BUDH SINGH Vs. PRITAM SINGH

JUDGEMENT

(1.) The claim is for enhancement of compensation for a person whose hand was amputated in a motor accident. The Tribunal found that the issue of negligence had not been established and awarded Rs. 12,000/- as compensation under Section 140 of the MV Act.

(2.) The claimant was an Assistant Linesman in the Electricity Board and he claimed that he was driving his own cycle accompanied by a person by name Prem Singh. The insured's vehicle was coming from the opposite direction loaded with cement bags. The claimant's evidence was that a rope was dangling at the back of the truck and he got entangled with the rope and he was pulled down on the road and was dragged to about a distance of 10 to 15 feet and his hand was crushed under the wheel of the truck. The cross-examination had been undertaken about the length of the road and as to how the accident could not have been taken place in the manner in which it was stated by the claimant. PW4-Prem Singh gave evidence about the incident but his evidence was also rejected since there was a material contradiction about the direction in which the vehicle was coming. PW4 was asked about which side of the vehicle the rope was hanging and how the cyclist got entangled and his own evidence was that he was dragged to about a distance of about 20 to 25 feet and that people had collected immediately after the accident took place. A hair-splitting reasoning adopted by the Tribunal and the extreme forensic exercise that it had undertaken in a res ipsa loquitur situation leaves much to be desired. It was a wholly insensitive approach for a judge to say that the negligence was not established in a case where even the driver of the truck did not take courage to go to the witness stand to counter the version given by the claimant and his witness. Even a contradiction between the claimant and the witness about the direction in which the vehicle was travelling, in my view, would be wholly irrelevant, if he looks at the issue from the larger perspective of whether the accident like this resulting in an amputation could have been possible without there having been negligence on the part of the driver. Most significantly, in this case, there was no denial of the involvement of the truck in the accident. In my view that ought to be concluded the issue for proof of negligence of the driver. I, therefore, set aside the finding of the Tribunal and hold the driver of the insured's vehicle to be responsible for the accident by his negligent driving.

(3.) In the manner of assessment of compensation, it has to be seen that the doctor had been examined, who certified that the claimant had suffered an amputation that was assessed at 70% disability. 70% disability ought to be understood as resulting in 70% loss of earning capacity as well in the manner set out in the Schedule under the Workmen's Compensation Act. The fact that he was being retained in service shall be of no significance. The loss of earning capacity is understood in the context of what loss he would go through if he were to seek employment in open market. This aspect of the case has been considered by this Court in FAO No. 3432 of 2009, decided on 29.09.2010 titled New India Assurance Company Limited v. Smt. Santosh and Ors., 2010 160 PunLR 780 as under: