LALJIRAM Vs. SHYAMKUMAR

JUDGEMENT

(1.) Heard by consent. Both these appeals arise out of award dated 14.5.2008 passed by Member, Motor Accidents Claims Tribunal, Shajapur, in Claim Case No. 80 of 2007, whereby the learned Tribunal awarded a sum of Rs. 1,67,000 as compensation to the claimant and directed that the driver, owner and insurer are jointly and severally liable to pay the amount of compensation. Miscellaneous Appeal No. 2407 of 2008 has been filed by the insurance company on the ground that at the time of the accident, offending vehicle, i.e., dumper bearing registration No. MP 13-E 2385 was not having any permit, which is a breach of condition of insurance policy and insurance company is not liable to pay the amount of compensation. The learned Tribunal has committed an error in not exonerating the insurance company from the payment of compensation.

(2.) Miscellaneous Appeal No. 2494 of 2008 has been filed by the claimant for enhancement of compensation. The material facts of the case are that on 4.11.2006, the claimant Laljiram was travelling in a tractor-trolley along with other persons and was coming back to Ujjain. The tractor was parked at the side of the Jeythalnala Pipliya Road. At that time the non-applicant No. 2 Aditya Singh Dodiya, driving the dumper bearing registration No. MP 13-E 2385 rashly and negligently dashed against said tractor from behind due to which the trolley turned turtle, the claimant and other occupants of the trolley sustained injuries. F.I.R. was lodged with the Police Station, Ghatia. Investigating Officer after investigation filed a charge-sheet against the non-applicant No. 2 Aditya Singh Dodiya, for commission of offence punishable under sections 279, 337 and 338 of the Indian Penal Code.

(3.) In the claim petition it was alleged that in the accident, claimant Laljiram sustained grievous injuries and was admitted in hospital at Ujjain from 5.11.2006 to 14.11.2006 and then for further treatment he was admitted at Saluja Nursing Home from 15.11.2006 to 21.11.2006, where he was treated and his left leg was amputated below knee. It was alleged that at the time of accident claimant Laljiram was aged about 30 years and was earning Rs. 50,000 to Rs. 60,000 per annum. He was working as contractor and was mainly doing work of digging of wells and was also working as labourer along with other labourers. Tribunal assessed his income at Rs. 1,400 per month, i.e., Rs. 16,800 per annum. The learned counsel for the appellant drew my attention to the statement of Laljiram, AW 2, Kehsar Singh, AW 4, and submitted that due to amputation of his left leg below knee, he cannot do the work of labour and his loss of income is to the extent of 100 per cent. In respect of income, except Exh. P70 and statement of AW 4, no other cogent document has been filed to prove the exact income of the injured. Laljiram, AW 2, in para 6 of his cross-examination has deposed that he was taking the work of digging of wells and was doing labour contract job and his earning was Rs. 8,000 per month. It is also contended that prior to the date of accident he had dug the wells of Premnarayan, Mangilal, Lakshminarayan, Devilal, Bapulal, Hariprasad and Ishwar Singh. Taking into consideration the statement on record and the material documents filed by the claimant, it is duly proved that he was doing the work of digging wells with the help of other labourers and was earning Rs. 90 to Rs. 100 per day. As per para 13 of the cross-examination of Laljiram, AW 2, it can be very safely held that he was earning Rs. 2,700 per month, i.e., Rs. 90 per day. As per serial No. 20 of Schedule I of Workmen's Compensation Act, 1923, the percentage of disability is 50 per cent. As per evidence on record, before the accident the nature of work of the claimant was to take contract for digging of wells. From the evidence it has also come on record that claimant was also doing the work of digging of wells along with other labourers. Due to amputation of left leg below knee, the permanent physical or functional disablement is around 50 per cent, but looking to the fact that the claimant was also working as a labourer the actual loss of earning capacity may virtually be 100 per cent, as he is unable to do the work of labourer.