Gauhati High Court
MACApp./465/2018 on 13 October, 2025
GAHC010005312016
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT
MAC Appeal No. 465/2018
United India Insurance Company Ltd.,
Having its registered office and Head Office at 24, Whites Road,
Chennai and its Regional Office at G.S. Road,
Dispur, Guwahat.
......Appellant.
-Versus-
1. Md. Rajib Hussain,
S/ Md. Habibur Rahman,
Resident of Gudamghat, PS-Rangapara,
Dist.-Sonitpur, Assam.(Claimant)
2. Shri Madhab Mohori,
S/o Shri Sadhan Mohori,
Resident of Khanamukh, Rangajan,
PS-Rangapara, Dist.-Sonitpur, Assam.
[Owner of vehicle No.AS-13A-9855 (Truck)]
3. Md. Rafique Hussain,
S/o Md. Jainaluddin,
Resident of Khanamukh, Rangajan,
PS-Rangapara, Dist.-Sonitpur, Assam.
[Driver of vehicle No.AS-13A-9855 (Truck)]
......Respondents.
For the Appellant : Mr. R. Goswami. ......Advocate.
For the Respondents : Mr. K. Bhttacharjee. ......Advocate.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing : 14.08.2025
Date of Judgment : 13.10.2025
JUDGMENT AND ORDER (CAV)
Heard Mr. R. Goswami, learned counsel for the appellant and
also heard Mr. K. Bhattacharjee, learned counsel for the respondent
No.1/claimant.
2. In this appeal, under Section 173 of the Motor Vehicles Act,
1988, the appellant United India Insurance Company Ltd. has
challenged the judgment and award dated 05.11.2014 passed by
the learned Member, Motor Accident Claims Tribunal (MACT),
Sonitpur (Tribunal hereinafter), in MAC Case No.317/2010 filed
under Section 166 of the Motor Vehicles Act, 1988. It is to be noted
here that vide impugned judgment and award dated 05.11.2014,
the learned Tribunal has directed the appellant/opposite party No.3
to pay a sum of Rs.11,72,000/- being the compensation to the
respondent No.1/claimant with interest @9% per annum from the
date of institution of the case i.e. 25.11.2010, till realization.
3. The backgrounds fact leading to filing of the present appeal is
briefly stated as under:-
"On 14.02.2010, at about 8:30 a.m., while Md. Habibur
Rahman, the father of the claimant was proceeding on his
motorcycle, bearing Registration No.AS-12C-8489 towards
Itakhola, on NH-52 and when he reached Khanamukh near
Jiabhoroli river, a Truck, bearing Registration No.AS-13A-9855,
which was coming from behind, at a high speed and in a rash
and negligent manner, knocked down the motorcycle. As a
result, his father sustained multiple grievous injuries on his
person and he was shifted to EMM Hospital, Tezpur and
thereafter, he was admitted at GNRC, Guwahati for treatment
and thereafter, also he was treated by different doctors
incurring huge medical expenses and the accident took place
due to rash and negligent driving on the part of the driver of
the Truck and in connection with the said accident, Rangapara
P.S. Case No.21/2010 under Section 279/338 IPC has been
registered
It is also stated that the father of the claimant was aged
44 years and was self-employed businessman and he had an
approximate income of Rs.10,000/- per month and therefore,
a claim petition is filed seeking compensation for a sum of
Rs.12,00,000/-.
The appellant herein, being the opposite party No.3 and
the owner and driver, being the opposite party Nos.1 and 2,
respectively, in the claim petition, (and respondent No. 2 and
3 herein this appeal) had filed their written objection denying
the statements and averment made by the claimant
(respondent No.1 herein). The respondent Nos.2 and 3 in their
written statement had taken a stand that the claim is bad for
suppression of material facts and also bad for non-joinder of
necessary parties and the claimant is not entitled to file the
claim petition on behalf of his father and also denied the
nature of injuries sustained by the father of the claimant, his
age and monthly income and also it is stated that the
respondent No.3, the driver of the vehicle had a valid driving
licence, bearing No.69664/MKG/Prof and it was valid upto
26.05.2013 and the vehicle was duly insured with the United
India Insurance Company Ltd., vide Policy No.
130700/31/09/02/00000363 and it was valid from 21.04.2009
to 20.04.2010 and that the motorcycle was driven at a very
high speed and it dashed against the Truck from behind and
therefore, it is contended to dismiss the petition.
The appellant herein, (as opposite party No.3 in the
claim petition) had filed its written statement and had taken a
stand that the petition is not maintainable in the present form
and its liability is always be subject to the terms and
conditions of the policy of insurance and the provision of the
Act and Rules framed thereunder and the driver did not
possess a valid driving license at the relevant time and the
claim is bad for non-joinder of necessary parties and the
insurance company of the motorcycle in the claim petition has
not been arrayed as a party and the driver of the motorcycle,
the father of the claimant, did not possess a valid driving
licence and that the accident took place while the rider of the
motorcycle was trying to overtake the Truck and under such
circumstances, it is contended to dismiss the petition.
Upon the said pleadings, the learned Tribunal has
framed following two issues:-
(i) Whether the alleged accident took place due to rash and
negligent driving by the driver of the vehicle No.AS-13A-
9855 (Truck) or the driver of the vehicle No.AS-12C-
8489 (motorcycle) or whether both the drivers are
equally responsible for the accident?
(ii) Whether the claimant is entitled to any compensation, as
prayed for, and if yes, from whom and to what extent?
Thereafter, the learned Tribunal has considered the evidence
of the witnesses examined by the claimant, being CW-1, CW-2
and CW-3, namely, Rajib Hussain, Safiqul Islam and Amar
Jyoti Das, respectively and also considering the Exhibits-1 to
25 and after hearing the learned Advocates of both sides, the
learned Tribunal has assessed the pecuniary loss and non-
pecuniary loss, amounting to Rs.11,72,000/- and thereafter,
directed the appellant herein to pay the amount with interest
@9% per annum from the date of filing of the claim petition
till realization."
4. That being aggrieved by and dissatisfied with the impugned
Judgment and Award dated 05.11.2014 passed by the Learned
Member, M.A.C.T, Sonitpur in MAC Case No.317/2010 the appellant
begs to prefer the instant appeal on the following grounds amongst
other.
GROUNDS:-
(i) That, the impugned Judgment and the Award in MAC Case No.
317/2010 dated 05.11.2014 passed by the learned Member,
MACT, Sonitpur is bad in law as well as in the facts of the case
and is liable to be set aside.
(ii) That, the learned Member M.A.C.T, Sonitpur ought to have
appreciated the fact that the person who was injured did not
appear before the Learned Member in person but it was his
son who has filed the claim petition without any authorization
from the injured person or power of attorney or even any
medical document that would justify exemption for personal
appearance before the Tribunal. In fact, there was not an iota
of justification for doing so. The claimant himself admitted in
his cross-examination that he has not submitted any document
showing the present physical condition of his father. The
claimant willfully withheld the injured person from appearing
before the Learned Tribunal to suppress the actual facts
regarding the condition of the injured person.
(iii) That, the learned Member, Motor Accident Claims Tribunal,
Sonitpur, Assam, ought to have appreciated that neither was
any cogent medical evidence nor was any Doctor examined by
the claimant to prove the disability suffered by injured person.
(iv) That, the learned Member, Motor Accident Claims Tribunal,
Sonitpur, ought not to have come to a finding of any loss of
future earning without any legal evidence of physical disability
suffered by the injured person.
(v) That, the assessment of compensation by the learned Tribunal
is palpably erroneous and is liable to be quashed and set
aside. As a result of the erroneous determination of the loss of
earning capacity it has resulted in overcompensation. The
amount of compensation assessed by the learned Tribunal, is
thus not in accordance with the principle of just compensation
as envisaged in the M.V. Act, 1988 as amended.
(vi) That, the assessment of compensation made by the learned
Member is palpably erroneous and is liable to be quashed and
set aside.
(vii) That, in the judgment and award dated 05.11.2014, so
passed; the learned Tribunal had erroneously added to the
uncertainty and lack of reasonable uniformity in the matter of
determination of compensation payable in case of road
accident victims. The impugned judgment and award is
manifestly wrong in law and as a result thereof, the learned
Member has imposed a liability on the appellant which is
grossly disproportionate.
5. Mr. Goswami, learned counsel for the appellant submits that
the main grievance of the appellant is that the father of the
respondent No.1/claimant is still alive and he is the main person and
without examination of the father of the respondent No.1, the
learned Tribunal has awarded the sum and the same is illegal and
arbitrary. Mr. Goswami further pointed out that without a disability
certificate and without the victim being examined, the disability of
the father of the respondent No.1/claimant is assessed at 40% and
under such circumstances, the award is illegal and arbitrary and
therefore, it is contended to set it aside. In support of his
submission, Mr. Goswami has referred to a decision of Hon'ble
Supreme Court in the case of Mohammed Abdul Wahid v. Nilofer
& Anr., reported in (2024) 2 SCC 144.
6. Per contra, Mr. Bhattacharjee, learned counsel for the
respondent No.1/claimant submits that the investigator appointed
by the appellant herein has recorded the statement of the injured
person and exhibited before the Tribunal and the same can be read
as an evidence as contemplated under the provision of the CPC and
the legislative intendment in enacting the Motor Vehicles Act is to
provide immediate relief to the injured and the said intendment
cannot be allowed to be sacrificed at the altar of technicality and
therefore, Mr. Bhattacharjee has contended to dismiss the appeal.
7. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein, and also perused the impugned
judgment and award dated 05.11.2014.
8. It appears that the learned Tribunal, while deciding the issue
No.(i), had observed as under:-
"17. Therefore, in the absence of any cogent
and convincing evidence to the contrary,
independent or elicited through cross-
examination of the claimant's witnesses, plus
the documentary evidence, on record, the plea
of the claimant that the vehicle No. AS-13
A/9855 was driven at a rash and negligent
manner as the direct cause of the accident, is
accepted, brushing aside the mere plea of
contributory negligence on the part of the
Injured."
9. Thereafter, while deciding issue No.(ii) the learned Tribunal, in
respect of Driving Licence and Insurance Policy, had held
that at the time of accident the vehicle in question had a valid
insurance policy and that the driver of the vehicle had a valid driving
licence. In respect of Medical Treatment, the learned Tribunal
had held that as per evidence of the claimant, the injured had
sustained grievous injury and became senseless and after the
accident, he was taken to EMM Hospital and then to Baptist
Christian Hospital and thereafter, admitted at GNRC Hospital,
Guwahati. He had sustained severe head injury entailing headache,
loss of sleeping, vomiting, loss of hearing, loss of consciousness,
loss of memory and clotting of blood in brain tissues requiring
Tracheotomic intervention. However, due to lack of money, on their
request, doctor of GNRC released his father and that due to
insertion of tube, his normal condition has been affected as he lost
talking power and became bed-ridden due to inability to walk. On
10-01-2012, his father suffered stroke and they brought him to
Baptist Christian Hospital, Tezpur and admitted him and underwent
CT scan of brain and discharged on 12-01-2012, then they brought
him again to GMC at Guwahati and doctors of GMC performed MRI
of brain of his father, on 15-02-2012. Lastly, they took him to the
Apollo Hospital, Chennai in the month of March, 2012 and
underwent treatment of head injury without improvement. The
injured had undergone treatment at GNRC, Guwahati for 1 month 3
days, at a stretch. Thereafter, it had held that the medical
documents, vide Ext.6 to 21 have also supported the version of the
claimant. The report of plain CT scan of brain shows "Bilateral
temporal and frontal haemorrhagic contusions, left frontoparietal
acute subdural haematoma with mass effect and midline shift to
right".
10. In respect of profession, income and age of the injured,
the learned Tribunal had held that the injured was aged about 44
years. And he had a business of cultivation of his own land, but, had
not mentioned the detail particulars of his business. Thereafter, it
had assessed the income of the injured at Rs. 10,000/ per month,
which is supported by bank account.
11. Then in respect of disablement & loss of earning
capacity the learned Tribunal has held that the injured has
become handicapped in discharging his daily works. In support of
the claim of disablement, the claimant has produced Ext.21, the
disability Certificate, dated 27-07-2012, issued by the District Social
Welfare Officer, Tezpur and the same has been proved by Sri Amar
Jyoti Das, Jr. Assistant in the Office of the District Social Welfare
Officer, Tezpur, who has been examined as CW-3. The witness,
however, could not say whether 60% disability as shown in Ext.21,
is relating to the functional disability of the whole body or of a
particular organ. But, the Tribunal had opined that the capability of
the injured person has definitely been lowered, which, on the basis
of facts and medical documents, aforementioned, can be assessed
at 40%. Therefore, considering all these aspects the disability of the
injured is accepted to be permanent functional disability of 40%
only. Thereafter, the learned Tribunal had assessed monthly income
of the injured being accepted at Rs.10,000/-, per month, the
resultant loss of earning capacity on account of permanent disability
is Rs.4,000/-, per month.
12. In respect of Medical Expenditure, the learned Tribunal
had held that the claimant had to spent a sum of Rs. 3,40,000/, in
connection with his medical treatment. However, the money receipts
and cash memos, hospital bills, conveyance etc., as a whole, reveal
that an amount of Rs.3,51,855/-, say Rs. 3,52,000/- was spent for
medical treatment of the injured. Therefore, the claimant is entitled
to get this amount, on account of medical expenses.
13. Thereafter, the learned Tribunal, considering the nature of
injuries, period of treatment and pain and sufferings suffered by the
claimant's father, had awarded an amount of Rs.50,000/- for pain
and sufferings on account of undisputed head injury which required
trachomatic intervention followed by post operational prolong
medical treatment. Thereafter, adopting the principle laid down by
the Hon'ble Apex Court in Raj Kumar -vs.- Ajay Kumar and
Anr. (2011) 1 SCC 343, the learned Tribunal found that the
claimant is entitled to a compensation, as shown below:-
(a) Annual income prior to the accident : Rs.1,20,000
(b) Loss of future earning per annum : Rs. 48,000
(40% of the prior annual income)
(c) Multiplier applicable with reference to age : 15
(d) Loss of future earnings (Rs. 48,000X15) : Rs.
7,20,000/-
14. Considering all the above aspects of the case and applying the
principle of quantification of compensation in personal injury case,
the learned Tribunal found that the claimant may be awarded the
following amount of compensation, which is considered to be just
and reasonable:-
(A) Pecuniary Loss:
(i) Loss on earning due to sustaining
permanent disability :- Rs. 7,20,000/-
(ii) Expenses incurred for treatment :- Rs. 3,52,000/-
(B) Non-Pecuniary Loss:
(i) Discomfort, inconvenience, hardship: Rs. 50,000/-
disappointment, frustration and
mental stress in life
(ii) Pain and suffering :-Rs. 50,000/-
Total Rs. 11,72,000/-
15. Thereafter, the learned Tribunal has held that admittedly, the
offending vehicle, bearing registration No. AS-13 A/ 9855 (Truck),
was duly insured with the OP No.3, the United India Insurance
Company Ltd, on the date of accident and there is no evidence that
the OP No. 1, the owner, committed breach of the terms and
conditions of the Insurance Policy. Therefore, OP No.3, the United
India Insurance Company Ltd., shall be liable to pay the claimant,
the amount of compensation, with interest @9%, per annum, from
the date of institution of the case, that is, on 25-11-2010, till
realization. The learned Tribunal has awarded an amount of
Rs.1,000/- being the cost of the proceeding.
16. However, the grievance of the appellant is that the father of
the respondent No.1/claimant is still alive and he is the main person
and without examination of the father of the respondent No.1, the
learned Tribunal has awarded the sum and that without a disability
certificate and without the victim being examined, the disability of
the father of the respondent No.1/claimant is assessed at 40% and
as such, the award is illegal and arbitrary.
17. When the contention of the appellant is examined in the light
of the proposition of law laid down in the case of Raj Kumar
(Supra), there appears to be substance in the submission of Mr.
Goswami, in respect of ascertainment of disability of the father of
the respondent No.1 by the learned Tribunal.
18. It is to be mentioned here that while dealing with the
quantum of compensation, the Hon'ble Supreme Court in Raj
Kumar (Supra) held that in routine personal injury cases, the
heads under which the compensation can be awarded are as
follows-
(i) Expenses relating to treatment, hospitalization,
medicine, transportation, nourishing food and
miscellaneous expenses;
(ii) Loss of earning 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 earning on account of
permanent disability;
(iii) Future medical expenses;
(iv) Damages for pain, sufferings, trauma as a consequences
of injury ;
(v) Loss of amenities (and/or) loss of prospect of marriage;
(vi) Loss of expectation of life (shortening of normal
longevity);
19. Furthermore, while dealing with the issue of disability and its
determination, in the case of Raj Kumar (supra), Hon'ble
Supreme Court has held that:-
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 summarise the principles
discussed above:
(i) All injuries (or permanent disabilities
arising from injuries), do not result in
loss of earning capacity.
(ii) The percentage of permanent disability
with reference to the whole body of a
person, cannot be assumed to be the
percentage of loss of earning capacity.
To put it differently, the percentage of
loss of earning capacity is not the same
as the percentage of permanent
disability (except in a few cases, where
the Tribunal on the basis of evidence,
concludes that percentage of loss of
earning capacity is the same as
percentage of permanent disability).
(iii) The doctor who treated an injured-
claimant or who examined him
subsequently to assess the extent of his
permanent disability can give evidence
only in regard the extent of permanent
disability. The loss of earning capacity
is something that will have to be
assessed by the Tribunal with reference
to the evidence in entirety.
(iv) The same permanent disability may result
in different percentages of loss of
earning capacity in different persons,
depending upon the nature of profession,
occupation or job, age, education and
other factors.
20. Indisputably, the learned Tribunal has assessed the disability
of the father of the respondent No.1 as 40%. But, said assessment
was done without indicating the disablement as permanent or
partial disablement. Moreover, the claimant had exhibited the Pass
Book for person with disability as Exhibit-21. Said Pass Book was
issued by the District Social Welfare Officer. A careful perusal of the
same indicates that the degree of disability was assessed at 60%
and the nature of disability is mentioned as Lt. Hemisperasis
Neurological Deficit. However, Exhibit-21 is silent with regards to
disablement as permanent or partial disablement.
20.1. Another aspect, that should not lose sight of, is that before
issuance of Ext.-21, the father of the respondent No.1 suffered
stroke on 10.01.2012, almost after two years of the accident.
Though the respondent No.1 herein had deposed that because of
the head injury suffered by his father, the stroke had taken place,
yet no medical evidence is lead to that effect. Therefore, no
conclusion could be arrived at that the father of the respondent
No.1 suffered stroke due to the accident. Moreover, nature of
disability in Ext.21 is mentioned as Lt. Hemisperasis Neurological
Deficit, whereas, the injury found in the CT Scan of the brain of the
father of respondent No.1, is mentioned as "Bilateral temporal and
Frontal Hemorrhagic Contusion left Frontoparietal Acute Subdural
Hematoma with Mass Effect and Midline Shift." There is mark
difference in the same. Therefore, on this count also determination
of the extent of disability of the father of the respondent No.1, on
the basis of Ext.-21, to the considered opinion, is unsustainable.
21. Admittedly, no Doctor of the Board, who had examined the
victim, and based on which the Ext.-21 was issued, was examined
or the report of the Board is produced and exhibited during trial.
What the claimant did is he had examined one Jr. Assistant of the
Office of the District Social Welfare Officer, Tezpur, as CW-3, who
even could not say whether 60% disability as shown in Ext.-21, is
relating to the functional disability of the whole body or of a
particular organ. There is no medical evidence to substantiate that
the disability suffered by the father of the claimant i.e. respondent
No.1, herein is of permanent in nature.
22. In absence of any such evidence and materials, assessing the
disability of the father of the respondent No.1 herein at 40%, by the
learned Tribunal defies the logic and also against the law, laid down
by the Hon'ble Supreme Court in the case of Rajkumar (supra),
as in the said case it has clearly been held 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.
23. Moreover, the three steps exercise, i.e. the Tribunal has to
first ascertain what activities the claimant could carry on in spite of
the permanent disability and what he could not do as a result of the
permanent disability, and the second i.e. to ascertain his avocation,
profession and nature of work before the accident, as also his age,
and the third step i.e. 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, has never appears to be
carried out by the learned Tribunal. Thus this Court is unable to
record imprimatur to the casual approach of the learned Tribunal,
being contrary to the dictum of Hon'ble Supreme Court in the case
of Rajkumar(supra).
24. However, this Court is unable to agree with the submission of
Mr. Goswami, in respect of non examination of the injured by the
respondent No.1, who had filed the claim petition. Section 166 in
The Motor Vehicles Act, 1988 deals with filing of an application for
compensation. Sub-Section-1 provides that an application for
compensation arising out of an accident of the nature specified in
sub-section (1) of section 165 may be made:-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or
any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or
all or any of the legal representatives of the deceased,
as the case may be:
Provided that where all the legal representatives of
the deceased have not joined in any such application for
compensation, the application shall be made on behalf of
or for the benefit of all the legal representatives of the
deceased and the legal representatives who have not so
joined, shall be impleaded as respondents to the
application.
[Provided further that where a person accepts
compensation under section 164 in accordance with the
procedure provided under section 149, his claims petition
before the Claims Tribunal shall lapse.]
24.1. In the instant case, the claim petition is filed by the
respondent No.1, who is the son of the injured. It is to be noted
here that in view of the decision of Hon'ble Supreme Court in the
case of Jai Prakash vs. National Insurance Company
Limited, reported in (2010) 2 SCC 607, the Tribunals are duty
bound to register an Accident Information Report as a claim
petition. As logical corollary, non filing of the claim petition by the
injured himself and also his non-examination before the learned
Tribunal, given his physical condition that he cannot walk and even
cannot talk also, cannot be held against the respondent No.1 herein.
Therefore, this Court is unable to agree with the submission of Mr.
Goswami.
25. Thus, this Court, following the dictum in the case of Rajkumar
(supra), is inclined to assess the compensation, which the
claimant is entitled to, as under:-
25.1. The evidence on the record, specially from Exhibit-12 to 19(1),
reveals that the claimant had spent a sum of Rs. 3,51,855/-during
the course of his treatment. The learned Tribunal had rounded off
the same at Rs. 3,52,000/. Having not been disputed by the
appellant, this Court is inclined to award the aforesaid sum under
the head No.(i). Thus, it is provided that the respondent No.1 will
be entitled to Rs. 3,52,000/- (Rupees three lakh fifty two
thousand) only, in treatment of the injuries sustained by his father
in the said accident.
25.2. Now, coming to the quantum of compensation, under the
head No. (ii) (a) and (b), this Court, from the evidence of the
claimant's witnesses find that at the relevant point of time, the
injured was 44 years old and professionally he was a cultivator and
his monthly income has already been determined by the learned
Tribunal at Rs. 10,000/ per month. He was admitted in hospital on
14.02.2010 to 20.03.2010. Thereafter, also he took treatment in
different hospitals including Apollo Hospital at Chennai. It is evident
from the evidence of the respondent No.1 that his father lost the
power to talk with other persons and could not walk and was lying
on bed. In that view of the matter, for quite some time, say for
another six months, he could not go back to his profession. So, the
total period of loss of earning during the period of his treatment and
consequent loss of earning during the aforesaid period is assessed
as under:-
Income per month was = Rs.10,000/-
Income per day =Rs. 333.33/-
Period of Hospitalization=34 days,
= (34 x 333.34) =Rs. 11,333.22/(rounded off
@Rs.11,333/-)
Period for which he could not go for his work =6months,
(12 x 10,000) = Rs. 1,20,000/-
Thus, total loss is assessed at Rs.11,333/ + Rs.1,20,000/
= Rs.1,31,333/-.
25.3. And since the disability has not been proved by examining the
Doctor of the Medical Board, based upon which the Pass Book-
Exhibit- 21, was issued by the District Social Welfare Officer, Tezpur
and consequently, loss of his future earning could not be assessed
and as such this Court is of the considered opinion that the
respondent No.1 is not entitled to compensation under the sub-head
(b) of Head (ii). However, he is entitled to Rs.1,31,333/- under
sub-head (a).
25.4. Though no evidence is adduced to suggest that the father of
respondent No.1 has to incur medical expenses in future for his
treatment yet there is evidence to show that he could not walk and
also talk and the same is not in a curable position, yet he has to go
for medical check-up throughout his life. Therefore, having regard to
this aspect, this Court is of the view that an amount of Rs.
1,50,000/- will be just and proper compensation under the Head
No. (iii).
25.5. Now, coming to the quantum of compensation under the
Head No. (iv), this Court find from the record that the father of
the claimant/respondent No.1, was in hospital for 34 days due to
the injuries sustained by him in the motor vehicle accident. He was
44 years old at the material time of accident. He had to remain
bedridden for another six months. The learned Tribunal, however,
had awarded a sum of Rs.50,000/ only under this head. Having
regard to the pain, mental agony and trauma he had to suffer, this
Court is of the view that a sum of Rs. 2,00,000/- will be the just
and proper amount of compensation under this head.
25.6. Moving forward to head No. (v), this Court finds that father
of the respondent No.1 is already a married person. However, on
account of the head injury sustained by him he will not be able to
enjoy the amenities of his life like a normal person. Besides, he had
also suffered from stroke. There is however, no medical evidence to
show that there is any connection between the stroke and the injury
he suffered. But, considering the evidence of the
claimant/respondent No.1, about the pre stroke condition of his
father, his father had to remain on the bed and even could not able
to walk and as such, this Court is of the view that he is entitled to
compensation for the loss of amenities of his life under the sub-
head No. (v). And having regard to the nature of injury and its
impact upon his life, the quantum of compensation under this head
is assessed at Rs.1,00,000/-.
25.7. There is no medical evidence to suggest that the injury
sustained by the claimant will have any impact upon his normal
longevity of life. Therefore, the father of the respondent No.1
herein, will not be entitled to any compensation under the head No.
(vi).
25.8. Further, this Court would like add a sum of Rs.25,000/-as
the cost of litigation as per judgment of the Hon'ble Supreme Court
in Boloram Prasad Vs. Kunal Saha & others, reported in
(2014) 1 SCC 384.
25.9. Thus, the claimant/respondent No.1 is entitled to the total
amount of Rs. 9,58.333/- (Rupees nine lakhs fifty eight
thousand three hundred & thirty three) only, as compensation,
and to the considered opinion of this Court, this amount would be
the just, equitable, fair and reasonable amount of compensation
here in this case.
26. It is worth mentioning in this context that while fixing the
quantum of compensation under the head Nos. (i) (ii) (a), (iii),
(iv) and (v), this Court has followed the principle of law laid by
Hon'ble Supreme Court in the case of R.D. Hattangadi v. Pest
Control (India) (P) Ltd., reported in (1995) 1 SCC 551,
wherein it has been held as under:-
"12. In its very nature whenever a tribunal
or a court is required to fix the amount of
compensation in cases of accident, it
involves some guesswork, some hypothetical
consideration, some amount of sympathy
linked with the nature of the disability
caused. But all the aforesaid elements have
to be viewed with objective standards."
26.1. The above principle was followed subsequently in the case of
Reshma Kumari & Ors vs Madan Mohan & Anr., reported in
(2009) 13 SCC 422, wherein it has been held that in some cases
it has been suggested that some sort of hypotheses or guess work
may be inevitable. That may be so. Relevant paragraph is quoted
below:-
"In its very nature whenever a tribunal or a
court is required to fix the amount of
compensation in cases of accident, it
involves some guesswork, some hypothetical
consideration, some amount of sympathy
linked with the nature of the disability
caused. But all the aforesaid elements have
to be viewed with objective standards."
27. It is also to be noted here that in the case of Yadav Kumar
Vs. Divisional Manager, National Insurance Company
Limited & others, reported in 2010(4)RCR(Civil)155, the
Hon'ble Supreme Court has held that-
"It goes without saying that in matters of
determination of compensation both the
tribunal and the court are statutorily
charged with responsibility of fixing "just
Compensation".
27.1 It has also been held that:-
"It is obliviously true that determination
of just compensation cannot be equated to a
bonanza. At the same time the concept of
"Just Compensation" obviously suggests
application of fair and equitable principles
and a reasonable approach on the part of
tribunals and the courts. This
reasonableness on the part of the tribunal
and the court must be on a large peripheral
field." The determination of the quantum of
"Just Compensation" must be liberal, not
niggardly since the law values life's and
limb in free country on a generous scale.
[Concord of India Insurance Co. Ltd. Vs.
Nirmala Devi 1980 ACJ 55(SC)]
28. Again in the case of Bimla Devi vs. Satbir Singh, 2012
(4) SCALE 217, Hon'ble Supreme Court, held as under:-
"The Motor Vehicles Act is a social piece of
legislation and has been enacted with intent
and object to facilitate the
Claimants/Victims to get redress for the
loss of family member or for injuries at an
early date. In any case, money cannot be any
substitute for it, but in the long run it
may have some soothing effect. Thus, it is
desirable to adopt a more realistic,
pragmatic and liberal approach in these
matters."
29. The learned Tribunal, upon the aforesaid amount of
compensation, had directed the appellant herein, to pay interest @
9%, from the date of filing the claim petition till payment of the
amount. The rate of interest, so fixed by the learned Tribunal,
appears to be in consonance with the dictum of the Hon'ble
Supreme Court in Municipal Corporation of Delhi vs.
Upahar Tragedy Victims Association and Ors, reported in
(2011) 14 SCC 481 and also in Kalpanaraj vs. Tamil Nadu
State Transport Corporation, reported in (2014)
Acci.C.R.693 (S.C.), where it is provided that the amount shall
carry interest @ 9%, till realization of the amount. Thus, the finding
of the learned Tribunal, in respect of the interest warrants no
interference of this Court.
30. I have considered the submission of Mr. Bhattacharjee,
learned counsel for the respondent No.1 herein. There is no doubt
about the legislative intendment in enacting the Motor Vehicles Act,
which is undoubtedly a beneficial piece of legislation. This
proposition is well settled in the case of Bimla Devi (supra).
But, for the reason discussed herein above, this Court is unable to
record concurrence with his submission.
31. In the result, this Court finds no merit in this appeal and
accordingly, the same stands dismissed. However, the quantum of
compensation, which, the father of respondent No.1 is entitled to, is
modified to the extent as indicated above. The appellant, with
whom the vehicle was insured at the relevant time of accident, is
directed to pay a sum of Rs. 9,58,333/- (Rupees nine lakhs
fifty eight thousand three hundred & thirty three) to the
respondent No.1 herein within 30 days from today, adjusting the
amount, if any, already paid.
32. Send down the record of the learned Tribunal, with a copy of
this judgment and award forthwith. The parties have to bear their
own cost.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
