Case: Sanjay Kumar Vs. Ashok Kumar

3. The brief facts of the case are given hereunder:The appellant, Sanjay Kumar received injuries in a roadside accident on 28.09.2005 due to the rash and negligent driving of the Truckthe offending vehicle. The appellant remained under treatment from 26.10.2005 to 10.12.2005 and due to injuries sustained, his right leg above the knee had to be amputated. As per Entry 18 in Part II of Schedule I of theCompensation Act, 1923, the loss of earning capacity was assessed at 70% due to the permanent disability suffered by the appellant on account ofamputation of his right leg above the knee. The appellant was employed as an embroidery worker and claimed compensation of [pic]15 lakhs from the respondents. Respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. The appellant examined two witnesses in support of his claim and documents were taken on record as evidence.Sushil Kumar, the record clerk who filed treatment record and MLC as/B respectively, and,Sanjay Kumar, the appellant himself, and he filed his treatment record and bills as9, his permanent disability certificateand concession certificate Ex.The respondents did not lead any evidence.4. The Tribunal held that the accident took place due to the rash and negligent driving of the offending vehicle as a result of which the appellant sustained injuries and awarded pecuniary as well asdamages. The compensation was calculated by assigning minimum wages at [pic]3166/per month, of which loss of earning capacity was calculated at 70% which comes to [pic]2216/per month, i.e. [pic]26,592/per annum. Multiplier of 16 was taken. A lump sum compensation of [pic]8000/was given to the appellant under the head of ‘medicalHence, the total pecuniary compensation given wasA sum of [pic]50,000/was given asdamages on account of mental pain and agony and loss of future enjoyment of life suffered by him. Thus, a total compensation of [pic]4,83,472/was awarded to the appellant with interest @ 7% per annum from the date of filing of the petition till the date of realization. Both the respondents were held to be jointly and severally liable to pay the compensation but respondent No.2 being the insurer was held to have the primary obligation to pay compensation on behalf of the insured and was directed to deposit the award amount within one month from the date of the order.5. Aggrieved by the order of the Tribunal, the appellant filed an appeal in the High Court asking for enhancement of the compensation on the ground that the Tribunal ought to have awarded enhanced compensation on the basis of evidence adduced. The contentions of the appellant will be taken up in detail at a later stage. The High Court enhanced the compensation to [pic]6,35,808/by awarding [pic]5,42,808/under the head ‘loss of future earningby taking a multiplier of 18. Further, [pic]25,000/as conveyance charges and [pic]10,000/as Attendant charges were also awarded. The compensation of [pic] 50,000/awarded under the head ‘Mental pain andfor medical bills as awarded by the Tribunal was maintained as it is. Therefore, the High Court awarded a sum of [pic]1,52,336/over and above the compensation awarded by the Tribunal at the same rate of interest i.e. 7% per annum and the respondent No.2 was directed to pay this enhanced amount with interest in favour of the appellant within four weeks from the date of receipt of copy of the order.6. Not satisfied with the compensation awarded by the High Court, the appellant has appealed to this Court, urging various legal contentions in support of further enhancement of the compensation.

Reasoning: In our considered view, the appellant is entitled to be awarded compensation based on the wages for a skilled worker, as he is an embroiderer and the same cannot be considered as an unskilled work. The minimum wages in Delhi for a skilled worker as on 01.08.2005 was [pic]3589.90/per month. The appellant has claimed that he was earning [pic]4,500/per month from his work as an embroiderer. We will accept his claim as it is not practical to expect a worker in the unorganized sector to provide documentary evidence of his monthly income as per decision of this Court in the case of Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] , wherein it was held asIn the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs. 4500/per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs. 3000/only on the assumption that the wages of a labourer during the relevant period viz. in the year 2004, was Rs. 100/per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs 3000/per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.15. In the present case, the appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs. 100/to Rs 150/per day or Rs. 4500/per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs. 4500/to Rs. 3000/per month. We, therefore, accept his statement that his monthly earning was Rs.in the present case, a monthly income of [pic]4,500/as claimed by the appellant for his work as an embroiderer is reflective of ground realities and is not exorbitant by any standard and in the interest of justice, we should accept his claim. Further, he was also noton the aspect of the nature of his work as an embroiderer and both the Tribunal and the High Court have erred in holding that thework was of an unskilledthe point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead clubbed it under ‘loss of future enjoyment ofand ‘pain andWe thereby award [pic]75,000/towards loss of marriage prospects. Further, as per the case of Govind Yadav v. New India Insurance Co. Ltd. [(2011) 10 SCC 683] , wherein the appellant suffered amputation of the leg, this Court awarded a sum of [pic]1,50,000/towards ‘pain andcaused due to amputation of the leg. Therefore, towards ‘mental agony and pain andwe award a sum of [pic]1,50,000/as the appellant has suffered tremendously due to the accident in terms of the pain and suffering involved in the amputation. Loss of a limb causes a profusion of distress and the appellant has to deal with the same for the rest of his life. We feel it is justified to award the aforesaid amount under this head as he might have to deal with discrimination and stigma in society due to the fact that he is an amputee.13. Further, it is necessary to award an amount under the head of ‘loss ofalso as the appellant will definitely deal with loss of future amenities as he has lost a leg due to the accident. The injury has permanently disabled the appellant, thereby reducing his enjoyment of life and the full pursuit of all the activities he engaged in prior to the accident. We thereby award a sum of [pic]1,00,000/towards ‘loss ofAlong with the compensation under conventional heads, the appellant is also entitled to costs of litigation as per the legal principle laid down in the case of Dr. Balram Prasad v. Dr. Kunal Saha & Ors. [(2013) 13 SCALE 1] Therefore, under this head, we find it just and proper to award [pic]25,000/towards costs of litigation.14. Thus, the total compensation, the appellant is entitled to is given hereunder:Head of compensationAmountLoss of income:Loss of earning capacity and future prospects of income +Loss of earnings during period of treatmentRs.10,20,600/l expenses, attendant and conveyance costs and future medicaltal agony, pain andst of. Further, as per the case of Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] , we find it just and proper to increase the interest awarded from 7% to 9% per annum. Hence, the total compensation the appellant is entitled to is [pic]14,59,100/along with 9% interest per annum from the date of the accident till the date of realization.