RAFIQ, J. - (1.) HEARD learned counsel for the parties.
(2.) APPELLANT being dis-satisfied with the quantum of compensation in case of 100% disability has filed this appeal questioning the correctness of quantum of compensation. The appellant met with an accident on 10. 4. 1996 when he was coming from Govindpura to Shahpura by road. He was hit from behind by Truck No. DL-1g-A-618 which was being driven by respondent No. 3 in rash and negligent manner. As a result of the said accident, appellant sustained grievious injuries and he had to remain hospitalized in S. M. S. Hospital Jaipur for more than a month. He was subjected to operation during his hospitalization. Since appellant had sustained fracture of his back bone at Vertribra Section at L-1, both his legs were rendered senseless and this disease was described by the doctors attending on him as `paraplegia'. Medical Board upon examining him, certified that appellant sustained 100% permanent disability. The injury report Ex. 9, X-Ray Report Ex. 4, permanent disability certificate, operation note and the statement of AW1 Dr. M. K. Mathur were got exhibited. Appellant before the Tribunal asserted that he was a driver by profession and he produced his driving license at Ex. 13. The case pleaded before the Tribunal was that on account of 100% permanent disability, he is now no longer capable of earning any amount whatsoever in future. Learned Tribunal, in those facts, awarded to the appellant a consolidated amount of Rs. 2 lacs for 100% permanent disablement, for mental suffering as well as for physical agony due to the injuries sustained by the appellant, Rs. 30,000/- towards medical expenses, Rs. 70,000/- for nutritious diet, transportation expenses and attendant and Rs. 1,00,000/- for financial loss and thus a total sum of Rs. 4 lacs, was awarded to the appellant. The appellant has questioned the correctness of the quantum of compensation on the premise that a consolidated sum of Rs. 2 lacs could not be awarded for total permanent disability, pain and suffering due to grave injuries and mental agony. Shri Sandeep Mathur, learned counsel for the appellant has argued that the learned Tribunal has not given any reasoning as to how and in what manner it arrived at a sum of Rs. 2 lacs aforesaid. It was a case where appellant was a young person of 20 years and was a driver. He clearly asserted that he was earning Rs. 100/- per day which was quite usual for a driver to earn in those days. He also produced his driving license. Learned Tribunal has not at all examined the matter from that angle and no discussion whatsoever has been made in this regard. Learned counsel for the appellant submitted that according to the Table provided in Schedule-II of the Motor Vehicles Act, 1988, if multiplier at the age of 20 years is taken to be 17, income of the appellant being Rs. 3,000/- per month, he would be entitled to a sum of Rs. 6,12,000/- for permanent disablement is he would not be able to earn this much. Besides that, he was entitled to reasonable amount on the head of pain and suffering and mental agony under the separate head. Learned counsel for the appellant further argued that there can be deduction of amount of compensation by 1/3rd because deduction can be made only in a case of person who no longer survives. Such a deduction is required to be made in the case of a person who has died and claim for compensation is made by his legal heirs/dependents. Regarding note below clause (1) of Schedule-II supra, learned counsel submitted that the respondents cannot object to the rate of interest and the amount of compensation on medical expenses etc. because neither have they challenged the award by filing an appeal nor have they filed any cross objection in the present appeal. In rebuttal, learned counsel for the respondent argued that appellant though has challenged the award questioning the correctness of quantum of compensation but has not made any specific plea in the memorandum of appeal nor any specific prayer is made as to what should be the correct compensation awardable to him for total permanent disability.
(3.) SHRI Ganesh Joshi, learned counsel appearing for the Insurance Company opposed the appeal and submitted that there was no proof of the income of the appellant and mere production of the driving license cannot be a substitute for that proof. Appellant was required to prove before the Court that he was regularly earning Rs. 100/- per day and the Tribunal could be only then required to calculate on the basis of such income. Learned counsel for the Insurance Co. argued that in absence of proof of income, even if notional income of Rs. 15,000/- as provided in clause (vi) of Schedule-II supra is relied on, the amount of compensation would come almost to the equivalent amount already awarded to the appellant on application of the correct multiplier at the age of 20 years which is 16 i. e. Rs. 2,40,000/- which when deducted by 1/3rd, would be less than Rs. 2 lacs when compensation awardable on the head of pain and suffering and mental agony is added thereof, amount of compensation would almost come to the same as has actually been awarded. Learned counsel argued that even otherwise, learned Tribunal has awarded enormous amount of compensation to the appellant for medical expenses. While there was no proof of medical expenses incurred by the appellant, yet, the Tribunal has awarded Rs. 30,000/- under the said head. Learned counsel for the respondent also question the correctness of the rate of interest of 12% p. a. and argued that it is on higher side. In support of his aforesaid argument, learned counsel for the Insurance Company cited the judgment of Supreme Court in New India Assurance Co. vs. Charlie and another : 2005 ACJ 1131 to say that rate of interest in that case was reduced by the Supreme Court from 9% to 7. 5% p. a. in a case arising out of accident which took place in 1997. Learned counsel for the respondent argued that in New India Assurance Co. vs. Charlie and another supra, the Supreme Court reduced the award of Rs. 4,28,825/- to Rs. 3,50,000/- even in the facts of the case where there was proof treating the income of the injured to be Rs. 18,000/- per annum. ;