Vijay Singh vs R.S.R.T.C. and Another

Mahesh Chandra Sharma, J.—This civil misc. appeal has been filed against the common award dated 29th June, 2007 passed by the Judge, Motor Accident Claims Tribunal, Hindaun City (in short M.A.C.T.) in Claim Case No. 71/2003 whereby the M.A.C.T. awarded Rs. 50,000/- to the claimant for the injuries received by him in the accident. The M.A.C.T. directed the R.S.R.T.C. to pay only 70% of the amount i.e., Rs. 35,000/- to the claimant as the M.A.C.T. held the contributory negligence in the ratio of 70:30 for the accident that occurred between bus No. RJ 34 0338 and motor cycle No. RJ 33 M 0909 on which the claimant was sitting alongwith two persons.The facts have been set out in the impugned award and hence I am not repeating the same here except wherever necessary.

It may be mentioned that the claimant appellant has only prayed for enhancing the claim amount and so far as other issues decided by the M.A.C.T. have not been challenged, the finding on other issues in this manner stand confirmed.

Briefly stated the facts of this case are that on 16th January, 2003, when the appellant alongwith two other persons were going towards Truck Union Naka on a motor cycle No. RJ 33 M 0909 near Pura Power House of Pavtiyan from the side of Mahua, a Roadways Bus No. RJ 34 P 0338 being driven rashly and negligently by the respondent No. 2, hit the motorcycle in which all the three persons including the appellant received injuries. An F.I.R. to this effect was also lodged. The police filed charge sheet.

The appellant filed a claim petition before the M.A.C.T. upon which notices were issued. After service reply was filed on behalf of the R.S.R.T.C. After scrutinising the evidence the M.A.C.T. has passed the aforesaid award dated 29th June, 2007 fixing liability of the bus and motorcycle in the ratio of 70:30 and awarding Rs. 35,000/- to be payable by the RSRTC to the claimant appellant. Against the award of compensation of Rs. 35,000/-, the appellant has filed its misc. appeal for enhancement of the award amount.

The learned Counsel for the appellant has contended that the appellant sustained injuries on leg and neck and he was admitted in hospital for a long time and he took treatment about 2 years and lot of expenditure was incurred in purchasing medicines etc., therefore, the claim amount deserves to be enhanced. The appellant was earning Rs. 5000/- per month and he was 40 years of age at the time of accident and due to leg fracture he could not do work smoothly and its fact has not been controverted by the respondents and, hence, the compensation amount should be enhanced. The learned Counsel further stated that he has done expenditure about Rs. 80,000/- in purchasing medicines, check up, nutrition food and one attendant who remained in Jaipur during treatment In these circumstances it was prayed that the compensation amount should be enhanced.

Mr. Virendra Agrawal, learned Counsel for the appellant on the other hand opposed the submissions of the appellant and prayed that the award passed by the M.A.C.T. in just and proper and the appellant is not entitled for any enhancement in the compensation awarded by the M.A.C.T. It is an admitted fact that the R.S.R.T.C. has not filed any appeal or cross-objection challenging the award of Rs. 50,000/- by the M.A.C.T., out of which Rs. 35,000/- was payable by the R.S.R.T.C. to the claimant.

The M.A.C.T. in relation to appellant Vijay Singh on issue No. 2 gave the following findings:

I have gone through the findings arrived at by the M.A.C.T. The M.A.C.T. in lump sum looking to the evidence and the documents produced by the claimant assessed the compensation in the amount of Rs. 50,000/-. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. It is an admitted fact that the claimant remained in hospital for 18 days. During the period he remained in hospital he must have kept some assistant during these days. He must have incurred some amount on medicines. For the purposes of treatment he must have incurred some amount on special diet etc. For the purpose of admission in hospital he must have come through hired transportation. During this period he must have suffered mental agony also. After discharge from hospital he must have remained at his residence for recovery about one or two years. During this period, there is bound to be a loss of income to him. The M.A.C.T. has not given any break-up of the amount awarded to the claimant. In my opinion the compensation should have been enhanced, looking to the following principles enunciated by the Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another, :

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

As per the findings arrived at by the M.A.C.T. the claimant produced vouchers regarding medicines etc. of Rs. 15,794/-. For 18 days remained in hospital for that at least Rs. 1,000/- per day Rs. 18,000/- should have been incurred by him. For transportation etc. from his village to Jaipur approximately Rs. 15,000/- must have been incurred by the claimant. For loss of earning during the period he has undergone medical treatment at his residence at least Rs. 20,000/- should have been granted. For keeping assistant in the hospital he must have incurred at least Rs. 10,000/-. For two operations he must have incurred more than Rs. 20,000/-. In all Rs. 1,00,000/- compensation should have been awarded. Out of this amount only 70% can be paid by the R.S.R.T.C. Thus, for meeting ends of justice Rs. 70,000/- may be awarded to the claimant to be payable by the respondent R.S.R.T.C. and since the M.A.C.T. granted only Rs. 35,000/- a further sum of Rs. 35,000/- should be awarded to the claimant. In all Rs. 70,000/- is determined as compensation payable by the R.S.R.T.C. Since, the claimant has not impleaded as a party to the claim petition the owner of the motorcycle and the insurer or the motorcycle, and hence he is not entitled to claim any enhanced amount of compensation from them.

For these reasons this misc. appeal is allowed to the extent mentioned above and the award dated 29th June, 2007 in Claim Case No. 71/2003 may be modified accordingly. The parties are directed to bear their own costs.