The definition of permanent partial disablement in the Workmen's Compensation Act is wide enough to cover any disablement of a permanent nature reducing earning capacity, and the Tribunal must consider compensation for loss of earning capacity under Section 163a of the Motor Vehicles Act.

( 1 ) THIS appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgement and award dated 30th September, 2004 passed by the Motor Accident Claims Tribunal (Aux.), FTC, Bharuch in M. A. C. P. No. 687/1996 preferred under Section 163a of the said Act, for enhancement of compensation amount on account of the injuries sustained by the appellant claimant in a motor vehicle accident resulting into permanent partial disablement.

( 2 ) THE appellant was at the relevant time employed as a driver of the Jeep insured by the respondent no. 2- United India Insurance Co. When the appellant was driving the Jeep from Jambusar to Navagam, Rajkot, a truck insured by respondent no. 4- the Oriental Insurance Co. was proceeding in the same direction ahead of the Jeep. Driver of the truck suddenly applied the brake and the appellant also applied the brake to stop the Jeep. In the process, the Jeep dashed with the truck on the rear side and the appellant sustained serious injuries. The appellant was taken to the Civil Hospital at Chotila and thereafter, to the Civil Hospital at Rajkot where he was admitted as an indoor patient. Plaster was applied on his right leg from knee to foot and also on his left hand from elbow to wrist. The appellant thereafter, took treatment from Dr. A. C. Shah (M. S. Ortho), Vadodara where the appellant was admitted as an indoor patient for 28 days.

( 3 ) THE appellant therefore, filed the claim petition under Section 163a of the Act for compensation of Rs. 2,00,000/ -. The appellant s case before the Tribunal was that the appellant was employed as a driver earning Rs. 2,200/- per month but after the accident, the appellant cannot do any work on account of permanent disablement. The appellant cannot work without crutches, cannot sit cross legged, cannot bend his fist and on account of all these disablements, the appellant cannot drive any vehicle. The appellant produced a Certificate issued by Orthopedic Surgeon at mark 15/5 certifying that the appellant has suffered disablement of 10% of right lower limb and 15% of left upper limb.

( 4 ) IT appears that during the pendency of the claim petition, the owner of the truck and insurer of the truck i. e. respondent no. 3 and 4 herein were deleted and the claim petition was prosecuted only against the owner and insurer of the Jeep.

( 5 ) RESPONDENT no. 2 (insurer of the Jeep) contested the claim petition on the ground that the appellant himself was a tortfeaser and therefore, the claim petition under section 163a was not maintainable. It was also contended on behalf of respondent no. 2 insurance company at the hearing of the claim petition that the injuries suffered by the appellant did not fall in Schedule-I to the Workmen s Compensation Act, 1923 and therefore, the claim petition under Section 163a was not at all maintainable for the purpose of claiming compensation for loss of earning capacity.

( 6 ) THE Tribunal accepted the appellant s case that the appellant had sustained injuries as recorded in the Certificate at mark 15/5 on account of the accident involving use of Jeep bearing registration No. GJ-16-C-2036, insured by respondent no. 2-United India Insurance Co. However, the Tribunal thereafter held that the disablements suffered by the appellant did not fall within Schedule-I of the Workmen s compensation Act and therefore, purporting to rely on Clause-5 of the Second Schedule to the M. V. Act 1988, the Tribunal held that the appellant was not entitled to get any compensation for loss of earning capacity. The Tribunal, awarded compensation only under the following heads :

Rs. 4500/- Actual loss of past income

(Rs. 1500x 3months)

Rs. 5000/- For pain, shock and suffering

Rs. 15,000/- For medical expenses

Rs. 24,500/- total compensation

( 7 ) THE appellant had produced medical bills for expenses incurred to the extent of Rs. 16,500/- but on account of the upper limit of Rs. 15,000/- fixed by the Legislature, the Tribunal restric