Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 364 (RAJ)

Rajendra Kumar v. Prabhu Lal

2011-02-17

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—This appeal has been filed against the award dated 23.11.2000 of the Motor Accident claims Tribunal, Sawaimadhopur, awarding compensation in the amount of Rs. 44470 to the claimant for the injury suffered by him. 2. Brief facts of the case are that the claimant suffered injury in an accident took place on 16.2.2000 at 11.40 a.m. nearby shop of Liquor Contractor in Bajaria, Sawaimadhopur due to rash and negligent driving of the respondent No.1 who was driving truck No. RJ 13 G 0765 owned by respondent No.2 and insured by the respondent No.3. It was alleged in the claim petition that the claimant appellant going on Bicycle to his shop along with his younger brother who was sitting on the back seat of the cycle. Though the claimant was on his right side but he was hit by the respondent No.1 with truck which was driving by him rashly and negligently. Due to the said accident the front tire of the truck passed over the right leg of the claimant appellant. The claimant appellant sustained fracture of femur bone of right leg besides other injuries and sustained disability upto 50%. It is alleged in the claim petition that he lodged an FIR which was registered at Police Station bearing No. 65/2000 against the accused respondent No.1. The police filed challan against him. After accident the appellant was taken to the General Hospital Sawaimadhopur on 16.2.2000 and remained admitted in the Hospital upto 4.3.2000. on account of fracture of femur bone he suffered disability upto 50 per cent permanently and he has not been able to walk freely and also to discharge the daily activities. The reply to the claim was filed by the respondents and issues were framed by the MACT. The parties produced their evidence. on account of fracture of femur bone he suffered disability upto 50 per cent permanently and he has not been able to walk freely and also to discharge the daily activities. The reply to the claim was filed by the respondents and issues were framed by the MACT. The parties produced their evidence. After hearing both the parties, the MACT passed the following award : ^^vr% izkFkhZ }kjk izLrqr ;g {kfriwfrZ ;kfpdk vkaf'kd :i ls Lhodkj dh tkdj iapkV bl izdkj ikfjr fd;k tkrk gS fd izkFkhZ eksVj nq?kZVuk esa Lo;a dks dkfjr pksVksa ds ckcr~ foi{khx.k ls la;qä :i ls vFkok i`Fkd i`Fkd :i ls dqy 43970@& :i;s {kfriwfrZ jkf'k ds :i esa rFkk 500@& :i;s [kpsz ds dqy 44470@& :i;s izkIr djus dk vf/kdkjh gSA bl jkf'k ij izkFkhZ ;kfpdk izLrqr djus dh frfFk ls rkjh[k olwyh rd 12 izfr'kr okf"kZd dh nj ls C;kt Hkh izkIr djus dk vf/kdkjh gksxkA izkFkhZ ds Hkfo"; dh lqj{kk dks /;ku esa j[krs gq, vkns'k fn;k tkrk gS fd mä jkf'k ,oa C;kt dk psd izkIr gksus ij izkFkhZ ds uke ls jk"Vªh;—r cSad esa 20 gtkj :i;s ikap lky dh vof/k ds fy, lkof/k [kkrs esa tek fd;s tkosaxsA] ftl jkf'k ij izkFkhZ dks f=ekfld C;kt udn izkIr djus dk vf/kdkj gksxk rFkk 'ks"k jkf'k 24]470@& :i;s rFkk C;kt izkFkhZ dks udn vnk fd;k tkosxkA** 3. The learned counsel appearing for the appellant has contended that the MACT has committed gross error while deciding the issue No.2 partly in favour of the claimant appellant without separately assessing the amount of compensation of pecuniary and non- pecuniary loss and damages claimed by the claimant appellant. The MACT awarded lump sum compensation of Rs. 13,000/- for loss of future income and has not followed the principle of multiplier while awarding the compensation with regard to loss of income and income likely to be suffered by the claimant appellant. The learned counsel further argued that the principle of awarding compensation on the basis of multiplier could not have been ignored looking to the fact that the claimant appellant sustained disability upto 25%. The MACT erred in awarding only Rs. 13,000/- for the injuries suffered by the claimant appellant against the claim of pain and suffering. The MACT has only awarded a meager amount of Rs. The MACT erred in awarding only Rs. 13,000/- for the injuries suffered by the claimant appellant against the claim of pain and suffering. The MACT has only awarded a meager amount of Rs. 43,970, overlooking the fact that the same was inadequate looking to the permanent disability upto 25% by the claimant appellant. Hence it was prayed that the amount should be enhanced from Rs. 13,000 to Rs. 40,000/- on account of permanent disability of 25%. 4. On the other hand, Mr. T.P. Sharma, learned counsel appearing for the Insurance Company has contended that the MACT has rightly awarded the amount of Rs. 43,970/- looking to the injury suffered by him. This amount was adequate for the injury suffered by the claimant appellant and he is not entitled for any enhancement in the compensation. In support of his contention he has placed reliance on The New India Assurance company Ltd. vs. Rajender Kumar and others, S.B. Civil Misc. Appeal no.571/2001,decided on 21.4.2006 by the Coordinate Bench of this Court, wherein this Hon'ble Court directed that the Insurance Company is entitled to recover the amount of award from the owner of the vehicle by initiating the proceedings before the executing court in the same proceedings. The learned counsel contended that in the light of the judgment of this court, this court may enhance the amount, but the enhanced amount should be recovered from the owner of the vehicle instead of the insurance company. Mr. S.S. Hasan, learned counsel appearing for the owner of the vehicle has seriously opposed the arguments of the learned counsel for the insurance company. The learned counsel argued that the sufficient amount has been awarded by the MACT and the claimant appellant is not entitled for enhancement of compensation. 5. I have carefully gone through the arguments advanced by the counsel for the parties and also looked into the judgment cited by the learned counsel for the insurance company. 6. Before proceeding further it would be necessary to have a look at the general principles of granting compensation in disability cases. 7. The provision of the Motor vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. 7. The provision of the Motor vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. 8. 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 1ongevity). 9. 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 (77)(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. 10. It would also be necessary to have a look at the assessment of future loss of earnings due to permanent disability. 10. It would also be necessary to have a look at the assessment of future loss of earnings due to permanent disability. 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. 11. 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. 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%. 12. 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 the percentage of permanent disability as 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. 13. 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). I 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. 14. 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. 15. 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. 16. 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 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. 17. 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. 18. 18. 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. 19. I 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. In Raj Kumar vs. Ajay Kumar (2011) 1 SCC 343 , their lordships of the Apex court held as under : "27. In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to the claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore, there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses. 28. Therefore, there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses. 28. As the income of the appellant is assessed at 18,000 per annum, the loss of earning due to functional disability would be 20% of 18,000 which is 3600 per annum. As the age of the appellant at the time of the accident was 25, the multiplier applicable would be 18. Therefore, the loss of future earnings would be 3600 x 18 = 64,800 (as against 55,080 determined by the Tribunal). We are also of the view that the loss of earning during the period of treatment (1-10-1991 to 16-6-1992) should be 12,750 at the rate of 1500 for eight-and-half months instead of 3600 determined by the Tribunal. The increase under the two heads is rounded off to 20,000. 29. In view of the above, we allow this appeal in part and increase the compensation by 20,000 which shall carry interest at the rate awarded by the Tribunal, from the date of petition to the date of payment." 21. The MACT specifically while deciding the issue No. 2 calculated only Rs. 13,000/- towards loss of future income. This amount awarded by the MACT is on the lower side because the appellant is working as Tailor and he suffered permanent disability upto 25% and he has been disabled permanently and even not in a position to walk freely. As held in the above judgment of the Apex Court, the amount of Rs. 13,000/- should be enhanced to Rs. 33,000/- along with the interest of 6 per cent interest from the date of filing of the claim petition and this amount should be payable by the owner i.e. the respondent No.2 Siraj Ahmed and not by the respondent No. 3 New India Insurance Company. 22. This appeal is partly allowed with the aforesaid directions. The parties are directed to bear their own costs.