Jharkhand High Court
Touhid Ansari @ vs Rohit Kumar on 31 January, 2023
-1- M.A. No. 391 of 2017 &
M.A. No. 451 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 391 of 2017
Touhid Ansari @
Md. Tauhid Ansari, son of Salim Ansari ..... ... Appellant
Versus
1. Rohit Kumar, son of Kartik Mahto
2. Sonu Kumar Singh, son of Natwar Prasad Singh
3. The New India Assurance Company Ltd.,
Vidya Market, Laxmi Takies Complex,
Hazaribag. ..... ... Respondents
with
M.A. No. 451 of 2017
New India Assurance Co. Ltd.,
Vidya Market, Luxmi Talkies Complex,
Hazaribag ..... ... Appellant
Versus
1. Touhid Ansari @
Md. Tauhid Ansari, son of Salim Ansari
2. Rohit Kumar, son of Kartik Mahto
2. Sonu Kumar Singh,
son of Natwar Prasad Singh ..... ... Respondents
--------
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Appellant : Mr. S.T. Rizwi, Advocate
: Mr. Jayant Kumar Pandey, Advocate
: Mr. Sourav Anand, Advocate.
[in M.A. No. 391 of 2017]
: Mr. Alok Lal, Advocate.
[in M.A. No. 451 of 2017]
For the Respondents : Mr. Alok Lal, Advocate.
[in M.A. No. 391 of 2017]
: Mr. S.T. Rizwi, Advocate
: Mr. Jayant Kumar Pandey, Advocate
: Mr. Sourav Anand, Advocate.
[in M.A. No. 451 of 2017]
------
20/ 31.01.2023 Heard Mr. S.T. Rizwi, learned counsel appearing for the
appellant in M.A. No. 391 of 2017 and also for respondent No. 1 in M.A.
No. 451 of 2017 and Mr. Alok Lal, learned counsel appearing for the
appellant-insurance company in M.A. No. 451 of 2017 and also for
respondent-insurance company (respondent No. 3) in M.A. 391 of 2017.
2. Being aggrieved and dissatisfied with the judgment/award
dated 22.05.2017, passed by the learned Presiding Officer, Motor Vehicle
Accident Claims Tribunal, Hazaribag, in Claim Case No. 104 of 2008,
these appeals have been preferred by the injured in M.A. No. 391 of 2017
for enhancement of the claim, whereas M.A. No. 451 of 2017 has been
filed by the appellant-insurance company for setting aside the award.
3. On 23.02.2006 at about 2.00 P.M., the injured / claimant
-2- M.A. No. 391 of 2017 &
M.A. No. 451 of 2017
Touhid Ansari with his friend were returning from Ramgarh to his house
on motorcycle. When they reached near Koriya Ghati within Mandu
(Kuju) Police Station, suddenly a Dumper bearing registration no. JH-02-
F-0581 was being driven by his driver rashly and negligently dashed the
motorcycle, they thrown on the road, as s result of which, the injured /
claimant sustained serious injury and compound fracture of the right leg
and hand. He was firstly admitted to Rahat Nursing Home, Bharech
Nagar for immediate treatment, but the doctors, attending him, referred to
Ranchi for better treatment. The injured / claimant to get more better
treatment got himself admitted to Hill View Hospital & Research Centre,
Bariatu, Ranchi. The patient was admitted for treatment on 28.02.2007
and discharged on 11.03.2007. It is further stated that he suffers from
permanent injury and has to take full care and precaution and to remain in
medical supervision for whole of his life. The expenses of Rs. 46,634/-
were made on his treatment. The claimant sustained 40% deformity as per
the disability certificate issued by the Civil Surgeon-cum-Chief Medical
Officer, Hazaribag. The FIR was registered and chargesheet was
submitted.
4. The learned tribunal after looking into the evidences brought
on record on behalf of the parties i.e. oral as well as documentary
evidences, awarded a sum of Rs. 2,99,333/- to be paid by the insurance
company to the injured-claimant.
5. Learned counsel appearing for the claimant-appellant in M.A.
No. 391 of 2017 submits that the future prospect, considering the 40%
disability, has not been allowed by the learned tribunal. In that view of the
matter, the said head is required to be taken care of and this award may
kindly be modified. To buttress his argument, he relied the judgment of
Hon'ble Supreme Court in the case of T.J. Parameshwarappa @
Parameshwarappa @ Talalkena Gowdra Parameshwarappa Versus The
Branch Manager, New India Assurance Co. Ltd. & Ors. passed in Civil
Appeal Nos. 8598-8599 of 2022 [arising out of SLP(C) Nos. 11730-
11731 of 2021], wherein the Hon'ble Supreme Court in para-8 has
discussed about the permanent disability, which is as follows:-
8..........................
"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
-3- M.A. No. 391 of 2017 &
M.A. No. 451 of 2017
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
-4- M.A. No. 391 of 2017 &
M.A. No. 451 of 2017
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
-5- M.A. No. 391 of 2017 &
M.A. No. 451 of 2017
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."
6. Relying on this judgment, learned counsel appearing for the
appellant submits that the medical certificate produced as Exhibit-3
suggests that 40% disability was there, in that view of the matter, the
learned tribunal has failed to consider that part and this court may kindly
enhance the amount in question.
7. Mr. Alok Lal, learned counsel appearing for the insurance
company submits that so far as enhancement is concerned, that is not
required, considering that the accident took place in the year 2006
wherein the medical certificate is of the year 2007 and no other medical
evidence has been produced and the doctor has also not been examined
and in that view of the matter, the claim of the claimant is not sustainable
in the eyes of law. To buttress his argument, he relied in the case of
Oriental Insurance Company Ltd. Versus Johan Shah @ Md. Jahan,
reported in (2001) 2 JLJR 163. He further relied in the case of Raj
Kumar Versus Ajay Kumar & Ors., reported in MANU/SC/1018/2010
and further in the case of National Insurance Company Ltd. Versus Usha
Veena Rani Minz & Ors., reported in MANU/JH/0362/2007.
8. So far as M.A. No. 451 of 2015, filed by the insurance
company is concerned, Mr. Alok Lal, learned counsel appearing for the
appellant-insurance company submits that the learned tribunal has not
answered the ground of driving license, however, the said ground has
been taken by the insurance company. He submits that the appeal filed by
the appellant-insurance company may kindly be allowed.
9. In view of the above submissions of learned counsel
appearing for the parties, the court has gone through the materials
available on record and finds that admittedly the accident has taken place
on 23.02.2006 and Exhibit-3 is the document, which suggests that the
claimant sustained 40% deformity injury, as per the disability certificate
issued by the Civil Surgeon-cum-Chief Medical Officer, Hazaribag.
-6- M.A. No. 391 of 2017 &
M.A. No. 451 of 2017
Admittedly, the said Chief Medical Officer has not been examined,
however, the Civil Surgeon-cum-Chief Medical Officer is a Government
official and he has issued the certificate to that effect. In that view of the
matter, the certificate cannot be discarded.
10. In view of the case of judgment of the Hon'ble Supreme
Court in the case of T.J. Parameshwarappa @ Parameshwarappa @
Talalkena Gowdra Parameshwarappa (Supra), the future prospect is
required to be considered. The award is dated 22.05.2017 and to remand
this appeal for reconsideration on that point will amount to further delay
and in the interest of justice that point is being dealt with by the court
itself.
11. Admittedly the medical certificate, issued by the Civil
Surgeon-cum-Chief Medical Officer, Hazaribag, who is a Government
servant, which is Exhibit-3 is there and considering the age of the injured
/ claimant, which is 21 years and the future prospect is required to be
considered in light of the age of the injured / claimant, in light of para-
59.4 of the judgment of the Hon'ble Supreme Court in the case of
Jithendran Versus New India Assurance Co. Ltd. & Anr., reported in
(2021) SCC OnLine SC 983, wherein the Hon'ble Supreme Court in
para-22 held as follows:-
22. As noted earlier, the impact on the
earning capacity for the claimant by virtue of
his 69% disability must not be measured as a
proportionate loss of his earning capacity.
The earning life for the appellant is over and
as such his income loss has to be quantified
as 100%. There is no other way to assess the
earning loss since the appellant is
incapacitated for life and is confined to home.
In such circumstances, his loss of earning
capacity must be fixed at 100%. As his
monthly income was Rs.4,500/-, adding 40%
future prospect thereto, the monthly loss of
earning is quantified as Rs.6,300/-. We
therefore deem it appropriate to quantify
Rs.13,60,800/- (Rs.6,300 x 12 x 18) as
compensation for 100% loss of earning for
the claimant. Accordingly, under this head,
the amount awarded by the High Court is
enhanced proportionately.
12. However, in the case in hand, the doctor has not been
-7- M.A. No. 391 of 2017 &
M.A. No. 451 of 2017
examined, in that view of the matter, considering the medical certificate,
issued by the Government servant which suggests 40% deformity, that
can be assessed to the tune of 30% for the future prospects. Accordingly,
the future prospect shall be calculated @ 30% of Rs. 3000/- x 12 x 18
[total=Rs. 1,94,400/-] .
13. The judgment relied by Mr. Alok Lal, learned counsel
appearing for the insurance company in the case of Johan Shah @ Md.
Jahan (Supra) not even a single chit of paper was brought on record and
considering this aspect, the High Court has remanded back the matter to
proceed afresh. The judgment relied in the case of Usha Veena Rani Minz
& Ors (Supra), the claimant has not been able to clearly establish that she
has suffered any injury in the accident, in that view of the matter, this
judgment is not helping the insurance company. The judgment relied in
the case of Raj Kumar (Supra), the Hon'ble Supreme Court has
considered that the deformity certificate was not genuine, that's why
rejected the claim. However, Hon'ble Supreme Court considering into
the pendency of the matter for the years together decided this aspect of
the matter on its own and future prospect was fixed as 20% that has been
extended to the claimants, that's why the judgment relied by the learned
counsel appearing for the insurance company are not helping the said
insurance company.
14. So far as the contention in M.A. No. 451 of 2017 filed by the
insurance company is concerned, learned tribunal has discussed the
driving license issue at para-16 of the award and has held that the O.P.
No.3 Mark-Y the Surveyor Report and Mark-Z the Driving License
Verification Report and the reports suggest that the driving license of the
driver of the offending vehicle was not issued in the office of DTO,
Hazaribag and O.P. No. 3 has not produced any authorized person to
corroborate the report of investigator and that was not proved by the
insurance company, that's why the learned tribunal has rejected the
contention of the insurance company.
15. There is no illegality in that finding of the learned tribunal,
accordingly, the M.A. No. 451 of 2017 is dismissed.
16. M.A. No. 391 of 2017 is allowed in terms of above
modification.
17. Learned counsel appearing for the insurance company fairly
submits that the awarded amount has already been deposited before the
learned tribunal.
-8- M.A. No. 391 of 2017 &
M.A. No. 451 of 2017
18. The statutory amount deposited by the insurance company
shall be transmitted back to the learned tribunal and the learned tribunal
shall take endeavour to satisfy the award looking into the modification,
made as above, within eight weeks from the date of receipt / production
of the copy of this order.
19. Let the Lower Court Records be sent back to the concerned
court forthwith.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
