Sunil Kumar vs Jagdish Singh and Others

R.S. Chauhan, J.—Having sustained 19.7% permanent disability, having been awarded merely Rs. 25,000/-, by way of compensation vide order dated 24.02.2006, passed by the learned Judge, Motor Accidents Claim Tribunal (Special Court Dacoity Affected Area), Bharatpur, the appellant has challenged the same before this Court.

The brief facts of the case are that on 29.09.2004, at about 6:00 PM, while the appellant was riding on his motorcycle, he was hit by a truck, bearing Registration No. RJ-05/G-1989, which was being driven in rash and negligence manner. Consequently, the appellant suffered a fracture of his left shoulder and fracture of the left elbow. At the time of accident, he was a young boy of eighteen years and was studying in the 12th class.

Mr. Man Singh, learned Counsel for the appellant, has contended that firstly, the appellant was engaged in the business of animal husbandry as well as doing the work of milk vendor. Through animal husbandry, he was earring about Rs. 5,000/- per month. However, the learned Tribunal has not even bothered to discuss about this income. Secondly, despite the fact that the appellant suffered a permanent disability of 19.7%, the learned Tribunal has not applied the formula, as given in item No. 5 of the Second Scheduled attached to the Motor Vehicle Act, 1988 (the ''Act'' for short). The learned Tribunal has not assigned any reason for deviating from the compensation. Thus, according to the learned Counsel, the learned Tribunal without dealing with the non-pecuniary and pecuniary categories, has awarded an lump-sum amount of Rs. 25,000/- to the appellant.

On the other hand, the learned Counsel for the respondent No. 3, Mrs. Archana Mantri, has contended that the accident had occurred on 29.09.2004, whereas the permanent disability certificate is of 20.12.2005. According to her, the permanent disability Certificate does not show that the injuries were sustained in a road accident. Moreover, the said certificate was recorded after more than one year of the accident. Thus, there is no connecting evidence to show that the permanent disability suffered by the appellant was due to the injuries sustained by him in the

Heard the learned Counsel for the parties, perused the impugned award and examined both the injury reports as well as the permanent disablement certificate produced before this Court.

A bare perusal of the injury report, dated 28.09.2004, clearly reveals that the appellant had suffered injuries on his head, left shoulder and left elbow. According to the X-ray report (Ex.6), while the appellant had suffered fracture of the left Scapula and of the left elbow joint, there was no bone injury on the left forearm.

A bare perusal of the permanent disability certificate (Ex.10) clearly reveals that it was recorded on 20.12.2005, although, the date of examination was 08.12.2005. Although it is true that the disability certificate was drawn after a period of one year, but the fact remains

There is no requirement of law that disability certificate needs to be made immediately after the injury report is made. After all, it would take some time for the bone to join and for the fracture to heal. Merely, because there is delay of more than one year would not dilute the finding of the Board, especially when the Board has examined the injuries which according to the injury report and X-ray report were caused in the accident. Thus, there is a direct linking evidence between the injuries sustained by the appellant in the accident and the finding of the Medical Board.

According to the appellant, he was engaged in the business of animal husbandry as well as selling of milk. However, he has not placed any documentary evidence to prove this plea. But, taking the appellant to be an unskilled labourer, his income can be assessed on the basis of minimum wages which were prevalent in the year 2004. According to the notification dated July 20, 2004, an unskilled Labourer was entitled to a minimum wage of Rs. 73/- per day. Considering the fact that the appellant was running his own business of animal husbandry, he would have earned every day of the month. Thus, his monthly income comes out to be Rs. 2190/-. Considering the fact

Although, the learned Tribunal has noted the fact that the appellant had suffered permanent disability of 19.7%, the learned Tribunal still failed to apply the formula given in the item No. 5 of the Second Scheduled attached to the Motor Vehicle Act, 1988. The learned Tribunal has not given any reasons for deviating from the said formula. Instead, the learned Tribunal has awarded a lump sum compensation of Rs. 25,000/-, which was not open to the learned Tribunal. Therefore, the impugned award is unsustainable.

In order to implement the formula given in item No. 5 of the Second Scheduled attached to the Act, and in order to assess the loss suffered by the appellant due to the permanent disability sustained by him, the loss is calculated as under:

Rs.2190/- X 12 X 16 X 19.7%=82,834/

Thus, the loss suffered by the appellant comes out to be Rs. 82,834/-. 8th class, when the accident occurred. According to the appellant, he had lost one year of study due to the said accident. Although, the agony and the frustration can be well imagined, still, the learned Tribunal has granted a compensation of Rs. 25,000/- for both pecuniary and non-pecuniary loss suffered by the appellant. The learned Tribunal has not even bothered to grant separate compensations for distinct categories of pecuniary and no pecuniary loss. Such an approach of the learned Tribunal is rather surprising. Considering the fact that the appellant was 18 years and he lost one academic year, he deserves to be granted a compensation of Rs. 10,000/- under the category of pain, suffering and frustration suffered by him during the treatment and as would be suffered by him in the future.

Hence, the award dated 24.02.2006 stands modified as under:

Rs. (i) Loss suffered due to the said accident. 82,834/(

ii)Compensation under the category of pain suffering and frustration. 10,000/Rs. 92,834/

The Insurance Company, respondent No. 3, is directed to pay the enhanced amount, after deducting the amount already paid to the appellant, along with @ 6% interest from the date of filing of the claim petition i.e. 14.03.2005 till the date of realization. The learned Tribunal is directed to ensure that the enhanced amount of compensation is paid to the appellant within a period of two months from the date of receipt of the certified copy of this judgment.