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2020 DIGILAW 408 (JK)

Shakeel Mohammad v. Oriental Insurance Co. Ltd.

2020-08-20

SANJEEV KUMAR

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JUDGMENT : Sanjeev Kumar, J. 1. This appeal has been filed by the appellant Shakeel Mohammad, who suffered grievous injury to his right foot in a motor vehicle accident that took place on 29.01.2008 involving the vehicle i.e., Matador bearing Registration No. JK02W-3476 (hereinafter referred to as the 'offending vehicle') near a Tent House on the National Highway falling within the jurisdiction of Police Station, Gangyal. The appellant was certified to be disabled to the extent of 50% of the right foot. The appellant, at the relevant time, was working as a driver with the commercial vehicle. He filed a claim petition before the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the 'Tribunal') and sought compensation of Rs. 32,00,000/- along with interest @ 9 % per annum from the respondents. 2. It was claimed that the accident, in which the appellant got injured, had occurred due to rash and negligent driving of the offending vehicle by its driver namely Mushtaq Ahmed, respondent No. 3 herein. The appellant claimed that he, while working as driver, was getting Rs. 5,000/- per month as salary and Rs. 100/- per day as trip allowance. 3. The claim petition, as is apparent from the record, was contested by respondent Nos. 1 and 2, whereas respondent No. 3 was proceeded ex parte by the Tribunal. Respondent No. 1 filed its objections, in which, it, inter alia, took a stand that the driver had no valid and effective driving licence at the time of accident as required under the Motor Vehicles Act and the rules framed thereunder and, therefore, the petition under Section 166 of Motor Vehicles Act was not maintainable. 4. Apart from raising usual defences, respondent No. 1 also contested the claim petition on quantum. 5. Respondent No. 2, the owner of the offending vehicle in his objections resisted his liability on the ground that the offending vehicle, on the date of accident, was fully insured with respondent No. 1 and, therefore, the liability, if any, to pay compensation to the injured would lay on respondent No. 1 and not on him. It was also pleaded by respondent No. 2 that the driver of the offending vehicle was also possessing a valid and effective driving licence. 6. The Tribunal took the disability of the appellant as 40% relying upon the guidelines issued by the National Institution for the Orthopedically Handicapped, Kolkata. It was also pleaded by respondent No. 2 that the driver of the offending vehicle was also possessing a valid and effective driving licence. 6. The Tribunal took the disability of the appellant as 40% relying upon the guidelines issued by the National Institution for the Orthopedically Handicapped, Kolkata. Loss of earning capacity was also taken to be 40% i.e. equivalent to the percentage of disability. Accordingly, the Tribunal following the guidelines laid down in the case of Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 , held the appellant entitled to a compensation of Rs. 7,75,000/- along with pendente lite and future interest @ 7.5% per annum. 7. The appellant is dissatisfied and seeks enhancement of the compensation on the following grounds: (i) That the Tribunal has not appreciated the evidence on record in proper perspective and has, without considering the trip allowance which was payable to the appellant along with monthly salary, worked out the income of the appellant as Rs. 5,000/- per month only. (ii) That the Tribunal has not applied the correct multiplier for working out the compensation. It is submitted that the Tribunal has erroneously applied the multiplier of 16 instead of 18 as provided in the case of Sarla Verma (supra) and the Constitution Bench Judgment of Hon'ble Supreme Court rendered in the case of National Insurance Company Ltd. vs. Pranay Sethi and ors., AIR 2017 SC 5157 . (iii) That no enhancement on account of future prospects has been given. (iv) That the loss of earning capacity of the appellant commensurate to the percentage of permanent disability suffered by him has not been properly appreciated by the Tribunal. It is submitted that given the nature of job, the appellant was doing at the time of accident, i.e. Driver, 50% disability suffered by him on his right foot would reduce his earning capacity by 100%. 8. Mr. Chouhan, learned counsel appearing for respondent No. 1 submits that the compensation awarded by the Tribunal is just and fair and does not call for any interference by this Court. It is urged that the Tribunal, on the basis of very weak evidence on record, took the income of the appellant as 5000/- per month, which finding of the Tribunal, is unexceptionable and cannot be interfered with. 9. Mr. It is urged that the Tribunal, on the basis of very weak evidence on record, took the income of the appellant as 5000/- per month, which finding of the Tribunal, is unexceptionable and cannot be interfered with. 9. Mr. Chouhan submits that the monthly income of the appellant taken by the Tribunal, by all means, is on the higher side having regard to the evidence on record. He also disputes the claim of the appellant that he was entitled to the benefit of future prospects and the applicability of multiplier of 18. 10. Heard learned counsel for the parties and perused the record. 11. The claim of the appellant that his income of Rs. 5,000/- per month taken by the Tribunal is not in consonance with the evidence on record, is without any substance and, therefore, deserves rejection. 12. It is true that the appellant has claimed that he was receiving a monthly salary of Rs. 5,000/- and daily allowance of Rs. 100/-. He, however, has not brought on record anything to substantiate the said claim. In these circumstances, the Tribunal was left with no option, but to take the monthly income of the appellant as Rs. 5,000/- per month. Even if, I were to accept the plea of the appellant that the monthly allowance paid to the driver and conductor in addition to the monthly salary is part of income, even then I do not find it a case, where the Tribunal or for that matter, this Court should accept the bald assertion of the appellant without looking for some corroborative evidence. The employer was the best witness and he was arrayed as respondent No. 2 in the claim petition, but he was not examined by the appellant before the Tribunal as his witness. 13. While I hold that the daily allowance, if any, paid to a driver or conductor in addition to the monthly salary is part of income, yet, in the given facts and circumstances of the case and looking to the nature of evidence on record, I am not inclined to disagree with the Tribunal that the monthly income of the appellant could not have been more than Rs. 5,000/- per month. The findings of the Tribunal on this count are, therefore, confirmed. 14. 5,000/- per month. The findings of the Tribunal on this count are, therefore, confirmed. 14. The appellant, at the time of accident, was admittedly 19 years old and therefore, the income of the injured ought to have been enhanced by 40% by way of future prospects. Similarly, I am in agreement with the learned counsel for the appellant that, having regard to the age of the appellant, the applicable multiplier in terms of Sarla Verma's case (supra) is 18 and, therefore, should not have been slashed down to 16 as has been done by the Tribunal. 15. With regard to the loss of earning capacity, it is vehemently contended on behalf of the appellant that since the appellant is a driver by profession and because of amputation of half of his right foot, he is totally disabled to work as a professional driver. Referring to certain provisions of the Motor Vehicles Act, learned counsel for the appellant argues that because of the permanent disablement suffered by the appellant in the accident, he is permanently disqualified to obtain licence to drive the vehicle. He, therefore, submits that, in the instant case, the Court should take the loss of earning capacity of the appellant to be 100%, though permanent disablement suffered by him and as certified by the Doctor is only 50%. 16. I have given my thoughtful consideration to this aspect of the matter which was vehemently debated by learned counsel for the parties, but could not find the better precedent than Raj Kumar vs. Ajay Kumar 2011 (1) SCC 343 . In paragraphs 10, 11 and 13, the Hon'ble Supreme Court has elaborately dealt with the issue. I would be failing in my duty if I do not reproduce the observations of the Hon'ble Supreme Court made in the aforesaid paragraphs which read thus: 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, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. 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, 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. 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 terms 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 ). 11. 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. 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. 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". 17. 17. From the in-depth reading of the judgment (supra), particularly the observations made in paragraph 13, the ascertainment of the effect of the permanent disability involves the following four steps: (i) to ascertain as to what activities the claimant could carry on in spite of the permanent disability and what he could not do so as a result of permanent disability; (ii) to ascertain his avocation, profession and nature of work before accident and also his age; (iii) to ascertain, whether the claimant is totally disabled from earning any kind of livelihood, or whether in spite of permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, and; (iv) whether the claimant 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. 18. For ascertaining the aforesaid aspects, it is necessary to evaluate the evidence on record in proper perspective. 19. Form perusal of evidence on record, it clearly transpires that the appellant has led very weak evidence. The statement of appellant that he was a driver by profession is not substantiated by any other independent witness oral or documentary except the photocopy of driving licence. In the absence of rebuttal, the Tribunal perhaps was left with no option, but to accept the version of the appellant that he was driver by profession. The statement of the Doctor, who had issued the disability certificate to the appellant, does not indicate that the appellant, because of his disability, would not be capable of performing his duties as a driver. In his deposition, the Doctor has stated that the appellant with his disability would have difficulty in performing the job of a driver. He has also stated that the appellant would have difficulty in walking, running and travelling. However, nothing has come on record; whether with the disability, the appellant is rendered unfit to perform any other job; whether or not, he would be able to perform the duties of a conductor, cleaner or some other related job. In the absence of any cogent evidence on record, the Tribunal was left with no option, but to resort to some guess work to ascertain the loss of earning capacity vis-à-vis the disablement suffered by the appellant. 20. In the absence of any cogent evidence on record, the Tribunal was left with no option, but to resort to some guess work to ascertain the loss of earning capacity vis-à-vis the disablement suffered by the appellant. 20. The Tribunal has taken the loss of earning capacity to be 40%, but, keeping in view the fact that the appellant was a driver by profession and may not be able to work as a professional driver after his disablement of the right foot to the extent of 50%, I am of the view that, ends of justice would be met by increasing the loss of earning capacity of the appellant to 70% from 40% as taken by the Tribunal. 21. I am not taking the loss of earning capacity to be 100% as is vehemently claimed by learned counsel for the appellant, for, I am of the view that, because of disability suffered, the appellant is not totally incapacitated to work and may engage in some other avocation like conductor, cleaner etc, and earn his livelihood. 22. In view of the aforesaid discussion, I hold the appellant entitled to the following amount of compensation: Loss of future income Rs. 10,58,400/- Pain and suffering Rs. 80,000/- Loss of amenities of life Medical expenses Rs. 70000/- Rs.1,77,000/- Transport/attendant charges Rs.15000/- Special diet charges Rs. 14000/- Cost of artificial foot Rs. 35,000/- Total Rs. 14,49,400/- 23. The award passed by the Tribunal stands modified to the aforesaid extent and the appeal disposed of accordingly. There shall, however, be no change with regard to the interest awarded by the Tribunal. The insurer to deposit the balance amount in the Registry of this Court. The awarded amount shall be released in favour of the appellant-claimant as per the terms and conditions of the award and after proper verification. Other terms and conditions of the impugned award shall, however, remain unaltered.