Judgment:
Bhaskar Bhattacharya, J.
1. This appeal is at the instance of a claimant in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 14th May, 2004 passed by the Additional District Judge, Twelfth Court, Alipore, and the Motor Accident Claim Tribunal, District-South 24-Parganas, in M.A.C. Case No. 267 of 2001, thereby disposing of the said proceeding by awarding a sum of Rs. 3,77,800/- in favour of the claimant by directing the National Insurance Company to pay the said amount within 60 days from the date of award with further direction that in default, the statutory interest over the compensation would accrue.
2. Being dissatisfied, the claimant has come up with the present appeal. There is no dispute about the involvement of the offending vehicle in the accident resulting in physical injury of the claimant and the fact that such vehicle is insured by the National Insurance Company. According to the appellant, he was a mason and used to earn Rs. 120/- a day and his age was 32 years at the time of accident. It has appeared from the medical certificate issued by the competent medical officer that due to the accident, the claimant suffered 65% permanent disability.
3. The learned Tribunal below was of the view that the claimant being a mason was not expected to procure his job for consecutive 30 days in a month and, thus, came to the conclusion that the monthly income of the victim should be treated to be 120 x 25= Rs. 3,000/- a month. By applying the multiplier of 17 and thereafter, adjusting the permanent disability to the extent of 65%, the amount was assessed to be Rs. 3,97,800/-. The Tribunal below further held that an additional sum of Rs. 5,000/- should be further added for the pain and sufferings of the victim and the total amount of compensation would come to Rs. 4,02,800/-. As the claimant had already obtained a sum of Rs. 25,000/- in an earlier proceeding under Section 140 of the Motor Vehicles Act, the Insurance Company was directed to pay the balance amount of Rs. 3,77,800/-, as mentioned earlier.
4. Being dissatisfied, the claimant has come up with the present appeal. Mr. Banerjee, the learned advocate appearing on behalf of the appellant, strenuously contended before us that there was no just cause of reducing the income of the appellant from Rs. 3,600/- a month claimed by the appellant to Rs. 3,000/- on the assumption that he would get job for 25 days in a month. Mr. Banerjee further contends that although the doctor, the P.W.-2, has assessed the permanent disability to the extent of 65%, having regard to the fact that the claimant is a mason and due to accident he has lost the strength of his both the legs, such disablement should be treated to be 100%, as a mason with such injury on both the legs cannot perform his job by climbing on the ladder of a multi-storied building. In support of such contention, Mr. Banerjee relied upon the decision of the Supreme Court in the case of Pratap Narain Singh Deo v. Srinivas Sabata reported in 1976 ACJ 141.
5. Mr. Banerjee further contends that before the learned Tribunal below his client, immediately after the cross-examination of his client and before the completion of the examination of the next witness, filed an application for recall of P.W.-1 on the ground that due to bona fide mistake on the part of his learned advocate, no question was put to him as regards the actual medical expenditure incurred by his client but the learned Tribunal below erroneously rejected such application thereby depriving his client to prove the medical expenses for his treatment notwithstanding the fact that his client possessed all documentary evidence in support of such claim. He, therefore, prays for addition of that amount towards compensation. Mr. Banerjee further submits that the learned Tribunal below should have unconditionally awarded interest on the awarded amount.
6. Mr. Singh, the learned advocate appearing on behalf of the Insurance Company, has, on the other hand, opposed the aforesaid contentions of the Mr. Banerjee and has contended that there is no justification of treating the disablement of 65% as found by the medical expert to be one of 100% simply because the appellant is a mason. Mr. Singh contends that even by 65% disability, a skilled mason can perform his duty as such, although with difficulties, and, thus, the Tribunal did not commit any mistake in restricting the disability to the extent indicated in the medical certificate. Mr. Singh contends that the decision of the Supreme Court in the case of Pratap Narain Singh (supra), relied upon by Mr. Banerjee, has been explained in various subsequent cases and according to those decisions, what is necessary to adjudicate is whether the claimant has become disabled to do any type of work and not the one which he was accustomed to do. In support of such contention, Mr. Singh relies upon the following decisions:
(1) Mr. R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors. reported in 1995 WBLR (SC) 127;
(2) Ramprasad Balmiki v. Anil Kumal Jalan and Ors. reported in : (2009)IIILLJ359SC ;
(3) Rajesh Kumar v. Yudhvir Singh and Anr. reported in : AIR2008SC2396 ;
(4) National Insurance Co. Ltd. v. Mubasir Ahmed and Anr. reported in 2007(2) TAC 3 (SC);
(5) North-West Karnataka State Road Transport Corporation v. Mallikarjun Sanganabasappa Shettar and Anr. reported in 2002(2) TAC 149 (SC);
(6) Bheru Lal v. Usman and Ors. reported in 2006 (1) TAC 108 (MP);
(7) Shivalinga Shivanagowda Patil and Anr. v. Erappa Basappa Bhavihala reported in : (2004)ILLJ1089Kant .
7. Mr. Singh, therefore, prays for dismissal of the appeal. After hearing the learned Counsel for the parties and after going through the materials on record, we do not find any reason to interfere with the finding of the learned Trial Judge as regards the income of the victim. A certificate was produced before the Tribunal in support of his claim that he used to earn Rs. 120/- a day. In our view, the Tribunal below was quite justified in observing that a mason generally does not get continuous of work for 30 days a month and on that basis, the finding of the Tribunal below that the income of the appellant was Rs. 3,000/- a month by deducting five days in a month on the basis of Rs. 120/- a day cannot be said to be unreasonable. Even if a mason gets sufficient amount of work throughout the month, it is expected that he would take rest for at least a day in a week.
8. As regards the application of multiplier, we do not find any illegality. As the applicant was aged 32 years, the Tribunal below rightly applied the multiplier of 17 to the facts of the present case.
9. The most vital question that arises for determination in this appeal is whether merely because the claimant was a mason by profession and by the accident he has lost strength of both the legs, such disability, although assessed to be 65% by the medical expert, should be treated to be higher in percentage than the said assessment.
10. In the case of Pratap Narayan Shingdeo v. Shrinivas Sabata (supra), a four-Judges-Bench of the Supreme Court had the occasion to consider a case of compensation under the Workmen's Compensation Act where a carpenter due to accident suffered injuries resulting in the amputation of his left arm from the elbow. According to the Commissioner, a carpenter with one hand cannot perform his job and thus, the disability should be held to be 100%. The High Court summarily rejected the appeal of the employer. On further appeal to the Supreme Court, the said question was answered by the Court in the following way:
The expression 'total disablement' has been defined in Section 2(1) of the Act as follows:
(1) 'total disablement' means such disablement, whether of a temporary or permanent nature, as incapacitates work- man for all work which he was capable of performing at the time of the accident resulting in such disablement.' It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent and true question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:
The injured workman in this case is carpenter by profession..., By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8' from tip of acromion to lees than 4 1/2' below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.
11. By relying upon the aforesaid observations of the Apex Court it was strenuously contended by Mr. Banerjee that by the similar analogy, a mason having lost strength on both the legs should be taken to be 100% permanent disabled as no body will employ such a person for Masonic job which is required to be accomplished by standing on a ladder. In our view, the case of a carpenter having amputation of one hand from elbow cannot be placed in the same position with that of a mason whose both the legs have suffered partial permanent injury assessed to be 65%. A carpenter with one hand, cannot do the job of carpentry at all whereas a mason specialized in that job even without using ladder can do the work of internal decorations and other Masonic work, of course with difficulties, and not like a full-fledged mason and for that reason, he should be treated to be 65% disabled; but at any rate, he cannot be said to be 100% permanently disabled as found in the case of Pratap Narayan Shingdeo (supra). Therefore, the said case is factually distinguishable from the present case. As we find no reason to apply the dictum of the Apex Court in the case of Pratap Narayan Shingdeo (supra) to the facts of this case, we refrain from dealing with the decisions cited by Mr. Singh where the case of Pratap Narayan Shingdeo was distinguished. The learned Tribunal below, therefore, rightly assessed the amount of compensation by treating the disability to be 65%.
12. We, however, find substance in the contention of Mr. Banerjee that the learned Tribunal below ought to have awarded interest at the rate of 8% per annum on the awarded sum from the date of filing the application till the deposit of the amount by the Tribunal below irrespective of the fact whether the Insurance Company defaulted in making payment within the stipulated period. For the delayed disposal of the proceedings, it was the Insurance Company who has been benefited as they had the advantage of earning by investing the money in other sources. We, accordingly, award interest on the awarded sum at the rate of 8% per annum from the date of filing of the application till the deposit by the Insurance Company.
13. We are also impressed by the submission of Mr. Banerjee that there was no justified reason for rejecting the prayer for recalling the petitioner for the purpose of proving the documentary evidence in support of the expenditure incurred by the appellant for his medical treatment when admittedly for no fault on his part, he suffered injury resulting in 65% permanent disablement and such application for recalling was filed before the close of examination of his other witnesses.
14. We, therefore, partly modify the award impugned by awarding interest on the amount awarded by the Tribunal below at the rate indicated above and make a limited remand of the matter by giving liberty to the appellant to prove documentary evidence in support of his claim of medical expenditure. The Insurance Company will be at liberty to give evidence on rebuttal on such point. The learned Trial Judge will dispose of the only remaining issue as to entitlement of the appellant towards the medical expenditure incurred by him. Such issue should be decided within two months from the date of receipt of this order by the Tribunal below. If such issue is decided by the Tribunal in favour of the appellant, it will also award interest at the rate of 8% per annum on such additional sum as awarded by us.
15. The appeal is, thus, allowed to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.
Bhaskar Bhattacharya, J.
16. I agree.