Calcutta High Court (Appellete Side)
Dipak Kumar Sarkar vs Icici Lombard General Insurance ... on 10 January, 2023
IN THE HIGH COURT, AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK.
FMA 667 OF 2016
Dipak Kumar Sarkar
......................Appellant
Versus
ICICI Lombard General Insurance Co. Ltd and another
......................Respondents
For the Appellant: Mr Jayanta Kumar Mandal, Advocate.
Mr Sayantan Rakhit, Advocate.
For the Respondent no.1: Mr Parimal Kumar Pahari, Advocate.
Heard on: 16.11.2022.
Judgment on: 10.01.2023.
Bivas Pattanayak, J :-
1.This appeal is preferred against the judgment and award passed on 30 th
June 2015 by learned Additional District Judge cum Judge, Motor accident
Claims Tribunal, 5th Court, Burdwan in MAC Case no. 9 of 2013/50 of 2013
granting compensation of Rs. 2,06,000/- favour of the claimant under Section
166 of the Motor Vehicles Act, 1988.
2. The brief fact of the case is that on 7 March 2010 at about 7 AM while the
petitioner and his wife was waiting for a bus at police line bus stoppage at that
time the offending vehicle bearing no. WB-41D/3432 (Tata 107 pickup van)
which was coming from Shaktigarh side dashed the victim from behind in a
rash and negligent manner as a result of which the victim sustained severe
injuries on his left hand and was removed to Sharanya Hospital, Burdwan and
on the subsequent morning he was shifted to Kolkata. During his medical
treatment the injured-victim had to undergo several operations. On account of
such injuries the claimant-injured filed application for compensation of Rs.
10,00,000/- under Section 166 of the Motor Vehicles Act, 1988.
3. The respondent no.1-insurance company contested the claim application
before the learned tribunal. However respondent no.2-owner of the offending
vehicle in spite of service of notice did not contest the claim application before
the learned tribunal and the claim application was disposed of exparte against
him. Accordingly, service of notice of appeal upon respondent no.2-owner of
the offending vehicle is dispensed with.
4. The claimant in order to prove his case examined six witnesses and proved
number of documents which have been marked as Exhibit 1 to 8 respectively.
The contesting opposite party no.2-insurance company (respondent no.1
herein) did not adduce any evidence on its behalf.
5. Upon considering the materials on record and the evidence produced on
behalf of the claimants the learned tribunal allowed the claim application
granting compensation of Rs. 2,06,000/- favour of the claimant under Section
166 of the Motor Vehicles Act, 1988.
6. Being aggrieved by and dissatisfied with the impugned judgment and award
of the learned tribunal the claimant has preferred the present appeal.
7. Mr Jayanta Kumar Mandal, learned advocate for appellant-claimant
submitted that the injured-claimant sustained 45% disablement resulting in
loss of future earnings which should be quantified by applying multiplier
method. He further submitted that the injured-claimant produced medical
bills of Rs. 57,200/- (Exhibit 8) before the learned tribunal in relation to his
treatment at Medica Superspeciality Hospital but the learned tribunal without
any cogent reason disallowed the said medical bills. Furthermore he submitted
that the learned tribunal erred in granting a very meagre amount towards
non-pecuniary damages of Rs. 30,000/- only which requires to be increased
keeping in mind the extent of injuries sustained by the injured-claimant. In
support of his contention he relied on the following decisions of Hon'ble
Supreme Court passed in (i) M.D Jacob versus United India Insurance Co.
Ltd and Another reported in 2014 (1) T.A.C 735 (S.C); (ii) Sanjay Verma
versus Haryana Roadways reported in 2014 (1) T.A.C 711 (S.C); (iii)
Karthik Subramanian versus B. Sarath Babu and Another reported in
2021 (2) T.A.C 1 (S.C); (iv) Jithendran versus The New India Assurance
Co. Ltd reported in 2022 SAR (Civ) 248; (v) G.Ravindranath @ R. Chowdary
versus E. Srinivas & Anr. reported in 2013 SAR (Civ) 979; (vi) Raj Kumar
versus Ajay Kumar & Anr. reported in 2011 SAR (Civ) 90; (vii) Kajal
versus Jagdish Chand & Ors. reported in 2020 SAR (Civ) 530.
In the light of his aforesaid submissions he prayed for enhancement of
compensation amount.
8. In reply to the aforesaid contention of appellant-claimant, Mr Parimal
Kumar Pahari, learned advocate for respondent no.1-insurance company
submitted that as per salary slips (Exhibit C) there is no loss of future
earnings and therefore quantification of such amount towards loss of future
earnings in the present facts and circumstances of the case do not arise at all.
He further submitted that as per the evidence of injured-claimant he joined
his regular duties in the same post after eight months of the incident and thus
continued to draw salary in the same scale which he used to draw prior to the
accident. Moreover with regard to claim of medical bills (Exhibit 8) he
submitted that neither in the claim application nor in the evidence of the
injured-claimant there is any whisper that the injured was treated in the said
hospital for the period of his claim and thus the learned tribunal rightly
dismissed the claim of the injured with regard to such medical bills.
Furthermore he submitted that the propositions enunciated in the cited
decisions of the Hon'ble Supreme Court do not apply to the case at hand as
the facts are dissimilar to the present case. In view of the above he submitted
that the appeal is liable to be dismissed.
9. Having heard the learned advocates of respective parties, I now proceed to
decide the issues involved in the present appeal. The appellant-injured has
sought for enhancement of the compensation amount precisely on following
grounds firstly the claimant-injured is entitled to loss of future earnings due to
45% disablement which should be quantified by applying multiplier method;
secondly entitlement of the claimant in respect of medical bills of Rs. 57,200/-
of Medica Superspeciality Hospital and thirdly increase of compensation
towards non-pecuniary damages in respect of the extent of injuries sustained
by the injured-claimant.
9.1. With regard to the first issue of quantification of future loss of earnings
by adopting multiplier system it is found that the injured-claimant (PW1)
deposed that for treatment of his injury on the left forearm he had to undergo
several operative measures and he became permanently disabled to the extent
of 45%. The disability certificate (Exhibit 7) shows post-traumatic deformity of
left upper limb and the injured sustained disablement of 45% of permanent
nature. Now it is to be seen whether such disablement affected the future
earnings of the injured-victim. PW5, Dr Alok Kumar Samanta who was a
member of the medical board which issued disablement certificate deposed in
cross-examination that there are two types of disability one is physical
disability and another is functional disability and it is not possible for him to
say that how far the injury of the injured affected his earning capacity. Though
disablement of permanent nature to the extent of 45% has been noted in the
disability certificate but nothing is placed on record to show that the deformity
in the upper left limb of the injured has affected the earning capacity of the
injured-victim. It is relevant in this context to note that the injured-claimant
in his cross-examination has stated that he resumed his duties after 8 months
of the accident and presently he is drawing salary in regular course. On
comparative analysis of salary slips namely Exhibit 6 and Exhibit C it is
found that with the passage of time the gross pay of the injured claimant has
got increased and there is no loss of future earnings. There is no case that due
to injury to the left upper limb the grade in the service of the injured-claimant
was lowered or he was demoted. The Hon'ble Supreme Court in Raj Kumar's
Case (supra) observed in paragraph no.8 that 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 and further held in the
subsequent paragraph as follows:
"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 it affect his earning capacity."
Bearing in mind the aforesaid observation of the Hon'ble court and keeping in
mind the materials as discussed above it is quite evident that in spite of such
injury in the upper left limb of the injured there is no loss of future earnings.
9.1.1. In M.D Jacob's Case the injured suffered amputation of complete left
hand, severe injuries on head, dislocation of bones in hip and both knees and
doctor assessed his disability at 100% and compensation was assessed by the
Hon'ble court considering the aforesaid aspects. The facts of the cited decision
are dissimilar to the case at hand and thus stand distinguished.
9.1.2. In Sanjay Verma's Case the injured suffered a fracture of spinal cord
resulting in paralysis of his whole body and he needed one person to look after
him. The facts involved in the cited decision stands distinguished from the
case at hand and is thus not applicable.
9.1.3. In Karthik Subramanian's Case the claimant could establish through
documents of employment and bank statement that he got salary of
Rs.37,500/- albeit for a short period. In the case at hand the injured resumed
his duties after 8 months of the accident and presently he is drawing salary in
regular course. Therefore the case before the Hon'ble court stands
distinguished from the case at hand and is thus not applicable.
9.1.4. In Jithendran's Case the injured suffered 69% permanent disability
and without assistance cannot perform everyday functions and affected with
seriously impaired cognitive and physical capabilities and compensation was
assessed by the Hon'ble court considering the aforesaid aspects. The facts of
the cited decision are dissimilar to the case at hand and thus stand
distinguished.
9.1.5. In G.Ravindranath @ R. Chowdary's Case the injured sustained
pelvic and urethral injuries (total urethral rupture) and the compensation was
assessed considering such facts. It is found that the facts involved in the cited
decision are distinct from the case at hand and is thus not applicable.
9.1.6. In Kajal's Case the injured suffered serious injuries resulting in
damage to her brain and because of head injury the injured is left with very
low IQ and severe weakness in all her four limbs with severe hysteria and
urinary incontinence and her disability was assessed to the extent of 100%. It
is found that the facts involved in the cited decision are dissimilar to the case
at hand and is thus not applicable.
In light of the above discussion, it is found that the learned tribunal has
rightly held that the injury of the claimant-injured does not affect his future
earnings.
9.2. The second issue involved in the present appeal relates to claim of
medical bills of Rs. 57,200/-. The claimant-injured filed the aforesaid medical
bills pertaining to the period from 22.12.2010 to 25.12.2010 amounting to Rs.
57,200/- which is marked as Exhibit 8. From the four corners of the claim
application nothing is stated regarding treatment of the injured during the
aforesaid period in the concerned hospital. The injured-claimant (PW1) in his
evidence has also not stated of any treatment during such period or claimed
any such amount. The claimant has also not produced and proved any
discharge certificate showing continuity of treatment. Though the bills were
sought to be proved by PW6, Prem Kumar Srivastav yet the said witness stated
in cross-examination that he do not have any knowledge about the treatment
undergone by the claimant. In the aforesaid backdrop, the learned tribunal
has rightly disallowed such medical bills in the absence of pleadings and
proper evidence.
9.3. With regard to non-pecuniary damages, is found that the learned tribunal
granted Rs. 30,000/-on such head. Mr Mandal, learned advocate for
appellant-claimant submitted that considering the extent of injuries the
amount of compensation towards non-pecuniary damages requires to be
increased. It is relevant to note that the injured-claimant has not produced a
single discharge summary to establish the extent of his injuries. The disability
certificate (Exhibit 7) shows post-traumatic deformity of left upper limb and
the injured sustained disablement of 45% of permanent nature. As per the
evidence of injured-claimant (PW1) for treatment of his injury on the left
forearm he had to undergo several operative measures. Be that as it may, in
his cross-examination the injured claimant (PW1) stated that he resumed his
duties after eight months. The learned tribunal considering the period of
confinement and injuries granted non-pecuniary damages of Rs. 30,000/-,
which in the facts and circumstances of the case does not call for interference.
10. In view of the above discussion the appeal fails and stands dismissed. The
impugned judgment and award passed by the learned tribunal is affirmed. No
order as to cost.
11. With the aforesaid observation the appeal stands disposed.
12. All connected applications, if any, stands disposed of.
13. Interim order, if any, stands vacated.
14. Let a copy of this judgment along with the lower court records be sent to
the learned tribunal for information.
15. Urgent photostat certified copy of the judgment if applied for be supplied
to the parties after compliance of all legal formalities.
(Bivas Pattanayak,J.)
