RAJESH KUMAR @ RAJUversusYUDHVIR SINGH & ANR.

                          [2008] 8 S.C.R. 532


                     RAJESH KUMAR @ RAJU
                                   V.
                      YUDHVIR SINGH & ANR.
                   (Civil Appeal No.3538 of 2008)
                            MAY 13, 2008
B
      [S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]

          Motor Vehicles Act, 1988 - s. 163A, explanation - Refer-
    enc.e of Workman Compensation Act, 1923 in explanation
c · appended to s.163A(1)"""' Held: Is only for the purpose of said
    section, and is not meant to apply to cases falling under s. 156.
       ·s. 166 - Disability - Claimant claiming compensation on
  the ground that he suffered 60% disability - Certificate of civil
  surgeon stating 60% disability, put on record - Courts below
D assessed total disability at 30% - On appeal, held: The certifi-      )' ,,
  cate not admissible in evidence as the author of certificate
  was not examined - Moreover, it was issued after 2 years of
  accident and it was not proved whether author treated the claim-
  ant orwas competent to issue such certificate.
E       The victim of motor accident, which took place in
  August, 2001, filed claim petition under s.166 of Motor
  Vehicles Act, 1988 claiming compensation on the ground
  that' he suffered 60% total disability. The claimant-appel-
  lant relied upon a certificate issued by the Civil Surgeon            >
F oii Nbvember, 2003 stating that he had suffered 60% dis-                  '
  ability.· Tribunal awarded compensation upon taking 30%
  of his 'income. On appeal, High Court assessed total dis-
  ability at 30% and accordingly awarded compensation.
G        In appeal to this Court, claimant-appellant contended
    that having regard to the provisions contained in s.163A
    of the Motor Vehicles Act, for the purpose of awarding
    compensation on disability, the provisions of the
    Workmen's Compensation Act, 1923 would be attracted;
H                                 532
                  RAJESH KUMAR @ RAJU v. YUDHVIR SINGH             533
                                     &ANR
: -t      and that in view of the fact that there was no dispute in       A
          regard to the genuineness of the said disability certificate,
          the High Court committed a. serious error in assessing
          the total disability at 30% only.
               Dismissing the appeal, the Court
                                                                          B
                HELD: 1.1 The claim petition was filed· under s.166
          of the Motor Vehicles Act and not under s.163A thereof.
          S.163A provides for filing of a claim petition where an ac-
          cident took place by reason of use of the motor vehicle. It
          is not necessary to prove any fault on the part of the driver . c
          or the vehicle. The Tribunal in a proceeding arising un-
          der s.166 of the Act is required to hold a full fledged trial.
          It is required to collect datas on the basis whereof, the
          amount of compensation can be determined.· Under
          s.163A of the Act, however, the question of liability and
                                                                          0
          extent of proof thereof are not justiciable. The Tribunal
          can determine the amount on the basis of the basic datas
          provided therefor. [Para 7) [536-C,E,F]
                1.2. The reference to Workmen's Compensation Act
          by incorporation was only for the purpose of sub-section E
          (1) of s.163A. It was not meant to apply in a case falling
          under s.166 of the Act. Had the provisions of the
          Workmen's Compensation Act were applicable, the pro-
          cedure laid down therein would also apply. For the pur-

 • ....   pose of the definition of total disablement as also person F
          who can grant a certificate therefor, namely, a qualified
          medical practitioner, ss.2(e) and 2(i) would be attracted.
          In terms of the 1923 Act, the amount of compensation is
          required to be determined as specified in s.4. The Rules
          made in terms of s.32 of the Act known as Workmen's G
          Compensation Rules 1924, would also be applicable.
          [Para 8] [536-H, 537-A,B]
               2. The certificate in question was obtained after two
          years. It is not known as to whether the Civil Surgeon of
          the hospital treated the appellant. On what basis, such a H
    534       SUPREME COURT REPORTS                   [2008) 8 S.C.R.


A   certificate was issued two years after the accident took
    place is not known. The author of the said certificate had
    not been examined. Unless the author of the certificate
    examined himself, it was not admissible in evidence.
    [Para 9] [537-C,D]
B        CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3538
    of 2008
         From the Judgment and Order dated 18/1/2007 of the High
    Court of Delhi at New Delhi in MAC Appeal No. 886/2005
C       Gaurav Goel, Amit Sharma, Mahesh Agarwal and E.C.
    Agrawala for the Appellant.
        S.S. Yadav, S.L. Gupta and Goodwill lndeevar for the Re-
    spondents.
D         The Judgment of the Court was delivered by                     )t- .,

          S.B. SINHA, J. 1. Leave granted.
       2. Claimant before the Motor Accident Claims Tribunal is
  the appellant before us. On 11.8.2001, he was driving a two
E wheeler vehicle)~eing a scooter. It was hit by a bus bearing
  Registration No~Dl-1 P-A-0746. He was a motor mechanic.
         In July 2003, he filed a claim in terms of Section 166 of the
    Motor Vehicles Act, 1988 (for short, 'the Act') claiming a sum of
    Rs.10,00,000/- along with interest at the rate of 18% per an-
F   num. Allegedly, he suffered 60% total disability. His claim was
    based on the premise that he was earning a sum of Rs.4,500/-
    per month.
         3. Before the Tribunal, the appellant relied upon a certifi-
G cate purported lo have been issued by the Civil Surgeon,
  Faridabad on 11.11.2003 stating that he had suffered 60% dis-
  ability. The learned Motor Vehicle Accident Claims Tribunal
  awarded a sum of Rs.1,68,941 by way of compensation opin-
  ing that his income was Rs.3,000/- per month and he was en-
H titled to compensation upon taking 30% of his income at the
        RAJESH KUMAR @ RAJU v. YUDHVIR SINGH              535
                 &ANR [S.B. SINHA, J.]

rate of Rs.900/- per month being a total sum of Rs.20,000 be- . A
sides the amount of compensation towards pain and sufferings
and a sum of Rs.5,000/- as general damages including con-
veyance, special diet etc. An interest at the rate of 7% peran-
num was also awarded.
    4. He preferred an appeal thereagainst. The High Court       B
awarded a further sum of Rs.84,800/-, opining :      ·

     "Minimum wages notified on 1.1.1980 for skilled workers
     was Rs.320/- per month. It rose to Rs.1043/- as on
     1.1.1990. It rose to Rs.3,016/- as on 1.1.2001: The trend   c
     shows that minimum wages double every 10 years.

     Considering the age of the deceased being 34 years, it
     would be safe to assume that by the time he would turn 60,
     his income would have doubled. I accordingly treat the
     average monthly income of the deceased at Rs.4,500/-. D
     Aplying the disability certificate, Ex.PW 2/2, being 30%
     disability, loss on account of disability comes to Rs.1350/-
     per month. Since multiplier adopted by the tribunal is 12 and
     the Respondents have raised no objection thereto, loss· of
     future income comes to Rs. 1350/- x 12 x 12 = 1,94,400/-." E
     It was further observed :
     "Damages on account of compensation for loss of
     amenities of life, hardship and discomfort including
     frustration and stress under general damages awarded in . F
     sum of Rs.5,000/- is inadequate. I increase the same to
     Rs.25,000/-."
       5. Mr. Gaurav Goel, learned counsel appearing on behalf
of the appellant, would submit that having regard to the provi-
sions contained in Section 163A of the Motor Vehicles Act, for G
the purpose of awarding compensation on disability, the provi-
sions of the Workmen's Compensation Act, 1923 would be at-
tracted. According to him, in view of the fact that there is no
dispute in regard to the genuineness of the said disability cer-
tificate, the High Court committed a serious error in assessing H
    536       SUPREME COURT REPORTS                    [2008] 8 S.C.R.


A   the total qisability at 30% only. It was pointed out that the appel-   +- .
    lant was an indoor patient in the Lady Harding Hospital for a
    month. The injury suffered by him was considered to be a griev-
    ous one and allegedly one-third of his lower limb had been
    amputated. In view of the fact that no evidence, contrary thereto,
B   has been produced by the respondents, it was urged that the
    learned Tribunal as also the High Court committed a serious
    illegality in arriving at the aforementioned finding.

         6. Learned counsel appearing on behalf of the respondent-
    insurance company, however, supported the impugned judgment.
c         7. The claim petition was filed under Section 166 of the
    Act and not under Section 163A thereof. It was contended by
    the claimant-appellant that the driver of the bus in question was
    rash and negligent as a result whereof, the accident took place.
    By reason of Section 167 of the Act, an injured person had the
0
    option either to file a claim under the Motor Vehicles Act or the      ... ·;
    Workmen's Compensation Act, if both the Acts apply. It is, tliere-
    fore, a case where the claimant could have filed at his option an
    application under the Workmen's Compensation Act.
E         Section 163A provides for filing of a claim petition where
    an accident took place by reason of use of the motor vehicle. It
    is not necessary to prove any fault on the part of the driver or the
    vehicle. The Tribunal in a proceeding arising under Section
    166 of the Act is required to hold a full fledged trial. It is re-
F   quired to collect datas on the basis whereof, the amount of com-       ,.._ •
    pensation can be determined. Under Section 163A of the Act,
    however, the question of liability and extent of proof thereof are
    not justiciable. The Tribunal can determine the amount on the
    basis of the basic datas provided therefor.
G         Explanation appended to Section 163A of the Act, reads, thus :
          Explanation.-For the purposes of this sub-section,
          'permanent disability' shall have the same meaning and
          extent as in the Workmen's Compensation Act, 1923."
H         8. The reference to Workmen's Compensation Act by in-
        RAJESH KUMAR @ RAJU v. YUDHVIR SINGH                 537
                & ANR. [S.B. SINHA, J.]

corporation was only for the purpose of sub-section (1) of Sec-     A
tion 163A. It was not meant to apply in a case falling under Sec-
tion 166 of the Act. Had the provisions of the Workmen's Com-
pensation Act were applicable, the procedure laid down therein
would also apply. For the purpose of the definition of total dis-
ablement as also person who can grant a certificate therefor,       B
namely, a qualified medical practitioner, Section 2(e) and 2(i)
would be attracted. In terms of the 1923Act, the amount of com-
pensation is required to be determined as specified in Section
4. The Rules made in terms of Section 32 of the Act known as
Workmen's Compensation Rules 1924, would also be applicable.        c
       9. The certificate in question in this case was obtained
after two years. It is not known as to whether the Civil Surgeon
of the hospital treated the appellant. On what basis, such a
certificate was issued two years after the accident took place
is not known. The author of the said certificate had not been       D
examined. Unless the author of the certificate examined him-
self, it was not admissible in evidence. Whether the disability
at 60% was calculated on the basis of the provisions of the
Workmen's Compensation Act or otherwise is not known. It is
also not known as to whether he was competent to issue such a       E
certificate. It even does not appear that the contentions raised
before us had either been raised before the Tribunal or the High
Court. The Tribunal as also the High Court, therefore, proceeded
on the materials brought on record by the parties. In absence
of any contention having been raised in regard to the applica-      F
bility of the Workmen's Compensation Act which, in our opin-
ion, ex facie has no application, the same, in our opinion, can-
not be permitted to be raised for the first time.
      10. We are of the opinion, that it is not a case where we
should interfere in the impugned judgment of the High Court as      G
also the award of the Tribunal. The appeal is dismissed with no
order as to costs.
D.G.                                         Appeal dismissed

                                                                    H