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2004 DIGILAW 479 (CAL)

DILIP DAS v. NEW INDIA ASSURANCE CO. LTD

2004-07-16

ANIRUDDHA BOSE, PRABIR KUMAR SAMANTA

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P. K. SAMANTA AND A. BOSE, JJ. ( 1 ) THIS is a miscellaneous appeal by claimant victim against the judgment and award passed in a motor accidents claim case on an application under section 166 of the Motor vehicles Act, 1988. The victim suffered injury on his person causing permanent partial disablement. ( 2 ) IN this appeal the quantum of compensation as awarded by Claims Tribunal has been challenged by claimant-appellant on the ground that such determination has been made much on the lower side. ( 3 ) EVIDENTLY, the claimant victim was treated in the Calcutta Medical College for the injuries suffered by him. From the discharge certificate as issued by the Calcutta medical College it appears that the victim suffered injuries in three fingers in the right hand. While the victim has deposed in the claim case by saying that because of such injury he is not at all in a position to work with his hands, the medical certificate issued by a doctor who did not treat him shows that he has suffered permanent partial disability to the extent of 60 per cent only. Undoubtedly, the victim is a washerman by profession. If his evidence is to be relied upon, then the certificate of the doctor cannot be relied upon. There being such discrepancy in between the deposition of the claimant victim and the certificate of the doctor, we are of the view that for safer guidance the Schedule I to the Workmen's compensation Act, 1923, should be taken into account for the purpose of determining the percentage of loss of earning capacity in view of injuries suffered by the victim. It is not in dispute that the three fingers of the right hand of the victim have been affected by such injury in the said accident. Serial No. 8 under Part-I to the Schedule I of the said Workmen's Compensation Act, 1923 speaks of 30 per cent loss of earning capacity in case of loss of three fingers of one hand. In this case though the claimant victim has not lost totally three fingers of his right hand but taking the case as an extreme one of loss of three fingers of one hand, claimant victim under no circumstances would be entitled to a compensation for loss of his earning capacity for more than 30 per cent. In this case though the claimant victim has not lost totally three fingers of his right hand but taking the case as an extreme one of loss of three fingers of one hand, claimant victim under no circumstances would be entitled to a compensation for loss of his earning capacity for more than 30 per cent. ( 4 ) THE claimant victim being a washerman, his evidence that he was earning at the rate of Rs. 1,500 per month cannot be said to be an exaggerated figure. We are, therefore, inclined to accept the same. The learned Claims Tribunal has determined the income of claimant victim as notional income of Rs. 15,000 per annum, on the face of the evidence of the claimant victim himself and there being no other evidence on the side of the insurer respondent, the determination of the annual income of the claimant victim as Rs. 15,000 per annum as being non-earning member cannot at all be supported. However, the Claims Tribunal has rightly come to the conclusion by taking guidance from the Schedule I to the Workmen's Compensation Act, 1923 that the victim has suffered loss of earning capacity to the extent of 30 per cent. The application of multiplier of 17 for the purpose of computation of compensation has also not been questioned by either of the parties to the appeal. ( 5 ) ACCORDINGLY, the impugned award requires modification on the basis of the monthly income of Rs. 1,500 of the claimant victim at the relevant point of time. On such basis the loss of earning capacity comes to Rs. 91,800. Claimant appellant will further be entitled to compensation for non-pecuniary damages such as pain and suffering and medical expenses, if any, required in future which we determine at a lump sum amount of Rs. 8,200. Thus, the total amount of compensation payable to the claimant victim would be a sum of rs. 1,00,000. ( 6 ) CLAIMANT victim has already received a total sum of Rs. 81,500 both under no fault and fault liabilities. The claimant victim would accordingly be entitled to a balance sum of Rs. 18,500 which is to carry interest as per the provisions of the statute. 1,00,000. ( 6 ) CLAIMANT victim has already received a total sum of Rs. 81,500 both under no fault and fault liabilities. The claimant victim would accordingly be entitled to a balance sum of Rs. 18,500 which is to carry interest as per the provisions of the statute. The claimant victim having not received any interest whatsoever on the awarded amount, we determine the total sum of compensation payable to the claimant victim on account of interest on the amount as awarded by Claims Tribunal and the balance sum as above at Rs. 30,000. The insurer respondent is accordingly directed to issue a cheque of Rs. 30,000 in the name of the claimant appellant and to hand over the same to the claimant victim himself or to deposit the same with the claims Tribunal within a period of four weeks from date. The impugned judgment and award is thus modified. The appeal is accordingly disposed of. ( 7 ) IF urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously. Appeal partly allowed.