Billal Miah vs Jagabandhu Goswami And Ors

[1] This appeal is filed by the original claimant. He seeks enhancement of the compensation awarded by the Motor Accident Claims Tribunal No.1, West Tripura, Agartala by the impugned order dated 28th February, 2018 passed in Title Suit (MAC) No.39/2016.

[2] Brief facts are as under:

The appellant claimant is a vegetable vendor. On 5th October, 2015 after winding up his vegetable selling business, he was returning home with unsold vegetables by travelling in a Tata Ace vehicle. At that time, the vehicle collided with another heavy vehicle Tata Magic coming from the opposite direction. In the accident, the claimant received bodily injuries causing fractures on his left arm. He was taken to G.B.P. Hospital, Agartala on 05.10.2015 and was treated there as an indoor patient till 14.12.2015. The District Disability Medical Board issued a certificate assessing his permanent disability at 80% of the limb. He filed petition seeking compensation of Rs.15,00,000/- from the owners and insurers of both the vehicles involved in the accident.

[3] Before the Tribunal, the claimant contended that from his vegetable selling business he was earning Rs.10,000/-(rupees ten thousands) per month. On account of the disability suffered due to the injury his earning had gone down drastically. He also claimed compensation for pain, shock and suffering and for medical expenditure.

[4] The claimant also examined P.W.2, Dr. D. B. Roy, one of the panel doctors who had given the disability certificate, who had deposed that the left arm of the claimant was fractured. His elbow was also dislocated. On the basis of the examination, his disability was assessed as per the schedule of assessment of disability. It was found that he was suffering from disability to the extent of 80%. Accordingly, such a certificate was issued which was produced as Exbt.5. The disability certificate, Exbt.5 records that the claimant had suffered locomotor disability in the left arm and such disability was assessed at 80%. The certificate specified that his condition was non-progressive. This disability certificate thus indicated the claimant had suffered permanent partial disability.

[5] On the basis of evidence on record, the Claims Tribunal held that the drivers of both the vehicles involved in the accident were equally responsible for causing the accident through their rush and negligent driving. On the question of quantum of compensation, the Tribunal believed the income of the injured at Rs.3,000/- per month and awarded Rs.18,000/- for actual loss of income for six months of inability to do his work. The Tribunal awarded Rs.30,000/- towards medical expenses noting that the treatment at Government G. B. P. Hospital was free of cost, but the patient would be required to pay at least part fees for purchase of medicines and other materials. The Tribunal awarded further sum of Rs.5,000/- towards cost of transportation. On the main issue of future loss of income the Tribunal awarded a sum of Rs.1,50,000/- making following observations:

"*****The Medical Board declared Billal Miah disabled to the tune of 80% by his left hand. He is a vegetable-seller. So, disablement of his left hand, I believe, will not effect his earnings by selling vegetables. But as he became 80% disabled by his left hand and as he suffered bodily pain for fracture of his left hand I award a lump sum amount of Rs.1,50,000/- in favour of Billal Miah for his becoming 80% disability by his left hand and for suffering pain.****".

[6] Since the challenge in this appeal is only on the quantum of compensation, I would focus only on this aspect. As noted, the claimant was a vegetable vendor. The assessment of his monthly income at Rs.3,000/- as adopted by the Claims Tribunal is extremely low. Being a self employed person in selling vegetables, it is unfair to expect the claimant to produce documentary evidence of his income. Nevertheless, a fair estimate even going by the prevalent standards of the year 2015, assessment of income of Rs.6,000/- per month would be perfectly legitimate.

[7] The disability certificate suggested that claimant had suffered 80% permanent disability. Though this certificate did not specify, the extent of disability, it must be seen in relation to the particular limb affected by the injury. In other words, such 80% disability cannot be seen as the body as a whole. It would have been much better if the medical expert had either specified in the disability certificate or clarified before the Court during his deposition, as to how much such disability would reflect on the body as a whole. In absence of any such clarification, one will have to estimate the projection of such disability on the body as a whole. Considering the nature of the injury, resultant disability as assessed by the medical board and the nature of work that the injured was engaged in, the permanent disability would be taken as 20% of the body as a whole. I am unable to accept the contention of the counsel for the insurance companies that any physical disability would not reflect in the loss of earning capacity of the claimant since he was engaged in selling of vegetables. It can be easily appreciated that any person engaged in retail selling of vegetables would be required to procure such vegetables from a wholesale market, transport such vegetables to a location where he is regularly selling them. Be the stationary vegetable seller or hawker through a cart, he would have to segregate and arrange such vegetables in an orderly manner. Through the day, he would be required to weigh the vegetables, provided to the purchasers and rearrange the remaining vegetables. All these would require use of both hands. Substantial reduction in the strength of one arm would certainly diminish his earning capacity.

[8] The claimant was aged 41 years of age. His current income is assessed at Rs.6,000/- per month, functional disability of 20% as discussed above and his age of 41 years would be the three crucial factors for assessing his actual as well as future loss of income. Before doing this, I must confess I am a bit disappointed in the manner in which the Claims Tribunal has undertaken this exercise. Relevant portion of the award is reproduced in order to show that the Claims Tribunal has awarded a lump sum of Rs.1,50,000/- under an umbrella claims of pain, shock and suffering, presumably for future loss of income as well as for loss of amenities of life. The assessment of compensation to be awarded under such heads is not an arbitrary or whimsical exercise. It cannot be left to the fancy of the person deciding it. By now, through series of judgments such exercises have been converted into a scientific exercise.

[9] The culmination of the above discussion would resulting to following amounts being awarded under different heads:

(a) For six months of loss of actual earning, there shall be compensation of Rs.36,000/- @ Rs.6,000/- per month.

(b) Looking at the age and the disability, claimant would receive Rs.50,000/- for loss of amenities of life.

(c) The claimant remained in hospital as indoor patient for nearly 70 days, during which he had to undergo operations, a sum of Rs.1,00,000/- would be awarded towards pain, shock and suffering.

(d) Rs.30,000/- awarded by the Tribunal for medical expenditure is maintained. Though, G.B.P. Hospital is a Government hospital where treatment would be subsidised, surely there would be incidental costs such as purchase of medicines, special diet etc.

(e) Rs.5,000/- for transport is also maintained.

(f) Since, the claimant was treated in a hospital as an indoor patient, he would require an attendant to look after his daily needs. For three months, therefore, there shall be order of Rs.15,000/- for attendant @ Rs. 5,000/- per month.

(g) We now come to the crucial question of loss of future income. The monthly income is assessed at Rs.6,000/- per month. As per the decision of the Supreme Court in case of National Insurance Company Limited Vrs. Pranay Sethi and others: reported in (2017) 16 SCC 680 there shall be 25% rise for future income since the claimant is in the age group of 40 to 50 years. His prospective income therefore, will come to Rs.7500/- per month i.e. Rs.90,000/- per annum. 20% loss would, therefore, be Rs.18,000/- per annum. The claimant was aged 41 years at the time of accident. Looking to the age of the claimant, multiplier of 14 would be applied as per the decision of the Supreme Court in case of Sarla Verma (Smt.) and others Vrs. Delhi Transport Corporation and Another; reported in (2009) 6 SCC 121. The loss of future income would, therefore, come to Rs.2,52,000/-.

[10] The claimant would, therefore, receive total compensation as under:

Actual loss of income

Rs. 36,000/-

Future loss of income

Rs.2,52,000/-

Pain, shock and suffering

Rs.1,00,000/-

Loss of amenities in life

Rs. 50,000/-

Medical expenses

Rs. 30,000/-

Attendant charges

Rs. 15,000/-

Transportation charges

Rs. 5,000/-

Total : Rs.4,88,000/-

(Rupees four lakhs eighty eight thousands)

[11] The excess amount awarded under this appeal shall carry simple interest @ 7% per annum from the date of claim petition till actual payment. Both the insurance companies i.e. respondents No.3 and 4 shall deposit the remaining compensation with accrued interest in equal measures before the Claims Tribunal within three months from today. Upon such amount being deposited, the Claims Tribunal shall invest 75% in a fixed deposit in a nationalised Bank for a period of five years. Remaining 25% would be paid over the claimant-appellant through account payee cheque. Periodic interest accruing on such fixed deposit would be paid to the claimant. Upon completion of such period, the amount of fixed deposit would be released in favour of the claimant.

[11] With these directions, the appeal is disposed of. Pending application(s), if any, also stands disposed of. Record may be transmitted to the lower Court.