SHIVAKUMAR M. Vs. THE MANAGING DIRECTOR, BMTC

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 2828 of 2017, Judgment Date: Feb 14, 2017

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.2828 OF 2017
           [ARISING FROM SPECIAL LEAVE PETITION (C) NO.30976/2015]



SHIVAKUMAR M.                                                  APPELLANT(S)

                                   VERSUS


THE MANAGING DIRECTOR, BMTC                                   RESPONDENT(S)


                               J U D G M E N T

KURIAN, J.

      Leave granted.
2.    The appellant is aggrieved, since  he  has  not  been  given  adequate
compensation for the injuries suffered by him in a  motor  accident.   There
is no dispute that by avocation  he  was  a  painter.   The  Doctor/PW2  has
certified that the appellant suffered 81% disability to the limb though  the
whole body disability is 24.3%.  It is the case of  the  appellant  that  he
got himself examined on a subsequent date and whereby the  doctor  certified
the whole body disability to 40%.
3.    We find it difficult to go by that assessment, since,  admittedly  the
said assessment has been made after the award has been passed.  However,  we
are not happy with the way the income has been computed by the Tribunal  and
the High Court.
4.    According to the Tribunal, though the appellant contended that he  was
earning around Rs.15,000/- to Rs.16,500/-,  in  the  absence  of  any  other
evidence on record, it is difficult to  accept  the  estimate  made  by  the
appellant.  However, having regard to the age of the appellant as around  45
years and the “nature of his work”, as painter  the  Tribunal  assessed  his
monthly income to Rs.5,500/-.
5.    It is a case where the accident took place on 16.8.2013.
6.    In the High Court, taking note of the fact that there  is  no  dispute
regarding his age and avocation, the income was assessed at Rs.6,500/-.
7.    No doubt, there was no evidence available with regard  to  the  income
of the appellant but there is no dispute on the fact that he was  a  painter
by profession.  The accident happened in the year 2013 when  he  was  living
in Bangalore, Karnataka.
8.    For a casual worker, who goes from house to house and place  to  place
doing his painting work it is difficult to get any evidence, since there  is
no employer.  He does his daily work, sometimes piece rated  work  as  well.
That is why he made a moderate self estimation of his income to  Rs.15,000/-
to Rs.16,500/-.
9.    In the absence of any serious dispute on the part  of  the  respondent
on the avocation and income, we are of the view that the  Tribunal  and  for
that matter the  High  Court  should  have  accepted  the  evidence  of  the
appellant.  Therefore, we assess  his  monthly  income  as  Rs.15,000/-  and
after deducting one third towards his personal expenses, the income will  be
assessed for the purpose of computation of compensation as  Rs.10,000/-  per
month.  The income is substituted as Rs.10,000/- in the place of  Rs.6,500/-
, as assessed by the High Court.  The compensation will  carry  interest  at
the rate of 9% per annum from the date of  the  claim  petition  before  the
Tribunal.  Rest of the award is maintained.
10.   The respondent is directed to work out the compensation in  the  light
of this judgment and deposit the amount before the Tribunal within a  period
of three months from today and if not the  appellant  will  be  entitled  to
interest at the rate of 18% and  the  officers  responsible  for  the  delay
shall be personally liable for the same.
11.   The appeal is allowed, to the above extent.
12.   Pending application(s), if any, shall stand disposed of.
13.   There shall be no orders as to costs.

                                                   .......................J.
                                                             [KURIAN JOSEPH]


                                                   .......................J.
                                                           [A.M. KHANWILKAR]
      NEW DELHI;
      FEBRUARY 14, 2017.