Tripura High Court
Shri Gobinda Debbarma vs Shri Ranjit Majumder on 23 April, 2021
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HIGH COURT OF TRIPURA
AGARTALA
MAC App. No. 55 of 2019
Shri Gobinda Debbarma,
Son of Late Bhaghyamani Debbarma, resident of Dhanmura (Khaderbari), North
Taibandal, P.S-Melaghar, District- Sepahijala Tripura.
-----Appellant(s)
Versus
1. Shri Ranjit Majumder
Son of Manmohan Majumder, resident of Nidayam, near Nidaya Bazar, PS.-
Jatrapur, District-Sepahijala Tripura, (Owner of Vehicle No. TR-01-W-1539
(Truck/Triper)
2. The Oriental Insurance Co. Ltd.,
Represented by the Divisional Manager, Divisional Office, 42, Central Road,
Agartala, West Tripura (Insurer of motor cycle bearing No. TR-01-W-1539
(Truck/Triper)
-----Respondent(s)
For Appellant(s) : Mr. A. Nandi, Advocate.
For Respondent(s) : Mr. B. Majumder, Advocate.
Date of Hearing : 19th March, 2021.
Date of Pronouncement : 23rd April, 2021.
Whether fit for reporting : Yes No
√
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
Being dissatisfied with the quantum of compensation granted by
MACT (Court No.4), West Tripura, Agartala in TS (MAC) 98 of 2014 and the
MAC App No. 55 of 2019
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method used for awarding the compensation, aggrieved appellant has filed the
present appeal under section 173 of the Motor Vehicles Act, 1988 (MV Act for
short) for enhancement of compensation.
[2] The factual background of the case is as under:
On 17.11.2013 at about 5 O'clock in the evening appellant Gobinda
Debbarma was going to a grazing field called Dhanmura in his village from his
home to bring back his cow from the grazing field. On the way, the offending
vehicle carrying registration No. TR-01-W-1539 (Tripper Truck) hit him. As a
result, he sustained injuries. Immediately after the accident said Gobinda
Debbarma was shifted to AGMC & GBP hospital at Agartala in a very critical
condition. His brother Rabipada Debbarma reported the matter to police by
lodging a written FIR at Melagarh police station on 22.11.2013. The informant
alleged in his FIR that the accident took place as a result of rash and negligent
driving of the vehicle.
[3] Based on the FIR, Melagarh PS case No. MLG 147 of 2013 under
sections 279 and 338 IPC was registered and after investigation police submitted
charge sheet No. 18 of 2014 dated 26.04.2014 under sections 279 & 338 IPC
against the driver of the vehicle namely Babul Das, Son of Tapan Das of Jatrapur,
Sepahijala judicial district.
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[4] Alleging that the accident took place as a result of rash and
negligent driving of the vehicle, said Gobinda Debbarma being the petitioner filed
a petition in the motor accidents claim tribunal (Court No.4) at Agartala claiming
compensation of a sum of Rs.15,00,000/- on the ground that owing to the accident
he became permanently disabled and lost his earning capacity.
[5] Owner of the vehicle and its insurer were made parties as
respondents No. 1 & 2 respectively. By filing written objection, respondent owner
of the offending vehicle claimed that his vehicle was insured with the Oriental
Insurance Company Ltd. (respondent No. 2) and the policy was in force at the
time of the accident. He also claimed in his written statement that Babul Das was
the driver of his vehicle and on the date of accident he had a valid driving licence.
According to the owner, liability to pay compensation lied with the insurer.
[6] The insurance company (respondent No.2) by filing written
statement contended that the insurance company would not be liable to pay
compensation unless a valid insurance policy is produced and its currency is
proved by the owner of the vehicle. It was also pleaded by the insurance company
that amount of compensation claimed by the petitioner was excessive and
disproportionate to the injuries sustained by him.
[7] In the course of trial of the case, claimant petitioner examined
himself as PW-1 and Dr. Dipti Bikas Roy, a locomotive specialist as PW-2. He
also relied on various documents including the disability certificate (Exbt.7)
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issued by the District Disability Medical Board, West Tripura, Agartala. No
evidence was adduced on behalf of the respondents.
[8] In his examination in chief, petitioner Gobinda Debbarma claimed
that as a labourer he used to earn Rs.8,000/- per month. As a result of the
disability suffered by him from the said accident, he lost his earning capacity. The
accident made him unable even to pursue his domestic works. He stated that he
appeared before District Disability Medical Board for assessment of his disability
and the board certified that he suffered from 60% permanent disability. The
claimant produced the said disability certificate issued by the District Disability
Medical Board which was admitted into evidence as Exbt.7.
The claimant was cross examined by the owner as well as by the
insurance company. It was suggested to the claimant on behalf of the insurance
company that he was not entitled to any compensation. It was also suggested to
him that his claim was excessive. The claimant denied both the suggestions.
[9] The other witness who supported the case of the claimant was Dr.
Dipti Bikas Roy, a locomotive specialist who issued the disability certificate
dated 04.09.2014 certifying that the claimant petitioner Gobinda Debbarma
suffered 60% permanent disability from the said accident.
[10] The Motor Accident Claims Tribunal after considering the oral and
documentary evidence on record arrived at the conclusion that the accident
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occurred due to rash and negligent driving of the offending vehicle as a result of
which claimant suffered physical disability to the extent of 60% due to
Osteoarthritis in both of his knee joints. The tribunal held that on the date of
occurrence, insurance policy (Exbt.C) was in operation, the vehicle was duly
registered vide registration certificate (Exbt.A) and accused driver Babul Das was
also possessing a valid driving licence (Exbt.B). The tribunal then proceeded to
quantify the compensation.
[11] Since the appellant was stated to be a day labourer, tribunal
assessed his daily income at Rs.250/- and by multiplying said daily income by 30
days, tribunal assessed his monthly income at Rs.7,500/- per month. Taking into
consideration 60% disability of the appellant, tribunal worked out his loss of
monthly income at (Rs.7,500 x 60%) = Rs.4,500/-. Thus, the annual loss of
income of the appellant was assessed at (Rs.4,500 x 12) = Rs.54,000/-. Without
applying the multiplier laid down in Sarla Verma (Smt) & Ors. Vs. Delhi
Transport Corporation & Anr. reported in (2009) 6 SCC 121, the tribunal
multiplied the said annual loss of income by 5 years since in the disability
certificate (Exbt.7) reassessment of the disability was recommended after 5 years
and the certificate was made valid upto 04.09.2019. Having applied the said
method, the tribunal worked out the loss of future income of the appellant at
Rs.2,70,000/- and awarded compensation as under:
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Sl. No. Claim Amount Awarded (in
INR)
i. Loss of future income 2,70,000/-
(Rs.54,000 x 5)
ii. Actual cost of medicine 6,750/-
iii. Attendant, Diet & Conveyance 43,500/-
charges
iv. Post operative care & nursing 30,000/-
v. Future treatment 15,000
Total 3,65,250/-
The tribunal allowed 9% annual interest on the said sum from the
date of filing of the claim petition till payment.
[12] Heard Mr. A. Nandi, learned counsel appearing for the appellant as
well as Mr. B. Majumder, learned counsel appearing for the respondent insurance
company.
[13] It is contended by learned counsel appearing for the appellant that
the method of calculation of loss of future income of the appellant adopted by the
tribunal was completely erroneous. According to Mr. Nandi, learned counsel of
the appellant, in this case of permanent disability the tribunal should have applied
the multiplier laid down by the Apex Court in the case of Sarla Verma (Supra)
without awarding compensation in lump sum. In support of his contention Mr.
Nandi, learned counsel has relied on the decision of the Apex Court in ANANT
SON OF SIDHESHWAR DUKRE VS. PRATAP SON OF ZHAMPANNAPPA LAMZANE
& ANOTHER reported in (2018) 9 SCC 450 wherein the Apex Court applied
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multiplier 17 while granting compensation to the 29 years old claimant for
determination of his loss of future income who suffered from permanent
disability to the extent of 75% in consequence of the accident. It is further
contended by Mr. Nandi, learned counsel that the disability certificate (Exbt.7)
nowhere suggested that the condition of the claimant was likely to improve after
5 years. Therefore, the tribunal erroneously assessed the loss of future income of
the appellant only for a limited period of 5 years. In this regard Mr. Nandi has
relied on judgment dated 24.01.2020 of this High Court in MAC App. No. 07 of
2019 (Smt. Pinki Rani Roy Vs. Smt. Lekha Roy Choudhury & Ors.). On the same
issue Mr. Nandi has also relied on the judgment dated 29.01.2021 of this High
Court in MAC App. No. 07 of 2018 (Sri Amit Kumar Paul Vs. The Managing
Director, Kolkata State Transport Corporation). According to Mr. Nandi
considering the occupation of the appellant and nature of disability suffered by
him, his disability should have been considered by the tribunal as 100%
functional disability instead of 60% disability. It is further contended by learned
counsel that even in case of a non salaried and self employed person, income does
not remain the same all along the life. Therefore, in National Insurance
Company Ltd. Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 it has
been held by the Apex Court that while determining income of a self employed
person an addition of 25% shall be made where the deceased is between the age
of 40-50 years. According to Mr. Nandi, learned counsel the same principle shall
apply to the present case in determining the income of the appellant who has
suffered permanent disability to the extent of 60%. It is submitted that the
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appellant was 43 years old when the accident took place and as such he would be
entitled to an addition of 25% for determination of his loss of future income.
Finally it is submitted by Mr. Nandi, learned counsel that in view of the age of the
appellant at the time of the accident, multiplier 14 would apply for determination
of his future loss of income in terms of the method laid down by the Apex Court
in the case Sarla Verma (Supra).
[14] Mr. B. Majumder, counsel of the insurers on the other hand
contends that the tribunal awarded a just and fair compensation to the appellant
and there is no reason to interfere with the said award of the tribunal. Mr.
Majumder, learned counsel urges for dismissal of the appeal.
[15] The Apex Court in the case of Yadava Kumar Vs. Divisional
Manager, National Insurance Company Ltd. & Anr. reported in (2010) 10 SCC
341 held that the tribunal should adopt equitable principles and reasonable
approach for determination of just compensation. In the said judgment the Apex
Court has held as under:
"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 the
court must be on a large peripheral field. Both the courts and the
tribunals in the matter of this exercise should be guided by
principles of good conscience so that the ultimate result becomes
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just and equitable (see Helen C. Rebello Vs. Maharastra SRTC
AIR 1998 SC 3191)"
[16] In the case of Raj Kumar Vs. Ajay Kumar & Anr. reported in
(2011) 1 SCC 343 while determining the compensation awardable to the claimant
appellant who suffered 45% permanent disability from the accident the Apex
Court observed as follows:
"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 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.
11. 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 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.
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New India Assurance Co.Ltd. (2010) 10 SCC 254 and Yadava
Kumar v. National Insurance Co. Ltd. (2010) 10 SCC 341).
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 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, 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."
MAC App No. 55 of 2019
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[17] With regard to determination of functional disability, this High
Court in case of Samir Ch. Das Vs. Md. Jamal Hossain & Anr. in MAC App.
No. 3 of 2019 has succinctly held that conversion of physical disability into
functional disability is not a task of medical board. Such assessment should be
made by the concerned Claims Tribunal. Observation of this Court in this regard
is as under:
"11. However, any such assessment of conversion of physical
disability into functional disability is the task to be performed by
the Claims Tribunal and not the medical expert. The deposition of
the doctor before the Tribunal had to be confined to his assessment
of the locomotive disability sustained by the claimant on account of
the injury. He ought not to have been asked to assess the level of
functional disability. To the Court's query he had sufficiently
made it clear that the claimant could carry out light work but not
heavy work."
[18] In the given context it is not denied that the appellant is as day
labourer by occupation. As per the disability certificate (Exbt.7) he has been
suffering from locomotor disability since both of his legs have been affected in
consequence of the said accident. It is stated in the disability certificate that
Osteoarthritis in both knee joint has been detected which has caused 60%
disability to the appellant. PW-2, Dr. Dipti Bikas Roy, a locomotive specialist has
stated in her evidence that on 04.09.2014 i.e. after about 10 months of the
accident he assessed the disability of the appellant in the District Disability
Medical Board and found his disability to the extent of 60%. The PW made the
following statement at the tribunal with regard to the affect of such disability:
MAC App No. 55 of 2019
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"He cannot live his normal life due to his disability, even he
cannot do any manual work. He cannot perform any work with
60% disability."
[19] Admittedly the appellant is a day labourer and obviously he would
be unable to pursue his occupation as a result of the disability suffered by him.
The locomotive expert who has been examined by the tribunal as PW-2 has stated
in unequivocal terms that the appellant would not be able to carry on manual
activities due to such disability. Therefore, in the light of the decision of the Apex
Court in Raj Kumar (Supra) this court is of the view that in no case the
functional disability of the appellant would be less than 60% in this case.
Moreover, in view of the decision of the Apex Court in the case of ANANT SON
OF SIDHESHWAR DUKRE (Supra) the tribunal should have applied multiplier of
14 in this case as per Sarla Verma (Supra) for determination of the loss of future
income of the appellant. The submission of learned counsel that the tribunal
should have made 25% addition for determination of the income of the appellant
in terms of the direction of the Apex Court in Pranay Sethi (Supra) is also
acceptable.
[20] Therefore, in the light of the principles laid down by the Apex
Court in the judgments cited to supra and keeping in view the decisions of this
High Court which have been relied upon by learned counsel of the appellant,
compensation granted to the appellant requires re-calculation. The submission of
his counsel that his earning capacity has been totally reduced to 100% is not
acceptable. 60% reduction in his earning capacity on account of permanent
MAC App No. 55 of 2019
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disability certified by the District Disability Medical Board is therefore accepted
and on that basis, the computation of his future loss of income would be as under:
(i). Undisputed monthly income of the appellant assessed by the
tribunal is Rs.7,500/- @ Rs.250 per day x 30 days.
(ii). As per the decision of the Apex Court in the case of Pranay Sethi
(Supra) there would be 25% increase for future prospect since the appellant, a
self employed person, was between the age of 40 to 50 years. Therefore, his
prospective monthly income would come to Rs.9,375/- after addition of said 25%
of the monthly income assessed by the tribunal.
(iii). Looking to his disability, there shall be 60% loss of his earning
capacity. Therefore, loss of his monthly income for the purpose of determination
of compensation would be (Rs.9,375 x 60%) = Rs.5,625/-.
(iv). As a result, loss of his annual income would be (Rs.5,625 x 12) =
Rs.67,500/-.
(v). Since the appellant was 43 years old at the time of accident
multiplier of 14 would be applicable as per decision of the Apex Court in the case
of Sarla Verma (Supra) and as such his total future loss of income would come
to (Rs.67,500 x 14) = Rs.9,45,000/- which will be added by his actual loss of
income for the period of his detention in hospital including the period in which he
could not even partially carry out his occupation.
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(vi). Undisputedly, appellant was a day labourer. The knee joints of both
of his legs were seriously affected as a result of which he suffered 60% locomotor
disability that too was assessed after 10 months of the accident. Evidently, the
appellant was hospitalized on 17.11.2013 and discharged on 10.01.2014 which
means that he was detained in hospital for about 2 months. The extent of his
injury and the disability suffered by him clearly indicate that he could not have
been able to do any work for about a period of 6 months. Therefore, for the said
period of no activity, he would be entitled to (Rs.7,500 x 6) = Rs.45,000/-. After
addition of said Rs.45,000/- with the aforesaid future loss of income the total loss
of income would come to (Rs.9,45,000 + 45,000) = Rs.9,90,000/-.
(vii). The tribunal has awarded Rs.6,750/- as cost of medicine and
medical treatment on the basis of the cash memos and prescriptions submitted by
the claimant. Therefore, the said assessment does not warrant any interference.
(viii). Similarly, tribunal has awarded Rs.43,500/- as conveyance and
attendant which does not also call for any interference.
(ix). For pain, shock and suffering the tribunal has rightly granted
Rs.30,000/- to the appellant.
(x). For future treatment expenses, the tribunal has granted Rs.15,000/-
which also appears to be rational in the totality of the facts and circumstances of
the case.
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(xi). The tribunal failed to appreciate that as a result of the accident, the
appellant became disabled which deprived him of the enjoyment of a full life and
the things and amenities which he would have enjoyed had he not been disabled
by the said accident. This non pecuniary loss should also have been compensated
by the tribunal. This court is of the view that Rs.60,000/- should be awarded to
the appellant under this non pecuniary head for loss of future amenities of life.
(xii). The total compensation after final calculation would therefore be as
under:
Sl. No. Compensation Amount Awarded (in
INR)
i. Loss of future income 9,45,000/-
ii. Loss of actual income 45,000/-
iii. Cost of medicine and medical 6,750/-
treatment
iv. Conveyance and attendant 43,500/-
charges
v. Pain, shock & suffering 30,000/-
vi. Future treatment expenses 15,000/-
vii. Loss of future amenities of life 60,000/-
Total 11,45,250/- (Rupees
eleven lakhs forty five
thousand two
hundred fifty)
[21] Tribunal awarded a sum of Rs.3,65,250/- as compensation to the
appellant and directed that the amount would carry 9% annual interest from the
date of filing of the claim petition till payment. Since the insurance company has
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not challenged the order, the rate of interest on the amount awarded by the
tribunal from the date of filing till payment would remain unchanged. In terms of
the order passed by this court the appellant would receive an additional
compensation of (Rs.11,45,250 - 3,65,250) = Rs.7,80,000/- which will carry 7%
simple interest from today till actual payment. The amount of compensation
already paid by the insurance company in terms of the award of the tribunal, if
any, shall be deducted from the total amount of compensation and the rest would
be paid by depositing the same before the tribunal within 6 weeks from today.
[22] The appeal is accordingly allowed with no order as to costs.
[23] Pending application(s), if any, also stands disposed of.
LC records be sent to the tribunal.
JUDGE
Rudradeep
MAC App No. 55 of 2019
