Madan Ch Rabha vs New India Assurance Co Ltd And Ors

Heard Mr. A.Lal, learned counsel for the appellant and Mr. K.K. Bhatta, learned counsel for the respondents.

This appeal by the Insurance Co. is filed against the judgment and award dated 15/03/11 passed by MACT, Goalpara in MAC Case No. 143/2004.

One Sanjay Rabha sustained injury in a motor vehicle accident on 28/12/2003 involving the vehicle bearing registration No. AS-01/J-7993, owned by

the respondent No. 2 and insured with the respondent No. 1 New India Assurance Co. Ltd. On an application made by the claimant, the tribunal

granted a compensation of Rs. 18,578/- which comprised of Rs. 4578/- for medical expenses, Rs. 9,000/- for loss of earning during treatment and Rs.

5,000/- for pain and suffering.

Unsatisfied with the award, the claimant preferred the instant appeal praying for compensation.

The contention of the learned counsel for the appellant is that the injured claimant sustained 90% disability. However, the learned tribunal while

passing the impugned award did not consider the disability sustained by the injured claimant and awarded a paltry amount of Rs. 18,578/-. Contention

of the learned counsel for the Insurance co. is that the disability was not assessed by a board of competent doctors as per the guidelines of the

Ministry of Social Justice Empowerment and as such, the disability certificate, could not be looked into. The factum of accident and the claimant

Sanjay Rabha having sustained injury in the accident was not in dispute. The claimant produced the disability certificate (Ex. 1) which was issued by

the District Medical Board comprising of four doctors and the claimant examined Dr. S. Rahman (PW 4), who was a member of the Board, assessing

the disability.

PW 4, Dr. S Rahman stated in his evidence that at the relevant time he was working as a Senior Medical & Health Officer at the Goalpara Civil

Hospital and was also a member of the District Standing Medical Board. According to him, the Board examined the injured Sanjay Rabha, who was

aged about 21 years, and found that the injured sustained intra-cerebral haemorrhage and haemorrhagic contusion. According to PW 4, the injured

suffered mental retardation and disorientation and the Board assessed the permanent disability of the claimant/injured as 90%. PW 4, however, stated

that he did not treat the injured. He also stated that no psychiatrist was a member of the Medical Board and he himself was a surgeon. That the

claimant was examined by a board of doctors of the civil hospital in order to assess the disability and the disability certificate (Ex. 1) was issued by

such Medical Board was not in dispute and the genuineness of the disability certificate was above board.

From the cross-examination of the doctor, nothing could be elicited to demonstrate that the board consisted of the doctors was not competent to

assess the extent of permanent disability sustained by the present claimant. Only because a psychiatrist was not a member of the Medical Board, I do

not find any reason to discard the entire medical evidence and the certificate which was issued by a statutorily constituted Medical Board. Since there

is nothing on record to show that the board was not competent to assess the disability of the claimant for the injury sustained by him, nor there was

anything to doubt the genuineness of the disability certificate, I find no force in the submission of the learned counsel for the Insurance Co. that no

reliance can be placed on the medical certificate. Learned tribunal ought not to have ignored such medical evidence of the doctor which supported the

claimant’s case. Surprisingly the award is silent regarding the permanent disability of the injured. The oral evidence of the claimant coupled with

the documentary evidence, including the disability certificate and the evidence of the doctor, which remained unimpeached, clearly established that the

claimant sustained permanent disability of 90% because of mental retardation and disorientation.

Since there was unimpeachable evidence of the doctor stating that the claimant sustained 90% permanent disability, it was the duty of the tribunal to

assess the functional disability or impact of such disability on the income of the injured, inasmuch as, in case of serious injuries or permanent disability

compensation needs to be awarded under the following heads : â€

(i) Loss of future earning on account of permanent disability.

(ii) Medical expenses relating to treatment and incidental expenses thereto.

(iii) Future medical expenses.

(iv) Loss of amenities of life.

(v) Loss of expectation of life. (See Raj Kumar-VS- Ajay Kumar) (2011) 1 SCC 343.

The accident in the instant case occurred in the year 2003 and the tribunal passed the award in the year 2011 and as such, after 15 years of the

accident, sending back this matter to the tribunal again for determining functional disability, in my considered view, would frustrate the object of the

legislation itself and being of the above view, I would like to determine the compensation of the claimant on the basis of the materials brought on

record and the permanent disability assessed by the doctor.

It is settled position of law that physical disability and the functional disability are not the same. The extent of functional disability as a result of

physical disability sometime may be higher and sometime may be lower than the extent of physical disability. In an extreme case, it may so happen,

that there may not be any functional disability at all as a consequence of the physical disability. It all depends on the nature of injury, the occupation in

which the person was engaged and the other attending facts and circumstances of each individual case. In the instant case, evidently the claimant was

a cultivator and the evidence adduced by the claimant shows, that his approximate income was Rs. 3,000/- per month, which were accepted by the

tribunal and in fact, granted an amount of Rs. 9,000/- towards loss of earning for the period of treatment on the basis of the said income of the

deceased.

Having regard to the nature of disability and the occupation of the injured, which basically requires physical labour, the loss of earning in view of

occupation in which the claimant was engaged might not be equal to the extent of disability in the instant case. Keeping in view the nature of disability

and the occupation of the claimant, this Court is inclined to accept the functional disability as 60%.

Since the evidence adduced by the claimant as regards his income was accepted by the tribunal and such income having regard to the occupation

of the claimant and the point of time when the accident took place appears to be reasonable, the loss of earning of the injured can very well be

assessed on the basis of the said income of the claimant.

From the record it appears, that the age of the claimant was 21 years at the relevant time when the accident occurred, and as such, multiplier 18

has to be applied for determining the loss of earning. Thus, assuming the income of the claimant as Rs. 3,000/- per month, adding 40% thereto as

future prospects, loss of earning of the claimant shall be Rs. 3000/- +40% x60% X 12 X 18= Rs.5,44,320/-.

In addition to the loss of earning the claimant shall also be entitled to the amount incurred by him towards medical expenses. Though the claimant

stated that an amount of Rs.50,000/- was incurred for treatment, the evidence brought on record shows that claimant adduced documentary evidence

regarding expenses of Rs. 4578/- for purchasing medicine. Having considered the nature of injury and duration of treatment, it is not difficult to

comprehend that in addition to purchase of medicine, claimant must have spent some more money for incidental expenses including transportation,

nourishing food, attendant etc. Therefore, medical expenses including the purchase of medicine is assumed as Rs. 15,000/-. As the claimant suffered

permanent disablement following the principle laid down by the Apex Court in Raj Kumar- VS- Ajay Kumar (Supra), he is also entitled to some

amount towards non-pecuniary damage for pain and suffering, loss of expectation of life and loss of amenities of life. Accordingly, the just and fair

compensation to which the claimant is entitled in the instant case is re-assessed as under :-

Loss of Earning = Rs.5,44,320/-

Medical Expenses = Rs. 15,000/-

Pain and Suffering = Rs. 30,000/-

Loss of Expectation of Life = Rs. 40,000/-

Loss of Amenities of Life = Rs. 40,000/-

_____________________

Total = Rs. 6,69,320/-

The respondent No. 1, New India Assurance Co. Ltd. shall satisfy the above award along with interest @ 7 % from the date of filing the claim

petition as fixed by the tribunal by depositing the same with the tribunal within six weeks. However, the amount awarded as future prospects shall not

carry any interest. The tribunal shall ensure that 50% of the awarded amount including the interest be deposited in the name of the claimant in a

nationalized bank for a period of three years.

The appeal is accordingly allowed.

Send back the LCR.