loss of earnings as the employment certificate dated 16th July 1996, which has been brought on record, only shows that the appellant served since 9.11.89 to 23.2.93 but nothing has been brought on record to show if he was being paid for the said period or not. But, PW 6, Sh. Hira Lal deposed that allowance is paid to the home guard only on his attending to his duty and if a home guard does not attend to his duty, he is not paid his salary. Therefore, I am of the view that the appellant should be awarded loss of salary for the period of 6 months, when he was unable to earn. Taking aid of the Minimum Wages Act, the wages of unskilled workmen as on 3/5/1990, i.e. the date of the accident was Rs. 767 pm, therefore, for a period of 6 months the wages would come out to Rs. 4602/-. Therefore, Rs. 4602/- is awarded to the appellant for loss of earning.

Also, it is the duty of the appellant to show that he incurred expenses on medical treatment, special diet and conveyance. In the absence of same, the tribunal cannot rely on mere assertions. In this regard, in Lata Wadhwa and Others Vs. State of Bihar and Others, the Hon''ble Supreme Court observed as under:

In examining the question of damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be taken into account. In case of pecuniary damages, loss of earning or earning capacity, medical, hospital and nursing expenses, the loss of matrimonial prospects, if proved, are required to be considered. In the case of non-pecuniary losses, loss of expectation of life, loss of amenities or capacity for enjoying life, loss or impairment of physiological functions, impairment or loss of anatomical structures or body tissues, pain and suffering and mental suffering are to be considered. But for arriving at a particular figure on each of the aforesaid heads, the claimant is duty-bound to produce relevant materials, on the basis of which, a determination could be made, as to what would be the best compensation.

Even in the absence of documentary evidence the tribunal awarded Rs. 5,000/- towards pain & sufferings and Rs. 3,000/- towards medical expenses, conveyance and special diet.

Considering that the appellant suffered injuries and his left leg was fractured, I feel that even the same could be enhanced and therefore, compensation towards pain & sufferings is enhanced to Rs. 10,000/- and compensation towards medical expenses, conveyance and special diet is enhanced to Rs. 10,000/-.

In view of the above discussion, the total compensation is enhanced to Rs. 24,602/- from Rs. 8,000/- with interest @ 12% per annum.

I do not find any other ground for enhancement.

The respondent insurance company shall be liable to pay to the appellant, Rs. 24,602/- with interest @ 7.5% pa from the date of filing of the petition till realisation.

With the above directions, the present appeal is disposed of.