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Judgment
Wangdi, J.—This Appeal has been preferred against the judgment dated 07.06.2012 passed by the Motor Accident Claims Tribunal, East and North Sikkim at Gangtok in MACT Case No. 02 of 2012 by which the State-Appellant had been directed to pay to the Respondent/Claimant compensation of Rs. 11,85,398.00 along with interest @10% per annum from the date of filing the Claim Petition, i.e., 11.03.2012. Mr. J.B. Pradhan, learned Additional Advocate General appearing for the Appellant, submits that the award passed by the learned Claims Tribunal is exorbitant, in as much as, the monthly income is assessed on a basis which is unacceptable in law. It is his submission that reliance placed by the learned Claims Tribunal on two work orders of contract works pertaining to the years 2004-05 in the year 2012 and that too taking the estimated value of the contractual work as the basis for arriving at the monthly income of the Respondent/Claimant was unreasonable, unrealistic and arbitrary. Apart from this, there were also certain other issues raised by Mr. Pradhan pertaining to some payments already made to the Respondent/Claimant but not taken into consideration by the learned Claims Tribunal while passing the impugned judgment. Learned Additional Advocate General, however, submits that if the Respondent agrees to a negotiated settlement, the matter can be disposed of at this stage.
The learned Counsels were requested to work out the amount that could be mutually acceptable, for which the matter was adjourned for a short period. On being reconvened, this Court was informed that the Respondent/Claimant would be agreeable if the monthly income was reduced from Rs. 15,000/- to Rs. 10,000/-based upon which the award can be modified.
We have gone through the award passed by the learned Claims Tribunal and have perused the basis upon which the compensation has been worked out. We find the reasons given by the learned Claims Tribunal and the basis adopted by it in paragraphs 7 and 8 of the impugned judgment which we may reproduce under:-
Having come to the conclusion that the claimant is entitled to compensation it is now to be considered as to the quantum of compensation that is to be awarded to him. It has an (sic) admitted that the claimant met with an accident and sustained injuries. From the seven X-Ray plates marked as Exbt-19 it is found that steel platings with screws were implanted on lower limbs. Further as per the medical documents / prescriptions marked Exbt-17 in 129 pages, issued by various Doctors at Gangtok as well as of Siliguri the claimant had suffered disability and that he is unable to perform his normal duties. When there is disability as a result of injuries on his both legs and when the doctor had certained that he is unable to perform his normal duties, in my view it amounts to permanent total disability as held in 2000 (3) T.A.C. 711 (A.P), 1 (2005) ACC 36 and 1 (2005) ACC 78 (DB).
In 2000 (3) T.A.C. 711 (A.P) the Hon''ble High Court of Andhra Pradesh dismissed the appeal of the insurance company though the permanent bodily disability is 30% but by the said permanent disability of 30% the 01st O.P. became totally disabled to drive vehicle and therefore when he cannot perform the same duties, the total disability and the loss of earning capacity have to be taken as 100% by relying on a judgment of the same High Court reported in 1992 (2) L.L.J. 377. Similar views have been taken on the other two cited judgments. In this case the claimant has suffered disability in his lower limbs and he is also unable to perform his normal duties. Therefore the total disability and the loss of earning capacity have to be taken as 100% for the period of five years as claimed by the claimant.
Obvious from the above, the learned Tribunal has taken the disability of the Respondent/Claimant as total permanent disability based on two decisions of the Andhra Pradesh High Court where 30% disability had been considered in the facts and circumstances, as the claimant was a driver.
In the case before us, the Claimant admittedly is a Class III government contractor and the injuries suffered by him are compound fracture of both bones of right leg and fracture of acetabulum and that the treatment undergone by him was nailing of the fractured bones which is still to be removed. Mr. Ajay Rathi, learned Counsel for the Respondent/Claimant also submits that the steel implant inserted for support of the fractured bones is yet to be removed. Without going further into the factual aspects of the case as being unnecessary, the question for determination would be as to whether the injuries suffered by the Respondent/Claimant fall within the meaning of "Total Permanent Disablement/Permanent Partial Disablement" as provided in Schedule II under column 5 of the Motor Vehicles Act, 1988. Column 5 of Schedule II of the Motor Vehicles Act, 1988 is reproduced below for convenience:-
Disability in non-fatal accidents:
The following compensation shall be payble in case of disability to the victim arising out of non-fatal accidents -
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
PLUS either of the following -
(a) In case of permanent total disablement the amount payble shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payble in the case of permanent total disablement as specified under item (a) above.
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.
(Underlining emphasised)
As it appears in column 5, injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and the percentage of loss of total earning capacity shall be as per Schedule I under the Workmen''s Compensation Act, 1923.
I have perused Schedule I of the Workmen''s Compensation Act and I find that the injuries of the kind suffered by the Claimant/Respondent do not fall within any of the entries, be it Part I or Part II of Schedule I of the Workmen''s Compensation Act, 1923.
In the above circumstances, this Court is of the prima facie view that the learned Claims Tribunal appears to have misdirected itself in working out the compensation as set out at paragraph 14 of the impugned judgment.
At this stage, Mr. J.B. Pradhan, learned Additional Advocate General submitted that if the Respondent/Claimant accepts a reasonable amount, the matter need not be disposed of and decided on its merits which was likely to result in the case being remanded to the learned Claims Tribunal for fresh consideration on this aspect.
Mr. Ajay Rathi, learned Counsel for the Respondent/Claimant responded affirmatively to this and submitted that he would accept any fair and reasonable amount that may be quoted by this Court.
Giving due consideration to all aspects of the matter and the fact that the Respondent/Claimant had been taken good care of by the Appellant Department during his treatment and also the fact that the major part of the expenditure incurred towards the treatment had admittedly been borne by the Department, this Court suggested a lump sum amount of Rs. 5,00,000.00 (Rupees five lacs) only inclusive of all components as being fair and reasonable compensation. Mr. Ajay Rathi upon due consideration graciously accepted the amount and submitted that the matter can be disposed of on this.
In view of the above, the Appeal stands disposed of with compensation arrived at Rs. 5,00,000.00 (Rupees five lacs) only as a lump sum amount in favour of the Respondent/Claimant to be paid by the Appellant which shall be considered as full and final settlement of all claims. A sum of Rs. 4,00,000.00 (Rupees four lacs) only shall be deposited either in the State Bank of Sikkim or in any Nationalised Bank in Fixed Deposit for a period of at least 5 years in favour of the two minor children of the Respondent, namely, Ms. Juliana Subba, aged 13 years and Master Jullen Subba aged 12 years, leaving the balance of Rs. 1,00,000.00 (Rupees one lac) only to be paid to the Respondent/Claimant. These shall be done within a period of 30 days from today. The Appellant shall ensure that a copy of the FDR receipt is filed before this Court supported by an affidavit on or before 08.11.2012.
With the above observations, the M.A.C. Appeal stands disposed of. Records of the learned Motor Accident Claims Tribunal, East Sikkim at Gangtok be sent back forthwith.