The court ruled that compensation must be based on consistent evidence of income, and contributory negligence cannot be assumed without clear evidence linking it to the accident.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

Heard, learned counsel for the parties.

1. The appellant/ Insurance Company is in appeal against the judgment and Award of compensation under Section 166 of the M.V. Act passed by learned Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi, in Compensation Case No.76 of 2012 which has been awarded for the permanent disablement suffered by the Claimant (Sahbaj Khan).

2. The finding of facts recorded by the learned Tribunal regarding the factum of incidence is not in challenge.

3. On 26.01.2012, respondent No.1/claimant (Sahbaj Khan) was driving Motorcycle on which two pillions were riding along with him. The accident took place involving a Truck bearing Registration No.JH01Z 3981 in which the claimant/ respondent No.1 sustained permanent disability to the extent of 40%, whereas Sahil Khan sustained fatal injuries and died of it and one Arman Ansari also suffered permanent disability.

4. The learned Tribunal held that there was 30% contributory negligence on the part of the claimant, Sahbaj Khan & Ors, and awarded compensation of Rs.7,52,486/- by taking Rs.12,000/- as his monthly income from tyre repairing business.

5. It has not been disputed by the appellant- Insurance Company that the vehicle was under its insurance cover.

6. The main plea that has been raised to assail the quantum of compensation is on two counts :-

Firstly in view of the ratio laid down by the Apex Court in the case reported in 2011(1) SCC 343 [Raj Kumar vs. Ajay Kumar & Anr.], it was incumbent on the part of the Tribunal to assess the loss of Future income by taking into account the functional disability resulting from the said accident and it is submitted that, the learned Tribunal mechanically applied the physical disability for assessing the Future loss of income.

Secondly, it is argued that as per the pleadings of the claimant in the claim petition, he was having a monthly income of Rs.12,000/- from the business of Auto-rickshaw in which he was a Driver. However, in the evidence, a completely new story has been sought to be set up that the claimant was having a monthly income of Rs.12,000/- from the business of tyre repairing of the tyres of motor vehicles. The evidence was beyond the pleadings and therefore should not have been accepted. It is contended that provision of motor vehicle claim case is indeed a beneficial piece of legislation, but it does not mean that the provisions of pleading and evidence have no application in these cases.

7. Even otherwise there is no details with regard to the business being carried out from which it can be inferred that the claimant was earning a sum of Rs.12,000/- per month by the deceased. Considering the nature of business, the very assessment of monthly income of Rs.12,000/- in the year 2012 is excessive and extravagant.

8. It is contended that in the claim case of Arman Ansari, it has been decided in the same case by the same judgment, the learned Tribunal has accepted only notional income for determining the compensation amount.

9. It is also argued that impairment of 40% will not affect the functional disability considering the occupation in which the claimant was involved.

10. Mr. Nikhil Ranjan, learned counsel for the claimant/ respondent No.1 has strongly contested the instant Misc. Appeal and argued that there was typographical error in the claim petition with regard to occupation of the claimant’s claim and therefore his occupation of tyre business could not be pleaded. However, there is consistent evidence that the claimant was having monthly income of Rs.12,000/- from the business of repairing of tyres. Law is settled that in claim cases, the strict rules of pleading do not apply. Considering the nature of occupation, 40% of disablement in locomotion amounted to 100% functional disability.

11. It is further contended that this is a fit case for enhancement of the compensation as the contributory negligence could not have been attributed to the deceased, for not wea