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2014 DIGILAW 380 (MAD)

K. Rajendran v. M. D. Jaleel

2014-02-18

R.MAHADEVAN

body2014
Judgment : 1. This appeal is filed by the claimant challenging the award dated 18.09.2009 passed by the Motor Accident Claims Tribunal (IV Small Causes Court) Chennai in M.C.O.P No 1331 of 2005. 2. The claimant, who claimed to be a potter and proprietor of a Fast Food, met with an accident on 22.12.2004 at 19.30 Hours and suffered injuries to his right hand, head and right toe. As against the claim of Rs.6,00,000/-, a sum of Rs.1,70,500/- was awarded with costs and interest at 9.5% per annum. Aggrieved, the claimant has filed this appeal. 3. Learned Counsel for the appellant, assailing the award of the Tribunal, argued that the compensation awarded is disproportionate to the claim under various heads and contrary to the evidence and documents. The Tribunal, despite ample evidence produced to show that the right hand of the appellant is of no use, has failed to consider the claim towards loss in earnings. The counsel also drew the attention of this court to Schedule I of the Workmen Compensation Act and argued that since three fingers of the petitioner were crushed, the hand itself is of no use and therefore, appropriate compensation must be awarded treating the injury as loss of hand. The counsel further contended that the fixation of income of the petitioner is also without basis and sought for enhancement. 4. Per contra, learned Counsel for the second respondent contended that the Tribunal, after considering that no documentary proof was produced regarding the income of the appellant, fixed the income per month at Rs.4,500/-. The counsel further contended that the order of the Tribunal is well reasoned and does not warrant interference. 5. Heard the counsel for the appellant and the second respondent and perused the records. There is no appearance for the 1st respondent. 6. The appellant had claimed to be a potter and a Fast Food Proprietor with a monthly income of Rs.10,000/- to Rs.15,000/- per month. However, no documentary proof was produced to prove his income. The Tribunal has fixed the monthly income of the appellant at Rs.4,500/- per month. The appellant was Self-employed. In cases of self-employed persons, the possible documentary proof that could be produced is income tax return or bank statements. The appellant himself has stated that his daily income is only Rs.300/-. However, no documentary proof was produced to prove his income. The Tribunal has fixed the monthly income of the appellant at Rs.4,500/- per month. The appellant was Self-employed. In cases of self-employed persons, the possible documentary proof that could be produced is income tax return or bank statements. The appellant himself has stated that his daily income is only Rs.300/-. It is not reasonable to expect a potter cum fast food shop owner to file income tax returns or produce bank statements. Form the fact that the accident occurred when he was travelling in the cycle, it can be inferred that the fast food must also be a road side fast food shop. Therefore, considering the nature of job, this court is of the view that the appellant would earn not less than Rs.200/- per day. Hence the monthly income of the appellant is fixed at Rs.6000/- and a further sum of Rs.7,500/- is awarded towards loss of earning from 22.12.2004 to 21.05.2005 over and above the sum of Rs.22,500/= awarded by the Tribunal. 7. With regard to mental agony, PW2 has deposed that the appellant has suffered 45% partial and permanent disability and that hand is functionally useless. Mental agony is the internal pain, a person undergoes just by the thought that he is disable and is not in a position to do something. As a result of the accident, the appellant would have been put to severe mental agony. In view of the permanent disability, the mental agony would continue throughout the life. Hence in the facts and circumstances of the case, the compensation for mental agony is increased by Rs.20,000/-. 8. With regard to compensation loss of earning power, the Tribunal has refused to award any amount observing that the doctor has not deposed that that the earning capacity is effected due to the injury. This court is of the view that the said finding of the Tribunal is not well founded considering the evidence of both the doctors who were examined as PW2 and PW3. PW2 has assessed the disability at 45% partial and permanent and stated that his right hand is functionally useless. PW3, who has issued a disability certificate towards the head injury, has assessed the disability at 30% partial and permanent. During cross examination, he has deposed that there is only a possibility for the disability to be reduced by 5%. PW2 has assessed the disability at 45% partial and permanent and stated that his right hand is functionally useless. PW3, who has issued a disability certificate towards the head injury, has assessed the disability at 30% partial and permanent. During cross examination, he has deposed that there is only a possibility for the disability to be reduced by 5%. When the doctors have deposed that the right hand is useless and that he cannot concentrate in his work, it is not specifically necessary to state that his earning capacity would be affected. Therefore, this court comes to a conclusion that the injuries would certainly affect the earning capacity of the appellant. 9. The next question is the quantum of compensation. The learned Counsel has stressed that the compensation must be calculated based on the First Schedule to the Workmen’s Compensation Act. The said argument cannot be accepted as this is not a claim under Workmen’s Compensation Act and the accident also has not occurred during the course of employment. Therefore considering the nature of injury, the disablement and the occupation of the appellant, Rs.80,000/- is awarded towards loss in earning capacity as one lumpsum in the facts of the case. This court does not find anything perverse with regard to the compensation awarded under other heads and the same are confirmed. Accordingly, the total compensation is arrived at Rs.2,78,000/=. The difference amount awarded by this court would carry interest at 7.5% per annum. 10. The Insurance Company is directed to deposit the entire award amount with interest and costs as awarded by the Tribunal deducting the amount already deposited by them within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the claimant is entitled to withdraw the same by filing appropriate application. 11. With the above modifications, the appeal is partly allowed with proportionate costs.