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2006 DIGILAW 1128 (RAJ)

Shyo Bihari Gothwal v. Bajrang Lal

2006-04-10

R.S.CHAUHAN

body2006
Judgment R.S. Chauhan, J.-From a human life to a vegetative state is the long distance, the appellant has covered in a short accident between car and the jeep. On 03.09.1997, around 11.30 PM., while the appellant was travelling in a car with some of his friends they met with an accident with a jeep at Jhotwara in Jaipur. The appellant was grievously injured as he had sustained injuries on his head, backbone and the lower limbs. Consequently, he suffered the mal-functioning of the brain and the paralytic effects on the body. Although the appellant was working as electrician prior to the accident, when he was brought into the Court he could neither walk, nor stand, he could neither talk, nor sit properly. A human being was suddenly reduced to a scare crow figure. Needless to say, the appellant had filed a claim petition before the Motor Accident Claims Tribunal Jaipur vide award dated 16.09.2002 the learned Tribunal was pleased to award a compensation of Rs. 2,15,000/-. However, since the appellant was not satisfied with the said compensation, he has filed the present appeal before us. 2. Mr. K.N. Tiwari, learned Counsel for the appellant, has vehemently argued that the appellant was a young man of 30 years when he met with the near fatal accident. He was working as an electrician and was earning somewhere between Rs. 2,000-2,500/-per month. However, the Tribunal has erroneously concluded that he was earning merely Rs. 500/-per month. Such a conclusion is unwarranted by any evidence. Therefore, the said conclusion cannot be sustained in the eyes of law. Moreover, he has argued that item 5 of the Second Schedule attached to the Motor Vehicles Act, 1988 (henceforth to be referred to as “the Act”, for short) prescribes a formula for calculating the compensation which shall be payable in case of disability in a non-fatal accident. The Tribunal has not followed the said formula. Therefore, the calculation made by it is extremely low. 3. Mr. J.P. Goyal, the learned Counsel for the respondents, has contended that considering the fact that the accident took place in the year 1997, a just and reasonable compensation has been paid to the appellant. Therefore, he has supported the impugned award. 4. We have heard the learned Counsels for the parties and perused the record and the impugned award which is before us. 5. Therefore, he has supported the impugned award. 4. We have heard the learned Counsels for the parties and perused the record and the impugned award which is before us. 5. Arthur Miller, the American play writer, in his famous play Death of a Salesman said “the tragedy is that a man is dying”. Human life is a precious gift of nature. Its demise or damage leaves a dent in the society at large. The appellant, is totally crippled person who has neither the control on the functioning of his brain, nor any control on the functioning of the body. According to AW. 6, Dr. M. R. Goyal and according to the disability certificate Exhibit-1, the permanent disability is to the extent of 50%. Since, the learned Tribunal was sensitive to the pain and agony, to the frustration and difficulties that awaited the appellant in further, it had rightly awarded a compensation under these heads to the tune of Rs. 1 lac. However, the calculation of his monthly income to a low amount of Rs. 500/-is misplaced. Even a decade back an electrician would have certainly earned more than Rs. 500/-. Considering the fact that according to the appellant he was earning somewhere between Rs. 2,000-2,500/-a reasonable amount to be presumed would be about Rs. 1,800/-per month. Therefore, we presume that the appellant was earning Rs. 1,800/-per month. 6. Item 5 of the Second Schedule attached to the Act is as under:-“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) Incase 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 Workmens 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 Workmens Compensation Act, 1923.” 7. A bare perusal of the said item would clearly reveal that the compensation is to be paid in two parts; firstly the loss of income if any, for the actual period of disablement but not exceeding 52 weeks. Secondly, in addition, in case of permanent total disablement the amount payable would be arrived by multiplying the annual loss of income by the multiplier applicable to the age of the injured on the date of determining the compensation. In case of permanent partial disablement, the said amount would be calculated according to the formula given in sub-item (a), above but the said amount would be to the extent of percentage of the disability sustained by the injured. Since, the formula is part of Statute, it has to be implemented. Therefore, while considering the appellants case, the learned Tribunal should have applied the said formula. But, the learned Tribunal has failed to do so. 8. The said formula has been applied by this Court in the case of Prabhu Mehta vs. Jagannath & Ors., 2004(3) CDR, 1980 (Raj.). It has also been applied in the case of Harminder Singh vs. Gopal Singh & Ors., 2005 RAR, 280 (Raj.). In that case the injured was 23 years old Engineer who was earning Rs. 5,000/-per month. He had suffered a disability of 40% and had been awarded Rs. 50,000/-by the claims Tribunal. However, by applying the formula stated above, this Court enhanced the compensation from Rs. 50,000/-to Rs. 4,98,000/-and awarded an interest of 6% per annum from the date of the appeal. Since, the award had been enhanced steeply the Insurance Company the respondent in that case filed an appeal before the Division Bench. However, vide Judgment dated 01.02.2005 the Honble Division Bench was pleased to dismiss the appeal and to uphold and confirm the Judgment of the Single Bench. The said decision is reported as United India Insurance Co. Ltd. vs. Harminder Singh & Ors., 2005 RAR 429 (Raj.). Thus, the formula is not only statutorily given, but has also been upheld by this Court. Therefore, both on the basis of law and case law, the formula is legally sanctified. 9. In the present case, if we take the appellants income as Rs. Ltd. vs. Harminder Singh & Ors., 2005 RAR 429 (Raj.). Thus, the formula is not only statutorily given, but has also been upheld by this Court. Therefore, both on the basis of law and case law, the formula is legally sanctified. 9. In the present case, if we take the appellants income as Rs. 1,800/-per year and reduce it by 50%, the monthly income comes out to be Rs. 9,00/-per month. Rs. 9,00/-multiplied by 12 would give us the annual income as Rs. 10,800/-. Since, the petitioner was 31 years old on the date of determination of the compensation a multiplier of 17 would have to be applied. Therefore, the annual loss suffered by the appellant comes out to be Rs. 1,83,600/-. The appellant has already been granted Rs. 1,00,000/-under the category of pain and agony, Rs. 5,000/-for loss of income, Rs. 10,000/-for nutritional diet and Rs. 10,000/-for misc. expenses. Thus, the Tribunal had granted compensation of Rs. 1,25,000/-to the appellant. Computing the compensation granted by the Tribunal with the calculation the loss of income suffered by the appellant we enhance the compensation from Rs. 2,25,000/-to Rs. 3,08,600 /-. The said amount shall be paid at the rate of 6% per annum from the date of the filing of the appeal i.e., from 113.2002 (sic) till the present. The Insurance Company is directed to deposit the said amount within a period of one month with the Tribunal and the Tribunal is directed to disburse the said amount within a period of 15 days thereafter. 10. With these observations this appeal is allowed.