Manoj Talukdar vs Regional Manager

Heard Mr. S. Das, learned counsel appearing for the respondent. Also heard Mr. R.K. Bhatra, learned counsel appearing for the respondent New

India Assurance Company Ltd.

The present appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988, challenging the judgment and order dated 15.3.2003,

passed by the learned Member, Motor Accident Claims Tribunal, Kamrup, in the MAC Case No.1010/1999.

The appellant as claimant has preferred the said claim petition claiming compensation on account of injuries sustained by him in a motor vehicle

accident. The brief case, that can be recapitulated is that on 19.9.1999, while the appellant was returning home on foot by the side of the NH-37,

suddenly the vehicle No.HR-22-CA-0180 (truck), driving by the driver in rush and negligent manner, knocked him down from backside resulting

grievous injuries to his person. He was treated in the hospital for the fracture injury sustained by him and after the release also, he continued his

treatment. The Doctor who treated him certified that he sustained 45% disability from the injuries he sustained.

On the claim petition, so preferred by him, the learned Tribunal issued notice to the owner, driver and insurer of the vehicle. Only the Insurer of the

vehicle contested the case by filing written statement and the other opposite parties did not contest the case.

In the written statement, the Insurance Company submits that the claimant is to strictly prove his case on which the allegation has been made and

for any violation in the terms and conditions of the policy, the Insurance Company will not be liable to indemnify the insured. On the basis of the

pleadings between the parties, following issued were framed:

Whether the claimant has sustained injuries while travelling in the vehicle?

Whether the driver drove the vehicle in a very rush and negligent manner?

Whether the claimant is entitled to get compensation?

Any other relief or reliefs which the claimant is entitled to get?

In the course of proceeding, the claimant examined himself and another eye witness of the occurrence and exhibited some documents and on the

basis of the aforesaid evidence, the learned Tribunal held that the claimant sustained injury in the said accident due to rush and negligent driving of the

vehicle. As regards the injury, the learned Tribunal on the basis of the medical documents as well as the disability certificate, that was issued by the

GMCH, has awarded total amount of Rs.79,000/-, which included pain and sufferings, permanent disablement, loss of amenities in life, medical

expenses, etc. It transpires that the learned Tribunal has accepted the medical documents that has been produced by the appellant regarding the

disability, without discussing in detail on the subject, as to whether the claimant sustained permanent or partial disability, as has been opined by the

Medical Officer, who issued the certificate. The learned Tribunal was of the opinion that as the original medical certificate has been produced, so

examination of the Doctor is not necessary.

The claimant/appellant however being dissatisfied with the aforesaid award, has brought the matter on the appeal on the contention that the learned

Tribunal has not taken into account the extent of permanent disability suffered by him and other various facets of the case that the petitioner has to

continue long treatment after the said accident, incurring huge expanses for his medical treatment.

I have heard the submission of learned counsel for the appellant as well as the learned counsel for the respondent on the ground of appeal. Where,

according to the learned counsel for the appellant, the amount assessed by the learned Tribunal is not proper and the Tribunal has failed to award an

adequate compensation on account of permanent disability, the learned counsel for the respondent has vehemently opposed such contention of the

claimant and contended that the claimant is not entitled to any such compensation on account of permanent disability, whereas the medical document

that has been produced by him is not properly proved. That apart, it has also been contended that there is no any proper evidence from the side of the

appellant as to what extent he was incapacitate due to such disability or to what extent his earning capacity was affected for the injuries sustained.

In pursuant to the submission made above, I have also perused the evidence of the claimant/appellant, given before the Tribunal. The claimant in his

evidence, nowhere mentioned as to what extent his income capacity has been affected for such disability. He simply asserted that he is unable to

work properly after the accident. His other witness is also silent on that aspect save and except he proved the fact that the injured sustained his

injuries in the said accident due to rush and negligent driving of the vehicle by its driver.

On the next, it is to be noted that although the claimant has produced certain documents issued by the Medical Officer of the GMCH, regarding his

physical disability, the attending Doctor has not been examined nor any prayer has been made to examine the said witness. In such eventuality, the

said document and its content is not at all proved and the other side is also deprived of cross-examine the said Doctor, as to and what basis such

disability has been assessed and its impact upon his earning capacity.

The learned counsel for the respondent has referred to the decision of 2011 (1) SCC 343 (Raj Kumar vs. Ajay Kumar and others), wherein as to

under what circumstances, the disability of a person can be accounted and the duty of the learned Tribunal, while assessing such disability. Certain

relevant paragraphs of the said decision are reproduced here-in-below for better appreciation:

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

Pecuniary damages (Special Damages):

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

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

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

(b) Loss of future 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), (iii), (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. Assessment of pecuniary damages

under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the

evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further

treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with

reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the

claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some

difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in

this case. Assessment of future loss of earnings due to permanent disability.

Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability

refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after

achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to

the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and

recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and

bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful

activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident.

The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which

are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for

short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be

permanent disabilities for the purpose of claiming compensation.

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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. 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

terns 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 (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance

Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).

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The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of

permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an

active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should

therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury

cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for

example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic

Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability.

The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of

permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal

should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the

percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with

reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb,

the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with

reference to the whole body and if so the percentage.

The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready

to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured,

readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they

may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the

evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge

Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and

assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the

medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local

Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.

We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of

earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of

loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability

(except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage

of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent

disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by

the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning

capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.â€​

Moreover, in the aforesaid decision, in paragraph 16 it has also been discussed that where the certificate from Medical Board has been produced

and due to busyness of the Doctor, he did not attend the Court. in that circumstances, the Court can accept the certificate issued by the Board of

Doctors but at first effort should be made to record the evidence of the treating Doctor.

The learned counsel for the respondent also referred to certain decisions of this Court reported in:

(i) 2009(1)GLT 370 (National Insurance Co. Ltd. vs. Bimal Nath and others) &

(ii) 2015(2) GLT 848 (National Insurance Co. Ltd. vs. Bapu Khan (Md.) and another).

From the ratio laid down by the Apex Court and this High Court, in the aforesaid decisions, it transpires that such a medical document is to be

proved by examining the Doctor, who issued such certificate, to prove the extent of disability, etc., as indicated above.

Now in the present case, as it appears that although the claimant had exhibited the medical documents but has not examined the Doctor, who

issued such certificate and in such circumstances, the extent of disability whether temporary or permanent, etc., is not at all properly proved. However

the learned Tribunal has awarded a lump sum amount of Rs.40,000/-, under the head of permanent disability.

In the backdrop of the case and that the matter pertains to an old pending one and the claimant is still in the legal battle, we do not propose to

disturb the assessment of the said amount, which was not made on the basis of any multiplier etc. However, considering the facts and circumstances

that the claimant was under prolong treatment inside and outside the hospital, for which he might have incurred sufficient expenditures, this Court

proposed to enhanced certain amount in the following manner:

 i) Pain and suffering : Rs.30,000/-.

ii) For permanent disablement : Rs.40,000/-

iii) Loss of amenities in life : Rs.20,000/-

iv) Loss of income for 7 months @ Rs.4000/- P.M. : Rs.28,000/-.

v) Medical expenses : Rs. 9,002/-

vi) Miscellanies expenses : Rs.20,000/-

Total : Rs.1,47,002/- (Rs. One lakh forty seven thousand two only)

Accordingly, the claimant will be entitled to the award as indicated above with interest @ 7.5% p.a. from the date of award till realization. The

enhanced amount shall be deposited before the Registry of the Court, within a period of four weeks from the date of order, by adjusting the amount

already paid.

With the above, the appeal succeeds, to the extent as indicated. Return back the LCR immediately.