IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.486 of 2001 UMESH PRASAD SINGH Versus RAM LOCHAN MAHTO For the Appellant : V.R.P. Singh, Advocate For the Respondent : Mr. Mahendra Thakur, Advocate ----------- 30/ 19.08.2008 The order under appeal is dated 13th of August, 2001 passed in Claim Case No. 01/1988 by the Presiding Officer of Motor Vehicle Accident Claims Tribunal, Sitamarhi, whereby and whereunder the learned Presiding Officer has held that petitioner Ram Lochan Mahto who is respondent here, was entitled for compensation to the tune of Rs. 1,46,000/- with interest at the rate of 9% per annum from the date of the order to be paid by the owner of offending vehicle namely, Umesh Prasad Singh @ Lallan Pd. Singh. The appellant Umesh Prasad Singh @ Lallan Prasad Singh has challenged the order mainly on two counts. Firstly, non-application of multiplier system and secondly, treating it to be a case of total permanent disability which should have been total partial disability by referring relevant provisions of law contained in Section 163 A of the Motor Vehicles Act and Schedule-I, Part-II, Item-19 of the Workmen’s Compensation Act, 1923 as also Schedule-II of the Motor Vehicles Act. Emphasis has been given that in case of permanent partial disablement percentage of compensation should have been 60 as 2 provided in Schedule-I, Part-II of the Workmen’s Compensation Act, 1923. Further submission is that learned Presiding Officer of the court has mis-construed relevant provisions of law and deducted only 1/3rd of the income of disabled claimant, which should have been 40% less, instead of 1/3rd from his income. Secondly, it has been argued that age of the victim-claimant has also been determined on the date accident took place , but it should have been for the year 2001, and, accordingly, multiplier system should have been 11 in place of 16 which has been applied by the learned court below. The learned counsel for the respondent, claimant-victim has also been heard. It is admitted fact that age of the victim, when his leg was amputated due to injury sustained by him caused by motor accident, was 37 years in the year 1987. The income of the victim at that time was Rs. 1100/- per month, and there is no challenge to that aspect. So far, amputation of left leg below middle thigh and above knee is concerned there is no dispute as per Item No. 19 of Part-II Schedule-I of the Workmen’s Compensation Act, 1923, such compensation should have been 60% of the amount applicable for total permanent disablement. The claimant’s case in such situation would be covered by Item-19 i.e. he would be entitled for compensation to the extent of 60% of total permanent disablement. 3 Having considered Multiplier as on the date, where his income for the purpose of determination of compensation is to be considered would be 16, for the reason that it was the process of the court in securing appearance of the concerned persons and thereby deciding the matter after long 14 years, for which the claimant injured should not be held responsible and to suffer loss in that situation. The income of the claimant at Rs. 1100/- per month comes to Rs. 13,200/- per annum. Applying the multiplier, deducting 40% it comes to Rs. 7,920 per annum, multiplied by 16 comes to Rs. 1,26,720/= (One Lac Twenty six thousand Seven hundred Twenty only). There is no challenge so far medical compensation of Rs. 5,000/- is concerned. Next point is also raised that initially in the Tribunal the petition of the claim was dismissed for non-prosecution on account of absence of both the parties, when case was called out. But, subsequently, it was restored without giving any information or notice to the O.P. and as such he was deprived of an opportunity to contest the matter in the Tribunal. But, he was absent on the date of dismissal. It has been submitted that case of the respondent was dismissed on 4.10.1996 where nobody appeared for the respondent-claimant on call. But, subsequently, Misc. Case No. 40 of 1996 was allowed and, thereby it was restored to its original file on 11.10.1999. Perused the lower court records and from the order dated 4 11.10.1999, it would be manifest that O.P. No. 2 did not appear to contest the case in spite of publication of notice. O.P. No. 1 although, appeared and filed written statement on 16-17.09.1990 but failed to contest the matter and evidence has been led on behalf of the applicant when O.P. No. 1 did not appear to contest the matter and, thereafter, the claim of petition was dismissed for default when it was fixed in the stage of argument, of course, witnesses seem to have been examined on 17.02.2001 but, it is manifest from the several consecutive orders they did not opt to cross-examine any of the witnesses. In the facts and circumstances, it is manifest that no prejudice has been caused to the O.P. So, I do not find any substance in this contention that contesting the O.P. by virtue of such restoration of application, has suffered any loss. In the facts and circumstances, the appeal stands dismissed with the aforesaid modification, so far, quantum of compensation to be paid to the claimant-opposite party is concerned. So far liability of the driver is concerned no interference is required in the impugned order. But, that payment should be Rs. 1, 26,720+5,000 = Rs.1,31,720/- and interest as directed by the Tribunal. Sanjeet (Subash Chandra Jha, J.)