M/S New India Assurance Co. Ltd. vs Abdul Ali And Ors

Heard Mr. G. Jalan, learned counsel for the appellant and Mr. A. R. Agarwala, learned counsel for the cross objector/respondent.

This appeal is filed by the Insurance Co. against the judgment and award dated 31.08.2008 passed by MACT, Goalpara in MAC Case No.

378/2005.

One Sri Abdul Hai sustained injury in a motor vehicle accident on 16/04/2005, involving the vehicle bearing registration No. AS-18/8599, owned by

respondent No. 1 and insured with the appellant.

On an application filed by the injured claimant, learned tribunal granted a compensation of Rs. 4,29,887/- which consisted of Rs. 4,28,400/- for loss

of earning and Rs. 1,487/- for medical expenses.

Aggrieved by the said judgment, Insurance Co. preferred the instant appeal. The respondent claimant also filed cross-objection for enhancement of

compensation.

Learned counsel for the Insurance Co. submits that the claimant himself did not state in his evidence regarding physical disability, inasmuch as, the

only evidence of the claimant was that he sustained fracture injury on his left leg. The disability of the claimant was not proved by calling the doctor,

who examined the injured, and as such, learned tribunal ought not to have relied on the disability certificate produced by the claimant, submits Mr.

Jalan. Learned counsel for the appellant referring to para 18 of the judgment of the Apex Court in Raj Kumar â€"VS- Ajay Kumar reported in (2011)

1 SCC 343, submits that examination of the doctor is essential for ascertaining the extent of physical disability. Para 18 of the judgment reads as under

:-

“18. 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..â€​

The contention of the learned counsel for the respondent/claimant is that the doctor is not required to be called in every case, unless, it is necessary.

From the evidence and materials brought on record, it appears that accident involving the offending vehicle insured with the appellant and the claimant

having sustained injury were not disputed. Only question raised by the Insurance Co. is that the disability was not proved by examining the doctor.

Learned tribunal, having considered the disability assessed by the board of doctors and the documents produced by the claimant relating to

treatment held that the claimant sustained 70% disability. In the instant case, the claimant was examined by the board of doctors of the Civil Hospital

constituted for the district and the certificate was issued by none other than the joint director of Health Services, on the basis of the assessment, made

by such board of doctors. However, the doctor, was not examined as a witness to prove the disability.

It is not doubt true, that physical disability is to be ascertained by medical expert and for that purpose, it is necessary to examine the doctor, unless,

the tribunal is satisfied with regard to the genuineness of the documents produced by the claimant. In the instant case, the disability certificate was

issued by a statutorily constituted board of doctors of the Civil Hospital and as such, the learned tribunal was satisfied as to the genuineness of the

disability certificate and awarded compensation for loss of income relying on such disability certificate and the other relevant documents which

demonstrated that the claimant sustained fracture injury on his leg and he suffered 70% disability. Therefore, in my considered view, tribunal has not

committed any illegality by accepting the disability certificate Ex-1, in the facts and circumstances of the case.

What is evident from the materials brought on record is that 70% disability related to lower limb of the claimant and not of whole body. The extent

of permanent disability of a limb cannot be considered to be the extent of disability of the whole body. It is the settled principle that the extent of

functional disability or loss of earning capacity as a result of physical disability may not always be equal to the extent of physical disability. The Apex

Court, in Raj Kumar -VS- Ajay Kumar (Supra) succinctly discussed the correlation between physical disability and 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

8disability. 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. â€" 2010 (8) SCALE 567).

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 10disability 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€​

In G. Dhanasekar â€"VS- Managing Director, Metropolitan Transport Corporation reported in (2014) 14 SCC 391, The Apex Court, the Apex

Court, dealing with the correlation between the functional disability and the physical disability observed 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.â€​

Apparently in the instant case, the learned tribunal did not ascertain the effect of 70 % disability of the lower limb on the income of the deceased

and straightway granted the compensation assuming functional disability to the extent of 70%. In Sayed Sadiq and Ors. â€"VS- Divisional Manager,

United India Insurance Co. Ltd. reported in (2014) 2 SCC 735, in case of 69% disability of the lower limb of the claimant (a vegetable vendor),

functional disability was assessed as 35% for the loss of earning. Even if the tribunal did not assess the extent of functional disability resulting from the

70% physical disability of the lower limb, having considered that the accident took place in 2005 and the beneficial objection of the legislation, I am not

inclined to send back the matter to the tribunal. Considering the 70% disability of the lower limb, this Court is inclined to assume the functional

disability or the loss of earning capacity as 35%, keeping in view the occupation of the claimant and following the principle laid down in Sayed Sadiq

and Ors. â€"VS-Divisional Manager, United India Insurance Co. Ltd.(Supra).

In absence of satisfactory evidence, to prove the income of the claimant, the learned tribunal, having regard to the age of the claimant, his

occupation and the point of time, when the accident occurred, assumed the income of the claimant as Rs. 3,000/-. I find no irregularity in assuming the

income of the claimant as Rs. 3,000/-, which appears to be quite reasonable, inasmuch as, a person engaged in an unorganized sector, cannot be

expected to produce any documentary evidence of income.

Apparently, no compensation was granted by the tribunal towards loss of amenities of life , loss of expectation of life and pain and suffering, which

ought to have been granted as the claimant in the instant case sustained permanent disability because of the accident. It is also noticed that the tribunal

did not add any future prospect, though, the claimant was entitled to addition of 40% of the income as future prospect. Had the tribunal added future

prospect to the income and awarded reasonable compensation under the non-pecuniary heads, i.e., loss of amenities, loss of expectation of life and

pain and suffering along with the loss of income for 35% physical disability, the quantum of award would have remained more or less the same.

Therefore, having considered all these aspects of the matter and that the accident took place in the year 2005, I am not inclined to interfere with the

award made by the learned tribunal. Having considered the quantum of award granted by the tribunal, it is felt that no further enhancement is

necessary. Accordingly, both the appeal and the cross objection are dismissed.

Send back the LCR.