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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mrs. Sabina, J.
New India Assurance Company Limited - Appellant
Versus
Ram Chandra Bairwa - Respondent
Civil Miscellaneous Appeal No. 1489 of 2009
Decided On : 08-05-2018
MOTOR VEHICLES ACT, 1988 - SECTION 163-A, 166 - SECOND SCHEDULE - WORKMEN'S COMPENSATION ACT, 1923 - SCHEDULE I - PART II - ITEM 20 TO 21 - PERMANENT DISABILITY - QUANTUM OF COMPENSATION - CALCULATION - INTERPRETATION OF STATUTES - APPLICATION OF MULTIPLIER - LOSS OF FUTURE PROSPECTS.
Fact of the Case:
Appellant challenged the quantum of compensation awarded to respondent No. 1 in a motor vehicle accident case. Respondent No. 1 suffered permanent physical impairment to the extent of 70% and filed a claim petition under Section 166 of the Motor Vehicles Act, 1988.
Finding of the Court:
The court held that the disability suffered by the appellant is liable to be taken as 70% and the appropriate multiplier to work out the amount of compensation is 14'. The court also held that the appellant is entitled to receive an additional 30% of the compensation amount towards loss of future prospects.
Issues: 1. Whether the disability suffered by the appellant should be taken as 50% or 70%? 2. Whether the multiplier of 14' or 15' should be applied to calculate the compensation amount? 3. Whether the appellant is entitled to compensation for loss of future prospects?
Ratio Decidendi: 1. The court interpreted Clause 5 of the Second Schedule of the Motor Vehicles Act, 1988, which provides that 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. 2. The court also interpreted Item 20 to 21 of Part II of Schedule I of the Workmen's Compensation Act, 1923, which provides for the percentage of loss of earning capacity for various types of disabilities. 3. The court held that the appellant's disability should be taken as 70% as per the disability certificate issued by the Board of Doctors and that the appropriate multiplier to calculate the compensation amount is 14'. 4. The court further held that the appellant is entitled to compensation for loss of future prospects.
Final Decision: The court dismissed the appeal and upheld the award of compensation granted by the Tribunal to the tune of Rs. 12,20,000/-.
JUDGMENT
Sabina, J. - Appellant has filed this appeal, challenging the award dated 05.01.2009 passed by the Tribunal, whereby claim petition filed by respondent No. 1 was allowed.
2. Learned counsel for the appellant has submitted that the challenge made by the Insurance Company in this appeal is with regard to the quantum of compensation awarded to respondent No.1. Learned counsel has further submitted that there was no evidence on record that the appellant had suffered any loss in his income vis-a-vis disability suffered by him. Tribunal should have taken disability of the appellant to the extent of 50%, in view of Clause 5 of Second Schedule of the Motor Vehicles Act, 1988 (hereinafter referred as the "Act"). Percentage of loss of earning capacity should be taken as per Item no. 20 to 21 of Part II of Schedule I of Workmen's Compensation Act, 1923. Learned Tribunal has erred in applying the multiplier of 15' where as multiplier of 14' was liable to be applied to work out the amount of compensation.
3. Learned counsel for respondent No. 1 has opposed the appeal and has submitted that the amount of compensation awarded by the Tribunal is rather on a lower side as no amount of compensation has been granted to the appellant towards loss of future prospects.
4. Respondent No. 1 had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of injuries suffered by him in the motor vehicle accident, which had occurred on 08.02.2007. As per Exhibit-1, appellant had suffered permanent physical impairment to the extent of 70%. Appellant had suffered fracture of left leg bones and amputation was done below knee with stump length of 8 c.m.
5. As per Exhibit-131, gross salary of the appellant was Rs. 8,339/-. Appellant was aged between 40-45 years, at the time of accident. Hence, appropriate multiplier to work out the amount of compensation vis-a-vis disability suffered by the appellant would be 14'.
6. Section 163-A and 166 of the Act read as under:-
"Section-163A. Special provisions as to payment of compensation on structured formula basis .
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.For the purposes of this sub-section, "permanent disability " shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. ]
Section-166. Application for compensation . -
(IX An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be i
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