Rajasthan High Court - Jodhpur
Shanta Devi vs R.S.R.T.C. (2023:Rj-Jd:41607) on 1 December, 2023
[2023:RJ-JD:41607]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 217/2004
Smt. Shanta Devi W/o Shri Chandmal Sankhla, Aged about 50
years, Resident of Pahuna, District - Chittorgarh (Raj.).
----Appellant
Versus
The Rajasthan State Roadways Transport Corporation, Jaipur
Through : The Depot Manager, Ajmer.
----Respondent
For Appellant(s) : Mr. M. C. Bishnoi assisted by
Mr. Kuldeep Bishnoi
For Respondent(s) : Mr. D. K. Joshi
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment 01/12/2023
1. The challenge in the present appeal is to the award dated 16.06.2003 passed learned Judge, Motor Accident Claim Tribunal, Bhilwara in M.A.C. Case No.488/96, wherein and whereby, the claim filed by the appellant herein for compensation for the injuries suffered by her in the motor vehicle accident was dismissed.
2. The present appeal is at the instance of the claimant. The contention of the learned counsel appearing for the appellant- injured is that the Tribunal failed to appreciate the evidence of AW-1 and AW-2 and the medical evidence under Exhibits-5 and 6, which clearly demonstrates that the appellant suffered injuries in the accident occurred with the bus owned by the respondent on 25.09.1996. It is also his contention that the tribunal wrongly held (Downloaded on 04/12/2023 at 08:37:21 PM) [2023:RJ-JD:41607] (2 of 10) [CMA-217/2004] that the injuries sustained by the appellant was not relatable to any accident occurred with the motor vehicle owned by the respondent without considering the police records under Exhibits-1 and 2, which clearly demonstrate that the vehicle owned by the respondent was responsible for the accident, in which the appellant had sustained injuries. Lastly, he contended that even the driver of the bus, who was examined as NAW-1, has clearly admitted that he was chargesheeted for the accident relating to the injuries suffered by the appellant. All the above evidence clearly demonstrates that there was an accident and in the said accident the appellant sustained injuries.
3. The counsel appearing for the respondents opposed the contentions raised by the appellant counsel. According to the learned counsel, the tribunal rightly appreciated the evidence on record, particularly the evidence of NAW-1 and NAW-2 and non- examination of doctor relating to Exhibit-6. According to him, the driver and the conductor of the bus who are the rightful eye- witness to the incident clearly deposed that there was no accident as claimed by the appellant and according to him, the injury certificate was belated and concocted one and the tribunal after appreciating the above evidence rightly dismissed the claim, which requires no interference.
4. In the light of the above submissions, the following substantial questions arises for consideration:- (Downloaded on 04/12/2023 at 08:37:21 PM)
[2023:RJ-JD:41607] (3 of 10) [CMA-217/2004] (1). Whether the injuries suffered by the appellant is relatable to the accident occurred on 25.09.1996 with the vehicle owned by the respondents? (2). Whether the appellant is entitled for any compensation for the injuries sustained by her?"
5. The finding of the tribunal clearly show that there was an accident with the vehicle owned by the respondent on 25.09.1996. The evidence under Exhibits-1 and 2, the police records, clearly demonstrate that there was an accident with the vehicle owned by the respondent. The tribunal was not right in holding that the appellant failed to prove the injuries sustained by her in the accident relating to the bus owned by the respondent on 25.09.1996. This finding is contrary to the evidence on record. The injured is the rightful witness and her husband was also with her when the accident occurred and he was examined as A.W.2. The evidence of injured-eyewitnesses clearly shows that she was alighting from the bus and suddenly the door was bolted, whereby her saree was stuck in the door resulting she fell down and when the bus was moved, the wheels were ran over her right foot. As a result, she suffered the crush injuries. This part of evidence is unchallenged and even going by the cross-examination of AW-1 and AW-2, there is no suggestion from the counsel representing the respondent that the injuries sustained by her were not relatable to the accident occurred with the bus owned by the respondent on 25.09.1996. Further, Exhibit A-6 clearly shows that it is dated 02.10.1996 and the accident is of 25.09.1996 and there is no much gap in-between them. The injury certificate obtained by the police from the Government hospital, which is unmarked, was laid more emphasis even though such evidence was not (Downloaded on 04/12/2023 at 08:37:21 PM) [2023:RJ-JD:41607] (4 of 10) [CMA-217/2004] brought on record. The own admission of NAW-1 clearly shows that he was charge-sheeted and his only claim is that no saree was stuck in the door of the bus which he was driving. This is contrary to the police investigation under Exhibit-1 and 2. The driver and the conductor failed to place any evidence on record that who was the injured in the accident for which the driver was chargesheeted. These are the evidence which clearly demonstrate that the injured sustained the injuries in the accident relatable to the accident occurred with the respondent's bus on 25.09.1996. Therefore, in this regard the findings of the tribunal is unsustainable and they are set aside. The point no.1 is answered holding that the injuries sustained by the appellant was relatable to the accident occurred with the bus owned by the respondent.
6. In the accident the appellant sustained fracture of right fibula and fracture of medial malleolus to the right leg. According to her, the treatment was given by applying POP and the evidence of AW- 1 shows that the POP was continued for 2 months. The evidence also shows that on account of that fracture of fibula and medial malleolus, she would not be able to walk properly.
7. The Apex Court in the case of Raj Kumar vs Ajay Kumar & Anr. reported in (2011) 1 SCC 343, while considering the compensation to the injured person has held as follows:-
"5. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages) (Downloaded on 04/12/2023 at 08:37:21 PM) [2023:RJ-JD:41607] (5 of 10) [CMA-217/2004]
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i),
(ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and
(vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item
(i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) --
depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv),
(v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability (Downloaded on 04/12/2023 at 08:37:21 PM) [2023:RJ-JD:41607] (6 of 10) [CMA-217/2004]
6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference (Downloaded on 04/12/2023 at 08:37:21 PM) [2023:RJ-JD:41607] (7 of 10) [CMA-217/2004] to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. - 2010(10) SCALE 298 and (Downloaded on 04/12/2023 at 08:37:21 PM) [2023:RJ-JD:41607] (8 of 10) [CMA-217/2004] Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567)."
8. In the present case, the injured suffered fracture of right ankle and there was fracture of right fibula as well as medial malleolus. She was moved from one hospital to another hospital and the POP was for almost 2 months. The appellant has not filed any bills relating to expenditure incurred for treatment. However, there is a clear evidence that she was treated by the private doctor under Exhibit-6 and POP was applied, which fact is not seriously disputed. There is evidence of AW-1 and AW-2 that she incurred an expenditure of Rs. 2,000/- to Rs. 3,000/-. Considering the above evidence, a sum of Rs. 5,000/- is awarded under the head of expanses for treatment, hospitalization, medicines and transport. A further sum of Rs. 5,000/- is awarded for nourishment, food and miscellaneous expenditure to the appellant-injured.
9. The evidence also shows that she was a housewife and on account of injuries, she was unable to discharge her regular duties which she was performing prior to the accident. The evidence also shows that she was having POP for 2 months. Considering the nature of fracture and injuries, this Court is inclined to take 6 months period for calculation of temporary loss of earnings on account of injuries. The accident occurred in the year 1995. The injured was a housewife, her monthly income is fixed as Rs.2,000/-. Accordingly, a sum of Rs. 12,000/- is awarded towards temporary loss of earnings.
(Downloaded on 04/12/2023 at 08:37:21 PM) [2023:RJ-JD:41607] (9 of 10) [CMA-217/2004]
10. The contention of the learned counsel for the appellant is that Exhibit-9 shows that the injured sustained disability of 5%. According to him, the said disability has an impact on the functional disability and according to him, such disability is taken into consideration for fixing the future loss of earnings on account of permanent loss of income.
11. On the contrary, learned counsel appearing for the Corporation opposed contending that there is no clear evidence from the Doctor who issued Exhibit A/9 with regard to assessment of disability. According to him, no material has been placed on record, which are available to the Doctor who issued the disability certificate determining the disability. On close scrutiny of Exhibit-9 shows that the disability has been determined on the basis of part treatment summary. There is no material before him which show that there was any fresh X-Ray of the limb so as to assess the percentage of disability and the result of disability on account of this misalignment of injuries. According to him, such evidence was not before the doctor who examined the injuries.. Further, the doctor was not made available for examination. In theses circumstances, this Court is not inclined to accept Exhibit-9. Therefore, the permanent disability is not proven. As a result, the claimants are not entitled for any amount towards permanent disability.
12. There is no evidence that on account of injuries further treatment was required so that future medical expenses can be awarded. The appellant-injured suffered two fractures apart from simple injuries. She was a housewife and her evidence (AW-1) also shows that still she is getting pain as and when she walks. (Downloaded on 04/12/2023 at 08:37:21 PM)
[2023:RJ-JD:41607] (10 of 10) [CMA-217/2004] She suffered pain and trauma as a consequence of such injuries and she underwent treatment by application of POP for the fracture injuries, in which such POP of 2 months was applied. Therefore, a sum of Rs.25,000/- is awarded towards pain and suffering. Further a sum of Rs.20,000/- is awarded under loss of amenities.
13. In the result, the appeal is partly allowed. The impugned award of the Tribunal dated 16.06.2003 is set aside and a sum of Rs.67,000/- (5000+5000+12000+25000+20000) is awarded as compensation. The said amount shall be paid with interest at the rate of 7.5% from the date of filing of the petition till the date of realization. The respondents are directed to deposit the amount within a period of two months from the date of this judgment. On such deposition, the claimant is permitted to withdraw the same.
(MUNNURI LAXMAN),J 11-Bhumika/Anil/mSingh/-
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