Rajasthan High Court - Jodhpur
Shanta Devi vs R.S.R.T.C. (2023:Rj-Jd:41607) on 1 December, 2023
[2023:RJ-JD:41607]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 217/2004
Smt. Shanta Devi W/o Shri Chandmal Sankhla, Aged about 50
years, Resident of Pahuna, District - Chittorgarh (Raj.).
----Appellant
Versus
The Rajasthan State Roadways Transport Corporation, Jaipur
Through : The Depot Manager, Ajmer.
----Respondent
For Appellant(s) : Mr. M. C. Bishnoi assisted by
Mr. Kuldeep Bishnoi
For Respondent(s) : Mr. D. K. Joshi
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
01/12/2023
1. The challenge in the present appeal is to the award dated
16.06.2003 passed learned Judge, Motor Accident Claim Tribunal,
Bhilwara in M.A.C. Case No.488/96, wherein and whereby, the
claim filed by the appellant herein for compensation for the
injuries suffered by her in the motor vehicle accident was
dismissed.
2. The present appeal is at the instance of the claimant. The
contention of the learned counsel appearing for the appellant-
injured is that the Tribunal failed to appreciate the evidence of
AW-1 and AW-2 and the medical evidence under Exhibits-5 and 6,
which clearly demonstrates that the appellant suffered injuries in
the accident occurred with the bus owned by the respondent on
25.09.1996. It is also his contention that the tribunal wrongly held
[2023:RJ-JD:41607] (2 of 10) [CMA-217/2004]
that the injuries sustained by the appellant was not relatable to
any accident occurred with the motor vehicle owned by the
respondent without considering the police records under Exhibits-1
and 2, which clearly demonstrate that the vehicle owned by the
respondent was responsible for the accident, in which the
appellant had sustained injuries. Lastly, he contended that even
the driver of the bus, who was examined as NAW-1, has clearly
admitted that he was chargesheeted for the accident relating to
the injuries suffered by the appellant. All the above evidence
clearly demonstrates that there was an accident and in the said
accident the appellant sustained injuries.
3. The counsel appearing for the respondents opposed the
contentions raised by the appellant counsel. According to the
learned counsel, the tribunal rightly appreciated the evidence on
record, particularly the evidence of NAW-1 and NAW-2 and non-
examination of doctor relating to Exhibit-6. According to him, the
driver and the conductor of the bus who are the rightful eye-
witness to the incident clearly deposed that there was no accident
as claimed by the appellant and according to him, the injury
certificate was belated and concocted one and the tribunal after
appreciating the above evidence rightly dismissed the claim, which
requires no interference.
4. In the light of the above submissions, the following
substantial questions arises for consideration:-
[2023:RJ-JD:41607] (3 of 10) [CMA-217/2004]
(1). Whether the injuries suffered by the appellant is
relatable to the accident occurred on 25.09.1996
with the vehicle owned by the respondents?
(2). Whether the appellant is entitled for any
compensation for the injuries sustained by her?"
5. The finding of the tribunal clearly show that there was an
accident with the vehicle owned by the respondent on 25.09.1996.
The evidence under Exhibits-1 and 2, the police records, clearly
demonstrate that there was an accident with the vehicle owned by
the respondent. The tribunal was not right in holding that the
appellant failed to prove the injuries sustained by her in the
accident relating to the bus owned by the respondent on
25.09.1996. This finding is contrary to the evidence on record.
The injured is the rightful witness and her husband was also with
her when the accident occurred and he was examined as A.W.2.
The evidence of injured-eyewitnesses clearly shows that she was
alighting from the bus and suddenly the door was bolted, whereby
her saree was stuck in the door resulting she fell down and when
the bus was moved, the wheels were ran over her right foot. As a
result, she suffered the crush injuries. This part of evidence is
unchallenged and even going by the cross-examination of AW-1
and AW-2, there is no suggestion from the counsel representing
the respondent that the injuries sustained by her were not
relatable to the accident occurred with the bus owned by the
respondent on 25.09.1996. Further, Exhibit A-6 clearly shows that
it is dated 02.10.1996 and the accident is of 25.09.1996 and there
is no much gap in-between them. The injury certificate obtained
by the police from the Government hospital, which is unmarked,
was laid more emphasis even though such evidence was not
[2023:RJ-JD:41607] (4 of 10) [CMA-217/2004]
brought on record. The own admission of NAW-1 clearly shows
that he was charge-sheeted and his only claim is that no saree
was stuck in the door of the bus which he was driving. This is
contrary to the police investigation under Exhibit-1 and 2. The
driver and the conductor failed to place any evidence on record
that who was the injured in the accident for which the driver was
chargesheeted. These are the evidence which clearly demonstrate
that the injured sustained the injuries in the accident relatable to
the accident occurred with the respondent's bus on 25.09.1996.
Therefore, in this regard the findings of the tribunal is
unsustainable and they are set aside. The point no.1 is answered
holding that the injuries sustained by the appellant was relatable
to the accident occurred with the bus owned by the respondent.
6. In the accident the appellant sustained fracture of right fibula
and fracture of medial malleolus to the right leg. According to her,
the treatment was given by applying POP and the evidence of AW-
1 shows that the POP was continued for 2 months. The evidence
also shows that on account of that fracture of fibula and medial
malleolus, she would not be able to walk properly.
7. The Apex Court in the case of Raj Kumar vs Ajay Kumar &
Anr. reported in (2011) 1 SCC 343, while considering the
compensation to the injured person has held as follows:-
"5. The heads under which compensation is awarded
in personal injury cases are the following :
Pecuniary damages (Special Damages)
[2023:RJ-JD:41607] (5 of 10) [CMA-217/2004]
(i) Expenses relating to treatment, hospitalization,
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. 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. Decision of this Court and 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 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
[2023:RJ-JD:41607] (6 of 10) [CMA-217/2004]
6. 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 accidents
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
(`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.
7. 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
[2023:RJ-JD:41607] (7 of 10) [CMA-217/2004]
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%.
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. 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.
What requires to be assessed by the Tribunal is the
effect of the permanently 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 terns 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 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) SCALE 298 and
[2023:RJ-JD:41607] (8 of 10) [CMA-217/2004]
Yadava Kumar v. D.M., National Insurance Co. Ltd. -
2010 (8) SCALE 567)."
8. In the present case, the injured suffered fracture of right
ankle and there was fracture of right fibula as well as medial
malleolus. She was moved from one hospital to another hospital
and the POP was for almost 2 months. The appellant has not filed
any bills relating to expenditure incurred for treatment. However,
there is a clear evidence that she was treated by the private
doctor under Exhibit-6 and POP was applied, which fact is not
seriously disputed. There is evidence of AW-1 and AW-2 that she
incurred an expenditure of Rs. 2,000/- to Rs. 3,000/-. Considering
the above evidence, a sum of Rs. 5,000/- is awarded under the
head of expanses for treatment, hospitalization, medicines and
transport. A further sum of Rs. 5,000/- is awarded for
nourishment, food and miscellaneous expenditure to the
appellant-injured.
9. The evidence also shows that she was a housewife and on
account of injuries, she was unable to discharge her regular duties
which she was performing prior to the accident. The evidence also
shows that she was having POP for 2 months. Considering the
nature of fracture and injuries, this Court is inclined to take 6
months period for calculation of temporary loss of earnings on
account of injuries. The accident occurred in the year 1995. The
injured was a housewife, her monthly income is fixed as
Rs.2,000/-. Accordingly, a sum of Rs. 12,000/- is awarded
towards temporary loss of earnings.
[2023:RJ-JD:41607] (9 of 10) [CMA-217/2004]
10. The contention of the learned counsel for the appellant is
that Exhibit-9 shows that the injured sustained disability of 5%.
According to him, the said disability has an impact on the
functional disability and according to him, such disability is taken
into consideration for fixing the future loss of earnings on account
of permanent loss of income.
11. On the contrary, learned counsel appearing for the
Corporation opposed contending that there is no clear evidence
from the Doctor who issued Exhibit A/9 with regard to assessment
of disability. According to him, no material has been placed on
record, which are available to the Doctor who issued the disability
certificate determining the disability. On close scrutiny of Exhibit-9
shows that the disability has been determined on the basis of part
treatment summary. There is no material before him which show
that there was any fresh X-Ray of the limb so as to assess the
percentage of disability and the result of disability on account of
this misalignment of injuries. According to him, such evidence was
not before the doctor who examined the injuries.. Further, the
doctor was not made available for examination. In theses
circumstances, this Court is not inclined to accept Exhibit-9.
Therefore, the permanent disability is not proven. As a result, the
claimants are not entitled for any amount towards permanent
disability.
12. There is no evidence that on account of injuries further
treatment was required so that future medical expenses can be
awarded. The appellant-injured suffered two fractures apart from
simple injuries. She was a housewife and her evidence (AW-1)
also shows that still she is getting pain as and when she walks.
[2023:RJ-JD:41607] (10 of 10) [CMA-217/2004]
She suffered pain and trauma as a consequence of such injuries
and she underwent treatment by application of POP for the
fracture injuries, in which such POP of 2 months was applied.
Therefore, a sum of Rs.25,000/- is awarded towards pain and
suffering. Further a sum of Rs.20,000/- is awarded under loss of
amenities.
13. In the result, the appeal is partly allowed. The impugned
award of the Tribunal dated 16.06.2003 is set aside and a sum of
Rs.67,000/- (5000+5000+12000+25000+20000) is awarded as
compensation. The said amount shall be paid with interest at the
rate of 7.5% from the date of filing of the petition till the date of
realization. The respondents are directed to deposit the amount
within a period of two months from the date of this judgment. On
such deposition, the claimant is permitted to withdraw the same.
(MUNNURI LAXMAN),J
11-Bhumika/Anil/mSingh/-
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