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2011 DIGILAW 4 (SIK)

Branch Manager v. Bikram Chettri

2011-08-12

S.P.WANGDI

body2011
JUDGMENT : WANGDI, ACJ. 1. This appeal is directed against the judgment of the learned Motor Accident Claims Tribunal, East and North Sikkim at Gangtok dated 28.06.2010, in M.A.C.T. Case No.24 of 2007, whereby the claimant had been awarded a sum of Rs. 7,96,944/-(Rupees seven lakhs ninety six thousand nine hundred and forty four) only, as compensation with interest of 9% from the date of filing of the claim petition. 2. The grounds for assailing the judgment is limited only to the question as to whether the finding of the learned Tribunal that 40% disability should be taken as 100% in view of the nature of employment of the claimant is correct or not. 3. However, before embarking upon the finding on the merits of the appeal, the appellant requires to cross the hurdle of the gross delay in presenting the appeal. It is an admitted position that there has been delay of 271 days. Therefore, it would be essential to see as to whether the delay can be condoned or not. 4. I have perused the application for condonation of delay in which the grounds taken for explaining the delay are as follows: - “3. That the New India Assurance Co.Ltd., being a Govt. of India Undertaking, the entire records had been sent by the Petitioner to its Divisional Office at Siliguri after obtaining the certified copies of the judgment for necessary instruction who in turn sent the same to its Regional Office at Kolkata. The Regional Office of the Petitioner in turn sent the entire file to its standing counsel for his expert opinion hence there was a delay of 271 days in filing the instant appeal.” 5. The above being the nature of explanation, it is difficult for this Court to accept that it constitutes sufficient cause for the delay being condoned. No doubt it is trite that delay need not be explained day to day, but it is also trite that the explanation should be such as to constitute what is termed as “sufficient cause”. The ground set out above are absolutely nebulous with no material particulars or details as to: (i) When the entire records had been sent by the petitioner to its Divisional Office at Siliguri. (ii) When the Siliguri Office sent the records to its Regional Office at Kolkata. The ground set out above are absolutely nebulous with no material particulars or details as to: (i) When the entire records had been sent by the petitioner to its Divisional Office at Siliguri. (ii) When the Siliguri Office sent the records to its Regional Office at Kolkata. and (iii) When the appellant had sent the entire file to its standing counsel for his expert opinion. 5.1 Under such circumstances, the application seeking for condonation of delay stands rejected. 6. Be that as it may, for larger interest of justice, the matter was also heard on merits to find out as to whether there were any grave errors committed by the learned Motor Accident Claims Tribunal in its impugned judgment in the present appeal. As has already been alluded to above, the only question that requires consideration in this appeal is as to whether the finding of the Claims Tribunal that 40% disability would amount to 100% in respect of the respondent claimant. 7. Mr. Sudesh Joshi, learned Counsel appearing on behalf of the appellant submitted that this issue is squarely covered by the decision of the Hon’ble Supreme Court in the case of Sunil Kumar vs. Ram Singh Gaud and Others : 2007 (14) SCC 61 , wherein it has been held as under: - “8. We find substance in the submission put forth by the counsel for the appellant. The Tribunal as well as the High Court have not awarded any compensation towards loss of future income. After the fracture of tibia, it is doubtful if the appellant can even drive again. Even if he pursues some other vocation, he would not be able to earn as much as he is earning now. The disability suffered by the appellant would surely reduce his earning capacity. Therefore, the appellant is required to be compensated for the loss of earning due to the injuries suffered by him in the accident. 9. Taking into consideration the present income of the appellant as Rs.4000 per month; and the permanent disability of 45% suffered by him, we are of the view that the capacity of the appellant to earn in future would be reduced by Rs.1800 per month approximately. If 1/3rd is deducted towards miscellaneous expenses, the loss of income comes to Rs.1200 per month which, in turn, comes to Rs.14,400 per annum. If 1/3rd is deducted towards miscellaneous expenses, the loss of income comes to Rs.1200 per month which, in turn, comes to Rs.14,400 per annum. The appellant was 29 years of age at the time of accident. Taking the multiplier to be 18 (as the Second Schedule to Section 163-A of the Act), the total loss of income comes to Rs.2,59,200.” 7.1 Relying upon the above decision, Mr. Joshi submits that the finding of the Claims Tribunal is grossly erroneous and deserves to be set aside. Mr. Joshi also submitted that the basis of the finding of the Tribunal being the medical certificate issued by the Orthopaedic Surgeon ought to have been exhibited and proved by that very doctor. However, this was not done and therefore, it cannot be relied upon as a piece of evidence. 8. Mr. Ajay Rathi, learned Counsel appearing on behalf of the respondent claimant submitted that the decision of the learned Claims Tribunal to consider the 40% as being 100% in respect of the claimant is just and proper considering the nature of the employment of the claimant. He submitted that the claimant is a driver and considering the nature of the disability he will not be able to engage himself for his livelihood either as a driver or any other avocation. The evidence in this regard led by the claimant as PW1 was referred to, more specifically, the following portion:- “Exbt. 21 collectively marked are 5 x-ray files which were taken for the purpose of putting the iron rods/steel plates fixing with screws for the purpose of joining of my bones and hip. Due to the said accident I became handicap and at present I had no source of income to earn my livelihood.” [emphasis supplied] 8.1 It is further submitted that the appellant questioning the genuinity or reliability of the medical certificate is unsustainable. Reliance was placed upon the decision of Madras High Court in the case of Shanmugham vs. Managing Director, Tamil Nadu State Transport Corporation, Villupuram Division: 2007 (1) T.A.C. 706 (Mad.), wherein it has been held that the proceedings under the Motor Vehicles Act, 1988, are in the nature of summary proceedings and the provisions of the Evidence Act would normally not apply. It is submitted that in such cases, any document having some probative value and the genuineness or which is not in doubt can be looked into by the Tribunal. 9. In reply to the contention of Mr. Sudesh Joshi that when the medical certificate specifies 40%, the compensation ought to have been calculated by taking that as the basis and not 100%, as done in the impugned judgment, Mr. Rathi has relied upon a decision in the case of Raj Kumar vs. Ajay Kumar and Another : 2011 (1) SCC 1161, wherein it has been held as under: - “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 sof amenities of life). The second steps is to 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 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 to 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.” [emphasis supplied] 9.1 Relying upon the above decision, he submitted that the claimant, by the very nature of the medical opinion with regard to which evidence has come on record, would not be able drive a vehicle which is his only skill and, considering the nature of the disability, it would also not be possible for him to take up any other avocation. Under such circumstances, it is submitted that the finding of the learned Tribunal is just and proper and the appeal deserves to be dismissed. 10. I have carefully considered the rival contentions of the learned Counsels and the materials placed before this Court and my views are as under. 11. The judgment of the learned Tribunal is based upon various decisions of the High Court which are apparent from paragraphs 12 and 13 of the impugned judgment. In the decision of the Hon’ble Supreme Court in the case of Raj Kumar vs. Ajay Kumar and Another (supra) it has clearly held that the consideration as to whether there has been 100% disability on a medical certificate of lesser percentage of disability would depend upon the nature of the employment. We have extracted paragraph 14 which need not be repeated. Considering this position, the decision in the case of Sunil Kumar vs. Ram Singh Gaud and Others : 2007 (14) SCC 61 , relied upon by Mr. Sudesh Joshi is clearly distinguishable since what appears from the facts in that case, the nature of injury was not of the kind involved in the present case as would appear from the deposition of the claimant extracted above. 12. The medical certificate questioned by Mr. Sudesh Joshi is clearly distinguishable since what appears from the facts in that case, the nature of injury was not of the kind involved in the present case as would appear from the deposition of the claimant extracted above. 12. The medical certificate questioned by Mr. Joshi has not been challenged during the course of the evidence except in the pleadings contained in the written objections filed on behalf of the appellant. The appellant has failed to demolish the aspect of the genuinity of the medical certificate. We also find that this was never an issue before the Claims Tribunal and the appellant had chosen not to adduce any evidence at all. Therefore, it would not be permissible for them to raise the question at this stage. In any case, the certificate having been issued by a recognized Orthopaedic Surgeon under his seal and signature, it is permissible in law for this Court to take judicial notice of it. 13. In the above circumstances, the appeal stands dismissed both on the question of delay and on its merits. 14. It also appears, that the appellant has not paid the compensation awarded by the learned Tribunal or any part of it thereby defeating the very object of the statute. Considering the fact that almost five years have passed since the date of the accident, four years since the date of institution of the claims proceedings before the Tribunal and more than two years since the award was passed by it, the appellant is hereby directed to pay the compensation within a period of 15 days with interest at a rate modified to 10% from the date of filing of the claim petition. Failing to comply with this order shall entail payment of further interest of 2% from the date of this order till its final payment. 15. No order as to costs.