RAFIQ, J. - (1.) THIS appeal has been preferred by the appellant-Insurance Company against the award passed by the Motor Accident Claims Tribunal, Jaipur, District Jaipur, whereby the claimant has been awarded the compensation of Rs. 7,63,000/- for disability to the extent of 76. 51% suffered by him.
(2.) MISS Raj Sharma, learned counsel for the appellant has argued that the Tribunal has erred in law by taking the entire annual income of the respondent in the sum of Rs. 43600/- as the basis for calculation of the compensation. It was argued that a sum of Rs. 25600/- out of that amount was salaried income of the respondent and another sum of Rs. 18000/- was the income from agriculture land as shown in the return of the income tax. It was argued that the claimant-respondent Mohanlal who was examined as AW 2 before the Tribunal has stated in his statement that he used to work with the private Firm M/s. Rameshwar Lal Mahendra Kumar Agrawal from 9. 00 a. m. in the morning till 6. 00 p. m. in the evening. Besides that, he and his wife were also working on their agriculture land of three and a half bigha and also had income from such land and additionally, from sale of the milk of buffaloes. Learned counsel submitted that even after amputation of the leg of respondent from below of the knee, the respondent would still have the income of the agriculture land and when it has come on record the respondent was working from 9. 00 a. m. to 6. 00 p. m. with the private firm, obviously, he could not in fact physically work in agriculture land and given the kind of disability he has and in any case, he can still continue to supervise the cultivation of agriculture land with the help of his wife as before. Learned counsel cited the judgment of Supreme Court in the case of State of Haryana and another vs. Jasbir Kaur and others (2003) 7 SCC 484 and argued that Supreme Court in that case held that normal rule of deprivation of income would not be applicable in cases where such income is from agriculture land, since the land owned by the deceased would still yield income to the claimants. Learned counsel argued that was a death case and though the present case is a case of injury but the principles of law enunciated by the Supreme Court in Jasbir Kaur (supra) would still apply to the facts of the present case with full force. Learned counsel also cited the judgment of Supreme Court in Division Controller, KSRTC vs. Mahadeva Shetty and Another (2003) 7 Supreme Court Cases 197 and argued that in that case and in also Jasbir Kaur supra, the Supreme Court held that the amount of compensation has to be just and reasonable and that it cannot be bonanza and a source of profit but at the same time it should not be a pittance. The learned counsel therefore argued that the amount of compensation in so far as it relates to the loss of agricultural income, is liable to be excluded from consideration and the award modified accordingly. On the other hand, Mr. Mahesh Gupta, learned counsel for the claimant-respondent opposed the appeal and submitted that the leg of the claimant may have been amputated from below of the knee, but he has now lost his job and cannot be expected to earn anything from the salary which he was otherwise receiving. It was argued that the claimant was not only supervising the agriculture but also himself doing the work on the land with his wife and he used to sell vegetables in the market during extra time. Amputation of his leg has definitely now rendered him incapable to work in the agriculture field. The learned counsel therefore argued that the award passed by the Tribunal is just and reasonable and is liable to be upheld. Learned counsel also sought to distinguish the judgment of the Supreme Court in Jasbir Kaur, supra and submitted that the Supreme Court even in that case made the observations, relied on by the appellant, in the context of facts where no material was placed before the Tribunal about the income and in spite of the observations referred to above, the Tribunal awarded the compensation. So, it was observed by the Supreme Court that there was a possibility that claimant might not have been himself required to look after the field. However, when the compensation in the instant matter was demanded by the claimant on the ground that he was himself doing the work, ratio of that judgment cannot be held applicable to the present case. The learned counsel also cited the judgment of Supreme Court in the case of Rukmani Devi and Ors. vs. Om Prakash and Ors. 1991 ACJ 3 wherein the argument that the income from the partnership firm would continue to be available even after the death of the partner was negatived by the Supreme Court. The learned counsel also cited the judgment of Madras High Court in the case of Oriental Insurance Co. Ltd. vs. S. Ramesh & Anr. I (2005) ACC 120 (DB) and submitted that it was held in that case that different yard stick shall have to be applied for agriculture income which is earned from personal cultivation and the income which is earned by employing men force. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material available on record and the judgments cited before me. The injured-claimant, namely, Mohan Lal examined as AW 2 before the Tribunal, has in his statement categorically stated that he was earning Rs. 4,000/- by employment from the private firm and Rs. 2000/- from his agricultural land and dairy farming. He has also submitted his income tax return of the financial year preceding the date of accident. He admitted that he was working for the firm from 9. 00 a. m. to 6. 00 p. m. and that he had three and half bighas of land and was cultivating vegetables by working with his wife. Agricultural income that was shown by him in his income tax return was Rs. 18,000/- per annum. For the same year the salaried income of Rs. 25,600/- was show by him in the income tax return. Contention that the claimant would now be rendered incapable to work because of his disability and therefore would be deprived of his total income from salary as well as agriculture, can not be accepted. Keeping in view the disability in the present case which was assessed as 76. 51%, the Tribunal ought to have accordingly made the calculations. This was not the case of claimant before the Tribunal that with the amputation of his leg from below the knee, his ability to work to the extent of 23. 40%, as would evident by his assessed disability of 76. 51%, was not correct. Such an argument therefore cannot be accepted on the basis of mere ipse-dixit of the claimant.
(3.) QUESTION to be examined therefore is whether the Tribunal was correct in considering his income from private service and also simultaneously taking into consideration the agricultural income of the appellant for making calculation of the quantum of compensation. The Supreme Court in Jasbir Kaur (supra) observed that the "the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. " These observations would equally apply to the facts of the present case too. While the learned counsel for the appellant has made an additional argument that the Supreme Court in Jasbir Kaur, supra, was dealing with a case where it was a claim in a death case but in the present case, ratio of that judgment should apply with rather more force since it was a case of mere injury and the claimant-respondent still survives to supervise the work of cultivation as before. The learned counsel for the respondent however has pointed out that those observations were made by the Supreme Court considering the fact that no material was placed before the Tribunal about the agriculture income of the deceased and even then the Supreme Court awarded the compensation. In the present case, evidence that has been adduced before the Tribunal shows that the appellant was cultivating the vegetables in agriculture land with the help of his wife but separately he has also asserted before the Tribunal that he was full time salaried person working for the private firm from 9. 00 a. m. in the morning to 6. 00 p. m. in the evening. In recently decided case of Poonumany alias Krishnan & Anr. vs. V. A. Mohanan & Ors. in Civil Appeal No. 2151 of 2008 arising out of SLP (C) No. 5207 of 2006 decided by the Division Bench of the Apex Court vide order dated 27. 3. 2008, the Supreme Court reiterated the same principle with regard to agriculture income. In that case too, the injured was completely paralised due to head injury and his disability was assessed at 100%. It was asserted that he had income from agriculture but the Tribunal proceeded to calculate the loss by adopting notional income. It was held that since the injured "owned the lands, it cannot be said that there is total loss of income due to injury" and "thus, the calculation of amount of compensation on the basis of notional income cannot be faulted with. " ;