Salim Khan vs Govind Singh and others

K. Kannan, J.—The appeal is at the instance of the claimant, who had suffered a privation of the arm from the shoulder resulting in a disability assessed at 85%. The accident was said to have occurred at the time when the claimant was going in the vehicle where he was working as a Cleaner. The petition was presented u/s 163A of the Motor Vehicles Act. He claimed that he had taken treatment at Delhi, but he did not place on record the medical bills for the expenses incurred. He also claimed that he was earning Rs. 3,000/- per month, but he did not place the evidence of the employer to substantiate the income said to have been earned by him. With no documentary evidence available, the Tribunal took the income to be Rs. 1,500/- per month and adopted a multiplier of 16 for 85% disability as resulting in 85% loss of earning capacity. The claimant is aggrieved that the Court did not properly assess the income as claimed by him and also did not provide for medical expenses which he had actually incurred. The counsel for the Insurance Company contends that the Motor Vehicles Act, Schedule II itself provides for a notional income of Rs. 15,000/- in case where there is no proof of income and the Tribunal was actually providing for Rs. 18,000/- as annual income which was more than the statutory minimum. The counsel would also contend that in the absence of proof of medical expenses, there could not have been any provision for medical expenses. The assessment of compensation by the Tribunal would, therefore, require to be sustained.

In a case where injuries have been sustained in the course of his employment and a person was pleading that he was actually working as a Cleaner, the assessment of income only at Rs. 1,500/-, in my view, is inappropriate. Recently in a judgment of the Supreme Court in Santosh Devi Versus National Insurance Company Limited and others-2012(2) RCR (Civil) 882, the Court has even considered that the scale of possible increase in income at 30% for persons, who were in the age group of less than 40 years could be applied also to non-governmental employments and the courts would be justified in providing for a prospect of increase over a period of time. Judging from this perspective, the income at Rs. 3,000/- per month, in my view, shall be appropriate. I must observe that notional income of Rs. 15,000/- as contemplated in Schedule-II is only for persons to whom there was no income prior to accident. Notional income need not be invoked in an occasion where a person was said to have earned an income of Rs. 3,000/-. Where a person was making an income but proof was not adduced, the Court will not be without jurisdiction to assess what he would have earned. The assessment of disability as 85% would require to be maintained, for, an amputation through the shoulder joint as per Part-II, Schedule-I of the Workmen''s Compensation Act makes the loss of earning capacity as 90% and amputation below joint with stump at 80%. The doctor has assessed it between the range of 80 and 90 at 85%. The compensation to be worked out in terms of Schedule-II therefore would be 3,000 x 85% x 12 x 16 =4,89,600/-. I will also provide for the statutory maximum of Rs. 15,000/- towards medical expenses, for, it is inconceivable that a privation of a organ after hospitalization could have been a free exercise. Even in the absence of medical bills that I am of the view that the statutory amount would require to be provided to him. To this will be also added the amount of Rs. 5,000/- for pain and suffering for grievous injury. The total amount comes to Rs. 5,09,600/-. The Tribunal has also assessed the compensation at Rs. 2,50,000/-. The amount in excess shall bear interest at 6% from the date of petition till date of payment. The appeal is allowed on the above terms.