Jharkhand High Court
Pankaj Kumar @ Pankaj Yadav vs Parsuram Singh on 4 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 43 of 2019
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Pankaj Kumar @ Pankaj Yadav ....... Appellant
Versus
1.Parsuram Singh
2.The New India Assurance Co. Ltd. ......Respondents
..........
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
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For the Appellant : Mr. Vijay Kumar Sharma, Advocate
For the Respondent no.2 : Mr. Pratyush Kumar, Advocate
04/Dated: 04/08/2021.
1. Heard, learned counsel for the parties.
2. Learned counsel for the appellant has submitted that claimant/injured
(Pankaj Kumar @ Pankaj Yadav) has preferred this appeal for
enhancement of the award dated 12.10.2018, passed by learned District
Judge-I-cum-MACT, Chatra in MACT Case No.46 of 2012 whereby the
injured, who has sustained 30% permanent physical disability and the
original disability certificate vide certificate No.542 dated 04.08.2015 has
been brought on record and marked as x/5 for identification, but the same
has not been relied by the learned Tribunal and thus awarded less amount
of compensation.
3. Learned counsel for the appellant, Mr. Vijay Kumar Sharma has
submitted that claimant/injured (Pankaj Kumar @ Pankaj Yadav) was a
salesman, working in Keshari Medical Hall, Hunterganj, aged about 21
years and has claimed his income as Rs.5,000/- per month. Injured
(Pankaj Kumar @ Pankaj Yadav) has suffered 30% permanent physical
disability because of fracture of his left femur i.e. longest bone extended
from pelvis to the knee and he was admitted at Primary Health Center,
Gaya. Thereafter he was referred and treated by Dr. Farasat Husain of Life
Line Nursing Home, Gaya for a period of one year, but the learned
Tribunal has only granted Rs.1,25,000/- as compensation and Rs.20,000/-
as Medical expenses along with interest @ 6% per annum from 20.09.2014,
when the Insurance Company has appeared before the learned Tribunal,
till its realization, to be paid within two months from the date of service of
copy of the order, failing which the New India Insurance Company is
liable to pay the penal interest @ 12% per annum since dated 20.09.2014.
4. Learned counsel for the appellant has further submitted that the
learned Tribunal has considered that injured (Pankaj Kumar @ Pankaj
Yadav) has spent Rs.75,000/- in his treatment, which is still continuing as
on today, the original disability certificate vide certificate No.542 dated
04.08.2015, issued by the medical board Sadar Hospital, Chatra showing
his 30% permanent physical disability has been brought on record and
marked as x/5 for identification, but learned Tribunal has granted only
Rs.1,25,000/- as a compensation under Section 166 of the MV Act
including the pain and suffering caused to him and his family and
Rs.25,000/- as medical expenses.
5. Learned counsel for the appellant has further submitted that injured,
Pankaj Kumar @ Pankaj Yadav, (appellant in this appeal) and Pradeep
Kumar along with one Dinesh Yadav were going on Herohonda
Motorcycle bearing Registration No. JH02H -5420 to Gaya and Pradeep
Kumar Yadav was driving the said Motorcycle and rest two were sitting
as pillion riders on the said motorcycle. On 09.02.2008 at 12.30 noon on the
way when they reached near Domuhan of the Gaya Dobhi road, then
suddenly a TATA Indica Car No.BR02E-9007 driven rashly and
negligently by the driver coming from Gaya side, dashed their motorcycle
due to which the leg of both the injured, Pankaj Kumar @ Pankaj Yadav
and Pradeep Kumar sustained fractured injury and Dinesh Kumar also
sustained minor injury. The motorcycle was also damaged. Police
registered Bodhgaya P.S. Case No.17 of 2008 dated 09.02.2008 and after
investigation submitted charge-sheet vide No.25 of 2008.
6. Learned counsel for the appellant has further submitted that injured
(Pankaj Kumar @ Pankaj Yadav) was working as a salesman in Keshri
Medical Hall, Hunterganj, Chatra from where he has claimed earning of
Rs.5,000/- per month. Injured was aged about 21 years at the time of
accident and sustained multiple injuries and fracture of left femur i.e.
longest bone extended from pelvis to the knee and just after accident he
was treated at Primary Health Center, Gaya, then referred and treated
subsequently by Dr. Farasat Hussain of Life Line Nursing Home, Gaya for
a period of one year during which the injured undergone major operation
twice at expenses of Rs.1,37,000/- and the treatment is still continuing.
Thus the injured claimed for general compensation of Rs.3 Lac in addition
to medical expenses, pain, suffering and loss of earning etc., and prayed
for grant of just and fair compensation.
7. Mr. Pratyush Kumar, learned counsel for the respondent- New India
Assurance Company Ltd., while opposing the same has submitted that
the learned Tribunal has rightly considered medical expenses as
Rs.25,000/-, out of claim of Rs.75,000/- and Rs.1,25,000/- as compensation
by disbelieving the medical evidence brought on record and marked as
x/5 for identification, as such, this Court may not interfere with the same.
8. Heard, learned counsel for the parties and perusing the materials available on
record including the impugned judgment and perused 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 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 accident : Rs. 36,000
(b) Loss of future earning per annum
(15% of the prior annual income) : Rs. 5400
(c) Multiplier applicable with reference
(d) Loss of future earnings: (5400 × : Rs. 91,800
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. 36,000
accident
(b) Loss of future earning per annum
(75% of the prior annual income) : Rs. 27,000
(c) Multiplier applicable with
(d) Loss of future earnings: (27,000 × : Rs. 4,59,000
17)
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 he would Rs. 60,000
have got if had been employed as
an engineer :
(b) Loss of future earning per annum
(70% of the expected annual
income) : Rs. 42,000
(d) Loss of future earnings: (42,000 × : Rs. 7,56,000
18)
[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."
9. As such, the principles have already been laid down by the Apex Court for
consideration of evidence by the learned Tribunal as well as headings under
which the compensation are to be made.
10. In case a person has not sustained permanent disability compensation will
be given under the heading of Pecuniary damages (Special damages) (i)
Expenses relating to treatment, hospitalization, medicines, transportation,
nourishing food and miscellaneous expenditure, (ii)(a) Loss of earning during
the period of treatment and also under the heading of Non-Pecuniary damages
(General damages) i.e. (iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
11. But where there is a permanent disability on the basis of the evidence of
the claimant/injured, the compensation will also be granted under heading of
Pecuniary damages (Special damages) i.e. (ii)(b) Loss of future earnings on
account of permanent disability and (iii) Future medical expenses and under
the heading of Non-Pecuniary damages (General damages) i.e. (v) Loss of
amenities (and/or loss of prospects of marriage) and (vi) Loss of expectation of
life (shortening of normal longevity).
12. Apart from that the Apex Court has given guidelines with regard to
acceptance of medical certificate in Paras 22 to 23 of he said judgment of Raj
Kumar (Supra) which have already been quoted above. In the case 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.
The Apex Court has considered that a busy Surgeon may available 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.
13. Since the Original Disability Certificate of the injured/claimant has been
brought on record and marked X/5 for identification, which itself was
sufficient to be accepted by the learned Tribunal, as the same remains
unrebuttal by bringing any contrary evidence by the Insurance Company, it
was incumbent upon the learned Tribunal to consider the same with regard to
30% permanent disability of the claimant. However for considering the
functional disability, it would be proper for the Tribunal to consider the
Employee's Compensation Act, 1923, Schedule-I with regard to percentage of
loss of earning capacity of a victim.
14. Since in the present case, the person has suffered multiple injuries and
fracture of left femur i.e. longest bone extended from pelvis to the knee and
remained under treatment for one year and also for future treatment, the case
of claimant will fall in the category, which has not been categorized in the
Employees' Compensation Act.
15. However, his movement is restricted by at least 30% though his whole
body is not disabled by 30%, as such, the learned Tribunal has considered the
disability and percentage of loss of earning capacity to be 30%.
16. In view of such, the computation is to be made in the following heads:-
Pecuniary damage (Special damage) i.e.
(i) Expenses relating to treatment the bill has been produced. Medical expense
as found by the Tribunal in internal page 21 of the impugned Award at para 10
is of Rs.75,000/- and there was no reason for the learned Tribunal to reduce it
as Rs.20,000/-, as the medical expenses has to be given as per the actual bill
for the treatment, as such, Rs.75,000/- is given under heading expense relating
to treatment, Hospitalization and Medicines.
17. Since the patient has been shifted from one place to another place as
initially the claimant was treated at Primary Health Centre, Gaya and then
referred and treated by Dr. Farasat Husain of Life Line Nursing Home, Gaya,
as such, Rs.2,000/- is awarded for transportation.
18. Under the heading of expenses relating to nourishing food, since the patient
remained in Hospital for one year, it shall not be less than Rs.50,000/- in total
and for Miscellaneous Expenditure, it shall be Rs.50,000/- in total for
attendant and other expenses.
19. The claimant/injured has claimed his earning as Rs.5,000/- per month
working in the Medical shop, as such, loss of earning during the period of one
year comes to Rs.5,000/-x12=Rs.60,000/-.
20. Further under clause (ii)(b) of Pecuniary damages i.e. (b) Loss of future
earnings on account of permanent disability, since the person has suffered 30%
permanent disability, as such, Rs.5,000/- per month X 30%=Rs.1500/-, then
Rs.1500x12x18 (multiplier for the age group of 21 to 25)=Rs.3,24,000/-, in
view of the judgment passed by the Apex Court in the case of Sarla Verma
(Smt.) & Ors. vs. DTC & Anr., reported in (2009) 6 SCC 121 at Para-42.
So far clause (iii) of Pecuniary damages i.e. Future medical expenses is
concerned, this Court considers Rs.10,000/- as appropriate.
So far Clause (iv) of Non-pecuniary damages i.e. Damages for pain,
suffering and trauma as a consequence of injury is concerned, the same shall
be Rs.2 Lacs, as the patient remained hospitalized for one year and undergone
surgery.
So far clause (v) of Non-pecuniary damages i.e. loss of amenities (and/or
loss of prospects of marriage) is concerned, this Court considers Rs.1 lac is
appropriate.
So far clause (vi) of Non-pecuniary damages i.e. loss of expectation of life
(shortening of normal longevity) is concerned, this Court considers NIL as the
life of injured is not under threat.
21. Re-computation of the compensation is as follows:-
(i) Expenses relating to treatment, hospitalization, Rs.75,000/-
medicines (Rs.50,000/- +
Nourishing food and miscellaneous expenditure Rs.50,000/- +
Transportation Rs.2,000/-)
Pecuniary damages (Special Damages) Total= Rs.1,77,000/-
(ii) Loss of earnings (and other gains) which the Under
injured would have made had he not been injured,
comprising:
(a) Loss of earning during the period of treatment; a. Rs.60,000/-.
(b) Loss of future earnings on account of
permanent disability b. Rs.3,24,000/-
(iii) Future medical expenses Rs.10,000/-
(iv) Damages for pain, suffering and trauma as a Rs.2,00,000/-
consequence of the injuries as disability is 30% in
view of judgment Mallikarjun (Supra).
(v) Loss of amenities (and/or loss of prospects of Rs.1,00,000/-
marriage)
(vi) Loss of expectation of life (shortening of normal NIL
longevity)
Total Rs.8,71,000/- along with
interest @ 7.5% per
annum.
22. The amount of Rs.8,71,000/- shall be paid along with interest @7.5% per
annum from the date of filing of the claim application till the date of
indemnifying the same.
23. The amount already paid by the Insurance Company either under Section 140
M.V. Act or amount paid pursuant to the Award passed by the learned Tribunal
shall be deducted and the balance amount shall be paid by the Insurance Company
within a reasonable time, as the person has suffered injury on 09.02.2008 i.e. 13
years ago.
24. Accordingly, the instant Miscellaneous Appeal stands allowed.
(Kailash Prasad Deo, J.)
sandeep/R.S.-
