Rajasthan High Court - Jaipur
Ajay vs Santosh on 21 August, 2013
Author: R.S.Chauhan
Bench: R.S.Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT SB CIVIL MISC. APPEAL NO.651/2006 (Ajay Kumar Khaturiya Vs. Santosh Kumar Jhakar & Ors.) Date of Order :- 21.08.2013 HON'BLE MR. JUSTICE R.S.CHAUHAN Mr. L.L. Gupta, for the appellant. Mr. Vinod Tyagi, for the respondent.
The claimant-appellant, Ajay Kumar Khaturiya, is aggrieved by the judgment and award dated 13.6.2005 passed by the Motor Accident Claims Tribunal, Sawai Madhopur whereby the learned Judge has granted a compensation of merely Rs.5,999/- alongwith interest @ 6% per annum for the injuries suffered by the appellant.
The brief facts of the case are that on 27.3.2002, around 4.30-6.00 P.M., while the appellant was going from Bajariya to his house alongwith his brother, on a motorcycle he met with an accident near Swagat Hotel. According to the appellant, a truck bearing registration No.RJ32-G-0516 being driven rashly and negligently by the respondent No.1, Santosh Kumar, struck him. Consequently he suffered grievous injuries and the pinky finger of his right hand was amputated. The appellant filed a claim petition against the owner, the driver and the insurance company of the offending vehicle. After going through the oral and documentary evidence, the learned Tribunal passed the award, as aforementioned. Hence, this appeal before this court for enhancement of compensation.
Mr. L.L. Gupta, the learned counsel for the appellant, has raised the following contentions before this court: firstly, the appellant had suffered an amputation of his pinky finger of right hand. According to Item No.5 in Second Schedule attached to the Motor Vehicles Act (for short, the Act), the compensation shall be payable in the case of disability to the victim arising out of non-fatal accident. According to Sub-clause (b), in case of permanent partial disablement, such percentage of compensation would be paid as would be payable in the case of permanent total disablement as specified under item (a). As per Sub-clause (a), in case of permanent total disablement, the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation. Moreover, the injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule-I under the Workmen's Compensation Act, 1923 (now, the Employee's Compensation Act, 1923). According to the learned counsel, instead of calculating the compensation on the basis of Item No.5, the learned Judge has merely granted Rs.5000/- for the pain and suffering as given in Item No.4 and has granted Rs.999/- as the medical expenses incurred by the appellant. Thus, according to the learned counsel, the learned Tribunal has ignored the formula given in Item No.5 and has merely granted the compensation for non-pecuniary loss.
Secondly, according to the appellant, he was earning Rs.4000/- per month as he was running a small business. Thus, the loss of income should have been calculated on the basis of Rs.4000/- per month.
On the other hand, Mr. Vinod Tyagi, the learned counsel for the respondent-Insurance Company, has contended that the appellant failed to establish the fact that he was, indeed, earning Rs.4000/- per month. Except for his oral testimony, no documentary proof was given in order to establish the income earned by the appellant through his business. Therefore, according to the learned counsel, the notional income of Rs.15,000/- per annum should be taken as the basis for calculating the loss of income suffered by the appellant. According to him, Schedule-I of the Workmen's Compensation Act lays down that a loss of a finger would be taken to be loss of 5% of the income. Therefore, taking notional income as Rs.15,000/- and taking the 5% of Rs.15,000/-, it would come out to be Rs.750/- per annum. Considering the fact that the petitioner was between the age of 35-40 years, a multiplier of 16 would have to be applied. Thus, at the best, according to the learned counsel, the appellant would be entitled to a meager enhancement. But considering the fact that he has already been paid Rs.5999/- alongwith an interest of 6%, a sufficient compensation has been paid to him.
Lastly, the payment of compensation is not a bonanza, but is supposed to be a reasonable compensation for the loss suffered by the injured. Since a reasonable amount has already been granted, this court ought not to interfere with the award.
Heard the learned counsel for the parties and perused the impugned award.
Although it is true that a compensation should not be a bonanza, but simultaneously, a compensation amount to which the claimant is entitled to, should nonetheless be paid to him. Merely because the appellant has lost a part of his pinky finger, the case could not have been and should not have been taken lightly by the learned Judge. A bare perusal of the impugned award clearly reveals that the learned Judge has paid a compensation of Rs.5000/- on the basis of item No.4 of the Second Schedule. According to Item No.4, an injured person is entitled for a compensation of Rs.5000/- for the pain and suffering caused to him due to the grievous injury. Thus, the compensation of Rs.5000/- has been paid under the said head. However, the learned Judge has failed to notice Item No.5 which clearly lays down the formula for payment of compensation in case of permanent partial disablement. Thus, the learned Judge has failed to apply the correct legal provision.
Item No.5 is as under:-
5. Disability in non-fatal accidents:
The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:-
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
Plus either of the following:-
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in permanent total disablement/ permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule-I under Workmen's Compensation Act, 1923.
According to said Item No.5, in case of permanent partial disablement, such percentage of compensation would be paid as would be payable in the case of permanent total disablement as specified under item (a). In order to calculate the percentage of loss of earning capacity, Item No.1 refers to Schedule-I under the Act of 1923. Thus, the learned Judge was required to refer to Schedule-I of the said Act. But a bare perusal of the impugned award clearly reveals that the learned Judge has ignored Schedule-I of the said Act. Hence, he has failed to give the benefit to which the appellant was entitled to.
Although the appellant had claimed that he was earning Rs.4000/- per month from the small business carried out by him, but he could not substantiate its plea. In absence of any proof, the learned Judge should have taken the notional income of Rs.15000/- per annum as the appellant's income. Since Schedule-I of the Act of 1923 lays down that the loss of one finger should be taken as 5% loss of earning capacity, the same should be taken as the loss suffered by the appellant in his earning capacity. Taking 5% of Rs.15000/- per annum, one reaches the figure of Rs.750/- per annum. Multiplying this with a multiplier of 16, the appellant would be entitled to a compensation of Rs.12,000/-. Thus, the learned Judge should have granted a compensation of Rs.12,000/- to the appellant keeping in mind Item No.5 of the Second Schedule of the Motor Vehicles Act read with Schedule-I of the Workmen's Compensation Act. Moreover, as already directed by the Tribunal, the appellant would be entitled to a payment of Rs.5999/- alongwith interest of 6% per annum.
For the reasons stated above, this appeal is partly allowed. The appellant shall be entitled to an enhanced compensation of Rs.12,000/- plus an interest @ 6% per annum on the enhanced amount from the date of filing of the appeal, i.e. 14.10.2005, till the date of actual payment. Rest of the award shall remain as it is.
[R.S. Chauhan] J.
GS All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, P