Sri Biswajit Das vs Md. Jamir Ahmed
2021 Latest Caselaw 323 Tri

                               Page 1 of 9



                     HIGH COURT OF TRIPURA
                       _A_G_A_R_T_A_L_A_
                          Mac App No.70 of 2019
Sri Biswajit Das, S/o. Sri Nagendra Chandra Das, C/o. late Swapan Pal and
Smt. Shyamali Pal of Shibnagar, opposite side of Lotus Club, P.O. Agartala
College, P.S. East Agartala, District- West Tripura.
                                                      ......Appellant(s)
                              VERSUS
1. Md. Jamir Ahmed, S/o. late Abdul Nur, resident of South Manik
Bhandar, P.S. Kamalpur, District- Dhalai. (Owner of vehicle No.TR-04-
3086, Auto Rickshaw).

2. The Divisional Manager, Oriental Insurance Company Limited, Agartala
branch, Kaman Chowmuhani, Central Road, Agartala, P.S. East Agartala,
District- West Tripura. (Insurer of vehicle bearing No.TR-04-3086, Auto
Rickshaw).

3. Sri Abhijit Roy, 07 Noagaon, P.S. Kamalpur, District Dhalai. (Owner of
the vehicle bearing No.TR-01-H-1784 Truck) (Insurer of the vehicle
bearing No.TR-01-H-1784 Truck).
                                                     ......Respondent(s)

For Appellant(s)         :     Mr. Dipak Deb, Advocate.
For Respondent(s)         :    Mr. Biswanath Majumder, Advocate.
Date of Judgment          :    12th March, 2021.
& Order
Whether fit for reporting :    NO.

      HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
                     JUDGMENT & ORDER (ORAL)

This appeal is filed by the original claimant. He seeks

enhancement of the compensation awarded by the Motor Accident Claims

Tribunal, West Tripura, Agartala in Case No. T.S (MAC) 05 of 2016 by the

impugned award dated 29.07.2019.

[2] Brief facts are as under :

On 29.09.2015 the claimant with his family members was

travelling in an auto-rickshaw when it collided with a truck which was

insured by the Oriental Insurance Company Limited, respondent No.2

herein. The claimant received injuries of his right shoulder and other parts

of the body. According to him, he had to take extensive treatment first at

Agartala and thereafter at Vellore and had to undergo multiple operations.

The claimant filed claim petition before the Motor Accident Claims

Tribunal, West Tripura, Agartala claiming compensation of Rs.11,00,000/-

from the owner and insurer of the truck involved in the accident. The

Claims Tribunal held that the accident occurred on account of sole

negligence of the driver of the truck. At the relevant time, the claimant was

employed as a Junior Engineer in the Fisheries Department of the

Government of Tripura and was aged 45 years. The Tribunal awarded

Rs.1,08,207/- for medical treatment, Rs.1,00,000/- for pain, shock and

suffering, Rs.30,000/- for conveyance, special diet and attendant charges

but awarded no amount for loss of income.

[3] According to the counsel for the appellant this award is

inadequate for following reasons :

(i) The claimant had gone to Vellore for further treatment. The

Tribunal while awarding the cost of treatment at Vellore

hospital, did not award any compensation for travelling cost

for the claimant and his wife though air tickets were produced

and exhibited.

(ii) The Tribunal committed a serious error in not awarding

any compensation for loss of income. Counsel argued that the

claimant had suffered 70% disability. He, therefore, should

have been awarded adequate compensation under the head of

loss of income.

[4] On the other hand, learned counsel for the insurance company

opposed the appeal contending that the Claims Tribunal has awarded

adequate compensation. There was no evidence suggesting that the

treatment which the claimant had to undertake at Vellore hospital was not

available at Agartala. He, therefore, cannot claim transportation charges

from the insurance company for his journey to and fro between Agartala

and Vellore. Counsel contended that the claimant was employed as a Junior

Engineer in the Government Department and suffered no cut in salary

either during the actual period of treatment or later on. The Tribunal,

therefore, correctly did not award any compensation for loss of income.

[5] With respect to the air ticket of the claimant and his wife, in

absence of even basic proof of the requirement of the treatment at Vellore

hospital, the claimant cannot be compensated. I have perused the evidence

of the claimant and the documents and do not find any reference of any

nature suggesting that the treatment that the claimant was taking at

Agartala was either insufficient or that further treatment outside the State

was necessary. Under the circumstances, it may be open for the claimant to

choose to be treated in a hospital of his choice and the cost of such

treatment may also be reimbursed as was correctly done by the Tribunal,

nevertheless he cannot claim reimbursement of travel charges.

[6] However, coming to the question of loss of income, in my

opinion, the Tribunal has committed a serious error in not awarding any

compensation. As a Government servant holding regular post, the disability

which the claimant suffered on account of the accident, may not

straightaway reflect in terms of reduction in his salary. Nevertheless, when

the accident victim is being compensated for loss under the head of future

income, what is of significance is his earning capacity. If the earning

capacity is diminished on account of the disability arising out of the

accident, the same must be compensated. The claimant has deposed that he

is unable to do any work with his right arm. Under the circumstances, his

independent movements would be severely restricted. He would not be able

to drive a two wheeler or a motor car and whenever he needs to go out, for

work or for any other purpose; he would have to be driven by somebody

else. The Courts approach this issue from the point of view of the

marketability of the claimant going down instead of precise reduction in

income. The question would be what would be the possibility of the

claimant being re-employed in the same or similar position, were he to lose

his job? Relevant question would also be of his prospects after retirement.

When a Government servant retires at the age of 58 or 60 years, if he is

otherwise in good health, he has a few years of active life still left during

which he can gainfully employ himself. All these factors will have to be

kept in mind while deciding the question of loss of income.

[7] Before I go into the details of such computation, two things

need to be cleared. Firstly, the claimant had not produced proof of his

income at the time of accident before the Tribunal. I had, therefore,

requested the counsel for the appellant to produce on record a copy of the

salary slip that may be issued by the competent authority showing his

income at the relevant time. Accordingly, counsel has produced a salary

statement issued by the Superintendent of Fisheries, Ambassa showing the

monthly salary of the claimant for the month of September, 2015. Since

this is an official document and no serious dispute is raised about its

correction, I have taken it on record. As per this document his gross pay

inclusive of basic, dearness and other allowances was Rs.50,941/- from

which he suffered deductions of Rs.208/- by way of professional tax and

Rs.830/- by way of income tax and Rs.225/- by way of general insurance.

Further deduction of Rs.5,000/- was towards GPF which would be in the

nature of his saving. His net salary though was shown at Rs.44,678/-, we

must add Rs.5,000/- which was by way of a deduction for GPF. This would

bring the sum to Rs.49,678/- per month. However, the deduction of income

tax of Rs.830/- would not cover his full tax liability. If he was earning more

than Rs.50,000/- per month in the year 2015, surely his tax liability would

be much greater than bare Rs.830/- per month. By way of rough and ready

formula, therefore, we may accept the net income of the claimant at the

time of accident at Rs.45,000/- per month after deducting taxes and

insurance premium amount. I have proceeded on the basis of this salary slip

since it is issued by a Government authority and against which even the

insurance company would not be in a position to raise any dispute.

[8] Another area which needs ironing out is the nature of

disability. Before the Claims Tribunal the claimant produced a disability

certificate dated 02.03.2017 issued by the District Disability Medical

Board, Dhalai in which it was provided that the claimant had suffered

locomotor disability of the right arm. There was shortening of the right arm

by one inch and there was post operative stiffness and restricted movement

from elbow, wrist fingers. The disability was assessed at 70%. This

disability was stated to be temporary and the patient was advised

reassessment after five years and thus the validity of the certificate was

shown to be up to 02.03.2022. This Court has been criticizing this practice

of issuing disability certificates with limited validity which causes

enormous difficulties in assessing and awarding compensation in case of

injuries in motor accidents. On 21.01.2021 therefore it was provided that

the claimant shall appear before the concerned District Disability Medical

Board who shall assess his disability and issue a certificate of final

assessment of disability and not for any temporary period. Despite this,

rather unfortunately, once again the medical authority issued a disability

certificate dated 06.02.2021 which would be valid for a period of five

years. In this certificate also it was stated that the claimant suffered from

locomotor disability, post traumatic stiffness of right elbow, wrist with

muscle wasting of the right forearm and shortening of the hand. Disability

was assessed at 75%.

[9] On 18.02.2021, therefore, after noticing that this fresh

certificate also issued with limited validity period, directions were issued

for the concerned authorities to remain present before the Court.

Accordingly on 25.02.2021 the concerned doctors had remained present

and apologized. They also clarified that the patient had suffered disability

which was in relation to his right arm and right upper limb. A copy of this

certificate shall be taken on record.

[10] These two disability certificates dated 02.03.2017 and

06.02.2021 are similar in nature. The accident took place on 29.09.2015.

The second disability certificate was issued on 06.02.2021. Thus, more

than 6 years after the date of accident the medical authorities found that the

claimant was still suffering from the disability. Such disabilities were

shortening of the right arm and stiffness and muscle loss. It is difficult to

appreciate how such disability which has lasted for over six years can be

stated to be temporary. If the condition of the claimant did not improve

after six and half years it defies logic that there is any possibility of

improvement five years later. The shortening of the arm surely is not a

repairable condition and at any rate would not be repaired with passage of

time. I must, therefore, proceed that the disabilities are permanent in nature.

However, the assessment of the disability in terms of percentage will have

to be suitably modified. It was in this context I had recorded the statement

of the doctors that such assessment is in relation to right arm and not body

as a whole. This would be significant because when one awards

compensation for injury under the head of loss of income, what has to be

taken into account is the disability of the claimant as a body as a whole.

Taking rough assessment, such disability may be projected at 15% of the

body as a whole.

[11] We have assessed the net income of the claimant at

Rs.45,000/- per month at the time of accident. Considering that he was in a

permanent Government service and 45 years of age there would be 30%

rise for future income. His income would therefore come to Rs.58,500/-.

15% thereof would be Rs.8775/- per month or Rs.1,05300/- per annum.

Looking to his age multiplier of 14 will be applied as per the decision in

case of Sarla Verma (Smt) and others versus Delhi Transport

Corporation and another reported in (2009) 6 SCC 121. The loss of

income would come to Rs.14,74,200/-. However, the claimant has made a

total claim of Rs.11,00,000/- before the Claims Tribunal. I would therefore

limit the total compensation to the said sum. The Claims Tribunal had

already awarded Rs.2,49,677/- to the claimant as compensation. The

claimant would receive additional compensation of Rs.8,50,323/- in this

appeal which shall be paid with simple interest @ 6.5% from the date of

the claim petition till actual payment. The insurance company shall deposit

the said sum before the Claims Tribunal within two months from today.

Upon such deposit the Claims Tribunal shall release 40% in favour of the

claimant through account payee cheque. Remaining amount shall be

invested in any Nationalized Bank in a fixed deposit of recurring interest

for a period of five years. At the end of the period of five years, the

remaining amount shall be released in favour of the claimant.

[12] Appeal stands disposed of accordingly. Pending application(s),

if any, also stands disposed of. Records may be transmitted to the courts

below.

(AKIL KURESHI), CJ

Dipesh