Madhya Pradesh High Court
Rajendra @ Sukha vs Union Of India on 9 February, 2024
1 M.A.No.205/2011
INTHE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
MISC. APPEAL No. 205 of 2011
BETWEEN:-
RAJENDRA @ SUKHA S/O HARJEET
SINGH JATAV, AGED ABOUT 18
YEARS, R/O GRAM DAURAR,
P.S.MOHANA DISTT. GWALIOR
(MADHYA PRADESH)
.....APPELLANT
(BY SMT. MEENA SINGHAL - ADVOCATE)
AND
UNION OF INDIA TH: HILERIVAJ
1.
COMMANDING OFFICER, 536
A.S.C. BATALLION AREA
GWALIOR (MADHYA PRADESH)
AMAR MORE TH: UNION OF
2.
INDIA TH: HILERIWAJ
COMMANDING OFFICER 536
A.S.C. BATALLION AREA GWALIR,
DISTT.GWALIOR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI NAKUL KHEDKAR - ADVOCATE FOR RESPONDENT NO.1)
-------------------------------------------------------------------------------------
Reserved on : 07.2.2024
Pronounced on : 09.2.2024
This Misc. Appeal having been heard and reserved for judgment,
coming on for pronouncement this day, the Court pronounced the
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 09-02-2024
03:44:49 PM
2 M.A.No.205/2011
following:
JUDGMENT
The appellant/claimant has filed this Misc. Appeal under Section
173 (1) of the Motor Vehicles Act (in short "the Act") assailing the award
passed by the learned 4th Additional Motor Accident Claims Tribunal to
the Court of 1st Additional Motor Accident Claims Tribunal, Gwalior, in
Claim Case No.115/2010 on 19.11.2020, whereby an award of
Rs.1,65,070/- along with 6% interest from the date of filing of the claim
petition i.e. 28.9.2009 has been passed.
2. Facts in brief giving rise to the claim case are that on 21.7.2019 the
appellant sitting in tractor trolley No.MP07-M-0226 was going from
Daurar to Mohna. The tractor trolley was diligently driven by its driver.
When the tractor trolley reached Barai Pura Tiraha, A.B.Road, Mohna, at
about 9 am, one Military Vehicle No.05D 163188W driven by respondent
No.2 rashly and negligently hit tractor trolley from backside. The
appellant due to the impact of collision along with one Gaji was thrown
from the tractor trolley to the road and sustained serious injuries on
various part of his body including right hand and leg. He along with Gaji
was taken to police Station, Mohana, from where the police sent them for
treatment to JA Hospital, Gwalior. A report of the incident was lodged
against respondent No.2 at police Station, Mohna, Distt. Gwalior, by
Ahsan Khan which was registered at Crime No.120/2009 under Sections
279, 337 of IPC and after due investigation, charge-sheet was filed.
2.1 The appellant has further stated that on the date of incident he was
a hail and hearty young man earning Rs.4,000/- from selling vegetables
which was livelihood for his family. Injuries sustained in the accident
have caused permanent disability to him. The owner and driver has been
arrayed as respondents No.1 and 2. For the disability caused by the
injuries sustained in the accident, claim of Rs.15,75,000/- was filed
against the respondents under Section 166 read with Section 140 of the
Act.
2.2 The respondents have denied the fact of accident being caused by
their vehicle No.05D 163188W and it has been further alleged that in
collusion with the police, respondent No.2 has been falsely implicated.
Neither any permanent disability has been caused to the appellant nor he
was earning Rs.4,000/- per month as alleged by him in the claim petition.
2.3 On the pleadings of the parties, four issues were framed and after
recording the evidence adduced by the parties, the impugned award
which is challenged in this appeal, was passed.
3. Learned counsel for the appellant submits that learned Claims
Tribunal ignoring the evidence available on record assessed the income of
the appellant as Rs.2,500/-. 40% disability was proved by the evidence of
the concerned doctor, but learned Claims Tribunal reduced it to 20%
without any basis. Without using multiplier and adding amount in the
head of future prospect, on mere guess work, award has been passed for
the amount of Rs.1,65,570/- which is on lower side. It is further submitted
that amount awarded for transportation & special diet and under the head
of pain & suffering is also on lower side. Therefore, the amount of award
may be raised by reassessing the evidence on record regarding income of
the deceased and other relevant factors in the light of the evidence and
prevailing legal provisions.
4. Per contra, learned counsel for respondent No.1 has stated that
appeal has been valued at Rs.3,00,000/- only. Findings given regarding
permanent disability of 20% and earning of Rs.2,500/- are proper, and
therefore, impugned award needs no interference by way of this Misc.
Appeal.
5. Heard learned counsel for the parties and perused the record.
6. It is admitted fact that accident took place on 21.7.2009. As per the
Claims petition, the appellant was earning Rs.4,000/- by selling
vegetables. From the perusal of the record, it appears that appellant being
minor has not been examined. His father Harjeet Jatav (AW-2) has stated
in para 1 of his statement before the Court that his injured son was
earning Rs.4,000/- per month by selling vegetables. In his cross-
examination para 15 he has further stated that his injured son by selling
vegetables was earning Rs.125-150 per day. Santan Singh (AW-4) has
also attempted to corroborate the claimant's income by his statement
before the Tribunal. Learned Claims Tribunal in para 20 dealt with this
issue in the light of the evidence on record but in absence of any cogent
oral and documentary evidence did not accept the income of the appellant
as Rs.4,000/- and guessed the income of the appellant as Rs.2,500/- per
month, however, learned Claims Tribunal did not resort to circular issued
under minimum wages Act, 1948. Here some judgments by the Apex
Court and Coordinate Bench may be aptly referred which deal with the
point that in absence of evidence on record, notional income should be
assessed on the basis of notifications issued under Minimum Wages Act,
1948.
6.1. In Sapna and Others vs. Mangilal and Another, 2021 ACJ 957,
Coordinate Bench of this Court in para No.8 has held as under:-
"8.Having heard the learned counsel for parties and on
perusal of the record, it is noticed that the appellant had
deposed before the tribunal that the deceased was earning
Rs.8,000/- per month, but no document in support of
which was produced. The tribunal had noted that the
deceased was about 20 years of age and was a labourer,
therefore, considering the minimum wages and dearness
allowance for the relevant period, the tribunal has
assessed the income of the deceased as Rs.6000/-. No
notification/circular of the concerned Labour Officer was
taken note of by the tribunal while mentioning the daily
wages of Rs.6000/-. The circular dated 7/4/2018 issued
by the Labour Officer, Barwani applicable to the period
from 01/4/2018 to 30/9/2018 produced by the appellants
reveals that the monthly wages on the basis of daily
wages along with dearness allowance fixed by the
concerned Labour Officer was Rs.7325/-. Hence, the
tribunal ought to have fixed the monthly income on the
basis of the said circular."
6.2 Coordinate Benches of this Court in the cases of Bhim Singh vs.
Jagmelsingh in MA No.5350 of 2022 dated 07th July, 2023, Shankar
and Others vs Dinesh and Others in MA No.2057 of 2021 dated 08th
September, 2023 and Sohanlal and Others vs. Noorasingh and Others
in MA No.7014 of 2019 dated 22.08.2023 has also determined income on
the basis of minimum wages notified under the Minimum Wages Act,
1948.
6.3 Thus, from principles laid down in above cases, it is evident that
Hon'ble Apex Court as well as Coordinate Benches of this Court has
consistently determined the income on the basis of Minimum Wages duly
notified under Minimum Wages Act.
6.4 It is correct that as per section 3 & other provisions of Minimum
Wages Act, 1948, minimum wages thereunder are fixed & notified for
employees employed in an employment specified in the Act, i.e. in
respect of scheduled employment under the Act. But, in view of
principles laid down in decisions referred to in preceding paras, in this
court's considered opinion, in absence of other evidence on record, to
obviate uncertainty & for sake of reasonable uniformity & consistency, it
would be just & proper to apply yardstick of Minimum Wages duly
notified under Minimum Wages Act, 1948 for determining compensation
under the Motor Vehicles Act.
6.5 In view of section 57 of Indian Evidence Act, 1872, judicial notice
can be taken of Minimum Wages duly notified under Minimum Wages
Act, 1948. Hence, the same need not to be proved separately.
6.6 In the light of exposition of law in the above judgments as referred
above, the procedure adopted by the learned Claims Tribunal for
assessing the income of the injured which is based merely on surmises is
incorrect and cannot be approved.
6.7 In the present case, there is no evidence on record that appellant
was skilled or semi skilled person, therefore, taking him to be a unskilled
person his income on the date of accident should have been taken as
Rs.3,520/- per month as given in the chart prepared under Minimum
Wages Act, 1948 for the relevant year. Therefore, as mentioned aforesaid,
income of the appellant will be taken as Rs.3,520/- treating him to be
unskilled labourer on the date of accident i.e. 21.7.2009.
6.8 Before dwelling upon the contention of appellant regarding his
permanent disability, pronouncement of the Apex Court in Pappu Deo
Yadav v. Naresh Kumar, (2022) 13 SCC 790 : 2020 SCC OnLine SC
752 at page 813 3 JJs bench may be aptly referred in which in para 20 it
has been observed as under :
"20. One more decision, Sandeep Khanuja v. Atul Dande
[Sandeep Khanuja v. Atul Dande, (2017) 3 SCC 351 :
(2017) 2 SCC (Civ) 276 : (2017) 2 SCC (Cri) 178] too
had dealt with the precise aspect of assessing the
quantum of permanent disablement. The victim was aged
about 30 years, working as a chartered accountant for
various institutions for which he was paid professional
fees. The injuries suffered by him resulted in severe
impairment of movement; he had problems in climbing
stairs, back trouble while sleeping, etc. A rod was
implanted in his leg. He suffered 70% permanent
disability, and mental and physical agony. This Court
enhanced the compensation, observing the proper manner
to calculate the extent of disability : (Raj Kumar case
[Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 : (2011) 1
SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] , SCC pp.
349-50, paras 9-11)
"9. The percentage of permanent disability is
expressed by the doctors with reference to the
whole body, or more often than not, with reference
to a particular limb. When a disability certificate
states that the injured has suffered permanent
disability to an extent of 45% of the left lower
limb, it is not the same as 45% permanent
disability with reference to the whole body. The
extent of disability of a limb (or part of the
body) expressed in terms of a percentage of the
total functions of that limb, obviously cannot be
assumed to be the extent of disability of the
whole body. If there is 60% permanent disability
of the right hand and 80% permanent disability of
left leg, it does not mean that the extent of
permanent disability with reference to the whole
body is 140% (that is 80% plus 60%). If different
parts of the body have suffered different
percentages of disabilities, the sum total thereof
expressed in terms of the permanent disability with
reference to the whole body cannot obviously
exceed 100%.
10. Where the claimant suffers a permanent
disability as a result of injuries, the assessment of
compensation under the head of loss of future
earnings would depend upon the effect and impact
of such permanent disability on his earning
capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as the
percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of
economic loss, that is, the percentage of loss of
earning capacity, arising from a permanent
disability will be different from the percentage of
permanent disability. Some Tribunals wrongly
assume that in all cases, a particular extent
(percentage) of permanent disability would result
in a corresponding loss of earning capacity, and
consequently, if the evidence produced show 45%
as the permanent disability, will hold that there is
45% loss of future earning capacity. In most of the
cases, equating the extent (percentage) of loss of
earning capacity to the extent (percentage) of
permanent disability will result in award of either
too low or too high a compensation.
11. What requires to be assessed by the Tribunal is
the effect of the permanent disability on the
earning capacity of the injured; and after assessing
the loss of earning capacity in terms of a
percentage of the income, it has to be quantified in
terms of money, to arrive at the future loss of
earnings (by applying the standard multiplier
method used to determine loss of dependency). We
may however note that in some cases, on
appreciation of evidence and assessment, the
Tribunal may find that the percentage of loss of
earning capacity as a result of the permanent
disability, is approximately the same as the
percentage of permanent disability in which case,
of course, the Tribunal will adopt the said
percentage for determination of compensation."
6.9 The Apex Court in the case of Sandeep Khanuja case [Sandeep
Khanuja v. Atul Dande, (2017) 3 SCC 351 : (2017) 2 SCC (Civ) 276 :
(2017) 2 SCC (Cri) 178] , SCC pp. 359-61, para 14 has observed as under
:
"14. The crucial factor which has to be taken into
consideration, thus, is to assess as to whether the
permanent disability has any adverse effect on the
earning capacity of the injured. In this sense, MACT
approached the issue in the right direction by taking into
consideration the aforesaid test. However, we feel that the
conclusion of MACT, on the application of the aforesaid
test, is erroneous. A very myopic view is taken by MACT
in taking the view that 70% permanent disability suffered
by the appellant would not impact the earning capacity of
the appellant.... A person who is engaged and cannot
freely move to attend to his duties may not be able to
match the earning in comparison with the one who is
healthy and bodily abled. Movements of the appellant
have been restricted to a large extent and that too at a
young age. Though the High Court recognised this, it did
not go forward to apply the principle of multiplier. We
are of the opinion that in a case like this and having
regard to the injuries suffered by the appellant, there
is a definite loss of earning capacity and it calls for
grant of compensation with the adoption of multiplier
method, as held by this Court in Yadava Kumar v.
National Insurance Co. Ltd. [Yadava Kumar v. National
Insurance Co. Ltd., (2010) 10 SCC 341 : (2010) 4 SCC
(Civ) 168 : (2010) 3 SCC (Cri) 1285] "
6.10 In the case in hand as far as permanent disability is concerned,
while appreciating the evidence adduced by Dr. S.N.Tripathi (AW-8) in
para 19, it has been held by learned Claims Tribunal that 40% disability
as shown in disability certificate (Ex.P/80) is not with regard to whole
body, but learned Claims Tribunal has not given any finding as to why he
has disbelieved the disability certificate as proved by Dr. S.N.Tripathi
(PW-8), therefore, in the considered opinion of this Court, looking to the
fact that appellant suffered grievous injuries in his right leg, fracture in
right hand and was operated for the fracture sustained, disability as
proved by Ex.P/80 does not appear to be exaggerated, therefore, setting
aside the finding of 20% disability, 40% disability of the appellant as
shown in Ex.P/80 is accepted. Since the appellant was in the business of
selling vegetables on handcart and suffered grievous injury in his right
leg, fracture in right hand, it is not unnatural that his permanent disability
has also resulted in the functional disability of the same percentage. Thus,
in the opinion of this Court, contention of the appellant has substance and
accepting it, it is held that appellant suffered 40% permanent functional
disability which is taken for computing the compensation.
6.11 As far as amount towards future prospect is concerned, it has not
been awarded by the learned Claims Tribunal without giving any reason.
It is undisputed that at the time of accident, the injured was 17 years of
age and suffered permanent disability to the tune of 40%. The Apex Court
in the case of Mohd. Sabeer @ Shabir Hussain Vs. Regional Manager,
U.P. State Road Transport Corpn. decided on 9th December, 2022 in
Civil Appeal No.9070-9071 of 2022 has observed as under :-
"18 It is a well settled position of law that in cases of
permanent disablement caused by a motor accident, the
claimant is entitled to not just future loss of income, but
also future prospects. It has been reiterated by this Court in
multiple instances that "just compensation" must be
interpreted in such a manner as to place the claimant in the
same position as he was before the accident took place."
6.12 As per directions contained in paragraph 59.4 in the case of
National Insurance Co. Ltd. vs. Pranay Sethi, 2017 (16) SCC 680 by
the Apex Court the appellant is entitled for increase of 40% towards
future prospect in the total of his income.
6.13 As far as multiplier is concerned, looking to the age of the
appellant, as per para 42 of the decision of the Apex Court Sarla Verma
vs. Delhi Transport Corporation (2009) 6 SCC 121 which reads as
under :-
"42. We therefore hold that the multiplier to be used
should be as mentioned in Column (4) of the table
above (prepared by applying Susamma Thomas
[(1994) 2 SCC 176 : 1994 SCC (Cri) 335], Trilok
Chandra (1996) 4 SCC 362] and Charlie[(2005) 10
SCC 720 : 2005 SCC (Cri) 1657] ), which starts with
an operative multiplier of 18 (for the age groups of 15
to 20 and 21 to 25 years), reduced by one unit for
every five years, that is M-17 for 26 to 30 years, M-16
for 31 to 35 years, M-15 for 36 to 40 years, M-14 for
41 to 45 years, and M-13 for 46 to 50 years, then
reduced by two units for every five years, that is, M-
11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for
61 to 65 years and M-5 for 66 to 70 years".
the multiplier of 18 will be used.
6.14 Looking to the fact that appellant remained admitted in
Maheshwari Hospital for treatment from 28.7.2009 to 7.8.2009 and
operated twice, the amount of Rs.10,000/- for special diet and
transportation allowance appears to be on lower side. It is increased to
Rs.25,000/-. Similarly amount of Rs.20,000/- towards pain and suffering
is increased to Rs.50,000/-.
6.15 Thus, the appellant is entitled to the following amount as
compensation:-
Sr.N Head Compensation awarded
o.
1 Income Rs.3,520/- per month
2 Yearly income 42,240/-
3 Future prospect Rs.16,896 (40%)
4 Yearly income after adding future 59,136/-
prospect
5 Loss of income (40%) 23,654/-
7 Total loss of income 4,25,772/-
8 For special diet & transportation 25,000/-
charges
9 For pain & suffering 50,000/-
10 Medical expenses 65,070/-
Total 5,65,842/-
6.16 Thus, the just and proper amount of compensation in the instant
case is Rs.5,65,842/- as against the award of the Tribunal of
Rs.1,65,070/-. Accordingly, appellant is entitled to an additional sum of
Rs.4,00,772/- over and above the amount which has been awarded by the
Tribunal.
6.17. Resultantly, the appeal is partly allowed by enhancing the
compensation amount by a sum of Rs.4,00,772 /-. The enhanced amount
shall carry interest at the same rate as awarded by the Tribunal. The other
terms & conditions of the impugned award shall remain intact.
6.18 Appellant has valued the appeal only to the extent of Rs.3 lacs and
paid the Court fee accordingly. However, for the remaining amount of
Rs.1,00,772/- the Court fee shall be paid by the appellant within a period
of 60 days from the date of the order of this Court and thereafter the
amount shall be released by the respondents on receiving the certificate.
In case the certificate has not been filed before the respondents up to a
period of three months, the appellant/claimant shall not be entitled to
receive the interest on the enhanced amount of compensation.
6.19 In the result, the appeal is partly allowed to the extent indicated
herein above.
(BINOD KUMAR DWIVEDI)
JUDGE
ms/-
