The New India Assurance Co. Ltd. vs Naveen Kumar N. and Another

K.N. Phaneendra, J.—Aggrieved by the judgment and award passed by the MACT & Addl. Judge. Small Causes Court, Mayohall Unit, Bangalore in MVC No. 5530/2010, the respondent No. 2 therein i.e. Insurance Company is challenging the said judgment and award in this appeal. Though the judgment and award of the Tribunal is challenged in this appeal on several counts, at the time of submitting the arguments before this Court, the learned counsel for the appellant restricted his arguments insofar as the amount awarded towards "loss of future earning capacity" to the extent of Rs. 97,200/- which is strenuously called in question in this appeal.

The learned counsel for the appellant-Insurance Company contends that the claimant has neither produced the disability certificate nor examined the doctor who treated him before the Trial Court to establish the percentage of disability and as to whether such disability is permanent or temporary. In spite of that, the Trial Court relied upon an unreported judgment of this Court rendered in M.F.A. 100/2006 (MV) dated 21.02.2007 (Sri. Muniswamy v. M/s. Mascot Systems Ltd. and another) and calculated the percentage of disability at 10% and awarded compensation applying the multiplier ''18''. In view of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the Tribunal has awarded towards ''loss of future earning capacity'' in a sum of Rs. 97,200/-.

Per contra, the learned counsel for the respondent-claimant admits that the doctor has not been examined and no disability certificate is produced before this Court for determination of loss of future earning capacity but, the evidence of the claimant remains un-rebutted because he has not been cross-examined by the other side.

Though the learned counsel for the appellant admits that the claimant has not been tendered for cross-examination but the fact remains that the injury sustained by the claimant has been substantiated by production of wound certificate before the Trial Court and those injuries sustained by the claimant has not been seriously disputed before this Court. So far as the award of compensation under other heads and the injuries sustained by the claimant are not at all disputed by the other side.

The learned counsel for the respondent-claimant before this Court also argued that claimant has sustained bleeding injuries from gums and suffered fracture of 1, 2 incisors on right side, fracture of 1 incisor on left upper jaw, swelling, deformity over right wrist, tenderness over forehead, dislocation of right wrist with fracture of distal end radius. This definitely would have caused some difficulty to the claimant in doing his regular work. Nature of work being done by the respondent also play an important role in this case. Admittedly the claimant is a coollie and eking his livelihood from that work. Therefore, learned counsel strenuously contends that the Court has to infer existence of some disability with reference to the injury suffered by the said person particularly fracture of right wrist.

As rightly argued by the appellant''s counsel herein, for the purpose of calculating disability, there must be some clinching evidence before the Court. But the claimant has not contended with regard to the disability but only submitted to the Court about the difficulty suffered and to be suffered by him due to the injuries. Here in this case, the doctor has not been examined, no disability certificate has been produced but still the Court below assess the percentage of the disability. The disability may also be temporary in nature and as such the Court cannot draw inference in that regard. The percentage of disability sustained by him as taken by the Trial Court is 10% which is permanent in nature. The Trial Court committed an error in taking into consideration the disability as permanent disability to the extent of 10%. In such circumstances it cannot be said that the Court below has not at all awarded any compensation for the disability sustained by the claimant. In the absence of any evidence, the Court below ought to have I awarded global compensation towards the ''loss of future earning capacity'' to the claimant.

The learned counsel for the respondent fairly conceded for award of an amount of Rs. 70,000/- towards ''loss of future earning capacity'' in the matter.

Learned counsel for the appellant fairly submitted that though there is no material on record in this regard, permanent disability may be taken at 5%. In my opinion, if I award a global compensation of Rs. 60,000/- towards ''loss of future earning capacity'' to the claimant, it would meet the ends of justice. Insofar as the rest of the award passed by the Tribunal is concerned, it is just and appropriate and the same does not call for interference.

Hence, the appeal is partly allowed. The impugned judgment and award is modified insofar as it relates to awarding of compensation in a sum of Rs. 97,200/- under the head of ''loss of future income'' to a sum of Rs. 60,000/-. The rest of the order passed by the Trial Court is not disturbed. The amount already deposited before this Court in a sum of Rs. 25,000/- is ordered to be transmitted to the Trial Court. The appellant is directed to deposit the remaining amount before the Trial Court within four weeks from the date of receipt of the copy of this order.