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2011 DIGILAW 43 (CHH)

Bajaj Allianz Insurance Co. Ltd. v. Santara Bai

2011-02-03

N.K.AGARWAL

body2011
ORDER N.K. Agarwal, J. 1. Heard on application for condonation of delay in filing the appeal. 2. On due consideration, I am satisfied that the Appellant has succeeded in explaining the cause of delay in filing the appeal. Therefore, the application is allowed and the delay is condoned. 3. This is insurer's appeal against the award dated 26-7-2010 passed by the Addl. Motor Accident Claims Tribunal, Korba in Claim Case No. 28/2009 awarding Rs. 2,98,760/- as compensation in favour of the claimant and as against Appellant/Insurance Company along with interest at the rate of 6% per annum from the date of application till its payment. 4. Facts of the case in brief are that on 27-7-2007, when claimant Santara Bai was going to her village Padaniya on an auto vehicle, a minibus bearing registration No. CG 12/ZA-0117 being driven by its driver in a rash and negligent manner dashed the auto vehicle, as a result of which she sustained injuries on her arm, wrist and on other parts of body. She filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs. 10,55,000/-as compensation for the injuries sustained in the accident. 5. Learned Tribunal having found the claimant permanently disabled to the extent of 51%, income of the claimant as Rs. 36,000/- per annum and as he was of the age of 35 to 40 years at the time of accident, applied multiplier of 16, and awarded Rs. 2,93,760/- as compensation for loss of earning capacity. Learned Tribunal further awarded Rs. 5,000/- on other heads and thus awarded total amount of Rs. 2,98,760/- as compensation for the injuries sustained by the claimant. 6. Shri Rajput, learned Counsel for the Appellant would submit, learned Tribunal has erred in assessing the loss of earning capacity of the claimant to the extent of 51% inasmuch as the claimant has not sustained 51% permanent disability of the whole body but had sustained 51% permanent disability to her left hand only. For this, he placed reliance upon the decision of Hon'ble Supreme Court in the case of Raj Kumar v. Ajay Kumar and Anr. 2010 SSCL. Com. 830. 7. I have heard learned Counsel for the Appellant and perused the award impugned. 8. The Supreme Court in the case Raj Kumar1 (supra) cited by Shri Rajput has observed in para 10 of its judgment as under: 10. 2010 SSCL. Com. 830. 7. I have heard learned Counsel for the Appellant and perused the award impugned. 8. The Supreme Court in the case Raj Kumar1 (supra) cited by Shri Rajput has observed in para 10 of its judgment as under: 10. 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 ability (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. 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 percent, 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. 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 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. 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 amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. 9. In view of the dictum of above referred judgment of Supreme Court, it is clear that loss of earning capacity depends on the nature of job. The claimant is a labourer. Her left hand is permanently disabled to the extent of 51%. Looking to the nature of her job and the fact that a labourer cannot do her/his work without help of both of her/his hands, it cannot be said that learned Tribunal has erred in assessing the loss of earning capacity of the claimant to the extent of 51%. 10. In view of above, I do not find any scope of interference in the award impugned. The appeal being devoid of substance, deserves to be and is hereby dismissed.