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2004 DIGILAW 1701 (RAJ)

Satish Chandra v. Avtar Singh

2004-11-30

DALIP SINGH

body2004
JUDGMENT 1. - This appeal arises out of the award dated 18.4.1995 passed by the Motor Accident Claims Tribunal, Jaipur City, Jaipur (hereinafter referred to as 'the Tribunal') in Claim Petition No. 394/1989 filed by the claimant-appellant for compensation on account of injury suffered by him in a motor accident which took place on 11.9.1998. 2. During the pendency of this appeal by an order dated 10.3.2004 this Court had dispensed with the service of notice on respondent Nos. 1 & 2, the driver and the owner of the vehicle in question and the appeal has been contested by the insurer, the New India Insurance Company Ltd. Branch, Neharu Place, Tonk Road, Jaipur, as respondent No. 3. 3. The case of the appellant is that the learned Tribunal has awarded a meagre sum of Rs. 5,000/- only in all despite the fact that it has come on record that the appellant suffered dislocation of the right hip joint which has resulted in 14% disability of the right lower limb. Learned counsel for the appellant submits that from the evidence of AW-5 Dr. M.K. Mathur; who has proved the Injury Report (Ex.P/52) as well as the X-ray report (Ex.P/53), and the disability certificate (Ex.P/18) which were produced on record as a result of which the injury. suffered by the appellant and his disability is amply proved. The appellant suffered the permanent-disability of 14% on account of the said dislocation of the right hip joint on his right lower limb. 4. The contention of the learned counsel for the appellant is that in spite of the aforesaid permanent disablement which the appellant suffered at the age of 28 years which was the age of the appellant at the time of accident, a meagre sum of Rs. 2,000/- alone has been awarded for the injury and in addition to the aforesaid a sum of Rs. 3,000/- has been awarded towards the expenses for transportation, etc. which is wholly inadequate. The next contention of the learned counsel for the appellant is that the Tribunal has failed to grant any compensation on account of loss of income for permanent disablement and nothing has been awarded under the head of pain and suffering suffered by the appellant on account of the aforesaid injuries. which is wholly inadequate. The next contention of the learned counsel for the appellant is that the Tribunal has failed to grant any compensation on account of loss of income for permanent disablement and nothing has been awarded under the head of pain and suffering suffered by the appellant on account of the aforesaid injuries. Learned counsel for the appellant further contended that in view of the provisions contained in II Schedule of the Motor Vehicles Act, 1988 particularly in Item No. 5, the amount of compensation awarded to the appellant deserves to be enhanced. 5. Learned counsel for the respondents is also in agreement that in view of the decision of Their Lordships of the Hon'ble Supreme Court case of Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., I (2003) ACC 352 (SC) : II (2003) SLT 65 : 2003(2) WLC (SC) Civil 149 , where in para 11 Their Lordships have held that the provisions contained in II Schedule of the Motor Vehicles Act, 1988 have proved to be a guideline so far as the cases covered under the said Schedule are concerned and accordingly this case may also be dealt with under the provisions of the II Schedule of the M.V. Act, 1988. 6. I have considered the submissions made at bar and taken into account the provisions of the II Scheduled of the M.V. Act, 1988 and more particularly, Item No. 5 thereof which reads as under "Item No. 5: 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." 7. 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." 7. Learned counsel for the' appellant has submitted that it has come on record that the appellant had the income of Rs. 4,000/- to Rs. 5,000/- per month and suffered the 14% permanent disability. This fact is disputed by the learned counsel appearing on behalf of the respondent-Insurance Company, who has drawn my attention towards the fact that the claimant-appellant himself had claimed in the claim petition that at the time of the accident, the appellant was earning only Rs. 2,000/- and filed this claim for 10% disability. In view of the aforesaid, the submission of the learned counsel for the respondent is that the appellant cannot be allowed to ask for more than what has been claimed in the claim petition. 8. I am inclined to agree with the submissions made by the learned counsel for the respondent-Insurance Company that the case of the appellant cannot travel beyond the pleadings and, therefore, the income of the appellant is assessed as Rs. 2,000/- per month at the time of accident in view of the provisions as shown in Item No. 5 of the II Schedule and the disability which the appellant hits pleaded being 10%, the amount liable to be calculated is 10% of Rs. 2,000/- which is Rs. 200/-. When multiplied by 12, the annual loss comes to Rs. 2,400/- and in accordance with the provisions of II Schedule multiplier of 18 is to be applied in the case of persons in the age group of 25 to 30 years, since the age of the appellant at the time of accident was 28 years. Consequently, 200 x 12 x 18 is equal to Rs. 43,200/- would be the loss of earning on account of permanent disability of the appellant and as such under the head of loss of earning the appellant would be entitled in this appeal to be awarded a sum of Rs. 43,200/-. 9. Learned counsel for the appellant further submits that on account of pain and suffering and hospitalization, the appellant be awarded a sum of Rs. 5,000/- as compensation. Under the Item No.4 of the II Schedule for the head of pain an suffering for grievous injury a sum of Rs. 43,200/-. 9. Learned counsel for the appellant further submits that on account of pain and suffering and hospitalization, the appellant be awarded a sum of Rs. 5,000/- as compensation. Under the Item No.4 of the II Schedule for the head of pain an suffering for grievous injury a sum of Rs. 5,000/- has been prescribed and for non-grievous injury a sum of Rs. 1,000/- has been prescribed as compensation. 10. Learned counsel for the respondent-Insurance Company submits that the dislocation not being a fracture cannot be termed to be a grievous injury. However, in view of the provisions contained in Section 320 Clause Seventhly of IPC a fracture of dislocation of bone have been defined as grievous injury and consequently, in the facts and circumstances of the present case, since, the injury suffered is the dislocation of the right hip joint, the appellant would have suffered the grievous injury and would be entitled to a sum of Rs. 5,000/- as compensation for pain and suffering. 11. In the result, this appeal is allowed to the extent as indicated above, inasmuch as the appellant would be entitled to a sum of Rs. 43,200/- (Rupees forty-three thousand two hundred only) on account of loss of earning for the permanent disability suffered by him with the enhanced amount of Rs. 5,000/- (Rs. five thousand only) towards pain and suffering in addition to the amount already awarded by the Tribunal. The appellant -would be entitled to receive an amount of Rs. 48,200/- (Rupees forty-eight thousand two hundred only) in all from the respondents. In case, the amount is paid by way of demand draft to the appellant or deposited with the Tribunal within a period of three months from today, the respondent would deposit the same with interest on the amount @ 6% per annum with effect from the date of filing of this appeal i.e., 24.7.1995. In case, the aforesaid amount is not paid or deposited within the period of 3 months, the appellant would be entitled to receive interest on the enhanced amount @ 9% per annum w.e.f the date of filing of the claim petition i.e. 27.2.1989.There will be no order as to costs.Appeal allowed. *******