Gauhati High Court
MACApp./473/2019 on 21 November, 2024
GAHC010203972019
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MAC Appeal No. 473/2019
Pawan Kumar Jalan,
S/o Late Chiranjilal Jalan,
Resident of A.T. Road, Tarajan,
PO & PS-Jorhat,
Dist.-Jorhat, Assam, Pin-785001.
......Appellant.
-Versus-
1. National Insurance Company Limited,
Having its Regional Office at Lohia Mansion,
G.S. Road, Bhangagarh, Guwahati-781005,
Represented by the Regional Manager,
Guwahati Regional Office,
Bhangagarh, Guwahati-781007.
2. Shri Dharmendra Dubey,
S/o Shri Chandra Sekhar Dubey,
Resident of Devi Pukhri Road, near Mandir,
PO & PS-Tinsukia, Dist.-Tinsukia,
Assam, Pin-786125.
[Owner of Vehicle No.AS-01AM-6064 (Toyota Innova)]
3. Shri Dhrubajyoti Borah,
S/o Shri Rajen Borah,
Resident of Buruk Boruah Gaon,
PO-Na-Ali, Dhekiajuli, Dist.-Jorhat,
Assam, Pin-785009.
[Driver of the vehicle No.AS-01AM-6064 (Toyota Innova)]
......Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellant : Mr. M. Dutta. ......Advocate.
For the Respondents : Mr. K.K. Bhatra,
Ms. L.A. Magar. ......Advocates.
Date of Hearing : 22.10.2024
Date of Judgment : 21.11.2024
JUDGMENT AND ORDER
Heard Mr. M. Dutta, learned counsel for the appellant and Mr.
K.K. Bhatra and Ms. L.A. Magar, learned counsel for the respondent
No.1.
2. In this appeal under Section 173 of the Motor Vehicles Act,
1988, the appellant has challenged the correctness or otherwise of the
judgment and award dated 27.05.2019 passed in MAC Case
No.05/2017 by the learned Member, Motor Accident Claims Tribunal
(MACT), Jorhat, for enhancement of the award. It is to be noted here
that vide impugned judgment and award dated 27.05.2019, the
learned Member, MACT, Jorhat, has directed the respondent No.1
insurance company to pay a sum of Rs.2,01,589/- after deduction of
interim relief, if any, to the appellant/claimant with interest @5% per
annum.
3. The back grounds facts leading to filing of the present appeal is
briefly stated as under:-
"On 20.04.2016, the appellant herein was returning from
Guwahati towards Jorhat in a Toyota Innova car, bearing
Registration No.AS-01AM-6064. Then, at around 2:10 a.m. on
National Highway No.37 near Sabjury under Golaghat P.S., the
vehicle was driven by its driver in a rash and negligent manner
and at a high speed and suddenly dash against a tree by the
side of the road. As a result, the appellant herein sustained
grievous injuries on his person. He was immediately taken to
Bokakhat FRU, from where the doctors referred him to Jorhat.
Accordingly, the appellant was taken to Jorhat and admitted in
the All Well Hospital & Research Institute (P) Limited and
attended by Dr. Bhaskar Bhagawati, who examined him and
found multiple injuries with inter trochanteric fracture and he
had undergone surgery there and plates and bolts were fitted to
repair the inter trochanteric fracture and discharged on
27.04.2016.
Thereafter, the appellant herein filed a claim petition before the
learned Member, MACT, Jorhat against the respondents. Then
on receipt of notice, the respondents entered appearance and
filed written statement denying the averments made in the claim
petition and their liability in payment of compensation. Then,
upon the pleadings of the parties, the learned Member has
framed following issues:-
1. Whether the accident occurred due to rash and negligent
driving by the driver of the offending vehicle, bearing
Registration No.AS-01AM-6064 [Toyota Innova Gx Car]?
2. Whether the claimant Sri Pawan Kumar Jalan sustained
injuries due to the said accident which occurred on
20.04.2016 at 2:10 a.m. on National Highway No.37 way
at Sabjury, under Bokakhat P.S., District-Golaghat, Assam?
3. Whether the offending vehicle was duly insured with the
National Insurance Company Limited at the time of
accident?
4. Whether the driver of the offending vehicle had a valid and
effective driving licence at the time of accident?
5. Whether the claimant is entitled to get any compensation?
And, if so, to what extent and by whom it shall be paid?
Thereafter, in the course of hearing, the claimant has exhibited
as many as 9 documents and also examined himself as PW-1.
The respondent herein cross-examined the claimant and also the
respondent No.1/O.P. No.3 exhibited the insurance policy as
Exhibit-A and thereafter, hearing both the parties, the learned
Tribunal decided the Issue Nos.1 to 4 in affirmative in favour of
the claimant and in view of the decision in affirmative in respect
of Issue Nos.1 to 4, the learned Member has found that the
claimant is entitled to compensation and thereafter, assessed the
compensation as under:-
Loss of Income Rs. 30,000/-
Medical Expenses Rs.1,06,589/-
Special Diet Rs. 10,000/-
Head of Transporation Rs. 5,000/-
Pain & Sufferings Rs. 50,000/-
Total:- Rs.2,01,589/- [Rupees two
lakhs one thousand five
hundred & eighty nine]
And thereafter, the learned Member has directed the respondent
No.1/O.P. No.3 insurance company to pay a sum of
Rs.2,01,589/- being the compensation to the appellant/claimant
and further provided that the amount will carry interest @5%
per annum with effect from the date of filing the claim petition
i.e. 15.03.2017."
4. Being highly aggrieved, the appellant herein preferred the
present appeal on the following grounds:-
I. The learned Tribunal, while passing the impugned judgment and
award failed to consider the evidence in its proper perspective
and thereby arrived at the erroneous finding.
II. The compensation awarded by the learned Tribunal was neither
just nor reasonable. The learned Tribunal ought to have granted
higher compensation by taking relevant facts and materials into
consideration.
III. The learned Tribunal, while passing the impugned judgment and
award dated 27.05.2019, committed irregularity by taking
notional income of Rs.5,000/- (Rupees Five Thousand) per
month in spite of there being sufficient evidence to the effect
that the claimant's monthly income is of Rs.35,490/- (Rupees
Thirty Five Thousand Four Hundred and Ninety), as per his
Income Tax Return for the Assessment Year 2015-16 (Exhibit-3),
wherein it is shown that his gross total income is of
Rs.4,25,874/- (Rupees Four Lakhs Twenty Five Thousand Eight
Hundred and Seventy Four) and the opposite parties also did not
denied this evidence during cross-examination of
claimant/injured. As such, the learned Tribunal ought to have
taken the monthly income of the claimant/injured as Rs.35,490/-
(Rupees Thirty Five Thousand Four Hundred and Ninety) per
month instead of taking notional income of Rs.5000/- (Rupees
Five Thousand) per month.
IV. The learned Tribunal had wrongly awarded Rs.30,000/- (Rupees
Thirty Thousand) [Rs.5000 x 6] as loss of income, but the loss of
earning during the period of treatment ought to be Rs.2,12,940/-
(Rupees Two Lakhs Twelve Thousand Nine Hundred and Forty)
in place of Rs.30,000/- (Rupees Thirty Thousand). As such,
awarding compensation of Rs.30,000/- (Rupees Thirty
Thousand) under the head, "Loss of Income" is liable to be
interfered by this Hon'ble Court and the compensation amount
under the head "Loss of Income" needs to be suitably enhanced
by this Hon'ble Court.
V. It is an admitted fact that the appellant is a businessman by
profession and the Proprietor of M/S G.D. Tractors and also
serving as a Table Tennis Coach and Computer Trainer at J.B.
College, Jorhat and his yearly income from all the sources comes
at Rs.4,25,874/-. As such, holding of notional income of
Rs.5,000/- per month is totally erroneous.
VI. The learned Tribunal also erred in not awarding any amount
under the head „future medical expenses‟ to be caused in the
operation for removing the plates, bolts etc.
VII. The learned Tribunal had erroneously awarded a very meager
amount of Rs.10,000/- and Rs.5,000/- respectively under the
head of "nourishing food and special diet" and "transportation"
though it is very much available in the evidence that the
claimant/injured was under medical treatment for more than 6
months and during that period he took medical and
physiotherapy treatment.
VIII. The learned tribunal committed wrong by awarding a very
meager amount of Rs.50,000/- under the head of "pain and
suffering" as a consequence of the injuries which need to
adequately enhanced by this Hon'ble Court considering the pain,
sufferings and trauma suffered by the claimant/injured.
IX. The learned Tribunal awarded 5% interest upon the awarded
amount from the date of filing of the claim petition, i.e., from
15.03.2017, till realization of the entire amount, which is very
much inadequate and needs to be modified at the rate of 9%
per annum.
5. Mr. Dutta, learned counsel for the appellant, has confined his
arguments on the following points:-
(i) Monthly Income of the Injured/Appellant:- It is
contention of Mr. Dutta that while assessing the
compensation, which the claimant is entitled to, the
learned Tribunal has fixed the notional income of the
claimant @Rs.5,000/- per month. Mr. Dutta submits that
the appellant herein is a businessman by profession and
proprietor of M/s G.D. Tractors and also he is a Table
Tennis Coach and Computer Trainer at J.B. College, Jorhat
and as per his income tax return, which is exhibited as
Exhibit-3, his total yearly income was Rs.4,25,874/- and in
view of the decision of Hon‟ble Supreme Court in the case
of Malarvizhi & Ors. v. United India Insurance
Company Limited & Anr., reported in (2020) 4 SCC
228 and in view of the decision of Hon‟ble Supreme Court
in the case of Shashikala & Ors. v.
Gangalakshmamma & Anr., reported in (2015) 9 SCC
150, Mr. Dutta submits that income tax return is a
statutory document and reliance can be placed upon the
same to determine the annual income of the
injured/claimant and that the latest income tax return has
to be taken into account for calculation instead of taking
the average income of two assessment years and since the
annual income of the appellant is Rs.4,25,874/-, as such,
his monthly income ought to have been assessed at
Rs.35,490/- and as such, the learned Member has
committed illegality in taking the notional income of the
appellant at Rs.5,000/- per month.
(ii) Rate of Interest:-Mr. Dutta submits that the learned
Member has fixed the rate of interest @5% per annum.
But the same ought to have been 9% per annum.
(iii) Medical Expenses:- Mr. Dutta submits that while
assessing the compensation in a routine injury case, the
learned Tribunal has awarded a meager amount of
Rs.1,06,589/- being the medical expenses which ought to
have been for a sum of Rs.2,49,598/- and the respondent
No.1, the Insurance Company has not disputed the said
amount.
(iv) Future medical Expenses:- Mr. Dutta submits that the
claimant has suffered 33% disability in view of Exhibit-8,
but the learned Tribunal has failed to award any amount
under the head future medical expenses.
(v) Nourishing and Special Diet and Transportation :- It
is also the contention of Mr. Dutta that the amount
awarded under nourishing head and special diet is
Rs.10,000/- and transportation charge was Rs.5,000/-.
Though there was evidence that the appellant was
undergoing treatment for more than 6 months.
(vi) Pain And Sufferring:- Mr. Dutta also submits that under
the head of pain and sufferings, the learned Member has
awarded a sum of Rs.50,000/- and the same is very
meagre amount and therefore, Mr. Dutta contended to
enhance the awarded amount under the aforementioned
heads.
6. Per contra, Mr. Bhatra, learned counsel for the respondent No.1
i.e. the Insurance Company, submits that he has no objection in the
event of granting compensation to the appellant for loss of his income
during the period of six months of his treatment. And in respect of the
rate of interest so awarded by the learned Tribunal, Mr. Bhatra
submits that the same is justified and in respect of the quantum of
compensation under the different heads, he has supported the
impugned judgment and award passed by the learned Tribunal.
7. Having heard the submission of learned Advocate of both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and also gone through the impugned
judgment and award and the decisions referred by Mr. Dutta, learned
counsel for the appellant.
8. The law regarding entitlement of compensation by the injured in
a routing injury case is well settled by Hon‟ble Supreme Court in
catena of decisions. In the case of Raj Kumar v. Ajay Kumar &
Anr., reported in (2011) 1 SCC 343, Hon‟ble Supreme Court has
held that the claimant is entitled to compensation under the following
heads in a routine injury case:-
"Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(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."
9. The appellant herein has exhibited the bills and vouchers and
receipts for „medical expenses‟ before the learned Tribunal for a sum
of Rs.2,49,598/-. But, it appears that the learned Tribunal has
awarded a sum of Rs.1,06,589/- under the head „medical expenses‟.
The contention of Mr. Dutta, the learned counsel for the appellant is
that the aforesaid bills, so exhibited by the appellant/claimant is not
disputed by the respondent side and as such, the claimant will be
entitled to the aforesaid amount. The list of expenses are shown in the
chart below:-
SL Exhibit LIST OF RECEIPTS Amount
No. No.
1 9 A copy of Bill of All Well Institute & 200.00
Research Institute Pvt. Ltd dated
20/04/2016
2 10 A copy of Bill of All Well Institute & 50.00
Research Institute Pvt.Ltd. dated
20/04/2016
3 11 A copy of Bill of All Well Institute & 229.00
Research Institute Pvt. Ltd dated
20/04/2016
4 12 A copy of Bill of All Well Institute & 120.00
Research Institute Pvt. Ltd. dated
20/04/2016
5 13 A copy of Bill of All Well Institute & 650.00
Research Institute Pvt. Ltd. dated
20/04/2016
6 14 A copy of Bill of All Well Institute & 579.00
Research Institute Pvt. Ltd. dated
20/04/2016
7 15 A copy of Bill of All Well Institute & 707.00
Research Institute Pvt. Ltd. dated
20/04/2016
8 16 A copy of Bill of All Well Institute & 355.00
Research Institute Pvt. Ltd. dated
20/04/2016
9 17 A copy of Bill of All Well Institute & 20.00
Research Institute Pvt. Ltd. dated
20/04/2016
10 18 A copy of Bill of All Well Institute & 1550.00
Research Institute Pvt. Ltd. dated
20/04/2016
11 19 A copy of Bill of Baruah X-Ray & Sonoscan 1400.00
Clinic dated 20/04/2016
12 20 A copy of Bill of Greater Jorhat Lions 800.00
Blood Bank dated 21/04/2016
13 21 A copy of Bill of All Well Institute & 340.00
Research Institute Pvt. Ltd. dated
21/04/2016
14 22 A copy of Bill of Jyoti Laboratory dated 350.00
21/04/2016
15 23 A copy of Bill of Patholab dated 21/04/2016 90.00
16 24 A copy of Bill of All Well Institute & 246.00
Research Institute Pvt. Ltd. dated
22/04/2016
17 25 A copy of Bill of All Well Institute & 1449.00
Research Institute Pvt. Ltd. dated
23/04/2016
18 26 A copy of Bill of All Well Institute & 475.00
Research Institute Pvt. Ltd. dated
22/04/2016
19 27 A copy of Bill of All Well Institute & 480.00
Research Institute Pvt. Ltd. dated
23/04/2016
20 28 A copy of Bill of All Well Institute & 736.00
Research Institute Pvt. Ltd. dated
23/04/2016
21 29 A copy of Bill of Bhagya Medical Stores 155.00
dated 24/04/2016
22 30 A copy of Bill of Panchalee Medical Stores 854.00
dated 24/04/2016
23 31 A copy of Bill of All Well Institute & 623.00
Research Institute Pvt. Ltd. dated
25/04/2016
24 32 A copy of Bill of All Well Institute & 58.00
Research Institute Pvt. Ltd
dated 25/04/2016
25 33 A copy of Bill of All Well Institute & 794.00
Research Institute Pvt. Ltd. dated
25/04/2016
26 34 A copy of Bill of All Well Institute & 800.00
Research Institute Pvt. Ltd. dated
26/04/2016
27 35 A copy of Bill of P.P. Pharmaceuticals 200.00
dated 27/04/2016
28 36 A copy of Bill of All Well Institute & 12.00
Research Institute Pvt. Ltd. dated
27/04/2016
29 37 A copy of Bill of All Well Institute & 3039.00
Research Institute Pvt. Ltd. dated
27/04/2016
30 38 A copy of Bill of All Well Institute & 26560.00
Research Institute Pvt. Ltd. dated
27/04/2016
31 39 A copy of Bill of All Well Institute & 30200.00
Research Institute Pvt. Ltd. dated
27/04/2016
32 40 A copy of Bill of All Well Institute & 2400.00
Research Institute Pvt. Ltd. dated
27/04/2016
33 41 A copy of Bill of All Well Institute & 1540.00
Research Institute Pvt. Ltd. dated
27/04/2016
34 42 A copy of Bill of Jai Hanuman Medical dated 528.00
27/04/2016
35 43 A copy of Bill of Jai Hanuman Medical dated 1959.00
27/04/2016
36 44 A copy of Bill of Jai Hanuman Medical dated 1451.00
29/04/2016
37 45 A copy of Bill of Jai Hanuman Medical dated 875.00
27/04/2016
38 46 A copy of Bill of Jai Hanuman Medical dated 2305.00
06/05/2016
39 47 A copy of Bill of Jai Hanuman Medical dated 195.00
18/05/2016
40 48 A copy of Bill of Jai Hanuman Medical dated 693.00
20/05//2016
41 49 A copy of Bill of Jai Hanuman Medical dated 230.00
24/05//2016
42 50 A copy of Bill of Jai Hanuman Medical dated 465.00
27/05//2016
43 51 A copy of Bill of All Well Institute & 3500.00
Research Institute Pvt. Ltd. dated
30/05/2016
44 52 A copy of Bill of Jai Hanuman Medical dated 910.00
01/06//2016
45 53 A copy of Bill of Jai Hanuman Medical dated 95.00
06/06/2016
46 54 A copy of Bill of Jai Hanuman Medical dated 1656.00
07/06/2016
47 55 A copy of Bill of All Well Institute & 700.00
Research Institute Pvt. Ltd. dated
15/06/2016
48 56 A copy of Bill of Jai Hanuman Medical dated 415.00
16/06/2016
49 57 A copy of Bill of Jai Hanuman Medical dated 1556.00
20/06/2016
50 58 A copy of Bill of Jai Hanuman Medical dated 95.00
24/06/2016
51 59 A copy of Bill of Jai Hanuman Medical dated 622.00
30/06/2016
52 60 A copy of Bill of Jai Hanuman Medical dated 1028.00
05/07/2016
53 61 A copy of Bill of Jai Hanuman Medical dated 261.00
11/07/2016
54 62 A copy of Bill of Jai Hanuman Medical dated 319.00
12/07/2016
55 63 A copy of Bill of Jai Hanuman Medical dated 1029.00
18/07/2016
56 64 A copy of Bill of R.M Medical dated 799.00
25/07/2016
57 65 A copy of Bill of All Well Institute & 650.00
Research Institute Pvt. Ltd. dated
25/07/2016
58 66 A copy of Bill of Jai Hanuman Medical dated 523.00
28/07/2016
59 67 A copy of Bill of Jai Hanuman Medical dated 475.00
29/07/2016
60 68 A copy of Bill of Jai Hanuman Medical dated 871.00
03/08/2016
61 69 A copy of Bill of Jai Hanuman Medical dated 832.00
11/08/2016
62 70 A copy of Bill of Jai Hanuman Medical dated 1644.00
06/09/2016
63 71 A copy of Bill of Jai Hanuman Medical dated 1590.00
30/09/2016
64 72 A copy of Bill of Jai Hanuman Medical dated 453.00
01/10/2016
65 Purchase of Walker 1800.00
66 Regular Physiotherapy for last 06 months 36,000.00
67 Expenses incurred for regular attendant at 90,000.00
Home Rs. 15,000.00 per month
68 Expenses incurred for Doctor's and 5000.00
Compounder visit at home
69 Conveyance and other Miscellaneous Expenses 10,000.00
Patient/Claimant is still under treatment
Total Expenses incurred up to the date of Rs.
filling this Petition 2,49,585.
00/-
10. And having carefully gone through the said vouchers and
receipts I find that the appellant had submitted receipts and vouchers
for a sum of Rs. 1,06,785/- only. The other claims are not supported
by any vouchers or receipt. And as such he is entitled to the said
amount only under the head of medical expenses. The learned
Tribunal, thus, rightly assessed the amount on the basis of receipts
and vouchers and did not taken into account the claims where no
receipts and vouchers were submitted. This court is unable to record
concurrence with the submission of Mr. Dutta that merely because the
respondent had not disputed the amount the same may be awarded.
The claim must be supported by receipt and vouchers. Thus, the
appellant will be entitled to a sum of Rs. 1,06,785/- being the
compensation under the head No. (i).
10.1. The learned Tribunal had awarded a sum of Rs. 10,000/ under
the head of special diet and Rs.5,000/ under the head Transportation.
The contention of the learned counsel for the appellant is that said
amount is inadequate and unjust. But, in the given facts and
circumstances the amount, so awarded, seems to be not unjustified.
However, having regards to the extent of injuries suffered by the
appellant and the period of treatment, this court is inclined to enhance
the compensation under the head 'nourishing food and special
diet' to Rs.15,000/ and the 'transportation charge' to
Rs.10,000/-.
11. Now, coming to the quantum of compensation under the head
No. (ii) (a) and (b), I find from the evidence of the claimant that at the
relevant point of time, the injured was 45 years old and the learned
Tribunal has fixed the notional income of the claimant @Rs.5,000/- per
month. It is not in dispute that the appellant herein is a businessman
by profession and proprietor of M/s G.D. Tractors and also he is a
Table Tennis Coach and Computer Trainer at J.B. College, Jorhat. As
per his income tax return, Exhibit-3, his income was Rs.4,25,874/- per
annum. That being so, in view of the decision of Hon‟ble Supreme
Court in the case of Malarvizhi & Ors.(supra) and in the case of
Shashikala & Ors.(supra) reliance can be placed upon the same to
determine the annual income of the injured/claimant and that the
latest income tax return has to be taken into account for calculation.
11.1. But, the learned Tribunal had not considered and taken into
account such Income Tax Verification Form on account of failing to
adduce any convincing evidence regarding his income and occupation
and though he had exhibited the Income Tax Verification Form as
Exhibit-3, he had did not examined any employee of Income Tax Office
to substantiate the claim. Even he had not submitted any certificate of
the Circle Officer, who is competent to issue income certificate. And
therefore, the learned Tribunal had proceed to assess the notional
income of the appellant at Rs.5,000/- per month.
11.2. The reason assigned by the learned Tribunal appears to be
sound and justified and no reason or logic, not to speak of a sound
one, was shown to take a different view by this court. Mere exhibiting
a document as Income Tax Return Verification Form, without there
being any materials to support the same and without examination of
any of the officials of of the Income Tax Office to substantiate the
same this court is of the view that the learned Tribunal had rightly
proceeded to fix the notional income of the appellant herein. However,
the notional income so fixed by the learned Tribunal appears to be in
lower side. And in given factual background this court is of the view
that fixing his notional income at Rs.7,000/- per month would be
justified and proper. Accordingly, his notional income is fixed at
Rs.7,000/- per month. It also appears that the appellant had
undergone treatment for a period of six months. And as such he is
entitled to Rs.7,000/- x 6 = Rs.42,000/- for the period of six months
Thus, to the considered opinion of this court the claimant is entitled to
Rs.42,000/- under Head No.(ii) (a),
12. Now, coming to the Head No.(ii) (b), I find that the appellant
had taken a stand that he had suffered disability in the said accident
and the percentage of disability was 33% as per Disability Certificate-
Exhibit- 8 and as such he is entitled to compensation under the said
head. However, no sum is awarded under this head.
12.1. Though Mr. Dutta, learned counsel for the appellant has
pointed out that as per the Disability Certificate, which is exhibited as
Exhibit-8, the disability of the appellant was assessed at 33%, yet to a
pointed query of this Court Mr. Dutta submitted that the disability of
the appellant is not permanent in nature. And that being so, in view of
the decision of Hon‟ble Supreme Court in the case of Raj Kumar
(supra), it cannot be said that the learned Tribunal had erred in not
awarding any compensation under the aforesaid head.
12.2. While dealing with the issue of loss of future earnings in the
case of Raj Kumar (supra), Hon‟ble Supreme Court has held as
under:-
Assessment of future loss of earnings due to
permanent disability:-
6. Disability refers to any restriction or lack of
ability to perform an activity in the manner
considered normal for a human-being. Permanent
disability refers to the residuary incapacity or
loss of use of some part of the body, found
existing at the end of the period of treatment and
recuperation, after achieving the maximum bodily
improvement or recovery which is likely to remain
for the remainder life of the injured. Temporary
disability refers to the incapacity or loss of use
of some part of the body on account of the injury,
which will cease to exist at the end of the period
of treatment and recuperation. Permanent
disability can be either partial or total. Partial
permanent disability refers to a person's
inability to perform all the duties and bodily
functions that he could perform before the
accident, though he is able to perform some of
them and is still able to engage in some gainful
activity. Total permanent disability refers to a
person's inability to perform any avocation or
employment related activities as a result of the
accident. The permanent disabilities that may
arise from motor accidents injuries, are of a much
wider range when compared to the physical
disabilities which are enumerated in the Persons
with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995
(Disabilities Act' for short). But if any of the
disabilities enumerated in section 2(i) of the
Disabilities Act are the result of injuries
sustained in a motor accident, they can be
permanent disabilities for the purpose of claiming
compensation.
7. The percentage of permanent disability is
expressed by the Doctors with reference to the
whole body, or more often than not, with reference
to a particular limb. When a disability
certificate states that the injured has suffered
permanent disability to an extent of 45% of the
left lower limb, it is not the same as 45%
permanent disability with reference to the whole
body. The extent of disability of a limb (or part
of the body) expressed in terms of a percentage of
the total functions of that limb, obviously cannot
be assumed to be the extent of disability of the
whole body. If there is 60% permanent disability
of the right hand and 80% permanent disability of
left leg, it does not mean that the extent of
permanent disability with reference to the whole
body is 140% (that is 80% plus 60%). If different
parts of the body have suffered different
percentages of disabilities, the sum total thereof
expressed in terms of the permanent disability
with reference to the whole body, cannot obviously
exceed 100%.
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. Some Tribunals wrongly
assume that in all cases, a particular extent
(percentage) of permanent disability would result
in a corresponding loss of earning capacity, and
consequently, if the evidence produced show 45% as
the permanent disability, will hold that there is
45% loss of future earning capacity. In most of
the cases, equating the extent (percentage) of
loss of earning capacity to the extent
(percentage) of permanent disability will result
in award of either too low or too high a
compensation. 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 terms of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of
dependency). We may 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. 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 Orthopaedic Surgeons,
prepared by American Academy of Orthopaedic
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 summarize 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.
12.3. Admittedly, in the case in hand the claimant has not examined
the attending doctor though he had exhibited the Disability Certificate
as Exhibit-8.
It is well settled in the case of Rajkumar (supra) that 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. Therefore, this court is unable to agree
with the submission of learned counsel for the appellant that the
learned Tribunal had committed any illegality in not awarding any
compensation under this head.
12.4. It is a fact that Motor Vehicle Act is a beneficial piece of
legislation and its provisions has to be interpreted keeping in mind the
said objective of the legislature, being sought to be achieved by such
legislation. But, there must be some sort of evidence to suggest that
because of the injuries sustained by the claimant he became
permanently disable, and the same has some bearing upon his income.
Exhibit-8, the Disability Certificate indicates that his condition was non
progressive and likely to be improved.
12.5. Thus, to the considered opinion of this court the claimant is not
entitled to any relief under Head No.(ii) (b), since there is no materials
to suggest that he will suffer loss of future income on account of
permanent disability.
13. There is also no medical evidence to suggest that the claimant
has to incur medical expenses in future for his treatment. Therefore, in
absence of any documentary proof, this court is of the view that he
will not entitle to any compensation under the Head No. (iii).
14. Now, coming to the quantum of compensation under the Head
No. (iv), we find from the evidence of the injured/claimant that he was
admitted in Hospital from 21.03.2015 till 27.04.2016 and he had
undergone surgery for the Inter Trochanteric Fracture due to the
injuries sustained by him in the motor vehicle accident. He was 45
years old at the material time of accident. Having regard to above, we
are of the view that a sum of Rs.50,000/- will be the just and proper
amount of compensation under this head.
15. There is no medical evidence to suggest that the injury sustained
by the claimant, will have any impact upon his normal longevity of life,
nor there any evidence to show that he will not be able to enjoy
amenities of his life. Therefore, we are of the considered opinion that
the claimant will not entitle to any compensation under the head Nos.
(v) and (vi). However, we would like to add a sum of Rs.25,000/-as
the cost of litigation in view of decision of Hon'ble Supreme Court in
Boloram Prasad Vs. Kunal Saha & others, reported in (2014) 1
SCC 384.
16. Thus, the claimant is entitled to total amount of Rs.2,48,785/-
(Rupees two lacs forty eight thousand seven hundred & eighty
five) only, as compensation, and in our considered opinion, this
amount would be the just, equitable, fair and reasonable amount of
compensation here in this case.
17. The learned Tribunal has directed to pay interest @ 5%, from
the date of filing the claim petition till payment of the amount, the
same appears to be in lower side. The learned counsel for the
appellant has rightly submitted that the rate of interest is in lower side.
In the case of Municipal Corporation of Delhi Vs. Upahar
Tragedy Victims Association and Ors, (2011) 14 SCC 481 and
also in Kalpanaraj vs. Tamil Nadu State Transport Corporation:
(2014) Acci.C.R.693 (S.C.), Hon‟ble Supreme Court has held that
the amount of compensation shall carry interest @ 9%, till realization
of the amount, no fault can be found with the finding of the learned
Tribunal.
18. Accordingly, this appeal stands allowed to the extent indicated
above. The respondent No.1 insurance company shall pay the amount
within a period of 1(one) month from the date of receipt of the
certified copy of this judgment and order. The appellant shall obtain a
certified copy of this judgment and order and shall place the same
before the respondent No.1 insurance company within a week from
today.
19. Send down the record of the learned Tribunal within a copy of
this judgment and order.
20. The parties have to bear their own cost.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
