Jharkhand High Court
Ashiwini Kumar Mahatha vs Sri Bom Sharma on 27 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Miscellaneous Appellate Jurisdiction]
M.A. No. 153 of 2018
Ashiwini Kumar Mahatha .... .. ... Appellant(s)
Versus
1.Sri Bom Sharma
2.Suresh Sharma
3.Branch Manager, National Insurance Company Ltd.
4.The Divisional Manager, National Insurance Company Ltd.
5.National Insurance Co. Ltd. .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant(s) : Mrs. Nirupama, Advocate.
Mr. Anil Kumar Sinha, Advocate
For the Res.-Insurance Com. : Mr. Amresh Kumar, Advocate
..........
08 / 27.07.2021. Heard, learned counsel, Mrs. Nirupama assisted by learned counsel for
the appellant/claimant, Mr. Anil Kumar Sinha and learned counsel for the Insurance
Company, Mr. Amresh Kumar .
Learned counsel for the appellant/claimant has submitted that the claimant-
Ashiwini Kumar Mahatha has preferred this Misc. Appeal against the
Award/judgment dated 04.01.2018 passed by learned District Judge-II-cum-
Presiding Officer, Motor Accident Claim Tribunal (M.A.C.T.), Bokaro, whereby the
claimant [Ashiwini Kumar Mahatha] has been awarded a compensation to the tune of
Rs.7,16,380/- to be paid within one month from the date of passing of the
award/judgment, failing which, the O.P. No.3 (National Insurance Company Ltd.)
shall be liable for penal interest @6% per annum from the date of the judgment till its
realization.
Learned counsel for the appellant/claimant has further submitted that the
claimant has assailed the impugned Award for enhancement of compensation amount
on the ground that injured/claimant (Ashiwini Kumar Mahatha) sustained injury in an
accident on 24.03.2011 at the age of 46 years, whose monthly income was
Rs.16,000/- per month but he has suffered 41% disability in his right leg.
Learned counsel for the appellant/claimant has further submitted that the
learned Tribunal while passing the impugned Award/judgment has not considered the
judgment passed by the Apex Court in the case of Raj Kumar vs. Ajay Kumar,
reported in 2011 (1) SCC 343, at paras 6 to 21, which may profitably be quoted
hereunder:-
"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.
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:
Minimum annual income he would have Rs. 60,000
a) got if had been employed as an engineer :
Loss of future earning per annum (70%
b) of the expected annual income) : Rs. 42,000
c)
Loss of future earnings: (42,000 × 18) : Rs.7,56,000.00
d)
[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)
As such, he has submitted that as per Income Tax returns of the
victim/appellant for the finance year 2009-10 and 2010-11, there was increase of
10.36% in the income.
Learned counsel for the appellant/claimant has further submitted that victim is
a stamp vendor and as per the financial year, 2009-10, his commission/income was
Rs.1,68,000/- and in the year 2010-11, his commission/income was Rs.1,85,400/-,
but so far financial year 2011-12 is concerned, his income has got reduced after
accident to the tune of Rs.22,560/-, as such, the Court has to consider the loss of
income sustained by the appellant owing to accident and thus, compensation amount
may be enhanced.
Learned counsel for the Insurance Company has submitted that copies of
Income Tax Return of 2009-10 and 2010-11 have not been brought on record which
may be directed to be filed by the appellant. He has further submitted that since right
of recovery has been given in favour of the Insurance Company while deciding issue
No.6, as such, owner of the offending vehicle may be noticed.
Considering the same, let notice be issued to the owner of the offending
vehicle i.e. Tractor bearing Registration No.JH09P 6615 and Trailor No. JH09P-
6616/respondent No.1, namely, Sri Bom Sharma, S/o Bhuneshwar Sharma, resident
of Village- Murtitand, P.O.- Chas, P.S.- Chas (M), District- Bokaro, u nder both
process i.e. under Registered Cover with A/D as well as under ordinary process, for
which requisites etc., must be filed within two weeks.
The ordinary process of notice be served upon owner of the offending vehicle/
Respondent No.1 through Officer-in-Charge of concerned Police Station after due
verification of the present and correct address from the District Transport Officer, if
requires and affidavit shall be filed to that effect by the Officer-in-Charge of the
concerned Police Station.
The Superintendent of Police, Bokaro is directed to look into the matter.
Put up this case after service of notice.
Let a copy of this order be communicated to the Superintendent of Police, Bokaro
through FAX at once.
(Kailash Prasad Deo, J.)
Sandeep/
