Manager vs Arun Kumar
2022 Latest Caselaw 855 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Misc. Appeal No. 105 of 2012

     Manager, National Insurance Company Limited,
     Sahibganj                                 ....   .... Appellant
                              Versus
     1. Arun Kumar
     2. Harekrishna Prasad                    ....  .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : Mr. Alok Lal, Advocate For the Respondents : M/s. Manoj Kr. Sinha, Amit Kr. Verma, Suraj Kumar, S.N.P. Rai, Lina Shakti, Advocates

C.A.V. ON 18.02.2022 PRONOUNCED ON 04 .03. 2022

1. The Insurance Company has preferred the instant appeal against the award of compensation in Motor Accident Claim Case No. 4 of 2001 by Principal District Judge-cum-Motor Accident Claim Tribunal, Sahibganj under Section 166 of the Motor Vehicle Act, 1988 (hereinafter called M.V. Act.).

2. The Judgment has been assailed principally on the ground that it was a case of clear violation of the terms of the Insurance Policy as the driver had no valid license for driving commercial vehicle as he was holding license to drive Light Motor Vehicle. The second point that has been urged is that the disability certificate cannot be relied upon as the doctor issuing the certificate has not been examined. Further, as per the claimant's case he was working as a Block Extension Officer and it has come in evidence that he did not suffer any loss of income on account of the said disability. In this view of matter the compensation awarded is highly excessive. The lastly it is argued that the driver of offending vehicle was without the valid driving license. Reliance has been placed on 2009 (1)JCR 335, Tripurari Mandal -vs.- Oriental Insurance Company Ltd. in which it has been held that where the driver was not holding the valid license the Insurance Company is not liable for paying the compensation.

3. The factum of accident is not in dispute in which the claimant met with an accident by offending vehicle namely Maxi-Taxi bearing registration number BHJ 2151 which collided with the motorcycle of the claimant in which he sustained grievous injury regarding which Borio P.S. Case No. 11/2001 was registered under Sections 279, 337 and 338 of the

Indian Penal Code. The insurance of the vehicle is also admitted by the appellant-Insurance Company

4. The main points for determination are:

A) Whether order of learned Tribunal to pay and recover is sustainable on the ground that driver was not having a valid driving license at the time of the accident?

B) Whether by considering the percentage medical and not functional disability the learned Court below has committed an error in computing the quantum of compensation?

5. On the factum of accident a finding of fact has been recorded by the Tribunal that accident took place due to contributory negligence on the part of the claimant Arun Kumar who was driving the motorcycle at the relevant time of the accident and the Maxi-Taxi bearing registration no. BHJ-2151. While ordering the payment of compensation amount it has been held that liability for payment of 75% of the compensation amount was on the owner of the Maxi-Taxi i.e. O.P No.1 with a direction to the Insurance Company to pay and recover the amount.

6. It has been argued on behalf of the appellant that finding of contributory negligence is ipse dixit and not based evidence on record of the case.

FIR (Ext 1) in this case has been registered on the basis of the statement of the claimant recorded on the very date of accident i.e. 19.1.2001 under Sections 279, 337 and 338 of the Indian Penal Code. Altogether three witnesses have been examined on behalf of the claimant.

A.W 1 Jay Prakash Roy has deposed that on 19.1.2001 he was going to Sahibganj from Borio Block by motorcycle. Arun Kumar was also going just ahead of him by his motorcycle along with his peon Bipin Kumar. He was dashed by a bus on way as a result both of them fell down. The claimant fell down became unconscious and sustained fracture over his knee. The accident took place due to rash and negligent driving of the bus.

A.W 2 Balram Das has claimed to be an eye witness as he was also going to Sahibganj in connection with census work. He also attributed the accident to the driver of the Maxi.

A.W 3 is the victim/claimant himself who has also stated the manner of accident and attributed the accident to the rash and negligent driving of the Maxi-Taxi.

The deposition of all these witnesses has remained undemolished in the cross-examination and no contrary evidence has been led on behalf of the opposite parties. Under the circumstance the finding of contributory negligence is perverse and without any basis. The evidence unerringly point to the accident having taken place due to the rash and negligent driving of the vehicle bearing registration no. BHJ-2151. Therefore finding of the Tribunal of contributory negligence is accordingly unsustainable and is set aside.

7. The learned Tribunal has held that driver of Maxi-Taxi bearing registration no. BHJ - 2151 Hare Krishna Prasad was having a valid driving license for LMV. (Ext A), but not having valid and effective driving license to drive commercial vehicle as he was authorized to drive LMV only. It has also been noted by the learned tribunal that as per the conditions of the policy the person driving the vehicle should have effective license for the vehicle with21 passengers.

Section 10(2) (d) makes provision for driving license for LMV and it does not make a distinction of commercial or private vehicle or transport vehicle. It has been held in Mukund Dewangan v. Oriental Insurance Co. Ltd., (2017) 14 SCC 663 :

"17. The definition of "light motor vehicle" makes it clear that for a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kg. "Gross vehicle weight" has been defined in Section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kg as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act 54 of 1994 in the provisions contained in Sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of "light motor vehicle" has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that "light motor vehicle" is also a "transport vehicle", the gross vehicle weight or unladen weight of which does not exceed 7500 kg as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other

categories as per gross vehicle weight or unladen weight as specified in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a "transport vehicle" must have authorisation. Once a licence is issued to drive light motor vehicle, it would also mean specific authorisation to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg".

In view of the law laid down by the Hon'ble Supreme Court, the Learned Tribunal was in error to hold that the driver was not having a driving a license to drive commercial vehicle as he was authorized to drive LM Vehicle only. Accordingly, the finding of the tribunal on this count is set aside and is held that the driver was holding a valid driving license at the relevant time of accident.

8. With regard to the vehicle being without a valid permit, from the written statement it is manifest that this plea was neither raised nor any issue was framed regarding it. In this view of matter the plea that the vehicle was not having a valid permit cannot be raised at the stage of appeal depriving the owner of the vehicle to rebut the plea by adducing evidence.

9. The Appellant Insurance Company shall accordingly be solely liable to pay the compensation amount and there shall be no order as to pay and recover from the owner of the vehicle.

10. It is a settled principle of Law that the proceedings in a claim Tribunal are not required to strictly follow the provisions of C.P.C. and the Evidence Act. Therefore, the permanent disability certificate which has been marked as Exhibit-3 without objection cannot be discarded simply because the doctor issuing the certificate has not been examined.

11. Proof of a document is one thing and the legal effect of it is another thing. Proof of a document is by a legal procedure as laid down in Part II of the Evidence Act, 1872. Once a document is proved and marked as exhibit, it is admitted to as evidence as to the content of the document. What shall be the effect of the document is a matter of legal construction.

Here Exhibit-3 is the disability certificate issued on 23.12.2002 in favour of Arun Kumar jointly signed by three medical officer of the Block Health Centre, Sahibganj opining that there was permanent 45% fixed flexion of right knee due to old trauma. The certificate does not mention the cause of the disablement in column-10 nor does it mention about the

need of any artificial limb, shoe etc. in the relevant column. It also does not mention in column-12, whether the person concerned was fit for doing any work or not.

12. The question for consideration is

(a)Whether the disability certificate has been issued by a competent authority?

(b) What is the amount of functional disability on account of the physical disability as assessed by the doctors?

13. The permanent disability certificate in this case has not been issued by medical board constituted by a competent authority and was far too cryptic without recording any finding or remarks in different columns leaving it blank. A 45% disability in the knee due to old trauma has been assessed but the report does not specify further details. It is completely silent on Column No. 10 to 12 on the following questions:

A. Cause of disability?

B. Requirement of any prosthetics?

(Tricycle, bicycle, hearing aid, shoe or prosthetic limb) C. Whether the person is capable of any profession or service?

Without recording any entries in these columns a bald statement of 45% assessed disability has been recorded on the disability certificate issued three medical officers of Boreo on 23.12. 2002 in favour of Arun Kumar. It does no claim to have been issued by a Board duly constituted by the Civil Surgeon or any other competent authority. The disability certificate ex-facie appeared to be issued in a most casual and lackadaisical manner and so a report in this regard was called from the Govt. of Jharkhand enclosing two main queries about the authority competent to issue such disability certificate and guidelines if any with regard to it. The response to the queries have been received and submitted by the learned along with the letter of the Deputy Secretary, Department of Health, Medical Education and Family Welfare of the Govt. of Jharkhand which is as under:

1. Who is the competent authority to Disability certificate is issued issue permanent/partial/ temporary/ by the medical board disability certificate for being constituted under the considered under different statutes chairmanship of civil surgeon.

namely Employee's compensation Act, 1923, Motor Vehicles Act 1988, The Employees State Insurance Act, 1948?

2. What are the guidelines of the Govt. for issuance of such Disability certificate is being certificate? issued through UID portal and http://www.swavlambancard.go v.in from 1.6.2021 onwards.

Process of issuance of disability certificate is mentioned in para 18 of the notification no.1204 dated 23.04.018 of Women, Child Development and Social Welfare Department.

From the above response from the Govt. it is evident that the competent authority to issue permanent disability certificate is the medical board constituted under the Civil Surgeon.

14. Motor vehicle Act is indubitably a beneficial piece of legislation, but it does not mean that any cryptic document can be accepted as a basis for the claim to compensation. A word of caution has been sounded by Hon'ble Supreme Court while adjudicating claim application in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 wherein valuable guidelines have been laid down in cases involving claim based on injury resulting in permanent disablement. The ratio has been followed in Jithendran Vs. New India Assurance Co. Ltd 2021 SCC Online SC 983. The relevant paragraph is being extracted below:

"25. The Tribunal has proceeded on the basis that the permanent disability of the injured claimant was 45% and the loss of his future earning capacity was also 45%. The Tribunal overlooked the fact that the disability certificate referred to 45% disability with reference to the left lower limb and not in regard to the entire body. The said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent of loss of earning capacity, as the disability would not have prevented him from carrying on his avocation as a cheese vendor, though it might impede in his smooth functioning. Normally, the absence of clear and sufficient evidence would have necessitated remand of the case for further evidence on this aspect. However, instead of remanding the matter for a finding on this issue, at this distance of time

after nearly two decades, on the facts and circumstances, to do complete justice, we propose to assess the permanent functional disability of the body as 25% and the loss of future earning capacity as 20%.

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.

The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in

different types of injuries, in the case of workmen. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.

The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.

We may now summarize the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of

evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors".

In The New India Assurance Company Limited Vs Satish Chandra Sharma & Anr. Civil Appeal No. 1579 of 2022 vide order dated 23.2.2022 the Hon'ble Supreme Court while deciding on compensation to be paid in a case of motor vehicle accident the Supreme Court reduced the compensation by the High court to a Government servant considering that there was no permanent disability, he wasn't immobilized and he continued to work even after the accident and he continued to earn the monthly salary he was earlier drawing, including increments, except some allowances given due to nature of posting.

15. From the above it is manifest that the Hon'ble Supreme Court has laid down complete guidelines for the Tribunal in matters relating to permanent disability of the claimant. The expression used is permanent in contradistinction to temporary and in order to compute loss of future earning it is to be seen whether the disability is permanent or temporary in nature. If it is permanent then the loss is to be assessed on the basis of functional disability resulting from medical disability and by applying the appropriate multiplier. In case of temporary disability the injured is to be compensated for the loss of income for the period he could not work on account of such disability. It is also settled that in order to assess functional disability, the percentage of medical disability is not to be applied mechanically. As stated above all injuries do not result in loss of earning capacity. It is necessary to consider the occupation of the injured to decide to what degree the disability of a limb has affected one's function in his occupation.

16. Here in the present case Learned Tribunal has awarded a total compensation of Rs.2,58,657/- under the following heads:

(a) Loss of future income - Rs.50,000/-

(b) Medical expenses and other charges, including Accidental /incidental expenses-Rs.1,18, 657/-

(c) Pain and suffering - Rs.30,000/-

(d) Loss of amenities - Rs.40,000/

(e) Future medical expenses- Rs.20,000/-.

In view of the above, I am not inclined to accept the permanent disability certificate (Ext 3) as it has not been issued without mentioning the vital details of the competent authority. The claimant shall not be entitled to any compensation under the head of functional disability and award of compensation shall be confined to the medical expenses incurred in treatment, pain and suffering, loss of amenities. Considering the prolonged treatment of the claimant at different places on account of fracture, the award of compensation under the head of pain and suffering is far too meagre.

The claimant shall however be entitled to compensation of Rs.2,78,657/- under the following heads:

(a) Medical expenses and other charges, including accidental/incidental expenses-Rs.1,18,657/-

(b) Pain and suffering - Rs.1,00,000/-

(c) Loss of amenities -Rs.40,000/-

(d) Future medical expenses -Rs.20,000/-

Appellant Insurance company is accordingly directed to pay the compensation amount of Rs.2,78,657/- with simple interest @ of 7.5 % on the compensation amount to the Tribunal within a month of this order. The Tribunal shall after proper identification of the claimant make payment to the claimant.

The appeal is partly allowed with above modification of award. The Insurance Company is permitted to withdraw the statutory amount. Let a copy of the Judgment be sent to the Judicial Academy for training so that the principles of assessing compensation in permanent disability cases laid down by Hon'ble Supreme Court is properly applied.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 4th March, 2022 AFR / Anit