1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL MISC. APPEAL NO.3814/06 (Kalu V/s. Kishan Lal & Ors.) Date of Judgment :: 14.08.2008 HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. Kapil Mathur for the appellant. Mr. P.K. Kasliwal for respondent Nos. 1 & 2. Mr. Sunil Jain for respondent No.3. Having suffered 40% of permanent disability, yet having been granted merely Rs.1,28,000/-, vide award dated 29.11.2005 passed by the Motor Accident Claims Tribunal, Ajmer ('the learned Tribunal', in short), the appellant has challenged the same. The brief facts of the case are that on 17.02.2004, the appellant, Kalu, along with Gopal Gurjar and Ram Swaroop were taking their goats in a tempo, bearing registration No.RJ-01-G-5760, from Rajgarh to Ajmer. Around 11 : 30 AM when the tempo reached near Saradhana Power House on the Rajgarh Road, the driver of the said tempo drove the tempo in a rash and negligent manner and made a sharp turn. Consequently, the tempo turned turtle on the road. While Gopal died on the spot, Kalu 2 and Ram Swaroop suffered injuries in the said accident. Three different claim petitions were filed : one by the appellant, the other by Ram Swaroop and the third by the legal heirs of Gopal. In order to support their case, both Ram Swaroop and Kalu were examined as witnesses and thirteen documents were submitted. The Respondent No.3, the Insurance Company, neither examined any witness, nor submitted any documentary evidence. After going through the oral and documentary evidence, the learned Tribunal granted the compensation as aforementioned. However, as the appellant is aggrieved by the meagre amount of compensation, he has filed the present appeal for enhancement. Mr. Kapil Mathur, the learned counsel for the appellant has vehemently argued that the learned Tribunal has not appreciated the factual matrix of the case in proper perspective. According to the learned counsel, the dates are important in this case which are as under :- 3 17.02.04 The date of accident. The appellant suffered five injuries including an injury of the head, which led to Hametoma. 17.02.04 to 26.02.04 The appellant was hospitalized. 06/08/04 The first disability certificate issued by JLN Medical College Hospital showing 3% of permanent disability. 03/05/05 The appellant was re-admitted in the hospital due to the head injury. 04/05/05 He was operated for the head injury. 07/05/05 He was discharged 01/07/05 The second disability certificate issued by the JLN Medical College Hospital, Ajmer. The second disability certificate showed 40% of the permanent disability. Despite the fact that when the second certificate revealed a permanent disability of 40%, the learned Tribunal has taken the permanent disability of only 3%. According to the learned counsel, the learned Tribunal failed to appreciate the fact that ever since the accident, the appellant's condition was deteriorating due to the head injury. Although initially he had suffered only 3% of permanent disability, but after almost one year and three months, the appellant had 4 suffered 40% of permanent disability. According to the learned counsel, the learned Tribunal has erred in taking the permanent disability as merely 3%. Secondly, the learned Tribunal has not applied the formula given in Item No.5 of the Second Schedule attached to the Motor Vehicles Act ('the Act', in short). Instead, for the simple injuries, he has been granted Rs.4,000/-, and for the grievous injuries, he has been granted Rs.5,000/-. Thus, the learned Tribunal has applied Item No.4 of the Second Schedule of the said Act. Thirdly, the learned Tribunal has erred in assessing his monthly income. According the appellant's testimony, he was earning about Rs.6,000/- by selling goats in the market. But the learned Tribunal has taken his monthly income as merely Rs.2,500/- per month. Forthly, the learned Tribunal has not granted any compensation for the nutritional food that the appellant had consumed during the period of his recuperation. Lastly, despite the fact that the appellant has suffered 40% of permanent disability, not a single penny has been granted for “the pain and agony” suffered by the appellant either during his treatment or for the future. On the other hand, Mr. P.K. Kasliwal, the learned counsel for respondent Nos. 1 & 2, and Mr. Sunil Jain, the learned counsel for respondent No.3, have argued that 5 compensation should not be a bonanza. The compensation of Rs.1,28,000/- is more than “just and reasonable” for 3% of permanent disability suffered by the appellant. They have further argued that there is no evidence to show that the second disability certificate, showing the permanent disability of 40%, was caused by the said accident. Therefore, the learned Tribunal was justified in relying upon the first disability certificate. Hence, both the learned counsel have supported the impugned award. We have heard the learned counsel for the parties, have perused the impugned award and have examined the record produced before the Court. A bare perusal of the dates mentioned above and perusal of the record clearly reveals that ever since the accident occurred on 17.02.2004, the appellant was constantly and continuously under treatment for the head injury suffered by him in the accident. Initially, after the discharge from the hospital, for the first time, the first disability certificate was drawn on 06.08.2004. The said certificate does show a permanent disability of 3%. However, as the appellant's condition further deteriorated due to the head injury, he was hospitalized for the second time from 6 03.05.2005 till 07.05.2005. During this period, he was again re-operated for the head injury. It is after his second hospitalization and after the surgery, that the second disability certificate clearly shows a permanent disability of 40%. The learned Tribunal has failed to appreciate the fact that the recuperation of head injury can take a long time. Brain is a delicate organ and its functioning is complex. Its functioning once affected by a head injury may take months to be normal. Thus, it is not surprising that the appellant's condition continue to deteriorate during the course of a year. Looking to the nature of injury and its consequences it is not surprising that the disability increased from 3% to 40%. According to the second disability certificate, the appellant suffered a disability of 40%. The said disability is clearly related to the accident which occurred on 17.02.2004. Thus, the learned Tribunal should have relied upon the second disability certificate in order to calculate the loss suffered by the appellant due to the permanent disability. Item No.5 of the Second Schedule attached to the Act prescribes a formula to be followed by the learned Tribunal, in case of total permanent disability / partial disability. In catena of cases, the Hon'ble Supreme Court held that the Second Schedule attached to the Act is to be 7 treated as a guideline by the learned Tribunal. Thus, the learned Tribunal is bound to follow the Second Schedule of the Act. In case, the learned Tribunal deviates from the said Schedule , it must state clear and cogent reasons for such a deviation. It cannot totally ignore such a Schedule. Moreover, as the award passed by the learned Tribunal is appealable, the award necessarily has to be a speaking one. Thus, it is imperative that the mind of the Tribunal is revealed in the award for deviating from the Second Schedule. However, in the present case, not a single word has been stated by the learned Tribunal for ignoring the Second Schedule. Thus, the impugned award clearly suffers from virus of non-application of mind. Further, the impugned award tantamounts to a non-speaking order. Hence, the impugned award cannot be sustained in the eyes of law. In order to work out the formula given in Item No.5 certain data is required. Firstly, the age of the appellant on the date of the accident has to be known; secondly, the income of the appellant on the said date has to be assessed. According to the claim petition filed by the appellant, he was thirty years old at the time of the accident. As far as the income is concerned, in his examination-in- chief, the appellant had stated that he was earning 8 Rs.5,000/– to Rs.6,000/- per month by selling goats in Ajmer. However, in his cross-examination he has stated that these days he is not earning too much i.e., when his testimony was recorded on 30.08.2005. He further stated that he is earning about Rs.1,500/-. The learned Tribunal has assessed his income about Rs. 2,500/- per month. But the learned Tribunal has not seen the statement in its proper context. Taking a holistic view of his deposition, it is clear that at the time of the accident, the appellant was earning Rs.5,000/- to Rs.6,000/-, but due to the permanent disability suffered by him, when his testimony was recorded on 30.08.2005, he was merely earning Rs.1,500/-. The loss of income has to be adjudged as on the date of accident, and not from the date when the testimony is recorded. Since his testimony with regard to his income on the date of the accident is un-controverted, the learned Tribunal should have taken his income to be Rs.5,000/- per month. Considering the fact that he was thirty years old, at the time of accident, a multiplier of eighteen should have been applied in the present case. Thus, the loss suffered by the appellant can be worked out as under : Rs.5,000 X 18 X 12 =Rs.10,80,000/- 9 Taking 40% of Rs.10,80,000/- the loss suffered by the appellant due to the permanent disability is Rs.4,32,000/-. As stated above, ever since the accident, the appellant was continuously under treatment. He underwent a treatment for almost one year. Of course, during this period he must have consumed special diet. However, the learned Tribunal has not granted single penny for the special diet. Therefore, this Court directs that Rs.3,000/- should be paid to the appellant for the special diet consumed by him. A damage caused due to an accident is both physically painful and mentally torturous. For the perseon, who was normal and functional suddenly becomes abnormal and dis-functional. In the split second of an accident, the entire life changes. The injured not only has to restore himself physically, but he has to struggle with an altered self- image. The pain and agony is not only limited to the period of recuperation but the frustration can be life long also. Thus, the learned Tribunal has to sensitive to the pain, the agony and the frustration suffered by the injured. In the present case, the learned Tribunal has totally ignored this 10 aspect of the case. The appellant had suffered only three per cent of permanent disability in August, 2004, but by July 2005 i.e., in eleven months - he has physically deteriorated to forty per cent. His further deterioration cannot be ruled out. Therefore, this Court has no hesitation in granting Rs.25,000/- under the category of “pain, agony and frustration”. In the result, this appeal is allowed and the award dated 03.12.2007 is modified as under : Rupees. (i)For the loss of permanent disability 5,000X18X12X40% = 4,32,000/- (ii) For nutritional food . 03,000/- (iii) For Pain agony and frustration 25,000/- Total Rs. 4,60,000/- The Insurance Company is directed to pay the enhanced compensation amount, after deducting the amount already disbursed to the appellant. It is, further, directed to pay the remaining enhanced amount within a period of two months along with interest of 6% per annum from the date of filing of the claim petition i.e., 26.03.2004 till the date of realization. 11 The learned tribunal is directed to ensure that the appellant is granted the enhanced compensation amount within a period of two month from the date of receipt of certified copy of this judgment. (R.C. CHAUHAN),J A.Asopa/-