Nalamaru Venkata Reddy vs N. Chandra Mohan N.Chandra Mohan ...
2022 Latest Caselaw 8051 AP

BVLNC,J                                                 MACMA 547 of 2016
Page 1 of 27                                             Dt: 28.10.2022




       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                     M.A.C.M.A.No.547 OF 2016

JUDGMENT:

This appeal is preferred by the Appellant/claimant,

challenging the award dated 25.12.2014 passed in

M.V.O.P.No.278/2011 on the file of Motor Accidents Claims Tribunal-

cum-Prl.District Judge, Kadapa, wherein the Tribunal while partly

allowing the petition, awarded compensation of Rs.4,60,000/- with

interest @ 7.5% p.a. from the date of petition, till the date of deposit,

for the injuries sustained by the claimant in a motor vehicle accident.

2. For the sake of convenience, the parties are arrayed as parties in

the lower Court.

3. As seen from the record, originally the petitioners filed an

application U/s.163-A of Motor Vehicles Act, 1988 (for brevity "the

Act") claiming compensation of Rs.7,50,000/- on account of the

injuries sustained by the petitioner in a motor vehicle accident

occurred on 01.11.2010.

4. The facts show that the claimant was working as a driver in

Kuwait, earning salary of Rs.22,500/- per month and he returned to BVLNC,J MACMA 547 of 2016 Page 2 of 27 Dt: 28.10.2022

India on 08.10.2010. The claimant purchased ticket to go to Kuwait

and left from his village on 31.10.2010 at about 10.00 p.m. to go to

Chennai Air Port and he was proceeding in Tata Sumo bearing No.AP

04 TV 0155. The Sumo vehicle on the way to Chennai reached near

Settygunta village at about 00.45 hours on the intervening night of

31.10.2010/01.11.2010. Driver of Tata Sumo dashed a stationed lorry

bearing No.AP 02X 9943 on its rear right side and caused accident due

to rash and negligent driving of the vehicle. The claimant sustained

fracture injuries on his left leg thigh, and he was shifted to S.V.R.R.

Hospital, Tirupathi and from there to Apollo Hospital, Chenni, and he

underwent three operations and steel plated rods were inserted, skin

drafting was also done and he spent an amount of Rs.4,00,000/-

towards treatment and transport expenses. The left leg thigh of

claimant was totally damaged upto lower limb. The claimant suffered

permanent disability and lost his visa period, resulted in loss of

Rs.1,20,000/-.

5. Before the Tribunal, the 1st respondent, owner of the Tata Sumo

vehicle filed counter, opposing the petition, submitted that there was

no rash and negligence on the part of 1st respondent in causing the

said accident. In fact, at the time of accident, the 1st respondent was

driving the vehicle in a moderate speed by observing all traffic rules BVLNC,J MACMA 547 of 2016 Page 3 of 27 Dt: 28.10.2022

and regulations. The lorry bearing No.AP 02X 9943 was stationed on

the road without proper indicative lights, and without any signals and

driver of lorry had not taken any precautions to warn the coming

vehicles, as such, the accident was occurred due to negligence on the

part of driver of lorry. The 1st respondent has insured his vehicle with

2nd respondent/Insurance Company, and the policy was in force on the

date of accident. The 1st respondent has not violated any terms and

conditions of the policy.

6. The 2nd respondent/Insurance Company filed counter resisting

while traversing the material averments with regard to proof of age,

avocation, monthly earnings of the claimant, manner of accident, rash

and negligence on the part of the driver of the crime vehicle, nature of

injuries, medical expenditure and liability to pay compensation and

contended that the accident took place due to rash and negligent

parking of lorry without taking any precautions, which is owned by the

3rd respondent. The driver of Sumo did not possess valid driving

license at the time of accident.

7. The 4th respondent/Insurance Company of stationed lorry filed

counter, opposing the petition, submitted that respondents No.3 and 4

are not necessary parties to the claim petition. The accident took

place solely due to the rash and negligent driving of Tata Sumo driver.

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The claimant did not sustain any permanent disability.              The 3 rd

respondent/owner of lorry remained exparate.

8. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the petitioner has sustained injuries in a vehicular accident that occurred on 01.11.2010 at 00.45 hours near Settigunta village on Koduru-Renigunta main road due to the rash and negligent driving of the driver of Tata Sumo No.AP 04 TV 0155 belonging to respondent No.1 which is insured with 2 nd respondent and the driver of lorry bearing No.P 02X 9943 belonging to respondent No.3 which is insured with respondent No.4?

2. Whether the petitioner is entitled for compensation for the injuries sustained by him in the vehicular accident? If so, to what extent?

3. Whether the respondents 1 to 4 are jointly and severally liable to pay the compensation to the petitioner?

4. To what relief?

9. To substantiate his claim, the petitioner examined P.Ws-1 to 4

and got marked Exs.A-1 to A-26. On behalf of the respondents, R.W-1

was examined and got marked Exs.X-1 and X-2.

10. The Tribunal, taking into consideration the evidence of P.Ws-1 to

4, coupled with Exs.A-1 to A-26, held that the accident took place due BVLNC,J MACMA 547 of 2016 Page 5 of 27 Dt: 28.10.2022

to rash and negligent driving of the driver of the Tata Sumo vehicle,

and further, taking into consideration of the evidence of P.Ws-1 to 4

corroborated by Exs.A-1 to A-26, awarded a compensation of

Rs.4,60,000/- with interest @ 7.5% p.a. from the date of petition, till

the date of deposit.

11. The plea of the 2nd respondent/Insurance Company is that the

accident took place due to rash and negligent parking of lorry without

taking any precautions, which is owned by the 3rd respondent. The

driver of Sumo did not possess valid driving license at the time of

accident.

12. The Tribunal considered the evidence on record, and based on

the contentions of both parties, held that the accident occurred due to

the rash and negligent driving of the 1st respondent's driver.

13. The Tribunal after considering the evidence of P.Ws-1 to 4

coupled with Exs.A-1 to A-26, awarded an amount of Rs.3,10,000/-

towards medical expenses; Rs.50,000/- towards pain and suffering;

Rs.50,000/- towards permanent disability; Rs.30,000/- towards loss of

earnings during the period of treatment; Rs.10,000/- towards extra

nourishment; and Rs.10,000/- towards loss of amenities in the life;

total comes to Rs.4,60,000/-.

 BVLNC,J                                                   MACMA 547 of 2016
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14. The contention of the appellant/claimant is that, the Tribunal

erred in fixing the income of the appellant at Rs.15,000/- per month,

though Ex.A-12 salary certificate proved that his salary was

Rs.35,150/- per month at the time of accident, and the Tribunal erred

and failed to award loss of future earnings, inspite of Ex.A-4

permanent disability certificate, which discloses the permanent

disability suffered by the claimant as 35%. The further contention of

the appellant is that, only Rs.50,000/- was awarded towards pain and

suffering, even though, the appellant suffered grievous injuries and

underwent three major surgeries, and further, the Tribunal granted

only Rs.30,000/- towards loss of earnings during the period of

treatment, and the Tribunal also did not award any amount towards

loss of visa by the appellant, and the Tribunal also erred in granting

only Rs.10,000/- towards extra nourishment and transportation

charges and also for future treatment, and the Tribunal erred in

granting only Rs.10,000/- towards loss of amenities, and the Tribunal

awarded interest @ 7.5% p.a. only, instead of 12% p.a., and therefore,

the Tribunal awarded Rs.4,60,000/- in total, though the claimant is

entitled to Rs.7,50,000/- towards compensation for the injuries

suffered by him in the accident.

 BVLNC,J                                             MACMA 547 of 2016
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15. The case of the appellant, who is claimant in the case is that, he

was working as a driver in Kuwait, a gulf country, and earning salary

of Rs.35,150/- per month at the time of accident, and the claimant

returned to India on 08.10.2010, and he was returning to Kuwait on

31.10.2010 and at about 10.00 p.m. on 31.10.2010 he purchased a

ticket to go to Kuwait and left his village, to go to Chennai Air Port, and

he was proceeding in the crime vehicle i.e., Tata Sumo bearing No.AP

04 TV 0155, and on the way to Chennai, they reached a place near

Settigunta village at about 0.45 hours on the intervening night of

31.10.2010/01.11.2010, and at that time, the driver of the Tata Sumo

dashed a stationed lorry bearing No.AP 02X 9943 on its rear right side,

and as a result, the accident was occurred due to rash and negligent

driving of the driver of the Tata Sumo vehicle, and in the said accident,

the claimant sustained fracture injuries on his left leg thigh, and he

was shifted to S.V.R.R. Hospital, Tirupathi, and from there to Apollo

Hospital, Chennai, and he underwent three operations, and steel

plated rods were inserted, and skin drafting was also conducted, and

he spent more than Rs.4,00,000/- towards treatment and transport

expenses, and his left thigh was damaged to lower limb, and he

sustained permanent disability, and he also lost visa period, resulting

loss of Rs.1,20,000/-, and the 1st respondent is the owner of the Tata BVLNC,J MACMA 547 of 2016 Page 8 of 27 Dt: 28.10.2022

Sumo vehicle, and the 2nd respondent is the insurer of Tata Sumo, and

the 3rd respondent is owner of lorry, and the 4th respondent is the

insurer of the lorry, and they are jointly and severally liable to pay

compensation to the claimant.

16. The 1st respondent/owner of Tata Sumo vehicle filed counter,

and opposed the claim, stating that he is owner-cum-driver of Tata

Sumo vehicle, and possessed valid driving license, and having a valid

insurance policy, and that the accident was not caused due to rash

and negligent driving of the 1st respondent, and the lorry was stationed

in the road without proper indicative lights, and without any signals,

and the lorry driver has not taken any precautionary measures to

warn the coming vehicles, and as such, the accident was occurred due

to the negligence on the part of the driver of the lorry, but criminal

case was foisted against the 1st respondent, apart from driver of the

lorry, in order to get compensation only, and the insurance policy was

valid from 31.08.2010 to 30.08.2011, and it was in force at the time of

accident, and he did not violate any conditions of the insurance policy,

and therefore, the insurer (2nd respondent) alone is liable to pay the

compensation that may arise during subsistence of insurance policy,

and the claim of the petitioner is high and excessive.

 BVLNC,J                                            MACMA 547 of 2016
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17. The 2nd respondent, who is insurer of Tata Sumo vehicle filed

counter, opposing the claim, contending that the accident was

occurred due to rash and negligent parking of lorry, and that the driver

of Tata Sumo did not possess valid driving license at the time of

accident.

18. The 3rd respondent, who is owner of lorry remained exparte

before the Tribunal. The 4th respondent, who is insurer of the lorry

filed counter, opposing the claim, contending that the respondents

No.3 and 4 are not necessary parties to the claim petition, and the

accident was occurred due to rash and negligent driving of the driver

of Tata Sumo vehicle.

19. The Tribunal upon considering the evidence of the claimant

(P.W-1), which was corroborated by Ex.A-1 copy of FIR, Ex.A-3 copy of

police report (charge sheet), held that Ex.A-3 is not sufficient to fasten

liability on the owner, and the insurer of the lorry, and no contra

evidence was produced by the driver of the Tata Sumo vehicle, and

insurer of Tata Sumo vehicle indicating that the driver of lorry parked

the lorry without taking any precautions, and the driver of the same

was not examined as a witness, and therefore, there is no evidence

that the lorry was stationed without taking any precautions, and held

that the owner of the lorry and the insurer of the lorry are neither BVLNC,J MACMA 547 of 2016 Page 10 of 27 Dt: 28.10.2022

necessary or proper parties to the claim petition, and further held that

upon considering the evidence of P.W-1, copy of FIR and copy of police

report (charge sheet) filed in the case, held that the accident was

occurred due to rash and negligent driving of the driver of Tata Sumo

vehicle i.e., 1st respondent, and therefore, the 2nd respondent/insurer

is liable to indemnify the 1st respondent/insured. As policy was valid

and in force at the time of accident, and there are no grounds for

coming to a conclusion that the 1st respondent has violated the terms

of the policy. In that view of the matter, I do not find any grounds to

interfere with the findings of the Tribunal on that aspect.

20. When coming to the quantum of compensation, the claimant

claimed a sum of Rs.7,50,000/- towards compensation for the injuries

sustained by him in a motor vehicle accident. It is pertinent to note

down that the Tribunal in its order, considered the judgment of the

Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and

another1, for awarding compensation in a case of personal injuries,

where it was held as follows:

"Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

2011 (1) SCJ 725 BVLNC,J MACMA 547 of 2016 Page 11 of 27 Dt: 28.10.2022

(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 BVLNC,J MACMA 547 of 2016 Page 12 of 27 Dt: 28.10.2022

necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a)."

21. The claimant in order to establish his claim towards expenses

relating to treatment, hospitalisation, medicines, transportation,

nourishing food and miscellaneous expenditure, himself examined as

P.W-1 to speak about the nature of injuries sustained by him in the

accident, and also examined Dr.M.Bala Murugan (P.W-3), who is a

Consultant Neuro Surgeon of Apollo Hospital, Chennai, and

Dr.Vijayakumar Chockkan (P.W-4), who is Medical Superintendent of

Apollo Super Speciality Hospital, Chennai, who treated the claimant

for the injuries sustained by him in the accident. The claimant in

support of his case filed the following documents as noted in the order

of the Tribunal.

  Exhibit                           Description of Exhibit

Ex.A-2          Certified copy of wound certificate

Ex.A-4          Disability certificate

Ex.A-5          Discharge Bill of Apollo Hospital, Chennai

Ex.A-6          Bills for walker folding

Ex.A-7          Bill for recliner

Ex.A-8          Bill for MRI Scan

Ex.A-9          Six prescriptions

Ex.A-10         MRI Report of spine
 BVLNC,J                                             MACMA 547 of 2016
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Ex.A-11         Radiology report No.6

Ex.A-12         Salary certificate issued by employer of claimant at
                Kuwait
Ex.A-13         Ten medical bills

Ex.A-14         Post OP ECG Report

Ex.A-15         Discharge summary issued by Apollo Hospital, Chennai

Ex.A-16         O.P. Card of SVIMA Hospital, Tirupathi

Ex.A-17         Suraksha Multi Speciality Clinical Lab Report

Ex.A-18         Department of Cardiology Report

Ex.A-19         Report of Sri Venkata Sai Hrudayalaya Lab, Tirupathi

Ex.A-20         Apollo Hospital Micro Biology Report No.2

Ex.A-21         Apollo Hospital Hemotology Report No.3

Ex.A-22         Bio-chemistry Lab Report No.3 of Apollo Hospital,
                Chennai
Ex.A-23         Apollo Hospital, Chenni Immuno Hemotology

Ex.A-24         Original passport

Ex.A-25         Insurance policy

Ex.A-26         Passbook

Among them, Ex.A-2 wound certificate, which shows the injuries

suffered by the claimant in the accident, Ex.A-15 is the discharge

summary issued by Apollo Hospital, Chennai.

22. The claimant in support of his case, also examined Dr.J.Ngesh

(P.W-2) Member of District Medical Board, who issued Ex.A-4 BVLNC,J MACMA 547 of 2016 Page 14 of 27 Dt: 28.10.2022

permanent disability certificate, stating that the claimant suffered

permanent disability of 35% in view of the injuries sustained by him in

the accident.

23. The claimant in his evidence stated that he sustained injury on

his left leg and he was shifted to S.V.R.R. Hospital, Tirupthi, and then

he was referred to Apollo Hospital, Chennai, and he got admitted in the

hospital on 04.11.2010, and he underwent three major operations and

steel plates, rods were inserted, and skin drafting was also done, and

he was discharged from Apollo Hospital on 24.11.2010, and Ex.A-2

wound certificate issued by Casualty Medical Officer, S.V.R.R. Govt.

Hospital, Tirupathi, shows that the claimant sustained injury on left

femur i.e., left leg with knee and Ex.A-15 discharge summary coupled

with Ex.A-2 shows that the claimant sustained two injuries and

underwent operation for those two injuries, and as per evidence of

P.W-3, those two injuries are grievous in nature, and taking into

consideration that the claimant underwent operations for the said two

injuries, and taking into consideration of the treatment undergone by

the claimant in Apollo Hospital, Chennai, from 04.11.2010 to

15.11.2010, the Tribunal warded a sum of Rs.50,000/- under head of

pain and suffering and trauma, as a consequence of injuries (non-

pecuniary damages) (general damages).

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24. The contention of the claimant is that the Tribunal should have

awarded Rs.1,00,000/- under this head, but only awarded

Rs.50,000/-. The claimant/appellant did not point out how the

Tribunal committed error in awarding Rs.50,000/- towards pain,

suffering and trauma as a consequence of injuries, and what is the

basis claiming for Rs.1,00,000/- by him, except contending that he is

entitled to Rs.1,00,000/-. Ex.A-2 coupled with Ex.A-15 shows that the

claimant sustained two grievous injuries. P.W-3 in his evidence stated

that those two injuries are grievous in nature. It is also an admitted

fact that the claimant underwent operation for the said two injuries,

and he was admitted in hospital as in-patient on 04.11.2010 and took

treatment till 15.11.2010. In the said circumstances of the case, I do

not find any ground to interfere with the amount awarded by the

Tribunal under the head pain, suffering and trauma as a consequence

of injuries.

25. When coming to expenses relating to treatment, hospitalisation

and medicines is concerned, Ex.A-15 discharge summary shows that

claimant has taken treatment as in-patient in Apollo Hospital, Chennai

from 04.11.2010 to 15.11.2010. As rightly pointed by the Tribunal,

P.W-3 and P.W-4 also spoke about the treatment provided to the

claimant as in-patient in their hospital. Ex.A-5 is the discharge bill BVLNC,J MACMA 547 of 2016 Page 16 of 27 Dt: 28.10.2022

issued by Apollo Hospital, Chennai, and as per Ex.A-5, claimant spent

a sum of Rs.3,04,785.64 paise, and discount has been given, and

thereby claimant paid a total sum of Rs.2,99,517.64 paise, and the

claimant thus incurred approximately Rs.3,00,000/- for his treatment

in Apollo Hospital, Chennai. As rightly pointed out by the Tribunal,

evidence of P.W-3 and P.W-4 certifies the correctness of Ex.A-5, and

the claimant after discharged from Apollo Hospital, Chennai, has taken

further treatment by undergoing various tests, as seen from other bills

produced by the claimant, and considering the same, the Tribunal

awarded Rs.3,10,000/- towards treatment, hospitalisation, medicines,

and did not deduct any amount from the said bills. In that view of the

matter, I do not find any ground to interfere with the amount awarded

by the Tribunal under the head expenses relating to treatment,

hospitalisation, medicines, transportation, nourshing food and

miscellaneous expenditure under the main head pecuniary damages

(special damages).

26. The Tribunal apart from above amounts, also awarded a sum of

Rs.10,000/- under the head transportation and for extra nourishment.

Therefore, if this amount is added, the amount awarded under the

above head will be Rs.3,20,000/-.

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27. When coming to the amount of compensation awarded under

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.

28. The Tribunal found that the appellant was employed as driver in

Kuwait and he came to India during holidays, and after completion of

his holidays, the claimant booked a ticket, and on 31.10.2010 he left

his village to go to Chennai Air Port to go to Kuwait, and on the way to

Chennai, he met the unfortunate accident, and could not travel to

Kuwait, and considered Ex.A-12 salary certificate produced by him,

which shows that he was getting salary of Rs.35,150/- as a driver in

Kuwait, and since he could not go to Kuwait at that time, considering

his income at Rs.35,150/- in a place like Kadapa District, awarded a

sum of Rs.30,000/- towards loss of earnings during the period of

treatment, and subsequent to discharge holding that the claimant

must have taken bed rest for two months, which inclusive treatment

provided to him in Apollo Hospital, Chennai as in-patient.

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29. The contention of the appellant/claimant is that as per Ex.A-12

salary certificate, he was getting salary of Rs.35,150/- per month as a

driver in Kuwait, and therefore, this should be taken into

consideration for awarding loss of earnings during the period of

treatment. It is true that the claimant was going to Chennai at the

time of accident to go to Kuwait, and unfortunately, on the way to

Chennai Air Port, he met with the accident and sustained injuries, and

as a result, he was forced to stay in Apollo Hospital, Chennai from

04.11.2010 to 15.11.2010 as in-patient, and the evidence of P.W-3 and

P.W-4 shows that he sustained two grievous injuries, and underwent

operations in Apollo Hospital, Chennai, and therefore, he might have

taken bed rest at least for a period of two months, due to the injuries

sustained by him in the accident, and Ex.A-12 shows that his salary

was Rs.35,150/- as a driver in Kuwait. Therefore, had the claimant

went to Kuwait at that time, he would get salary of Rs.70,300/- for a

period of two months. Unfortunately, due to the accident, he could not

go to Kuwait and he was forced to stay at his place in Kadapa District

without any income during the period of treatment. Therefore, he is

entitled to Rs.70,300/- towards loss of earnings during the period of

treatment. In that view of the matter, I am of the considered opinion

that the finding of the Tribunal that he could not go to Kuwait, his BVLNC,J MACMA 547 of 2016 Page 19 of 27 Dt: 28.10.2022

salary cannot be fixed basing on Ex.A-12, requires interference and

modification. Accordingly, loss of earnings during the period of

treatment shall be awarded at Rs.70,300/- instead of Rs.30,000/-

awarded by the Tribunal.

30. When coming to the loss of future earnings on account of

permanent disability is concerned, the claimant deposed that accident

resulted his left leg thigh was totally damaged upto lower limb, and he

lost his good health and strength of the left leg was decreased and he

is unable to walk freely, squat on cross leg and long distance, and that

the disability sustained by him is permanent disability, and in support

of his evidence, he examined Dr.J.Nagesh (P.W-2) a Member of District

Medical Board, who examined the claimant and issued Ex.A-4

disability certificate, and stated that due to old fracture left femur

malunited with stiff knee joint, left side and also cord injury to the

cervical bone, C4, C5 level with weakness of both upper limbs. The

percentage of disability is 35%, and P.W-2 in the cross-examination

stated that he has not treated the claimant for the injuries and he

issued Ex.A-4 one year after the accident. The Tribunal considered the

evidence of P.W-1, P.Ws-2 to 4 doctors and Ex.A-4 disability certificate

and observed that the claimant is driver by profession, and there is

nothing in Ex.A-4, and as seen from the evidence of P.Ws-2 and 3 that BVLNC,J MACMA 547 of 2016 Page 20 of 27 Dt: 28.10.2022

the claimant is not in a position to drive vehicle. The weakness of

upper limb, malunited fracture can be rectified by physiotherapy

exercises and by taking proper medicines and by taking further

treatment, and therefore, not inclined to award any compensation for

permanent disability by following multiplier method, because, the

disability is not a functional disability, and the Tribunal in its order

relied upon the judgment of Hon'ble Apex Court in Raj Kumar Vs.

Ajay Kumar and another, wherein it was held as follows:

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........"

"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 BVLNC,J MACMA 547 of 2016 Page 21 of 27 Dt: 28.10.2022

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)."

9. xxx xxx xxx

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."

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Page 22 of 27                                        Dt: 28.10.2022

"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."

Xxx xxx xxx

11. "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 BVLNC,J MACMA 547 of 2016 Page 23 of 27 Dt: 28.10.2022

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 ........".

31. The Tribunal however awarded a sum of Rs.50,000/- towards

medical requirement for the claimant by taking physiotherapy

treatment, and for using medicines, and the Tribunal also awarded

Rs.10,000/- towards loss of future amenities in the life.

32. The Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay

Kumr and another, held that, 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),

and 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 BVLNC,J MACMA 547 of 2016 Page 24 of 27 Dt: 28.10.2022

Tribunal will adopt the said percentage for determination of

compensation. 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.

33. In the case on hand, the evidence of P.W-2 coupled with Ex.A-4

shows that the disability is 35% on account of two injuries sustained

by the claimant. P.Ws-3 and 4 in their evidence did not say that on

account of the injuries sustained by the claimant, he cannot drive the

vehicle, as he was doing earlier to the accident, or that due to the BVLNC,J MACMA 547 of 2016 Page 25 of 27 Dt: 28.10.2022

weakness of upper limb, malunited fracture, the claimant is totally

disabled from earning any kind of livelihood, or whether claimant was

prohibited or restricted from discharging his professional activities and

functions.

34. The evidence of P.W-2 also does not disclose that the claimant

cannot drive the vehicle, on account of 35% disability as mentioned in

Ex.A-4 certificate. The claimant also in his evidence did not depose

that on account of the injuries sustained by him in the accident, he is

not in a position to drive the vehicle. The Tribunal in its order held

that the claimant requires physiotherapy, and further treatment to

come over the weakness of the upper limb, as pointed out in the

disability certificate, and awarded a sum of Rs.50,000/- towards

expenditure for physiotherapy and medicines i.e., future treatment. In

that view of the matter, I do not find any grounds to interfere with the

findings of the Tribunal.

35. In the light of above discussion, the award passed by the

Tribunal requires modification in respect of compensation for the loss

of earnings during the period of treatment. Accordingly, it is modified

to Rs.70,300/- from Rs.30,000/-. There are no grounds to interfere

with the other findings of the Tribunal.

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36. In the result, the appeal is partly allowed, the impugned order is

set aside, and it is held that the appellant is entitled to Rs.70,300/-

towards loss of earnings during the period of treatment, instead of

Rs.30,000/- as awarded by the Tribunal. Therefore, the appellant /

claimant is entitled to Rs.4,30,000 + 70,300 = Rs.5,00,300/-, with

interest @ 7.5% p.a., from the date of petition, till the date of

realisation. There shall be no order as to costs.

The 2nd respondent/Insurance Company is directed to deposit

the entire compensation amount of Rs.5,00,300/- along with accrued

interest thereon, within one month from the date of judgment. On

such deposit, the Appellant/claimant is permitted to withdraw the

entire compensation amount of Rs.5,00,300/- along with accrued

interest thereon.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                           ____________________________
                                           B.V.L.N.CHAKRAVARTHI, J
28.10.2022

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Page 27 of 27                                 Dt: 28.10.2022




            HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                    M.A.C.M.A.No.547 OF 2016




                        28th October, 2022

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