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2008 DIGILAW 1211 (MP)

Ramsharan Mishra v. Vijay Singh

2008-10-13

INDRANI DATTA, S.SAMVATSAR

body2008
Judgment Samvatsar and Datta, JJ. ( 1. ) This appeal is preferred by the claimant under section 173 of the Motor Vehicles Act, 1988 being aggrieved by the award dated 9.11.2005 passed by the Motor Accidents Claims Tribunal, Bhind in Claim Case No. 42 of 2005 whereby the Claims Tribunal has awarded a sum of Rs. 3,10,734 towards the compensation for the injuries sustained by the appellant. ( 2. ) The brief facts of the case are that on 4.4.2004 at about 7 in the evening the complainant Ramsharan was travelling on a motor cycle as a pillion rider. The said motor cycle met with an accident with a jeep No. MP 30-T 0579, which was driven rashly and negligently by its driver Vijay Singh, respondent No. 1. In the said accident the appellant sustained injuries which has resulted in amputation of right leg from thigh. Hence, the appellant filed an application for compensation. The Claims Tribunal awarded a sum of Rs. 1,16,334 to the claimant against the medical expenses, special diet, conveyance charges and for pain and suffering. The Claims Tribunal has also awarded a sum of Rs. 1,94,400 towards general damages. The claimant has filed this appeal stating that the amount awarded towards general damages, i.e., Rs: 1,94,400 is on the lower side, while Mr. B.N. Malhotra, learned counsel for the insurance company supported the award. He contended that the amount awarded towards the medical bill and other heads as Rs. 1,16,334 is on the higher side. He contended that the bills are not properly proved. ( 3. ) In the present case, the insurance company has not filed any cross- objection, hence, the arguments advanced by Mr. Malhotra that the amount of Rs. 1,16,334 awarded for the bills and other expenses is on higher side cannot be considered in the present case. The only question remains to be considered is whether the amount of Rs.1,94,400 is just and proper? ( 4. ) In the present case the claimant, to prove his income, has examined himself and one Shyamacharan, AW 5, who is his employer. According to Shyamacharan, he was paying a sum of Rs. 105 per day to the claimant, who was working as a labourer in his oil industry. The Claims Tribunal disbelieved the register produced by the employer on the ground that the said register is only for the year 2003. According to Shyamacharan, he was paying a sum of Rs. 105 per day to the claimant, who was working as a labourer in his oil industry. The Claims Tribunal disbelieved the register produced by the employer on the ground that the said register is only for the year 2003. The Claims Tribunal has also held that the registration of the industry is not produced, nor any permission is produced, nor any account of the said industry is produced to support the income of the appellant. This approach of the Claims Tribunal appears to be erroneous because the issue before the Claims Tribunal was not about the existence of the industry but about the fact that whether the appellant was working as a labourer in the said industry or not and said fact is amply proved by the statement of Shyamacharan, AW 5 and the statement of the claimant himself. Taking the income of the appellant at Rs. 105 per day the monthly income will come to Rs. 2,500 because he must be getting weekly holidays as well as other holidays during the course of his employment. Thus, we assess his income at Rs. 2,500 per month, i.e., Rs. 30,000 per year. ( 5. ) The next question is about the percentage of disability. As per the Schedule I to the Workmens Compensation Act, the disability on amputation from thigh is 60 per cent. The contention of Mr. Arun Sharma, learned counsel for the appellant, is that in view of the definition of total disablement defined under section 2 (1) (1) of the Act, Claims Tribunal should assess his disablement as 100 per cent. To appreciate the argument of Mr. The contention of Mr. Arun Sharma, learned counsel for the appellant, is that in view of the definition of total disablement defined under section 2 (1) (1) of the Act, Claims Tribunal should assess his disablement as 100 per cent. To appreciate the argument of Mr. Arun Sharma, it is necessary for this court to refer the said definition, which reads as under: "(1) total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement: Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;" From the perusal of the said definition it is clear that the total disablement means disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing. In such circumstances, it is necessary for the claimant to lead evidence to show that he has become incapable of performing all work which he was capable of performing at the time of accident. In the present case, the only evidence on record is that the claimant was labourer and there is no evidence on record that he has become incapable of performing all the work which he was capable of performing before the accident. In such circumstances, in absence of this evidence it cannot be held that the appellant has become totally disabled to assess his disablement at 100 per cent. Hence, we assess his disablement at 60 per cent as provided in the Schedule I to the Workmens Compensation Act. ( 6. ) As we have already held that the appellant was earning Rs. 30,000 per year, the loss to his earning capacity at 60 per cent will come to Rs. 18,000 per year. The claimant is 42 years of age as per the claim application as well as from the discharge ticket and MLC report. Thus, we hold the age of appellant as 42 years and on this age the multiplier of 15 will be applicable. 18,000 per year. The claimant is 42 years of age as per the claim application as well as from the discharge ticket and MLC report. Thus, we hold the age of appellant as 42 years and on this age the multiplier of 15 will be applicable. Applying the multiplier of 15 the quantum of damages will come to Rs. 2,70,000. Apart from this amount the claimant is also entitled to a sum of Rs. 1,16,334 against other heads as awarded by Claims Tribunal. Thus the total amount of compensation will come to Rs. 3,86,334. The claimant is also entitled to interest at the rate of 7 per cent per annum from the date of filing of the appeal till realization on the enhanced amount of compensation. ( 7. ) The appeal is, accordingly, partly allowed. Appeal partly allowed.