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Rajasthan High Court · body

2012 DIGILAW 1035 (RAJ)

Mahesh Kumar Gaur v. Ashok Kumar

2012-04-23

MOHAMMAD RAFIQ

body2012
RAFIQ, J.—This appeal has been preferred by the claimant against the award passed by the Motor Accident Claims Tribunal, Bharatpur dated 19.11.1997 seeking enhancement of amount of compensation. 2. It is contended that the appellant suffered injury in a road accident involving a vehicle insured with the respondent-insurance company. The appellant sustained 80% permanent disability as per the certificate issued by the Medical Board of SMS Hospital, Jaipur. The appellant was a student of B.Sc. II year, aged 20 years, yet the Tribunal has awarded only a sum of Rs.75,000 cumulatively for the loss of capacity to earn in future and also for mental agony and pain and suffering, even though the right hand of the appellant was rendered useless in the opinion of the Medical Board. The appellant was initially admitted in General Hospital, Bharatpur from wehre he was shifted to Safdarganj Hospital, Delhi on 6.8.1994. He was again shifted to Sir Gangaram Hospital, New Delhi where he remained upto 11.9.1994. Thereafter plastic surgery was conducted at Ayushman Clinic, New Delhi. He was subjected to surgery on 7-8 occasions. The SMS Medical College has issued the disability certificate to the appellant showing permanent disability of 80%. 3. Learned counsel appearing for the respondent insurance company opposed the appeal and submits that in the initial certificate of disability dated 11.1.1995, 20% permanent disability has been shown for whole body. However, thereafter in the subsequent certificate Ex.215, permanent disability of 80% was shown, not in terms of the whole body, but it is only in terms of one hand, therefore, it cannot be taken as disability of entire body. Learned counsel relying on the Part II of the Schedule 1 appended to the Employee's Compensation Act, 1923 argued that in entry 4 thereof it is stated that for loss of a hand, the percentage of loss of earning capacity comes to 60% and in the present case if it is 80% loss of strength in one hand, it cannot even be taken as 60% in terms of whole body for the purpose of loss of earning capacity and will have to be proportionately reduced. Learned counsel submitted that it was for the claimant to produce the medical officer to clarify the ambiguity if he wanted to show that he has suffered a greater amount of disability. 4. Learned counsel submitted that it was for the claimant to produce the medical officer to clarify the ambiguity if he wanted to show that he has suffered a greater amount of disability. 4. On hearing learned counsel for the appellant, I find that although it is true that certificate dated 11.1.1995 certified the disability of 20%, but considering that the evidence has proved that appellant was subjected to several surgeries and was treated at different places and had to suffer for a long time, which is also evident from the fact that the Tribunal has itself awarded Rs.44,526/- on the head of actual medical expenses incurred by him in those different places, awarding of only Rs.75,000 cumulatively for the loss of earning capacity and also for mental pain and agony, cannot be justified. The compensation therefore deserves to be enhanced. However, the the extent of 80% disability of the appellant cannot be taken in terms of the whole body. At the same time, earlier disability certificate of 20% given by individual Doctor cannot be a reason to discard the disability certificate by the Medical Board consisting of three Doctors. The Employee's Compensation Act, 1923 at entry no.4 of Part II of Schedule-1 has given 60% of loss of earning capacity for loss of one hand. Taking into account, the totality of circumstances, therefore, in terms of the whole body, the disability cannot be assessed more than 40%. The appellant was a student at the time when the accident took place. He would have to suffer for rest of his life due to disablement in one hand, which has become useless as per the Medical Board. The medical certificate was owning to the fact of loss of earning capacity of the appellant. The accident took place in the year 3.8.1994. No definite proof of the income of the appellant has been produced though it was asserted that he was giving tuitions and earning a sum of Rs.2,000 per month. It was also stated that accident took place on 3.8.1994 and at that time the value of rupee as compared to the present time carried a greater value. 5. No definite proof of the income of the appellant has been produced though it was asserted that he was giving tuitions and earning a sum of Rs.2,000 per month. It was also stated that accident took place on 3.8.1994 and at that time the value of rupee as compared to the present time carried a greater value. 5. In the circumstances, the appellant deserves to be awarded at least a sum of Rs.1,00,000 for loss of earning capacity for the life and another sum of Rs.50,000 for mental agony and pain and suffering for the life instead of Rs.75,000 cumulatively awarded on all these heads. Thus Rs.75,000 is additionally awarded under this head. 6. The appeal is thus allowed. The amount of Rs.44,600 awarded under the head of medical expenses and Rs.5,000 for nutritious diet is however maintained. The award of compensation is thus enhanced from Rs.1,24,600 to Rs.1,99,600. The appellant shall also be entitled to interest @ 6% per annum on enhanced amount of compensation from the date of filing of claim petition. The respondent nos.1, 2 and 3 shall be jointly and severally liable to satisfy the award.