Md.Sahjahan Ali vs Mahendra Ch. Das And 2 Ors

Heard Mr. B. K. Jain, 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. 268/2007 (199/2007 Old), the claimant preferred the

instant appeal seeking enhancement of the compensation.

The claimant, Sahjahan Ali met with an accident on 05.12.2006 involving the vehicle bearing registration No. AS-01-R-5907, owned by the

respondent No. 1 and insured with the respondent No. 3 and filed an application before the MACT seeking compensation for the injury sustained due

to the accident. Learned Tribunal by the impugned judgment awarded compensation of Rs. 74,100/- which consisted of Rs. 26100/- towards medical

expenses, Rs. 10000/- towards pain & suffering, Rs. 10000/- towards loss of amenities of life, Rs. 25000/-towards disability and Rs. 3000/- for

miscellaneous expenses.

Learned counsel Mr. Jain contends that the claimant sustained permanent physical disablement of 50% resulting in loss of earning of the claimant,

but the learned Tribunal awarded a lumsum amount of Rs. 25000/- towards disablement, without considering the evidence brought on record and

without determining loss of earning due to such disability and as such, urged for enhancement of the compensation by awarding a suitable amount

towards the loss of earning on account of disability. Further contention of the learned counsel, relying on the decision of the Apex Court in Narendra

Singh Vs. Nishant Sharma reported in (2015) 14 SCC 353 that the interest awarded by the learned Tribunal was on lower side and therefore urged for

enhancement of the rate of interest. It is also submitted that the quantum of award on account of non-pecuniary head was also very meager requiring

some enhancement to make the compensation just and fair.

Mr. A.K. Dutta, learned counsel for the Insurance Company submits, that though the claimant suffered 50% physical disability, that might not have

affected the earning capacity of the claimant, inasmuch as, the claimant admitted in his evidence that he was able to walk without the help of others.

The admitted fact in the instant case is that the claimant sustained 50% physical disablement of his lower limb and to that effect, the claimant

adduced oral evidence of the claimant himself as well as medical evidence. The doctor who issued the disability certificate was examined on oath.

Besides oral evidence, the claimant also proved documentary evidence being disability certificate (Ext.2 & 5) showing that the claimant sustained 50%

disability of his leg. The claimant in his evidence-in-chief stated that he was engaged in business of bamboo and bamboo product and was earning Rs.

6000/- per month, and due to disability, he has not been able to carry on his earlier occupation. However, in course of cross examination, he stated that

he was able to walk without the help of others. Taking a clue from this part of the cross examination, learned counsel Mr. Dutta submits that there

was no probability of loss of earning, as the claimant was able to walk without the help of others.

It is settled position of law as held by the Apex Court in Rekha Jain Vs. National Insurance Company reported in (2013) 8 SCC 389 that physical

disability and loss of earning or functional disability are not synonymous. The physical disability may result in loss of earning, affecting the earning

capacity of the injured and in some circumstances, it may not even affect the earning capacity. Again the extent of physical disability and resultant

loss of earning also may not always be the same. On the peculiar facts and circumstances of a case, the occupation of the person who sustained

injury, nature of the job/occupation etc. are the factors, which guide the impact of physical disability on the loss of earning. Therefore, sometimes the

loss of earning as a result of impact of physical disability may be higher than the extent of physical disability. Similarly, in some cases, it may be lower

than the physical disability. It is therefore, for the Tribunal to assess and determine the impact of physical disability on the earning capacity of the

injured, on the basis of the facts and circumstances of the particular 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.

In the instant case, admittedly the claimant had 50% physical disability of his lower limb and such fact has also been proved by adducing evidence

both, oral as well as documentary. In fact, learned Tribunal has also accepted the factum of 50% physical disability of the lower limb of the claimant.

However, learned Tribunal failed to consider the extent of impact of such physical disability on the earning capacity of the injured and granted a

lumsum amount of Rs. 25000/- towards physical disability, which in my considered view does not appear to be proper in view of the ratio laid down by

the Apex Court in Rajkumar Vs. Ajay Kumar reported in (2011) 1 SCC 343. The loss of earning capacity and compensation to that effect is a special

damage and the same is required to be determined on the basis of the evidence adduced. Only because the claimant is able to walk without the help of

any others does not necessarily mean, that his physical disability completely disappeared. The crucial question to be considered is whether such

physical disability has impacted the earning capacity of the claimant, if so, to what extent. In the instant case, learned Tribunal has failed to discharge

its duty to ascertain and determine the impact of physical disability and loss of earning of the claimant.

The claimant deposed that he was dealing with bamboo and bamboo product and those evidence of the claimant with regard to his occupation was

not disputed. Having regard to the nature of occupation, it is not difficult to understand that some amount of physical activity and movement are

certainly necessary for carrying those short of profession. With the 50% disability of the lower limb and some amount of restriction of movement, it

cannot be said that occupation of the claimant shall not at all be impacted by physical disability of the lower limb, though it may not be to the extent of

50%. Having taken note of the evidence adduced by the claimant, that he could walk without the help of any person and the nature of his occupation,

which requires considerable physical involvement and effort, it is difficult to say that the earning capacity of the claimant will not be affected at all by

the disability, that too, of the lower limb. Since, it is not possible to ascertain loss of earning due to impact of physical disability with arithmetic

accuracy, even though, having considered the nature of occupation of the claimant, I am inclined to hold that the impact of the injury on his income and

loss of earning could not be less than 10% of his income and as such the claimant would certainly be entitled to an amount equal to 10% of his earning

as loss of income.

The claimant stated on oath that from his business of bamboo and bamboo product, he used to earn Rs. 6000/- per month. However, no other

reliable supporting evidence could be adduced in support of his income. The claimant though produced some document being Ext. 6, 7, 8 & 9 showing

his annual income to be Rs. 72000/-, those documents having not been duly proved, it may not be possible to rely upon those document. Be that as it

may, that the claimant was an earning person and he was dealing with the business of bamboo, were not disputed. Since the claimant was not a non-

earning person and evidently he had some business, and as such, taking into account the occupation of the claimant, his income can reasonably be

accepted as Rs. 4000/-. An amount equal to 40% of the actual income is also required to be added to the income as future prospect. The claimant

was aged about 32 years at the time of accident and as such appropriate multiplier 16 should be applied.

Assessing income as Rs. 4000/- with the addition of 40% towards future prospect and by applying multiplier 16, loss of income towards disability

may be assessed as under.

Total income = Rs. 4000+1600(40%)X12X16) Â = Rs. 10,75,200/-

Loss of earning = Rs. 1,07,520/- (10% of the income)

The quantum of award made towards non-pecuniary head granted by the Tribunal as indicated above appears to be very meager and requires

some enhancement having considered the gravity of the injury and suffering of the claimant and s such, I am inclined to raise the award towards pain

& sufferings, loss of amenities of life and loss of expectation of life as Rs. 25,000/- on each count. In addition to that the claimant is also entitled to

medical expenses incurred by him as special damage. Thus, the enhanced compensation with the modification as indicated above is determined as

under:

Loss of earning = Rs. 1,07,520/-

Loss of pain & suffering = Rs. 25,000/-

Loss of amenities of life = Rs. 25,000/-

Loss of expectation of life = Rs. 25,000/-

Medical expenses = Rs. 26,100/-

Total = Rs. 2,08,620/-

Rounded upto Rs. 2,09,000/-

The claimant has also prays for enhancement of interest relying on the decision of the Apex Court in Narendra Singh (supra), where the Apex

Court held as under:

“15. Further, an interest at the rate of 6% per annum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High

Court. The interest rates determined by both the courts below are bad in law as per the legal principles laid down in MCD V. Upahaar Tragedy

Victims Assn, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellants.

Applying the same legal principles, we grant interest at the rate of 9% per annum on the compensation awarded by this Court.â€​

In view of the ratio of the Apex Court in Narendra Singh (supra), the interest is raised to 9% from the date of filing the claim petition.

The respondent No. 3, Oriental Insurance Company shall satisfy the above award of Rs. 2,09,000/- with interest @ 9% per annum 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 statutory deposit made by the Insurance Company at the time of preferring the appeal be returned.

The appeal accordingly stands allowed.

Send back the LCR.