Sanjay Tyagi vs Vinod Kumar Sharma & Others
2015 Latest Caselaw 101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 3
 

 
First Appeal From Order No. 3845 of 2010
 

 
Sanjay Tyagi			-------				Appellant
 
					Versus
 
Vinod Kumar Sharma & Ors.	-------				Respondents
 

 
Hon'ble Krishna Murari, J.

Hon'ble Pratyush Kumar, J.

Heard Shri Deepak Kumar Jaiswal, learned counsel for the appellant.

This is an appeal filed by the claimant-appellant for enhancement of the amount awarded by the Motor Accident Claims Tribunal vide judgment and award dated 05.10.2010.

Brief facts are that on 29.01.2005, at about 10 p.m., when the claimant was going on scooter no. 4746 with one Chandrakant Sharma as pillion rider, he was dashed by a Tata 709 No. UP14 W 9957 going from Delhi to Saharanpur, which resulted in severe injuries and his thigh and pelvic bones were fractured. The claimant was admitted in Bohra nursing home from 29.01.2015 to 13.02.2015, where he was operated upon and steel rod was implanted in his leg. He was again admitted in Guru Tegbahadur hospital, where he was re-operated on 21.07.2005. His liver and kidney also got damaged in the accident and he was again admitted and underwent dialysis 10 times. On 18.11.2005, he was again admitted in the Guru Tegbahadur hospital and operated and he was advised to take rest. Hence, he was confined to bed from 29.01.2005 to 29.09.2006. He had to spent Rs.2 lacs on treatment, Rs.50,000/- towards travelling for treatment and special diet. It was also pleaded that he suffered 25% disability and because to the accident, he could not appear in the examination held for promotion to the post of Sub Inspector and he has been deprived from promotion in future.

The driver of the offending vehicle contested the proceedings by filing written statement, but subsequently, he absented from the proceedings. The owner despite service of summons did not appear in the proceedings. The insurance company contested the proceedings by filing written statement denying the allegations. It was further pleaded that accident was caused due to rash and negligent driving of Scooter No. 4746 by the claimant-appellant himself and it was a case of contributory negligence. The claimant himself appeared in the witness box and stated that the accident was caused by the driver of the offending vehicle, who after dashing, ran away. He also stated that he had noted the registration number of the offending vehicle. One Nazim Ahmad, who was an eye witness also appeared as P.W. 2. He is also a witness in the charge sheet submitted by the police. He stated in his cross-examination that on 29.01.2005, at about 10 p.m., two police men were going on scooter on their left side when Truck No. UP14 W 9957, which was being driven rashly and negligently and without headlights, dashed the scooter on the wrong side and after hitting, the driver of the truck ran away with the truck. He also confirmed the number of the offending vehicle. He further pleaded that two other police men came on motorcycle and took the injured for treatment. In the cross-examination, there was nothing to doubt his testimony.

On the basis of the evidence, the Tribunal returned a finding that thought the insurance company pleaded a case of contributory negligence, but it failed to establish the same. The Tribunal, accordingly, held that the accident was caused due to rash and negligent driving of the offending vehicle, which resulted in serious injuries to the claimant. The Tribunal, on the basis of the evidence brought on record in the form of the receipt issued by the travelling agency and the medical evidence, awarded a sum of Rs.8,400/- towards travelling expenses for treatment, Rs.9000/- for an attendant @ Rs.100/- per day for a period of three months, Rs.5000/- towards physical and mental pain and Rs.5000/- towards special diet and Rs.20,000/- in lump-sum towards future physical and mental pain and, thus, a total sum of Rs.1,21,930/- was awarded as compensation. On the basis of evidence in the form of bills and vouchers of medical expenses, the Tribunal awarded a sum of Rs.74530/- under the said head. Some of such bills which have not verified or countersigned were not taken into account by the Tribunal.

It has been contended by the learned counsel for the appellant that the Tribunal wrongly and illegally failed to award any compensation towards future prospect of the claimant-appellant, who was a Constable and was deprived from his promotion to the post of Inspector.

We have considered the argument advanced by the learned counsel for the appellant.

The Tribunal found that in the pleadings, it was stated that the claimant-appellant passed B.A. examination during service and cleared the written test for promotional post of Sub Inspector, but could not appear in the interview on account of the accident. However, in oral submission, he has stated that he cleared the preliminary examination of the promotional post, but did not appear in the final written test. The Tribunal on account of the contradictory stand taken in the pleadings and the statement, disbelieved that he was deprived of promotion because of the accident.

Admittedly, the claimant-appellant continued in his service as a police man drawing the same salary and there was no effect of disability incurred by him on account of the accident. It is claimed that on account of the disability, he could not be promoted and, thus, suffered loss of future earning. The claimant-appellant in his cross-examination himself stated that he did not appear in the final written test for the post of Sub Inspector. It has neither been pleaded nor even suggested that he could not appear in the written test for departmental promotion on account of the disability. It has also neither been pleaded nor proved by any evidence that disability is of a nature, which may result in denying any future promotion to him.

There is no material on record to indicate that extent of disability is a functional disability of such a nature that it would result in corresponding loss of earning capacity by making him unfit for promotion.

The Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar & Anr., 2011(1) TAC 785 has laid down the principles of assessment of future loss of earning due to permanent disability in the following words :

"13. We may now summarise the principles discussed above:

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."

From the award made by the Tribunal and the evidence, there is nothing to indicate that the Doctor, who appeared to prove the disability certificate stated that the disability is of such a nature, which would deprive the claimant-appellant in future also to the promotional post of Sub Inspector. There was no other evidence on record brought by the claimant-appellant in this regard. Unless it was demonstrated and established by evidence that the disability of the limb resulted in the functional disability of the body, which would dis-entitle the claimant from the promotional post, could not lead to the conclusion to any loss of earning and to grant any award in that regard. The denial to a promotional post of Sub Inspector, as alleged, could not be established by any evidence to demonstrate that it was on account of the disability caused due to the accident.

The findings returned by the Tribunal are based on appraisal of evidence brought on record and there appears to be no illegality.

During the course of argument, learned counsel for the appellant has failed to point out that any material piece of evidence has been overlooked by the Tribunal or that the findings are based on misreading of any evidence.

We also do not find any illegality or fundamental defect in approach or in the methodology adopted by the Tribunal in determining the amount of compensation. No other ground was pressed or urged before us.

In view of above facts and discussions, we do not find any illegality in the impugned award requiring any interference by this court.

The appeal being devoid of merits stands dismissed in limine.

24.04.2015

VKS