Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 2260 (RAJ)

Hari Narayan v. Rajendra Kumar

2013-12-12

BELA M.TRIVEDI

body2013
JUDGMENT Hon'ble TRIVEDI, J.—The present appeal filed under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant/claimant seeking enhancement in the compensation awarded by the MACT, Malpura, District Tonk (hereinafter referred to as 'the Tribunal') in Claim Petition No. 30 of 2007, whereby the Tribunal has awarded Rs.62,000/- with interest @ 6% per annum from the date of petition, till realization vide the award dated 05/02/2010, for the injuries sustained by the appellant in the accident in question. 2. As per the case of the appellant/claimant, on 02/02/2007 at about 4 p.m., he was going on bicycle from Indoli to Malpura and at that time one maruti car bearing No.RJ-01-CA-0992 suddenly came from Kekri side, which was driven by the respondent No.1 rashly and negligently. The said car hit the bicycle of the claimant from the back side, and therefore the claimant fell down and received injuries. The appellant-claimant, therefore, had filed the claim petition claiming compensation for the injuries and the partial disability sustained by him. The Tribunal, after appreciating the evidence on record, passed the award, as stated here-in-above. 3. It is submitted by the learned counsel Mr. Vivek Goyal for the appellant that the appellant had sustained the hip bone fracture, and other minor injuries, which had resulted into the physical disability to the extent of 30.5%. He further submitted that the appellant is facing difficulties in his routine work, and said disability has also adversely affected his earning capacity, and therefore, the amount is required to be enhanced suitably. Mr. Goyal has relied upon the decision of this Court in case of Kalu vs. Kishan Lal & Ors.,2009(5) WLC 514 in support of his contentions. 4. In the instant case, it appears that the Tribunal has awarded Rs. 3,000/- for the minor injuries, and Rs.35,000- for the fracture of hip bone sustained by the appellant. The Tribunal has further awarded Rs.20,600/- towards medical expenses, and Rs.3,400/- for special diet, transportation etc., and in all Rs.62,000/- by way of compensation with interest. 4. In the instant case, it appears that the Tribunal has awarded Rs. 3,000/- for the minor injuries, and Rs.35,000- for the fracture of hip bone sustained by the appellant. The Tribunal has further awarded Rs.20,600/- towards medical expenses, and Rs.3,400/- for special diet, transportation etc., and in all Rs.62,000/- by way of compensation with interest. It is true that the appellant in his evidence had stated inter-alia that on account of the injury sustained by him, he is facing difficulties in his routine work, however, the Tribunal, in the impugned award, has specifically observed that the appellant was about 60 years of age, and there was nothing on record to suggest that because of the accidental injuries or partial permanent disablement, his earning capacity was affected. As per the settled legal position, every partial disability would not result into loss of earning capacity and the claimant has to prove by cogent evidence that such disability had in fact affected his earning capacity, for the purpose of claiming compensation under the head, future loss of earnings. Beneficial reference of the decision of Apex Court in recent case of Raj Kumar vs. Ajay Kumar & Anr, (2011) 1 SCC 343 be made in this regard. The para 6, 10, 11 and 13 thereof are reproduced hereinunder: 6. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, 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). (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. 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 permanently 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 terns 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 vs. New India Assurance Co.Ltd. and Yadava Kumar vs. D.M., National Insurance Co. Ltd. 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 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” 5. In absence of any such cogent evidence produced by the appellant, the observations and findings made by the learned Tribunal could not be said to be unjust or perverse. The learned counsel for the appellant having failed to point out any illegality or perversity in the impugned award made by the Tribunal, this Court does not find any substance in the present appeal. 6. In that view of the matter, the appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.