V.K. Mehrotra, J.
1. We have heard learned counsel for the parties further today and feel that, in the circumstances of the present case, the finding recorded by the Motor Accidents Claims Tribunal, Solan to the effect that the case was not a fit one for condoning the delay in the presentation of the claim petition deserves to be set aside.
2. Deep Ram, appellant, was travelling in a bus of the H.R.T.C. bearing registration No. HIE 72 along with his wife from Bilaspur to Kotla. This was on February 4, 1988. An accident took place near Danoghat. In it Deep Ram sustained a number of injuries. The driver of the bus also died in it.
3. After remaining in the hospital at Shimla for about 11 days, Deep Ram was discharged on February 15, 1988. The case of Deep Ram is that he remained unconscious for a period of about 5 days after the accident. Several injuries, which are mentioned in the discharge slip (marked 'X'), were found on the person of Deep Ram for which treatment was given to him.
4. The petition, out of which the present appeal arises, under Section 110-A (1) of the Motor Vehicles Act, 1939, which was then in force, was filed by Deep Ram before the Claims Tribunal on December 5, 1988. It could have been filed within six months of the date of the accident as provided under Section 110-A (3) of the Motor Vehicles Act. It could have been entertained by the Claims Tribunal beyond that period in case the Tribunal felt satisfied that the applicant had sufficient cause for not making the application in time. This is contemplated by the proviso to Section 110-A (3).
5. At the trial of the claim petition (No. 34-S/2 of 1989), the petitioner as well as the H.R.T.C. examined some witnesses and placed on the record some documents as well.
6. The learned District Judge, who presided at the Tribunal, had framed four issues of which issue No. 3 was 'whether the petition is within limitation? OPP'.
7. This issue was found against the claimant. The petition was dismissed by the learned District Judge, thereafter without going into any other issue.
8. The petition, to be within limitation, could have been filed by August 4, 1988. Thus there was delay of about four months in filing it. The learned District Judge felt that there was contradiction in the facts stated by the petitioner, in support of his plea for condoning the delay for filing the petition, in para 23 of the claim petition and those stated in the application made by him for the purpose under Section 5 of the Limitation Act.
9. In para 23, what had been stated, in essence, was that the petitioner resided in a remote area of Tehsil Suni and was unable to undertake the journey and further that there was no deliberate lapse on his part in filing the petition. In the application under Section 5 of the Limitation Act, in which facts were given out in para Nos. 2 to 5, it was basically stated that the petitioner was an illiterate villager and not conversant with rules and regulations and was not aware that the claim petition was to be filed within six months. Also, that he came to learn from Mr. G.D. Verma, Advocate, Shimla, when he came to the hospital for a check-up, that he could file a claim petition. It was reiterated that there was no deliberate lapse on his part in filing the petition.
10. It is difficult to discover any patent contradiction in the stand taken by the petitioner in the statement made by him in para 23 of the claim petition and that made in the application under Section 5. In both of them he has stressed that he was living in a village. All that has happened is that while filing the separate application with a prayer to condone the delay, the petitioner added some more reasons to the effect that being a villager, he did not know that he had a right to claim compensation by filing a petition and that he came to know about it from an advocate whom he met at Shimla where he had gone for a check-up.
11. We have been taken through the statement made by Deep Ram on oath as PW 1 before the Claims Tribunal. In the examination-in-chief, he stated that he had filed the claim petition after about a year of the accident after he was told by Mr. G.D. Verma, Advocate, who belonged to a village near his own, that he could file such a petition. He has also stated that he was an illiterate person and nobody had told him in the village, for reaching which he had to travel for 1 1/2 hours from the main road, that he could file a claim petition. We find that claimant Deep Ram had been cross-examined at length, but the only cross-examination touching the question of delay was to the effect that while he was in the hospital, after the accident, persons from his village as well as the lawyer had gone to meet him. There is a statement volunteered by the claimant Deep Ram in the cross-examination to the effect that the lawyer had not gone to the hospital to meet him. The matter was not pursued any further and it is difficult to ignore the statement, though volunteered by Deep Ram, that the lawyer had not gone to see him in the hospital.
12. The fact that Deep Ram is an illiterate villager can, in the state of evidence on record, admit of no doubt. This too cannot be disputed that he comes from a remote village. The circumstance that he remained in the hospital for about 11 days, out of which he was unconscious for nearly five days, lends credence to his version that it was long after the accident that he could have known that he had a right to file a claim petition.
13. The doctor to whom Deep Ram was referred for treatment in the Indira Gandhi Medical College, Shimla has appeared as PW 2 before the Tribunal. He is Dr. S.R. Thakur, Associate Professor of Orthopaedics, Indira Gandhi Medical College, Shimla. He has stated that Deep Ram had stiffness of left shoulder due to trauma, due to which he had been issued a disability certificate showing ten per cent physical impairment and loss of function of left upper limb. Also, that he would have some pain and stiffness of left shoulder permanently and would not be able to do hard work, especially ploughing. When cross-examined on behalf of the H.R.T.C., Dr. Thakur reiterated that the injured could not do hard work, especially ploughing and his stiffness could not be cured.
14. The statement of the doctor, apart from having a bearing on the quantum of compensation to which Deep Ram may be held entitled, also suggests that his physical condition was such that he could not take active steps for vindication of his legal rights by filing the claim petition forthwith. All these circumstances led us to the view that the delay of about four months in the presentation of the claim petition by Deep Ram deserved to be condoned.
15. We, therefore, condoned it.
16. Coming now to the other issues, we find that on issue No. 1 (Whether Deep Ram suffered, received injuries on account of rash and negligent driving of respondent's driver who also expired in the same accident on February 4, 1988 who was driving the vehicle No. HIE 72 which met with accident?), the Tribunal has itself recorded the findings that the accident was due to negligent driving of the driver, who was an employee of the respondent Corporation, and that petitioner Deep Ram sustained injuries in that accident.
17. The next issue No. 2 [If issue No. 1 is proved in affirmative, to what amount claimant is entitled? (PP)] was answered in the negative by the Tribunal in the following words:
In view of my findings on issue No. 3 above, the petitioner is not entitled to any compensation. The issue is as such decided against the petitioner.
18. Since we have not accepted the findings of the Claims Tribunal on issue No. 3 and have, differing from it, chosen to decide the issue in favour of the claimant and condone the delay, we proceed to determine the amount which is payable to Deep Ram by way of compensation.
19. In para 21 of the claim petition, Deep Ram has claimed a total amount of Rs. 1,15,000/- by way of compensation. Out of it, he has made a claim for Rs. 1,00,000/-as compensation on account of injuries suffered by him in the accident and suffering from pain on that account. He has also claimed expenses in connection with medical treatment at Rs. 5,000/- and further an amount of Rs 5,000/- each towards the expenditure incurred on diet, etc., with attendant and on travelling.
20. There is no evidence on record from which the actual amount spent by Deep Ram either on his medical treatment or on diet, etc., with attendant and travelling, can be verified. The explanation which Deep Ram has given for not retaining and producing vouchers, etc., is that he was not aware that he will have to file a claim petition.
21. Though it is true that there is no specific evidence regarding the aforesaid items of expenditure incurred by claimant Deep Ram for his medical treatment, diet and travelling, yet some expenses must have been incurred by him for travelling from his village to Shimla and staying at Shimla in the hospital for undergoing the treatment. It is in the evidence of Deep Ram himself that the distance of his village from Shimla is about 100 km. and that the fare for travelling one way from his village to Shimla is Rs. 25/- for a person. We have seen the various entries contained in the discharge slip (marked 'X') pertaining to the treatment given to Deep Ram. Having regard thereto and the statement of Dr. Thakur, as also having regard to the distance between the village of claimant Deep Ram and Shimla, and further having regard to the amount which may have been spent for the attendant who accompanied him, we feel that a sum of Rs. 2,000/- should be assessed as compensation under these heads. We have to make this guesswork of necessity.
22. The disability which Deep Ram has suffered has been found to be ten per cent and of permanent nature. We find that there is no reliable evidence on the basis of which we may assess the amount of compensation payable to Deep Ram on account of ten per cent permanent disability suffered by him. In order to make a guess about the amount of compensation to which he should be held entitled, we have looked into the provisions of the Workmen's Compensation Act, 1923 ('the Act' hereafter).
23. Section 4(1)(c)(ii) of the Act shows that where permanent partial disablement results from an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury, will be the compensation.
24. We find in the preceding Sub-section (b) of Section 4(1), which relates to permanent total disablement resulting from injury, that the maximum monthly wages of a workman for the purpose of calculation of compensation shall be deemed to be Rs. 1,000/-.
25. A reference to Schedule IV of the Act shows that for a person aged about 50 years (as claimant Deep Ram is), the factor for working out lump sum equivalent of compensation amount in case of permanent disablement is 153.09.
26. Applying this factor to the case of a person who suffers permanent disability and is earning the maximum wages of Rs. 1,000/-per month with reference to Section 4(1)(b), the amount payable would be about Rs. 76,500/- (representing an amount equal to fifty per cent of the monthly wages of the injured workman multiplied by the relevant factor). Since the percentage of disability found in the case of Deep Ram is ten per cent, the amount payable to an injured workman with that percentage of disability under the Act would be around Rs. 7,650/-.
27. In his statement before the Claims Tribunal, Deep Ram has said that he was making some income by running a gharaat (water mill), apart from the income that he derived from the crops of maize and wheat from about 28 to 30 bighas of land which he was cultivating. He has not disclosed the quantum of his income at all. We can take judicial notice of the fact that the area in which the agricultural land of Deep Ram is situate does not have very good crops and the yield there from is not very substantial. Having regard to all these circumstances, we assume the monthly income of Deep Ram to be Rs. 1,000/- per month. That would mean that under the Workmen's Compensation Act he would have been entitled to Rs. 8,000/-by way of compensation.
28. We would, thus, consider a total amount of Rs. 11,000/- as the fair amount of compensation to which Deep Ram would be entitled in the case inclusive of Rs. 1,000/-given by way of compensation to him for pain and suffering.
29. We would, therefore, answer issue No. 2 in favour of the claimant Deep Ram as aforesaid.
30. Eventually, the relief (under issue No. 4) to which appellant Deep Ram is entitled is award of compensation in his favour for a sum of Rs. 11,000/-. The amount shall be paid to the claimant-appellant by the H.R.T.C. within one month from today. The appeal shall stand allowed in these terms though we leave the parties to bear their own costs in this court.