1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Misc. Appeal No. 1259/2008 {Sharwan Nath Versus Shri Lalaram & Others} Date of Order :: 24th November, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Gajendra Vyas for the appellant Mr. Virendra Agarwal for the respondents BY THE COURT: Heard learned counsel for the parties on the application under Section 5 of the Limitation Act for condonation of delay as well as on merits of the appeal also. 2. After considering the submissions of learned counsel for both the parties, the delay of two days in filing the appeal is condoned. The application under Section 5 of the Limitation Act stands allowed. 3. Admit. Mr. Virendra Agarwal appears for contesting respondents. With the consent of learned counsel for both the parties, the appeal was heard finally and is being disposed of. 4. The injured-appellant has preferred this appeal for enhancement of the amount of compensation in respect of injuries sustained 2 by him in motor accident took place on 2nd January, 2004 and being aggrieved with the impugned award dated 28th November, 2007 passed by Motor Accident Claims Tribunal, Kishangarh whereby the learned Tribunal has awarded total compensation of Rs. 1,36,140/- with interest @ 9% per annum from the date of filing of the claim application i.e. 29th March, 2004 till the date of payment in his favour as under:- Rs. 56,645/- For loss of salary for 174 days Rs. 15,000/- For attendant & nutritious food etc. for 18 days when he remained admitted in hospital Rs. 20,000/- For physical pain and mental agony Rs. 5000/- For transportation charges Rs. 21,395/- For medicines Rs. 8100/- For damages in motor cycle 5. The only submission of learned counsel for the appellant is that the Tribunal committed an illegality in not awarding any amount on account of 25% permanent disability sustained by the appellant. He contended that the amount of compensation under this head should have been calculated on the basis of income of the injured appellant, therefore, the 3 amount of award be modified and the amount of compensation may be enhanced accordingly. 6. Mr. Virendra Agarwal, the learned counsel submits that the respondent no.3 – United India Insurance Company has wrongly been impleaded as a party in the appeal as the vehicle in question was insured with National Insurance Company, which was impleaded as non- claimant no.3 before the Tribunal, which is clear from the impugned award dated 28th November, 2007 itself. This fact has been admitted by the learned counsel for the appellant during the course of argument also and he submits that he wrongly impleaded United India Insurance Company Limited as party- respondent no.3 in the present case. 7. The learned counsel for the appellant made a prayer that he may be allowed to correct the name of respondent no.3-Insurance Company. The prayer was allowed and he was allowed to correct the name of Insurance Company- respondent no.3 from United India Insurance Company to National Insurance Company in the court itself. 8. I have considered the submissions of learned counsel for the parties and examined the impugned award passed by the Tribunal. The 4 learned counsel for the appellant has argued only one point about non awarding of amount under the head of permanent disability. So far as the compensation of award under different heads, as mentioned above, are concerned, the same have not been disputed or challenged by him. It is correct that the learned Tribunal has not awarded any specific compensation in the name of 25% permanent disability. However, while considering the issue no.3, the learned Tribunal has considered this aspect of the case and has observed that appellant was in Government Service as Patwari and even after this accident and recovery thereof, after his proper treatment, is serving the State Government as Patwari and is getting full salary and has not suffered any loss of income because of permanent disability. His capacity to work has not been reduced and no deduction thereafter has been made in his salary. A specific query was also raised to the learned counsel for the appellant as to whether his salary or increment or promotion has been withheld or deferred because of this permanent disability. He frankly admitted that no loss has occurred on this account. So far as 174 days, during which the appellant remained under 5 treatment after taking leave is concerned, although the said leave has been sanctioned, but still the learned Tribunal has awarded a sum of Rs. 56,645/- as compensation for this period. The appellant sustained four injuries as per injury report-Ex. 10, out of which three injuries were found to be grievous as per X-ray report Ex.-11 and one injury was described as simple in nature. The learned Tribunal has awarded compensation under each and every relevant head as mentioned above and after considering the submissions of learned counsel for the appellant in the light of reasons assigned by the Tribunal, I find that necessary compensation which was required to be awarded in the present case has been awarded. The Tribunal is required to pass an award under Section 168 of the Motor Vehicles Act, 1988, which appears to be just, fair and reasonable. 9. The Hon'ble Supreme Court in Divisional Controller, KSRTC Versus Mahadeva Shetty and Another {(2003) 7 Supreme Court Cases 197} has observed that every method or mode adopted for assessing the compensation has to be considered in the background of “just” compensation which is the pivotal consideration. 6 10. The Tribunal has awarded the just compensation in respect of permanent disability sustained by the appellant, therefore, I do not find any force in the contention of the learned counsel for the appellant. 11. In view of above discussion, I do not find any merit in this appeal and the same is, accordingly, dismissed in limine. (NARENDRA KUMAR JAIN),J. DK