1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER S.B.Civil Misc. Appeal No.1412/2006 : : Sunil Kumar Vs. Jagdish Singh & Ors. : : Date of Order 27.08.2008 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Man Singh for Mr.J.P. Gupta, for the appellant. Mrs.Archana Mantri, for respondent No.3. Having sustained 19.7% permanent disability, having been awarded merely Rs.25,000/-, by way of compensation vide order dated 24.02.2006, passed by the learned Judge, Motor Accidents Claim Tribunal (Special Court Dacoity Affected Area), Bharatpur, the appellant has challenged the same before this Court. The brief facts of the case are that on 29.09.2004, at about 6:00 PM, while the appellant was riding on his motorcycle, he was hit by a truck, bearing Registration No.RJ-05/G-1989, which was being driven in rash and negligence manner. Consequently, the appellant suffered a fracture of his left shoulder and fracture of the left elbow. At the time of accident, he was a young boy of eighteen years and was studying in the 12th class. 2 Subsequently, he filed a claim petition, before the learned Tribunal. In order to support his case, the appellant examined himself as a witness, and submitted twelve documents, including the disability certificate (Ex.10). The Insurance Company, the respondent No.3 before this Court, neither examined any witness, nor submitted any documents. After going through the oral and documentary evidence, the learned tribunal granted the compensation as aforementioned. Hence, this appeal. Mr. Man Singh, learned counsel for the appellant, has contended that firstly, the appellant was engaged in the business of animal husbandry as well as doing the work of milk vendor. Through animal husbandry, he was earing about Rs.5,000/- per month. However, the learned Tribunal has not even bothered to discuss about this income. Secondly, despite the fact that the appellant suffered a permanent disability of 19.7%, the learned Tribunal has not applied the formula, as given in item No.5 of the Second Scheduled attached to the Motor Vehicle Act, 1988 (the 'Act' for short). The learned Tribunal has not assigned any reason for deviating from the 3 aforesaid Schedule. Thus, according to the learned counsel, the aforesaid award suffers from non- application of mind. Thirdly, although, the appellant had lost one year of school, due to the said accident, although he had submitted medical bills of Rs.1,900/-, although, he had suffered physical and mental pain, agony and frustration, he has been granted merely amount of Rs.25,000/- as compensation. Thus, according to the learned counsel, the learned Tribunal without dealing with the non-pecuniary and pecuniary categories, has awarded an lump-sum amount of Rs.25,000/- to the appellant. On the other hand, the learned counsel for the respondent No.3, Mrs. Archana Mantri, has contended that the accident had occurred on 29.09.2004, whereas the permanent disability certificate is of 20.12.2005. According to her, the permanent disability Certificate does not show that the injuries were sustained in a road accident. Moreover, the said certificate was recorded after more than one year of the accident. Thus, there is no connecting evidence to show that the permanent disability suffered by the appellant was due to the injuries sustained by him in the 4 said accident. Secondly, according to her, a compensation of Rs.25,000/- is more than just and reasonable in the facts and circumstances of the case. Hence, she has supported the impugned award. Heard the learned counsel for the parties, perused the impugned award and examined both the injury reports as well as the permanent disablement certificate produced before this Court. A bare perusal of the injury report, dated 28.09.2004, clearly reveals that the appellant had suffered injuries on his head, left shoulder and left elbow. According to the X-ray report (Ex.6), while the appellant had suffered fracture of the left Scapula and of the left elbow joint, there was no bone injury on the left forearm. A bare perusal of the permanent disability certificate (Ex.10) clearly reveals that it was recorded on 20.12.2005, although, the date of examination was 08.12.2005. Although it is true that the disability certificate was drawn after a period of one year, but the fact remains 5 that while appraising the permanent disability, the Medical Board had noted the injuries, which were sustained by the appellant in the road accident. The Medical Board had examined the left shoulder and the left elbow of the appellant, which was injured in the accident, and had concluded that on the left shoulder there is “mild limitation of movement”. Similarly, even in the left elbow, there was “moderate limitation of movement”. After examining the injuries, the Medical Board had concluded that the appellant had suffered a permanent disability of 19.7%. There is no requirement of law that disability certificate needs to be made immediately after the injury report is made. After all, it would take some time for the bone to join and for the fracture to heal. Merely, because there is delay of more than one year would not dilute the finding of the Board, especially when the Board has examined the injuries which according to the injury report and X-ray report were caused in the accident. Thus, there is a direct linking evidence between the injuries sustained by the appellant in the accident and the finding of the Medical Board. 6 The authenticity of the disability certificate has been challenged on the ground that the said certificate has not been issued in the form, which is generally available in the hospital, but is hand-written on a slip of paper. Merely because, the certificate is hand-written on a piece of paper would not create doubts about its genuineness. It is not uncommon for hospital to run out of the form prescribed by law. Therefore, the authenticity and veracity of the said certificate is beyond doubt. According to the appellant, he was engaged in the business of animal husbandry as well as selling of milk. However, he has not placed any documentary evidence to prove this plea. But, taking the appellant to be an unskilled labourer, his income can be assessed on the basis of minimum wages which were prevalent in the year 2004. According to the notification dated July 20, 2004, an unskilled labourar was entitled to a minimum wage of Rs.73/- per day. Considering the fact that the appellant was running his own business of animal husbandry, he would have earned every day of the month. Thus, his monthly income comes out to be Rs.2190/-. Considering the fact 7 that he was, at the time of accident, 18 years old, a multiplier of 16 should be applied. Although, the learned Tribunal has noted the fact that the appellant had suffered permanent disability of 19.7%, the learned Tribunal still failed to apply the formula given in the item No.5 of the Second Scheduled attached to the Motor Vehicle Act, 1988. The learned Tribunal has not given any reasons for deviating from the said formula. Instead, the learned Tribunal has awarded a lump sum compensation of Rs.25,000/-, which was not open to the learned Tribunal. Therefore, the impugned award is unsustainable. In order to implement the formula given in item No. 5 of the Second Scheduled attached to the Act, and in order to assess the loss suffered by the appellant due to the permanent disability sustained by him, the loss is calculated as under :- Rs.2190/- X 12 X 16 X 19.7%=82,834/- Thus, the loss suffered by the appellant comes out to be Rs.82,834/-. 8 Admittedly, the appellant was 18 years old and was studying in the 12th class, when the accident occurred. According to the appellant, he had lost one year of study due to the said accident. Although, the agony and the frustration can be well imagined, still, the learned Tribunal has granted a compensation of Rs.25,000/- for both pecuniary and non-pecuniary loss suffered by the appellant. The learned Tribunal has not even bothered to grant separate compensations for distinct categories of “pecuniary” and “non- pecuniary” loss. Such an approach of the learned Tribunal is rather surprising. Considering the fact that the appellant was 18 years and he lost one academic year, he deserves to be granted a compensation of Rs.10,000/- under the category of “pain, suffering and frustration” suffered by him during the treatment and as would be suffered by him in the future. Hence, the award dated 24.02.2006 stands modified as under: Rs. (i) Loss suffered due to 82,834/- the said accident. (ii)Compensation under the 10,000/- category of pain suffering Rs.92,834/- and frustration. 9 However, the rest of the award is hereby confirmed. The Insurance Company, respondent No.3, is directed to pay the enhanced amount, after deducting the amount already paid to the appellant, along with @ 6% interest from the date of filing of the claim petition i.e. 14.03.2005 till the date of realization. The learned Tribunal is directed to ensure that the enhanced amount of compensation is paid to the appellant within a period of two months from the date of receipt of the certified copy of this judgment. (R.S.CHAUHAN)J. Manoj solanki/-