Jharkhand High Court
National Insurance Company Ltd. vs Amresh Kumar @ Bablu Kumar on 10 May, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.490 of 2014
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National Insurance Company Ltd. , Nawada, Bihar .... .... Appellant
Versus
1. Amresh Kumar @ Bablu Kumar
2. Sabir Hussain
3. Kapil Deo Yadav
.... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Mr. G.C. Jha, Advocate
For the Respondents : Mr. Achinto Sen, Advocate
C.A.V. ON 08.03.2022 PRONOUNCED ON 10 / 05 / 2022
1. Insurance Company has preferred the instant appeal against the
judgment and award of compensation in Claim Case No.21 of 2008 whereby
and whereunder the compensation of Rs.10,28,400/- with interest at the rate of
6% per annum from the date of filing of the claim petition has been awarded
failing which penal interest at the rate of 9% per annum from the date of filing
of claim petition in favour of claimant- Amresh Kumar @ Bablu Kumar, who
sustained disability in motor vehicle accident.
2. Appeal is against the quantum of compensation awarded. The appeal
proceeds on two grounds. Firstly, it was a case of contributory negligence
where the claimant, who was riding motorcycle at the time of accident
contributed to the accident by driving it rashly and negligently.
Secondly, the percentage of medical disability was not as per the
norm set in accordance with Part I and II of Workmen Compensation Act,
1923. The learned Tribunal assessed functional disability mechanically on the
basis of medical disability assessed by the Medical Board (Exhibit 24). It is
argued that as per the case of the claimant he was in the contract business and
his medical disability did not result in functional disability causing any
financial loss. As per Exhibit 34 which is in fact tax return for the assessment
year 2007-08, the income of the deceased was Rs.96,000/- but in the next
assessment year 2008-09 (Exhibit 35) his income increased to Rs.1,54,840/-
which indicates that the claimant did not suffer any financial loss on account
of said disability.
3. Owner of the vehicle appeared and contested the claim case but has
not filed any appeal against the award of compensation.
4. Learned counsel on behalf of claimant respondent no.1 submits that
the claimant had suffered multiple fracture of leg and knee, as a result rod had
to be implanted and he was under treatment for six months at different places.
Immediately after the accident, he was referred to Sadar Hospital, Koderma
and Nawada from where he was taken for treatment to Patna. Finally, he was
shifted to Safdaranj Hospital, New Delhi for treatment. Evidence of treatment
and expenditure has been adduced and marked as Exhibit 1 to 31 and total
expenditure incurred in the treatment was Rs.39,438/-. No order regarding it
has been passed by the learned Tribunal.
5. It is submitted that return filed in the year 2008-09 has shown
marginal improvement which was based on the earlier turnover. As a matter of
fact, because of accident, his mobility to work has been considerably reduced,
resulting in loss of his earning capacity. It is also submitted that loss of income
under the heading of future prospect has not been awarded. Although any
cross-appeal has not been filed by the claimant but relying on the ratio laid
down in Surekha & Ors. Versus Santosh 2020 SCC Online 1312 a prayer
has been made for enhancement of the compensation amount wherein it has
been held:
"2. This appeal takes exception to the judgment and order dated 04.01.2019
passed by the High Court of judicature at Bombay, Bench at Aurangabad in
First Appeal No. 2564 of 2016, whereby the High Court, even though
agreed with the stand of the appellants that just compensation amount
ought to be Rs.49,85,376/- (Forty-Nine Lakh Eighty-Five Thousand Three
Hundred Seventy-Six Only), however, declined to grant enhancement merely
on the ground that the appellants had failed to file cross-appeal.
3. By now, it is well-settled that in the matter of insurance claim
compensation in reference to the motor accident, the court should not take
hyper technical approach and ensure that just compensation is awarded to
the affected person or the claimants".
6. On the factum of accident FIR (Ext 48) was registered under Section
279/337/338/427 against the driver of India Travel Bus no. JH-01G- 7643.
Police on investigation found the case true and submitted charge-sheet (Ext.
49) against the driver of the bus. CW 1 is the claimant himself and CW 2 his
brother, both have deposed that the accident took place due to rash and
negligent driving by the driver of the bus. Nothing significant has come in the
cross-examination, so as to disbelieve their account. Under the circumstance, I
do not find any infirmity in the impugned Judgment wherein it has been held
that accident took place due to rash and negligent driving of the bus bearing
registration no. JH-01G-7643.
7. On the quantum of compensation the disability certificate (Ext. 25)
has been issued by the Medical Board, Koderma on 27.11.2008 in which the
old fracture of right hip has been noted. Movement was found to be sluggish
with difficulty. No remark has been noted under the heading of requirements
for discharge of his duties. A permanent disability of 65 % has been assessed.
8. Assessment of functional disability and resulting loss of earning
capacity is always beset with difficulty. One of the reasons behind this being
that assessment of medical disability is not very objective and at times cryptic,
even the columns of the form of the disability certificate is not completely
filled up. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 the Hon'ble Apex
Court held
" 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%
We may now summarise the principles discussed above: (i) All
injuries (or permanent disabilities arising from injuries), do not result in loss
of earning capacity; (ii) The percentage of permanent disability with reference
to the whole body of a person, cannot be assumed to be the percentage of loss
of earning capacity. To put it differently, the percentage of loss of earning
capacity is not the same as the percentage of permanent disability (except in a
few cases, where the Tribunal on the basis of evidence, concludes that
percentage of loss of earning capacity is the same as percentage of permanent
disability); (iii) The doctor who treated an injured-claimant or who examined
him subsequently to assess the extent of his permanent disability can give
evidence only in regard 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".
In Pappu Deo Yadav Vs Naresh Kumar 2020 SCC Online SC 752 in
which it has been held that claimant can seek, apart from compensation for
future loss of income, amounts for future prospects too.
9. Here in the present case although it has been argued on behalf of the
appellant that income tax return do not reflect any loss of earning capacity on
account of the accident, but this cannot be accepted considering the
occupation of the claimant being contractor where the nature of work requires
considerable movement from one work site to the other. The nature of medical
disability arising out of fracture of lower limb cannot however be said to have
resulted in the 65% disability of the whole body. It can be assessed to a
disability of 45% of the whole body resulting in 40% disability of earning
capacity.
10. The learned Court below has accepted total income of Rs 96,000 on
the basis income tax return for the assessment year 2007-08 which has been
adduced into evidence and marked as Ext. 34. I do not find any difficulty in
accepting this amount as the annual income of the claimant.
Sr. No. Heads Calculations
1. Annual Income Rs. 96,000/-
2. 40% loss of earning capacity on Rs 96,000 x 40% = Rs
account of 45% functional Rs.38,400/-
disability
3. Applying multiplier of 16 to the Rs. 38,400 x 16 = Rs.
31 years of age of the claimant 6,14,400/-
4 Addition of 40% under Future Rs.2,45,760/-
Prospect as per the ratio decided
in Pranay Sethi
5. Pain and suffering Rs. 1,00,000/-
7. Grand Total Rs. 9,60,160/-
The claimants are entitled to a compensation of Rs.9,60,160/- with
7.5% simple interest per annum from the date of filing of the claim application
to be paid by the appellant Insurance Company within a month of the order to
the Tribunal. The Tribunal shall disburse the amount to the claimant after
proper identification.
With the above modification of award, M.A. No. 490 of 2014 is
partly allowed.
The Insurance Company is permitted to withdraw the statutory amount.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 10th May, 2022
AFR / Anit
