Md Jeherul Islam vs New India Assurance Co. Ltd.

Heard Mr. A. Mannaf, leaned counsel for the appellant and Mr. A.K. Dutta, learned counsel for the Respondent/Insurance Company.

Unsatisfied with the award made by the MACT, No. 2, Kamrup, Guwahati in MAC Case No. 1341/2006 by judgment dated 20.08.2013, the

claimant has preferred the appeal seeking enhancement of the compensation.

The undisputed facts in this appeal are that the claimant sustained injury in a motor vehicle accident on 17.04.2006 involving the vehicle bearing

registration No. AS-01-Y-3483, owned by the respondent No. 1 and insured with the respondent No. 3, New India Assurance Co. Ltd. The accident

occurred due to fault of the driver of the offending vehicle and the age of the claimant at the relevant time was 26 years. The Tribunal awarded a

compensation of Rs. 62,446/-, which consisted of Rs. 47,446/- towards medical expenses and Rs. 15,000/- towards pain, shock and suffering.

The sole contention raised in this appeal is that the appellant sustained 45% physical disability and the learned Tribunal did not consider the physical

disability and resultant loss of earning of the claimant, while awarding a meager amount of compensation. Learned counsel for the appellant therefore,

urged for enhancement of compensation.

The claimant examining himself on oath stated that he sustained fracture injury on his leg, which resulted permanent physical disability. In support of

the injury and disability, the claimant proved the disability certificate as Ext 2(1) & 2(2). The doctor issuing the disability certificate was also examined

as witness No. 3. It is in the evidence of the doctor, that the claimant had fracture of both the bones of left leg and his disability due to such fracture

of both the bones of the left leg was assessed as 45% (permanent). Thus evidently, the claimant sustained 45% permanent physical disability of his

lower limb. However, learned Tribunal while determining the compensation did not take into consideration the disability of the claimant and made an

award, which consisted only of the medical expenses and an amount of Rs. 15,000/-towards pain & sufferings. Though, the learned Tribunal recorded

a finding, that because of the injury, the claimant had to take rest for 6 months, surprisingly, the Tribunal did not award any amount for loss of earning

even for the period of treatment. While evidently the claimant sustained disability to the extent of 45% of his lower limb, learned Tribunal ought to

have considered the impact of such disability of lower limb on his income and accordingly ought to have determined the just and reasonable

compensation, inasmuch as, it is the onerous responsibility of the Tribunal to award just and fair compensation to the victim of motor vehicle accident.

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 the following manner :-

“The heads under which compensation is awarded in personal injury case 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 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€​

In the said judgment (Rajukumar’s case), the Apex Court also elaborately dealt with the correlation between the physical disability suffered in

an accident and the functional disability or loss of earning capacity resulting from the physical disability in para 10, 11 and 13 as under:

“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.

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€​

Since evidently the claimant sustained physical disability to the extent of 45% of his lower limb, it certainly impacted his income and the learned

Tribunal ought to have considered this aspect of the matter, which is unfortunately missing in the award. It is the settled position of law as laid down

by the Apex Court in long line of decisions including Rekha Jain Vs. National Insurance Company reported in (2013) 8 SCC 389, Rajkumar Vs. Ajay

Kumar reported in (2011) 1 SCC 343, G. Dhanasekar â€"VS- Managing Director, Metropolitan Transport Corporation reported in (2014) 14 SCC 391

and Rajkumar Vs. Ajay Kumar (supra), that the extent of physical disability and resultant functional disability or loss of earning capacity may not

always be the same. Some time extent of functional disability or loss of earning capacity may be higher than the physical disability and some time it

may be lower than the physical disability, depending on the nature of disability, occupation of the person etc. It is therefore, the duty of the Tribunal to

assess and determine the impact of physical disability on the income or earning capacity of the injured, on the basis of the physical disability assessed

by the doctor, taking into consideration the relevant factors, like age, occupation of the injured, nature of disability etc. in order to determine just and

fair compensation. The claimant evidently having sustained 45% permanent disability of the lower limb, he is entitled to be compensated for loss of

earning as a result of disability.

The Apex Court in Sayed Sadiq Vs. Divisional Manager, United India Insurance Co. Ltd. reported in (2014) 2 SCC 735 where the claimant was a

vegetable vendor and he had 69% physical disability of lower limb, the Apex Court assessed the functional disability and loss of income of the claimant

as 35% as a result of 69% physical disability of the lower limb. In the said judgment, in case of another person when a claimant sustained 22%

physical disability of upper limb and 29% physical disability of lower limb and he High Court assessed the functional disability as 30%, the Apex Court

re-assessed the functional disability and earning capacity at 85% corresponding to the disability of the upper and lower limb.

In the present case, evidently the claimant was a vegetable vendor. It can easily be understood that a vegetable vendor requires movement to

carry on his business and as such, the 45% physical disability of the lower limb certainly affected the earning capacity of the claimant, though it may

not necessary be 45%. Following the decision of the Apex Court in Sayed Sadiq (supra), where in respect of a vegetable vendor, functional disability

was assessed as 35% due to 69% physical disability of lower limb, I am also inclined to accept functional disability or loss of earning capacity of the

claimant as 20% as a result of 45% physical disability of the lower limb. Having decided the functional disability resulting from the physical disability,

the next step is to quantify the functional disability or loss of earning for determining fair compensation.

Apparently, no evidence was adduced with regard to income of the injured. However, the claim of the claimant that he was a vegetable vendor by

occupation remained uncontroverted. The occupation of the appellant as vegetable vendor having not been disputed, considering the occupation,

income of the claimant can be reasonably assumed as Rs. 3000/- having regard to the point of time when the accident took place. Since the age of the

claimant was 26 years, an amount equal to 40% is required to be added to the said income as future prospect. Thus, taking functional disability as

20%, the loss of earning of the claimant due to physical disability shall be â€" Rs. 3000+40%X20%X12X17 = 1,71,360/-. Claimant having suffered

permanent physical disability, shall also be entitled to some amount towards loss of amenities of the life and loss of expectation of life as per guideline

in Rajkumar Vs. Ajay Kumar (supra). Thus, with the above loss of earning as a result of the physical disability, the enhanced compensation, which the

claimant is entitled to, is reassessed as follows.

Loss of earning = Rs. 171,360/-

Pain & suffering = Rs. 15,000/-

Loss of amenities of life = Rs. 30,000/-

Loss of expectation of life = Rs. 30,000/-

Total =Rs. 2,46,360/-

The respondent No. 3, New India Assurance Company Ltd. shall satisfy the above award of Rs. 2,46,360/- with interest fixed by the Tribunal

from the date of filing the claim petition by depositing the same with the jurisdictional Tribunal, within 6 weeks. Any payment made in the meantime

towards satisfaction of the award shall be adjusted. It is made clear that the future prospect added to the actual income shall not carry any interest.

The Tribunal shall ensure that 50% of the awarded amount be fixed deposited in the name of the claimant for a period of 1 year 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.