[Cites 21, Cited by 0]
Jharkhand High Court
New India Assurance Co. Ltd vs Subash Kumar Mahto on 28 November, 2025
2025:JHHC:35711
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 49 of 2014
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New India Assurance Co. Ltd, Main Road, District- Hazaribagh
having its office at Vidya Market, Laxmi Cinema Complex, Lepo
Road, P.O. P.S. & District- Hazaribagh.
... ... Appellant
Versus
1. Subash Kumar Mahto, son of Prabhu Dyal Mahto resident of
Barka Chumbba (Bahera Tand) P.O.+P.S. Giddi, District-
Hazaribagh.
2. Des Raj Sharma son of Chandra Lal Sharma, resident of
Gola Ghat Road, P.O. & P.S. Dinapur, Nagaland (Owner of
Trailer)
3. Alaudin Khan, son of Mohammad Khan, resident of Village-
Jindapur, P.O. & P.S. Sikandarpur, District- Deoria (Driver of
Trailer). At present Pitaya Chouk, P.O. & P.S. Kotwali,
District-Deoria (U.P.) ... ... Respondents/Opp. Parties
---------
For the Appellant : Mr. Alok Lal, Advocate
For the Resp. No.1 : Mr. Kishore Kr. Singh, Advocate
---------
PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
JUDGMENT
C.A.V. on 01.08.2025 Pronounced on _28.11.2025
1. Heard Mr. Alok Lal, learned counsel appearing on
behalf of the appellant-The New India Assurance Company
Limited, Mr. Kishore Kr. Singh, learned counsel appearing on
behalf of the Respondent no.-1/Claimant/Injured.
2. The instant miscellaneous appeal has been preferred
by the appellant-The New India Assurance Company Limited
against the award dated 27.06.2013 passed by 5th District
Judge- cum-P.O, M.V.A.C.T, Hazaribagh in Claim Case No.
185 of 1999 whereby and whereunder the learned Tribunal
has awarded the Claimant/Injured a sum of Rs.1,50,000/-
with interest @ 6% per annum from 10.07.2007.
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3. A short conspectus of relevant facts leading to this
present appeal is that on the fateful day of 17.06.1999 at
about 11:30 hours, Claimant/Injured Subash Kumar Mahto
(Respondent no.-1 herein) while going from his bicycle was
knocked down by a Trailer having registration no. NL 01A
0586 which was coming towards the Ranchi. The
Claimant/Injured sustained multiple injuries and fractured
his right leg which was later amputated from the knee in
course of treatment.
4. An F.I.R. regarding above said incident has been got
registered being Mandu (Kuju) P.S. Case No. 141/1999 under
Section 279/337/338 of IPC. Thereafter, due investigation was
done and charge sheet was submitted against the driver of the
offending Trailer. The Claimant/Injured Subash Kumar Mahto
(Respondent no.-1 herein) filed an application under Section
166 of the Motor Vehicles Act, 1988 (in short M.V. Act).
5. The owner and the driver of the offending Trailer and
appellant- The New India Assurance Company Limited had
been made opposite parties in the said claim application.
Record of the Tribunal further reveals that the owner and the
driver of the offending Trailer chose not to appear before the
Tribunal and thereafter, case proceeded ex-parte against the
owner and the driver. The Insurance Company appeared and
filed W.S. in the year 2003 and contested the claim however,
the Insurance Company sought amendment in the W.S in the
year 2013 which was allowed by the Tribunal in terms of order
dated 03.05.2013 and accordingly, on 15.05.2013 W.S. was
amended.
6. During enquiry before the Tribunal, four witnesses got
examined on behalf of the Claimant/Injured. C.W.-1 who
happens to be the father of the Claimant/Injured and has
stated that his son was hit by the offending Trailer bearing
no.- NL-01A-0586 and was run over by the said Trailer on the
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right side of his son. C.W.-2 and C.W.-3 reiterated the fact as
stated by C.W.-1. C.W.-4 who himself is the Claimant/Injured
reiterated the fact that he was run down by the offending
Trailer bearing no.- NL-01-0586 and sustained injuries in his
right leg and the back of his body and during course of the
treatment, his right leg got amputated from the knee. C.W.-5
happens to be the Medical Board Doctor who had issued
Disability certificate which has been marked and exhibited as
Ext.-2. Claimant/Injured further brought on record following
documents: -
Ext. 1- Certificate of Brindavan Hospital
Ext.2- Certificate of disability
Ext. 3- C.C. of F.I.R.
Ext. 4 - C.C. of charge sheet
Mark X - Photo copy of Insurance policy
Mark X/1 - Cash Memo, Prescription and form
to X/65
Mark Y & Y/1- Photo
7. On behalf of opposite party- Insurance Company, no
oral evidence has been adduced. However, following
documentary evidence has been brought on record -
Ext. A- Original Letter vide reference no. 540604/ Legal
(Without objection)
Ext. B- Letter vide reference No KRO/TP NON HUB/PKS
1443/06/3/13(Without objection)
Mark X- Copy of Case Diary
8. After analyzing the materials available on record, the
learned Tribunal passed the impugned award dated
27.06.2013 and thereby directed the appellant- New India
Assurance Company Limited to pay Rs.1,50,000/- with
interest thereon at the rate of 6% per annum from 10.07.2007.
Being dissatisfied with the above said impugned award dated
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27.06.2013, the appellant- New India Assurance Company
Limited preferred this appeal.
9. Learned counsel for the appellant- New India
Assurance Company Limited drew the attention of this Court
towards the letters (Exts. A and B) denying the policy number
of the offending Trailer before the Tribunal and submitted that
the Insurance Policy number which had been traced out from
the case dairy of the criminal case instituted against the driver
of the said Trailer remained unfounded from the records of the
Insurance Company, and, as such, offending Trailer had no
Insurance policy at the time of accident, therefore, liability
cannot be foisted upon the shoulder of the Insurance
Company in the absence of any Insurance policy.
10. Learned counsel for the appellant- New India
Assurance Company Limited has further submitted that the
learned Tribunal failed to consider that the information sought
for on the basis of RTI was outside the purview of disclosure in
terms of Section 8(1)(d) of RTI Act which is being in the nature
of "commercial confidence" and thus erred while drawing
adverse inference from such non-disclosure of the above
information. On the aforesaid premise, prayer is made to
exonerate the Insurance Company from the liability as saddled
by the Tribunal.
11. Learned counsel for the respondent no.
1/Claimant/Injured submitted that the offending Trailer was
insured from the appellant- New India Assurance Company
Limited at the time of accident which had been found
mentioned in the case dairy of the criminal case and the
Insurance company neither produced the Insurance Policy of
the offending Trailer nor provided information about the
Insurance policy by way of RTI, which has been rightly taken
into consideration as an adverse inference by the learned
Tribunal. It is also submitted that the compensation awarded
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by the Tribunal is not in consonance with the ratio of the case
in Raj Kumar v. Ajay Kumar reported in (2011) 1 SCC 343.
Further, interest @ 6% simple interest awarded by the learned
Tribunal is meagre which ought to be @ 7.5% simple interest
from the date of the application till its realization.
12. Heard learned counsel for the parties and perused the
materials available on record.
13. Despite substituted service of notice through paper
publication upon respondent no. 2 (owner) in pursuant to
order dated 29.11.2022 and upon respondent no. 3 (driver) in
pursuant to order dated 23.11.2021 passed by this Court,
both the respondents chosen not to participate in the present
proceeding.
14. The moot issue that arose before this Court as to
whether the offending Trailer had valid Insurance policy at the
time of the accident and accordingly determination of liability
of the Insurance Company or the owner of the offending Trailer
for the purpose of indemnifying the compensation/award.
15. Record of the Tribunal reveals that FIR (vide Ext.1)
and chargesheet (vide Ext.2) clearly show that there was no
negligence on the part of the claimant/injured as it is very
evident from these documents as well as assertions of
claimant/injured that he was run down by the offending
Trailer having registration no. NL 01A 0586 and sustained
multiple injuries and fractured the right leg which got
amputated during course of treatment.
16. As far as Insurance policy is concerned, record further
reveals that the insurance policy number of the offending
Trailer bearing no.-51000/31/1999/17634 having validity
from 12.03.1999 to 11.03.2000 was traced out from the
portion of the case dairy (Ext- X) which was disclosed by the
driver of the offending Trailer. Further, the above Insurance
Policy number was communicated to the regional office of the
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appellant-Insurance Company for the purpose of verification
and to check its veracity by the counsel appearing on behalf of
the Insurance company before the Tribunal and in reference to
the above query reply vide letter dated 26.09.2006 was
communicated by the regional office at Kolkata, denying the
said policy number. However, the reply vide letter dated
26.09.2006 was exhibited as Photo Copy of Insurance Policy
before the Tribunal and marked as Mark-X.
17. It transpires from the letter dated 12.03.2013 issued
by the New India Assurance company Limited, Hazaribagh
Branch Office (Ext.-A) and letter dated 05.03.2013 issued by
the New India Assurance company Limited, Kolkata Regional
Office (Ext.-B), enclosed with the above letter reveals that the
policy no.-51000/31/1999/17634 was never issued from any
of the offices of the Kolkata Regional office. However, the father
of respondent no.1/Claimant/Injured sought information from
the appellant-Insurance Company regarding the said Policy
number through RTI which was denied on the premise that the
information sought for was outside the purview of disclosure
in terms of Section 8(1)(d) of RTI Act which being in the nature
of "commercial confidence".
18. The Tribunal on the basis of denial of information in
the said RTI gave its finding that there is suppression of
information by the appellant-Insurance Company and drew an
adverse inference against the appellant-Insurance Company
and also evidentiary value of Ext. A and B was not taken into
consideration as the signatory was not put for their respective
deposition qua the said exhibits. Learned Tribunal failed to
appreciate the fact that when Insurance Company brought on
record Ext.- A and Ext.- B, there was no objection on the
part of the respondent no. 1/claimant/Injured. Even, it has
come in the impugned judgment that the photocopy of the
Insurance policy has been brought on record, however, no
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Insurance policy of the offending Trailer is available with the
record of the Tribunal except a reply vide letter dated
26.09.2006 communicated by the Regional office at Kolkata,
denying the said policy number which has been exhibited as
Photo Copy of Insurance Policy before the Tribunal and
marked as Mark-X.
19. This Court, on the basis of discussion made in the
preceding paragraphs, is of considered view that the
authenticity of said Insurance policy number for the offending
Trailer has been denied by the appellant-Insurance Company
which is apparent from Ext. A (without objection) and Ext. B
(without objection). The denial of the information sought from
the appellant-Insurance Company through RTI seems well
reasoned on the ground that information being "Commercial
Confidence" and therefore, an adverse inference drawn by the
Tribunal is untenable. Since, veracity and existence of
Insurance Policy of the offending Trailer remain unfounded,
thus this Court is of considered view that the offending Trailer
was plying without any Insurance policy at the time of
accident and the liability to indemnify the Respondent no.-
1/Claimant/Injured cannot be fastened upon the appellant-
Insurance Company in the absence of valid Insurance Policy
for the offending Trailer. Therefore, the appellant-Insurance
Company is exonerated from indemnifying the award to the
Respondent no.-1/Claimant/Injured.
20. As far as quantum of compensation is concerned, the
Hon'ble Supreme Court in the case of Anant v. Pratap
reported in (2018) 9 SCC 450 has explained the object behind
enactment of benevolent act i.e. Motor Vehicles Act and the
compensation to be awarded under this act by the Courts to
be just and not a bonanza. Relevant paragraph of the
judgment is quoted herein -
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13. The purpose of compensation under the Motor Vehicles Act is to
fully and adequately restore the aggrieved to the position prior to
the accident. This Court in Yadava Kumar v. National Insurance
Co. Ltd. [Yadava Kumar v. National Insurance Co. Ltd., (2010) 10
SCC 341 : (2010) 4 SCC (Civ) 168 : (2010) 3 SCC (Cri) 1285]
explained "just compensation" in the following words : (SCC p.
345, para 15)
"15. It goes without saying that in matters of determination of
compensation both the tribunal and the court are statutorily
charged with a responsibility of fixing a "just compensation". It is
obviously true that determination of a just compensation cannot be
equated to a bonanza. At the same time the concept of "just
compensation" obviously suggests application of fair and equitable
principles and a reasonable approach on the part of the tribunals
and courts. This reasonableness on the part of the tribunal and
court must be on a large peripheral field."
21. In case of Phillips v. London & South Western
Railway Co. [Phillips v. London & South Western Railway
Co. reported in (1879) [L.R.] 5 Q.B.D. 78 (CA)] , Field, J.,
while emphasizing that damages must be full and adequate,
held thus :
"... You cannot put the plaintiff back again into his original position, but
you must bring your reasonable common sense to bear, and you must
always recollect that this is the only occasion on which compensation
can be given. The plaintiff can never sue again for it. You have,
therefore, now to give him compensation once and for all. He has done
no wrong, he has suffered a wrong at the hands of the defendants and
you must take care to give him full fair compensation for that which he
has suffered."
22. Lord Denning while speaking for the Court of Appeal
in Ward v. James [Ward v. James, (1966) 1 QB 273 : (1965)
2 WLR 455 : (1965) 1 All ER 563 (CA)] , laid down the
following three basic principles to be followed in such like
cases :
"First, assessibility : In cases of grave injury, where the body is wrecked or the
brain destroyed, it is very difficult to assess a fair compensation in money, so
difficult that the award must basically be a conventional figure, derived from
experience or from awards in comparable cases. Secondly, uniformity : There
should be some measure of uniformity in awards so that similar decisions are given
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in similar cases; otherwise there will be great dissatisfaction in the community, and
much criticism of the administration of justice. Thirdly, predictability : Parties
should be able to predict with some measure of accuracy the sum which is likely to
be awarded in a particular case, for by this means cases can be settled peaceably
and not brought to court, a thing very much to the public good."
(emphasis in original)
23. In the case of R.D. Hattangadi v. Pest Control
(India) (P) Ltd. reported in (1995) 1 SCC 551, dealing with
the different heads of compensation in injury cases, the
Hon'ble Supreme Court held that :
"9. Broadly speaking while fixing the amount of compensation payable
to a victim of an accident, the damages have to be assessed separately
as pecuniary damages and special damages. Pecuniary damages are
those which the victim has actually incurred and which are capable of
being calculated in terms of money; whereas non-pecuniary damages
are those which are incapable of being assessed by arithmetical
calculations. In order to appreciate two concepts pecuniary damages
may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material loss.
So far as non-pecuniary damages are concerned, they may include : (i)
damages for mental and physical shock, pain and suffering, already
suffered or likely to be suffered in the future; (ii) damages to
compensate for the loss of amenities of life which may include a variety
of matters i.e. on account of injury the claimant may not be able to
walk, run or sit; (iii) damages for loss of expectation of life i.e. on
account of injury the normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life."
24. On the bedrock of above legal proposition, this Court
is of considered view that the compensation is not "just
compensation" as awarded by the Tribunal to the respondent
no. 1/injured/claimant and should be assessed in a manner
to reinstate the aggrieved injured person to the position prior
to the accident. Since, this appeal has been preferred by the
Insurance Company and in the absence of cross appeal by the
injured/claimant for the enhancement of the compensation,
this Court is empowered to award just compensation in view of
judgment rendered by the Three Judges Bench of the Hon'ble
Supreme Court in the case of Surekha v. Santosh reported in
(2021) 16 SCC 467.
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25. It is apposite to refer herein the case of Raj Kumar
(Supra) whereby the Hon'ble Supreme Court laid down the
various heads under which compensation under personal
injury is ought to be calculated. For ready reference relevant
paragraphs of the judgment are 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
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earnings on account of permanent disability--Item (ii)(a). We are concerned
with that assessment in this case.
Assessment of future loss of earnings due to permanent disability
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
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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
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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
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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
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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
(b) Loss of future earning per annum (15% of the prior annual income)
(c) Multiplier applicable with reference to age
(d) Loss of future earnings: (5400X17)
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 accident
(b) Loss of future earning per annum (75% of the prior annual income)
(c) Multiplier applicable with reference to age
(a) Loss of future earnings: (27,000X17)
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:
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(a) Minimum annual income he would have got if had been
employed as an engineer.
(b) Loss of future earning per annum (70% of the expected
annual income)
(c) Multiplier applicable (25 years)
(d) Loss of future earnings: (42,000X18)
[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 the 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 the
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 favourable. This forces the injured
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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
recognising 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.
26. Record reveals that the respondent
no.1/injured/claimant was running business/shop of
Onion-Garlic in the open market and earning Rs 4000/- to
Rs 5000/- per month. The oral evidence made by C.W.1,
C.W.2 and C.W.3, that the monthly income of the
injured/claimant was Rs 5000/- and C.W.4 is Respondent
no.1/Injured/Claimant who deposed that he was earning Rs
4000/- to 5000/- per month. In the absence of any
documentary evidence qua the income of the respondent
no.1/injured/claimant, it would be appropriate for this
Court to consider the monthly income of the
injured/claimant on the basis of minimum wages for the
year 1999. The minimum wages for the year 1999 in the
erstwhile State of Bihar (as Jharkhand became a separate
State in the year 2000) is Rs 63.87/-, therefore, considering
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the total working days as 26 days in a month, the monthly
salary of injured/claimant goes to Rs 1660.82/- round off
to Rs 1661/-.
27. As far as age is concerned, there is no documentary
evidence to ascertain the age rather C.W.1, C.W.2 and
C.W.3 in their respective oral evidences have stated that the
injured/claimant is 16-17 years old. Disability Certificate
Ext.2 which was issued in the year 2000 mentioned the age
of the injured/claimant as 18 years, thus it would be
appropriate for this Court to consider the age of the
injured/claimant as 17 years as the accident took place in
the year 1999. Certificate of disability issued from the office
of the Civil Surgeon Cum Chief Medical Officer, Hazaribagh
upon the examination of the injured/claimant by the
Medical Board wherein it has been mentioned 60% disability
and amputation of right leg from knee.
28. Considering the legal proposition as laid down in
Raj Kumar (Supra), new calculation for computation of
compensation has to be made under following heads-
Under the pecuniary damages (special damages)
(i) Expenses relating to treatment, hospitalization and
medicines the same has not been awarded by the learned
Tribunal and on the basis of documentary evidence, the
claim of the injured/claimant is of Rs. 35,000/-. Therefore,
on the basis of documentary evidence exhibited as Mark X/1
to X/65 injured/claimant is entitle for a sum of Rs 35,000/-
for expenses for treatment and hospitalization.
As far as transportation is concerned, the learned
Tribunal has not awarded any amount under this heading.
Since, the accident took place in Ranchi and the
injured/claimant was transported to hospital and further to
Brindavan Hospital at Ramgarh Cantt., thus it would be
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appropriate to award a sum of Rs 1000/- as expenses for
transportation.
As far as nourishing food or special diet is concerned,
the learned Tribunal has not granted any amount under this
head. This Court considers it appropriate to award Rs.
15,000/- because the injured/Claimant treatment began
from 17.06.1999 till 17.12.1999, which continues till the
filing of the present claim application before the Tribunal.
(ii) Loss of earnings (and other gains) which the injured
would have made if he had not been injured-
(a) As far as, loss of earning during the period of
treatment is concerned, this Court has considered that the
income of the injured/claimant in absence of any
documentary evidence to be Rs. 1,661/- per month and
the injured/claimant remained on bed for approximately
six months, so considering it to be the period of six
months, the loss of earning during the period of treatment
comes to Rs. 1,661/- x 6 = Rs. 9,966/-.
As far as loss of future earnings on account of permanent
disability is concerned, the physical disability suffered as
per certificate of disability has been assessed as 60% for
the amputation of right leg from knee, therefore as per
Schedule-I of the workmen Compensation Act, percentage
of loss of earning capacity as per serial 19 is 60%. Thus
the computation is -
Annual income - Rs 1661 X12 = Rs 19,932/-
Loss of future earning per annum =60% of Rs 19,932/- = Rs 11,959.2/-
Multiplier applicable with reference to age i.e.17 years = 18
Loss of future earnings: Rs 11,959.2/- X18 = Rs 2,15,266 (round of)
This Court finds it appropriate to grant future prospect @
40% in view of judgment passed by the Apex Court in the
case of National Insurance Company Ltd. Vs. Pranay
Sethi and Ors. reported in (2017) 16 SCC 680
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Thus, total amount under loss of future earnings on
account of permanent disability comes to
Rs 2, 15, 266 of 40% = Rs 86,106.4/-
Total amount = Rs 2, 15,266 + Rs 86,106.4 = Rs 3,
01,372/-
Under non-pecuniary damages (General Damages)
(iv) As far as Damages for pain, suffering and trauma as a
consequence of the injuries is concerned, this Court finds
that the learned Tribunal has granted no amount under
the heading of "Pain and Suffering".
Considering the judgment passed by the Apex Court
in the case of Mallikarjun Vs. National Insurance
Company Limited & Another reported in 2014 (14) SCC
396, which was with regard to a child aged about 12 years
having no income has categorized the suffering on the
basis of disability which reads as under -
12. Though it is difficult to have an accurate assessment of the
compensation in the case of children suffering disability on account of a
motor vehicle accident, having regard to the relevant factors, precedents
and the approach of various High Courts, we are of the view that the
appropriate compensation on all other heads in addition to the actual
expenditure for treatment, attendant, etc. should be, if the disability is
above 10% and up to 30% to the whole body, Rs 3 lakhs; up to 60%, Rs 4
lakhs; up to 90%, Rs 5 lakhs and above 90%, it should be Rs 6 lakhs. For
permanent disability up to 10%, it should be Rs 1 lakh, unless there are
exceptional circumstances to take a different yardstick.
Considering the above legal proposition, it would be
appropriate to award the Injured/Claimant Rs 4 lacs
under the heading pain and suffering.
(v) Loss of amenities (and/or loss of prospects of
marriage), this Court in light of Divya v. National
Insurance Co. Ltd., (2024) 12 SCC 436 and Kajal v.
Jagdish Chand, (2020) 4 SCC 413 is of considered view
that the compensation under this heading to be Rs.
3,00,000/-.
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(vi) Loss of expectation of life (shortening of normal
longevity) is concerned, for the amputation of right leg
from knee; this Court considers that it would not affect the
normal longevity of the Injured/Claimant and, as such, no
compensation under this heading.
29. The computation of new compensation amount will
work out as under:-
Pecuniary damages (Special damages)
(i) Expenses relating hospitalization, medicines, Rs
transportation, nourishing food, and miscellaneous
51,000/-
expenditure to treatment
(ii) Loss of earnings (and other gains) which the
injured would have if he not been injured,
comprising: Rs 9,966/-
(a) Loss of earning during the period of treatment Rs
(b) Loss of future earnings on account of
permanent disability 3,01,372
(iii)
Future medical expenses NIL
Non-pecuniary damage (General damages)
(iv) Damages for pain, suffering and trauma as Rs 4 lacs
consequence of the injuries
(v) Loss of amenities (and/or loss of prospects of Rs 3 lacs
marriage)
(vi) Loss of expectation of life (shortening of normal NIL
longevity)
TOTAL Rs
10,62,338
30. As far as, interest part is concerned, this Court
taking into account the legal proposition in the judgment
rendered by the Apex Court in the case of National
Insurance Co. Ltd. v. Mannat Johal, reported in (2019) 15
SCC 260, is of considered view that Respondent no. 2-
Owner of the offending Trailer is liable to pay the entire
above compensation amount to the Respondent no.-
1/Claimant/Injured to the tune of Rs 10,62,338/- along
with interest @ 7.5% per annum simple interest, from the
date of filing of the claim case.
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31. Further, record of Tribunal reveals that no
compensation has been received by the Respondent no.-
1/Claimant/Injured.
32. Accordingly, the appellant-Insurance Company is
exonerated from indemnifying the award to the injured
claimants and Respondent no. 2- Owner is directed to
indemnify the above compensation of Rs. 10,62,338/- along
with the interest @ 7.5% per annum simple interest, after
deducting the interim compensation if already awarded, to
the Respondent no.-1/Claimant/Injured within a period of
45 days from today.
33. Resultantly, the instant Miscellaneous Appeal being
M.A No.-49 of 2014, is hereby allowed, with above
directions.
34. The statutory amount deposited by the Insurance
Company be returned to the appellant-Insurance Company
by learned Registrar General of this Court.
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 28th day of November, 2025
Rajnish-A.F.R.
