Tripura High Court
Smt. Jharna Rani Acharjee vs Sri Tapan Saha on 31 January, 2025
HIGH COURT OF TRIPURA
AGARTALA
MAC App. No.49 of 2024
Smt. Jharna Rani Acharjee
W/O: Sri Kartik Acharjee,
Resident of Village Kacharibari, Upendranagar,
P.S. & P.O. - R. K. Pur, Gomati, Tripura, Pin-799105.
------ Appellant
Versus
1. Sri Tapan Saha,
S/O Haridas Saha,
Resident of Hapania, P.S. Amtala & P.O. Hapania,
Agartala, West Tripura, Tripura, Pin-799114.
(Owner & driver of vehicle bearing No.TR-01-E-2006,
Bolero Plus)
2. The New India Assurance Company Limited,
P.S. West Agartala, West Tripura, Tripura, Pin-799001.
(Insurer of vehicle bearing No.TR-01-E-2006, Bolero Plus)
------ Respondents
along with
CO(FA) No.7 of 2024
The New India Assurance Company Limited,
To be represented by Asstt. Manager,
4 Mantribari Road, P.O.-Agartala,
District- West Tripura, Pin-799001.
------ Insurer-Cross Objector Appellant
Versus
1. Smt. Jharna Rani Acharjee
W/O: Sri Kartik Acharjee,
of Kachari Bari, Upendranagar,
P.S. - R. K. Pur, Gomati, Tripura.
------ Claimant-appellant-Respondents
2. Sri Tapan Saha,
S/O. Sri Haridas Saha,
Resident of Hapania, P.S.-Amtali
Agartala, District - West Tripura.
(Owner-cum-Driver of offending vehicle No.TR-01-E-2006
Bolero Plus)
------ Owner-Respondents
In MAC App. No.49 of 2024
For Appellant(s) : Mr. J. Majumder, Adv.
For Respondent(s) : Mr. A. K. Deb, Adv.
In CO(FA) No.7 of 2024
For Cross-objector(s) : Mr. A. K. Deb, Adv.
Page 2 of 21
For Respondent(s) : Mr. J. Majumder, Adv.
Date of hearing
and delivery of
Judgment & Order : 31.01.2025
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order(Oral)
This appeal under Section 173 of M.V. Act is preferred by the
claimant-appellant for enhancement of the award dated 19.03.2024
delivered by Learned Member, Motor Accident Claims Tribunal No.2,
Gomati District, Udaipur in connection with case No. TS(MAC) No.36
of 2020. The connected CO(FA) No.7 of 2024 is also preferred by the
cross-objector-Insurance Company under Order 41 Rule 22 of CPC
read with Section 151 of CPC against the appeal bearing No.MAC
App. No.49 of 2024 filed by the respondent-claimant. Both the
matters are taken up together for hearing and accordingly, by this
judgment both the matters are disposed of.
2. Heard Learned Counsel, Mr. J. Majumder appearing on
behalf of the claimant-appellant and also heard Learned Counsel, Mr.
A. K. Deb appearing on behalf of the objector.
3. Before proceeding with the merit of the appeal, let us
discuss about the subject matter of the claim petition for which this
present appeal has arisen. The appellant as claimant filed one
application under Section 166 of M.V. Act to the Learned Tribunal
below claiming compensation due to injury suffered by a road traffic
accident which took place on 27.11.2019 at about 11:30 am at
Rajarbag Jeep Stand, Udaipur under R. K. Pur P.S. The claimant-
Page 3 of 21
appellant in her claim petition stated that on 27.11.2019 at about
11:30 am when the claimant-appellant, Smt. Jharna Rani Acharjee
was about to board the vehicle bearing registration No.TR-01-E-2006
(Bolero Plus) for proceeding towards Agartala from Udaipur Jeep
Stand, that time, she had gone to the backside of the vehicle when
the said vehicle dashed against her resulting which she sustained
trauma on left eye and face following severe orbital fracture left side
and multiple bleeding injuries all over her body. Soon after the
accident, the victim was taken to Gomati District Hospital but
considering the gravity of injuries, she was referred to AGMC & GBP
Hospital, Agartala wherein she was admitted and treated up to
16.12.2019 as an indoor patient. Again, on 23.12.2019, the
claimant-appellant was referred to Susrat Eye Foundation &
Research Centre, Kolkata for better treatment. On 28.12.2019, the
claimant-appellant had visited the said Research centre at Kolkata
wherein several X-ray and medical examinations were done. After
prolonged treatment also, the claimant-appellant did not recover
from injuries and she had lost her eye sight. The claimant-appellant
also averred that due to accident she had become permanently
disabled and lost her working capacity and longevity of life. On this
issue, a written ejahar was filed to O/C, R. K. Pur PS which was
registered as R.K. Pur case No.200 of 2019 under Section 279/338 of
IPC and also under Section 177/187 of M.V. Act. It was also stated
that the accident took place due to rash and negligent driving of
vehicle by the driver of the said vehicle bearing No.TR-01-E-2006.
Hence, the appellant as claimant filed the claim petition claiming
compensation.
Page 4 of 21
The opposite parties contested the proceeding by filing
written statement. The O.P. No.1 being the owner-cum-driver of the
vehicle bearing No.TR-01-E-2006 (Bolero Plus) took the plea that
there was no rash and negligent act on his part for the said accident
and, as such, he denied the averments made by the claimant-
appellant in her claim petition and further submitted that on the
alleged day, the vehicle was duly insured with the respondent-
Insurance Company. The respondent-Insurance Company also
denied the assertions made by the appellant-claimant in the claim
petition and submitted that the claim petition was subjected to strict
proof by the claimant-appellant.
Upon the pleading of the parties, Learned Tribunal below
framed the following issues:
i) Whether Smt. Jharna Rani Acharjee, W/O Sri
Kartik Acharjee sustained injuries in a road
traffic accident on 27.11.2019 at aoubt 10:30 am
at Udaipur Rajarbag Jeep Stand, under R. K. Pur
due to rash and negligent driving by driver of
the vehicle bearing No.TR-01-E-2006 (Bolero
Plus).
ii) Is the claimant entitled to be compensated
under Motor vehicles Act, 1988? If so, to what
extent and who shall be liable to pay such
compensation?
Before the Learned Tribunal below, the claimant-appellant
was examined herself as PW-1 and she also adduced three other
witnesses and in addition to that, she also proved some documents
in support of her claim petition which were marked as Exhibits.
On the other hand, the owner-cum-driver of the vehicle
bearing No.TR-01-E-2006 examined himself as OPW-1 and relied
upon some documents which were also marked as Exhibits.
Page 5 of 21
For the sake of convenience, the name of the witnesses and
the documents of both the sides are mentioned hereinbelow:
Name of the witnesses of the claimant-appellant
1. PW-1: Smt. Jharna Rani Acharjee
2. PW-2: Sri Paritosh Barman
3. PW-3: Sri Asish Pal
4. PW-4: Dr. Debasree Debbarma
Exhibits of the claimant-appellant
1. Exbt. 1/1 to 1/8: Certified copy of FIR and
Ejahar, seizure list and injury report in 8(eight)
sheets.
2. Exbt.2: Certified copy of referral in 1(one) sheet.
3. Exbt.3/1 and 3/2: Certified copy of Final Report
of R. K. Pur case No.200/2019 in 2(two) sheets.
4. Exbt.4: Certified copy of charge-sheet in 1(one)
sheet.
5. Exbt.5: Disable certificate in 1(one) sheet.
6. Exbt.6: Discharge certificate in 1(one) sheet.
7. Exbt. 7/1 to 7/20: Prescriptions in original in
20(twenty) sheets.
8. Exbt.8/1 to 8/18: Cash memos in original in
18(eighteen) nos.
9. Exbt.9(series): CT Scan report in original in
2(two) sheets.
10. Exbt.10: Original income certificate in 1(one)
sheet.
11. Exbt.11/1 to 11/10: Air ticket and Boarding
pass in original in 10(ten) sheets.
12. Exbt.12 and Exbt. 13: Photocopy of Aadhaar
Card and Voter ID Card which were exhibited
after comparing with the original.
Name of the witness of Opposite Party:
1. OPW-1: Sri Tapan Saha
Exhibits of the Opposite Party:
1. Exhibit A: Photocopy of RC bearing registration
No.TR-01-E-2006 which was exhibited after
comparing with the original.
2. Exhibit B: Photocopy of driving licence in the
name of OPW 1 which was exhibited after
comparing with the original.
3. Exhibit C: Photocopy of Insurance Policy
covering the period from 05-09-2019 to 04-09-
2020 which was exhibited after comparing with
the original.
Finally, on conclusion of enquiry, Learned Tribunal below
allowed the claim petition filed by the claimant-appellant and
awarded a sum of Rs.2,77,557/- and fastened the liability of
Page 6 of 21
payment of compensation upon the Insurance Company. The
operative portion of the judgment and award delivered by Learned
Tribunal below is mentioned herein as under:
ORDER
19. In the result, it is hereby ordered that the
claimant-petitioner is entitled to get compensation
of Rs.2,77,557/- (Rupees two lacs seventy seven
thousand five hundred fifty seven) only. The OP
No.2 i.e. New India Assurance Company Limited,
the insurer of the offending vehicle bearing
Registration No.TR-01-E-2006 (Bolero Plus) is
directed to make the payment of compensation to
the claimant-petitioner within 30(thirty) days from
today along with interest thereon @ 9% per annum
from the date of filing of claim petition, i.e.
18.11.2020 till payment/realization of the same.
20. Supply a copy of the award to the parties free of
cost.
21. Also send a copy of this judgment to the OP
No.2 i.e. New India Assurance Company Limited,
Agartala Branch through their Official email ID as
earliest to do the needful.
22. The case is disposed of on contest.
Challenging the judgment/award, the claimant-appellant as
appellant has preferred this appeal and the respondent-Insurance
Company as objector has filed objection under Order 41 Rule 22 of
CPC against the appeal preferred by the claimant-appellant.
4. In course of hearing of argument, Learned Counsel for the
claimant-appellant first of all drawn the attention of this Court that in
the claim petition, the claimant-petitioner claimed compensation for
an amount of Rs.51,00,000/- but the Learned Tribunal below without
appreciating the evidence on record determined lesser amount of
compensation. He further stated that the monthly income of the
claimant-appellant was Rs.10,000/- but the Tribunal only assessed
the monthly income of the claimant-appellant at the rate of
Rs.6000/- per month i.e. Learned Tribunal below counted 20 working
days and determined the daily wages of the appellant at Rs.300/-
per day which was too less considering the market condition on that
relevant point of time and Learned Counsel, further submitted that
before the Learned Tribunal below, the claimant-appellant adduced
the Doctor who issued the disability certificate and the Medical
Officer opined that the appellant sustained permanent disability but
the Learned Tribunal below only determined 40% disability at the
time of determination of compensation resulting which the Learned
Tribunal below at the time of delivery of judgment awarded very
lesser amount. He further submitted that due to the accident, the
appellant had to sustain huge amount for her treatment but the
Learned Tribunal below at the time of determination of compensation
did not allow attendant charges, transportation charges resulting
which very minimum amount has been awarded which do not
commensurate with the actual expenditure incurred by the claimant-
appellant. Finally, Learned Counsel relied upon the judgment of
Hon'ble Supreme Court of India reported in 2011(1) SCC 343 and
referring different paragraphs, Learned Counsel submitted that in
view of the principles of law laid down by the Hon'ble Apex Court,
the present appellant needs to be awarded more enhanced amount
which the Learned Tribunal below failed to consider and urged for
awarding enhanced amount as per claim petition modifying the
award.
5. On the other hand, Learned Counsel, Mr. A. K. Deb
appearing for the objector-Insurance Company in course of hearing
of argument drawn the attention of the Court that the Learned
Tribunal below failed to appreciate the percentage of disability
sustained by the claimant-appellant and awarded maximum amount
which the claimant-appellant was not entitled to and furthermore,
the judgment and award of the Learned Tribunal below suffers from
serious infirmities. In addition to that, Learned Counsel for the
objector-Insurance Company relying upon the aforesaid judgment
submitted that in the said judgment, Hon'ble the Apex Court
observed as to how the compensation in respect of disability is to be
determined/calculated by the Tribunal. So, Learned Counsel finally
on conclusion of his argument submitted that there is no merit in this
appeal and urged for dismissal of this appeal.
6. I have heard argument of both the sides and gone through
the record of the Learned Tribunal below and the judgment and
award delivered by the Learned Tribunal below. Admittedly, there is
no dispute on record in this case regarding the fact of sustaining
injury by the claimant-appellant due to road traffic accident on the
alleged date and time. Now, here in this appeal, this Court is to see
as to whether the compensation awarded by the Learned Tribunal
below was proper or not. In this regard, both the parties in course of
hearing of argument relied upon the judgment of Hon'ble Supreme
court of India reported in 2011 (1) SCC 343 [Raj Kumar V. Ajay
Kumar & Anr.]. Learned Tribunal below at the time of delivery of
judgment awarded Rs.14,450.56/- towards expenditure incurred for
the purpose of the treatment in favour of the claimant-appellant. In
addition to that, Learned Tribunal below awarded Rs.16,306.40/- for
the purpose of flight tickets and boarding passes and towards loss of
future income, Learned Tribunal below awarded Rs.25,200/- and
towards temporary disability, Rs.2,01,600/- and also awarded
Rs.20,000/- towards pain and sufferings. In total, awarded
Rs.2,77,557/- in favour of the claimant-appellant.
7. Learned Counsel, Mr. Majumder in course of hearing
submitted that the amount awarded Rs.14,450.56 for the purpose of
treatment and for the purpose of air tickets, Rs.16,306.40, and there
is no dispute on that because the claimant-appellant could not
adduce any other documents for drawing inference by the Tribunal
below. But in respect of determination of compensation towards loss
of future income and compensation under temporary disability,
Learned Tribunal below awarded very meagre amount including the
amount awarded Rs.20,000/- towards pain and sufferings which was
too less and beyond the law delivered by the Hon'ble Apex Court.
Hon'ble the Apex Court in the aforesaid judgment in para No.6
observed as to how the compensation be determined in case of
personal injury. For convenience, the said relevant paragraph is
mentioned here as under:
"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."
From the aforesaid para, it appears that the compensation
can be awarded in respect of pecuniary damages and general
damages. Pecuniary damages includes expenses incurred due to
treatment, hospitalization, medicines, transportation, nourishing food
including miscellaneous expenditure. Loss of earning covers (a) loss
of earning during the period of treatment, (b) loss of earning on
account of permanent disability, and future medical expenses and
under the head non-pecuniary damages, Hon'ble the Apex Court
observed that it may be termed as general damage which would
cover (i) damages for pain, suffering and trauma (ii) loss of
amenities (iii) Loss of expectation of life.
In course of hearing, Learned Counsel for the appellant
submitted that the claimant-appellant sustained permanent disability
but the Learned Tribunal below at the time of determination of
compensation in para 16(1) awarded Rs.2,01,600/- as compensation
under 'temporary disability' which was totally improper and not in
accordance with the guideline laid down by the Hon'ble Apex Court in
the aforenoted case.
8. For the sake of convenience, let us discuss the evidence on
record of the parties. As already stated, the claimant-appellant and
OP No.1 has adduced oral/documentary evidence on record. The
claimant-appellant in her examination-in-chief in affidavit supported
her version as mentioned in the claim petition. She further stated
that due to accident she sustained permanent disability and her
monthly income was Rs.10,000/- per month. She produced one
certificate but that was not considered by the Learned Tribunal
below. During cross-examination by the contesting OPs save and
except denial nothing came out relevant. Similarly, PW-2 Paritosh
Barman in his examination-in-chief in affidavit tried to support the
version of the claimant-appellant in her claim petition but during
cross-examination by the opposite parties save and except denial
nothing came out relevant. Similarly, PW-3 also deposed in the same
manner. During cross-examination, save and except denial nothing
came out relevant. Now, main part of evidence is evidence of PW-4,
Dr. Debasree Debbarma because in course of hearing of argument,
Learned Counsel for the appellant laid emphasis to the evidence of
PW-4 and drawn the attention of the Court that the Learned Tribunal
below did not consider the evidence of said PW-4 at the time of
determination of compensation. Said PW-4, Dr. Debasree Debbarma
deposed that on 27.05.2022, he was posted in the Gomati District
Hospital as a Medical Officer and he was the member of Eye
Department for issuing disability certificate and on that day, one
disability certificate has been issued in favour of Jharna Rani
Acharjee as she was having low vision and past history of trauma on
left eye and she has sustained 40% temporary disability as per the
guidelines under RPwD Act, 2016 and the certificate recommended
for five years was valid till 27.05.2027. He further identified the
signature in the disability certificate which was marked as Exbt.5/1.
He further stated that there was no possibility to cure once anyone
lost eye to the extent of 40% disability and also stated that initially
they issued certificate for 5 years and later on it was extended time
to time by the authority and the trauma suffered by the claimant-
appellant is permanent in nature. This witness was not cross-
examined by the contesting opposite parties before the Tribunal. The
evidence of OP No.1 is not required to be discussed here as the same
is not disputed.
9. Learned Tribunal below determined the disability of the
claimant-appellant as 'temporary disability' relying upon Exbt.-5. For
the sake of convenience, the relevant portion of the disability
certificate is extracted herein below:
Disability Certificate
Issuing Medical Authority, Gomati, Tripura
Certificate No.: TR0730719820034218 Date: 27/05/2022
This is to certify that I/we have carefully examined Smt.
Jharna Rani Acharjee, Daughter of Shri Pran Gopal
Acharjee, Date of Birth 01/01/1982, Age 40, Female,
Registration No.1607/00000/2205/1865617, resident of
House No.Mirza Upendranagar, Kakraban, Udaipur-
799105, Sub District Kakraban, District Gomati, State/UT
Tripura, whose photograph is affixed above, and I am/we
are satisfied that:
(A) She is a case of Low Vision
(B) The diagnosis in her case is WNL, POST TRAUMATIC
(C) She has 40% (in figure) Forty percent (in words)
Temporary Disability in relation to her as per the
guidelines (Guidelines for the purpose of assessing the
extent of specified disability in a person included under
RPwD Act, 2016 notified by Government of India vide S.O.
76(E) dated 04/01/2018.
This certificate recommended for 5 year(s), and therefore
this certificate shall be valid till 27/05/2027.
It appears that the certificate was issued on 27.05.2022 and
the same was valid till 27.05.2027 for a period of 05(five) years. The
alleged accident took place on 27.11.2019. The claimant-appellant
could not produce any other disability certificate of the earlier period
except Exbt.-5.
10. Hon'ble the Apex Court in the aforesaid judgment in para
Nos.8 to 12 observed as under:
"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 activites 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 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 and Yadava Kumar v.
National Insurance Co. b 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."
From the aforesaid paragraphs, it appears that how the
disability is to be ascertained by the Tribunal. Here in the case at
hand, based on Exbt.-5 i.e. the disability certificate, the Tribunal
came to the observation that the claimant-appellant sustained 40%
temporary disability but if we go through the evidence of PW-4 who
although admitted the issuing of certificate by him as one of the
member and identified his signature marked as Exbt.5/1 but in the
last part of his evidence, he stated that the trauma suffered by the
appellant was permanent in nature.
11. Learned Counsel for the appellant also referred the
schedule-I part-II of the Employees compensation Act, 1923 wherein
serial No.25, the percentage of loss of earning capacity is shown as
40% and also referred the provision of RPwD Act, 2016 and
submitted that the Learned Tribunal below at the time of
determination of compensation failed to appreciate the said
percentage of disability.
12. In course of hearing, Learned Counsel for the objector, Mr.
A. K. Deb in support of his contention referred para Nos.16 and 17 of
the said judgment which is also reproduced herein below:
"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 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."
Referring the same, Learned Counsel for the objector
submitted that Learned Tribunal below failed to appreciate the
percentage of disability at the time of determination of compensation
in view of the principle of law laid down by the Hon'ble Apex Court.
13. In this regard, Hon'ble the Apex Court in the aforenoted
judgment in para No.19(iii) further observed as under:
"19. We may now summarise the principles
discussed above:
(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."
From the above, it appears that in view of the principle of
law laid down by the Hon'ble Apex Court, the loss of earning capacity
is to assessed by the Tribunal with reference to the evidence in
entirety because the Medical Officer can only say the extent of
permanent disability but simply on the basis of evidence of Medical
Officer, there is no scope on the part of the Tribunal to rely upon the
said evidence in entirety rather Tribunal is to assess the
compensation after considering the evidence on record.
14. We have already referred the evidence of PW-4 i.e. the
doctor who examined the claimant-appellant. The claimant-appellant
in her examination-in-chief in affidavit in para No.4 stated that due
to accident she is not able to do any work as he sustained injury to
her one of the eye which according to PW-4 was permanent in nature
although the certificate recommended showed to be temporary
disability with an observation of 'low vision' and 40% temporary
disability as per the guidelines of the RPwD Act, 2016 issued by the
Government of India vide S.O. 76(E) dated 04.01.2018. Although
PW-4 was not cross-examined by the cross-objector and since the
claimant-appellant relied upon said Exbt.-5, so, in view of the
provision provided under Section 92 of the Evidence Act, there is no
scope to disbelieve Exbt.-5 because the appellant relied upon said
Exbt.-5 and it was not the case of the appellant that Exbt.-5 was not
a genuine one because in this case, if the evidence of PW-4 is relied
upon then there is very least scope to rely upon Exbt.-5 in total and
it was not the case of the appellant that Exbt.-5 was disputed rather
the appellant proved the said document in support of her claim
petition which was marked as Exbt.-5 after admission by both the
sides. The contesting parties before the Learned Tribunal below did
not cross-examine PW-4 nor disputed the signature of PW-4 on
Exbt.-5. Now, at the stage of appeal as raised by Learned Counsel
for the objector, there is no scope to dispute the evidence of PW-4
and also the genuineness of Exbt.-5. So, the submission of Learned
Counsel for the objector cannot be accepted at this stage.
15. Now, under the head disability, the Learned Tribunal below
calculated the amount as under:
i) Annual Income-Rs,1,00,800/-
ii) 40% temporary disability on the aforesaid income -
Rs.40,320/-
iii) 40% temporary disability for five years as recommended
by the board-Rs.40,320/- x5=Rs.2,01,600/-
The Learned Tribunal below also awarded loss of future
income at Rs.25,200/- which in my considered view, the said amount
of calculation was not in accordance with the guideline of the Hon'ble
Apex Court in aforenoted judgment. The appellant stated that she
was a tailor by profession and her monthly income was Rs.10,000/-
although the document relied upon by her was not accepted by the
Tribunal as the author of such document was not produced by the
claimant-appellant. The Tribunal below at the time of determination
of compensation decided the working days of the appellant only for a
period of 20 days in a month at the rate of Rs.300/- per day i.e.
Rs.6,000/-, which in my considered view, that was not proper. The
accident took place in the year 2019 and as a shopkeeper or an
employee, she might have worked 25 days in a month excluding the
holidays and considering the market condition of that relevant point
of time prior to accident her daily wages ought to have taken into
consideration at a minimum level of Rs.400/- per day. Situated thus,
her monthly income can be easily calculated at Rs.10,000/- per
month (Rs.400/- per day x 25) which the Learned Tribunal below has
failed to consider at the time of delivery of judgment. Thus, the
monthly income of the appellant is assessed to Rs.10,000/- per
month and with that amount, 40% would be added as future
prospects. Thus, the monthly income would be treated as
Rs.14,000/-. The claimant was prevented from doing her normal
works for a period of three months, in that situation, the loss of
future income would be around Rs.42,000/- (Rs.14,000/- x 3) which
the appellant is entitled to be awarded. In addition to that, since the
appellant relied upon Exbt.-5 and also at the same time, relied upon
the evidence of PW-4 and it was not the case the appellant that she
did not rely upon Exbt.-5 i.e. the disability certificate, so, at this
stage, there is no scope either by the appellant or by the objector to
disbelieve that document in view of the provision of Section 92 and
94 of the Indian Evidence Act and furthermore, from the facts and
circumstances of the case, there is also no scope to disbelieve that
the present appellant become permanently disabled to do any job.
However, since the monthly income is modified to Rs.14,000/-, so,
the compensation under the head of temporary disability would be
((Rs.14,000x12)x40%)x5 =(Rs1,68,000/-x40%)x5 =Rs.67,200/-x5
=Rs.3,36,000/- as recommended by the medical board which the
appellant will be entitled in this case. In addition to that, the
appellant will also be entitled to Rs.1,00,000/- towards the head
'pain and sufferings' in place of Rs.20,000/- awarded by the Tribunal
below and furthermore, it appears that the appellant was under
treatment with effect from 27.11.2019 to 16.12.2019 and thereafter,
with effect from 28.12.2019 to 04.01.2020 i.e. 28 days but no
amount was awarded to her for attendant charges by the Tribunal,
so, the appellant is also entitled to two attendants per day at the
rate of Rs.600/- per day i.e. Rs.1200/- for the aforesaid 28 days and
on calculation, the amount comes to Rs.33,600/-. So, this amount of
Rs.33,600/- is also awarded in favour of the appellant for the
purpose of attendant charges under the head pecuniary damages. As
the appellant could not place any other documents in support of her
treatment and for the purpose of expenses relating to journey
sustained by her and in course of hearing, Learned Counsel for the
appellant could not submit anything in this regard. So, the said
amount is also concurred by this Court without any interference.
Thus, after hearing both the sides, it appears that in total the
appellant would be entitled to (Rs.42,000/- + Rs.3,36,000/- +
Rs.1,00,000/- + Rs.33,600/- + Rs.14,450.56/- + Rs.16306.40/-)
=Rs.5,42,356.96/- in this case from the Insurance Company.
Since there was no dispute on record regarding liability of
payment of compensation by the objector-Insurance Company, so,
the objector-Insurance Company will be under legal obligation to pay
the said amount to the claimant-appellant. In course of hearing,
Learned Counsel for the appellant submitted that the awarded
amount as per Judgment and award of Tribunal has already been
paid by the objector-Insurance Company to the claimant-appellant.
So, the balance amount as per judgment passed by this Court shall
have to be paid by the objector-Insurance Company to the claimant-
appellant.
16. In the result, the appeal filed by the claimant-appellant is
partly allowed and the CO(FA) filed by the objector-Insurance
Company stands rejected being devoid of merit. The judgment and
award dated 19.03.2024 is modified/enhanced to the extent that the
New India Assurance Company Limited shall pay the total amount of
compensation as per judgment passed by this Court to her
amounting to Rs.5,42,356.96/- along with 9% interest as already
awarded with effect from the date of filing claim petition i.e.
18.11.2020 to till the date of realization after deducting the amount,
if already been paid by the Insurance Company to the appellant as
per earlier award dated 19.03.2024 made by the Learned Tribunal
below within a period of two months from the date of passing of this
judgment/award.
With this observation, the appeal and the connected CO(FA)
are disposed of. The balance amount shall be deposited by the
objector-Insurance Company to the Registry of the High Court within
a period of 02(two) months from today.
Supply a copy of this judgment/order to the Learned Counsel
for the claimant-appellant for information. Also, a copy of this
judgment be supplied to the Learned Counsel for the objector-
Insurance Company for information and compliance.
Send down the LCR along with a copy of this judgment.
Pending applications(s), if any, also stands disposed of.
JUDGE
MOUMITA MOUMITA DATTA
DATTA -08'00'
Deepshikha
