National Insurance Co. Ltd vs Rajesh
2022 Latest Caselaw 9245 Raj

(1 of 10) [CMA-93/2019]

weHIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S. B. Civil Misc. Appeal No. 93/2019

Rajesh S/o Shri Kishna Ram, aged about 25 years, B/c Meghwal, R/o Naya Gaon, P.S. Shivpura, Tehsil Sojat, District Pali.

----Appellant

Versus

1. Mohan Lal S/o Shri Budha Ram, B/c Dewasi, R/o 584, Dewasi Mohalla, Kushalpura, Tehsil Raipur, District Pali. (Driver & Owner of Registered Car No. RJ 22 CA 8636)

2. National Insurance Company Ltd., Regional Office, Pali (Raj) (Insurance Company of Car No. RJ 22 CA 8636)

----Respondents

Connected With

S. B. Civil Misc. Appeal No. 3153/2018

National Insurance Co. Ltd., Divisional Office - Pali (Raj.) through its Authorized Signatory at "Sun Tower", 3rd and 4th Floor, Pal Road, Jodhpur (Insurer of Car No. RJ-22-CA-8636)

----Appellant

Versus

1. Rajesh S/o Shri Kishna Ram Meghwal, aged about 27 years, R/o Naya Gaon, P.S. Shivpura, Tehsil Sojat, District Pali,

2. Mohan Lal S/o Budha Ram, B/c Devasi, R/o 584, Devasi Mohalla, Kushalpura, Tehsil Raipur. District Pali (Owner & Driver of Car No. RJ-22-CA-8636)

----Respondents

For Appellant(s) : Mr. Ravi Panwar For Respondent(s) : Mr. Santosh Choudhary

(2 of 10) [CMA-93/2019]

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

July 15, 2022 The aforesaid two appeals have arisen from a judgment and

award dated 10.08.2018 passed by the Judge, Motor Accident

Claims Tribunal, Pali in M.A.C.T. Case No. 39/2016 (C.I.S. No.

40/2016) titled as "Rajesh Vs. Mohanlal & Anr.", whereby Tribunal

while allowing claim petition, awarded a sum of Rs. 20,88,552/- as

compensation in favour of the appellant-claimant in CMA

No. 93/2019.

CMA No. 93/2019 has been filed by the claimant seeking

enhancement of compensation amount awarded by the Tribunal,

whereas, CMA No. 3153/2018 has been filed by the Insurance

Company challenging the award passed by the Tribunal on various

grounds.

Brief facts of the case are that claimant Rajesh, who

sustained injuries in a road accident, filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988 (afterwards referred

to as "Act of 1988") against driver-cum-owner of the offending Car

and insurer with the averments that on 25.03.2016 at about 9.00

P.M., claimant on his motorcycle was coming from village Sandia

towards Sojat City. During that, on highway near Mod Bhatta, a

Car bearing registration No. RJ-22-CA-8636, being driven in a rash

and negligent manner, came from opposite side and rammed into

the Motorcycle, on account of which, Rajesh sustained various

injuries on his body. The report of the accident was lodged by one

Bhanwar Lal on 27.03.2016, upon which, FIR No. 92/2016 was

(3 of 10) [CMA-93/2019]

registered. The police after investigation filed charge-sheet against

the Driver of the Car.

It was averred in the claim petition that Rajesh was aged

about 25 years at the time of accident; he was Driver by

profession and earning Rs.12,000/- per month. He sustained

grievous injuries on his head and on right side of body i.e. leg,

shoulder, ribs etc. The claimant also suffered paralytic attack in

his right hand. He remained admitted for treatment in Mathura

Das Mathur Hospital, Jodhpur from 25.03.2016 to 12.04.2016.

Afterwards, he was referred for further treatment, upon which, he

remained admitted in N.M. Virani Wockhardt Hospital, Rajkot

(Gujarat) from 13.04.2016 to 28.04.2016. Thereafter, he was

again treated in Mathura Das Mathur Hospital, Jodhpur from

29.04.2016 to 02.05.2016. He was also treated in Ramsnehi

Hospital, Bhilwara from 13.06.2016 to 20.06.2016. He was also

operated upon for fracture sustained by him. It was further

averred that he was earning his livelihood by driving vehicle

Pickup but on account of injuries, he is not able to do driving

work. After accident, he is not able to earn more than Rs.2000/-

per month. He claimed a sum of Rs.70,72,000/- as compensation

for the injuries caused to him in the accident.

In reply to the claim petition, Insurance Company denied the

fact of rash and negligence on the part of Driver of the insured

vehicle. The fact of disability caused to the claimant was also

denied. However, it was admitted that insurance of offending Car

in the name of Mohan Lal was in existence during the period

10.04.2015 to 09.04.2016.

(4 of 10) [CMA-93/2019]

The driver-cum-owner of the vehicle also filed separate reply

and denied rash and negligence on his part.

After completion of the pleadings, issues were framed by the

Tribunal. During enquiry, claimant Rajesh himself was produced in

the witness box as AW-1. Bhanwar Lal, who lodged the FIR, was

produced as AW-2. Ramesh (AW-3) was produced as eye-witness.

The non-claimants did not choose to adduce any evidence in

rebuttal. During enquiry, police documents including charge-sheet

were exhibited as Ex.1 to Ex.19 and documents relating to

treatment were exhibited as Ex.20 to Ex.245 including the

Disability Certificate as Ex.190.

The Tribunal after evaluating the evidence, while allowing the

claim petition, awarded a sum of Rs.20,88,552/- as compensation

in favour of the claimant under various heads vide award dated

10.08.2018.

Aggrieved with impugned award, non-claimant National

Insurance Company has filed the appeal under Section 173 of the

Act of 1988, which was registered as S.B. Civil Misc. Appeal

No.3153/2018, whereas, claimant has filed the appeal for

enhancement of compensation, which was registered as S.B. Civil

Misc. Appeal No. 93/2019. Since both these appeal have been

preferred against the same award impugned, they are being

decided by this common judgment.

During arguments, learned counsel for the Insurance

Company while relying on the judgment passed by the Hon'ble

Apex Court in the case of Raj Kumar Vs. Ajay Kumar & Anr.

(Civil Appeal No. 8981/2010) decided on 18.10.2010,

contended that the Tribunal mechanically applied percentage of

(5 of 10) [CMA-93/2019]

permanent disability as percentage of loss of earning capacity. The

Tribunal also erred in ascertaining permanent disability as 83.20

per cent, which was not in reference to whole body. The principles

enunciated by the Hon'ble Apex Court in the case of Raj Kumar

(supra) have not been followed by the Tribunal while determining

loss of income of the claimant. He further submitted that claimant

failed to prove his means of livelihood and earning, hence,

determination of income was based on the wages of a skilled

labour. He further submitted that compensation awarded to the

claimant was very excessive and it could not be termed as just

and fair compensation. He further submitted that permanent

disability certificate was not proved by producing the doctor, who

issued the certificate. He further contended that addition of 40%

to the multiplicand arrived was erroneous. Therefore, he prayed

that award be reduced suitably.

On the other hand, learned counsel for the claimant

submitted that claimant sustained more than 80 per cent of

disability. He was Driver by profession. On account of injuries

sustained by him, now he is not able to drive vehicle. The

claimant's income should have been determined as Rs.12,000/-

per month. He further contended that the Tribunal determined

monthly income of the claimant on the basis of 26 days of wages

only, which was erroneous. The claimant sustained injuries on

head, shoulder and leg; he was operated more than once. He has

produced disability certificate issued by the Medical Board, which

cannot be disbelieved. He further submitted that the Tribunal

awarded only Rs.500/- per day for the period of hospitalization,

whereas, he should be awarded @ Rs.1100/- per day. He further

(6 of 10) [CMA-93/2019]

submitted that the Tribunal did not commit any error in assessing

the disability as 83.20 per cent. The evidence produced by the

claimant was not rebutted by the non-claimants. He, therefore,

prayed to enhance the compensation amount appropriately.

Before dealing with the arguments advanced by learned

counsel for the parties, main principles of law enunciated by the

Hon'ble Supreme Court in the case of Raj Kumar (supra) and

applicable in the present case are as follows :-

"8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, 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. ...."

10. 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 ability (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,

(7 of 10) [CMA-93/2019]

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 ...... 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...."

After perusal of impugned judgment, it reveals that the

Tribunal accepted the evidence produced by the claimant as it is in

view of absence of any evidence in rebuttal by the non-claimants.

In the considered opinion of this Court, approach of the Tribunal in

relying on the evidence of the claimant without analyzing it, is not

in accordance with law. The Tribunal was required to ascertain

effect and impact of alleged permanent disability on the earning

capacity of the claimant, for which the Tribunal was also required

to ascertain avocation of the claimant. The Tribunal was also

required to ascertain severity of injuries as claimed to be

sustained by the claimant. It is relevant to mention here that the

claimant in his evidence stated that his right hand was paralyzed

on account of injuries sustained by him, which has been accepted

by the Tribunal as it is without discussing medical evidence in this

regard. It is also admitted position that claimant did not produce

treating doctor or one of the members of the Medical Board, which

issued disability certificate to the extent of 83.20 per cent.

(8 of 10) [CMA-93/2019]

In the considered opinion of this Court, without coming to

the conclusion regarding nature and severity of the injuries, the

effect and impact of injuries on the earning capacity of the

claimant could not have been determined by the Tribunal. The

Tribunal dealt with this issue in the following way :-

"15- gLrxr izdj.k esa izkFkhZ dh vksj ls mls igqaph migfr;ksa ds laca/k esa pksV izfrosnu izi= izn"kZ 10 ,oa vkgr dks "kkjhfjd :i ls 83-20 izfr"kr LFkkbZ fu%"kDrrk gksus ds laca/k esa LFkkbZ fu%"kDrrk izek.k i= izn"kZ 190 is"k dj iznf"kZr djk;k gS] vr% tc vfHkys[k ij dksbZ fojks/kkHkk'kh lkexzh ,oa [k.Muk esa dksbZ lk{; ugha vkbZ gS rks ml fLFkfr esa LFkkbZ fu;ksZX;rk izek.k i= ij vfo"okl djuk U;k;ksfpr ugha gSA mDr nLrkosth lk{; ,oa vkgr ds mipkj ls lacaf/kr leLr nLrkosth lk{; ij fopkj djus ds mijkUr gekjs fouez er esa vkgr dh ladVxzLr "kkjhfjd fLFkfr dks ns[krs gq, mlds orZeku esa ,oa Hkfo'; esa vk; dh izR;k"kk esa deh vkuk LokHkkfod gSA vr% vkgr dks igqaph "kjhfjd {kfr ls mlds Hkfo'; esa dk;Z djus dh {kerk ;k vk; vtZu {kerk ij iM+us okys izHkko dks e/;utj j[krs gq, laiw.kZ "kjhj ds ifjizs{; esa gh 83-20 izfr"kr LFkkbZ fu"kDrrk ekuk tkuk U;k;ksfpr ikrs gSa] pwafd izfrijh{kk esa Hkh vizkFkhZx.k ,slk LFkkfir djus esa vleFkZ jgsa gS fd izkFkhZ orZeku esa ;k Hkfo'; esa vk; vtZu {kerk ds iz;kstu ls "kkjhfjd :i ls lkekU; fLFkfr esa vk x;k gksA"

This Court is not in agreement with the approach adopted by

the Tribunal for determining loss of income of the injured. The

Tribunal should have first come to the conclusion that whether

right hand of the claimant has been paralyzed or not. In the

opinion of this Court, for arriving at this conclusion, treating

doctor or doctor of Neurology Department was proper person to

give its opinion in this regard. The disability certificate produced

by the claimant and relied upon by the Tribunal as it is, reveals

(9 of 10) [CMA-93/2019]

that none of members of the Medical Board, which issued the

certificate, belonged to the Department of Neurology. The

Tribunal was not right in adopting percentage of disability as

percentage of loss of earning capacity of the claimant without

appreciating medical evidence.

The record also reveals that claimant failed to produce any

evidence regarding his employment. He neither named any

person as his employer nor produced any registration certificate,

which suggests that he was owner of vehicle Pickup. It is also

pertinent to note that at the time of accident, claimant was not

possessing license to drive transport vehicle. In the above

circumstances, the Tribunal was required to first ascertain the

nature of work of the claimant and then, required to decide impact

of the injuries on his earning capacity. In this regard, the Tribunal

did not follow the ratio of law enunciated by the Hon'ble Apex

Court in the case of Raj Kumar (supra) and accepted the evidence

produced by the claimant mechanically.

In view of the above discussion, impugned judgment passed

by the Tribunal cannot be sustained in the eyes of law.

Resultantly, while allowing the appeal filed by the Insurance

Company (CMA No. 3153/2018), judgment impugned dated

10.08.2018 passed by the Tribunal is set aside and the matter is

remanded back to the Tribunal with a direction to decide the claim

petition afresh in light of the observations made by this Court and

law as enunciated by the Hon'ble Apex Court in the case of Raj

Kumar (supra).

The appeal filed by the claimant (CMA No.93/2019) seeking

enhancement of compensation amount stands disposed of with the

(10 of 10) [CMA-93/2019]

observation that after passing of the fresh award in pursuance of

this judgment passed by this Court, the claimant will be at liberty

to avail appropriate remedy available to him under the law, if need

so arises.

It is made clear that while adjudicating the claim petition

afresh, the Tribunal will be at liberty to record necessary evidence

including medical evidence.

Till decision of the claim petition in pursuance of this

judgment, stay order passed by this Court on 08.03.2019 shall

remain undisturbed.

(RAMESHWAR VYAS),J

Inder/-

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