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Page No.# 1/7 GAHC010193832013
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp. 322/2013 1:DIPAK BORO S/O LT. RAGHU NATH BORO, R/O HOUSE NO. 15, KACHARI BASTI, P.O. ULUBARI, P.S. PALTON BAZAR, DIST. KAMRUP M, GUWAHATI-7, ASSAM.
VERSUS 1:RELIANCE GENERAL INSURANCE CO. LTD. REPRESENTED BY ITS REGIONAL MANAGER, ANIL PLAZA, G.S. ROAD, GUWAHATI 78105, ASSAM.
Advocate for the Petitioner : MR.S B PRASAD Advocate for the Respondent : MR.M SAIKIA
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT Date : 18-05-2018 Heard Mr. S. Sinha, learned counsel for the appellants/claimants, and Mr. R. Goswami, learned counsel for the respondent. [2] This appeal is by the claimant against the judgment and award dated 09.07.2013, passed by the MACT, Kamrup, Guwahati in MAC Case No. 133/2010, for enhancement of the award. [3] The claimant Sri Dipak Boro sustained injury in a Motor vehicle accident involving the vehicle bearing registration no. AS-19/B-6408, owned by one Ms. Mena
Page No.# 2/7 Das and insured with the respondent Reliance General Insurance Company Limited. On an application filed by the claimant seeking compensation, learned Tribunal by the impugned award granted a compensation of Rs. 1,32000/- as under : Medical Expenses = Rs. 26,528/- Transportation = Rs. 10,000/- Pain and suffering = Rs. 30,000/- Loss of amenities of life = Rs. 15,000/-
[4] Unsatisfied with the above award, the claimant appellant urged for enhancement of the award on the following heads : (i) Loss of earnings for disability (ii) Medical expenses (iii) Interest (iv) Pain and suffering
[5] The contention of the learned counsel for the appellant is that the claimant sustained 45% permanent disability but the learned Tribunal did not consider the extent of disability and its impact on the income of the claimant for determining the loss of earnings, rather, granted a lump sum amount of Rs. 45,000/- on account of disability. The evidence brought on record transpires, that the factum of claimant having sustained 45% of disability of lower limb following fracture of intertrochanteric right femur was not disputed. It is settled position of law that Tribunal is required to assess the functional disability or loss of earnings resulting from the physical disability’ for determining just and fair component in case of personal injuries [6] The Hon’ble Apex Court in Rajkumar Vs. Ajoy Kumar and Another (2011) 1 SCC 343, discussed in detailed the guidelines for awarding compensation in case of personal injuries as well as the correlation between the physical disability suffered by a victim of accident and loss of earning as a result of such disability and the factors which determine the loss of earnings in Para 6, 10, 11 and 13 as under: ”6. The heads under which compensation is awarded in personal injury cases are the following:
Page No.# 3/7 Pecuniary damage (Special damages) (i) Expenses relating to treatment, hospitalisation, 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.
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, the percentage of loss of earnings capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in some 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 earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of the 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
Page No.# 4/7 dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as 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 disability (this is also life). The second step is to ascertain his avocation, profession an 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”.
[7] It is the onerous responsibility of the tribunal to determine just compensation for the victim of Motor vehicle accident, and as such, the tribunal cannot afford to grant a sump sum amount of compensation in case of permanent disablement, without determining the loss suffered by a victim of vehicular accident. Unfortunately, the tribunal in the instant case failed to undertake the exercise of determining just compensation for permanent disability. It is the settle principle as held in the Apex Court in a long line of decision, that functional disability or loss of earning capacity as a result of the physical disability defers depending on various factors, for example, the nature of occupation, nature of injury etc. Some time the extent of functional disabilities may be higher than the physical disabilities, again sometime it may be lower than the extent of physical disability. Therefore, tribunal is required to determine the impact of the physical disabilities on the earning capacity of the injured on the basis of the facts and circumstances of each case. In the instant case, as per evidence adduced by the claimant, he was working as a Government contractor. It is not difficult to understand that a person engaged in the occupation like contract work, requires to
Page No.# 5/7 undertake some amount of physical movement and as such, 45% of permanent disability of the lower limb would certainly affect the movement of the clamant. Therefore, it cannot be said that there will be no effect on the income or earning capacity of the claimant due to 45% disability of the lower limb. Having regard to the nature of injury and the disability of the lower limb to the extent of 45% and the nature of occupation of the claimant, the loss of earning resulting from physical disability could not be less than 10% and as such, in my considered view the claimant, is entitled to loss of earnings at least to the extent of 10% for the 45% disability of the lower limb.
[8] In support of the income, the claimant produced two income tax return relating to post accident period, showing his income. However, no evidence was brought on record to show the actual income of the claimant at the time of accident. Though no satisfactory evidence was adduced with regard to the actual income, the fact that the claimant was engaged in contract work was not challenged. Having considered the nature of occupation of the claimant and the relevant point of time, when the accident occurred, even in absence of any documentary evidence, income of the claimant can reasonably be assumed as Rs. 5000/- per month for purpose of determining the loss of earnings. An amount equal to 10% of the actual income is required to be added as future prospect, having regard to the age of the claimant. Since there was no dispute with regard to the age of the claimant, by applying multiples 13. Loss of earning resulting from permanent disables may be assessed as 5500x10%x12x11=72600.
[9] Evidently, the claimant was in hospital for five days and the learned Tribunal in addition to the actual medical expenses of Rs. 26,582/- granted an additional amount of Rs. 10,000/- towards incidental expenses for special food, attendant etc. and as such, in my considered view no further enhancement is necessary on this component of the award. As regards the future medical treatment, no evidence was brought on record. The Tribunal granted an amount of Rs. 15,000/- towards loss of amenities. However, no amount was granted on account of loss of expectation of life. In case of
Page No.# 6/7 permanent physical disability, compensation towards loss of expectation of life is required to be granted as per the guidelines laid down by the Hon’ble Apex Court in Raj Kumar Vs. Ajoy Kumar (supra). Having considered the nature of injury, and sufferings of the claimant, in my considered view an amount of Rs. 30,000/- each towards the loss of amenities of life and loss of expectation of life should be granted. The amount granted towards pain and suffering, also deserves some enhancement, having regard to the nature of injury. The Tribunal granted 6% interest from the date of filing of the claim petition and the claimant sought for enhancement of the rate of interest. The Hon’ble Apex Court in Narendra Singh Vs. Nisan Nishant Sharma and Another (2015) 14 SCC 353 in Para 15 observe as under: “15. Further, an interest at the rate of 6% per anum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High Court. The interest rates determine by both the Courts below are bad in law’ as per the legal principal laid down in MCD Vs Uphar Tragedy Victims Association, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellant. Applying the same legal principal, we grant interest at the rate of 9% per annum on the compensation awarded by this Court’’.
[10] Following the above mandate of the Hon’ble Apex Court, interest is raised to 9%. With the above modification and enhancement of quantum on various counts as indicated above, the enhanced compensation to which the claimant shall been entitled is reassess as under: (i) Loss of earnings for disability = Rs. 72,600/- (ii) Medical expenses and expenses incidental thereto = Rs. 36,528/- (iii) Loss of amenities =Rs. 30,000/ (iv) Pain and suffering = Rs. 30,000/- (v) Loss of expectation of life
= Rs. 30,000/- Total = Rs. 1,99, 128/- Rounded up to Rs.1,99,00/-
[11] The respondent insurance company shall satisfy the above award of Rs. 2,00,000/- with interest at the rate of 9% by depositing the same with the Tribunal
Page No.# 7/7 within 6 (six) weeks. The Tribunal shall ensure that 50% of the awarded amount be deposited in the name of the claimant for six (6) months.
[12] The appeal is allowed and disposed of accordingly. [13] Send back the LCR.
JUDGE Comparing Assistant