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2011 DIGILAW 2533 (RAJ)

Hazari Singh v. Servar Beg

2011-11-22

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the claimant aggrieved by the Motor Accident Claims Tribunal dated 2.8.2004, which has awarded only a sum of Rs.80,000 as lump sum for the permanent disability of 100% to be sustained by the appellant in a road accident involving the truck insured with the respondent-insurance company. 2. Appellant was working as a Khalasi in truck No.RJ-01-G-3141. The truck was carrying certain goods from Hyderabad (Andhra Pradesh). The accident took place at a place Degloor, which is 6 kms. away from Nanded in the State of Maharashtra. Due to the negligence of the truck driver, the truck overturned and both the legs of the claimant-appellant were serious injured. The claimant thereupon filed a claim petition claiming a sum of Rs.6,47,000 as compensation. 3. Shri Vigyan Shah, learned counsel for the appellant has argued that the Tribunal has taken a hypothetical view of the matter and has mechanically awarded a sum of Rs.80,000, which also include a sum of Rs.14,700 for medical bills. The appellant remained hospitalised for 74 days, but nothing has been awarded for permanent loss of earning capacity. Learned counsel argued that no amount whatsoever has been awarded under the head of nutritious diet, pain and sufferings, transportation etc. The appellant sustained four grievous injuries, however, no compensation has been awarded for such injuries. The compensation has also not been awarded for the future treatment of the appellant because the kind of injury that he has sustained, he would have to suffer for whole of his life and specially for the burns in the body, he was subjected to repeated treatment. Learned counsel argued that Poonam Singh, the owner of the truck has stated that claimant suffered injuries in both his legs. His left leg had to be amputated below knee and then a rod was inserted therein. He remained hospitalised for about one and half months at Government Hospital, Jaipur and for one month at Ajmer. Learned counsel in support of his arguments relied on the judgment of Supreme Court in Sant Singh vs. Sukhdev Singh & Ors.-MACD 2011 (SC) 77, Sr. Nagarajappa vs. The Divisional Manager, the Oriental Insurance Co. He remained hospitalised for about one and half months at Government Hospital, Jaipur and for one month at Ajmer. Learned counsel in support of his arguments relied on the judgment of Supreme Court in Sant Singh vs. Sukhdev Singh & Ors.-MACD 2011 (SC) 77, Sr. Nagarajappa vs. The Divisional Manager, the Oriental Insurance Co. Ltd.-MACD 2011 (SC) 79, Urviben Chiragbhai Sheth vs. Vijaybhai Shambhubhai Joranputra & Ors.-MACD 2011 (SC) 99, Raj Kumar vs. Ajay Kumar & Anr.-MACD 2011 (SC) 33 and Sri Ramachandrappa vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd.-MACD 2011 (SC) 144. 4. It was argued by counsel for the appellant that claimant who was working as a Khalasi was earning a sum of Rs.2,000 per month. He was being paid a fixed daily allowance of food and clothing. What was pleaded by the claimant-appellant was that a reasonable sum of Rs.2,000 as salary of one month with Rs.50 as daily allowance be determined as his income, thus the total salary of the appellant would come to Rs.3,500 per month. It was on that basis that computation of compensation may be made by applying the multiplier system. The entry of the accident was made in the panchnama which was prepared in Marathi language, which was translated by Shivaji Rao Patel, Advocate in hindi. The panchanama was prepared on 5.2.1997 wherein the truck No.RJ01 G 3241 was mentioned and it was also mentioned that driver and cleaner were seriously injured and were rushed to the Government Hospital, Degloor. The entry in the police rojnamcha dated 8.2.1997 was also mentioned in the accident register of the police. 5. Shri D.C. Gupta, learned counsel for the respondent opposed the appeal and argued that the award of the learned Tribunal is reasonable and justified because no income of the claimant was proved. Merely because he was working as Khalasi, it does not mean that he was earning Rs.3,500 i.e. Rs.2,000 per month as fixed salary and Rs.50/- per day as allowance and on such assertion of the claimant, his claim cannot be accepted. The award of Rs.80,000 is based on the fact that in those days the minimum daily wage of the labour was only Rs.40 per day and, therefore, no interference is called for. The award of Rs.80,000 is based on the fact that in those days the minimum daily wage of the labour was only Rs.40 per day and, therefore, no interference is called for. He further argued that since there is no proof of income, the computation should be made on the basis of notional income of Rs.15,000 per year as per Second Schedule appended to the Motor Vehicles Act, 1988. 6. On hearing learned counsel for the appellant and perused the material on record, I find that the Tribunal has been rather unreasonable in not considering the pain and sufferings of the claimant. The disability certificate of the claim shows that his left leg had to be amputated below the knee. There was segmental fracture of femer with trimaliollar of right ankle having 100% permanent partial physical impairment (70% permanent disability for below knee amputation and 30% partial physical impairment for segmental femer of left leg with trimaliollar fracture of right ankle bones). Impairment has been thus specified in the certificate dated 9.2.1997 as 100% i.e. 70% permanent disability for below knee amputation and 30% partial physical impairment for segmental femer of left leg with trimaliollar fracture of right ankle bones The appellant was working as a cleaner/ khalasi and the kind and extent of disability of the claimant was such, which virtually made him 100% disabled. For rest of his life, he would have to entirely dependent on others for survival. The evidence also indicates that he had to remain hospitalised for as long as 74 days and that indicates that he was subjected to prolonged treatment. 7. As far as the argument that it has not been proved whether the word `Khalasi' has included proved in the insurance policy, no such plea has been raised by the insurance company before the Tribunal inasmuch as the insurance company has neither filed appeal in the present case, nor has filed cross objection though this appeal was admitted as long ago as on 15th September, 2004. Had any such plea being raised, possibly this issue could have been considered by the learned Tribunal and insurance company in that event would have been required to lead evidence but the policy Ex.D1 has been exhibited wherein it has not been proved that the risk of the Khalasi has not been covered. Had any such plea being raised, possibly this issue could have been considered by the learned Tribunal and insurance company in that event would have been required to lead evidence but the policy Ex.D1 has been exhibited wherein it has not been proved that the risk of the Khalasi has not been covered. This Court has to therefore reject this argument and proceed to examine whether quantum of compensation has been correctly arrived at in the facts of the case. 8. The Supreme Court in Sri Nagarajappa, supra was dealing with an injury case wherein the appellant was working as a Coolie at the time of accident. He received injuries on his left hand. The Doctor opined that he could not work as a Coolie. Doctor assessed his permanent disability of upper limb at 68% and of the whole body upto 22-23%. It was held by the Supreme Court that while computing loss of future income, disability should be taken to be 68% and compensation awarded by the High Court to the tune of Rs.2,22,600 was enhanced to Rs.4,77,640. The Supreme Court in that case has held that claimant was working as a manual labourer for which he requires the use of both his hands. The fact that the accident has left him with one useless hand will severally affect his ability to perform his work as a coolie or any other manual work and this has also been certified by the doctor. Thus while awarding compensation, it has to be kept in mind that the appellant is to do manual work for rest of his life without full use of his left hand and this is bound to affect the quality of his work and also his ability to find work considering his disability. Hence while computing loss of future income, disability should be taken to be 68%. 9. Those observations applies in the present case with full swing because here in the present case, petitioner was working as a khalasi and he lost one of his leg, which has been amputated below knee and another leg was having 30% partial physical impairment, thus he has been crippled for rest of his life so far as the lower limbs are concerned. 10. 10. As regards the assertion that no proof of income has been given by the appellant, it has to be observed that for persons working as manual workers, khalasi, cleaners, coolie etc. normally neither written appointment orders are issued, nor they are required to mark their attendance, nor any fixed standard of salary is paid to them by every employer. Nevertheless, this much has to be accepted that the claimant as khalasi was certainly having some income and therefore, it cannot be accepted that computation of compensation in this case should be made only on notional basis accepting his annual notional income to be Rs.15,000 per year, which was prescribed way back in the year 1994. 11. The Supreme Court in Sri Ramchandrappa, supra, the Supreme Court was dealing with a case of a Coolie who has approached for enhancement of compensation. The Supreme Court has observed that it cannot be expected from him to produce any documentary evidence to substantiate his claim that he was working as a Coolie. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In that case, the Supreme Court considering the date of accident, which was presumably of 2005-2006 whereas the claim petition was filed in 2006 observed that in and around, the wage of the labourer was between 100-150 per day or Rs.4500 per month, therefore, there was no reason for the Tribunal to reduce the monthly earning of the claimant from Rs.4500 to Rs.3000 per month. The income of the claimant in that case was held to be accepted at Rs.4500 per month. In the present case, the appellant has asserted his fixed salary to be Rs.2,000 per month and has also additionally asserted that he was getting a sum of Rs.50 per day as daily allowance. The total income thus has been claimed to be Rs.3,000 per month. As against which the learned counsel for the respondent has stated that in the year 1997, the notified minimum wages for a daily wager was only Rs.50 per day and that can be accepted as the daily earning of the claimant-appellant. The total income thus has been claimed to be Rs.3,000 per month. As against which the learned counsel for the respondent has stated that in the year 1997, the notified minimum wages for a daily wager was only Rs.50 per day and that can be accepted as the daily earning of the claimant-appellant. But in my view, this has to be considered coupled with the fact that the appellant as a khalasi was required to remain with the truck round-the-clock and that nature of his work and duties was onerous as would justify to accept his income to be Rs.3,000 as claimed by him and not Rs.2,000 and on that basis proceed to compute the compensation. 12. In Sant Singh, supra, the claimant received 60% disability and the Tribunal has awarded a sum of Rs.1,47,209. The Supreme Court has enhanced the compensation to Rs.4,43,000 with interest @ 9% per annum. In Raj Kumar, supra, the Supreme Court held that the percentage of disability in a particular part of the body shall have to be judged with reference to the whole body and total functioning of the limbs. In the present case, both lower limbs of the appellant having been assessed to have been disabled to the extent of 70% and 30% respectively, which according to appellant has to be accepted as 100% in terms of the whole body because the kind of work that claimant was doing now, he would no longer be capable of doing that with the extent of disability that he has suffered. 13. In Urviben Chiragbhai Sheth, supra the claimant was aged 30 years of age at the time of accident and she claimed to be earning Rs.1,500 to Rs.1,600 per month in the year 1990 by running a Beauty Parlour at Ahmedabad. She sustained 100% disability which is permanent in nature with no sign of recovery. The Tribunal awarded a sum of Rs.6,07,000 which was enhanced by the Supreme Court to Rs.15,00,000. 14. Despite the Medical Officer certifying the disability of the appellant to be 70% in one leg and 30% in another, thus total 100%, if the Schedule-I, Part-II to the Employee's Compensation Act, 1923 at entry No.20 with amputation below knee with stump exceeding 8.89 cms but not exceeding 12.70 cms can be awarded 50% disability and in entry No.21 amputation below knee with stump exceeding 12.07 cms. also can be 50% disability. also can be 50% disability. The amputation of left leg below knee and physical impairment of the right leg to the extent of 30% due to segmental femer of left leg with trimaliollar fracture of right ankle bones, can be thus taken as 75% disability in total. 15. In the present case, income of the claimant is accepted to be Rs.2,000 and applying the multiplier of 17 at the age of 25 years and considering the disability @ 75%, the amount of compensation comes to Rs.3,06,000 (2000 x 12 x 17 x 75%). A sum of Rs.14,700 has to be separately awarded for actual medical expenses. Another sum of Rs. 5,000 is awarded for loss of income during hospitalisation of 74 days. The appellant is further entitled to Rs.1,00,000 for pain and suffering, Rs.50,000 for future treatment and loss of earning capacity cumulatively, Rs.5,000 is awarded for nutritious diet, Rs.5,000 for transportation and Rs.5,000 for the expenses of attendant. Thus the appellant is held entitled to total compensation of Rs.4,90,700 (306000 + 14700 + 5000 + 100000 + 50000 + 5000 + 5000 + 5000). Thus the amount of compensation is enhanced from Rs.80,000 to Rs.4,90,700. The appellant is held entitled to interest @ 7.5% per annum on the enhanced amount of compensation from the date of filing of the claim petition. 16. The appeal is accordingly allowed. 17. Compliance of the judgment be made within a period of three months from the date copy of this judgment is produced before the respondent.