Rajasthan High Court - Jaipur
Birbal vs Hamraj And Others on 17 January, 2014
Author: R.S. Chauhan
Bench: R.S. Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Misc. Appeal No.714/2010 Birbal v. Hamraj & others Against the award dated 30.1.2010 passed by Additional District Judge (Fast Track) No.9, Jaipur City, Jaipur and Motor Accident Claims Tribunal in Claim Case No.428/2009 Date of order 17.1.2014 Hon'ble Mr. Justice R.S. Chauhan Mr. Ram Sharan Sharma, for appellant Mr. Amarnath Pareek, for respondents
By the Court The appellant has challenged the award dated 30.1.2010 passed by the Additional District Judge (Fast Track) No.9, Jaipur City, Jaipur and Motor Accident Claims Tribunal, whereby the learned Tribunal has granted an award of Rs.70,939/- along with 6% of interest from 17.9.2008 i.e. the date on which the claim petition was filed.
Briefly the facts of the case are that on 10.8.2008 the claimant, Birbal, a 22 years old young man, was going as a pillion rider on a motorcycle from Ramganj Chaupar to Sanganeri Gate. The driver of the motorcycle was driving the vehicle in a rash and negligent manner. The driver suddenly hit the brake as the vehicle ahead of him stopped abruptly. Consequently, the motorcycle slipped; the claimant-appellant was injured. Due to the injuries, he filed a claim petition. In order to substantiate his case, the appellant not only examined himself as a witness, but also submitted a few documents. After going through the oral and documentary evidence, the learned Tribunal granted the compensation as aforementioned. Hence this appeal for enhancement.
Mr. Ram Sharan Sharma, the learned counsel for appellant has vehemently contended that Item No.5 of the Second Schedule attached with the Motor Vehicles Act, ('the Act', for short), clearly lays down a formula which is applicable to non-fatal accidents. However, the learned Tribunal has not calculated the compensation in accordance with the said formula. Instead, it has granted a lump sum of Rs.47,500/- for the physical pain and for the permanent disability of 11.24%. Thus, without giving any reason, the learned Tribunal has deviated from the formula established by law. Hence the award deserves to be interfered with.
On the other hand, Mr. Amarnath Pareek, the learned counsel for the Insurance Company, has contended that the learned Tribunal was justified in awarding a lump sum. Even if the contention of the learned counsel for the appellant were accepted, it would lead to only a minor enhancement. Thus, the award is just and reasonable; it does not require any interference.
Heard the learned counsel for the parties, and perused the impugned award.
Item No.5 of the Second Schedule of the Act is as under :-
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.
Although it is true that the Second Schedule is to be applied in cases filed under Section 163A, but in catena of cases the Hon'ble Supreme Court has also held that in a case filed under Section 166 of the Act, the Second Schedule can be taken as a guideline and can equally be applied.
According to Item No.5, in a case of non-fatal accident, the Tribunal is supposed to calculate the compensation firstly in the category of loss of income, and secondly in the category of the loss suffered by the claimant either from permanent total disablement, or from permanent partial disablement. In the present case the appellant has suffered fracture of his knee which would naturally bring his case under permanent partial disablement. Moreover, according to the appellant, he was a mason. According to his disability certificate (Exh-15), he had not only suffered a disability of 11.24%, but would also have difficulty in working as a mason in future. After all, he would be required to sit and stand while carrying out his work as a mason. According to the learned Tribunal, his notional income was calculated as Rs.3,000/- per month. For the loss of income of two months, the learned Tribunal has already granted him a compensation of Rs.6,000/-. The learned Tribunal had granted the compensation of Rs.47,500/- for the permanent partial disability and for physical pain. But applying the formula, as given under Item No.5, the compensation under the head of loss suffered due to permanent partial disability of 11.24% has to be recalculated as under :-
3000 x 12 x 17 x 11.24% = Rs.68,788.80 rounded off Rs.68.789/-.
As far as the compensation with regard to pain and agony, the appellant shall be paid an amount of Rs.30,000/-. Hence, the appellant shall be entitled to receive Rs.68,789 + Rs.30,000 = Rs.98,789/-, under the heads of permanent partial disability of 11.24% and for physical pain and agony. Thus, the compensation awarded by the learned Tribunal under these heads is enhanced as under :-
Rs.98,789 47,500 = Rs.51,289/-
The enhanced amount shall be paid by the Insurance Company to the appellant along with an interest of 6% per annum from the date of filing of the appeal i.e. 4.3.2010 within a period of two months from the date of receipt of a certified copy of this judgment. Hence, the appeal is partly allowed. The impugned award stands modified to the extent as indicated above. (R.S. Chauhan) J.
db 66 [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS