JUDGMENT : Mr. Kuldip Singh J.: (Oral) – CM-18897-CII-2012 There is delay of 31 days in filing the present appeal. For the reasons mentioned in the application supported by an affidavit, delay of 31 days in filing the present appeal is condoned subject to all just exception. Application stands disposed of. FAO-4339-2012 2. This is claimant’s appeal for enhancement of compensation against the Award dated 05.12.2011 passed by the Motor Accident Claims Tribunal, Bathinda (in short ‘the Tribunal’). 3. In this case, the claimant-appellant Mohan Lal @ Bhagat Singh, aged about 48 years was working as Recovery Officer with Kim Investment Ltd., Branch Office, Bathinda. It is claimed that he was getting salary of Rs.13,000/- per month and having additional income of Rs.9,000/- by selling milk. On 21.04.2010, when the claimant-appellant was going on his motorcycle bearing registration No.PB-03S-2059 and when he reached near Rose Garden Chowk, Bathinda at about 9.30 p.m., was hit by one bus bearing registration No.PB-30D-8178 from behind at very high speed belonging to Deep Bus Service. As a result of the accident, the right leg up to knee and right wrist of the claimant were crushed. He also suffered multiple fractures of the leg. He was shifted to Civil Hospital, Bathinda and then shifted to Arora Orthopedic Hospital, Hisar, where his right leg and arm were operated and amputated. He remained admitted there from 22.04.2010 to 30.05.2010. It is stated that he became 100% disabled. In this regard, FIR No.293, 21.04.2010, under Sections 279, 337, 338 and 427 IPC was registered at Police Station Kotwali, Bathinda. 4. The Tribunal assessed the income of the claimantappellant from all sources @ Rs.15,000/- per month. The Tribunal also noticed that as per disability certificate (Ex.CW2/A), which is duly proved by Dr. Vijay Mittal (CW2), there is 100% disability. However, the Tribunal found the functional disability of the claimant-appellant at 75% and accordingly awarded the compensation under the following heads: ----------------------------------------------------------------------------------------------------------------------------------------- 1. Medical Expenses Rs.1,70,500/- 2. Disability 75% @ Rs.2,000/- per percent of disability Rs.1,50,000/- 3. Pain and Sufferings i) Admission in hospital w.e.f. 22.04.2010 to 30.05.2010 Rs.1,00,000/- ii) Five surgical operations Rs.1,00,000/- 4. Amputation of right leg and part of right hand Rs.1,00,000/- 5. Transportation Charges Rs.24,200/- 6. Entertainment of guests and canteen charges Rs.15,000/- 7. Attendant charges Rs.1,00,000/- 8. Loss of income for a period of 15 months Rs.2,25,000/- ----------------------------------------------------------------------------------------------------------------------------------------- Total Rs.9,84,700/- (rounded of Rs.9,85,000/-) ----------------------------------------------------------------------------------------------------------------------------------------- 5. Amputation of right leg and part of right hand Rs.1,00,000/- 5. Transportation Charges Rs.24,200/- 6. Entertainment of guests and canteen charges Rs.15,000/- 7. Attendant charges Rs.1,00,000/- 8. Loss of income for a period of 15 months Rs.2,25,000/- ----------------------------------------------------------------------------------------------------------------------------------------- Total Rs.9,84,700/- (rounded of Rs.9,85,000/-) ----------------------------------------------------------------------------------------------------------------------------------------- 5. The claimant-appellant is not satisfied with the compensation awarded by the Tribunal and seeks enhancement. 6. I have heard learned counsel for the parties and have also carefully gone through the case file. 7. Learned counsel for the claimant-appellant pressed for enhancement of compensation awarded under second head i.e. on account of disability Rs.1,50,000/- for 75% functional disability @ Rs.2,000/- per percent disability. 8. Learned counsel for the claimant-appellant has argued that in this case, the disability should be determined as 100%. Accordingly, the loss of income on account of disability should have been assessed as 100%. 9. Learned counsel for the claimant-appellant has placed reliance upon the authority of “Sri Laxman @ Laxman Mourya vs Divisional Manager, Oriental Insurance Co. Ltd. & another”, [2012(1) Law Herald (SC) 667] : 2012 (1) RCR (Civil) 509 (SC), wherein Hon’ble the Supreme Court in case of a Carpenter, whose income was Rs.5,000/- per month observed as under: “ 18. It is also not in dispute that as a result of accident, the appellant suffered 26% disability of the right lower limb, 25% disability due to urethral injury and 38% disability to the whole body. Although, the percentage of disability of whole body is 38, the evidence produced by the appellant in the form of his own affidavit and the affidavit of PW-2 shows that he will not be able to work as carpenter or do any manual work throughout his life. In other words, even though the disability suffered by the appellant is not 100 per cent, his working capacity has been reduced to zero. However, keeping in view the degree of disability, i.e. 38% we hold that he shall be entitled to compensation of Rs.3,32,640/- (38% of Rs.5,000/- = Rs.1,540/-x12x18) for loss of future earning.” 10. Therefore, it is evident that actual loss of earning is to be seen for granting compensation for the disability. 11. In this case, the right hand and right leg of the claimantappellant were amputated with the result that he will not be able to earn full to the capacity without right leg and right hand. Therefore, it is evident that actual loss of earning is to be seen for granting compensation for the disability. 11. In this case, the right hand and right leg of the claimantappellant were amputated with the result that he will not be able to earn full to the capacity without right leg and right hand. He may do some small job from which he can have small/negligible earning, which can be at minimum 25% of his earlier income of Rs.15,000/- per month. Therefore, loss of income is to be taken 75%, which comes to Rs.11,250/-. Keeping in view the age of the claimant-appellant i.e. 48 years, the multiplier of 13 is to be applied. Total amount of compensation comes to Rs.17,55,000/- (Rs.11,250/-x12x13). The Tribunal has already awarded compensation to the tune of Rs.2,25,000/- for loss of income for 15 months. Under heads 2 and 8, the compensation of Rs.3,75,000/- was awarded, which would mean that there will be effective increase to the tune of Rs.13,80,000/-. In this way, the compensation under heads 2 and 8 is enhanced by Rs.13,80,000/-, which shall be paid within a period of three months with interest @ 7.5% per annum from the date of filing of the claim petition till its realization. 12. The present appeal is allowed accordingly to the aforesaid extent. ---------0.B.S.0------------ ——————— 54. In this part of the country (North region, i.e. Punjab, Haryana, Chandigarh, Himachal Pradesh and Jammu and Kashmir) people belonging to one religion are usually visiting the places of worship of other religions. It is also a common experience that inter-religion marriages are frequent in the States of Punjab, Haryana and U.T. Chandigarh. 55. The submission of learned counsel for the respondent that the voters of Bhadaur Constituency had delivered mandate in favour of the respondent and, as such, the election be not set aside does not carry weight with this Court. As this Court holds that the respondent was not eligible to contest the election from the said constituency, in that eventuality the argument raised by learned counsel for the respondent cannot be upheld. 56. Once this Court, on the basis of the evidence led by the petitioner is of the opinion that the respondent was a Muslim and the respondent had asserted that he had embraced Sikhism, then the burden to prove that fact would shift on the respondent. 56. Once this Court, on the basis of the evidence led by the petitioner is of the opinion that the respondent was a Muslim and the respondent had asserted that he had embraced Sikhism, then the burden to prove that fact would shift on the respondent. It was also for the respondent to prove that caste system was prevalent amongst Muslim and he (respondent) belonged to Doom caste, considered to be a Scheduled Caste as per the 1950 Order. In the considered opinion of this Court, even if the whole evidence led by the respondent is taken at its face value, then also he has not been able to substantiate the fact that caste system was prevalent amongst Muslims and that the respondent belonged to Doom caste. 57. As a result of the above discussion and on the basis of the evidence led by the respondent, this Court cannot hold that he (respondent) had embraced Sikhism after denouncing Islam. Resultantly, Issue No. 1 that the respondent being Muslim was not qualified to contest the election from Bhadaur Constituency reserved for the members of the Scheduled Castes, has to be decided in favour of the petitioner. Issue No. 2 that the respondent was a Sikh and professed Sikh religion is also to be decided against the respondent. RE: ISSUE NO. 3 : 58. Learned counsel for the respondent had pressed hard that the election petition was liable to be dismissed since the same was not verified in accordance with Order VI Rule 15 of the C.P.C. In support of his argument, he has also cited the case law which has been fully described in the preceding paras where the entire case law cited by him has been discussed. On this issue, learned Senior counsel for the petitioner had placed reliance on the judgment of Hon’ble the Supreme Court in the case of Murarka Radhey Shyam Ram Kumar (supra) in which it was held that a defect in the verification in the matter of election petition can be removed in accordance with the principles of the Civil Procedure Code. Similar view was expressed by Hon’ble the Supreme Court in the case of Neena Vikram Verma (supra). Similar view was expressed by Hon’ble the Supreme Court in the case of Neena Vikram Verma (supra). In the case of Umesh Challiyill (supra), Hon’ble the Supreme Court held that election petition cannot be dismissed at the outset on the ground of technical or cosmetic defects, but the election petition can be dismissed if not properly constituted as per the provisions of CPC. 59. After analyzing the case law cited by both the parties on the issue, this Court comes to the conclusion that the present election petition cannot be rejected merely on the ground that there was some defect in the verification clause. It is also apposite to mention here that a similar defect was there in the affidavit dated 11.08.2014, tendered by the respondent before this Court stating that he had embraced Sikhism. Such affidavit was required to be verified by a Magistrate, but the learned counsel for the respondent pointed out that the verification by a Notary Public or other competent authority was sufficient and the same cannot be ignored on the ground of verification. 60. As a sequel to the above discussion, Issue No. 3 has to be decided against the respondent and in favour of the petitioner. RE: ISSUE NO. 4 & 5 : 61. The onus to prove these issues were on the respondent. Though while addressing his arguments, initially learned counsel for the respondent cited some judgments relating to these issues, but eventually he stated at the bar that he did not want to press Issue Nos. 4 and 5. Thus, these issues are decided accordingly. RE: ISSUE NO. 6 -RELIEF:- 62. For the reasons recorded above, the present petition is accepted by holding that at the time of filing of the nomination papers from Bhadaur Constituency, the respondent, Mohammad Sadique, was a Muslim and, as such, he was not competent to contest the election from the said Constituency, which was reserved for Scheduled Castes. Hence, Issue No. 1 is decided in favour of the petitioner and against the respondent. 63. Issue No. 2 that the respondent had embraced Sikhism before he contested the election from Bhadaur Constituency, is decided against the respondent. 64. Issue No. 3 that the election petition was not verified as per the provisions of Order VI Rule 15 of the Code of Civil Procedure, 1908, is also decided against the respondent. 65. Issue Nos. 63. Issue No. 2 that the respondent had embraced Sikhism before he contested the election from Bhadaur Constituency, is decided against the respondent. 64. Issue No. 3 that the election petition was not verified as per the provisions of Order VI Rule 15 of the Code of Civil Procedure, 1908, is also decided against the respondent. 65. Issue Nos. 4 and 5 were not pressed upon during course of arguments by the respondent and, as such, there was no necessity to discuss the said issues. 66. It is, thus, concluded that the respondent being a Muslim on the target dates cannot held to be a person belonging to the Scheduled Caste and, as such, he (respondent) was not competent to contest the election to the Punjab Legislative Assembly from 102-Bhadaur (Scheduled Caste) Assembly Constituency. Consequently, the result dated 06.03.2012, declaring the respondent, Mohammad Sadique, as elected candidate to the Punjab Legislative Assembly from 102-Bhadaur (Scheduled Caste) Assembly Constituency, is hereby set aside. 67. In the facts and circumstances of the case, there is no order as to costs. ---------0.B.S.0------------ ————————