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Tripura High Court · body

2015 DIGILAW 574 (TRI)

Commander v. Ashim Saha

2015-07-22

DEEPAK GUPTA

body2015
JUDGMENT : This appeal is directed against the award of the learned Motor Accident Claims Tribunal, Court No.2, West Tripura, Agartala dated 8th August, 2010 passed in TS(MAC)550 of 2007 whereby the learned Tribunal awarded compensation of Rs.12,60,268/- in favour of the claimant-respondent. 2. At the outset it may be stated that out of this very accident another MAC Appeal No.50 of 2011 was filed by the Border Road Task Force (BRTF) against the award of Rs.10,11,414/- passed in favour of the claimant Dipjoy Barua in Case No.TS (MAC) 544 of 2007. A learned single Judge of this Court has dismissed the appeal of the BRTF on merits on 09.9.2011. This award has been satisfied by the BRTF and therefore, the BRTF be heard to argue in this matter that the negligence was that of the respondent. 3. The claimant was running a grocery shop. He suffered disability of 40% but the learned Tribunal assessed the loss of earning capacity at 100%. This finding is challenged in this appeal. It is apparent that the learned Tribunal had no concept as to how the assessment of compensation is to be made. The disability in the present case is 40% that too to a particular limb and without there being any evidence of a doctor to show that the claimant has become totally disabled the learned Tribunal has held that the disability is 100%. 4. The Apex Court In Raj Kumar vs. Ajoy Kumar, (2011)1 SCC 343 held as follows : “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 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%. ………………………………………………………………….. 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 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) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567). ………………………………………………………………….. 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 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. ………………………………………………………………….. 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.” 5. Loss of disability is not always equal to loss of earning capacity. That will depend on the facts of each case. If a labourer suffers 40 to 50% disability keeping in view the fact that he is engaged in manual labour his disability could be 100% also but 40% disability of a leg does not make a labourer totally unable to earn any amount. As far as this case is concerned, the claimant was a businessman. He runs a grocery shop. This will have virtually no effect on his earnings because he can still run the grocery shop. It may affect his movement a little bit and his efficiency may be impaired and, therefore, I assess the loss of earning capacity at 20%. 6. The income of the claimant has been taken at Rs.6,000/- per month. Fifty per cent is added for his future prospects and the income for assessing his future loss is taken at Rs.9,000/-. It may affect his movement a little bit and his efficiency may be impaired and, therefore, I assess the loss of earning capacity at 20%. 6. The income of the claimant has been taken at Rs.6,000/- per month. Fifty per cent is added for his future prospects and the income for assessing his future loss is taken at Rs.9,000/-. Assessing the loss of income at 20% it comes to Rs.1,800/- per month or Rs.21,600/- per year and since the respondent claimant was below 35 years the maximum multiplier of ‘17’ can be applied and the compensation works out to Rs.3,67,200/- which is rounded off to Rs.3,70,000/-. 7. The claimant remained in hospital for 30 days over four spells. In the hospital he would have required two attendants each day round the clock. Therefore, he has to be paid attendant charges for two attendants for 30 days. If the cost for staying, boarding and lodging of the one attendant is taken at Rs.250/- per day taking in view the fact that the accident occurred in the year 2005, the attendant charges for 30 days itself works out to Rs.15,000/-. 8. As far as the medical expenses are concerned, the claimant has produced cash memos of Rs.58,268/-. He must have spent some more amount than this. Therefore, he is awarded Rs.75,000/- under this head. 9. As far as the transportation costs are concerned, he is also awarded Rs.15,000/- keeping in view the fact that he had to go in and out of hospital on four spells and he has gone to attend the doctor at Silchar. 10. The claimant in addition there to is entitled to loss of mental pain and suffering and which is assessed at Rs.25,000/-. He is also held entitled to compensation on account of future discomfort and loss of amenities in life due to the injury caused to him. Therefore, I award a sum of Rs.50,000/- to the claimant under this head. 11. The total compensation is, therefore, assessed at Rs.(3,70,000 + 15,000 + 75,000 + 15,000 + 25,000 + 50,000) = Rs.5,50,000/- (Rupees five lakh fifty thousand). In view of the above discussion, the appeal is allowed. The award of the learned Tribunal is modified and the compensation is reduced from Rs.12,60,268/- to Rs.5,50,000/- along with interest @ 7.5% per annum from the date of filing of the claim petition till payment/deposit of this amount. 12. In view of the above discussion, the appeal is allowed. The award of the learned Tribunal is modified and the compensation is reduced from Rs.12,60,268/- to Rs.5,50,000/- along with interest @ 7.5% per annum from the date of filing of the claim petition till payment/deposit of this amount. 12. The appeal is disposed of in the aforesaid terms. No costs. Send down the LCRs forthwith.