1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T (1)S.B.CIVIL MISC. APPEAL NO.521/2000 Kartar Singh s/o Avtar Singh vs Raghuveer Prasad Sharma & others. (2)S.B.CIVIL MISC. APPEAL NO.522/2000 Kartar Singh s/o Babu Singh vs. Raghuveer Prasad Sharma & ors. S.B.Civil Misc. Appeals under Section 173 of the M.A.C.T Act, 1988 against the Award dated 31.1.2000 passed by the Judge, M.A.C.T. Jaipur City, Jaipur, in MAC No. 581/95 and 1189/95(Kartar Singh s/o Avtar Singh vs Raghuveer Prasad Sharma & others.,Kartar Singh s/o Babu Singh vs Raghuveer Prasad Sharma & others.)which a sum of Rs.2,06,622/- and Rs.1,06,000/- have been awarded to the claimants. DATE OF JUDGMENT :- MARCH 27, 2009. PRESENT HON'BLE MR.JUSTICE K.S. CHAUDHARI. Mr.Sandeep Mathur,counsel for the appellants. Mr.Virendra Agarwal , for New India Assuarance Company. None present for non-petitioner No.1 and 2. BY THE COURT : These appeals have been filed by the appellants against the award dated 31.1.2000 passed by 2 the Judge, MACT, Jaipur City, Jaipur, in MAC No. 581/95 and 1189/95(Kartar Singh s/o Avtar Singh vs Raghuveer Prasad Sharma & others.,Kartar Singh s/o Babu Singh vs Raghuveer Prasad Sharma & others.) by which a sum of Rs.2,06,622/- and Rs.1,06,000/- have been awarded to the claimants respectively. Both these appeals arise out of the same award,hence, both appeals are decided by a common judgment. Brief facts of the case are that on 19.2.95, appellants along with Giriraj Singh were going on scooter. Respondent No.1 while driving jeep R.J.14-C- 5051 rashly and negligently hit scooter and caused injuries to appellants and Giriraj Singh. This jeep was owned by respondent No.2 and insured by respondent No.3. Respondent No.1 and 2 did not appear before the tribunal and respondent No.3 filed reply and raised many objections and prayed for dismissal of claim petition. After recording evidence, learned Tribunal awarded compensation as above against which these 3 appeals have been filed. None appeared for respondent No.1 and 2. Heard learned counsel for the appellants and respondent No.3 and perused the record. Learned counsel for the appellants submitted that looking to the injuries and disability, learned Tribunal has committed error in awarding lesser amount,hence, appeals may be accepted and awarded amount may be enhanced whereas learned counsel for the respondents submitted that amount awarded by the Tribunal is just and proper, hence, appeals may be dismissed. As far appeal No.521/2000 is concerned, A.W.2 Kartar Singh has stated that at the time of accident he was doing work of loading labourer in transport company and he used to save Rs.3,500/- per month. A.W.4 Harjeet Singh who is owner of Khalsa Road Lines has stated that previously appellant Kartar Singh used to do work of loading labourer in his firm. He also stated that four labourers are required to load and un- 4 load truck and Rs.200/- are paid per truck. He also stated that 3-4 trucks are loaded in a day. He admitted in his cross examination that appellant was working with him since 1989 but he does maintain registers regarding payment to loading labourers. Statement of Harjeet Singh cannot be believed because appellant himself has not pleaded in his petition that he was working with Khalsa Road Lines. No doubt he has stated in his statement that he was working in Khalsa Road Lines but column of employer in claim petition has been left blank. In such circumstances it cannot be believed that he was working in Khalsa Road Lines. A.W.4 Harjeet Singh stated that he does not maintain register of loading labourer and in absence of any record, it cannot be believed that appellant was working with Khalsa Road Lines. A.W.4 Harjeet Singh has stated that four labourers are required for loading or un-loading truck and Rs.200/- paid for per truck. He further stated that 3-4 trucks are loaded in a day,meaning thereby every loading labourer used to earn Rs.150/- to Rs.200/- per day. It comes to Rs.4500/- - Rs.6000/- per month whereas appellant has mentioned his income to be 5 Rs.3,000/- per month, in the petition and in the statement he stated that he used to save Rs.3500/- after excluding expenses. Looking to the work of appellant it cannot be believed that appellant used to earn Rs.3000/- per month but income of Rs.2000/- per month should be assessed. A.W.2 Kartar Singh has stated that he suffered injuries and on account of accident his Right leg below knee was imputed. He has also stated that he had to remain in hospital for 15 days and his treatment continued for 2-3 months. He has exhibited X-Ray Report, Operation Note, Injuries report, disability Certificate Ex-62 and medical bills. As per injury report appellant suffered 4 injuries, out of which one was grevious and his right leg was amputed which is clear from Discharge Ticket. As per disability Certificate, 70 per cent partial impairment have been shown,due to amputation of Rt.side of leg below knee joint. Appellant has not examined member of the Board which issued certificate. As per Schedule-I of Workmen Compensation Act if imputation is below knee then percentage of loss 6 of earning capacity will be 50%. Thus, it becomes clear that certificate of 50% disability should have been given and 50% partial permanent disability can be assessed. Looking to the age of appellant he is entitled to multiplier of 17. In such circumstances, loss of earning comes to Rs.2000/- x 12 x 17 x50/100 = 2,04,000/-. Learned Tribunal has awarded Rs.50,000/- in this head which is not just and proper and appellant is entitled to get Rs.2,04,000/- instead of Rs.50,000/- in this head. As far amount awarded for injuries, hospital expenses and medical bills that need not to be modified. Learned Tribunal has awarded Rs.1,40,000/- in head of mental and physical agony pain & sufferings which is apparently on the higher side. Looking to the age,nature of work and other things of the appellant Rs.1,00,000/- should be awarded in this head. Thus,appellant is entitled to get Rs.2,04,000/- +1,00.000/- + 8,000/-+ 5,000/- + 3622 = Rs.3,20,622/- as compensation instead of Rs.2,06,622/-. As far appeal No.522/2000 is concerned, A.W.3 Kartar Singh has stated that he was driver and 7 used to earn Rs.2,500/- per month and diet expenses were to be born by vehicle owner. He admitted in his cross examination that he used to drive jeep and he possess driving licence but he has not produced driving licence in the Tribunal. He also cannot say which jeep he used to drive. He has not disclosed the name of his employer. Column of name of employer in the claim petition is also blank. In such circumstances, it cnnot be believed that appellant was employed as driver by some person and he used to earn Rs.2,500/- per month but looking to the nature of work of appellant it can be presumed that he must be earning near about Rs.2,000/- per month. A.W.3 Kartar Singh has stated that on account of accident he suffered many injuries on the body and now he can not work with his hand, his memorary has become weak. He was hospitalised for 1- 1 ½ months and he has also exhbited Injury Report, X-Ray Report, Operation Note, Disability Certificate Ex-112. He has admitted in cross examination that he has given statement before the Tribunal by his memorary. A.W.5 Dr.M.R.Goyal who is member of Board, which issued 8 disability certificate, has stated that appellant suffered injuries on the head. He further stated that Disability Certificate Ex-112 bears his signature. He found mild mental retardation and 25% permanent physical disability on this count and also found scar on the right frontal parietal region and on account of both disabilities he assessed disability to the extent of 32.22%. He admitted in his cross examination that he has not operated appellant. He further stated that on the basis of aggregate formula disability was assessed 33.22%. As far as disability on account of mild mental retardation is concerned, looking to the detailed statement given by the appellant before the Tribunal by his memorary it cannot be presumed that he had mental retardation to the extent of 25% permanent physical disability. Learned counsel for the appellant could not show that on account of wide scar on the head how appellant earnings are affected. In such circumstances it would be proper to assess 20% disability to the appellant instead of 32.22% disability as assessed by medical board. Looking to the earning ,age and disability of the appellant, the appellant is entitlted to Rs.2000/- x 12 x 17x 20/100 = 9 81,600/- whereas learned Tribunal has awarded Rs.57,000/- on account of loss of future earnings and disability. As far other amount are concerned, Tribunal has rightly awarded Rs.12,000/- on account of other injuries and Rs.5000/- on account of hospital expenses and Rs.32,000/- on account of physical and mental agony. Thus appellant is entitled to get Rs.81,600/- + 12,000/- + 32,000/- + 5000/- = 1,30,600 instead of Rs.1,06,000/-. Consequently, in the light of above discussions, these appeals are partly allowed and award dated 31.1.2000 passed by the Judge, MACT,Jaipur / city,Jaipur is modified to the extent that Karatar Singh s/o Avtar Singh in S.B.Civil Misc. Appeal No.521/2000 will be entitled to get Rs.3,20,622/- instead of Rs.2,06,622/- and Appellant Kartar Singh s/o Babu Singh in S.B.Civil Misc. Appeal No.522/2000 will be entitled to get Rs.1,30,600/- instead of Rs.1,06,000/- with interest as awarded by the learned Tribunal. (K.S.CHAUDHARI)J. CKThanvi