Gaji Rahman vs Divisional Manager And 2 Ors

This statutory appeal u/s 173 of the MV Act is filed by the claimant against the judgment and award dated 20/12/2012 passed by MACT, Goalpara

in MAC Case No. 530/2003 praying for enhancement of the award.

The claimant Gaji Rahman sustained injury in a motor vehicle accident on 1/6/2000 involving the vehicle bearing registration No. AS-18/2706,

owned by the respondent No. 2 and insured with the respondent No. 1. The claimant filed an application praying for compensation and the learned

tribunal by the impugned judgment and awarded an amount of Rs. 15,425/- as compensation which consisted of Rs. 425/- as special damage towards

medical expenses and Rs. 10,000/- as non-pecuniary damage for pain and sufferings.

Aggrieved by the said award the claimant preferred the instant appeal.

Learned counsel, Mr. H. Das for the appellant submits that while granting meagre amount of compensation, the learned tribunal failed to take into

consideration the gravity of the injury and the permanent disablement suffered by the claimant, and therefore, urged for enhancement of the

compensation.

The impugned judgment transpires that the learned tribunal did not discuss anything regarding the injury and disability allegedly suffered by the

appellant. The claimant in his evidence deposed, that because of the injury, he suffered loss of hearing to the extent of 55% and also proved the

disability certificate Ex. 3 issued by the board of doctors. The claimant examined one doctor from the board, who testified that the claimant sustained

55% disablement of the left ear and such evidence was not controverted.

Learned counsel for the appellant relying on a decision of this Court in Dipak Bardhan- VS- Pranab Debnath & Ors. reported in 2011 (3) GLT 83

contends, that the claimant is entitled to compensation towards loss of earning to the extent of 55%, because of disability of one ear. It is the settled

position that the loss of earning capacity or functional disability and physical disability are not synonymous. The physical disability or the extent of

physical disability suffered by a victim in an accident is supposed to be assessed by the medical expert, whereas, the impact of such physical disability

on the earning capacity of the person depends upon many factors including the nature of occupation, age etc. and it is the duty of the tribunal to

determine the functional disability or loss of earning of the victim as a result of the physical disability. In a particular case, the functional disability may

be higher than the physical disability. Similarly, in some cases, functional disability or loss of earning due to the impact of physical disability may be

lower than the extent of physical disability and it would always depend on the facts and circumstances of each case.

The Apex Court, in G. Dhanasekar â€"VS- Managing Director, Metropolitan Transport Corporation reported in (2014) 14 SCC 391 dealing with the

co-relation between the functional disability and physical disability held as under : -

“As far as compensation for functional disability is concerned, it has to be borne in mind that the principle cannot be uniformly applied. It would

depend on the impact caused by the injury on the victim’s profession/career. To what extent the career of the victim has been affected, thereby

his regular income is reduced or dried up will depend on the facts and circumstances of each case. There may be even situations where the physical

disability does not involve any functional disability at all.â€​

In the instant case, the tribunal ought to have considered the impact of physical disability alleged by the claimant and ought to have taken a decision

where such physical disability resulted in loss of income of the victim and if so, to what extent. Unfortunately the learned tribunal totally ignored this

aspect of the matter, in spite of ample evidence brought on record. The evidence brought on record by the claimant in the instant case is that the

claimant is a cultivator and he was earning Rs. 5,000/- from his occupation of cultivation. There is no evidence to show as to how and to what extent

the earning capacity of the claimant was impacted due to hearing disability of one ear to the extent of 55%. Having considered the nature of job

undertaken by the claimant, it is difficult to hold, that the 55% disability of one ear will affect the physical activity of the claimant. Though there may

not be direct impact of the physical disability on the occupation of the claimant, it will certainly affect his amenities of life. The Apex Court in Raj

Kumar â€"VS- Ajay Kumar reported in (2011) 1 SCC 343 succinctly laid down the guidelines for granting compensation in case of personal injury in

the following manner :-

“The heads under which compensation is awarded in personal injury cases are the following :-

Pecuniary damages (Special damages)

(ii) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the inured would have made had he not been injured, comprising :

(a) Loss of earning during the period of treatment ;

(b) Loss of earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is

specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (ii), (v) and (vi)

relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage)

and loss of expectation of life.â€​

As per the above guidelines of the Apex Court, in case of personal injury, having permanent physical disability, compensation is to be given under

the heads of actual medical expenses, future medical expenses, loss of earning because of the disability or the impact of the injury, loss of amenities in

life, pain and sufferings and loss of expectation of life.

Having considered the nature of occupation of the claimant, I am of the view that there may not be any possibility of the income of the claimant

being directly impacted by the injury. But because of the loss of hearing capacity to the extent of 55%, the claimant would certainly face

inconvenience and some amount of hardship in day-to-day life, and therefore, deserves compensation for loss of amenities and loss of expectation of

life, besides, the special damage for medical expenses and non-pecuniary damage towards pain and suffering.

Thus, having taken note of the facts and circumstances of the case, the nature of injury and disability sustained by the claimant, I am of the view

that besides, the amount awarded by the tribunal an additional amount of Rs. 1 lac towards loss of amenities of life and loss of expectation (Rs.

50,000/- + Rs. 50,000/-) should be given to the claimant and accordingly the award is enhanced by an amount of 1 (one) lac towards loss of amenities

of life and loss of expectation of life of the claimant.

With the above enhancement in the award, the appeal filed by the claimant is allowed.

The respondent No. 1 United India Insurance Co. Ltd. shall satisfy the above award with interest as fixed by the tribunal within six weeks by

depositing the same with the jurisdictional tribunal.

Send back the LCR.