New India Assurance Co. Ltd. vs Gulab Shankar Pathak And Others
2022 Latest Caselaw 7739 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 28.4.2022
 
Delivered on 22.07.2022
 
Court No. - 5
 

 
Case :- FIRST APPEAL FROM ORDER No. - 28 of 2008
 

 
Appellant :- New India Assurance Co. Ltd.
 
Respondent :- Gulab Shankar Pathak And Others
 
Counsel for Appellant :- Arvind Kumar
 
Counsel for Respondent :- Pramod Kr.Srivastava,V.Srivastava
 
with 
 
Case :- WRIT - C No. - 11837 of 2007
 

 
Petitioner :- Gulab Shankar Pathak
 
Respondent :- Afjal And Another
 
Counsel for Petitioner :- Pramod Kumar Srivastava
 
Counsel for Respondent :- Amit Manohar
 

 
Hon'ble Salil Kumar Rai,J.

Both the above mentioned cases arise from the same accident and were therefore, connected and heard together and are being decided by a common judgment.

The  First Appeal From Order No.28 of 2008  has been filed by the New India Assurance Co.Ltd. (hereinafter referred to as Insurance Company) under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as Act, 1988) challenging the judgment and award dated 4.10.2007 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.14, District Meerut.  In the aforesaid appeal, the claimant has been impleaded as Opposite Party No.1 and shall hereinafter be referred as the Claimant.  The owner of the offending vehicle has been impleaded as Opposite Party no.2 and shall hereinafter be referred as the owner of the Offending Vehicle.

The facts of the case are that the claimant instituted Motor Accident Claim Petition No.897 of 2003 under Section 166 of the Act, 1988 alleging that he had suffered grievous injuries on 3.9.2003 in an accident which happened due to rash and negligent driving of the vehicle bearing Registration No. Tata 407 U.P 13 B/2766 (hereinafter referred to as the 'Offending Vehicle') . It was stated in the claim-petition that because of the accident, the jawbone  as well as the teeth  of the claimant was broken and had also suffered injuries on his hand, ears, eye and head.  It was further stated in the claim petition that because of the injuries suffered in the accident, the claimant had suffered a loss in his earning capacity and had also spent huge amount on his treatment.   On the aforesaid pleas, the claimant sought compensation of Rs.12,80,000/- with interest @ of 18% per annum. The owner of the vehicle as well as the Insurance Company contested the claim petition and filed their written statements denying the averments made in the claim-petition. . 

The Tribunal framed three issues. Issue No.1 was regarding the factum of accident and whether the claimant had suffered injuries in the aforesaid accident.  Issue No.2 was as to whether, at the time of accident, the driver of the offending vehicle  had a valid driving licence. Issue No.3 was regarding compensation payable to the claimant and the defendant liable to pay compensation. 

The Tribunal decided Issue no.1 in favour of the applicant and held that the claimant was injured in the accident which was caused due to rash and negligent driving of the offending vehicle.  Issue no.2 was decided by the Tribunal in favour of the owner of the offending vehicle and the Tribunal held that at the time of accident, the driver of the offending vehicle had a valid driving licence. So far as Issue No.3 is concerned, the Tribunal after noting the plea of the claimant that the claimant was working as Junior Clerk in the Board of Secondary Education, Regional Office, Meerut held that the applicant was getting Rs.6161/- per month as salary.  In the Tribunal, the claimant had also filed a disability certificate issued by Dr.R.M.Gupta, Senior Orthopaedic Surgeon in Government District Hospital, Meerut to prove that the claimant had suffered 70%  permanent partial disablement because of the injuries caused  in the accident.  However, the Tribunal held that the claimant had suffered only 50% total partial disablement and taking the age of the claimant as 42 years, the Tribunal awarded a compensation of Rs.5,54,490/- for loss of his earning capacity after applying a multiplier of 15 in accordance with the Second Schedule of the Act, 1988.  The Tribunal also awarded Rs.2,10,000/- as medical expenses incurred by the claimant and Rs.5000/- for pain and suffering.  The total compensation awarded was Rs.7,69,490/- with 6 % simple interest and it was held by the Tribunal that the Insurance Company was liable to indemnify the owner of the offending vehicle because at the time of accident, the vehicle was insured with the Insurance Company, the appellant.  The First Appeal From Order No.28 of 2008 has been filed challenging the aforesaid award. 

While the claim petition was  still pending before the Tribunal, the appellant Insurance Company  filed an application before the Tribunal praying for a fresh examination of the claimant by a Medical Board after making allegations discrediting  the medical certificate filed by the claimant. The Tribunal vide its order dated 8.2.2007  directed the claimant to submit himself for medical examination by one Dr.Lokesh Maratha (Orthopaedic) appointed by the Insurance Company. Civil Misc.Writ Petition No.11837 of 2007 has been filed challenging the order dated 8.2.2007 passed by the Tribunal.  In Civil Misc.Writ Petition No.11837 of 2007, this Court vide its order dated 2.3.2007 stayed the operation of the order dated 8.2.2007 but permitted the Tribunal to direct for a re-examination of the petitioner by the Chief Medical Officer or any other competent Government Doctor.  However, the petitioner was not got re-examined by any Doctor in pursuance to the order dated 2.3.2007. 

It has been argued by the counsel for the appellant, Insurance Company, that the award has been passed without complying with the order dated 2.3.2007 passed by this Court in Writ Petition No.11837 of 2007.  It was further argued that the disability certificate submitted by the claimant was issued by a doctor  who had not treated the claimant and the Tribunal has wrongly assessed the disability of the claimant as 50% due to the injuries caused in the accident.  It was argued by the counsel for the appellant that the medical expenses had also not been proved by the claimant.  It was further argued that there was no loss of income to the claimant  as he had retained his job after the accident. It was argued that for the aforesaid reasons, the judgment and award dated 4.10.2007 passed by the Tribunal is liable to be set aside.

Rebutting the arguments of the counsel for the appellant, the counsel for the claimant has supported the reasons given in the award dated 4.10.2007 and has argued that the disability certificate was issued by a Government Doctor  who was a Senior Orthopaedic Surgeon in the District Government Hospital, Meerut.  It was also argued by the counsel for the claimant that even otherwise the injuries of the clamant have been proved by the different medical prescriptions and by the testimony of Doctor  Sachin Shekhar, the plaintiff witness no.3, who had treated the claimant. It was argued that from the records it was evident that the claimant had suffered 70% disability and therefore, there is no error in the award of the Tribunal  determining the loss of earning capacity of the claimant as 50%.  It was further argued that the medical expenses were proved by the claimant.  It was argued that for the aforesaid reasons, the First Appeal From Order is liable to be dismissed.

I have considered the submissions of the counsel for the parties and also perused the records. 

As in its appeal, the Insurance Company has not challenged the findings of the Tribunal on Issue Nos. 1 & 2 as well as the fact that at the time of accident, the offending vehicle was insured with the appellant, I am not examining  the findings of the Tribunal on the aforesaid issues.

So far as the Issue regarding payment of compensation to the claimant is concerned, it is evident from the testimony of P.W.3, Dr. Sachindra Shekhar that claimant had suffered grievous injuries on his jaw resulting in fracture of his jawbone and loss of two tooths. In his testimony, Dr. Sachindra Shekhar has also stated that the right arm of the claimant above his elbow was badly damaged in the accident and there were four multiple fractures in his ribcage. The aforesaid fact is also proved from the discharge card as well as the medical prescriptions and the X-ray reports of the claimant which were filed before the Tribunal. The X-ray reports corroborate the testimony of P.W-3. In his testimony, the claimant as P.W 1, has proved that because of the injuries on his face, he was not able to open his mouth fully and was on special liquid diet which included fruit juice etc. and a steel rod was implanted in his right hand. The disability certificate submitted by the claimant indicates that there was pain and stiffness on face mandible region and the right shoulder of the claimant. The disability certificate further indicates that the movement of the arm of the claimant was painful and restricted and the claimant was not able to open his mouth fully and was also not able to chew the food comfortably. It has also been stated in the disability certificate that the grip of right palm of the claimant was poor and the aforesaid injuries obstructed the routine and normal life of the claimant. The entries in the disability certificate are corroborated by the testimony of Dr.Sachindra Shekhar, P.W.3 as well as the evidence of the claimant himself. A perusal of the testimony of P.W-1 and P.W-3 indicates that the aforesaid witnesses were cross examined by the Insurance Company but the Insurance Company/appellant was not able to extract any relevant information from the said witness or discredit them so as to make their testimony unreliable.

In view of the aforesaid, it is held that the injuries as pleaded by the claimant are proved by the evidence on record and there is no error in the aforesaid findings of the Tribunal.

However, so far as the consequential loss of earning capacity of the claimant is concerned, it is evident that the claimant was employed as a Junior Clerk in the Board of Secondary Education, Region Meerut and there is nothing on record to show that after the accident he was either discharged from service or given a job in a lower grade because of the injuries caused in the accident. It was held by the Supreme Court in Raj Kumar versus Ajay Kumar (2011) 1 Supreme Court Cases 343, that physical disablement does not automatically result in loss of earning capacity. The observations of the Supreme Court from Paragraph Nos.13 to 15 and 19 which are relevant for the purpose are reproduced below:

"13. 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 disability (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.

14. 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 be 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.

15. 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.

19. 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 the percentage of loss of earning capacity is the same as the 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 to 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."

In view of the aforesaid, observations of the Supreme Court in Raj Kumar (Supra) and the fact that the claimant, after the accident, retained his service with the same emoluments as before the accident, the claimant was not entitled to any compensation for loss of future earning. For the aforesaid reasons, the Tribunal has erred in awarding compensation for loss of future earning to the claimant.

However, at this stage, It would also be relevant to note that the Tribunal has awarded very meagre compensation to the claimant for pain and suffering. Only Rs.5000/- has been awarded under the aforesaid head in accordance with the amount prescribed in the Second Schedule of the Act. The claim petition was filed under Section 166 of the Act, 1988 and therefore, just compensation had to be determined.

Apart from the aforesaid, the Tribunal has also not awarded any compensation to the claimant for future medical expenses, the expenses incurred by the claimant on the attendants, the expenses for the special diet which were prescribed for the claimant and which the claimant had to continue with because of injuries in his mouth and also compensation for loss of amenities. The claimant was entitled to compensation under the aforesaid categories.

The medical expenses incurred by the claimant have been proved by him in his testimony as Plaintiff Witness No.1. In view of the aforesaid, there is no error in the findings of the Tribunal in awarding Rs.2,10,000/- as compensation to the claimant for the medical expenses incurred by him in his treatment. Considering the grievous injuries suffered by the claimant, the amount determined by the Tribunal does not appear to be exhorbitant.

In light of the aforesaid discussion, the compensation to be awarded to the claimant is re-computed as follows:-

 
(1) Compensation for medical expenses
 
   incurred by the claimant                       ..... Rs.2,10,000/-
 
(2) Compensation for future medical
 
      expenses                                          ......Rs.1,00,000/-
 
(3)Compensation for pain & suffering     .....Rs.1,50, 000/-                
 
(4)Compensation for loss of amenities   .....Rs.1,50, 000/-      
 
(5) Compensation for engaging attendants
 
and special diet of the claimant              ......Rs.1,00,000/-
 
                
 
 			Total 	              =                Rs. 7,10,000/-
 
It is held that the claimant was entitled to a compensation of Rs.7,10,000/-.  
 
The awarded amount shall carry the same interest as awarded by the Tribunal.  The award of the Tribunal is modified to the extent as stated above.
 

A perusal of the records indicate that initially, through its order dated 5.1.2008, the execution of the award dated 4.10.2007 passed by the Tribunal was stayed. However, the said interim order was subsequently modified and by order dated 15.9.2008, this Court had permitted the claimant to withdraw Rs.3,00,000/- on furnishing adequate security. It is directed that the Insurance Company shall deposit the balance amount within a period of three months from today which the claimant shall be permitted to withdraw. The security furnished by the claimant stands discharged. On failure of the Insurance Company to deposit the amount as stated above, the Tribunal shall proceed to recover the same in accordance with law.

In view of the order passed above, no further orders are required to be passed in Writ Petition No. 11837 of 2007 as the said Writ Petition becomes infructuous.

In light of the aforesaid, the First Appeal From Order No.28 of 2008  is allowed and the award of the Tribunal dated 4.10.2007 is modified to the extent stated above. Writ Petition No. 11837 of 2007 is dismissed.

Order Date :-22.7.2022

IB