IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.403 of 2006 1. District Rural Development Agency, Vikas Bhawan, Patna, through D.D.C., Patna-----Opposite Party No.1-- ……Appellant. 2. Deputy Development Commissioner-cum-Managing Director, District Rural Development Agency, Vikas Bhawan, Patna Collectorate, Bihar, Patna. ------Opposite Party No.2---- ……..Appellants. Versus 1. Binay Kishore Mishra, son of Late Braj Kishore Mishra, permanent resident of Arogya Niketan, Near Sugar Factory Narkatiyaganj, District-West Champaran, Bihar, earlier Residing at Maa Janki Bhawan, G-76, P.C. Colony, Kankarbagh, at present residing at F. Sector House No. F-107, P.C. Colony, Kankarbagh, Patna, Bihar. ……………..Claimant-Opposite Party No.1. 2. Puna Prasad Bind, son of Mohan Bind, at present posted as Driver in the office of Deputy Development Commissioner- Cum-Managing Director, District Rural Development Agency, Vikas Bhawan, Patna Collectorate, Patna, Bihar, residing at Test Lal Verma Nagar, Bailey Road, Near the Bailey Road Canal, P.S.- Danapur, Patna. ------------------Opposite Party No.3---------- ------------------Respondent No.2---Respondents. ----------- 17. 30. 08. 2010. Heard the parties. 2. This Miscellaneous Appeal is directed against the order dated 30. 01. 2006, passed by the 3rd Additional District Judge, Patna, in Claim Case No. 151 of 2003, by which he has ordered to pay compensation of Rs. 2,00,000/- to the claimant on the account of the accident by the road roller. 3. The case of the claimant is that on 27. 09. 2002, at about 7.10 P.M. the claimant who happens to be Zonal Sales Manager, was coming back after resuming his duty with motorcycle, met an accident with road roller as alleged to be driven rashly and negligently, he received serious injury, causing 2 compound fracture and hence he claimed a loss of Rs. 2,33,000/- due to his expenses for treatment, loss of service for the period of one year and other losses and filing the claim petition. 4. However, the said claim petition was challenged by the District Rural Development Agency, Patna, denying the accident and stated that no accident was occurred, though both sides adduced evidence. 5. Three witnesses was examined on behalf of the claimant. A.W. 1 is the claimant, A.W.2 is Ragni Mishra, wife of the claimant and A.W. 3, Dr. Rajiv Kumar Bhatt. Ext. 1 is the certificate issued from the office of the Civil Surgeon-cum-C.M.O. Patna, and from this certificate it appears that the claimant has become 40% disabled due to the accident by the road roller. A.W.3 Rajiv Kumar Bhatt has stated that he has treated the claimant and the claimant required post operational treatment and this witness has proved Ext. 2 to 2/2. . D.R.D.A. adduced witness O.P.W.1 driver of the road roller, Ext. 4 is certified copy of the F.I.R. and Ext. 5 is the charge sheet. 6. After considering the material and documentary evidence, the Tribunal allowed compensation to the tune of Rs. 2,00,000/- (two lakhs) to the claimant due to the accident which considered to be just and proper. 7. Learned counsel for the D.R.D.A. (Appellant) however, raised grievance that claimant has not proved the Ext. 1 report, though, have asserted that his treatment was done at 3 P.M.C.H. but no paper regarding his treatment has been proved or brought on record. It has further been contended that neither any document regarding expenses either in Nursing Home or allegedly about expenses on the medicine or receipt of purchase of medicine has been brought in evidence and further he has not been able to file any chit of paper regarding his service or salary or ousted from service due to the said accident and hence contended that claim granted by the Tribunal is excessive high and without any evidence. 8. However, none appears on behalf of the claimant even on notice, though, Wakalatnama has been filed which is on record. Taking consideration the submission made by the learned counsel for the appellant the Ext. 4 is the certified copy of F.I.R. which shows about the accident by road roller and a person have injured and removed to P.M.C.H. There is no document about treatment of the claimant at P.M.C.H. even X-Ray report has not been proved regarding fracture. However, Ext. 1 is the certificate issued from the office of the Civil Surgeon-cum-C.M.O. which has been marked as Ext. 1 has not been challenged which shows disability of 40 % to the claimant due to the accident. However, it has been asserted by the appellant that it has not been proved that this certificate issued with regard to the accident. However, there is no merit in the submission as A.W. I the victim in his evidence has stated that he got injury by road roller. However, having regard to the fact that Ext. 4 is the certified copy of F.I.R. and Ext. 5 is the Final Form which mentioned that charge sheet has been submitted 4 against the driver of the road roller and the claimant has been injured, though, charge sheet may not have the evidence but may be looked into for this purpose prima facie. 9. To draw the inference about the fact that injury to the victim due to the accident by road roller and further his oral evidence also mentioned that the claimant got injured due to the accident and was unconscious taken to P.M.C.H. and thereafter, he was treated at Private Nursing Home by Captain V. S. Singh, Orthopedic Surgeon and thereafter he was treated by Dr. Rajiv Kumar Bhat and hence from the evidence both oral or documentary that the appellant got injured by an accident with road roller by which he got 40% disabled. 10. However, learned counsel for the appellant has strongly relied and submitted that X-Ray report of the fracture has not been placed or brought on record. However, Ext. 1 is the certificate issued from the office of the Civil Surgeon-cum-C.M.O. which indicates the signature of the Chairman and two members of the Medical Board which has not been challenged with presumption that Medical Board considered the X-ray report come to finding about disability of 40% and there is no challenge by the appellant a further evidence of claimant that he got injury by road roller and hence correctness of this document may not be challenged at the appellate stage. 11. However, it is true that, though, the claimant claims that entire expense on the medical treatment to the tune of 5 Rs. 47,000/- and odd. However, any chit of paper has not been filed about those expense or for treatment at Nursing Home or for the purchase of medicine and even claim that he was idle for about two years, but neither he produced any proof or adduced in evidence any document about his salary or about the period for which he suffer or could not attend the office and the grievance is that even without considering this fact the Tribunal has allowed to the tune of Rs. 2,00,000/- (two lakhs) as compensation. 12. However, it is established that claimant was disabled 40%. There is no evidence that how many days the victim was working and has not been produced any evidence about his salary or about his earning. However, in such circumstance, taking the minimum wages of the victim is at the relevant time of accident at the rate of Rs. 75/- per day and since he was working 26 days in a month, then his income per month comes to Rs. 1950/- and his income about 12 months comes to Rs. 23,400/- and deducting 1/3rd as his expense which comes to Rs. 15,600/-. However, the age of the victim has been shown as 48 years and hence multiplier of 13, it comes to Rs. 2,02,800/- and dependency of 40% comes to be Rs. 81,120/-. 13. Having regard to the fact that no paper regarding his expense having being brought on record hence Item 4 (2) of 2nd Schedule of the Motor Vehicle Act, only expense incurred as one time is Rs. 15,000/- this 15,000/- being added to Rs. 81,120/- which comes to Rs. 96,120/-. Rs. 5,000/- being added for pain and 6 suffering then it comes to Rs. 1,01,120/-. However, the claim of the claimant that he remains idle for about two years, but having not filed any certificate or paper, he is entitle for one year actual period of disablement and no extending 52 weeks as per Item 5 of the 2nd schedule of the Motor Vehicle Act. His income on the basis of earning has assessed comes at the rate of Rs. 75/- per day comes to Rs. 23,400/- per month and hence actual compensation comes in lump sum to the tune of Rs. 1,25,000/-. However, on the said amount and interest of 6% per annum appears to be just compensation. Hence, since the Tribunal has assessed Rs. 2,00,000/- without any reasoning is set aside and is substituted that the claimant is entitled for compensation of Rs. 1,25,000/- with interest of 6% per annum. 14. Learned counsel for the appellant, however, contended that he has already paid Rs. 25,000/- as ad-interim compensation that will be deducted from this amount and even for assessing the interest, deducting the amount from the date of payment and further Rs. 25,000/- deposited in this Court be remitted back to the lower court so that the amount may be utilised for satisfaction of the amount awarded and be released in the account of the claimant to satisfy the award. 15. With the above observations this Miscellaneous Appeal is disposed of. m.p. ( Gopal Prasad, J.)