1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T Radhey Shyam vs. Mahaveer Prasad & Ors. S.B.Civil Misc. Appeal No.918/2005 under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 25th January, 2005, passed by Motor Accident Claims Tribunal, Sawai Madhopur in Claim Petition No.108/2001. Date of Judgment ::::::: April 24,2008 Present HON'BLE MR. JUSTICE GUMAN SINGH Mr. Narendra Singh Hada on behalf of Mr. C.L. Saini for appellant Mr. Pritam Bijlani for respondent No.3. By the Court(oral) This appeal has been preferred on behalf of the injured appellant Radhey Shyam for enhancement of the compensation amount awarded by the learned Motor Accident Claims Tribunal, Sawai Madhopur (hereinafter referred to as `the Tribunal') by award dated 25.1.2005 whereby a compensation of Rs.1,00,000/- has been awarded to him. On dated March 11, 2001 the injured appellant was travelling in a truck bearing registration No. RJ-02/G- 0940 along with vegetables which were being carried in the truck. At about 10.30 in the night when the truck reached near Sheopur, the same turned turtle resulting to the injuries sustained by the injured appellant and other 2 persons travelling in the truck. The injured appellant sustained injuries and his left hand had to be amputed causing 100% disability. Learned counsel for the appellant has argued that the appellant used to grow vegetables in the river bed and used to earn his livelihood by selling vegetables. It is further submitted that he used to earn Rs.5,000/- per month by selling vegetables and the learned trial court has erred in awarding compensation on lower side without considering the various facts on account of pecuniary and non-pecuniary damages as delineated by their Lordships of the Supreme Court in the case of R.D.Hattangadi vs. Pest Control (India) Pvt. Ltd. & Ors. (1995 ACJ 366). Per contra, learned counsel for the insurance company has argued that the the injured has not produced any evidence for assessing his monthly income as Rs.5,000/- per month on account of selling the vegetables and as such his income should be assessed on the basis of the minimum wages to be paid to an unskilled labourer i.e. Rs.60/- per day. Learned counsel further argued that though 100% disability has been mentioned in the certificate issued by the Medical Board but for the purpose of assessing the loss of income the provisions contained in Workmens' Compensation Act, 1923 be invoked and as per Schedule-I, part IInd the loss of income should be assessed to be 70% of the earning capacity taking it to be amputation (20-32 cms.) from tip of acromin and not the loss of 90% of the earning capacity as provided for amputation through shoulder joint. Learned counsel for the respondent placed reliance on the judgment in the case of Sunil Kumar vs. Ram Singh Guard & Ors., reported in MACD 2008 (SC) 1 on the point 3 that while computing the amount of compensation one third of the amount of earning should be deducted as against the miscellaneous expenses of the injured. In view of the rival submissions it may be noted that the learned tribunal has failed to consider the pecuniary and non-pecuniary losses suffered by the claimant as observed by their Lordships of the Supreme Court in the case of R.D.Hattangadi (supra). In the case of R.D.Hattangadi (supra) their Lordships of the Supreme Court have observed as under:- “9. Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant; (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv)inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.” In view of the rival submissions and on perusal of the record of the case it is revealed that the claimant was engaged in growing of vegetables in the river bed but this work was not of permanent nature and as such it is 4 deemed proper that his earning should be assessed as provided for unskilled labour @ Rs.60/- per day. As the claimant-appellant was engaged in manual work and no such work is possible with one hand as such, the 100% disability found by the medical board should be taken into consideration and with the help of Schedule-I part-II of the Workmens' Compensation Act, 1923, 90% loss of earning is found in the given case for assessing the amount of compensation though the amputation is little lower to the shoulder joint. The claimant appellant being a person of working class his miscellaneous charges are not required to be deducted from the amount of earning to be computed in the facts and circumstances of the case. Accordingly, the compensation awarded to the claimant appellant deserves to be enhanced by computing the loss of earning as under:- 60 x 30 x 12 x 17 divided by 90% = Rs.3,30,480/-. Accordingly while maintaining the other terms of the award, the amount awarded is enhanced from Rs.1,00,000/- to Rs.3,30,480/- with annual interest @ 6% w.e.f. 14.3.2005, the date of filing of this appeal with the further condition that failure to make the payment of the amount so enhanced within three months from today, the claimant appellant shall be entitled to claim annual interest @ 9%. The award stands modified as above and the appeal stands disposed of accordingly. Guman Singh, J. bairwa