1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T S.B.CIVIL MISC. APPEAL NO.1572/2000 Union of India vs. Smt.Kali Devi & ors. S.B.CivilMisc. Appeal under Section 173 of the M.A.C.T Act, 1988 against the Award dated 26.5.97passed by the Judge, M.A.C.T.Kishangarh, in MAC No. 39/94 Smt.Kali Devi vs Mahendra Singh & ors. by which a sum of Rs.1,00,000/- has been awarded to the claimant. DATE OF JUDGMENT :- MARCH23, 2009. PRESENT HON'BLE MR.JUSTICE K.S. CHAUDHARI. Mr.Tarun Chaurdary, counsel for the appellant. Mr.B.L.Dhakar for Mr.J.P.Gupta, counsel for respondent No1. BY THE COURT : This appeal has been filed by the appellant against the award dated 26.5.97 passed by the Judge, MACT, Kishangarh, in Claim No.39/94 ( Smt.Kali Devi vs Mahendra Singh & ors) by which tribunal awarded claim of Rs.1,00,000/-. 2 Brief facts of the case are that on 10.11.92 at 12 in the noon claimant respondent No.1 was traveling in tractor No. R.N.R.3085 as labourer, suddenly respondent No.3 while driving B.S.F. Truck No.DHG 5386 rashly and negligently collided with the tractor , on account of which respondent Smt. Kali Devi and other labourers sustained injuries. Appellant is owner of truck and respondent No.2 was Officer-in-charge who obtained truck on 'Supurdgi-nama' , hence, respondent No.1 claimed compensation. Appellant and respondent No.2 & 3 filed reply and submitted that accident was caused on account of negligence of tractor driver,hence, claim petition may be dismissed. After recording evidence, learned Tribunal awarded compensation of Rs.1,00,000/- against which this appeal has been filed. None appeared on behalf of respondent No.2 and 3. Heard learned counsel for the appellant and learned counsel for the Respondent No.1. 3 Learned counsel for the appellant submitted that learned Tribunal has committed error in holding negligence of Respondent No.3,negligent in causing accident, and further submitted that awarded compensation is on very higher side,hence, appeal may be accepted and awarded compensation may be reduced whereas learned counsel for respondent submitted that award passed by the Tribunal is in accordance with law,hence, appeal may be dismissed. As far negligence of driver of truck is concerned, learned Tribunal rightly held that accident occurred on account of negligence of truck driver Mahendra Singh,on account of which respondent- claimant Smt.Kali Devi and other persons sustained injuries. As far compensation is concerned, A.W. 1 Smt. Kali Devi has stated in her statement that she used to earn Rs.40- 50/- per day. On account of accident she sustained two fractures and other injuries. She remained hospitalised for 2¼ months , after discharge from hospital she took treatment for three months at her 4 home and further stated that for next six months she could not work. Now she cannot work and she requires medicines. She has further stated that now other woman labourer used to earn Rs.70-80/- per day. She exhibited Injury Report, X-Ray report, Discharge Ticket,and disability certificate Ex-10. She has denied in her statement that woman labourer used to get Rs.45/- per day. She cannot produce prescription of other treatment taken at her home. As per Injury Report Ex-6 she sustained 4 injuries and as per X-Ray report Ex-8A there were two fractures,one of shoulder and other of Pelvis. As per Discharge Ticket Ex-9 she had to remain in hospitalised for near about two months. A.W.4 Dr.S.N.Dargar has stated that he examined Smt. Kali and issued Discharge Certificate Ex-10 which bears his signatures. He stated that on account of restricted movement of hand he found 33% disability and on account of shortening of Right lower limb and difficulty in passing urine ,he found 17% permanent disability. He admitted in his cross-examination that no marks of identification have been entered in Disability Certificate Ex-10. He has not mentioned age, and residence of 5 claimant Kali and she was not introduced to him by any person. He was not knowing Smt.Kali and he has not treated claimant Kali. He further admitted that as X-Ray plates were shown by Smt. Kali he came to the conclusion that they were pertaining to Smt.Kali. He cannot say when these X-Rays were done. Accident occurred on 10.11.92 near gram Noriya in Police station Kishangarh and she was treated at Y.N.Hospital, Kishangarh whereas Disability Certificate Ex-10 has been prepared after 3 ½ years of accident by Doctor of Government Hospital Nasirabad. No reason has been assigned by Smt.Kali in her statement why she got her examined by doctor of Government Hospital of Nasirabad for ascertaining disability. In normal course disability certificate should have been issued by authorised doctor of Y.N.Hospital, Kishangarh. This Disability Certificate does not contain age, and residence of claimant Smt.Kali. Dr.Dargar has stated in his statement that there was shortening of right lower limb by 1cm, but claimant herself has not stated in her statement that her leg was shortened. In such circumstances, Disability Certificate Ex-10 cannot be 6 believed and it cannot be inferred that claimant Smt.Kali Devi sustained 50% permanent disability but looking to the nature of injuries and looking to hospitalisation, it can be presumed that she must have sustained 20% permanent disability. As far income of the claimant is concerned, she has pleaded in her claim petition that she was earning Rs.1,000/- per month. She stated in her statement that she used to earn Rs.40- 5o/- per day which cannot be believed. Looking to the nature of work of claimant it can be presumed that she must be earning Rs.800/- per month. If claimant's earning is taken at Rs.800/- per month and disability is presumed to the extent of 20% and multiplier of 18 is applied then loss of future earnings on account of disability comes to Rs.34,560/-. She remained hospitalised for two months and even after discharge, she would not have been in a position to work for another three months, in such circumstances, she is entitled to get Rs.4000/- on account of loss of earning during treatment. Rs.5000/- can be awarded, for medical expenses,though, no bills have been 7 submitted by her. Learned Tribunal has awarded Rs.25,000/- on account of pain and suffering which need not be reduced. In such circumstances, claimant Kali Devi is entitled to get Rs.,34,560/- + Rs.4000/- + Rs.5,000/- + Rs.25,000/- = Rs.68,560/- and learned Tribunal has committed error in awarding Rs.1,00,000/- as compensation. Consequently, in the light of above discussion, the appeal is partly allowed and award dated 26.5.97 passed by Judge, MACT, Kishangarh, is modified to the extent that claimant respondent No.1 Smt.Kali Devi is entitled to get Rs.68,560/- with interest as awarded by the Tribunal instead of Rs.1,00,000/- as compensation. (K.S.CHAUDHARI)J. CKThanvi