1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Miscellaneous Appeal No.191 of 2000. Babu Lal son of Shri Ganpat Lal VERSUS Amin Khan @ Jan Mohammad son of Shri Gulab Khan and Others Date of Order :::: 12/11/2009 Hon'ble Mr. Justice Dalip Singh Mr. Vinay Mathur Counsel for the Claimant-appellant Mr. P.K. Kasliwal and Mr. C.M. Sharma, Counsel for the Respondents *** By the Court : Heard learned counsel for the parties and perused the record as well as the award of the learned Tribunal. This miscellaneous appeal has been filed by the claimant for enhancement of the compensation awarded on account of the injuries suffered by claimant- Babu Lal in a road accident, which occurred on 05.08.1991. Babu Lal received injuries, which has resulted in total permanent disability. Inasmuch as he is totally bed-ridden and paralysed on account of the injuries, including the fracture of the neck and the back- 2 bone and the learned Tribunal has also come to the aforesaid findings with regard to the total permanent disability. Learned counsel for the parties admitted the fact that the injured Babu Lal was brought on “Charpoi” to depose before the learned Tribunal as a witness in the claim petition. The age of claimant – Babu Lal at the time of accident was 25-years. As per the finding of the learned Tribunal, while deciding Issue No.3. It is also come on record that he was married and his wife at the time of accident was 20-years of age. He also had a minor child Kumari Sarla. The learned Tribunal has awarded in all a sum of Rs.7,60,000/- as compensation to the appellant – Babu Lal in the claim petition. Learned counsel for the claimant-appellant submitted that the compensation, as awarded by the learned Tribunal in the head of loss of earning is wholly inadequate. Claimant - Babu Lal at the time of the accident possessed educational qualification of Post Graduate and was also at the relevant time earning from giving tuitions to students as well as sitting at the shop of his family business. As per the learned counsel for the appellant , the income of the claimant – Babu Lal injured at the time of accident was Rs.2500/-. He submits that the learned Tribunal has erred in holding arbitrarily that the income of the injured at the time of accident was only Rs.20,000/- per annum. He 3 submits that the aforesaid amount would be even less then the minimum wages. Learned counsel for the claimant-appellant submitted that there was cogent evidence on record in the form of account books etc., which were produced by the claimant to support the case of the appellant that the income by the appellant at the time of accident was about 3000/- per month. Learned counsel for the respondents, in reply submitted that so far as the compensation on account of loss of earnings is concerned, the learned Tribunal has rightly awarded a sum of Rs.3,60,000/- under the aforesaid head. He submits that the income figure of Rs.20,000/- per annum has rightly been taken and it cannot be said to be on the lower side. I have given my thoughtful consideration to the rival submissions. So far as the income of the injured – Babu Lal is concerned, it has come on record that he was a well educated and having a post graduate qualification. It has also been brought on record by way of evidence that he was engaged in giving tuitions and that he also used to sit on the family shop and running the family business. In the facts and circumstances of the case, the fact cannot be denied that the claimant – Babu Lal at the time of accident with his educational background and qualification had 4 ample scope of making a successful career. At the time of the accident as per the averments made in the claim petition his income was given as Rs.2500/- per month. Even, if criteria of minimum wages of Rs.60-70/- per day were to be adopted, it would be safe to hold that his income at the time of accident was Rs.2000/- per month if not Rs.2500/-. In that view of the matter, the criteria adopted by the learned Tribunal by holding the annual income of Rs.20,000/-, looking to the facts and circumstances of the present case and the material on record cannot be justified. Taking a very conservative approach, I would hold that the annual income of the appellant – Babu Lal was Rs.24,000/-. The multiplier with regard to the age of 25-years would be 18 as per the 2nd Schedule and in that view of the matter the amount of compensation under the head of loss of income would be Rs.4,32,000/-. As against Rs.3,60,000/- determined by the learned Tribunal. Learned counsel for the claimant-appellant submitted that the appellant – Babu Lal is still undergoing treatment and requires an attendant permanently, as he has no sensation below the chest. He submits that on account of the fact that he has been lying in the bed since 1991, he has developed bed sores etc., which requires an attendant and requires help to pass urine and stool every time. 5 Learned counsel for the claimant-appellant submitted that this Court in the case of Kunal Gaurav Saxena (Minor) Vs. Shri Anil Kumar & Ors, reported in 2006 R.A.R. (Raj.) Page 43 in identical circumstances, where on account of an accident, which occurred on 12.09.1990 a boy aged about 11-years was injured and was crushed under the tyre of the truck below the middle part of the body, resulting in “complete paralysis of the lower part of his body”. While deciding the said appeal, this Court taking note of these facts and circumstances in Para 10 of the said judgment awarded a sum of Rs.2,00,000/-, as an ad-hoc enhancement for the loss of earning and future prospects. Learned counsel submitted that the amount of Rs.1,00,000/- was awarded, as damages for loss of marital life and other heads, which had not been awarded in the facts and circumstances of the present case to the wife of the appellant – Babu Lal, which was also claimed in this petition by Smt. Kamlesh wife of Shri Babu Lal. I have given my thoughtful consideration to the aforesaid submissions and have also gone through the judgment of this Court in the case of Kunal Gaurav Saxena (minor) Vs. Shri Anil Kumar & Ors. (supra). Para 10 of the aforesaid judgment, reads as follows : 6 “Thus looking to the over all facts and circumstances of the case, it is considered just and proper to make the following enhancement in the award of the Tribunal. For future medical care and expenses, a further sum of Rs.2 lacs deserves to be paid to the claimant. A sum of Rs.1 lac towards the special damages for the different heads given above viz. For loss of marital life and disappointment, hardship etc. and an ad hoc enhancement ofRs.2 lac for the loss of earning taking into account future prospects of the injured, is made. Thus, the total enhancement of Rs.5 lacs deserves to be awarded in favour of the claimant”. Thus looking to the over all facts and circumstances of the present case and following Kumar Gaurav Saxena's judgment and taking an over all view regarding the condition of Babu Lal, which is proved on record that he is completely paralyzed and is bed-ridden, he had a good educational background with a Post Graduation degree and was of young age of 25-years with a wife aged about 20-years, his entire life career has come to a grinding halt. The amount, which was awarded by the learned Tribunal under the various heads in the present context looking to the steep rise in prices and the costs of living and medical treatment, which the appellant requires constantly, I am inclined to allow this appeal by granting an ad- hoc enhancement, as in the case of Kunal Gaurav Saxena (minor) Vs. Shri Anil Kumar Ors. (supra) of Rs.2,00,000/- with 7 an additional amount of Rs.1,00,000/- towards loss of marital life to the claimant, in addition to the amount of Rs.72,000/-, which has been enhanced under the head of loss of earning, as decided above. The claimant-appellant would be entitled to receive an amount of Rs.3,72,000/- with interest @ 6% per annum with effect from the date of filing of the present appeal i.e. 08.02.2000 till the date of its realization in addition to the amount already awarded by the learned Tribunal. This amount shall be paid by means of a demand draft drawn in favour of the claimant and deposited with the learned Tribunal. Consequently, the appeal stands allowed, as aforesaid. There shall be no order as to costs. (Dalip Singh), J. ashok/