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2008 DIGILAW 1761 (RAJ)

Kishore Singh v. Vidhyadhar

2008-07-24

R.S.CHAUHAN

body2008
JUDGMENT 1. - Aggrieved by the meagre amount of compensation of Rs. 81,800/- for 35% of permanent disability suffered by the appellant, the appellant has challenged the impugned award dated 14.12.05 passed by the Addl. District Judge (Fast:Track) No. 2; cum Judge, Motor Accidents Claims Tribunal, Sikar. 2. The brief facts of the case are that on 23.1.03 the appellant had alighted from a bus and was walking on the road when suddenly he was hit behind by a bus. One of the tyres of the bus went over the right leg of the appellant causing grievous injury to the right leg. Consequently, the appellant suffered 35% of permanent disability. The appellant filed a claim petition before the learned Tribunal. In order to substantiate his case, the appellant examined himself as a witness and submitted 100 documents. Although the Insurance Company submitted few documents, it did not examine any witness. After going through the oral and documentary evidence, the learned Tribunal has granted the compensation as before mentioned. Hence, this appeal for enhancement. 3. Mr. Atish Jain, the learned counsel for the appellant, has vehemently argued that item 5 of the Second Schedule attached to the Motor Vehicle Act of 1988 clearly lays down a formula to be followed by the Tribunal in cases of injuries. However, the learned Tribunal has emphatically ignored the said formula while assessing the compensation amount. According to the learned counsel the appellant was 38 years old and was earning an income of Rs. 3,000/- per month. Thus, the Tribunal had sufficient data for implementing the formula as laid down in item 5 of the Second Schedule. Therefore, the impugned award is unsustainable. 4. On the other hand, Mr. S.R. Joshi and Mrs. Sharda Pathak, the learned counsel for the Insurance Company, have vehemently argued that a discretion has been given to the Tribunal to apply the formula. According to Mr. S.R. Joshi, it was for the appellant to establish the extent of loss suffered by him due to the disability incurred as a consequence of the accident. Since the appellant has failed to establish the extent of loss suffered by him, the Tribunal was justified in not applying the formula laid down in item 5 of the Second Schedule attached to the Act. 5. Mrs. Since the appellant has failed to establish the extent of loss suffered by him, the Tribunal was justified in not applying the formula laid down in item 5 of the Second Schedule attached to the Act. 5. Mrs. Sharda Pathak has contended that the Tribunal has taken into account the.pecuniary and non-pecuniary loses suffered by the appellant and has passed a just and reasonable award in favour of the appellant. Hence both the learned counsel have supported the impugned award. 6. We have heard the learned counsel for the parties have perused the record submitted before this court and have examined the award. 7. One of the reasons for inserting the Second Schedule into the Act was to bring about the uniformity and to establish a procedure for assessing the loss suffered by the claimant. In order to ensure uniformity the legislature in its wisdom had prescribed a particular formula to be applied in cases of injuries. The said formula is contained in Item No. 5 of the Second Schedule of the Act and 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) 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." 8. Once this formula has been established by the legislature, the Tribunals are legally board to give effect to the said formula. However a bare perusal of the impugned award clearly reveals that the learned Tribunal has totally ignored the said formula Surprisingly the learned Tribunal has not given any reason whatsoever for ignoring the formula. In case the Tribunal wanted to ignore the said formula, it was required to state logical and cogent reasons for such deviation. However a bare perusal of the impugned award clearly reveals that the learned Tribunal has totally ignored the said formula Surprisingly the learned Tribunal has not given any reason whatsoever for ignoring the formula. In case the Tribunal wanted to ignore the said formula, it was required to state logical and cogent reasons for such deviation. In the absence of cogent reasons, the impugned award cannot be sustained in the eyes of law. 9. In order to workout the formula the Tribunal needed to know the age of the claimant and the income received by him at the time of the accident. The appellant had clearly stated his age to be 38 years and had produced the salary certificate issued by the employer dated 31.3.03. According to the said salary certificate the appellant was receiving Rs. 3,000/- per month. With these two datas in its hand, the Tribunal should have clearly worked out the formula as under : Rs. 3,000 x 12 x 16 = Rs. 5,76,000 Since the extent of disability was 35% the extent of loss suffered by the appellant would be Rs. 2,01,600/-. 10. A bare perusal of the impugned award clearly reveals that the non-pecuniary benefits for physical and mental pain and the pecuniary benefits for the medical bills and for nutritional diet and for loss in income have already been granted by the learned Tribunal. Hence this court need not interfere with the amount of compensation under the above heads. 11. In the result this appeal is partly allowed and the award dated 14.12.05 stands modified as under 12. The loss suffered by the appellant is Rs. 2,01,600/-. The learned Tribunal is directed to ensure that the enhanced amount, alongwith interest @ 6% per annum from the date of filing of the claim petition is granted to the appellant within a period of two months from the date of the receipt of the certified copy of this judgment. There shall be no order as to cost.Appeal Partly Allowed. *******