Rajasthan High Court

Dinesh Kumar vs Maliram And Ors ... on 22 September, 2023

Bench: Praveer Bhatnagar

[2023:RJ-JP:24582]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

            S.B. Civil Miscellaneous Appeal No. 2633/2018

Dinesh Kumar S/o Shri Gyarsi Lal, aged 43 years, by caste Nai,
resident of Maid walon Ka Mohalla, Village Manoharpur, Tehsil
Shahpura, District Jaipur (Raj.).
                                                                   ----Appellant
                                    Versus
1. Maliram S/o Suna Ram Yadav, by caste Ahir, resident of Dhani
Kriparamvali Tan Navlpura, Tehsil Shahpura, District Jaipur
(Driver of Jeep No.RJ14-UA-1902).
2. Rameshwar Yadav S/o Hanuman Yadav, by caste Ahir, resident
of 254-A, Rajni Vihar, Heerapura, Ajmer Road, Jaipur (registered
owner of Jeep No.RJ14-UA-1902).
3. United India Insurance Company Limited, Transport Nagar,
Jaipur, where Jeep No.RJ14-UA-1902 through Insurance Policy
No.140405/31/11/01/00001849 is insured, which is valid from
04.06.2011 to 03.06.2011.
                                                                 ----Respondent

For Appellant(s)          :     Mr. Rakesh Kumar
For Respondent(s)         :     Mr. Brajash Sharma



          HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

                                 Judgment

22/09/2023

1. The instant appeal arises out of the impugned judgment

dated 15.02.2018 passed by Motor Accident Claims Tribunal,

Bharatpur (hereinafter to be referred to as "Tribunal").

2. The claimant/appellant Dinesh Kumar (hereinafter to be

referred to as "injured"), preferred a claim petition, which was

partly allowed and the compensation was granted to the tune of

Rs.2,82,811/- in MACT Case No. 166/2012.

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3. The Tribunal on scrutiny of the entire evidence led before

held that injured Dinesh Kumar suffered injuries in the motor

accident on 08.03.2012. The accident occurred due to rash and

negligent driving of the driver of the offending vehicle. As the

offending vehicle, on the date of the accident, was insured with

the Respondent No.3 - Insurance Company, the Insurance

Company was liable to pay compensation to the claimant.

4. The Tribunal assessed the income of the injured at

Rs.4,082/- per month and considering 36% permanent disability

awarded lump sum compensation of Rs.1,80,000/- towards the

loss of income and awarded total compensation to the tune of

Rs.2,82,811/-, the break up of which is as under:

Loss of future earnings                      Rs.1,80,000/-
Medical expenses                             Rs.71,241/-
Pain and suffering                           Rs.25,000/-
Transportation expenses                      Rs.5,000/-
Loss of income @ 10 days                     Rs.1570/-
Total compensation                           Rs.2,82,811/-

Grounds:-

(A) The Tribunal has wrongly assessed the income of the injured

considering him semi-skilled labour applying the prevalent rates

on the date of occurrence as per the Notification of the Labour

Department, whereas the appellant was earning Rs.13,000/- per

month. The Tribunal wrongly discarded the oral and documentary

testimony of the claimant concerning his income.

(B) The interest awarded to the tune of 9% per annum is

inadequate and the claimant is liable to get 12% interest on the

awarded money.

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disability is inadequate and further the Tribunal did not award

compensation under the head of future prospects to the appellant.

(D) The counsel for the Insurance Company justifies the

compensation awarded to the appellant under various heads and

prays for dismissal of the appeal.

Analysis:-

Assessment of Income

5. The Tribunal assessed the income of the appellant at the rate

of Rs.4,082/- per month.

6. The Tribunal discarded the oral and documentary testimony

of the claimant regarding his income and held that in the absence

of cogent evidence to prove the salary certificate Exhibit-55, it is

not proved that the appellant was earning Rs.13,000/- per month.

However, the Tribunal while relying upon the Exhibit-53A, Exhibits-

56A, 54A, 57A and 58A concluded that the claimant is a qualified

Teacher having experience in teaching.

7. In the absence of non-examination of the witness, who

issued the salary certificate Exhibit-55, the Tribunal disbelieved it

and further concluded that in the absence of income tax returns,

bank passbook and other supportive documents it is not justified

that the claimant was getting Rs.13,000/- per month as a Teacher.

Based upon the prevalent rates applicable for the daily wagers the

Tribunal computed the monthly salary of the claimant as

Rs.4,082/- per month applicable for semi-skilled workers.

8. In Civil Appeal No.8179/2022 : Rajwati @ Rajjo & Ors. vs.

United India Insurance Company Ltd. & Ors. and Seema & Ors.

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vs. United India Insurance Company Ltd. & Ors. : Civil Appeal

No.8180/2022, Hon'ble Apex Court held that:-

"It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation. As held by this Court in Sunita (supra) and Kusum Lata (supra), strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, "the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases".

In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit-19) and pay slip (Exhibit-20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. The said documents are conclusive proof of the income of the deceased and were also corroborated by the statements of the deceased's wife (Appellant No. 1 herein) and his co- workers. As such, the High Court was not justified in assessing the income of the deceased at Rs.4,836/- per month on the basis of minimum wages fixed by the State at the relevant time. Resultantly, we affirm the findings of the Learned Tribunal so far as they relate to assessing the deceased's income at Rs.11,225/- per month on the basis of aforementioned two documents. Annual income of the deceased, therefore, amounts to, Rs.11,225/- x 12 = Rs.1,34,700/-."

(emphasis supplied)

9. In the case in hand, learned Tribunal, even though the

respondent failed to rebut the documentary evidence, discarded

the salary certificate Exhibit-55. In my view, the analysis of the

Tribunal discarding the documentary proof Exhibit-55 is not

sustainable.

10. The said salary certificate is issued by a Secretary of the

private institute namely Manohar Vikas Shikha Samiti, Secondary

School, Manoharpura Jaipur, certifying that the claimant Dinesh

Kumar worked in their school as Headmaster from 2004 to

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08.03.2012 and his monthly salary was Rs.13,000/- per month.

The said institution is a government recognized institute.

11. As enunciated in the matter of Rajwati (supra) the strict

rules of evidence, as applicable in a criminal trial, are not

applicable in motor accident compensation cases and the standard

of proof to be borne in mind must be of the preponderance of

probability and not the strict standard of proof beyond all

reasonable doubt. In other words, the party must show that their

evidence is more convincing and has more weight than the

evidence presented by the opponent.

12. The documentary evidence led by the claimant is more

convincing in comparison to respondent No.3 and in the absence

of any counter-evidence to challenge the said Exhibit-55 it can be

safely concluded that the claimant is able to prove it. Therefore, in

the absence of any rebuttal to the documentary evidence adduced

by the claimant, the Tribunal was not justified to discard the salary

certificate Exhibit-55.

13. Even otherwise, adopting the Notification issued by the

Labour Department, treating a qualified Teacher in the category of

unskilled labour, is not only harsh but rather disrespectful to the

persons who are engaged in teaching work. Unskilled or semi-

skilled labour is a class where the person's educational

qualification is immaterial and his particular skill to do a particular

work is paramount, whereas, for teaching one needs to at least

ought to have a bare minimum qualification. In the case of the

appellant, it is proved that at the relevant time, he owned the

essential qualification fundamental for holding the post of a

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Teacher and was engaged in teaching. The documentary evidence

Exhibit-55 is sufficient to exhibit that appellant was earning

Rs.13,000/- per month.

LOSS OF INCOME DUE TO FUNCTIONAL DISABILITY:

14. The appellant was aged 38 years at the time of the accident

and was earning Rs.13,000/- per month. As per the disability

certificate, the appellant suffered a permanent disability of

35.31%. The permanent disability certificate Exhibit-13 shows that

the appellant sustained a fracture on the humerus bone alongwith

radial nerve injury and a fracture on the left femur bone. The

operation note Exhibit-15 coupled with the evidence of claimant

PW1-Dinesh further validates that the claimant was operated and

a plate along with a rod was inserted in his humerus bone. Taken

on account of the above injuries the Board opined the following

destruction or permanent impairing:-

"Restricted Movement of left hip.

Restricted movement of the left elbow."

15. The Board further observed that due to the above injuries

normal functioning like walking, running, jumping, lifting and

working with the left hand has adversely been affected. The Board

assessed the total permanent disability as 35.31%.

16. The Tribunal considered a permanent disability to be 36%

multiplied by the assessed income (Rs.5000/-), thus computed the

compensation as Rs.1,80,000/- in the head of loss of income due

to functional disability.

17. To assess the quantum of compensation to be awarded, this

Court has to assess whether the permanent disability caused has

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any adverse effect on the earning capacity of the appellant, as

held by the Apex Court in the case of Sandeep Khanuja vs. Atul

Dande & Ors. : (2017) 3 SCC 351. The relevant paragraph of the

judgment is referred to hereunder:-

"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, the MACT approached the issue in right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of the MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a chartered accountant he is supposed to do sitting work and, therefore, his working capacity is not impaired."

(emphasis supplied)

18. In the case of Raj Kumar vs. Ajay Kumar & Ors. : (2011) 1

SCC 343 Hon'ble Apex Court held that where the claimant suffers

a permanent disability as a result of injuries, the assessment of

compensation for loss of future earnings would depend upon the

impact and effect of the permanent disability on his earning

capacity. The Court observed as under:-

"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, 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. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured;

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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 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."

19. The appellant herein has suffered a permanent disability of

35.31% (round of 36%) and has an impaired left limb and hip

bone amongst other injuries. The Tribunal though has taken the

view that the appellant suffered 36% functional disability but did

not apply the standard multiplier method used to determine loss

of earnings due to functional disability. Further, the appellant is

not a salaried person but is self-employed and manages his bread

and butter. For the appellant to be able to boost his income, he is

surely required to move around. The appellant can also not drive

on his own, which hinders his mobility further. This proves that the

functional disability of the appellant will severely affect his earning

capacity, and the 36% functional disability calculated by the

Tribunal is though correct but the assessed income and multiplier

method adopted by the Tribunal is not correct. Therefore, the

finding of the Tribunal concerning the assessment of monthly

income needs to be reassessed.

20. The age of the claimant was 38 years at the relevant time

hence, the multiplier of 15 is applicable and after taking into

consideration the functional disability of 36%, the computation

under the head of loss of income, due to functional disability,

comes as under:-

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Rs.13,000x15x12x36/100 = Rs.8,42,400/-

FUTURE PROSPECTS:

21. The Tribunal has not applied the quantum for future

prospects. It is a well-settled position of law that in the cases of

permanent disablement caused by a motor accident, the claimant

is entitled to not just future loss of income, but also future

prospects.

22. In National Insurance Company Limited vs. Pranay Sethi &

Ors. : (2017) 16 SCC 680 Hon'ble Apex Court held as under:

"While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

23. Therefore, in the light of the aforesaid dictum, the appellant

is entitled to get the 40% in addition to the loss of earnings due to

functional disability under the head of future prospects. The

computation under the head comes as under:-

Rs.8,42,400x40/100 = Rs.3,36,960/-

On the part of the interest :

24. Whether the interest awarded to the tune of 9% is

insufficient and the claimant is liable to get the 12% interest on

the awarded money?

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25. The nationalised banks are now granting interest at the rate

varying in between 7% to 7.50% on fixed deposits for more than

one year up to three years. The rate of interest depends upon the

rate of inflation and the supply and demand of credit. As per the

RBI Guidelines presently, no bank is offering more than 7.5% as

interest on the FDR. Therefore, in my view, the Tribunal has

awarded a just interest over the compensation amount.

Hence, this court does not find any inadequacy in the interest

component awarded to the appellant.

26. On the basis of the abovementioned facts and analysis, this

Court is of the opinion that the just compensation to be awarded

to the claimant/appellant under different heads ought to be as

under:-

Loss of earning capacity due to Rs. 8,42,400/-

functional disability
Future prospects                             Rs. 3,36,960/-
Medical expenses                             Rs.      71,241/-
Pain and suffering                           Rs.      25,000/-
Transportation expenses                      Rs.        5,000/-
Loss of income @ 10 days                     Rs.        1,570/-
Total compensation awardable                 Rs.12,82,171/-
Less amount awarded by the                   Rs. 2,82,811/-
Tribunal
Enhanced amount of                           Rs. 9,99,360/-
compensation

27. In view of the above, the appellant-claimant would be

entitled to get a further sum of Rs.9,99,360/-, which shall carry

interest @ 9% per annum from the date of filing claim petition.

28. Consequently, the appeal is allowed. The award dated

15.02.2018 is modified to the extent that the claimant would be

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entitled to a compensation of Rs.12,82,171/- minus income tax (if

any) instead of Rs.2,82,811/- alongwith interest as awarded by

the learned Tribunal. On the enhanced amount of compensation

i.e. Rs.9,99,360/-, the appellant-claimant would be entitled to

interest @ 9% per annum from the date of claim petition till the

date of actual payment.