IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.762 of 2009 1. Gubar Bind @ Sheo Pujan Bind, son of Late Hari Narain Bind, resident of Village- Adamapur, P.O.- Karwandia, P.S. Sasaram (M), District- Rohtas. ………… Claimant-Appellant. Versus 1. The Branch Manager, the New India Assurance Company Limited, Ganesh Market, G.T. Road, Sasaram, District- Rohtas. 2. Sri Bindeshwari Singh, son of Late Ranjan Singh, resident of Village- Darigaon, P.O. & P.S. Darigaon, District- Rohtas. ….Opposite Parties-Respondents. ----------- 6. 23. 03. 2011. Heard. 2. This miscellaneous appeal is directed against the judgment and award 24th July, 2009, passed by the Additional District Judge Vth-cum- Motor Vehicle Accident Claim Tribunal, Rohtas at Sasaram in Motor Vehicle Claim Case No. 53 of 2008, by which the compensation to the tune of Rs. 2, 16, 000/- and general damage of Rs. 20,000/- total Rs. 2, 36, 000/- with interest 6% has been granted from the date of filing of the petition for compensation till the date of its realisation. 3. The case of the claimant that he had met with an accident due to rash and negligent driving by the driver of the vehicle Maxi-407 bearing Registration No. 24P/0278 by which his right arm was amputated causing 2 80% permanent disablement. The claimant has made claim Rs. 3,000/- as the monthly income by way of the business as vegetable seller. 4. The Insurance Company contested the claim. It was held by the Tribunal that claimant met with an accident by the vehicle in question causing grievous injury causing 80% permanent disability and was granted compensation Rs. 2,36,000/- mainly by computing notional income of Rs. 15,000/- per month as well as medical allowance to the tune of Rs. 15,000/- and Rs. 5,000/- as pain and suffering due to grievous injuries. 5. Being aggrieved with the order of the Tribunal the claimant has preferred this appeal. 6. Learned counsel for the appellant has however, challenged the order on the ground that compensation for the loss of permanent disablement computed on the basis of notional income whereas claimant has claimed to be engaged in the business of selling and purchase of the vegetables and has also adduced evidence regarding his income, but the Tribunal has brush aside the evidence on income on the ground that claimant could not produce any document about his 3 earning. It has further been contended that, though, medical expenses to the tune of Rs. 20,000/- as shown by evidence expended, but claims to the tune of only Rs. 15,000/- has been granted for the medical expenses. It has further been contended due to amputation of his right arm he has been totally invalid and hence full compensation is required to be paid. 7. Learned counsel for the Insurance Company however, opposed the contention of the claimant and contends that regarding income of the claimant, the complainant has not been filed any documents and Tribunal has rightly passed the order and further contends that maximum Rs. 15,000/- as medical expenses is payable under Schedule II of the Motor Vehicle Act. 8. Having regard to the facts the question for consideration whether compensation granted by the Tribunal is just and reasonable. 9. However, the first point raised is that compensation about earning has been assessed on the notional income whereas there is pleading and evidence that claimant was earning by business of selling and purchase of vegetable. There is claim and evidence that he 4 was earning Rs. 3,000/- as monthly income. However, having regard to the fact that there is no documentary evidence regarding income of the appellant has been produced. Hence the Tribunal computed his income as per Schedule II of the Motor Vehicle Act provides Rs. 15,000/- as notional income. However, the computation of notional income is for a person who is not earning and not with regard to a person who is earning and was not disable and hence the computation of compensation on the notional income by Tribunal to the tune of Rs. 15,000/- per annum is not sustainable in view of the pleading and evidence of the claimant merely because the claimant has not shown any document as to how much money was being earned by the claimant from the said business or no certificate of his income has been filed by the claimant to show that how much he was earning per month or in the year. Hence, the computation of the income on the basis of notional income is set aside. 10. However even on the date of accident the claimant's age has to be taken as 30 years and there is no evidence of his disability prior to the occurrence, hence even computing the income on the basis of the minimum 5 wages on the date of occurrence in 2007-08 as Rs. 90/- per day, then computed monthly income to the tune of Rs. 2700/- per month. Hence, if this income has taken into consideration then his income according to his age as 30 years with multiply by 18, his income comes about Rs. 4,66,560/- and hence the claimant is entitled for Rs. 4,66,560/- in addition Rs. 15,000/- has already been granted as medical allowance which will be added of this amount and pain and suffering of Rs. 5,000/- has also been added to this amount. 11. However with regard to compensation on medical head concerned the expenses shown to be Rs. 20,000/- but only Rs. 15,000/- has been granted as compensation. However having regard to the Schedule II of Motor Vehicle Act the compensation of Rs. 15,000/- only admissible hence, I do not find proper to interfere with compensation on that head. 12. However the third point raised that full compensation be provided. However, the disability is only 80% only one hand is amputated so the appellant can not be said to be total disabled and hence there is no merit in the submission. 6 13. Hence taking into consideration the entire facts and circumstances as discussed above the total compensation as assessed comes to the tune of Rs. 4,86,560/- and hence the appellant is entitle to Rs.4,86,560/- with interest at the rate of 6% per annum from the date of filing of the petition before Tribunal till the date of realisation. 14. However, amount has already been paid as interim compensation shall be deducted. 15. Having regard to the fact that this case is not of death, but only disablement and right arm has been amputated and Court is not persuaded and this only taking into consideration. 16. Hence, the miscellaneous appeal is allowed in part. m.p. ( Gopal Prasad, J.)