Lakhi Rani Das vs M/S Badri Rai Co. And Anr.

Heard Mr. A.K. Gupta, leaned counsel for the appellant and Ms. M Choudhury, learned counsel for the Respondent/Insurance Company.

This appeal is directed against the judgment and award dated 13.02.2014 passed by the MACT, No. 2, Tinsukia in MAC Case No. 151/2008,

whereby, the learned Tribunal granted a compensation of Rs. 3,51,441/0 with interest @ 6% per annum from the date of filing the claim petition, in

favour of the claimant/appellant.

One Bimal Das sustained injury in a motor vehicle accident on 16.06.2008 involving vehicle bearing registration No. ASâ€"06-D-9752, owned by

the respondent No. 2 and insured with the respondent No. 3, Oriental Insurance Company Limited. The injured filed an application before the MACT,

Tinsukia through his mother and the learned Tribunal granted a compensation as under:

Medical expenditure - Rs. 1,75,441/-

Future prospect - Rs. 50,000/-

Mis. Expenses - Rs. 50,000/-

Pain & suffering - Rs. 20,000/-

Future treatment - Rs. 20,000/-

Unsatisfied with the above award, the claimant prayed for enhancement of the award basically on the following counts.

(i) Loss of earning, (ii) non-pecuniary damages on account of pain & suffering and (iii) cost of future treatment.

The contention of the learned counsel for the appellant is that the injured had 100% disability because of blindness of both the eyes as a result of the

accident. However, learned Tribunal did not consider the impact of the disability suffered by the injured on his loss of earning. The factum of the

injured Bimal Das having sustained injuries on his eyes and other part of the body were not in dispute. In support of the injuries and the disability,

besides, adducing oral evidence of the doctor, who issued disability certificate, claimant proved amongst other, the Ext.7 & 8, certificates issued from

the Apollo Hospital, where the injured undergone treatment, Ext. 9 & 10 being concession certificate and Ext.11 disability certificate. All these Ext.7,

8, 9 and 10 demonstrated that the injured had total blindness of both the eyes due to injury. The Ext.11 issued by the Medical Officer of Tinsukia Civil

Hospital shows that the injured sustained permanent disability of 90% because of blindness of both the eyes.

Witness No. 4, the doctor of the Civil Hospital, who issued the disability certificate testifying himself on oath stated that on examination he found the

injured totally blind of both the eyes and stated to have issued the Ext.11 disability certificate. During cross examination, he stated that he was not an

ophthalmologist. Learned Tribunal declined to accept the Ext.11, disability certificate, issued by the PW-4, the Sr. Medical & Health Officer of

Tinsukia Civil Hospital, merely on the ground that he was only a general physician and not an ophthalmologist. The Tribunal observed that “the

evidence of CW-4 cannot be relied upon too much as he is not an ophthalmologist and he had only physically examined the injured.â€​

It is the settled position of law, that the disability certificate can be issued either by the doctor, who treated the victim or injured, or who personally

examined the victim for such purpose. It is pertinent to mention that besides the Ext.11, the claimant also proved some other medical documents being

Ext. 7, 8, 9 & 10, issued from the Apollo Hospital, where the injured undergone treatment, which also clearly demonstrated that the claimant suffered

total blindness of both the eyes, and those documentary evidence were not controverted. However, the learned Tribunal did not state anything in the

award as to why those ext. 7, 8, 9 & 10 issued by ophthalmology department of Apollo Hospital were not considered, though mentioned in the award

that the claimant produced the document regarding his treatment in the ophthalmology department of Apollo Hospital.

It is to be born in mind that in a proceeding before Tribunal under the Motor Vehicle Act, one is not required to prove a fact by the standard of

proof ‘beyond reasonable doubt’. Standard of proof in such proceeding cannot be higher than the preponderance of probability. Therefore, it is

sufficient, if the victim of the accident can establish his case in the touchstone of preponderance of probability. In view of Ext. 7, 8, 9,10 & 11 and also

the evidence of witness No. 4, Sr. medical & health Officer of the Civil Hospital, who assessed the disability, there was no reasonable ground to doubt

the evidence of No. 4 and the Ext. 11 disability certificate, which was supported by Ext. 7, 8, 9 & 10 issued from the ophthalmology department of the

Apollo Hospital, where the injured took treatment. When the claimant sustained 90% disability because of complete blindness of both the eyes, learned

Tribunal ought to have considered the impact of such disability on the earning capacity of the injured.

In case of permanent disability, Tribunal is obliged to assess the impact of permanent disability on the earning capacity or loss of earning of the

injured, in order to determine just and fair compensation. The Apex Court in a long line of decisions, some of which are Rekha Jain Vs. National

Insurance Company reported in (2013) 8 SCC 389, Rajkumar Vs. Ajay Kumar reported in (2011) 1 SCC 343 and G. Dhanasekar â€"VS- Managing

Director, Metropolitan Transport Corporation reported in (2014) 14 SCC 391 discussed in detailed the correlation between the physical disability

sustained due to accident and the functional disability or loss of earning of the injured resulting from the physical disability.

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. “

The Apex Court in Rajkumar Vs. Ajay Kumar reported in (2011) 1 SCC 343 succinctly laid down the guidelines for granting compensation in case

of personal injury in paragraphs 6, 10, 11 & 13 observed as follows.

“6. 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€​

“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. 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.â€​

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.

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.â€​

What therefore follows from the above ratio is that though physical disability is required to be assessed by the medical expert, the impact of

physical disability on the earning of the victim is required to be assessed by the Tribunal on the basis of the facts and circumstances of a particular

case, reason being that the extent of functional disability or loss of earning may not always be equal to the extent of physical disability.

13 In the present case, evidently, the injured was working as a pendal decorator. No expertise is required to comprehend that a person having

complete blindness of both the eyes cannot undertake any work without the help of others. Since with the blindness of both the eyes the injured will

not be able to undertake any physical work without the help of any other, the functional disability or loss of earning in the instant case, in my

considered opinion has to be accepted as 100%.

In order to quantify the loss of earning the next query required to be met is what was the income of the injured at the time of accident. The

claimant adduced oral evidence that the injured was engaged in the work of pendal decorator. However, no documentary evidence of the income was

adduced and therefore, the learned Tribunal assumed notional income at Rs. 3000/- of the injured. The injured having been engaged in an unorganized

sector, he could not be expected to produce any documentary evidence with regard to his income and as such, obviously the learned Tribunal was

required to take recourse of some guess work for assuming the income on the basis of the material brought on record and the ground realities. The

fact that the injured was an earning person and engaged in the work of pendal decorator were not disputed. When the injured was an earning person

of 35 years age, while assuming the income, the occupation of the injured ought to have been taken into consideration.

Hypothetical notional income is intended for a non-earning person and not for a person, who is an earning one. Since the injured was an earning

person and engaged in the profession of pendal decorator, his occupation will fall within the category of skilled worker and as such having taken note

of the occupation, at the relevant point of time, the monthly income of the injured could not be less than Rs. 4000/- and accordingly, I am inclined to

accept income of the injured as Rs. 4000/- per month. The learned tribunal granted an amount of Rs. 50,000/-towards future prospect, which in my

considered view does not appear to be just and proper. In view of the age of the injured being 35 years, an amount equal to 40% is required to be

added to the actual income as future prospect as per guideline laid down by the Apex Court. The injured being 35 years of age, the appropriate

multiplier would be 16 for determining the loss of earning of the injured.

Thus, with the above monthly income as Rs. 4000/- with an addition of 40% by applying multiplier 16, the loss of earning would come to Rs.

4000+40%X12X16 =9,98,400/-. The medical expenditure and the incidental expenses for treatment as reflected in the award does not require any

modification in view of the evidence brought on record. However, considering the permanent disability, the claimant is also entitled to some amount

towards loss of amenities in life and loss of expectation of life as well as pain & suffering as per the principle laid down in Rajkumar Vs. Ajay Kumar

(supra). Learned Tribunal awarded Rs. 20,000/- on account of pain & suffering, which deserves some enhancement considering the gravity of the

injury.

With the above enhancement on account of loss of earning and pain & suffering, the quantum of enhanced compensation, to which the claimant is

entitled is reassessed as under:

Loss of earning Rs. 4000+40%X12X16 =9,98,400/-

Medical expenditure Rs. 1,75,441/-

Pain & suffering Rs. 50,000/-

Loss of amenities Rs. 50,000/-

Loss of expectation of life Rs. 50,000/-

Future treatment Rs. 20,000/-

Total Rs.13,43,841/-

The respondent No. 3, Oriental Insurance Company shall satisfy the above award of Rs. 13,43,841/- with interest awarded by the Tribunal by

depositing the same with the jurisdictional Tribunal within 6 weeks. The amount of future prospect shall not carry any interest. Any payment made in

the meantime towards satisfaction of the award shall be adjusted.

The Tribunal shall ensure that 50% of the awarded amount with interest be fixed deposited in the name of the injured Bimal Das for a period of

three year and 20% for a period of one year and 10% for six months in a nationalized bank. Rest of the amount shall be released to the claimant by

A/C payee cheque.

The appeal accordingly stands allowed.

Send back the LCR.