Bajaj Allianz General Insurance Co. Ltd. vs Deepak Kumar Nayak and Others

I.M. Quddusi, J.—Heard. The appellant-insurance company has filed this miscellaneous appeal u/s 173 of the Motor Vehicles Act, 1988 against the impugned award dated 12.04.2010 passed by the learned 7th Additional Motor Accident Claims Tribunal, Raipur (CG) (for brevity ''the tribunal'') in Claim Case No. 92/2008 thereby awarding compensation to the tune of Rs. 3,71,000/- along with interest @ 6% to the claimant/respondent No. 1.

Permission u/s 170 of the Motor Vehicles Act, 1988 to contest the claim on all available defences was granted to the appellant-Company.

Facts of the case, in brief, are that on 25.3.2008 at about 4.00 p.m. The claimant was traveling as passenger in the bus bearing registration number CG04-E-1076. The said bus collided with the tractor as a result of which the claimant sustained injuries on his left leg which resulted in permanent disability. The claimant claimed compensation to the tune of Rs. 4,25,000/- mainly on the ground that he was the only earning member in the family and due to his disablement, his family has sustained irreparable loss.

Non-application Nos. 1 & 2 have been proceeded ex-parte, However, the appellant / non-applicant No. 3 has filed its written statement and denied the claim of the claimant on various grounds.

On the pleadings of the parities, the tribunal has framed as many as five issues and after hearing the parties in the matter has partly allowed the claim petition of the claimant and awarded a sum of Rs. 3,71,000/- under various heads along with interest @ 6%.

Learned counsel for the appellant has submitted that the claimant had got permanent disablement in relation to left leg only and therefore the tribunal has erred in calculating the income of the injured treating his total ''permanent disablement to the extent of 60%. He has also submitted that the Medical Officer, who has examined the injured, has stated in his statement that permanent disability of the claimant is, mentioned as 60% in relation to his left leg only and therefore, the tribunal should not have calculated the compensation treating the permanent disablement of the claimant as 60% as whole. He has further submitted that according to the statement of the Medical Officer the certificate has not been issued to the claimant in the format prescribed under the Rules and it was prepared according to the list of physically handicapped persons and was issued to the injured for getting benefit under a government scheme and the same was not issued to produces before the tribunal. The Medical Officer has further stated that the permanent disability, which has been mentioned as 60%, is in relation to left leg and he has not assessed the permanent disability of the whole body of the injured. He has also submitted that the value of medicines purchased by the claimant has been assessed as Rs. 15,000/- in place of Rs. 8,009/- for which the cash memos were submitted by the claimant before the tribunal Ultimately, he submitted that in such circumstances the tribunal has committed mistake in assessing the loss of earning capacity of the injured at 60%.

On the other hand, learned counsel appearing for the respondent No. 2 & 3 has supported the impugned award.

We have heard learned counsel for the parties and perused the records of the tribunal as also the findings given in the impugned award.

The tribunal in the award has calculated the income of injured as Rs. 100/- per day and by presuming that the claimant, who was labourer by profession, would get work for 24 days only, assessed the income of the claimant and by applying the multiplier of 17, assessed the loss of income of the injured at Rs. 3,06,000/-. Besides this the tribunal has awarded Rs. 15,000/- for medical treatment, Rs. 15,000/- for nutritious diet 10,000/- for the attendant, Rs. 25,000/- for pain and sufferings. Thus, the total amount of compensation according to the tribunal comes to Rs. 3,71,000/-.

After perusal of the assessment mode by the tribunal, we see that the tribunal has ignored the loss of income for the period during which the injured remained admitted in the hospital i.e. from 9.5.2008 (date of admission) to 28.7.2008 (date of discharge). In the discharge ticket the Consultant had advised to take certain medicines and that has also not been assessed. Besides this, the expenses incurred in the hospital towards diet for 82 days have also hot been taken into consideration. Thought the plea of the learned counsel for the appellant is that the injured had gone for 15 days to his house due to strike of the doctors, but it cannot be disputed that during this period he could not do his work of labourer.

So far as the contention raised by the learned counsel for the appellant that the permanent disability of the claimant to the extent of 60% was only in respect of his left leg and although in the medical certificate it is mentioned that his condition is not likely to improve and reassessment was recommended but it could not have been treated as total 60% permanent disablement is concerned, we have given a deep thought over the contention raised by the learned counsel for the appellant and found that the claimant was a labourer and due to his permanent disability to the extent of 60% in relation to his left leg, he would not be able to be work as labourer in future as with one leg he cannot perform the work of a labourer of and therefore for the purpose of his job it cannot be said that he was not disabled permanently to the extent of 60% as assessed by the tribunal.

Anyhow in case the permanent disability is reduced, even then Considering the age of the claimant i.e. 24 years, the multiplier of 18 should have been applied by the tribunal as per decision of the Hon''ble Supreme Court in the matter of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) SCC 121. Besides this, the diet money for 82 days @ Rs. 300/- per day was obvious but the same has not been assessed by the tribunal. Future medical expenses and also loss of income during admission in the hospital have also not been assessed. All the aforesaid facts, which ought to have been taken into consideration by the tribunal, have not been taken into consideration by the tribunal while awarding Rs. 25,000/- towards pain and suffering due to permanent disablement, which is on the lesser side.

In view of the above, since no cross-appeal has been filed by the claimant for enhancement of the amount of compensation awarded to him, considering the above mentioned facts and circumstances we are of the opinion that the amount awarded to the claimant by the tribunal is not excessive.

Coming to the argument advanced by learned counsel for the appellant that the tribunal should not have calculated the compensation treating the loss of earning capacity of the injured at 60% particularly in view of the fact that the Medical Officer has stated that the certificate is issued not for the purpose of producing before the tribunal below.

The provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Incapacity to earn is to be determined with reference to work the injured was doing at the time of accident. 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. 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 Suppose, the injured was a driver aged 30 years, earning Rs. 3000/- per month. His hand is amputated and his permanent disability is assessed at 60% He was terminated from his job as he could no longer drive. His Chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. In this situation his loss of future earning capacity will be more than the permanent disability sustained by him.

In the present case the injured, who is a labourer by profession and at the time of accident was 23 years of age, has undergone treatment for a period of more than three months and while undergoing treatment he faced four operations and even a rod has been inserted in his left leg. The said defect in the leg of the claimant will certainly make him unfit to do the work particularly in view of the fact that he is labourer and has to do strenuous work, which involves physical exertion, In addition to that, his body is unable to function properly and he is unable to lead a normal life.

Further, the doctor, who has been examined in the instant case, has stated that after examination of the injured, he being the Senior Doctor and Member of the Medical Board has issued the certificate of disablement to the injured and ''A and A'' part of which bears his signatures. In the cross-examination he has denied the suggestion that on the demand of the injured a false certificate has been issued to him. He has also stated that disablement is not because of negligence on the part of the injured but the same is result of injury.

In view of above, the certificate produced by the injured before the tribunal cannot be ignored merely on the ground that the same was not issued in the format prescribed under the Rules and thus, loss of earning assessed by the tribunal is just and proper and the same do not call for any interference by this Court. In the result, the appeal has no substance, the same deserves to be dismissed and is hereby dismissed. No order as to costs.