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2009 DIGILAW 2491 (RAJ)

Labu Singh : Shaitan Singh - Non v. Shaitan Singh

2009-12-04

MAHESH BHAGWATI

body2009
JUDGMENT 1. - Since both the aforesaid appeals arise out of and pertain to one judgment and award dated 1st September, 2007 rendered by the Additional District judge (Fast Track) No. 4, Ajmer, they were heard together and are being disposed off by this common order. 2. An unfortunate accident occurred on 11th May, 2006 when the rider of Motorcycle RJ-36-SA-4141 drove it rashly and negligently at a fast speed and rammed another Motorcycle whereupon the Appellants Roop Singh and Labu Singh were going. This accident resulted into injuries on their persons of both Roop Singh and Labu Singh. They filed the claim petitions before the Tribunal and the learned Tribunal decreed an amount of Rs. 2,33,404/- in favour of the Appellant Roop Singh and decreed an amount of Rs. 63,694/- in favour of the Appellant Labu Singh. The Appellants were not satisfied with the amount under the award, hence, these appeals for enhancement of compensation. 3. Heard the learned Counsel for the parties and carefully perused the relevant material on record including the impugned award.Claim Case No. 240/2006 : (IN CMA No. 453/2008) 4. learned Counsel for the Appellant restricted his argument only to one aspect and contended that the Appellant-claimant sustained simple and grievous injuries at many places of right leg. He remained admitted in the Hospital at Nasirabad w.e.f. 11th May, 2006 and at Ajmer w.e.f. 13th May, 2006 to 15th May, 2006. At Ajmer the Doctors advised the amputation of right leg, hence, he was taken to Krishna Hospital, Bhilwada, where he was operated on 16th May, 2006 and his right leg was amputated above the knee. He remained in the Hospital w.e.f. 15th May, 2006 to 23rd May, 2006. He underwent prolonged treatment for a period of six months, employed the service of attendants and during this period suffered extreme physical pain and trauma. Despite there being so much evidence with regard to gravity of the injuries, the certificate of 80% permanent disability and the record indicating the amputation of right leg above the knee, the learned Tribunal did not apply the multiple as suggested in the Second Schedule appended to the Motor Vehicles Act, 1988, He remained admitted in different Hospitals at nasirabad, Ajmeer and Bhilwada and got a prolonged treatment for more than a period of six months. Despite it the learned Tribunal awarded a compensation of abysmally low amount of Rs. Despite it the learned Tribunal awarded a compensation of abysmally low amount of Rs. 2,00,000/- towards physical pain, trauma, suffering and 80% permanent disability. learned Counsel prays that the amount of compensation needs to be enhanced and the impugned award be modified. 5. The learned Counsel for the Respondent-Insurance Co. has defended the impugned award and called the same to be just and proper. He further canvassed that lump-sum amount of Rs. 2,00,000/- has been granted towards the physical pain and permanent disability. This amount is sufficient and just and the appeal deserves to be dismissed. 6. Clause 5 of Second Schedule appended to the Motor Vehicles Act, 1988 pertains to disability in non-fatal accidents. This clause suggests that if there is a disability in non-fatal accidents and there is a loss of income, then the amount towards loss of income shall be ascertained by considering the annual income and the age of victim applying the multiplier as suggested in the Second Schedule. 7. In the instant case, the Appellant-claimant was 28 Years of age at the time of accident. Albeit, he claimed Rs. 6,000/- to be his monthly income in the claim petition but he has not filed any documentary or clinching evidence to prove the same. The income of Rs. 6,000/- as claimed does not stand substantiated by any other settling evidence nor does it stand proved, hence, with a view to ascertain the loss of income, the minimum wages notified by the State of Rajasthan at the relevant point of time can be taken into consideration. As per the permanent partial disability certificate Ext. P.17, the Medical Board has found 80% permanent partial disability in the case of Roop Singh. He was a mason, who used to construct the houses. Thus, it deems just to consider the wages prescribed by the Government for the skilled labour which was 81/- per day prevailing on the date of accident. The amount of compensation towards the loss of income as ascertained thus: 81 x 30 x 12 x 18 x 80 / 100 = Rs. 4,19,904/- Thus, the Appellant-claimant is held entitled to claim Rs. 4,19,904/-instead of Rs. 2,00,000/- towards the loss of income owing to 80% permanent partial disability as also towards the physical pain and trauma. The amount of compensation towards the loss of income as ascertained thus: 81 x 30 x 12 x 18 x 80 / 100 = Rs. 4,19,904/- Thus, the Appellant-claimant is held entitled to claim Rs. 4,19,904/-instead of Rs. 2,00,000/- towards the loss of income owing to 80% permanent partial disability as also towards the physical pain and trauma. Learned Tribunal has awarded compensation towards other various heads also which calls for no interference and they shall remain as they are.Claim Case No. 341/2006: (IN CMA No. 555/2008)In this appeal also, the learned Counsel has advanced those very arguments which were put-forth in the case of Appellant Roop Singh. In the instant appeal, the Appellant Labu Singh was a driver and he used to drive Tempo but he has not produced any evidence to prove his profession. However, he sustained injuries on his knee and a fracture on femur bone of right leg. He remained admitted initially in the hospital at Nasirabad w.e.f. 11th May, 2006 to 15th May 2006 and thereafter Appellant got treatment in Krishna hospital at Bhilwada. The Appellant underwent prolonged treatment and spent approximately Rs. 60,000/- He not only sustained grievous injuries but suffered 15% permanent partial disability. Owing to this accident his leg was operated. Despite there being ample evidence with regard to the nature of injury and medical certificate, the learned Tribunal awarded lump-sum amount of Rs. 33,000/- towards the loss of income, physical pain and trauma owing to permanent partial disability. In the instant appeal also, I deem just and apt to apply the multiplier as suggested in the Second Schedule appended to motor Vehicles Act, 1988 for those very reasons as recorded above. In the case of Appellant Labu Singh the loss of income can be ascertained after applying the multiplier of 18, thus: 73 x 30 x 12 x 18 x 15 = 70,956/- Thus, the Appellant-claimant Labu Singh is held entitled to claim Rs. 70,956/- instead of Rs. 33,000/- towards the loss of income due to 15% permanent partial disability, the physical pain and trauma. Learned Tribunal has awarded compensation towards other various heads also which calls for no interference and they shall also remain as they are. 8. No other argument except above has been advanced by either of the parties. 9. For the reasons stated above, both the aforesaid appeals are allowed in part. Learned Tribunal has awarded compensation towards other various heads also which calls for no interference and they shall also remain as they are. 8. No other argument except above has been advanced by either of the parties. 9. For the reasons stated above, both the aforesaid appeals are allowed in part. The total amount of compensation in Civil Misc. Appeal No. 453/ 2008 is enhanced from Rs. 2,33,404/- to 4,53,308/- and in case of Civil Misc. Appeal No. 555/2008 the total amount of compensation is enhanced from Rs. 63,360/- to Rs. 1,04,650/- Both the Appellants Roop Singh and Labu Singh shall also be entitled to get interest @ 6% per annum on the enhanced amount from the date of filing the claim petition, till the same is actually realised respectively. Rest of the terms under the award shall remain unchanged. The impugned award stands modified as in dictated hereinabove. 10. There shall be no order as to costs.Appeals Allowed in Part. *******