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Tripura High Court · body

2021 DIGILAW 32 (TRI)

Biswajit Das v. Md. Jamir Ahmed

2021-03-12

AKIL KURESHI

body2021
JUDGMENT Akil Kureshi, J. - This appeal is filed by the original claimant. He seeks enhancement of the compensation awarded by the Motor Accident Claims Tribunal, West Tripura, Agartala in Case No. T.S (MAC) 05 of 2016 by the impugned award dated 29.07.2019. 2. Brief facts are as under : On 29.09.2015 the claimant with his family members was travelling in an auto-rickshaw when it collided with a truck which was insured by the Oriental Insurance Company Limited, respondent No.2 herein. The claimant received injuries of his right shoulder and other parts of the body. According to him, he had to take extensive treatment first at Agartala and thereafter at Vellore and had to undergo multiple operations. The claimant filed claim petition before the Motor Accident Claims Tribunal, West Tripura, Agartala claiming compensation of Rs.11, 00, 000/- from the owner and insurer of the truck involved in the accident. The Claims Tribunal held that the accident occurred on account of sole negligence of the driver of the truck. At the relevant time, the claimant was employed as a Junior Engineer in the Fisheries Department of the Government of Tripura and was aged 45 years. The Tribunal awarded Rs.1, 08, 207/- for medical treatment, Rs.1, 00, 000/- for pain, shock and suffering, Rs.30, 000/- for conveyance, special diet and attendant charges but awarded no amount for loss of income. 3. According to the counsel for the appellant this award is inadequate for following reasons : (i) The claimant had gone to Vellore for further treatment. The Tribunal while awarding the cost of treatment at Vellore hospital, did not award any compensation for travelling cost for the claimant and his wife though air tickets were produced and exhibited. (ii) The Tribunal committed a serious error in not awarding any compensation for loss of income. Counsel argued that the claimant had suffered 70% disability. He, therefore, should have been awarded adequate compensation under the head of loss of income. 4. On the other hand, learned counsel for the insurance company opposed the appeal contending that the Claims Tribunal has awarded adequate compensation. There was no evidence suggesting that the treatment which the claimant had to undertake at Vellore hospital was not available at Agartala. He, therefore, cannot claim transportation charges from the insurance company for his journey to and fro between Agartala and Vellore. There was no evidence suggesting that the treatment which the claimant had to undertake at Vellore hospital was not available at Agartala. He, therefore, cannot claim transportation charges from the insurance company for his journey to and fro between Agartala and Vellore. Counsel contended that the claimant was employed as a Junior Engineer in the Government Department and suffered no cut in salary either during the actual period of treatment or later on. The Tribunal, therefore, correctly did not award any compensation for loss of income. 5. With respect to the air ticket of the claimant and his wife, in absence of even basic proof of the requirement of the treatment at Vellore hospital, the claimant cannot be compensated. I have perused the evidence of the claimant and the documents and do not find any reference of any nature suggesting that the treatment that the claimant was taking at Agartala was either insufficient or that further treatment outside the State was necessary. Under the circumstances, it may be open for the claimant to choose to be treated in a hospital of his choice and the cost of such treatment may also be reimbursed as was correctly done by the Tribunal, nevertheless he cannot claim reimbursement of travel charges. 6. However, coming to the question of loss of income, in my opinion, the Tribunal has committed a serious error in not awarding any compensation. As a Government servant holding regular post, the disability which the claimant suffered on account of the accident, may not straightaway reflect in terms of reduction in his salary. Nevertheless, when the accident victim is being compensated for loss under the head of future income, what is of significance is his earning capacity. If the earning capacity is diminished on account of the disability arising out of the accident, the same must be compensated. The claimant has deposed that he is unable to do any work with his right arm. Under the circumstances, his independent movements would be severely restricted. He would not be able to drive a two wheeler or a motor car and whenever he needs to go out, for work or for any other purpose; he would have to be driven by somebody else. The Courts approach this issue from the point of view of the marketability of the claimant going down instead of precise reduction in income. The Courts approach this issue from the point of view of the marketability of the claimant going down instead of precise reduction in income. The question would be what would be the possibility of the claimant being re-employed in the same or similar position, were he to lose his job? Relevant question would also be of his prospects after retirement. When a Government servant retires at the age of 58 or 60 years, if he is otherwise in good health, he has a few years of active life still left during which he can gainfully employ himself. All these factors will have to be kept in mind while deciding the question of loss of income. 7. Before I go into the details of such computation, two things need to be cleared. Firstly, the claimant had not produced proof of his income at the time of accident before the Tribunal. I had, therefore, requested the counsel for the appellant to produce on record a copy of the salary slip that may be issued by the competent authority showing his income at the relevant time. Accordingly, counsel has produced a salary statement issued by the Superintendent of Fisheries, Ambassa showing the monthly salary of the claimant for the month of September, 2015. Since this is an official document and no serious dispute is raised about its correction, I have taken it on record. As per this document his gross pay inclusive of basic, dearness and other allowances was Rs.50, 941/- from which he suffered deductions of Rs.208/- by way of professional tax and Rs.830/- by way of income tax and Rs.225/- by way of general insurance. Further deduction of Rs.5, 000/- was towards GPF which would be in the nature of his saving. His net salary though was shown at Rs.44, 678/-, we must add Rs.5, 000/- which was by way of a deduction for GPF. This would bring the sum to Rs.49, 678/- per month. However, the deduction of income tax of Rs.830/- would not cover his full tax liability. If he was earning more than Rs.50, 000/- per month in the year 2015, surely his tax liability would be much greater than bare Rs.830/- per month. By way of rough and ready formula, therefore, we may accept the net income of the claimant at the time of accident at Rs.45, 000/- per month after deducting taxes and insurance premium amount. By way of rough and ready formula, therefore, we may accept the net income of the claimant at the time of accident at Rs.45, 000/- per month after deducting taxes and insurance premium amount. I have proceeded on the basis of this salary slip since it is issued by a Government authority and against which even the insurance company would not be in a position to raise any dispute. 8. Another area which needs ironing out is the nature of disability. Before the Claims Tribunal the claimant produced a disability certificate dated 02.03.2017 issued by the District Disability Medical Board, Dhalai in which it was provided that the claimant had suffered locomotor disability of the right arm. There was shortening of the right arm by one inch and there was post operative stiffness and restricted movement from elbow, wrist fingers. The disability was assessed at 70%. This disability was stated to be temporary and the patient was advised reassessment after five years and thus the validity of the certificate was shown to be up to 02.03.2022. This Court has been criticizing this practice of issuing disability certificates with limited validity which causes enormous difficulties in assessing and awarding compensation in case of injuries in motor accidents. On 21.01.2021 therefore it was provided that the claimant shall appear before the concerned District Disability Medical Board who shall assess his disability and issue a certificate of final assessment of disability and not for any temporary period. Despite this, rather unfortunately, once again the medical authority issued a disability certificate dated 06.02.2021 which would be valid for a period of five years. In this certificate also it was stated that the claimant suffered from locomotor disability, post traumatic stiffness of right elbow, wrist with muscle wasting of the right forearm and shortening of the hand. Disability was assessed at 75%. 9. On 18.02.2021, therefore, after noticing that this fresh certificate also issued with limited validity period, directions were issued for the concerned authorities to remain present before the Court. Accordingly on 25.02.2021 the concerned doctors had remained present and apologized. They also clarified that the patient had suffered disability which was in relation to his right arm and right upper limb. A copy of this certificate shall be taken on record. 10. These two disability certificates dated 02.03.2017 and 06.02.2021 are similar in nature. The accident took place on 29.09.2015. They also clarified that the patient had suffered disability which was in relation to his right arm and right upper limb. A copy of this certificate shall be taken on record. 10. These two disability certificates dated 02.03.2017 and 06.02.2021 are similar in nature. The accident took place on 29.09.2015. The second disability certificate was issued on 06.02.2021. Thus, more than 6 years after the date of accident the medical authorities found that the claimant was still suffering from the disability. Such disabilities were shortening of the right arm and stiffness and muscle loss. It is difficult to appreciate how such disability which has lasted for over six years can be stated to be temporary. If the condition of the claimant did not improve after six and half years it defies logic that there is any possibility of improvement five years later. The shortening of the arm surely is not a repairable condition and at any rate would not be repaired with passage of time. I must, therefore, proceed that the disabilities are permanent in nature. However, the assessment of the disability in terms of percentage will have to be suitably modified. It was in this context I had recorded the statement of the doctors that such assessment is in relation to right arm and not body as a whole. This would be significant because when one awards compensation for injury under the head of loss of income, what has to be taken into account is the disability of the claimant as a body as a whole. Taking rough assessment, such disability may be projected at 15% of the body as a whole. 11. We have assessed the net income of the claimant at Rs.45, 000/- per month at the time of accident. Considering that he was in a permanent Government service and 45 years of age there would be 30% rise for future income. His income would therefore come to Rs.58, 500/-. 15% thereof would be Rs.8775/- per month or Rs.1, 05300/- per annum. Looking to his age multiplier of 14 will be applied as per the decision in case of Sarla Verma (Smt) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 . The loss of income would come to Rs.14, 74, 200/-. However, the claimant has made a total claim of Rs.11, 00, 000/- before the Claims Tribunal. The loss of income would come to Rs.14, 74, 200/-. However, the claimant has made a total claim of Rs.11, 00, 000/- before the Claims Tribunal. I would therefore limit the total compensation to the said sum. The Claims Tribunal had already awarded Rs.2, 49, 677/- to the claimant as compensation. The claimant would receive additional compensation of Rs.8, 50, 323/- in this appeal which shall be paid with simple interest @ 6.5% from the date of the claim petition till actual payment. The insurance company shall deposit the said sum before the Claims Tribunal within two months from today. Upon such deposit the Claims Tribunal shall release 40% in favour of the claimant through account payee cheque. Remaining amount shall be invested in any Nationalized Bank in a fixed deposit of recurring interest for a period of five years. At the end of the period of five years, the remaining amount shall be released in favour of the claimant. 12. Appeal stands disposed of accordingly. Pending application(s), if any, also stands disposed of. Records may be transmitted to the courts below.