Rajesh Kumar @ Raju Vs. Yudhvir Singh & ANR. [2008] INSC 908 (13 May 2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of SLP (C)
No.8050 of 2007) Rajesh Kumar @ Raju ... Appellant Versus Yudhvir Singh &
Anr. ... Respondents
S.B. Sinha, J.
1. Leave granted.
2. Claimant before the Motor
Accident Claims Tribunal is the appellant before us. On 11.8.2001, he was
driving a two wheeler vehicle being a scooter. It was hit by a bus bearing
Registration No.DL-1P-A- 0746. He was a motor mechanic.
In July 2003, he filed a claim in
terms of Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act')
claiming a sum of 2 Rs.10,00,000/- along with interest at the rate of 18% per
annum.
Allegedly, he suffered 60% total
disability. His claim was based on the premise that he was earning a sum of
Rs.4,500/- per month.
3. Before the Tribunal, the
appellant relied upon a certificate purported to have been issued by the Civil
Surgeon, Faridabad on 11.11.2003 stating that he had suffered 60% disability.
The learned Motor Vehicle Accident Claims Tribunal awarded a sum of Rs.1,68,941
by way of compensation opining that his income was Rs.3,000/- per month and he
was entitled to compensation upon taking 30% of his income at the rate of
Rs.900/- per month being a total sum of Rs.20,000 besides the amount of
compensation towards pain and sufferings and a sum of Rs.5,000/- as general
damages including conveyance, special diet etc. An interest at the rate of 7%
per annum was also awarded.
4. He preferred an appeal
thereagainst. The High Court awarded a further sum of Rs.84,800/-, opining :
"Minimum wages notified on
1.1.1980 for skilled workers was Rs.320/- per month. It rose to Rs.1043/- as on
1.1.1990. It rose to Rs.3,016/- as on 1.1.2001. The trend shows that minimum
wages double every 10 years.
Considering the age of the
deceased being 34 years, it would be safe to assume that by the time he would
turn 60, his income would have doubled. I accordingly treat the average monthly
income of the deceased at Rs.4,500/-.
3 Aplying the disability
certificate, Ex.PW 2/2, being 30% disability, loss on account of disability
comes to Rs.1350/- per month. Since multiplier adopted by the tribunal is 12
and the Respondents have raised no objection thereto, loss of future income
comes to Rs. 1350/- x 12 x 12 = 1,94,400/-."
It was further observed :
"Damages on account of
compensation for loss of amenities of life, hardship and discomfort including
frustration and stress under general damages awarded in sum of Rs.5,000/- is
inadequate. I increase the same to Rs.25,000/-.
"
5. Mr. Gaurav Goel, learned
counsel appearing on behalf of the appellant, would submit that having regard
to the provisions contained in Section 163A of the Motor Vehicles Act, for the
purpose of awarding compensation on disability, the provisions of the Workmen's
Compensation Act, 1923 would be attracted. According to him, in view of the
fact that there is no dispute in regard to the genuineness of the said
disability certificate, the High Court committed a serious error in assessing
the total disability at 30% only. It was pointed out that the appellant was an
indoor patient in the Lady Harding Hospital for a month. The injury suffered by
him was considered to be a grievous one and allegedly one-third of his lower
limb had been amputated. In view of 4 the fact that no evidence, contrary
thereto, has been produced by the respondents, it was urged that the learned
Tribunal as also the High Court committed a serious illegality in arriving at
the aforementioned finding.
6. Learned counsel appearing on
behalf of the respondent-insurance company, however, supported the impugned
judgment.
7. The claim petition was filed
under Section 166 of the Act and not under Section 163A thereof. It was
contended by the claimant-appellant that the driver of the bus in question was
rash and negligent as a result whereof, the accident took place. By reason of
Section 167 of the Act, an injured person had the option either to file a claim
under the Motor Vehicles Act or the Workmen's Compensation Act, if both the
Acts apply. It is, therefore, a case where the claimant could have filed at his
option an application under the Workmen's Compensation Act.
Section 163A provides for filing
of a claim petition where an accident took place by reason of use of the motor
vehicle. It is not necessary to prove any fault on the part of the driver or
the vehicle. The Tribunal in a proceeding arising under Section 166 of the Act
is required to hold a full fledged trial. It is required to collect datas on
the basis whereof, the amount of compensation can be determined. Under Section
163A of the Act, however, the question of liability and extent of proof 5
thereof are not justiciable. The Tribunal can determine the amount on the basis
of the basic datas provided therefor.
Explanation appended to Section
163A of the Act, reads, thus :
Explanation.--For the purposes of
this sub- section, `permanent disability' shall have the same meaning and
extent as in the Workmen's Compensation Act, 1923."
8. The reference to Workmen's
Compensation Act by incorporation was only for the purpose of sub-section (1)
of Section 163A. It was not meant to apply in a case falling under Section 166
of the Act. Had the provisions of the Workmen's Compensation Act were
applicable, the procedure laid down therein would also apply. For the purpose
of the definition of total disablement as also person who can grant a
certificate therefor, namely, a qualified medical practitioner, Section 2(e)
and 2(i) would be attracted. In terms of the 1923 Act, the amount of
compensation is required to be determined as specified in Section 4. The Rules
made in terms of Section 32 of the Act known as Workmen's Compensation Rules
1924, would also be applicable.
9. The certificate in question in
this case was obtained after two years. It is not known as to whether the Civil
Surgeon of the hospital treated the appellant. On what basis, such a
certificate was issued two years after the accident took place is not known.
The author of the said 6 certificate had not been examined. Unless the author
of the certificate examined himself, it was not admissible in evidence. Whether
the disability at 60% was calculated on the basis of the provisions of the
Workmen's Compensation Act or otherwise is not known. It is also not known as
to whether he was competent to issue such a certificate. It even does not
appear that the contentions raised before us had either been raised before the
Tribunal or the High Court. The Tribunal as also the High Court, therefore,
proceeded on the materials brought on record by the parties. In absence of any
contention having been raised in regard to the applicability of the Workmen's
Compensation Act which, in our opinion, ex facie has no application, the same,
in our opinion, cannot be permitted to be raised for the first time.
10. We are of the opinion, that it
is not a case where we should interfere in the impugned judgment of the High
Court as also the award of the Tribunal. The appeal is dismissed with no order
as to costs.
.............................J.
[S.B. Sinha]
.............................J.
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