- (1.) AGGRIEVED by the award dated 13.04.2005, passed by the Motor Accident Claims Tribunal, Khetri, Jhunjhunu, whereby the learned Tribunal has granted a compensation of merely Rs.95,390/-, the appellant, who has suffered 36.67% permanent disability, has knocked the doors of this Court.
(2.) SHORTLY the facts of the case are that on 23.04.2001, Smt. Santra along with other persons, was going to village Morwa in a Jeep, bearing registration No.H.R.-18-1898. A bus, bearing registration No.RJ-18P-1080, was going towards Pilani in a high Speed. The Jeep driver, the respondent No.3, while driving the Jeep in rash and negligent manner, suddenly used the brakes. The Jeep dashed against the bus from the back. Consequently, while Dayaram died, the others, including the present appellant, sustained grievous injuries. Hence, the claimant-appellant filed a claim petition before the learned Tribunal against the respondents. The respondents filed their reply to the claim petition and denied the averments made therein. On the basis of the pleading of the parties, the learned Tribunal framed five issues. The learned Tribunal recorded the evidence on behalf of the claimant-appellant. After going through the oral and documentary evidence and after hearing both the parties, vide award dated 13.04.2005, the learned Tribunal partly allowed the claim petition in favour of the claimant-appellant as aforementioned. Since the compensation awarded by the learned Tribunal is a meager one, this appeal before this Court. Mr. Ram Sharan Sharma, the learned counsel for the appellant, has vehemently contended that considering the fact that the appellant had suffered 36.67% permanent disability, the learned Tribunal was legally bound to apply the formula prescribed in Item No.5 as contained in Second Schedule of M.V. Act, 1988. However, instead of applying the said formula, the learned Tribunal has merely paid Rs.36,000/- for 36.67% permanent disability. Thus, the approach of the learned Tribunal is highly misplaced. Secondly, according to the appellant, she was earning Rs.3,000/- per month as a labourer. However, the learned Tribunal has not considered her income and has merely given a lump sum compensation amount of Rs.95,390/-. According to the learned counsel, at the relevant time, the minimum wages was Rs.73/- per day. Thus, the appellant would have been earning Rs.2,190/- per month. Therefore, while applying the formula contained in item No.5 attached to II Schedule of the M.V. Act, her compensation should have been calculated accordingly. On the other hand, Mr. R.P. Vijay, the learned counsel for the respondents, has contended that already the learned Tribunal has granted Rs.56,000/- to the appellant in the category of "pain and suffering" and in the category of "permanent disability" suffered by the her. Thus, a just and reasonable compensation has been paid to the appellant. Secondly, Rs.20,000/-, paid in the category of pain and suffering, should be read as part of compensation calculated on the basis of the formula prescribed in item No.5. The other learned counsel for the respondents have echoed the same arguments. Heard the learned counsel for the parties and perused the impugned award. Item 5 of the Second Schedule attached to the M.V. Act is as under : 5. Disability in non-fatal accidents : The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents : Loss of income, if any for actual period of disablement not exceeding fifty two weeks. PLUS either of the following : (a) in case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or (b) in case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. Injuries deemed to result in Permanent Total Disablement / Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923. A bare perusal of the said provision clearly reveals that a formula has been prescribed by law. Once a formula has been prescribed by law, the learned Tribunal is not justified in deviating from the said formula. The deviation is furthermore aggravated by the fact that the learned Tribunal has not assigned any cogent reason for such a deviation. Out of the blue, it has decided to grant a lump sum amount of Rs.36,000/- for 36.67% permanent disability suffered by the appellant. However, such an approach is legally untenable. For, the law nowhere prescribes that an injured person is entitled to merely Rs.1,000/- for each percentage of disability. In fact, the learned Tribunal should have adhered to the formula given in Item 5 and should have assessed the loss according to the said formula.
(3.) ALTHOUGH the appellant has pleaded that she was earning Rs.3,000/- per month as a labourer, but she has not been able to establish this fact. Therefore, the minimum wages, which were prevalent in the year 2001, should be taken into account. In the year 2001, an unskilled labourer was entitled to payment of Rs.73/- per day. Therefore, the appellant would have earned Rs.2,190/- per month. Considering the fact that at the relevant time, the appellant was 30 years old, a multiplier of 18 should be applied. Thus, the compensation for 36.37% permanent disability should be calculated as under : 2,190 X 18 X 12 = 4,73,040/- Taking 36.67% of the total amount, the loss suffered by the appellant comes out to be Rs.1,73,470/-. The contention raised by Mr. R.P. Vijay, that since Rs.56,000/-, in the category of "pain and suffering" and in the category of "permanent disability", has been granted to the appellant, therefore, a just and reasonable compensation has been paid, is unacceptable. For, the justness of a compensation has to be seen in light of the requirement of law. In case the compensation has been calculated de hors the law or in deviation of law, the compensation cannot be said to be "just and reasonable". Admittedly in the present case, the learned Tribunal has not implemented and has not calculated the compensation on the basis of Item No.5. Therefore, even if it has given a compensation of Rs.56,000/- that too in the twins category of "pain and suffering" and "permanent disability", the said compensation cannot be said to be just and reasonable. The second contention raised by Mr. Vijay that Rs.20,000/-, paid in the category of pain and suffering, should be read as part of compensation calculated on the basis of the formula prescribed in item No.5, is equally unacceptable as pain and suffering comes under the category of non-pecuniary loss, and the formula does not deal with non-pecuniary loss. Therefore, there is no reason for holding that Rs.20,000/-, paid in the category of pain and suffering, should be read as part of the compensation calculated on the basis of the formula contained in Item No.5 of II Schedule attached to the M.V. Act. ;