IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.247 of 2006 MANAGER MISTRI & ORS Versus ARUN KUMAR SINHA & ANR ----------- 7. 30.4.2009 Heard counsel for the parties. For the reasons mentioned in I.A.No. 615/2009, the delay in filing of the appeal is condoned and consequently the prayer in I.A.No. 615/2009 is allowed. Coming to the merits of this case this Court wound find that the approach of the Tribunal in discarding all important evidence of A.W.3 in the matter of income of the injured appellant is absolutely unsustainable either on fact or in law. It is not in doubt that the appellant was working as a Mistry and he had taken a plea that he was working in a Garage. He had also in his claim application given his income certificate from his employer certifying that he (appellant) was receiving Rs. 2500/- per month. When the parties had adduced evidence, the appellant had also produced his employer, A.W.3, who had deposed both with regard to the appellant working in his Garage as also receiving salary of Rs. 2500/- per month. He 2 had also proved the income certificate bearing his signature which had already been filed and thus, were to the notice of the respondents including the Insurance Company. In the cross-examination also nothing could be taken away from the said evidence but the Tribunal has rejected the said evidence only on the ground that either the person, the employer, who had appeared or had issued the income certificate, was „a private person‟ and as such, his evidence/ certificate could not be held to be reliable. Counsel for the Insurance Company wanted to support this part of finding not by taking a plea that a certificate of private person by itself cannot be entertained or admitted in evidence or be made basis for determination of income but then he would say that whether such Garage was registered under the Shops and Establishment Act was never proved by the appellant. He would, therefore, try to support the finding of the Tribunal by taking an alternative plea. Unfortunately this aspect of the matter which has now been sought to be 3 raised by the respondent Insurance Company was never raised before the Tribunal. The respondent Insurance Company in fact never questioned the defence of the appellant as with regard to his working in a Garage and its defence only was that he was not drawn Rs. 2500/- and therefore, only the quantum of his income was under doubt. That being so, when an evidence was adduced by the appellant himself producing his employer who had not only supported the appellant being his employee but also had categorically taken a plea of paying Rs. 2500/- per month, there was nothing for the Tribunal to discard it and that too on the ground of such evidence coming through a private person. There is no requirement in law much less under the Motor Vehicle Act that the compensation can only be allowed if the employer or the company or governmental body and the income certificate only closed from the salary statement duly certified. Counsel for the appellant in fact is also correct in placing his reliance on the judgment of the Apex Court in the case of Gurmit Kaur & anor. Vs. State of Haryana 4 & ors., reported in (1999) 9 SCC 212, wherein the Apex Court in a similar case had held that the approach of the Tribunal of rejecting an evidence of the employer of the victim was not justified. In that case the employer of the deceased had given evidence that he was operating Punjab Tourism Taxi Service and he had employed the deceased as his driver on the said taxi on a monthly salary of Rs. 3000/- and an additional amount of Rs. 50/- per day. This amount was, therefore, claimed by the widow as income but the Tribunal and the High Court had reduced the income of the deceased to Rs. 1500/-. The Apex Court in that regard had gone to hold that once the employer himself had appeared and deposed about the income of the victim/ deceased there was nothing for the Tribunal or the High Court to give finding with regard to age and in fact lower income. In the opinion of this Court the judgment of Gurmit Kaur (supra) will squarely apply to the facts of this case because here the employer of the appellant had appeared and had supported the said plea 5 in his evidence as his monthly income. Once this Court would find that the income of the appellant was Rs. 2500/-, the next question would be whether his injury leading to 80% disability could also be quantified in terms of compensation at the rate of 80%. A person who looses his limbs (in this case his leg) for all purposes becomes invalid and at least cannot do the job of a Mistry which requires him to do almost same job of a driver while testing the vehicle. Therefore, even if the disability caused was 80% the effect thereof on the appellant was 100%. This aspect of the matter again stands settled by the judgment of the Apex Court in the case of K. Janardhan vs. United India Insurance Company Ltd. & anor., reported in (2008) 8 SCC 518 relying on an earlier judgment of the Apex Court in the case of Pratap Narain Singh Deo vs. Srinivas Sabata & anor., reported in (1976) 1 SCC 289. The Apex Court in the aforementioned case having considered the scope of total disablement had held that whether a temporary or permanent nature, as incapacitates a workman for all work which 6 he was capable of performing at the time of accident resulting in such disablement would qualify under the expression “total disability”. The Apex Court in fact having applied, therefore, the aforementioned principle had held that the amputation of right leg up to knee joint of the appellant, who was a driver in that case, had led to suffering of 100 % disability and incapacity of his earning as a driver. The facts being almost similar and identical over here when a mechanic of an automobile garage looses his one leg it cannot be said that he had not suffered 100% disability and incapacity in earning. The effort of the learned counsel for the respondent Insurance company to distinguish the case of K. Janardhan (supra) by taking a plea that a driver and a mechanic do not stand at the same footing because the driver has to drive the vehicle and if one leg goes away he cannot work as a driver but the same thing cannot apply to a mechanic because he still can work even after loosing one leg has to be only noticed 7 for its being rejected. A driver of a vehicle and a mechanic of a vehicle, so far legs are concerned, have absolutely common identity. If the driver cannot drive his vehicle without one leg, the mechanic also cannot do anything without leg. That being so, this Court would find that the impugned award would need certain modification by fixing the amount of income of the appellant to be Rs. 2500/- per month i.e. 30,000/- per year. There would be change in multiplier as given by the Tribunal which would be „16‟ keeping in view the age of the appellant to be between 35 to 40 years and therefore, the computation of income would be Rs. 4,80,000/- in which of course 1/3rd of income will have to be deducted which would leave his income to Rs. 3,20,000/- on which he would be entitled to Rs. 15,000/- only as medical expenses as allowed by the Tribunal as also Rs. 5000/- as per clause 4(1)(a) of 2nd Schedule of the Act. The total claim will be of Rs. 3,40,000/- on which the interest will be payable @ 6%. Whatever amount has been paid by the respondent insurance Company will of 8 course be deducted and the balance amount will be paid within a period of two months from the date of receipt/ production of a copy of this order. This appeal with the aforesaid modification, observations and directions is finally disposed of. (Mihir Kumar Jha,J.) Surendra/