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Rajasthan High Court · body

2009 DIGILAW 871 (RAJ)

Pratap Kumar Verma v. Lumba Ram Ors.

2009-03-26

GUMAN SINGH

body2009
JUDGMENT 1. - Heard learned counsel for the parties. 2. The CMA No. 1634/1999 has been preferred on behalf of injured-appellant for enhancement of compensation awarded by the learned Motor Accident Claims Tribunal, Ajmer vide judgment dated 1.9.99 whereby a sum of Rs. 1,21,000/- was awarded by way of compensation for the injuries sustained in the accident resulting in 49% disability. The cross objection No. 53/2002 has been filed on behalf of the Insurance Company on the ground that the learned Tribunal has awarded penal interest which deserves to be set aside. 3. The challenge in the appeal pertains to quantum of compensation only. 4. Learned counsel for the appellant submits that the learned Tribunal has assessed Rs. 1,00,000/- by way of lump sum on all other counts except the medical bills which have been awarded separately and the compensation deserves to be awarded on all other counts by taking second schedule to the M.V. Act to be the guideline. 5. Per contra, learned counsel for the respondents supported the judgment of the Tribunal and submitted that the learned Tribunal has taken into consideration evidence adduced during inquiry and has awarded adequate compensation and calls for no interference. It is further submitted that the penal interest awarded by the learned Tribunal deserves to be set aside. 6. After hearing the rival contentions, and going through the award as also record of the case, it is revealed that the injured-appellant is an Advocate, he sustained crush injury on his right hand below elbow and thereby causing restriction of the movement of the hand and elbow and had to undergo for operation by fixing a rod and then after 8 months, rod was removed. The learned Tribunal had awarded a sum of Rs. 41,000/- for medical bills submitted by the claimant-injured but no specific amount has been awarded separately on all other counts. In this regard, the learned counsel for the Insurance Company submitted that there are two disability certificates on record i.e. Ex.178 showing 49% disability and other Ex.A-1 issued by Dr. Kavia showing 21% disability. It is also submitted that this controversy should be reconciled before the compensation is computed. In this regard, the learned counsel for the Insurance Company submitted that there are two disability certificates on record i.e. Ex.178 showing 49% disability and other Ex.A-1 issued by Dr. Kavia showing 21% disability. It is also submitted that this controversy should be reconciled before the compensation is computed. For this, we may resort to the provisions of Schedule-I part II of the Workmen Compensation Act, 1931 wherein loss of hand or of the thumb and four fingers of one hand or amputation from below tip of olecranon has been provided amounting to 60% loss of earning capacity. In this matter, vide Ex.178, as the Board has found the disability to be 49% to the upper limb and thereby the disability can be assessed to be 50% (in round figure) of the total 60% earning to the injured and thereby taking the over all disability to be 30%. That apart, as the learned Tribunal has awarded lump sum amount of Rs. 1,00,000/- on all counts for loss of future earning including the expenses for hospitalization, pain and suffering, diet etc. Thus a sum of Rs. 32,000/- deserves to be set apart to set off against the amount for loss of earning arrived by calculating the compensation for loss of earning by taking second schedule to the M.V. Act to be the guideline. Thus the compensation can be calculated as under : 3000 x 12 x 11 (multiplier) x 30% (disability) = 1,18,800 - 32,000 (assessed to have been already awarded as against the loss of earning) = 86,000/- (to be additionally awarded). 7. Accordingly, appeal of the appellant is partly allowed and the Award passed by the learned Tribunal is modified to the extent that the appellant shall get a sum of Rs. 86,000/- by way of additional enhanced compensation from the date of appeal i.e. 17.11.99, with 6% interest to be paid within three months. Thereafter interest shall be paid@ 9% per annum. The rest of the terms of award shall remain unchanged. Record be sent forthwith. The condition of penal interest in the award is set aside and the amount if any paid on account of penal interest, shall be set off from the amount to be paid. The cross objection stands disposed of.Appeal Partly Allowed. *******