Research › Search › Judgment

Kerala High Court · body

2011 DIGILAW 1085 (KER)

New India Assurance Company Ltd. v. Remya

2011-11-02

K.SURENDRA MOHAN, R.BASANT

body2011
Judgment :- Basant, J. 1. How is the expression “accident arising out of the use of motor vehicle” in Sec.163A of the Motor Vehicles Act (for short ‘the M.V. Act’) to be construed? Does that expression take in every accident suffered in the course of use of a motor vehicle? Is the causal connection that the accident was suffered when the victim was actually traveling in a motor vehicle sufficient? Can the expression “accident arising out of the use of motor vehicle” be read down to mean “accident connected with the use of the motor vehicle”? Does the purpose and context of Sec.163A of the M.V. Act justify such an expansion of meaning for the expression? These are the first set of questions that arise in these appeals. 2. The second question that arises for determination is as to how the expression “permanent disablement” in the body of Sec.163A is to be understood? This, in turn, calls for an interpretation of the scope and ambit of Entries 25, 26 and 26A of Part II Schedule I of the Workmen’s Compensation Act also. 3. To the vitally relevant facts at the outset. The claimant Remya, a minor girl aged about 12 years suffered injuries while she was traveling in an autorickshaw owned by the 1st respondent, driven by the 2nd respondent and insured with the 3rd respondent insurance company (we refer to the parties in the manner in which they are ranked before the Tribunal). While she was traveling in the auto rickshaw, a beer bottle thrown from some other vehicle had hit her on her face and consequently she had suffered injuries. She lost vision of one eye completely. She allegedly suffered partial loss of vision of the other eye. She claimed an amount of Rs.2,75,000/- as compensation. The claim was lodged under Sec.163A of the M.V. Act. 4. The accident and the suffering of injuries by Remya/the claimant were not disputed. A contention is raised that Sec.163A of the M.V. Act does not cover the claim. In short, the contention raised is a contention in law. The argument raised is that the accident in this case did not arise out of the use of the motor vehicle. There are disputes regarding the extent of permanent disablement and the quantum of compensation payable also. 5. In short, the contention raised is a contention in law. The argument raised is that the accident in this case did not arise out of the use of the motor vehicle. There are disputes regarding the extent of permanent disablement and the quantum of compensation payable also. 5. The Tribunal by the impugned award allowed the petition and directed payment of an amount of Rs.1,10,000/- as compensation. The claimant has preferred M.A.C.A. No.816/07 aggrieved by the quantum of compensation awarded. The insurance company has preferred M.A.C.A. No.507/07 raising the contention that the accident in the instant case did not arise out of the use of motor vehicle and hence no compensation is liable to be paid under Sec.163A of the M.V. Act. 6. It is in this context that the expression “arising out of the use of motor vehicle” falls for consideration in these appeals. It will be advantageous, at the very out set, to extract Sec.163A of the M.V. Act: “163A. Special provisions as to payment of compensation on structured formula basis.—(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to legal heirs or the victim, as the case may be. Explanation,--For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” (emphasis supplied) 7. Sec.163A of the M.V. Act had come up for detailed consideration in the Supreme Court in two decisions. It will be advantageous to refer to the decisions in Deepal Girishbhai Soni v. United Insurance Co. Sec.163A of the M.V. Act had come up for detailed consideration in the Supreme Court in two decisions. It will be advantageous to refer to the decisions in Deepal Girishbhai Soni v. United Insurance Co. Ltd., (AIR 2004 SC 2107). That decision was rendered by a three Judge Bench consequent to a reference made to it doubting the dictum in the earlier decision of the Supreme Court in Oriental Insurance Co. Ltd., v. Hansrajbhai V. Kodala and others [(2001) 5 SCC 175]. 8. The purpose, object, scheme etc., of Sec.163A have been considered in detail by the Supreme Court in the said decisions. It is now trite that Sec.163A creates a different, distinct, separate and absolute statutory liability. Such liability is not founded on the law of torts. It is an absolute statutory liability imposed on an authorized insurer of the vehicle or (if there be no authorized insurer) on the owner of the vehicle. Negligence is irrelevant in a claim under Sec.163A. Consequently contributory negligence is also irrelevant in a claim under Sec.163A of the M.V. Act. Amount specified in the Second Schedule to the M.V. Act is payable to the legal heirs of the victim or the victim as the case may be, if it is shown that death or permanent disablement due to accident arising out of the use of the motor vehicle had resulted. Sec.163A read along with the Second Schedule is a code in itself. In National Insurance Co. Ltd., v. P.C. Chacko (2011 (3) KLT 693) these aspects have been considered in detail by another Division Bench (judgment rendered by one of us). 9. We may advantageously refer to paragraph-39 of Deepal Girishbhai Soni (supra) which we extract below: “39. Section 163-A was introduced in the Act by way of a social security scheme. It is a code by itself. Xxxxx 10. We refer to this paragraph-39 at the out set because the approach made by the Supreme Court must impress on us the real contours of Sec.163A of the M.V. Act which, in turn, would help us to better understand the expression “accident arising out of the use of motor vehicle” in the body of Sec.163A (1). 11. Xxxxx 10. We refer to this paragraph-39 at the out set because the approach made by the Supreme Court must impress on us the real contours of Sec.163A of the M.V. Act which, in turn, would help us to better understand the expression “accident arising out of the use of motor vehicle” in the body of Sec.163A (1). 11. We do note that the expressions “accident arising out of the use of motor vehicle”, “accident caused by the use of motor vehicle” and “accident connected with the use of motor vehicle” are all expressions used in various statutes relating to the Insurance of Motor Vehicles. The expression “Accident arising out of and in the course of employment” is available in Sec.3 of the Workmen’s Compensation Act also. After hearing all counsel we are certainly of the opinion that the expression “arising out of the use of motor vehicle” in the context of Sec.163A can be better understood by reference to precedents under the M.V. Act. The expressions may have different meanings in different contexts as we shall later advert to in detail. 12. In Secs.147(1), 140, 165 and Sec.163A of the M.V. Act we find the expression “arising out of the use of motor vehicle” employed by the statute. We do not think it necessary to extract the said statutory provisions in detail in this judgment. While the expression “caused by or arising out of the use of motor vehicle” is used twice in Sec.147(1) of the M.V. Act the expression “arising out of the use of motor vehicle” is employed in all other Sections. 13. The learned counsel for the appellant/insurance company Sri. Ziyad Rehman laboriously builds up an argument that the three expressions i.e., (1) “Caused by the use of motor vehicle”; (2) “arising out of the use of motor vehicle”; and (3) “connected with the use of motor vehicle” areentirely different concepts. The extent of connection/nexus between the cause (use of the motor vehicle) and the effect (accident) is crucial for correctly understanding the dimensions or contours of these three expressions. The learned counsel argues that for an accident to be described as one “caused by the use of motor vehicle” a direct, immediate and intimate connection must be established between the use of the motor vehicle and the accident in which the injuries are suffered. 14. The learned counsel argues that for an accident to be described as one “caused by the use of motor vehicle” a direct, immediate and intimate connection must be established between the use of the motor vehicle and the accident in which the injuries are suffered. 14. So far as the expression “arising out of the use of motor vehicle” is concerned it must also have a causal connection between the use of the motor vehicle and the accident that has resulted. But the linkage, nexus or connection need not be as immediate, as proximate, as specific or as direct as it ought to be when the expression employed is “caused by the use of motor vehicle”. 15. Thirdly, it is contended that the expression “accident connected with the use of the motor vehicle” is wider in its sweep and that the connection between the cause and the effect need not be as pronounced as immediate or as intimate as in either of the two cases referred above. 16. The learned counsel for the insurance company builds up an argument that inasmuch as the legislature has advisedly used the expression “arising out of the use of motor vehicle” and not “connected with the use of motor vehicle” in Sec.163A, there must be more direct and pronounced linkage/nexus between the use of the motor vehicle and the accident which has resulted. A mere casual connection is not sufficient. A sense of consequent must still be there, argues counsel. 17. Employing that test of the linkage/connection/nexus between the use of the motor vehicle and the accident, the learned counsel for the insurance company argues that the accident in this case cannot be said to have arisen out of the use of motor vehicle. The accident was not a consequence of the use of motor vehicle, contends counsel. If the legislature had employed the expression “accident connected with the use of motor vehicle”, probably the accident in this case can be said to fall within the legislative intent; but inasmuch as the legislature has advisedly used only the expression “arising out of the use of motor vehicle” the very casual, distant, non-specific and vague, linkage/nexus between the use of the motor vehicle and the accident cannot bring the claim within the sweep of Sec.163A of the M.V. Act. This is the contention urged. 18. This is the contention urged. 18. Our attention has been drawn to the precedents on the point. We must, first of all, note that there is no dispute raised as to whether the accident in this case is an accident or not. Viewed from the point of view of the victim or the ones who were responsible for throwing the beer bottle out of their vehicle, the effect was not intended and in that view of the matter, we are in complete agreement that accident in this case has been proved satisfactorily. In the absence of a dispute for anyone, it is unnecessary for us to delve deeper into that aspect of the matter. We hold that the accident has been proved. 19. On the question whether the accident arose out of the use of a motor vehicle, the counsel relies on the decision in Shivaji Dayanu Patil v. Vatchala Uttam More (AIR 1991 SC 1769). Paragraph-26 onwards of that decision deals with this specific question. The crucial dictum, according to us, appears in paragraph-35 which we extract below: “This would show that as compared to the expression “caused by”, the expression “arising out of” has a wider connotation. The expression “caused by” was used in Section 95(1)(b)(i) and (ii) of the Act. In S.92-A, Parliament, however, chose to use the expression “arising out of” which indicates that for the purpose of awarding compensation u/s. 92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression “arising out of the use of a motor vehicle” in S.92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.” (emphasis supplied) The Supreme Court in that case was called upon to interpret the identical expression in Sec.92A of the M.V. Act (present Sec.140). Delving deeper into the distinction between the expression “caused by” and “arising out of” the Supreme Court observed that the latter expression has a wider connotation. Delving deeper into the distinction between the expression “caused by” and “arising out of” the Supreme Court observed that the latter expression has a wider connotation. It implies that the accident should be connected with the use of the motor vehicle; but the said connection need not be direct or immediate. In consonance with the beneficent object underlying the statutory provision, the expression “arising out of the use of motor vehicle” deserves a wider construction. It is clearly held so in paragraph-35 which we have extracted above. 20. The Supreme Court in that case had occasion to consider the use of identical expressions in other statutes and the attempt in earlier precedents to explain such expressions. The Supreme Court referred in paragraph-32 of the decision to the distinction between the expression “arising out of” and “arising under”. The words of Lord Bradon in Samick Lines Co. Ltd., v. Owners of the Antonis P. Lemons [(1985) 2 WLR 468] were quoted by the Supreme Court, where the learned Judge explained the ordinary and natural meaning of the words “arising under” “arising out of” and “connected with”. Lord Bradon had said: “With regard to the first point, I would readily accept that in certain contexts the expression “arising out of” may, on the ordinary and natural meaning of the words use, be the equivalent of the expression “arising under”, and not that of the wider expression “connected with”. In my view, however, the expression “arising out of” is, on the ordinary and natural meaning of the words, used, capable, in other contexts, of being the equivalent of the wider expression “connected with”. Whether the expression “arising out of” has the narrower or the wider meaning in any particular case must depend on the context in which it is used”. (emphasis supplied) 21. The Supreme Court in paragraph-33 proceeded to consider how the High Court of Australia attempted to understand the expression “arising out of” used in an insurance statute there. Lord Barwick, C.J. in N.S.W v. R.J. Green’s case (1965 (114) CLR 437) had stated thus and that is extracted by the Supreme Court in para.33 as follows: “Bearing in mind the general purpose of the Act I think the expression ‘arising out of’ must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words ‘caused by’. It may be that an association of the injury with the use of the vehicle while it cannot be said that use was casually related to the injury may yet be enough to satisfy the expression ‘arise out of’ as used in the Act and in the policy.” The observation of Windeyer, J. in the same decision is also seen extracted in para.34 in the following words: “The words ‘injury caused by or arising out of the use of the vehicle’ postulate a causal relationship between the use of the vehicle and the injury. ‘Caused by’ connotes a ‘direct’ or ‘proximate’ relationship of cause and effect. ‘Arising out of’ extends this to a result that is less immediate; but it still carries a sense of consequence.” 22. From the above discussions, following conclusions appear to emerge: (i) The expressions “caused by”, “arising out of” and “connected with” are used by legislature to indicate the connection between the cause and the effect-use of the motor vehicle being the cause and the accident being the effect/result. The expression “caused by” when used demands that there must be an immediate, proximate and direct nexus between the use of the motor vehicle and the accident. (ii) On the contrary, if the expression “arising out” is employed, it indicates that the nexus need not be as immediate, as proximate or as direct as in the former case; but certainly the effect must be a consequence of the cause. (iii) If the expression “connected with” is used to link accident and the use of the motor vehicle, it is enough if the accident occurs in the course of the use of the motor vehicle. Even a very casual connection will be sufficient between the cause and the effect when the expression “connected with” is used by the legislature. (iv) The legislature may use these expressions interchangeably. Context gives colour and meaning. In a given context though the expression used is “arising out of” the intention of the legislature may only be to convey what is intended by the use of the expression “connected with”. The decision in Samick Lines Co. Ltd., v. Owners of the Antonis P. Lemons [(1985) 2 WLR 468] by House of Lords is a clear case on the point. In that decision it was held that though the expression used was “arising under” it was construed to have a wider meaning viz. The decision in Samick Lines Co. Ltd., v. Owners of the Antonis P. Lemons [(1985) 2 WLR 468] by House of Lords is a clear case on the point. In that decision it was held that though the expression used was “arising under” it was construed to have a wider meaning viz. “connected with”. 23. In the given case Sec.163A of the M.V. Act as also Sec.140 of the M.V. Act use the expression “arising out of”. The Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More (AIR 1991 SC 1769) wanted the expression “arising out of” used in Sec.140 of the M.V. Act (Sec.92A then) to be enlarged so that the field of protection will be available to the victims of an accident in consonance with the beneficial object underlying the enactment. 24. If that be the situation in Sec.140 of the M.V. Act, a still wider interpretation has necessarily got to be given when courts consider the identical expression in Sec.163A of the M.V. Act. Sec.140 of the M.V. Act deals with a specified amount which even allegedly is not complete compensation for the loss suffered. Under Sec.140 of the M.V. Act and its predecessor provisions the principle of no fault liability was introduced into the Indian law relating to compensation for motor accidents. Now under Sec.163A of the M.V. Act the relief is not interim and is not to be adjusted towards the compensation to be determined finally. It is in this context the Deepal Girishbhai Soni (supra) states that Sec.163A is a code by itself and is introduced by way of a social security scheme. This Court trying to give life and meaning to the provision of Sec.163A must necessarily give the expression as wide an interpretation as is possible to serve the cause of a social security scheme which Sec.163A is declared to be in Deepal Girishbhai Soni (supra). In the given context therefore it is essential that the expression “arising out of” must be given a wide and expansive meaning as to take within its beneficent scheme all accidents connected with the use of motor vehicle. 25. So reckoned, we come to the conclusion that the expression “arising out of” both in Sec.163A and Sec.140 of the M.V. Act must be read and understood in such a manner as to include all accidents connected with the use of motor vehicle. 26. 25. So reckoned, we come to the conclusion that the expression “arising out of” both in Sec.163A and Sec.140 of the M.V. Act must be read and understood in such a manner as to include all accidents connected with the use of motor vehicle. 26. If that be so, certainly the expression “arising out of use of the motor vehicle” appearing in Sec.147 of the M.V. Act and Sec.165 of the M.V. Act must also receive identical consideration. The liability under Sec.163A must certainly be a compulsorily insurable liability under Sec.147 of the M.V. Act. Similarly, all claims under Secs.140 and 163A of the M.V. Act must be held to be falling within the sweep of Sec.165 of the M.V. Act as has been made clear by the explanations. 27. To sum up, the conclusion appears to be inevitable that the expression “arising out of the use of vehicle” in Sec.147 (1) and its proviso and the expression “arising out of use of the motor vehicle” in Sec.165 of the M.V. Act as also the expression “arising out of the use of motor vehicle” in Sec.140 and Sec.163A of the M.V. Act must cover all cases of accidents connected with the use of motor vehicle. Such a wider and expansive meaning ought to be assigned to the expression “arising out of the use of motor vehicle” in order to serve the statutory purpose and the legislative intention; particularly, in the context of Sec.163A of the M.V. Act. 28. We come to the facts of the case. Without dispute, the accident occurred in connection with the use of the motor vehicle. Nay we would go further and observe unambiguously that the accident arose out of the use of the motor vehicle. The victim child was traveling in an autorickshaw. She happened to be present at the spot where the accident occurred primarily because of her position as a traveler in the vehicle. It is idle to contend that even if she were there, otherwise than in her capacity as a passenger of the vehicle she might still have suffered the accident. That definitely is not the yardstick by which the expression “arising out of the use of motor vehicle” is to be construed. It is idle to contend that even if she were there, otherwise than in her capacity as a passenger of the vehicle she might still have suffered the accident. That definitely is not the yardstick by which the expression “arising out of the use of motor vehicle” is to be construed. Her presence at the spot of the accident to be a victim of the accident was certainly connected with and arose out of the use of the motor vehicle by her as a passenger of such transport vehicle. The risk is one which any user of a vehicle may be exposed. By no stretch of imagination can it be held that the accident did not arise out of much less that it was not connected with the use of the motor vehicle. Inasmuch as we have already held that the expression “arising out of” has to be equated to “connected with” to give true effect and purpose of the scheme of Sec.163A of the M.V. Act, we must hold that the accident clearly falls within the sweep of Sec.163A of the M.V. Act. 29. According to us, the Tribunal was perfectly justified in coming to the conclusion that the accident and the use of the motor vehicle are so connected with each other as to bring the same within the sweep of Sec.163A of the M.V. Act. The challenge on this ground must, in these circumstances, fail. Question No.1 is answered in favour of the claimant and it is declared that the expression “arising out of” used in Secs.147, 140, 163A and 165 of the M.V. Act is to be understood to cover all accidents “connected with” the use of motor vehicle. Even a casual connection between the accident and use of the motor vehicle would attract the expression “arising out of” used in those Sections. 30. Question No.2: We now come to the second question. That the claimant/victim child suffered permanent disablement is not in dispute at all. The dispute is only about the extent of disability suffered. In this context we must note that Sec.163A (i) of the M.V. Act refers to permanent disablement. That expression, it is made clear in the Explanation is to have the same meaning and extent as in the Workmen’s Compensation Act. We extract Sec.163A and its Explanation again below: “163A. The dispute is only about the extent of disability suffered. In this context we must note that Sec.163A (i) of the M.V. Act refers to permanent disablement. That expression, it is made clear in the Explanation is to have the same meaning and extent as in the Workmen’s Compensation Act. We extract Sec.163A and its Explanation again below: “163A. Special provisions as to payment of compensation on structured formula basis.—(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923)”. 31. The body of Sec.163A(1) refers only to “permanent disablement”; whereas the explanation refers to “permanent disability”. It is stated that “permanent disability” for the purpose of the sub-section shall have the same meaning and extent as in the Workmen’s Compensation Act. Evidently it appears that there is some confusion and inelegance. When the body of Sec.163A only speaks of “permanent disablement”, we fail to understand how and why “permanent disability” must be defined in the Explanation. Moreover, the Workmen’s Compensation Act, 1923 (the Employees’ Compensation Act now) does not define permanent disability at all. It also speaks only of partial disablement and total disablement. It therefore is easy to assume that though the explanation refers to “permanent disability” what is really intended to be explained is “permanent disablement” used earlier in Sec.163A(1)-that it is intended to carry the meaning of the word partial and total “disablement” defined in Sec.2(g) and 2(1) of the Workmen’s Compensation Act. 32. It is thus evident that the explanation really explains the expression “permanent disablement”. It is vital to note that Explanation which we have already extracted earlier stipulates that permanent disability shall have the same meaning and extent as in the Workmen’s Compensation Act. Not only the meaning, the extent is also to be ascertained as stipulated under the Workmen’s Compensation Act. 33. That takes us to the Workmen’s Compensation Act. It is vital to note that Explanation which we have already extracted earlier stipulates that permanent disability shall have the same meaning and extent as in the Workmen’s Compensation Act. Not only the meaning, the extent is also to be ascertained as stipulated under the Workmen’s Compensation Act. 33. That takes us to the Workmen’s Compensation Act. Sec.2(g) and Sec.2(1) define “partial disablement” and “total disablement”. We get a clear concept of permanent disability from there. The definition is linked to reduction in earning capacity. We extract Secs.2(g) and 2(1) below: “2. Definitions.--- (1) In this Act, unless there is anything repugnant in the subject or context,-- Xxx Xxx (g) “Partial disablement” means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement. Xxx Xxx (1) “total disablement” means such disablement, whether of a temporary or permanent nature, as incapacities 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.” (emphasis supplied) That takes us to Schedule I of the Workmen’s Compensation Act. Part-I gives list of entries which are deemed to result in permanent total disablement. All the six cases in Part I are cases where percentage of loss of earning capacity is ‘100’. Total permanent disablement is hence to be ascertained by the extent of loss of earning capacity. 34. Coming to Part-II. That Part gives the 48 entries which are deemed to result in permanent partial disablement. All the 48 are cases where percentage of loss of earning capacity falls below 100%. They are in the range of 1 to 90%. 35. Total permanent disablement is hence to be ascertained by the extent of loss of earning capacity. 34. Coming to Part-II. That Part gives the 48 entries which are deemed to result in permanent partial disablement. All the 48 are cases where percentage of loss of earning capacity falls below 100%. They are in the range of 1 to 90%. 35. It is true that Sec.163A of the M.V. Act does not specifically employ the expression “percentage of loss of earning capacity”. But the concept of permanent partial or total disablement under the Workmen’s Compensation Act is inextricably intertwined with the concept of loss of earning capacity. To us, it appears that this is exactly what the Explanation to Sec.163A of the M.V. Act means and conveys when it says that permanent disability will have to be assigned the same meaning and extent as in the Workmen’s Compensation Act. 36. The victim in this case has suffered total loss of vision of one eye. Her vision of the other eye is also affected. The Tribunal reckoned 40% as the extent of permanent partial disablement (i.e., percentage of loss of earning capacity). Evidently the injury was held to fall under Entry No.25 of Part II of Schedule I. The learned counsel for the claimant assails this conclusion. 37. We have the evidence of P.W.2 Doctor as also Ext.A10 certificate which shows that the extent of partial disablement (reduction in earning capacity) is 70%. The Tribunal did not accept the same. The Tribunal preferred to go by Entry No.25 of Part II of Schedule I of the Workmen’s Compensation Act to conclude that the reduction in earning capacity is only 40%. 38. We now come to the precise permanent disablement suffered. There was complete loss of vision of one eye (left). It was that eye which directly had to take the impact of the thrown bottle. There is no dispute before us that loss of vision of one eye was directly attributable to the accident. The other eye was not normal. There is serious dispute raised as to whether the said abnormality of the other eye is on account of the injury suffered in the accident or not. There is not a semblance of evidence to suggest that the 12 year old child victim had any abnormality of the other eye (i.e., right eye) earlier. The other eye was not normal. There is serious dispute raised as to whether the said abnormality of the other eye is on account of the injury suffered in the accident or not. There is not a semblance of evidence to suggest that the 12 year old child victim had any abnormality of the other eye (i.e., right eye) earlier. On the available materials we have no hesitation to conclude that it has to be realistically accepted that the abnormality in the other eye must also have been because of the injury. At any rate, there is no better evidence for us to conclude that the abnormality of the other eye was attributable to any anterior defector inadequacy of vision in that eye. 39. We give below Entry Nos.25, 26 and 26A of Part II of Schedule I which deal with injuries to the eyes: “25. Loss of one eye, without complications, the other being normal – 40% 26. Loss of vision of one eye, without complications or disfigurement of eye-ball, the other being normal – 30% 26A. Loss of partial vision of one eye – 10%” 40. There can be no doubt that the injury suffered by the claimant cannot fall under any of these three Entries. The other eye is convincingly proved to be not normal. There is complete loss of vision of one eye. There is partial loss of vision in the other eye also. In these circumstances, we cannot bring the case within any one of the Entries referred above. The scheme of the Workmen’s Compensation Act has now got to be seen. The Schedule prescribes injuries which are deemed to result in permanent total are partial disablement. There can be injuries which are not specified in the Schedule which may also result in permanent disablement-total or partial. The extent of permanent disablement in respect of non-scheduled injuries can be assessed by any qualified Medical Practitioner as stipulated in Sec.4(1)(c)(ii) of the Workmen’s Compensation Act. 41. The injury therefore is an injury, the extent of permanent disablement (reduction in earning capacity) caused by which has to be assessed by reference to a qualified Medical Practitioner. That has been done in the instant case. P.W.2 is a qualified Medical Practitioner. His assessment shows that 70% is the extent of reduction in earning capacity. 41. The injury therefore is an injury, the extent of permanent disablement (reduction in earning capacity) caused by which has to be assessed by reference to a qualified Medical Practitioner. That has been done in the instant case. P.W.2 is a qualified Medical Practitioner. His assessment shows that 70% is the extent of reduction in earning capacity. We find no reason whatsoever for the Tribunal not to accept the oral evidence of P.Ws.2 and Ext.A10 certificate issued by P.W.2. In the total absence of any semblance of materials to indicate or suggest that the victim child was having any defect in the vision of other eye prior to the accident, it is really unnecessary for us to go into the question as to what would be the extent of permanent partial disablement if the other eye were abnormal prior to the accident for some other reason. We must take the view that the abnormality of the other eye need not be the result of the accident in question for us to accept the assessment of permanent disability by the Doctor/P.W.2 in Ext.A1. Going by the definition in Sec.2(g) and 2(1) of the Workmen’s Compensation Act, it is the extent of disability suffered vis-à-vis the ability prior to the accident which is to be ascertained under the Workmen’s Compensation Act. So reckoned, even assuming that the abnormality of the other eye cannot be attributed to the accident, that cannot affect the assessment of extent of disablement under the Workmen’s Compensation Act-true to Sec.2(g) and 2(1). Ability to work prior to the accident and the extent of reduction in ability to do such work is the crucial consideration in Sec.2(g) and 2(1) of the Workmen’s Compensation Act. 42. In any view of the matter, we are satisfied that 70% can safely be accepted to be the extent of disability as a result of the accident. 43. The Tribunal has awarded only an amount of `1,10,000/-as a compensation as per the details given in paragraph-14 of the impugned award which we extract below: The amount of compensation payable under Clause (6) of the Second Schedule was held to be `90,000/- (1250 x 12 x 15 x 40/100). It is unfortunate that Clause (6) continues to remain what it was in 1994 even now. Periodic updation of the Second Schedule has not been taking place notwithstanding the mandate of Sec.163A(3) of the M.V. Act. It is unfortunate that Clause (6) continues to remain what it was in 1994 even now. Periodic updation of the Second Schedule has not been taking place notwithstanding the mandate of Sec.163A(3) of the M.V. Act. But the amount of compensation payable under Sec.163A of the M.V. Act can be calculated only in accordance with the Second Schedule. Without the Second Schedule, compensation under Sec.163A cannot be calculated. This means that though totally dissatisfied with the want of updation of the Schedule after 1994, we have to accept Clause (6) to ascertain the quantum of deemed/notional income of a non-earning person. `15,000/- has, therefore got to be accepted as the income for the purpose of ascertainment of compensation under the Second Schedule. Though the assumption that `15,000/- is the annual income on the date of the accident i.e., 10/9/2000 does appear to rebel against commonsense, we are unable to accept any better figure as the annual income of a non-earning person. We note that there is no challenge against the stipulation (or continuance of the stipulation) in Clause (6) as arbitrary, fanciful and capricious. In an appropriate case where the Entries in the Schedule are challenged on that ground, probably that question will have to be considered. For the present notwithstanding the want of updation of the Second Schedule, we are constrained to hold that `15,000/- alone can be reckoned as the annual income. 44. It follows from the above discussions that the appellant/claimant is entitled to a further amount of `67,500/- (Rupees sixty seven thousand and five hundred only) as compensation in addition to the amount already awarded by the Tribunal as shown below: Compensation for disability under Clause (6) of the Second Schedule (1250 x 12 x 15 x 70/100 = `1,57,500/-/- minus `90,000/- - `67,500/- 45. We are satisfied that the amounts awarded under other heads which are strictly in accordance with the stipulations in the Second Schedule do not warrant any interference. 46. The learned counsel for the appellant/claimant then contends that interest has been awarded only at the rate of 6% per annum. Counsel argues and we agree that interest awarded is painfully low and inadequate. We direct that interest be awarded at the rate of 12% per annum from the date of the claim to the date of payment/realisation. 46. The learned counsel for the appellant/claimant then contends that interest has been awarded only at the rate of 6% per annum. Counsel argues and we agree that interest awarded is painfully low and inadequate. We direct that interest be awarded at the rate of 12% per annum from the date of the claim to the date of payment/realisation. We award interest at the rate, as we are perturbed at the failure to update the Second Schedule and we fell that the interests of justice will be served by such a direction. 47. Proportionate cost has been ordered. We need only clarify that proportionate cost in the proceedings before the Tribunal on the entire amount of compensation hereby awarded shall be paid to the claimant/appellant as calculated under the dictum in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). 48. In the result: (a) These appeals are allowed in part (b) The appellant/claimant is found entitled to a further amount of `67,500/- (Rupees sixty seven thousand and five hundred only) as compensation in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. (d) We further direct that the proportionate cost ordered by the Tribunal shall be calculated on the entire amount of compensation hereby awarded in accordance with the dictum in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). (e) All other directions of the Tribunal are upheld.