Shyam Sunder Arora vs Diwan Chand And Ors.
2008 Latest Caselaw 597 Del

JUDGMENT

Kailash Gambhir, J.

1. By way of this appeal the appellant seeks to challenge the impugned Award dated 11.8.2006, so as to seek enhancement in the compensation amount of Rs. 3,19,307.51 as has been awarded by the MACT mainly on two grounds. First ground by the counsel for the appellant is that the Tribunal has wrongly applied the multiplier of 13 although, as per the Second Schedule the laid down multiplier for the age of the appellant is 15. The appellant in the present case has claimed multiplier of 16 i.e. more than the multiplier factor laid down in the Second Schedule of the Motor Vehicles Act due to the serious injuries sustained by the appellant in the accident, which led to the permanent disability of the appellant to the extent of 30% of the whole body as per the disability certificate duly proved by the appellant on record.

2. The second contention raised by the counsel for the appellant is that the Tribunal has wrongly ignored the income of the deceased although the same was duly proved by the appellant. Not only this, the income of an unskilled workman under the Minimum Wages Act has been applied ignoring the evidence placed on record by the appellant.

3. Before adverting to deal with the contentions raised by the respective parties, it would be appropriate to refer to the facts of the case in brief as under:

The appellant, Shri Shyam Sunder, aged 46 years at the time of accident, boarded the bus bearing registration No. DL-1PB 0684 on 28.12.2004 from Sarai Rohilla and he alighted from the bus outside Azadpur Bus Terminal. The respondent driver of the bus was driving the bus in a most rash and negligent manner and turned the bus towards left side for going inside the bus terminal, which resulted in crushing the right foot of the appellant and causing injuries to him on various parts of his body. He was taken to Hindu Rao hospital from the site of accident. He remained there from 28.12.2004 to 29.12.2004, where X-ray of the right foot was taken which showed dislocation of metatarso-phylaneal joint and two K wires were inserted into the big toe and the fourth toe. Later, he was shifted to Batra hospital and then to Kalyani hospital. A claim petiton was filed before Motor Accident Claims Tribunal on 21.5.2005 and Award was passed on 11.8.2006. Aggrieved with the said Award, present appeal is filed by the appellant claimant.

4. I have heard learned Counsel for the parties and have perused the record. The appellant was 46 years of age at the time of the occurrence of the accident and as per the Second Schedule of M.V. Act the applicable multiplier is 13 and the Tribunal has also applied the multiplier of 13. But the appellant claims application of multiplier of 16. Although it is no doubt true that the Schedule II of the Motor Vehicles Act is to be adopted as a guide and the same cannot be said to be applied as a ready reckoner. In some cases, the Apex Court has deviated from the Second Schedule of the Motor Vehicles Act, but at the same time the Apex Court has also held that normally there should not be any deviation from the Second Schedule unless there are sufficient reasons for such deviation from the structural formula given in the Act. In relation to the Second Schedule, the Hon'ble Apex Court has observed in Abati Bezbaruah v. Dy. Director General, Geological Survey of India as under:

11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.

5. In any case, the amount of compensation as awarded by the Tribunal under Section 166 of the Motor Vehicles Act has to be just, fair, reasonable and equitable. In this regard the Hon'ble Apex court has in Divisional Controller, KSRTC v. Mahadeva Shetty observed as under:

15. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be "just". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. - The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrariness. If it is not so, it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC 8.)

6. In the facts and circumstances of the present case the Tribunal has rightly applied the multiplier of 13 while following and not deviating from the structural formula of the Second Schedule of the Motor Vehicles Act. The age of the appellant at the relevant time of the accident was 46 years and relying upon the Second Schedule of the Motor Vehicles Act the appropriate multiplier is 13, therefore, the same has been applied by the Tribunal and, therefore, the impugned Award need no interference as regards the aspect of multiplier is concerned.

7. Let me now examine the second contention of the Appellant that the Tribunal has not considered the unrebutted testimony of the appellant whereby he had stated his income between Rs. 8,000/- to Rs. 10,000/- per month. Perusal of the impugned Award shows that the Tribunal has not believed the said testimony of the appellant on the ground that no income proof was placed by the appellant on record nor any proof was furnished regarding the educational qualification of the appellant. Although witness was not cross-examined on the income aspect as nil opportunity was granted to the respondent, but still it was incumbent upon the appellant to have placed sufficient documentary evidence to prove and substantiate his income A bald statement without any supporting material may not be sufficient to prove one's income. In this regard, the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (2007) 5 SCC 428 has given following observations:

It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer company" Is there anything in the Motor Vehicles Act which stands in the way of the Tribunal asking for the best evidence, acceptable evidence" We think not. Here again, the position that the Motor Vehicles Act vis--vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the income that was being derived by the deceased from his employment.

8. In any event of the matter in the present case, the Tribunal has taken into consideration the wages of unskilled workman although in the said unrebutted testimony of the appellant he claimed himself to be an electronic mechanic. In such circumstances at least the wages of skilled workman as prevailing on the date of the accident can be taken into consideration. Accordingly, the impugned Award is modified to that extent of taking the wages of the skilled workman into consideration which were prevalent on the date of the accident at Rs. 3318.90 rounded of to Rs. 3319/-. However, perusal of the record shows that no evidence was brought on record to claim the grant of future prospects. The perusal of the minimum wages notified under the Minimum Wages Act shows that to neutralize increase inflation and cost of living, minimum wages gets virtually more than double after every 10 years. For instance, minimum wages of skilled labourers as on 01.01.1980 were Rs. 320/- per month and same rose to Rs. 1,083/- per month in the year 1990. Meaning thereby, from year 1980 to year 1990, there has been an increase of nearly 238% in the minimum wages. Thus it could be safely assumed that income of the deceased would have become doubled in the next 10 years. Therefore, taking Rs. 3319/- per month as the income of the deceased and doubling the same to Rs. 6638/- and then taking mean of them, the monthly income of the deceased along with the increase in the minimum wages would come to Rs. 4978.5, which may be rounded of to Rs. 4979/-. Annual income of the same would come out to Rs. 59748/- and after applying multiplier of 13 and considering 30% permanent disability, the loss of income would come out to Rs. 233017/-. The tribunal has already awarded a sum of Rs. 183826.50 towards medical expenses, pain and suffering, conveyance and special diet and thus the total compensation payable to the appellant would now come to Rs. 416844/-. Therefore, the compensation is enhanced from Rs. 3,19,307.51 to Rs. 4,16,844/-.

9. On the basis of the above discussion, the appellant is entitled to the difference of Rs. 97356.69/- from the respondent @ 7.5% p.a. from the date of institution till date of realisation.

10. With these directions the present appeal is disposed of.