"20. It is ordered that, a total amount of
Rs.21,18,000/-(Rupees Twenty one Lakh eighteen
thousand) is awarded in favour of the petitioner as
compensation. The OP No.2, the The United India
Insurance Company Limited, the insurer of the
vehicle bearing registration TR-01-Y-7078
(Achiever) is hereby directed to pay the
compensation as awarded. The OP No.2, is also
directed to pay the interest @ 8% per annum on
total awarded sum from the date of filing of this
petition i.e. on 31.01.2018 till the date of
realization. Sixty(60) percent of the awarded
amount is to be fixed deposited for five years and
rest amount of compensation is to be released in
favour of the claimant in his bank account.
21. Thus, the claim petition is allowed on contest.
22. Let a copy of this award be supplied to the
parties concerned on free of cost."
8. I have gone through the judgment/award delivered by
the Learned Tribunal below very meticulously. It appears that in
11. Sarla Verma and Ors. v. Delhi Transport Corporation
and Anr. reported in 2009 AIR SCW 4992.
On perusal of the judgment, it appears that in para
13.3 of the judgment Learned Tribunal below came to the
finding that the monthly income of the respondent-claimant was
Rs.15,000/- per month. But surprisingly, no reason was given
by the Learned Tribunal below as to how the Learned Tribunal
below assessed the monthly income of the respondent-claimant
at Rs.15,000/-. Although the respondent-claimant took the plea
that he is a Government servant but in this regard no certificate
was adduced before the Learned Tribunal below and no monthly
income certificate of the respondent-claimant was adduced by
the respondent-claimant in support of his claim petition before
the Tribunal. The purpose of the Claims Tribunal is to determine
the "just and fair" compensation but in this case without
assigning any specific reasons the Tribunal has determined the
monthly income at Rs.15,000/- which in the considered opinion
of this Court was not proper.
9. Further, regarding the issue of determination of
disability, it appears that Learned Tribunal below relied upon
the evidence of PW-2, Dr. D. B. Roy who identified the disability
certificate who stated that on 19.06.2019 he along with Dr.
Ishita Guha examined the respondent-claimant Barendra
Debbarma and found that he was suffering from 60% locomotor
disability on his right leg and identified the disability certificate
which was marked as Exhibit-7.
During cross-examination, he stated that the said
certificate was issued for a period of 5(five) years and after 5
years it can be said as to whether the disability was permanent
or temporary. He could not say what will be the condition of the
respondent-claimant after 19.06.2029.
10. However, relying upon the aforesaid citations, Learned
Tribunal below assessed 100% permanent disability which was
also not proper. In this regard, in Raj Kumar(supra) wherein in
para No.8 to 20, Hon'ble the Supreme Court of India further
observed as under:
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 activities 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 : (2010) 3 SCC (Cri) 1258
: (2010) 10 Scale 298] and Yadava Kumar v.
National Insurance Co. Ltd. [(2010) 10 SCC
341 : (2010) 3 SCC (Cri) 1285 : (2010) 8
Scale 567] )
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 disability
(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.
14. For example, if the left hand of a claimant
is amputated, the permanent physical or
functional disablement may be assessed
around 60%. If the claimant was a driver or a
carpenter, the actual loss of earning capacity
may virtually be hundred per cent, if he is
neither able to drive or do carpentry. On the
other hand, if the claimant was a clerk in
government service, the loss of his left hand
may not result in loss of employment and he
may still be continued as a clerk as he could
perform his clerical functions; and in that
event the loss of earning capacity will not be
100% as in the case of a driver or carpenter,
nor 60% which is the actual physical
disability, but far less. In fact, there may not
be any need to award any compensation
under the head of "loss of future earnings", if
the claimant continues in government service,
though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes
the injured claimant may be continued in
service, but may not be found suitable for
discharging the duties attached to the post or
job which he was earlier holding, on account
of his disability, and may therefore be shifted
to some other suitable but lesser post with
lesser emoluments, in which case there
should be a limited award under the head of
loss of future earning capacity, taking note of
the reduced earning capacity.
15. It may be noted that when compensation
is awarded by treating the loss of future
earning capacity as 100% (or even anything
more than 50%), the need to award
compensation separately under the head of
loss of amenities or loss of expectation of life
may disappear and as a result, only a token or
nominal amount may have to be awarded
under the head of loss of amenities or loss of
expectation of life, as otherwise there may be
a duplication in the award of compensation.
Be that as it may.
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.
18. The Tribunal should also act with caution,
if it proposed to accept the expert evidence of
doctors who did not treat the injured but who
give "ready to use" disability certificates,
without proper medical assessment. There
are several instances of unscrupulous doctors
who without treating the injured, readily give
liberal disability certificates to help the
claimants. But where the disability
certificates are given by duly constituted
Medical Boards, they may be accepted subject
to evidence regarding the genuineness of
such certificates. The Tribunal may invariably
make it a point to require the evidence of the
doctor who treated the injured or who
assessed the permanent disability. Mere
production of a disability certificate or
discharge certificate will not be proof of the
extent of disability stated therein unless the
doctor who treated the claimant or who
medically examined and assessed the extent
of disability of the claimant, is tendered for
cross-examination with reference to the
certificate. If the Tribunal is not satisfied with
the medical evidence produced by the
claimant, it can constitute a Medical Board
(from a panel maintained by it in consultation
with reputed local hospitals/medical
colleges) and refer the claimant to such
Medical Board for assessment of the
disability.
19. We may now summarise the principles
discussed above:
(i) All injuries (or permanent disabilities
arising from injuries), do not result in
loss of earning capacity.
(ii) The percentage of permanent
disability with reference to the whole
body of a person, cannot be assumed to
be the percentage of loss of earning
capacity. To put it differently, the
percentage of loss of earning capacity is
not the same as the percentage of
permanent disability (except in a few
cases, where the Tribunal on the basis of
evidence, concludes that the percentage
of loss of earning capacity is the same as
the percentage of permanent disability).
(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.
(iv) The same permanent disability may
result in different percentages of loss of
earning capacity in different persons,
depending upon the nature of profession,
occupation or job, age, education and
other factors.
20. The assessment of loss of future earnings
is explained below with reference to the
following illustrations:
Illustration A.-- The injured, a workman, was aged
30 years and earning Rs. 3000 per month at the
time of accident. As per doctor's evidence, the
permanent disability of the limb as a consequence
of the injury was 60% and the consequential
permanent disability to the person was quantified
at 30%. The loss of earning capacity is however
assessed by the Tribunal as 15% on the basis of
evidence, because the claimant is continued in
employment, but in a lower grade. Calculation of
compensation will be as follows:
(a) Annual income before the : Rs. 36,000
accident
(b) Loss of future earning per
annum (15% of the prior
annual income) : Rs. 5400
(c) Multiplier applicable with
(d) Loss of future earnings: (5400 : Rs. 91,800
× 17)
Illustration B.-- The injured was a driver aged 30
years, earning Rs. 3000 per month. His hand is
amputated and his permanent disability is assessed
at 60%. He was terminated from his job as he could
no longer drive. His chances of getting any other
employment was bleak and even if he got any job,
the salary was likely to be a pittance. The Tribunal
therefore assessed his loss of future earning
capacity as 75%. Calculation of compensation will
be as follows:
(a) Annual income prior to the : Rs. 36,000
accident
(b) Loss of future earning per
annum (75% of the prior
annual income) : Rs. 27,000
(c) Multiplier applicable with
(d) Loss of future earnings: : Rs. 4,59,000
(27,000 × 17)
Illustration C.-- The injured was aged 25 years and
a final year Engineering student. As a result of the
accident, he was in coma for two months, his right
hand was amputated and vision was affected. The
permanent disablement was assessed as 70%. As
the injured was incapacitated to pursue his chosen
career and as he required the assistance of a
servant throughout his life, the loss of future
earning capacity was also assessed as 70%. The
calculation of compensation will be as follows:
(a) Minimum annual income Rs. 60,000
he would have got if had
been employed as an
engineer :
(b) Loss of future earning
per annum (70% of the
expected annual income) : Rs. 42,000
years)
(d) Loss of future earnings: : Rs.7,56,000
(42,000 × 18)
[Note.-- The figures adopted in Illustrations (A) and
(B) are hypothetical. The figures in Illustration (C)
however are based on actuals taken from the
decision in Arvind Kumar Mishra [(2010) 10 SCC
254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale
298] .]
From the aforesaid observation of the Hon'ble Apex
Court it appears that Hon'ble the Supreme Court in deciding the
case has given certain observation as to how the disability is to
be ascertained which the Learned Tribunal below in my
considered opinion has failed to appreciate properly at the time
of delivery of judgment.
It is also to be noted here that the manner in which the
Learned Tribunal determined the percentage of disability was
not in accordance with the guidelines framed by the Hon'ble
Apex Court in the aforenoted judgment which needs to be re-
adjudicated for proper adjudication of the claim petition.
11. Furthermore, regarding adducing additional evidence let
us see the relevant provision of Order XLI Rule 27 of CPC which
provides as under:
27. Production of additional evidence in
Appellate Court.-
(1) The parties to an appeal shall not be
entitled to produce additional evidence,
whether oral or documentary, in the
Appellate Court. But if-
(a) the Court from whose decree the
appeal is preferred has refused to
admit evidence which ought to have
been admitted, or
(aa) the party seeking to produce
additional evidence, establishes that
notwithstanding the exercise of due
diligence, such evidence was not within
his knowledge or could not, after the
exercise of due diligence, be produced
by him at the time when the decree
appealed against was passed, or
(b) the Appellate Court requires any
document to be produced or any
witness to be examined to enable it to
pronounce judgment, or for any other
substantial cause,
the Appellate Court may allow such
evidence or document to be produced, or
witness to be examined.
(2) Wherever additional evidence is allowed
to be produced by an Appellate Court, the
Court shall record the reason for its
admission.
From the aforesaid provision, it appears that there is
scope for permitting to adduce additional evidence under
certain circumstances by the Appellate Court.
12. Admittedly, before the Learned Tribunal below the
respondent-claimant could not adduce those documents which
he intends to adduce at this stage as because the treatment
was going on and furthermore some bills which ought to have
been produced by the respondent-claimant before the Learned
Tribunal at the time of enquiry but those documents could not
produced before the Learned Tribunal because at the time of
filing the claim petition he was still undergoing treatment. It is
on record that any specific prescription could not be submitted
by him along with the documents for which he has incurred the
expenses but it appears that those documents were relating to
his treatment to Orthopaedics department and the separate
medical bills amounting to Rs.21,260/- and the lodging bills
amounting to Rs.7,250/- could not be produced according to
the respondent-claimant as those bills were misplaced and all
the bills have been submitted as Annexure-1 with the
application petition. After hearing both the sides and also after
going through the judgment and award of the Learned Tribunal
below it appears that at the time of determination of monthly
income of any petitioner, the Learned Tribunal should give
specific reasons as to how the Learned Tribunal has determined
the monthly income of any person in any given case like that,
which in this case appears to be absent/missing.
13. Furthermore, regarding disability also, the Learned
Tribunal could not give any specific findings as to how the
Learned Tribunal below determined 100% disability of the
respondent-claimant as such the matter requires to be
remanded back to the Learned Tribunal below to determine the
following factors before delivery of fresh judgment:
i) To assess the monthly income of the
respondent-claimant with specific reasons as
the respondent-claimant could not
prove/submit any salary certificate or any other
documentary evidence in support of his
monthly income.
ii) To give specific finding regarding determination
of disability of the respondent-claimant, etc. in
the light of aforesaid observation of Hon'ble
Supreme Court in Raj Kumar(supra).
Furthermore, since the respondent-claimant before the
Learned Tribunal could not adduce the additional evidences
which the respondent-claimant has submitted before this Court
so those documents are also required to be exhibited before the
Learned Tribunal and accordingly the matter requires to be
remanded back to the Learned Tribunal below for fresh
adjudication.
14. In the result, the appeal filed by the appellant-
Insurance Company is allowed. The judgment and award dated
22.03.2023 delivered by Learned MAC Tribunal No.5, West
Tripura, Agartala is hereby set aside. The matter is remanded
back to the Tribunal below to decide the aforesaid points afresh
after permitting the parties to adduce fresh evidence on record
in this regard and furthermore, the respondent-claimant is also
permitted to adduce additional evidence before the Learned
Tribunal below for marking exhibits so as to arrive at a specific
finding in this regard. The cross-objection filed by the
respondent-claimant is also accordingly allowed. The Learned
Tribunal shall after receipt of the record fix a date for adducing
evidence/additional evidence by the respondent-claimant and if
necessary be allow to cross-examine the opposite parties
regarding additional evidence and thereafter shall deliver a
fresh judgment with specific assertions regarding disability
within a period of 4(four) months after receipt of the record
covering all aspects as mentioned in the judgment.
With this observation, this present appeal and the
cross-objection stands disposed of and the application for
adducing additional evidence also stands disposed of.
Registry be asked to hand over all the original
documents submitted by the respondent-claimant as objector
for producing the same before the Learned Tribunal below. If
necessary, keep the photocopies of those documents with the
record.
Send down the LCR along with a copy of this
judgment/award.
A copy of this judgment be furnished to the Learned
Counsel for the appellant-Insurance Company and also to the
Learned Counsel for the respondent-claimant-cum-cross-
objector for information and compliance.
Pending application(s), if any, also stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2025.07.10
15:23:45 -07'00'
Deepshikha
