Jharkhand High Court
Mokim Ansari vs Sudarshan Sahu on 3 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 50 of 2018
.....
Mokim Ansari ...... Appellant
Versus
1.Sudarshan Sahu
2.The Oriental Insurance Co. Ltd. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
Through:- Video Conferencing
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For the Appellant : Mr. Arvind Kumar Lall, Advocat
For the Respondent no.2 : Mr. Manish Kumar, Advocate
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08/Dated: 03/08/2021:
1. Heard, learned counsel for the parties.
2. Learned counsel for the appellant, Mr. Arvind Kumar Lall
has submitted that the injured/claimant, Mokim Ansari has
preferred this appeal for enhancement of the award dated
20.11.2017, passed by learned Presiding Officer, Motor Vehicles
Accident Claims Tribunal, Ranchi in Motor Accident Claim case
No.118 of 2010, whereby the claimant has been awarded
compensation to the tune of Rs.1,54,979/- along with interest @
9% per annum from the date of admission of claim application
u/s 166 of the MV act i.e. 31.01.2011 till its realization.
3. Learned counsel for the appellant, Mr. Arvind Kumar Lall
has assailed the impugned Award on the ground that though
the learned Tribunal has awarded medical expenses as per the
documents brought on record as Exhibits-11 to 11/9 with
respect to medical bills for treatment of appellant/injured to
tune of Rs.54,979/-, but under the heading of Non-pecuniary
damages for Pain and Suffering, the learned Tribunal has only
granted compensation to the tune of Rs.1 Lac which is a meagre
amount, as such, this Court may consider the judgment passed
by the Apex Court in the case of Raj Kumar vs. Ajay Kumar,
reported in 2011 (1) SCC 343 at Paras 5 to 23, which may
profitably be quoted hereunder :-
5. The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the
award must be just, which means that compensation should, to the extent possible, fully and
adequately restore the claimant to the position prior to the accident. The object of awarding
damages is to make good the loss suffered as a result of wrong done as far as money can do so,
in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the
damages objectively and exclude from consideration any speculation or fancy, though some
conjecture with reference to the nature of disability and its consequences, is inevitable. A person
is not only to be compensated for the physical injury, but also for the loss which he suffered as a
result of such injury. This means that he is to be compensated for his inability to lead a full life,
his inability to enjoy those normal amenities which he would have enjoyed but for the injuries,
and his inability to earn as much as he used to earn or could have earned.
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, 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.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much
difficulty as they involve reimbursement of actuals and are easily ascertainable from the
evidence. Award under the head of future medical expenses--Item (iii)--depends upon specific
medical evidence regarding need for further treatment and cost thereof. Assessment of non-
pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with
reference to circumstances such as age, nature of injury/deprivation/disability suffered by the
claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the
High Courts contain necessary guidelines for award under these heads, if necessary. What
usually poses some difficulty is the assessment of the loss of future earnings on account of
permanent disability--Item (ii)(a). We are concerned with that assessment in this case.
8. 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 accident 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 ("the
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.
9. 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%.
10. 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, the
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
11. What requires to be assessed by the Tribunal is the effect of the permanent 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 the 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 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava
Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010)
8 Scale 567] )
12. 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.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity
involves three steps. The Tribunal has to first ascertain what activities the claimant could carry
on in spite of the permanent disability and what he could not do as a result of the permanent
disability (this is also relevant for awarding compensation under the head of loss of amenities
of life). The second step is to ascertain his avocation, profession and nature of work before the
accident, as also his age. The third step is to find out whether (i) the claimant is totally
disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry on the activities and functions, which he was
earlier carrying on, or (iii) whether he was prevented or restricted from discharging his
previous activities and functions, but could carry on some other or lesser scale of activities and
functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or
functional disablement may be assessed around 60%. If the claimant was a driver or a
carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither
able to drive or do carpentry. On the other hand, if the claimant was a clerk in government
service, the loss of his left hand may not result in loss of employment and he may still be
continued as a clerk as he could perform his clerical functions; and in that event the loss of
earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact, there may not be any need to award any
compensation under the head of "loss of future earnings", if the claimant continues in
government service, though he may be awarded compensation under the head of loss of
amenities as a consequence of losing his hand. Sometimes the injured claimant may be
continued in service, but may not be found suitable for discharging the duties attached to the
post or job which he was earlier holding, on account of his disability, and may therefore be
shifted to some other suitable but lesser post with lesser emoluments, in which case there
should be a limited award under the head of loss of future earning capacity, taking note of the
reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning
capacity as 100% (or even anything more than 50%), the need to award compensation
separately under the head of loss of amenities or loss of expectation of life may disappear and
as a result, only a token or nominal amount may have to be awarded under the head of loss of
amenities or loss of expectation of life, as otherwise there may be a duplication in the award of
compensation. Be that as it may.
15. It may be noted that when compensation is awarded by treating the loss of future earning
capacity as 100% (or even anything more than 50%), the need to award compensation
separately under the head of loss of amenities or loss of expectation of life may disappear and
as a result, only a token or nominal amount may have to be awarded under the head of loss of
amenities or loss of expectation of life, as otherwise there may be a duplication in the award of
compensation. Be that as it may.
16. 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, Manual for Evaluation of Permanent Physical Impairment for
Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian
equivalent or other authorised 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.
17. 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.
18. 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 give 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 the
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.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning
capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person,
cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the
percentage of loss of earning capacity is not the same as the percentage of permanent
disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that
the percentage of loss of earning capacity is the same as the percentage of permanent
disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess
the extent of his permanent disability can give evidence only in regard to the extent of
permanent disability. The loss of earning capacity is something that will have to be assessed by
the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning
capacity in different persons, depending upon the nature of profession, occupation or job, age,
education and other factors.
20. The assessment of loss of future earnings is explained below with reference to the following
illustrations:
Illustration A.-- The injured, a workman, was aged 30 years and earning Rs. 3000 per month
at the time of accident. As per doctor's evidence, the permanent disability of the limb as a
consequence of the injury was 60% and the consequential permanent disability to the person
was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as
15% on the basis of evidence, because the claimant is continued in employment, but in a lower
grade. Calculation of compensation will be as follows:
(a) Annual income before the Rs. 36,000
accident
(b) Loss of future earning per
annum (15% of the prior
annual income) Rs. 5400
(c) Multiplier applicable with
(d) Loss of future earnings: Rs. 91,800
(5400 × 17)
Illustration B.-- The injured was a driver aged 30 years, earning Rs. 3000 per month. His
hand is amputated and his permanent disability is assessed at 60%. He was terminated from
his job as he could no longer drive. His chances of getting any other employment was bleak
and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore
assessed his loss of future earning capacity as 75%. Calculation of compensation will be as
follows:
(a) Annual income prior to the : Rs.
accident 36,000
(b) Loss of future earning per
annum (75% of the prior Rs.
annual income) : 27,000
(c) Multiplier applicable with
(d) Loss of future earnings: : Rs.
(27,000 × 17) 4,59,000
Illustration C.-- The injured was aged 25 years and a final year Engineering student. As a
result of the accident, he was in coma for two months, his right hand was amputated and vision
was affected. The permanent disablement was assessed as 70%. As the injured was
incapacitated to pursue his chosen career and as he required the assistance of a servant
throughout his life, the loss of future earning capacity was also assessed as 70%. The
calculation of compensation will be as follows:
(a) Minimum annual income Rs.
he would have got if had 60,000
been employed as an
engineer :
(b) Loss of future earning per
annum (70% of the Rs.
expected annual income) : 42,000
years)
(d) Loss of future earnings: : Rs.
(42,000 × 18) 7,56,000
[Note.-- The figures adopted in Illustrations (A) and (B) are hypothetical. The figures in
Illustration (C) however are based on actuals taken from the decision in Arvind Kumar
Mishra [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] .]
21. After the insertion of Section 163-A in the Act (with effect from 14-11-1994), if a claim
for compensation is made under that section by an injured alleging disability, and if the
quantum of loss of future earning claimed, falls under the Second Schedule to the Act, the
Tribunal may have to apply the following principles laid down in Note (5) of the Second
Schedule to the Act to determine compensation:
"5. Disability in non-fatal accidents.-- The following compensation shall be payable in
case of disability to the victim arising out of non-fatal accidents:
Loss of income, if any, for actual period of disablement not exceeding fifty-two
weeks.
PLUS either of the following:
(a) In case of permanent total disablement the amount payable shall be arrived at
by multiplying the annual loss of income by the multiplier applicable to the age on the date of
determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which
would have been payable in the case of permanent total disablement as specified under Item
(a) above.
Injuries deemed to result in permanent total disablement/permanent partial disablement
and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's
Compensation Act, 1923." (emphasis supplied)
22. We may in this context refer to the difficulties faced by claimants in securing the
presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of
them are reluctant to appear before Tribunals for obvious reasons either because their entire
day is likely to be wasted in attending the Tribunal to give evidence in a single case or because
they are not shown any priority in recording evidence or because the claim petition is filed at a
place far away from the place where the treatment was given. Many a time, the claimants are
reluctant to take coercive steps for summoning the Doctors who treated them, out of respect
and gratitude towards them or for fear that if forced to come against their wishes, they may
give evidence which may not be very favorable. This forces the injured claimants to approach
`professional' certificate givers whose evidence most of the time is found to be not satisfactory.
23. The Tribunals should realise that a busy Surgeon may be able to save ten lives or
perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one
accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that
their practice and their current patients will suffer, if they have to spend their days in Tribunals
giving evidence about past patients. The solution does not lie in coercing the Doctors to attend
the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and
accommodating them. Firstly, efforts should be made to record the evidence of the treating
Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors
attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring
that they are not required to wait. Thirdly, the Doctors may be given specific time for attending
the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M.
and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the
respondents, they may be marked by consent, thereby dispensing with the oral evidence. These
small measures as also any other suitable steps taken to ensure the availability of expert
evidence, will ensure assessment of just compensation and will go a long way in demonstrating
that Courts/Tribunals show concern for litigants and witnesses.
4. Learned counsel for the appellant, Mr. Arvind Kumar Lall has further
submitted that on 10.02.2010 at about 06:00 P.M. the injured/claimant, Mokim
Ansari was going towards Lohardaga Railway Station by driving his
Motorcycle and as soon as he reached near Lohardaga Railway Station turning
suddenly the offending vehicle, Truck bearing Registration No.BIN-9205
loaded with Bauxite being driven rashly and negligently dashed against his
motorcycle from its behind due to which he was thrown on road, wheels of the
truck run over his left leg too, as a result of, which he sustained multiple
crushed injuries in his left leg and also sustained injury on the other parts of
his body and his motorcycle was also badly damaged.
The people nearby took the appellant/claimant/injured to Sadar Hospital,
Lohardaga for treatment whereafter his primary treatment, he was referred to
Ranchi. At Ranchi he was admitted at Sisir Sewa Kendra under the supervision
of Dr. Amit Mukherjee and later on he was discharged on 30.03.2010, as such,
he remained admitted in Hospital for a period of one month and twenty days
and he suffered mental agony, pain and trauma.
5. Learned counsel for the appellant, Mr. Arvind Kumar Lall has further
submitted that though the medical certificate of the injured has not been
brought on record to establish that injured/ claimant sustained permanent
disability though he was hospitalized and operated and nut bolt was fitted in
his fractured bone, which was also removed by subsequent operation, as such,
he has incurred expenditure of Rs.25,000/-, but in absence of any documentary
evidence brought on record, the learned Tribunal has refused to grant the same.
Learned counsel, Arvind Kumar Lall while relying upon the judgment passed
by the Apex Court in the case of Raj Kumar (supra) has submitted that at least
a person who suffered injury is entitled:-
under the heading of Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation,
nourishing food, and miscellaneous expenditure.
6. Apart from that, under the heading of Pecuniary damages (Special
damages) i.e. (ii)(a) Loss of earning during the period of treatment and that
under the heading of Non- Pecuniary damages (General Damage) i.e. (iv)
Damage for pain, suffering and trauma as a consequence of the injuries, for
which claimant is entitled, which the learned Tribunal has failed to grant.
7. So far compensation with regard to heading under Pecuniary damages
(Special damages) i.e. (ii) (b) Loss of future earnings on account of permanent
disability, (iii) Future medical expenses and also with regard to heading under
Non- Pecuniary damages (General damages) i.e. (v) Loss of amenities (and/or
loss of prospects of marriage) & (vi) Loss of expectation of life (shortening of
normal longevity), which depends upon the permanent disability on the basis
of functional disability, evidence is necessary and even though in the present
case, the claimant has suffered, but in absence of any evidence brought on
record, the claimant/injured is not pressing those points, but so far
compensation under under Pecuniary damages (Special damages) i.e. (i)
Expenses relating to treatment, hospitalization, medicines, transportation,
nourishing food and miscellaneous expenditure. (ii)(a) Loss of earning during
the period of treatment; and under Non- Pecuniary damages (General
damages) i.e. (iv) Damages for pain, suffering and trauma as a consequence of
the injuries are concerned, the same may be considered sympathetically by this
Court in a benevolent legislation.
8. Learned counsel for the appellant, Mr. Arvind Kumar Lall has further
submitted that interest has been granted from the date of admission but without
giving any reason contrary to the provisions under Section 171 of the M.V.
Act, which ought to have been granted from the date of institution of the claim
application.
9. Mr. Manish Kumar, learned counsel appearing for the respondent- Oriental
Insurance Company Limited has submitted that whatever medical expenses
has incurred that has been granted by the learned Tribunal to the tune of
Rs.54,979/-. Apart from that, a lumpsum amount has been granted for pain,
suffering and trauma to the tune of Rs.1 Lac. Since no claim was made with
regard to transportation, nourishing food and miscellaneous expenditure, the
learned Tribunal has not granted the same, but granted interest @9% from the
date of admission of the claim application.
10. Mr. Manish Kumar, learned counsel appearing for the respondent- Oriental
Insurance Company Limited has thus, submitted that since the evidence is not
on record with regard to permanent disability of the claimant/injured, as such,
this Court may not interfere with the same as the accident has taken place on
10.02.2010 and the learned Tribunal has awarded the compensation, which is
just and fair compensation, accordingly, the appeal preferred by the
claimant/appellant may be dismissed.
11. Having heard, learned counsel for the parties and on perusal of the
materials on record including the impugned judgment, it appears that
claimant/victim, Mokim Ansari aged about 24 years sustained injuries. He was
doing poultry farm business. The disability certificate has not been brought on
record nor the applicant has made any prayer before the learned Tribunal to
constitute a Medical Board for examination of permanent disability of the
injured. Accordingly, this Court cannot substitute the same by considering the
applicant to be a permanently disabled. However, in the facts and
circumstances of the case, it appears that victim was doing poultry farm
business. As per the minimum wages notified by the Government of Jharkhand
for the year, 2009-10, the minimum wages for doing business of dairy and
poultry farm was Rs.144.43 per day, which shall be multiplied for 26 working
days (as Four Sundays are there in a month).
12. Accordingly, the income of injured/claimant comes to Rs.144.43 per day
X26= Rs.3755.18/- which is rounded off to Rs.3756/-.
13. Since the Court has to adjudicate the compensation in absence of any
documentary evidence, as such, injured can be considered to be a simple
injured person and in view of the judgment passed by the Apex Court in the
case of Raj Kumar (supra), injured/claimant/appellant is entitled for the
compensation under the following heads:-
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food and miscellaneous expenditure.
(ii)(a) Loss of earning during the period of treatment;
and under Non- Pecuniary damages (General damages);
(iv) Damages for pain, suffering and trauma as a consequence of the
injuries.
14. From the fact of this case, it appears that injured was operated by the Dr.
Amit Mukherjee at Sisir Sewa Kendra, Ranchi, and the person has sustained
injury and primarily treated in the District of Lohardaga, as such, this Court
has considered that expenses relating to treatment, hospitalization, medicines,
which has been granted to the tune of Rs.54,979/- in view of Exhibits-11 to
11/9 is appropriate, which this Court cannot enhance.
15. So far transportation is concerned, it is granted @1500/- to bring the
injured/claimant from Lohardaga to Ranchi by Ambulance or any vehicle.
16. So far Nourishing food or special diet is concerned, the same is granted to
the tune of Rs.25,000/- as the person remained admitted for one month twenty
days at Sisir Sewa Kendra, Ranchi.
17. So far miscellaneous expenditure charge for an attendant is concerned, it is
also granted as Rs.25,000/- for at least one month twenty days as one person
has remained there at Ranchi.
18. So far amount for loss of earning during the period of treatment is
concerned, the same is granted as per the Government minimum wages @
Rs.3756/- per month, as such, total amount comes to Rs.6644.60/- (for one
month 20 days i.e. Rs.3756/- + Rs.2888.60/-)
19. So far amount under Non-pecuniary damages (General damages) i.e. (iv)
Damages for pain, suffering and trauma as a consequence of the injuries is
concerned, in absence of any medical report, Rs.1 Lac for simple injury is
sufficient.
20. Re-computation of the compensation is as follows:-
(i) Expenses relating to treatment, hospitalization, Rs.54,979/-
medicines.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been a. Rs.6644/-
injured, comprising:
(a) Loss of earning during the period of
treatment;
(b) Loss of future earnings on account of b.Nil
permanent disability
(iii) Future medical expenses Nil
(iv) Damages for pain, suffering and trauma. Rs.1,00,000/-
(v) Transportation charge Rs.1500/-
(vi) Nourishing food or special diet Rs.25,000/-
(vii) Attendant charge Rs.25,000/-
Total Rs.2,13,123/- along with
interest @ 7.5% per
annum.
21. So far interest is concerned, it is true that interest has been awarded on
higher side @9% per annum from the date of admission, which ought to have
been @7.5% per annum from the date of filing of the claim application, in
view of Section 171 of the M.V. Act and also in view of the judgment passed
by the Apex Court in the case of Dharampal & Sons Vs. U.P. State Road
Transport Corporation, reported in (2008) 4 JCR 79 SC= (2008) 12 SCC
22. Since during the pendency of appeal, the copy of memo of appeal has been
served upon the Insurance Company only on 15.03.2021, as such, this Court is
granting interest on the enhanced amount from the date of filing of the claim
application till the date of award and thereafter from 15.03.2021 till the date of
indemnifying the award @7.5% per annum simple interest.
23.Accordingly, the appeal is allowed.
( Kailash Prasad Deo, J.)
sandeep/R.S-
