SUDESH KUMAR S/O SH. PURAN CHAND Vs. UNION OF INDIA THROUGH SECRETARY SURFACE DEPARTMENT, GOVT. OF INDIA, AND ORS.

JUDGEMENT

(1.) THE appeal by the insurance company in FAO No. 1147 of 2009 and appeal by the claimant in FAO No. 382 of 2009 seeking for enhancement arise out of the same accident. As regards the liability on the insurance company, it was contended by the insurer that the driver did not have a valid driving license at the time of accident. The attempt of the insurer was to produce a letter by the licensing authority at Guwahati that the details of the copy of the license that were produced before the Court did not refer to any license that had been issued actually by the licensing authority and the insurer relied on the certification that license was not genuine. This was rejected by the Tribunal and the learned Counsel seeks to contend that the copy of the report must have been relied on. I cannot accept such a plea, for if it was not a certificate which is statutorily recognized, there ought to have been evidence to support the plea with reference to the original records that the license was not really issued and it was not genuine. Mere letter of the licensing authority cannot substitute the requirement of proof. I, therefore, affirm the finding of the Tribunal and hold that the insurance company is responsible to answer the claim and it has not discharged the burden that the driving license was not genuine.

(2.) AS regards the claim for enhancement of compensation, the claimant had suffered an amputation for the shoulder of one hand and in another hand also there had been an injury that caused stiffness and restricted the range of movement. The evidence through the doctor was that the claimant had suffered 100% disability. While determining the compensation, the Tribunal took the income of the claimant to be Rs. 2600/ -per month and determined a compensation of Rs. 3,90,913/ -that included an assessment for expenses for medicines, special diet, attendant charges, transportation and the loss of earning, which was determined at Rs. 3,74,544/ -. Learned Counsel appearing for the Appellant would contend that the evidence was that he was undertaking agricultural operations on lease and that he was earning Rs. 10,000/ -per month. The Tribunal took him to be an agricultural labor in the absence of any evidence relating to cultivation and lease and took the income to be Rs. 2600/ -per month. Learned Counsel for the Appellant would contend that if the claimant were to be taken merely as an agricultural labour, the Haryana Government, Labors Department vide notification dated 17.12.2004 determined the minimum wages for agricultural labour at Rs. 3510/ -per month and the minimum rate of wages at Rs. 135/ -per day. If an agricultural labour could be gainfully employed for about nine months and Rs. 3510/ -per month were to be taken as wages, the amount payable will approximate to the assessment made by the Tribunal providing to the claimant Rs. 2600/ -as the monthly income for all the 12 months. I, therefore, do not think that it is material to change the annual income which has been determined on the basis that he was having an average income of Rs. 2600/ - per month. I will, therefore, retain the same. While assessing the compensation, the only head of claim that would require to be modified is that the Tribunal has not considered the issue of pain and suffering and for a brief hospitalization that he had before his hand is amputated, I would provide for a compensation of Rs. 25,000/ -for pain and suffering for an amputation suffered by him. Even for loss of amenities for a young person, who has suffered an amputation, there has been no compensation assessed and I would assess the same to be Rs. 75,000/ -. As regards the loss of earning capacity, I would take the annual income as taken by the Tribunal and assess the loss of earning capacity to be 90% instead of 100% as taken by the Tribunal and take the annual loss of earning capacity as Rs. 28,080/ -and I would take a multiplier of 17 to take the loss of earning capacity at Rs. 4,77,360/ -. On an overall consideration, there will be an increase of Rs. 2,02,816/ -over and above what has been awarded by the Tribunal and the same shall bear interest @6% from the date of petition till the date of payment.