Sri Vinod Kumar vs Smt. Anguri Devi & Others
2017 Latest Caselaw 6483 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on 09.10.2017
 
Judgment Delivered on 08.11.2017
 
Court No. - 37
 
Case :- FIRST APPEAL FROM ORDER No. - 579 of 1996
 
Appellant :- Sri Vinod Kumar
 
Respondent :- Smt. Anguri Devi & Others
 
Counsel for Appellant :- B.N. Agarwal
 
Counsel for Respondent :- P N Srivastava,Arun Kumar Singh,Harish Chandra Mishra,R.K. Gupta
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

(Delivered oral by Hon'ble Saral Srivastava, J.

The appeal is taken up in the revised call. We have heard Sri B.N. Agarwal, counsel for the appellant and Sri P.N. Srivastava, counsel for the Oriental Insurance Company, Sri R.N. Gupta, counsel for the first respondent. Sri Arun Kumar Singh, counsel for The New India Assurance Company is not present.

By means of the present appeal, the claimant-appellant has challenged the judgment and order dated 19.02.1996 passed by Motor Accident Claims Tribunal/ Vth Additional District Judge, Jhansi, whereby the Tribunal has awarded Rs. 85,000/- with 9 per cent interest as compensation to the claimant-appellant and fixed the liability of compensation upon The New India Assurance Company (Respondent No.3 in the Claim Petition) to pay the compensation.

The claimant-appellant instituted the claim petition, claiming compensation of Rs. 7,40,000/- for the injuries alleged to have been suffered by him in an accident on 15.06.1989 in which he lost his one leg. It is stated in the claim petition that the claimant-appellant was travelling in Trolley No. U.G.H.8132 attached with Tractor No. U.G.H.7160 from Jhansi to Badagoan, and when the Tractor reached near gate no. 4 of Medical College Jhansi, it was hit by Truck No. U.H.J. 8764 from behind. The claimant-appellant stated in the claim petition that the truck driver was driving the truck rashly and negligently which caused the accident, due to which several persons suffered injuries. In this background the claimant-appellant prayed for Rs.15,000/- for medical expenses, Rs.10,000/- towards future medical expenses, Rs.5,000/- for the loss of income from 15.06.1989, Rs.10,000/-other miscellaneous expenses and diet, Rs.5,00,000/- for the disability suffered by him, and Rs.2,00,000/- for loss of income. The total compensation claimed was Rs. 7,40,000/-.

The owner and driver of Truck No. U.H.J. 8764 filed written statement denying their liability to pay compensation. They averred in the written statement that the accident had taken place due to negligence of driver of Truck. The driver of truck was holding valid driving license, and claimant did not suffer any grievous injury.

The insurer of truck i.e. The New India Assurance Company contested the claim petition by filing written statement. The insurance company pleaded that accident had not taken place due to negligence of driver of Tractor. It further stated that the claimant-appellant did not suffer any injury in the accident, and compensation claimed by the claimant-appellant was excessive.

The owner, driver and insurer of Tractor No. U.G.H.7160 also filed written statement and denied their liability to pay the compensation.

On the basis of pleadings between the parties, the Tribunal framed 8 issues. On the issue of occurrence of the accident and negligence of the driver of vehicle in the said accident, the Tribunal after appreciating facts and evidence on record held that the accident had taken place between the truck and tractor, in which the claimant-appellant suffered injuries. The Tribunal further held that the accident had taken place due to rash and negligent driving of driver of Truck No. U.H.J. 8764. Since finding on occurrence of accident as well as negligence of driver of truck has not been challenged by the insurer of Truck No. U.H.J. 8764 i.e. The New India Assurance Company , therefore, it has become final between the parties. On the issue of insurance of both the vehicles involved in the accident, the Tribunal held that the truck was insured with The New India Assurance Company and tractor trolley was insured with Oriental Insurance Company. On the issue of driving license, the Tribunal held that the truck was driven by a person holding a valid license.

On issue of compensation, tribunal held that the claimant had proved by filing disability certificate and his statement as witness that his leg had been amputated, but failed to prove the actual amount which he had spent on his treatment. The tribunal further on the basis of oral testimony of claimant held that the claimants had been able to prove that he had again undergone operation, and therefore claimants had been able to establish that he could not do the job of labour. Thereafter, the tribunal relied upon the judgment of Apex Court 1995 (2) T.A.C. page 150 State of U.P. Vs. Suresh Chanda, and held the income of claimant Rs.750/-per month on the reasoning that the facts in the present case are similar to facts of case in Suresh Chanda case(Supra).

The counsel for the appellant has submitted that though the tribunal on the basis of evidence on record has held that right leg of the claimant was amputated below knee, but yet has illegally failed to consider Disability Certificate issued by Chief Medical Officer while determining the compensation. He further submitted that the tribunal was under legal duty to consider disability certificate inasmuch as it was neither disputed by any of the respondents nor was rebutted by any of the respondents by filing cogent and legal evidence. He further submitted that the claimant-appellant was 19 years old at the time of accident and was earning his livelihood as a labour, and with the amputation of his leg, he cannot do the job of labour or any other work of similar nature and as such his physical disability should be treated 100 per cent and, consequently, the compensation should be assessed treating his loss earning capacity to be 100 per cent. In this regard, The counsel for the appellant has relied upon paragraphs no. 46, 52 to 58 of the Apex Court judgment in the case of Rekha Jain Vs. National Insurance Company Limited and others (2013) 8 SCC 389, which are extracted herein below:

"46. Both the Tribunal as well as the High Court have gravely erred both on facts and in law in not evaluating the legal evidence on record to award just and reasonable compensation in favour of the appellant keeping in view the fact that the appellant was a good actress, model and has acted in many films, albums, T.V. serials etc. This evidence is not challenged though the appellant was cross examined by the counsel for the respondent Insurance Company extensively without obtaining the permission from the Tribunal as required under Section 170(b) to contest in the proceeding. In the absence of such permission, the Insurance Company has got limited defence as provided under section 149(2) of the Motor Vehicles Act, which provides for the conditions which determines breach of the terms and conditions of the insurance policy. The Tribunal did not apply the legal principles laid down by this Court to award just and reasonable compensation by following various guiding factors and legal principles under the heading of future loss of earnings. It has also not awarded compensation under the following heads namely (1)damages for mental and physical shock, pain and suffering already undergone by the appellant or she is likely to undergo in future, (2) damages for loss of amenities of life on account of injury due to which the appellant is unable to act in the films and (3) damages for the loss of expectations of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. The said principles have been recognized by this Court time and again in catena of cases reference to which are not required to be mentioned again as we have referred to the same in the preceeding paragraphs of this judgment.

52. The finding of fact recorded by the Tribunal stating that she has been acting as an actress has been re-affirmed by the High Court by affirming the award of compensation under the various heads of non- pecuniary damages. Despite the cogent and substantive evidence adduced on record by the appellant before the Tribunal, neither has it awarded just and reasonable compensation nor the High Court has enhanced the same in exercise of its appellate jurisdiction by re-appreciating the pleadings and evidence on record.

53. For a film actress, the physical appearance particularly the facial features are very important to act in the films and in T.V. serials. It is in her evidence that on account of the accident her face was disfigured, she has put on weight and has become fat and therefore she is unable to perform the role as an actress in films in future. Having regard to the nature of vocation she has been carrying on and wishes to carry on with in future, the opportunity is lost on account of the disfigurement of her face, to act in the films as an actress either as a heroine or actress in supporting role or any other role to be played in T.V. serials, albums and also as a model. It is in the evidence of the appellant that as per the District Medical Board of Sambalpur, her permanent disability is 30%. Having regard to the nature of injuries and observations made by this Court and Karnataka High Court in the cases referred to supra, we have to record a finding of fact that the appellant's permanent disability should be treated as 100% functional disablement as she cannot act in the films and in T.V. serials in future at all. Therefore, on account of the aforesaid reasons, she has suffered functional disability.

54. In this regard, it is relevant to refer to the judgment of this Court in the case of National Insurance Company Ltd. V. Mubasir Ahmed. This Court has held that loss of earning capacity is not a substitute for percentage of physical disablement. It is simply one of the factors taken into account to award just and reasonable compensation. Even though the claimant does not suffer from 100% physical permanent disability, he suffers from 100% functional disability if he loses the capacity to pursue his work as a result of the accident. It is worthwhile to extract paragraph no. 8 from the aforesaid judgment which reads as under:

"8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity."

55. In Palraj v. North East Karnataka Road Transport Corpn., where the appellant was a driver, this Court held that although the appellant has lost the use of his legs, the same amounts to total disablement as far as driving a vehicle is concerned.

56. In Nizam's Institute of Medical Sciences v. Prasanath S. Dhananka , this Court has observed as under: (SCC pp. 38-39, paras 88 & 90-91)

"88. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.

....... .... .....

90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.

(emphasis supplied)

91. We can also visualise the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself."

57. In this regard, in Baker's case supra, it has been stated by Lord Reid that a man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. Therefore, the functional disability is a forceful alteration of career option of the appellant who has already undergone physical and mental injuries because of the accident. It would amount to adding distress to injury if one is forced to work with difficulty to earn his/her livelihood so as to reduce the burden of the wrongdoer in terms of compensation.

58. In view of the aforesaid decisions of this Court and various courts and High Court of Karnataka and authors referred to supra, we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages.

The other submissions of the counsel for the appellant relying upon the judgment of the Apex Court in the case of Rekha Jain (Supra) is that the Tribunal has erred in not awarding any amount towards non pecuniary damages whereas, the Apex Court has awarded non pecuniary damages in the case of Rakha Jain (Supra). Thus, claimant/appellant is entitled for non pecuniary damages.

The counsel for the respondent rebutting the submissions of the counsel for the appellant submitted that the physical disability has to be assessed with regard to whole body and after assessing the physical disability, the loss of earning capacity should be assessed. He further submitted that the compensation awarded by the Tribunal is just and proper and do not call for interference by this court. In this regard he has placed reliance upon paragraphs no. 9 to 13 of the Apex Court judgment in the case of Raj Kumar Vs. Ajay Kumar and others 2011 (1) SCC 343 which are extracted herein below:

"9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.

11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.

12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.

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.

We have heard the rival submissions of the parties. We have perused the finding of the Tribunal on issue no. 8 with regard to quantification of compensation, and what we find is that the tribunal while determining the compensation did not follow the legal principles laid down by the apex court in determining the compensation that it should be just and reasonable to mitigate the hardship of claimant. It is very strange that the Tribunal without appreciating the evidence on record i.e. the disability certificate and statement of PW-1 awarded Rs.85,000/- as lump-sum compensation.

The apex court in the case of Rekha Jain (Supra) has held that the injured has to be compensated for future loss of earning, pain and suffering, loss of immunities and damages for life and inconvenience, hardship etc. The Apex Court further held that the aforesaid principles have been recognized by this Court time and again in catena of decisions. Applying the well established principles of compensation as laid down in the case of Rekha Jain (Supra), and on the basis of evidence on record i.e. disability certificate indicating 40% permanent disability due to amputation of leg, it is not possible for the claimant to do any work as a labour or any other job of like nature or any work not involving physical labour in view of the fact that he was not literate person who could earn his livelihood by working in office or at some other place where he is not required to move physically, we feel in the facts of the present case that it would be appropriate and proper to hold that the claimant-appellant suffered permanent disability due to injuries, and consequently suffered 100 per cent loss earning capacity.

So far as, the contention of the counsel for the respondent on the basis of judgment of Apex Court in the case of Raj Kumar (Supra) is concerned, the Apex Court in paragraph no. 10 of the judgment has observed that if the claimant was a driver or a carpenter, the actual loss of earning capacity may be 100 per cent, if he has neither able to drive or carpentry. Whereas, the principles of assessing loss of capacity in case of the claimant who was a clerk in government service, would be different. Thus, the judgment of Apex Court in the case of Raj Kumar (Supra) does not help the respondent in the present case, inasmuch as, in the present case the appellant has lost his one leg and was earning his livelihood as labour, and he cannot perform any work involving physical labour.

The next contention of the counsel for the appellant that the Tribunal has erred in holding the income of the claimant Rs. 750/- per month instead of Rs.1,000/- per month as stated by the claimant-appellant in the claim petition and proved by him by his oral testimony as PW-1. The statement of the claimant-appellant, PW-1 was not rebutted by the insurance company.

On the other hand, the counsel for the Insurance Company submitted that in absence of any evidence on record regarding proof of income, the Tribunal has given cogent reason for assessing the income of claimant Rs. 750/- per month.

We find ourselves unable to agree with the counsel for the respondent, inasmuch as, it was a specific case of the claimant-appellant that he was earning Rs.1,000/- per month which was proved by him by his oral testimony, and there was nothing on record to doubt the veracity of statement of claimant /appellant. Accordingly, we hold that the income of the claimant-appellant should be treated as Rs. 1,000/- per month instead of Rs.750/- per month.

The last contention of counsel for the appellant with regard to claim of non-pecuniary damages. The counsel for the appellant has submitted that some amount should have been awarded towards loss of immunities, pleasure of life ,pain and suffering etc.

On the other hand, the counsel for the respondent-Insurance Company has submitted that the Tribunal has awarded also towards pain and suffering while awarding lump-sum compensation and therefore, the claimant-appellant are not entitled for any amount towards pain and suffering etc.

Since the Tribunal has awarded lump-sum amount of Rs. 85,000/- as compensation without indicating as to what amount out of the said lump-sum compensation of Rs.85,000/- has been awarded towards pain and suffering, loss of immunities, pleasure of life etc. Thus, the contention of the counsel for the respondent that the claimant is not entitled for anything towards loss of immunities, pain and suffering etc. as the same has been awarded by the Tribunal while awarding lump-sum compensation is misconceived and not acceptable, inasmuch as, the Tribunal has failed to consider the basic principle of awarding compensation under different heads recognised by the Apex Court in the case of Rekha Jain (Supra). Accordingly, we find it just that the claimant should be awarded Rs.50,000/- towards pain and suffering and also Rs.50,000/- for the loss of immunities to the claimant-appellant.

We also find that that the Tribunal has not awarded anything towards medical expenses, whereas, it is proved from the record that claimant has lost his one leg in the accident and must have undergone treatment. Though there was no evidence on record regarding the expenses incurred by the claimant-appellant in his treatment, we feel fit and proper in the facts of the present case that the claimant should be awarded Rs.15,000/- towards medical expenses as claimed by him, inasmuch as, there is no denial the fact that the claimant was hospitalized for a period from 15.06.1989 to 20.09.1989. It is further provided that as per the record claimant was 19 years, therefore, the Tribunal should apply the multiplier of 18 for calculating the compensation.

Accordingly, the award of the Tribunal dated 19.02.1996 is modified to the extent indicated above. The enhanced amount shall carry the same rate of interest as has been awarded by the Tribunal. The Tribunal is directed to calculate the compensation as per directions given above.

The appeal is, accordingly, allowed to the extent indicated above. There shall be no orders as to costs.

Order Date :- 08.11.2017

Ishan