Alok Sharma, J. - (1.) THIS civil misc. appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter 'the Act of 1988') has been filed against the judgment dated 11.04.2002, passed by the MACT, Shahpura. Thereby the learned MACT awarded the appellant -claimant (hereinafter 'the claimant') a sum of Rs. 50,500/ - as compensation along with interest @ 9% p.a. effective 01.11.1996 till the date of payment for the fracture suffered by the claimant in his right leg in an accident of 01.09.1996 caused by a tractor owned by the respondent -non -claimant Ramchandra, at the relevant time driven by Bhooda Ram and insured with the respondent -the New India Assurance Co. Ltd. (hereinafter 'the Insurance Company').
(2.) MR . Rakesh Bhargava, appearing for the claimant confined his submissions in this appeal to the issue of inadequacy of compensation. It was submitted that the age of the claimant, also sharing the name Ramchandra with the owner of the offending vehicle, was 35 years at the time of accident and working as an agriculturist earning about Rs. 4,500/ - p.m. Counsel submitted that in determining the compensation, the MACT has perfunctorily arrived at a figure of Rs. 50,500/ - constituted of Rs. 5,000/ - towards physical and mental pain as a result of the accident, a sum of Rs. 3,500/ - towards medicines, a sum of Rs. 2,000/ - towards hospital expenses and Rs. 40,000/ - for loss of income resulting from the partial permanent disability of 8.20%. Counsel submitted that no reasons have been advanced by the MACT for arriving at the total compensation of Rs. 50,500/ - and the compensation is grossly inadequate. Reliance was placed to the judgment of the Hon'ble Supreme Court in the case of Shashendra Lahiri Vs. UNICEF & Ors. [ : 1998 ACJ 859] where the Hon'ble Supreme court granted compensation of Rs. 4,50,000/ - in a case where a 17 years old brilliant student of B.Com suffered partial permanent disability in an accident which occasioned shortening of his one leg by 3 inches. Reliance was also placed to the judgment of the Hon'ble Supreme Court in the case of Swatantra Kumar Vs. Qamar Ali & Ors. [ : 1998 ACJ 920] where the Hon'ble Supreme Court in a case of shortening of leg by 13/4 inches of a photographer at the time earning Rs. 500/ - p.m. broadly enhanced the compensation by a sum of Rs. 1 lakh under the head of pain, shock and suffering as well as for future economic loss. It was submitted that in the context of the aforesaid two decisions of the Hon'ble Supreme Court in similar matters, award of total compensation of Rs. 50,500/ - along with interest @ 9% p.a. to the claimants, as detailed was wholly inadequate and deserves to be enhanced by a further sum of Rs. 4 lakhs. Mr. T.P. Sharma, appearing for the Insurance Company, opposed the appeal. He submitted that the compensation under the Act of 1988 cannot be a windfall. The task of determining compensation is in trying to place the injured, or in appropriate cases the dependants of the deceased, in an approximately the same position as they would be in the event of an accident not having taken place and affecting their life, earning capacity/assets. Counsel submitted that it is upon the claimant to prove his case like in a civil case. For this purpose it is incumbent upon the claimant to produce admissible evidence and prove the case for grant of compensation on preponderance of probabilities. Proceedings before the MACT cannot be casually addressed on the basis of sympathy and compensation determined without any concrete evidence. It was submitted that it is an admitted fact that the claimant was not able to prove his income of Rs. 4,500/ - p.m. as claimed. Further the disability certificate relied upon by the claimant showing partial permanent disability of 8.20% was not admissible in evidence inasmuch as the Doctor who issued the said certificate was not examined before the MACT. It was further submitted that there was no evidence before the MACT with regard to the loss of earning capacity owing to the alleged shortening of right leg of the claimant by half an inch. Counsel further submitted that assuming without admitting that the claimant had suffered shortening of his right leg by half an inch, there was no material before the MACT to establish as to how the said shortening would detrimentally affect the earning capacity of the claimant. Counsel submitted that the claimant was admittedly an agriculturist and subsequent to the healing of the fracture, it is unlikely that he would have been seriously effected in the undertaking of agricultural operations. In support of his contentions, Mr. Sharma relied upon the judgment of this Court in the case of Babu Lal Jhajhra Vs. Devi Narain, SB Civil Misc. Appeal No. 3/2010, decided on 02.02.2012 and the judgment of the Hon'ble Delhi High Court in the case of Surjit Rani Vs. Govind Ram & Ors. [ : 2002 ACJ 369]. It was therefore submitted that the compensation awarded by the MACT was adequate, just and proper and the appeal be dismissed.
(3.) HEARD the counsel for the parties and perused the impugned order dated 11.04.2002, passed by the MACT, Shahpura.;