Rajendra Kumar Shukla vs Ehtamad Ahmad And Others
2012 Latest Caselaw 3317 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 33
 

 

 
		        First Appeal From Order No.3071 of 2012
 
Rajendra Kumar Shukla 					     ........Appellant. 
 
						Vs. 
 
Ehtamad Ahmad & others 					 ......Respondents. 
 
*******
 

 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

The appellant has challenged the award dated 31.03.2012 passed by Motor Accident Claims Tribunal/District Judge, Allahabad in Motor Accident Claim Petition No. 582 of 2008, whereby compensation of Rs.2,77,000/- has been awarded to the appellant on account of alleged grievous injuries sustained by him in motor accident.

It appears that the appellant was coming to Allahabad from his house on motorcycle on 9.12.2007 and when at about 6.00 p.m. he reached near Major R.P. Singh Hospital Purana Fafamau, the driver of the tractor no. U.P.70S-8926 dashed with the motorcycle of the appellant, thereby causing fracture in his left leg and head injury. The appellant took treatment from 9.12.2007 to 17.12.2007 from T.B. Sapru Hospital, Allahabad and thereafter from 17.12.2007 to 23.12.2007, he was hospitalized in Jagrati Hospital. The appellant is a practising Advocate and his monthly income is Rs.12,000/-. The appellant filed claim for an award of Rs.17,00,000/- against owner, driver and insurance company of the offending tractor. The case proceeded ex-parte against the driver and owner aforesaid, while Insurance company contested the case inter alia alleging that no such accident took place with the aforesaid tractor; that the driver of the tractor was not having effective and valid driving license; that owner of the tractor has violated the terms and conditions of insurance policy; that injured was himself negligent and has contributed in the accident, but the owner and insurer of motorcycle have not been arrayed as parties in the case so the claim is liable to be dismissed. In support of claim, the appellant filed several documents including investigation report, medical bills, certified copies of FIR, charge sheet, site plan, and technical report of Bullet Motorcycle etc.

The appellant has examined himself as P.W. 1. The Insurance company did not adduce any evidence. On a consideration of material on record and after hearing learned counsel for the parties, the Tribunal found that the accident took place due to negligent driving of the tractor driver and the claimant suffered serious injuries and awarded amount of compensation as aforesaid.

We have heard learned counsel for the appellant and perused the impugned award.

The documents filed by the appellant show that he undertook treatment from 9.12.2007 to 23.12.2007 in two different hospitals. It was alleged that he sustained 55% permanent disability and claimed Rs.2,00,000/- on that account. In our opinion, the Tribunal in view of law laid down by the Apex Court in the case of Raj Kumar Vs. Ajay Kumar and another reported in 2011 (1) T.A.C. 785 (S.C.) has rightly reduced the disability of the appellant from 55% to 25%. In this case, the Apex Court has further observed in paragraphs 7 and 8 of the report which are reproduced as under:

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 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 Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).

In view of the above guidelines, it cannot be said that 55% disability of the appellant relates to his whole body. In order to award just and reasonable compensation in motor accident cases for alleged permanent disability due to injuries, the endeavour of the Tribunal and the Court is to find out functional disability corresponding to loss of earning capacity of the appellant. In the instant case, the appellant in his cross examination has admitted that his per day earning is Rs.500/-. In the claim petition his contention was that his monthly income was Rs.12,000/-. The statement of this witness was recorded after he sustained injuries in the motor accident. As per his own statement, the monthly income of the appellant on the date of recording statement before the Tribunal was Rs.500/- per day i.e. Rs.15,000/- per month. In this way, we find that there is no loss in income of the appellant on account of alleged grievous injury sustained by him in motor accident. His alleged permanent disability has not affected his professional income, although the Tribunal has observed that no documentary evidence regarding his income has been filed by the appellant, so his monthly income has been taken at Rs.5000/- for the purpose of the case and considering his 25% disability, compensation has been calculated to Rs.2,25,000/- applying multiplier of 15 as per claim of the claimant. However, the claim of the appellant for loss of earning in the claim petition was Rs.2,00,000/-, so the Tribunal has rightly awarded Rs.2,00,000/- for the alleged disability of the appellant. As regards expenditure incurred in the medical treatment, the bills/receipts filed by the appellant show that Rs.62,000/- were spent and the Tribunal without any deduction has awarded this amount. Further, Rs.5,000/- for pain and suffering, Rs.7,500/- for loss of income for a period of one and half month and Rs.2000/- for special diet, was awarded by the Tribunal to the appellant. Thus, we find that the Tribunal has awarded just and reasonable compensation to the claimant and there is no scope at all for enhancement.

In view of foregoing discussion, we find that the appeal has no merit and is accordingly dismissed.

Dated: 31.07.2012

RCT/-