FAO NO. 6324 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 6324 of 2010 Date of decision: 29 .11.2011 Sukhdev Singh @ Sukhwinder Singh Appellant v Suresh Kumar @ Bali and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. R.K. Shukla, Advocate for the appellant None for respondent No.1 Mr. Ajay Gulati, DAG, Haryana for respondent No.2 Mr. Subash Goyal, Advocate for the respondent No.3 ....... JITENDRA CHAUHAN J. The present appeal is preferred by the claimant-appellant for the enhancement of the compensation by way of modification of the Award dated 14.10.2009 passed by the Motor Accident Claims Tribunal, Patiala ( for short the Tribunal ). The brief facts of the case are that the claimant-injured Sukhdev Singh approached the Ld. Tribunal under section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as the “Act”) for compensation on account of the injuries sustained in the motor vehicular accident involving Bus No. HR-69-5012, insured by respondent No.3. The accident took place on 21.10.1996. Respondent No. 1 denied all the averments made in the petition, whereas respondent No.2, Haryana Roadways, in its written statement raised preliminary objection inter-alia that the driver, Suresh FAO NO. 6324 of 2010 2 Kumar was holding a valid driving licence at the time of alleged accident and the bus was insured with respondent No.3. It was further submitted that the amount of compensation, if any, found payable by the answering respondent, is to be paid by respondent No.3. Respondent No.3, the Insurance Company contested the claim petition by filing a separate written statement and stated that the claim petition is baseless, frivolous and an abuse of the process of law. Suresh Kumar, the driver of the bus was not having an effective and valid driving licence at the time of accident. It was further averred that the bus in question was falsely implicated and the claimant is not entitled to any compensation. However, it was admitted that the bus was insured with it (respondent No.3) in the name of respondent No.2. From the pleadings of the parties, the Ld. Tribunal framed the following issues:- 1. Whether claimant received injuries as a result of use of Bus No. HR-69-5012 on 20.10.2006 ? OPC 2. Whether claimant is entitled to compensation, if so, how much and from whom ?OPC 3. Relief” The Ld. Tribunal awarded compensation of Rs. 1 ,00,459/- to the injured-claimant and held that as the vehicle was insured, the same shall be satisfied by respondent No. 3, the Insurance Company. It was further held that claimant shall be entitled to interest @ 8% p.a on the amount of compensation from the date of the petition till the date of realization. Learned counsel for the appellant refers to the disability certificate Ex. PW3/2 and contends that the appellant suffered permanent FAO NO. 6324 of 2010 3 disability to the extent of 25%. He refers to the statement of PW3, Dr. Arvind Malhotra, Government Medical College & Hospital, Sector 32, Chandigarh, who proved the discharge certificate Ex. PW3/A, and the medical file Ex. PW3/3 of the injured. He further submits that in view of the disability certificate, the appellant is entitled to compensation as per Clause 5 (b) of the Act by taking into consideration the age and notional income of the appellant. Learned counsel submits that it is not disputed that the age of the appellant was 35 years at the time of accident. Therefore, the Ld. Tribunal ought to have applied the multiplier of 17, as per schedule (a) to Section 163 of the Act. He further contends that just and adequate compensation has not been paid towards pain and sufferings, loss of comforts and loss of future income. Lastly, he argued that no amount has been paid to the appellant for the period he remained bedridden and totally immobile. On the other hand, learned counsel for respondent No.3 has submitted that the claim petition has been filed under section 163-A of the Act. The compensation was awarded as per Second Schedule of the Act. He refers to clauses 4 & 5 of the Schedule of the Act for the purpose of determining the amount of compensation. I have heard the learned counsel for the parties and perused the record with their able assistance. Clauses 4 & 5 of the Schedule of the Act are reproduced below:- “4. General Damages in case of injuries and disabilities:- (i)Pain and sufferings: (a) Grievous injuries Rs. 5000/- FAO NO. 6324 of 2010 4 (b) Non-grievous injuries Rs. 1000/- (ii)Medical expenses—actual expenses incurred supported by bills/ vouchers but not exceeding as one time payment Rs. 15000/- 5. Disability in non-fatal accidents:- The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:- Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. Plus either of the following:- (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act,1923”. The relevant part of the Disability Certificate dated 8.3.2007 reads as follows:- “This is to certify that Sukhdev Singh s/o Sh.Ajmer Singh, 35 years male, C.R.No. 061006168 resident FAO NO. 6324 of 2010 5 of Village Khallor, Tehsil Rajpura, District Patiala (Punjab) has been diagnosed as a case of Post Head Injury, (R) weakness. He is permanent physical disabled by 25% (Twenty five percent only) with respect to body, as evaluated according to the manual for Neurological Surgeons in evaluating permanent physical impairment disability (complied at ALIMCO/AIIMS/RCTI (Rehabilitation Council of India) Manual.” There is no dispute that on the date of accident, appellant was 35 years of age and as per disability certificate, he suffered permanent physical disability to the extent of 25%. According to the statement of PW3, Dr. Arvind Malhotra, the whole body of the patient was not disabled and only the grip of the right hand was weakened permanently. As per Schedule II of the Workmen's Compensation Act, 1923, the loss of right hand thumb comes under 30% permanent physical disability. As per the claim petition, the appellant used to earn his living by doing labour work. On account of the injuries, the grip of right hand was permanently weakened. For a labourer, the loss of grip, particularly, of the right hand is of vital nature. The injury on the right hand thumb certainly would adversely affect the working capacity and the future income of the claimant. The disablement is not disputed. Keeping in view the age of the appellant; the injury suffered and the nature of job performed by him, this Court is inclined to grant the appellant multiplier of 17. The loss is to the extent of 25% permanent physical disability. The enhanced amount is payable as under:- Income Rs. 3300/- p.m. FAO NO. 6324 of 2010 6 Loss: 25% ( 25% of Rs. 3300 = Rs. 825/-) Payable amount : Rs. 825 x 12 x 17 = Rs. 1,68,300/- The enhanced amount shall be paid within three weeks from the date of receipt of certified copy of this judgment. In case, the amount is not paid within the stipulated period, the appellant shall be entitled to interest @ 8% p.a from the date of filing the petition till the date of its realization. The appeal is modified to the extent indicated above. (JITENDRA CHAUHAN) JUDGE 29.11.2011 MS