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.1009/2000 SAGAR SINGH VS DASHRATH SINGH & OTHERS S.B.Civil Misc. Appeals under Section 173 of the M.A.C.T Act, 1988 against the Award dated 4.4.2000 passed by the Judge, M.A.C.T. Jaipur City, Jaipur, in MAC No. 1310/99 (Sagar Singh vs Dasrath Singh & others) which a sum of Rs.92,000/- has been awarded to the claimant. DATE OF JUDGMENT :- MARCH27, 2009. PRESENT HON'BLE MR.JUSTICE K.S. CHAUDHARI. Mr.Sandeep Mathur,counsel for the appellant. Mr.Virendra Agarwal for Mr.Jaindera Jain for the respondents. None present for non-petitioner No.1 and 2. BY THE COURT : This appeal has been filed by the appellant against the award dated 4.4.2000 passed by the Judge, MACT, Jaipur City, Jaipur, in MAC No. 1310/99 (Sagar Singh vs Dasrath Singh & others) by which learned Tribunal awarded a claim of Rs.92,000/-. 2 Brief facts of the case are that on 17.4.99 at 9 A.M. appellant was going towards Railway station circle on Bicycle and suddenly respondent No.1 while driving car No.RJ-14-2C-7772 hit appellant, on account of which appellant sustained injuries. This car is owned by respondent No.2 and insured by respondent No.3, hence, appellant claimed compensation. Respondent No.1 and 2 did not appear before Tribunal and respondent No.3 filed reply and raised many objections and prayed for dismissal of the claim petition. None appeared for respondent No.1 and 2. Heard learned counsel for the appellant and respondent No.3 and perused the record. Learned counsel for the appellant submitted that looking to the injuries and disability, learned Tribunal has committed error in awarding lesser amount,hence, appeal may be accepted and awarded amount may be enhanced whereas learned counsel for the respondent submitted that amount awarded by the 3 Tribunal is just and proper, hence, appeal may be dismissed. A.W.1 Sagar Singh has stated in his statement that he was hit by Maruti vain on account of which he sustained injuries on his body and his spleen was ruptured. He remained hospitalised for the first time for eight days and second time for five days. At the time of accident he was working as a waiter in Jaipur Green Hotel and he used to get salary of Rs.4,500/- per month. He also exhibited Injury Report, X-Ray Report, Operation Note and Disability Certificate. He has admitted in cross examination that in claim petition he has not mentioned name of employer. He does not possess any document regarding his employment and salary in hotel. He also stated that Attendance Register was not maintained in hotel. He does not know why name of employer was not mentioned in his claim petition. A.W.2 RatanSingh has also stated that appellant was working in Green Hotel and he used to get Rs.4,500/- per month as salary. In cross examination he stated that he used to go in Green Hotel where he saw appellant working in hotel. He has 4 denied this suggestion that he is telling lie as appellant is his brother-in-law. As far appellant's employment in Green Hotel is concerned, he has not mentioned name of his employer in his claim petition and has simply mentioned “Private” in the column of employer. Appellant has not produced any document regarding his employment. In such circumstances, it cannot be believed that appellant was working in Green Hotel especially when he has not produced any document regarding his appointment and on account of denial of Attendance Register. Normally in hotels, Attendance Register of workers is maintained. As far income of the appellant is concerned, he has stated that he used to earn Rs.4,500/- by way of salary as a waiter from Green Hotel. When his employment in Green Hotel is doubtful, it cannot be believed that he was working as a waiter there @ Rs.4,500/- per month. He has not produced any salary certificate. Normally, waiter does not get so much salary in ordinary hotel. Learned Tribunal has assessed his per month income to the tune of Rs.2,500/- which is apparently on higher side and looking to the work of 5 appellant, Rs.2,000/- per month income should be assessed. The appellant has exhibited Disability Certificate Ex-1. He has not examined member of Medical Board which issued certificate. In the Certificate 25% permanent disability has been shown on account of loss of spleen due to troma abdomen. On the basis of Injury Report, X-Ray Report and Operation Note, it can be presumed that he suffered injury on abdomen in the accident and his spleen was ruptured but in absence of examination of doctor, 25% disability cannot be presumed. Learned counsel for the appellant submitted that in ever case doctor need not to be examined and placed many citations which have been discussed by me at length in S.B.Civil Misc. Appeal No.1008/2000 (Ramesh Chandra vs Hari Shankar & others). In the aforesaid judgment I observed that as far permanent disability is concerned, unless the permanent disability is of such nature which is apparent from record, treating doctor or doctor who issued certificate should be examined. In absence of statement of doctor and looking 6 to the nature of work of appellant and injury on the body of appellant, it would be appropriate to presume 20% permanent disability instead of 25%. In such circumstances, loss of earning comes to Rs.2,000/- x 12 x 17 x 20/100 = Rs.81,600/- + 20,000/- on account of mental agony, physical pain and sufferings. Appellant is also entitled to get Rs.10,000/- in the head of Medical Bills, special diet and hospital expenses. Appellant is also entitled to get Rs.5,000/- on account of loss of earning for the period 2 ½ months disablement. Thus, appellant is entitled to get Rs.81,600/- + 20,000.- + 10,000/- +5,000/- = Rs.1,16,000/- as compensation instead of Rs.92,000/- . Consequently, in the light of above discussions, this appeal is partly allowed and award dated 4.4.2000 is modified to the extent that appellant will be entitled to get Rs.1,16,000/- instead of Rs.92,000/- with interest as awarded by the learned Tribunal. (K.S.CHAUDHARI)J. CKThanvi