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2023 DIGILAW 1817 (RAJ)

Dinesh Kumar, S/o. Shri Gyarsi Lal v. Maliram, S/o. Suna Ram Yadav

2023-09-22

PRAVEER BHATNAGAR

body2023
JUDGMENT : 1. The instant appeal arises out of the impugned judgment dated 15.02.2018 passed by Motor Accident Claims Tribunal, Bharatpur (hereinafter to be referred to as “Tribunal”). 2. The claimant/appellant Dinesh Kumar (hereinafter to be referred to as “injured”), preferred a claim petition, which was partly allowed and the compensation was granted to the tune of Rs.2,82,811/- in MACT Case No. 166/2012. 3. The Tribunal on scrutiny of the entire evidence led before held that injured Dinesh Kumar suffered injuries in the motor accident on 08.03.2012. The accident occurred due to rash and negligent driving of the driver of the offending vehicle. As the offending vehicle, on the date of the accident, was insured with the Respondent No.3 – Insurance Company, the Insurance Company was liable to pay compensation to the claimant. 4. The Tribunal assessed the income of the injured at Rs.4,082/- per month and considering 36% permanent disability awarded lump sum compensation of Rs.1,80,000/- towards the loss of income and awarded total compensation to the tune of Rs.2,82,811/-, the break up of which is as under: Loss of future earnings Rs.1,80,000/- Medical expenses Rs.71,241/- Pain and suffering Rs.25,000/- Transportation expenses Rs.5,000/- Loss of income @ 10 days Rs.1570/- Total compensation Rs.2,82,811/- Grounds:- (A) The Tribunal has wrongly assessed the income of the injured considering him semi-skilled labour applying the prevalent rates on the date of occurrence as per the Notification of the Labour Department, whereas the appellant was earning Rs.13,000/- per month. The Tribunal wrongly discarded the oral and documentary testimony of the claimant concerning his income. (B) The interest awarded to the tune of 9% per annum is inadequate and the claimant is liable to get 12% interest on the awarded money. (C) The award under the head of loss of income due to functional disability is inadequate and further the Tribunal did not award compensation under the head of future prospects to the appellant. (D) The counsel for the Insurance Company justifies the compensation awarded to the appellant under various heads and prays for dismissal of the appeal. Analysis:- Assessment of Income 5. The Tribunal assessed the income of the appellant at the rate of Rs.4,082/- per month. 6. (D) The counsel for the Insurance Company justifies the compensation awarded to the appellant under various heads and prays for dismissal of the appeal. Analysis:- Assessment of Income 5. The Tribunal assessed the income of the appellant at the rate of Rs.4,082/- per month. 6. The Tribunal discarded the oral and documentary testimony of the claimant regarding his income and held that in the absence of cogent evidence to prove the salary certificate Exhibit-55, it is not proved that the appellant was earning Rs.13,000/- per month. However, the Tribunal while relying upon the Exhibit-53A, Exhibits- 56A, 54A, 57A and 58A concluded that the claimant is a qualified Teacher having experience in teaching. 7. In the absence of non-examination of the witness, who issued the salary certificate Exhibit-55, the Tribunal disbelieved it and further concluded that in the absence of income tax returns, bank passbook and other supportive documents it is not justified that the claimant was getting Rs.13,000/- per month as a Teacher. Based upon the prevalent rates applicable for the daily wagers the Tribunal computed the monthly salary of the claimant as Rs.4,082/- per month applicable for semi-skilled workers. 8. In Civil Appeal No.8179/2022 : Rajwati @ Rajjo & Ors. vs. United India Insurance Company Ltd. & Ors. and Seema & Ors. vs. United India Insurance Company Ltd. & Ors. : Civil Appeal No.8180/2022, Hon'ble Apex Court held that:- “It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal’s role would be to award just and fair compensation. As held by this Court in Sunita (supra) and Kusum Lata (supra), strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, “the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases”. In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit-19) and pay slip (Exhibit-20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit-19) and pay slip (Exhibit-20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. The said documents are conclusive proof of the income of the deceased and were also corroborated by the statements of the deceased’s wife (Appellant No. 1 herein) and his coworkers. As such, the High Court was not justified in assessing the income of the deceased at Rs.4,836/- per month on the basis of minimum wages fixed by the State at the relevant time. Resultantly, we affirm the findings of the Learned Tribunal so far as they relate to assessing the deceased’s income at Rs.11,225/- per month on the basis of aforementioned two documents. Annual income of the deceased, therefore, amounts to, Rs.11,225/- x 12 = Rs.1,34,700/-.” (emphasis supplied) 9. In the case in hand, learned Tribunal, even though the respondent failed to rebut the documentary evidence, discarded the salary certificate Exhibit-55. In my view, the analysis of the Tribunal discarding the documentary proof Exhibit-55 is not sustainable. 10. The said salary certificate is issued by a Secretary of the private institute namely Manohar Vikas Shikha Samiti, Secondary School, Manoharpura Jaipur, certifying that the claimant Dinesh Kumar worked in their school as Headmaster from 2004 to 08.03.2012 and his monthly salary was Rs.13,000/- per month. The said institution is a government recognized institute. 11. As enunciated in the matter of Rajwati (supra) the strict rules of evidence, as applicable in a criminal trial, are not applicable in motor accident compensation cases and the standard of proof to be borne in mind must be of the preponderance of probability and not the strict standard of proof beyond all reasonable doubt. In other words, the party must show that their evidence is more convincing and has more weight than the evidence presented by the opponent. 12. The documentary evidence led by the claimant is more convincing in comparison to respondent No.3 and in the absence of any counter-evidence to challenge the said Exhibit-55 it can be safely concluded that the claimant is able to prove it. Therefore, in the absence of any rebuttal to the documentary evidence adduced by the claimant, the Tribunal was not justified to discard the salary certificate Exhibit-55. 13. Therefore, in the absence of any rebuttal to the documentary evidence adduced by the claimant, the Tribunal was not justified to discard the salary certificate Exhibit-55. 13. Even otherwise, adopting the Notification issued by the Labour Department, treating a qualified Teacher in the category of unskilled labour, is not only harsh but rather disrespectful to the persons who are engaged in teaching work. Unskilled or semiskilled labour is a class where the person's educational qualification is immaterial and his particular skill to do a particular work is paramount, whereas, for teaching one needs to at least ought to have a bare minimum qualification. In the case of the appellant, it is proved that at the relevant time, he owned the essential qualification fundamental for holding the post of a Teacher and was engaged in teaching. The documentary evidence Exhibit-55 is sufficient to exhibit that appellant was earning Rs.13,000/- per month. LOSS OF INCOME DUE TO FUNCTIONAL DISABILITY: 14. The appellant was aged 38 years at the time of the accident and was earning Rs.13,000/- per month. As per the disability certificate, the appellant suffered a permanent disability of 35.31%. The permanent disability certificate Exhibit-13 shows that the appellant sustained a fracture on the humerus bone alongwith radial nerve injury and a fracture on the left femur bone. The operation note Exhibit-15 coupled with the evidence of claimant PW1-Dinesh further validates that the claimant was operated and a plate along with a rod was inserted in his humerus bone. Taken on account of the above injuries the Board opined the following destruction or permanent impairing:- “Restricted Movement of left hip. Restricted movement of the left elbow.” 15. The Board further observed that due to the above injuries normal functioning like walking, running, jumping, lifting and working with the left hand has adversely been affected. The Board assessed the total permanent disability as 35.31%. 16. The Tribunal considered a permanent disability to be 36% multiplied by the assessed income (Rs.5000/-), thus computed the compensation as Rs.1,80,000/- in the head of loss of income due to functional disability. 17. To assess the quantum of compensation to be awarded, this Court has to assess whether the permanent disability caused has any adverse effect on the earning capacity of the appellant, as held by the Apex Court in the case of Sandeep Khanuja vs. Atul Dande & Ors. : (2017) 3 SCC 351. 17. To assess the quantum of compensation to be awarded, this Court has to assess whether the permanent disability caused has any adverse effect on the earning capacity of the appellant, as held by the Apex Court in the case of Sandeep Khanuja vs. Atul Dande & Ors. : (2017) 3 SCC 351. The relevant paragraph of the judgment is referred to hereunder:- “The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, the MACT approached the issue in right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of the MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a chartered accountant he is supposed to do sitting work and, therefore, his working capacity is not impaired.” (emphasis supplied) 18. In the case of Raj Kumar vs. Ajay Kumar & Ors. : (2011) 1 SCC 343 Hon’ble Apex Court held that where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation for loss of future earnings would depend upon the impact and effect of the permanent disability on his earning capacity. The Court observed as under:- “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. 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. 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 permanent 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.” 19. The appellant herein has suffered a permanent disability of 35.31% (round of 36%) and has an impaired left limb and hip bone amongst other injuries. The Tribunal though has taken the view that the appellant suffered 36% functional disability but did not apply the standard multiplier method used to determine loss of earnings due to functional disability. Further, the appellant is not a salaried person but is self-employed and manages his bread and butter. For the appellant to be able to boost his income, he is surely required to move around. The appellant can also not drive on his own, which hinders his mobility further. This proves that the functional disability of the appellant will severely affect his earning capacity, and the 36% functional disability calculated by the Tribunal is though correct but the assessed income and multiplier method adopted by the Tribunal is not correct. Therefore, the finding of the Tribunal concerning the assessment of monthly income needs to be reassessed. 20. This proves that the functional disability of the appellant will severely affect his earning capacity, and the 36% functional disability calculated by the Tribunal is though correct but the assessed income and multiplier method adopted by the Tribunal is not correct. Therefore, the finding of the Tribunal concerning the assessment of monthly income needs to be reassessed. 20. The age of the claimant was 38 years at the relevant time hence, the multiplier of 15 is applicable and after taking into consideration the functional disability of 36%, the computation under the head of loss of income, due to functional disability, comes as under:- Rs.13,000x15x12x36/100 = Rs.8,42,400/- FUTURE PROSPECTS: 21. The Tribunal has not applied the quantum for future prospects. It is a well-settled position of law that in the cases of permanent disablement caused by a motor accident, the claimant is entitled to not just future loss of income, but also future prospects. 22. In National Insurance Company Limited vs. Pranay Sethi & Ors. : (2017) 16 SCC 680 Hon’ble Apex Court held as under: “While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 23. Therefore, in the light of the aforesaid dictum, the appellant is entitled to get the 40% in addition to the loss of earnings due to functional disability under the head of future prospects. The computation under the head comes as under:- Rs.8,42,400 x 40/100 = Rs.3,36,960/- On the part of the interest : 24. Therefore, in the light of the aforesaid dictum, the appellant is entitled to get the 40% in addition to the loss of earnings due to functional disability under the head of future prospects. The computation under the head comes as under:- Rs.8,42,400 x 40/100 = Rs.3,36,960/- On the part of the interest : 24. Whether the interest awarded to the tune of 9% is insufficient and the claimant is liable to get the 12% interest on the awarded money? 25. The nationalised banks are now granting interest at the rate varying in between 7% to 7.50% on fixed deposits for more than one year up to three years. The rate of interest depends upon the rate of inflation and the supply and demand of credit. As per the RBI Guidelines presently, no bank is offering more than 7.5% as interest on the FDR. Therefore, in my view, the Tribunal has awarded a just interest over the compensation amount. Hence, this court does not find any inadequacy in the interest component awarded to the appellant. 26. On the basis of the abovementioned facts and analysis, this Court is of the opinion that the just compensation to be awarded to the claimant/appellant under different heads ought to be as under:- Loss of earning capacity due to functional disability Rs. 8,42,400/- Future prospects Rs. 3,36,960/- Medical expenses Rs. 71,241/- Pain and suffering Rs. 25,000/- Transportation expenses Rs. 5,000/- Loss of income @ 10 days Rs. 1,570/- Total compensation awardable Rs.12,82,171/- Less amount awarded by the Tribunal Rs. 2,82,811/- Enhanced amount of compensation Rs. 9,99,360/- 27. In view of the above, the appellant-claimant would be entitled to get a further sum of Rs.9,99,360/-, which shall carry interest @ 9% per annum from the date of filing claim petition. 28. Consequently, the appeal is allowed. The award dated 15.02.2018 is modified to the extent that the claimant would be entitled to a compensation of Rs.12,82,171/- minus income tax (if any) instead of Rs.2,82,811/- alongwith interest as awarded by the learned Tribunal. On the enhanced amount of compensation i.e. Rs.9,99,360/-, the appellant-claimant would be entitled to interest @ 9% per annum from the date of claim petition till the date of actual payment. 29. On the enhanced amount of compensation i.e. Rs.9,99,360/-, the appellant-claimant would be entitled to interest @ 9% per annum from the date of claim petition till the date of actual payment. 29. The respondent Insurance Company is directed to deposit the enhanced amount of compensation i.e. Rs.9,99,360/- after computing the amount already deposited (in terms of the impugned award dated 15.02.2018) along with the above interest in the Tribunal within a period of one month from the date of this judgment.