MCD and Another vs Jabid Sekh

Kailash Gambhir, J.—Aggrieved with the accident by the bulldozer of the MCD, the present cross appeals have been filed, one by the MCD bearing MAC. App. No. 948-49/2006 and the other by the claimants bearing MAC. App. 1017/2006 assailing the findings of the Tribunal. Both the appeals can be disposed of by this common order. Before dwelling on the merits of the case, it would be appropriate to give brief facts of the case as under:-

On 5.2.2005, Sh. Jabid Sekh was gathering the garbage from the MCD Garbage Dump at Bhalswa Dairy, suddenly, bulldozer bearing registration No. G-10241, which was driven in a very rash and negligent manner, ran over his left leg. He was removed to BJRM Hospital from the site of accident, where his leg was operated upon and was amputated below knee. A claim petition was filed on 2.5.2003 before the Motor Accident Claims Tribunal and an award was made on 15.7.2006. Aggrieved with the said award, the aforesaid cross appeals have been filed.

I have heard learned counsel for the parties at considerable length and have perused the records.

Ms. Smita Shankar, counsel appearing for the MCD in MAC. App. No. 948-49/2006 contends that there is a manifest contradiction on the part of the claimant victim in disclosing his correct age as well as the correct income. Referring to the claim petition itself, where in Para 3, the age of the claimant has been stated to be of 27 years, while in main Para 4 of the same very petition, the claimant has stated his age as 28 years. Similarly, in Para 6 the income has been stated as Rs. 4,000/- per month while in main Para 10 of the petition it has been stated as Rs. 5,000/- per month. The contention of counsel for MCD is that the claimant victim himself has been inconsistent in his stand, therefore, no reliance can be placed on the truthfulness of the claim petition itself. The next contention of counsel for MCD is that the respondent/claimant admittedly had entered the prohibited area where he was allegedly debarred to go, therefore, the MCD cannot be held liable for the folly and wrong act of the claimant who entered the said prohibited zone at his own risk and peril. Supplementing this very contention, counsel further contends that even in that area, no such accident could have occurred that too involving bulldozer of the MCD which is generally not driven at a high speed, usually at the speed of 3 to 4 km/hr. Counsel also contends that the claimant had examined himself without producing any other eye witness, therefore, the said supporting testimony of the claimant could not have been believed. Counsel also contends that the claimant did not render any income proof and also details of expenses incurred in the treatment of injuries. Counsel also contends that even the disability certificate produced by the claimant injured of Haldia S.D Hospital Midnapor, West Bengal, apparently shows that the said certificate dated 19.5.2005 was procured by the claimant injured on 19.5.2005.

Refuting the said contention of counsel for the MCD, counsel for the claimant in MAC. App. No. 1017/2006 contends that FIR No. 71/05 was duly registered against the driver of the bulldozer, therefore, it cannot be said that the driver was not driving the bulldozer in a rash and negligent manner. Counsel further contends that after the accident, the claimant injured was admitted in Babu Jagjivan Ram Hospital and MLC bearing No. 17342 of the said hospital has been filed and proved on record. Counsel further contends that because the said disability certificate was obtained from hospital at Midnapore when the claimant went to his said village, the truthfulness of the said occurrence of the accident and a subsequent injury suffered by the claimant cannot be disbelieved. Counsel further contends that the Court has taken into consideration the minimum wages and that is only because the claimant injured failed to prove his income as stated by him in the claim petition. As regards the inconsistency in the petition, the contention of counsel for the claimant injured is that the same may be due to typographical error on the part of the typist, therefore, the same cannot have any glaring effect on the merits of the case.

The accident in question involves a young man of 27 years of age, who was doing the job of rag picking so as to earn his livelihood. His left leg has been amputated due to the multiple injuries received by him in the said accident. It is no doubt true that the said rag-picker should not have entered in the aforesaid prohibited place, the dumping place, but that cannot mean that due to one''s economic condition and poverty one enters that area so he has no right to protect himself. The driver of the bulldozer should have been alive and conscious to the surrounding circumstances so as to avoid any kind of such accident. The FIR has been duly registered against the driver of the offending vehicle, therefore, the registration of an FIR itself is sufficient to prove negligence on the part of the driver of the offending vehicle so far as compensation case is concerned. The contention of counsel for the MCD on this aspect is repelled. The injury of the claimant has been duly proved by him by proving the medical records including the MLC and the disability certificate as well. Perusal of disability certificate shows that the address of the claimant injured has been shown therein of Nandigram itself, therefore, no fault can be found with the said certificate. Simply the same was issued by the hospital at Midnapore during which period the claimant was residing at his village.

As regards salary, the contention of counsel for the MCD is that no income proof was furnished by the claimant. I find this argument equally devoid of any merit as the Tribunal has not believed the income so stated by the claimant injured and in the absence of any documentary evidence placed by the claimant injured, the recourse has been made to the Minimum Wages Act to assess the income of the claimant. Even on this ground, I do not find any force.

In the light of the above discussion, the appeal filed by the MCD is dismissed.

In the cross appeal bearing MAC. APP. No. 1017/2006, the claimant injured has claimed enhancement in compensation. The contention of counsel for the claimant is that the Tribunal has not taken into consideration the raise in the minimum wages. Counsel for the claimant has placed reliance on the judgment of this Court reported in Mohd. Israil Vs. DTC and Others, , to claim the benefit of increase in the minimum wages under the Minimum Wages Act. Counsel for the claimant has also claimed compensation for the loss of amenities suffered by the claimant injured due to the amputation of his leg. I find myself in agreement with the counsel for the claimant injured. Once the Court has taken into consideration, the minimum wages for assessing the income of the claimant, therefore, the increase in the minimum wages has also to be considered. It has already been held by this Court that the increase in the minimum wages are not akin to future prospects. It is noticed that the minimum wages are generally increased once in a year and the same gets more than doubled at least in a period of 10 years. The increase in the minimum wages is considered so as to neutralize the falling power of rupee due to inflation. The multiplier of 18 has been applied in the present case, therefore, safely the minimum wages of the claimant would have at least doubled during this period. The minimum wages of the unskilled worker as on 01.1.2005 was Rs. 3044.90 and if the same are taken to have doubled, the same would come to Rs. 6089.80, the same can be taken to be Rs. 6,100/- as a round figure. From this amount, taking average of both the said incomes, the monthly income of the claimant injured would come to Rs. 4572/- and annual income would be Rs. 54,864/-. After applying multiplier of 18 and further considering 70% disability, the loss of earning of the claimant injured would come out as Rs. 6,91,286.40. The loss of amenities will be enhanced to Rs. 75,000/- in MAC. App. No. 1017/2006. With these directions, the present appeals are disposed of.