Chitta Ranjan Ghosh vs Nitai Saha And Ors

This appeal is filed by the original claimant seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal No.1, West Tripura, Agartala, by the impugned award dated 29.07.2017 passed in Title Suit (MAC) No.61 of 2011. The original respondent No.2, National Insurance Company Ltd. has filed cross-appeal seeking reduction in the compensation award by the Claims Tribunal.

Brief facts may be recorded at the outset. On 01.11.2010, the claimant Chitta Ranjan Ghosh was going to Bagma market from his house at about 6.00 in the evening riding his bi-cycle. A truck insured by the opponent No.2-insurance company collided with the claimant causing serious injuries. During prolonged treatment his right leg had to be amputated from below the knee. He also received multiple fractures on his left leg. Claiming that the accident occurred on account of rash and negligent driving of the truck by the driver, the claimant filed the above mentioned claim petition seeking compensation of Rs.68,00,000/- from the owner and insurer of the vehicle in question. At the time of the accident claimant was aged 42 years. He owned agricultural land on which he had cultivated rubber plantation. Before the Claims Tribunal, the claimant led evidence with respect to his income, medical treatment undertaken by him and disability resulting out of the injuries. The medical certificate showed that the injuries had resulted into permanent disability to the extent of 85% of the body as a whole.

The Claims Tribunal held the owner and the insurer of the vehicle liable to compensate the claimant since in the opinion of the Tribunal the accident occurred on account of sole negligence on part of the driver of the truck. The Claims Tribunal awarded a sum of Rs.1,37,855/- towards medical treatment, a sum of Rs.69,800/- for other medical expenses, a sum of Rs.64,449/-towards air transportation of the claimant from Agartala to Kolkata for his treatment and a further sum of Rs.20,000/- for the escort. Regarding future loss of income, the Tribunal assessed the income of the injured at the time of accident at Rs.10,000/- per month. The Tribunal adopted 100% disability and awarded the entire amount of Rs.10,000/- per month by way of loss. The Tribunal applied a multiplier of 14 and computed future loss of income at Rs.16,80,000/- to which a further sum of Rs.1,50,000/- was added by way of pain, shock and suffering. The Tribunal, thus, computed a total compensation of Rs.21,37,104/- which would be paid by the opponents jointly and severally with simple interest @ 6% per annum from the date of filing of the claim petition till actual payment. However, if the compensation was not paid within 6 weeks from the date of the judgment, the rate of interest would rise to 8% after the expiry of the said period.

It is this award that the claimant has challenged in the present appeal. The insurance company has filed cross objection seeking reduction of the compensation awarded by the Claims Tribunal.

Since there is no dispute about the nature of accident and the finding of the Tribunal that the accident occurred on account of sole negligence on part of the driver of the truck, I may not enter into the factual aspects relating to these issues. I may only refer to the evidence in connection with assessment of compensation award.

The claimant produced his evidence in form of a sworn affidavit dated 04.12.2015. In his evidence he stated that after the accident he was taken to Tripura Sundari hospital, Udaipur for treatment and admitted as an indoor patient for 5 days between 01.11.2010 to 06.11.2010. He was thereafter referred to further treatment to Kolkata where he went on 08.11.2010. He remained an indoor patient between 08.11.2010 till 19.11.2010. During treatment his right leg below the knee was amputated. He was again admitted as an indoor patient on 24.11.2010 and remained in the hospital for 10 days during which he had another major operation was carried out on his right knee. During further period of hospitalization between 07.12.2010 to 29.10.2010 yet another surgery was carried out. He had to visit the hospital several times thereafter between 15.01.2011 to 31.01.2011. He was certified fit for travel by air on 31.01.2011. He again had to visit Kolkata for further treatment in March, 2011 when he was treated as an indoor patient. Again he was brought to Kolkata in April, 2011 for further treatment. The doctors had issued disability certificate of 85% of the body as a whole but for all practical purposes he was 100% disabled. He stated that besides amputation of the leg he had suffered several fractures and loss of muscles and bone on the left leg also.

He stated that he owned 20 to 25 kanis of land where he had grown rubber plantation. He had engaged two permanent helpers to whom he was paying Rs.6,500/- per month. His own earning from the rubber plantation came to Rs.25,000/- per month. To meet with the expenditure from the accident he had to sell 7 kanis of land. His income has come down to Rs.2,000/- per month. He had received some land from his father and further land he had purchased.

His cross-examination was confined to his claim of medical expenditure and his income of Rs.25,000/- per month from rubber plantation.

The claimant had examined Dr. Sukumal Sarkar as P.W.2 and Dr. Dipen Roy as P.W.3 in support of his disabilities. Disability certificate was also produced at Exbt.25 showing that he had received 85% permanent disability of the body as a whole.

On the basis of such evidence on record, learned counsel for the claimant submitted that the Claims Tribunal had awarded inadequate compensation. Income of the claimant at the time of accident ought to have been accepted at Rs.25,000/- per month.

Future rise in income should also have been granted. In this context, counsel placed having reliance on the decisions of the Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and in case of Jagdish vs. Mohan and others reported in (2018) 4 SCC 571. Counsel also submitted that the cross appeal of the insurance company is not maintainable since there is no specific provision in the Motor Vehicles Act for such purpose. She relied on the decisions of the Supreme Court in case of Superintending Engineer and others vs. B. Subba Reddy reported in AIR 1999 SC 1747.

On the other hand, learned counsel for the insurance company opposed the appeal and pressed for the cross objection contending that there was no evidence of the income of the injured being Rs.10,000/- per month. In absence of any such evidence, the Tribunal committed a serious error in assessing the income at Rs.10,000/-. He submitted that medical experts have opined that the disability of the claimant was 85%. The Tribunal could not have been ignored such opinion and adopted the disability at 100%. He also submitted that the Tribunal ought not to have awarded higher interest for delayed payment of compensation. In support of his contentions he relied on the decisions of the Supreme Court in case of Syed Basheer Ahamed and others vs. Mohammed Jameel and another, reported in (2009) 2 SCC 225, in case of Oriental Insurance Company Limited vs. Mohd. Nasir and another, reported in (2009) 6 SCC 280, in the case of Raj Kumar vs. Ajay Kumar and another, reported in (2011) 1 SCC 343, in case of Sanjay Kumar vs. Ashok Kumar and another, reported in (2014) 5 SCC 330 and in case of National Insurance Co. Ltd. vs. Keshav Bahadur and others, reported in (2004) 2 SCC 370.

Before the Claims Tribunal, the claimant had produced medical bills for the treatment and other attendant expenditure. On the basis of such evidence, the Tribunal had awarded a sum of Rs.1,37,855/- for his treatment at Kolkata hospital and further sum of Rs.69,800/- towards medical expenses. There is virtually no possibility of modifying either of these two figures. The insurance company has not even seriously contested these claims. So also with respect to the air fare charges of Rs.64,449/- and a further sum of Rs.20,000/- for escort, there is no possibility of interference.

Main two areas which require closer examination are pain, shock and suffering and future loss of income. Addressing the question of pain, shock and suffering first, one may recall, the claimant was aged about 42 years at the time of accident. The accident required him to undergo prolonged medical treatment for which he would have to travel from his native place to Agartala from where he would have to fly to Kolkata. He had to visit Kolkata on multiple occasions. He was admitted in the hospital on several times for prolonged periods. He had to undergo multiple major surgeries. His right leg had to be amputated. Skin grafting had to be done on his left leg. Considering all these aspects of the matter, the claimant must be compensated by adequate sum in the form of pain, shock and suffering and future loss of enjoyment of life. One may recall, the Tribunal has not awarded any amount for loss of enjoyment of life. Combining these two heads, it would be appropriate award a sum of Rs.03,00,000/- to the claimant.

Coming to the future loss of income, one may have to first assess the current income of the injured on the date of accident. The opponents have not challenged the deposition of the claimant that on the date of the accident he was owning 20 to 25 kanis of land on which there was rubber plantation which he himself had developed. I must therefore proceed on such basis. 20 kanis of land would come to approximately 8 acres. The claimant thus owned 8 to 10 acres of land covered by rubber plantation. Such plantation would earn him regular income. His deposition that he was earning Rs.25,000/- per month from such plantation cannot be accepted in absence of further corroboration. However, a reasonable estimate of his income can be put at Rs.15,000/- per month from such agricultural activity.

At this stage, we may deal with the contention of the counsel for the insurance company that the disability of the claimant must be assessed as opined by the medical evidence. The doctors had certified that the claimant had suffered 85% disability of the body as a whole. This Court had again sent the claimant for examination by the medical board, who has provided certificate dated 05.08.2019 which also states that the disability of the claimant was 85%. Significantly, this certificate indicates that the condition of the appellant was not progressive and not likely to improve. This means that there is no likelihood of either further deterioration in the condition of the claimant or his improvement over a passage of time. His physical disability thus would remain at 85% for life.

When one applies the disability in case of motor accident claim cases, there is a distinction drawn between physical disability and functional disability. In a given case the disability of an injured may not be 100% as per the medical opinion, nevertheless if such incapacity resulting out of that disability leads to total loss of earning capacity of the person, his functional disability is considered higher than the physical disability assessed by the medical experts and in given circumstances can also be taken at 100%. Law in this respect is sufficiently clear through series of judgments of the Supreme Court. Reference may be made only two of them. In case of Jakir Hussein vs. Sabir and others reported in 2015 7 SCC 252, the claimant was a driver. The accident resulted in permanent disablement which as per the doctors was 55% of the body as a whole. The Supreme Court noticed that his right hand was completely crushed and deformed. The Court observed that driving motor vehicle was the sole means of his livelihood. After the injuries he would not be in a position to drive any motor vehicle and therefore his functional disability was taken at 100%. Following observations were made:

"15. Further, with respect to the permanent disablement suffered by the appellant, Mr. K. Parameshwar, the learned amicus curiae, has rightly submitted that the appellant was examined by Dr. P.K. Upadhyay in order to prove his medical condition and the percentage of permanent disability. The doctor who has treated him stated that the appellant has one long injury from his arm up to the wrist. Due to this injury, the doctor has stated that the appellant had great difficulty to move his shoulder, wrist and elbow and pus was coming out of the injury even two years after the accident and the treatment taken by him. The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. He was once again operated upon during the pendency of the appeal before the High Court and he was hospitalised for 10 days. The appellant was present in person in the High Court and it was observed and noticed by the High Court that the right hand of the appellant was completely crushed and deformed. In view of the doctor's evidence in this case, the Tribunal and the High Court have erroneously taken the extent of permanent disability at 30% and 55% respectively for the calculation of amount towards the loss of future earning capacity. No doubt, the doctor has assessed the permanent disability of the appellant at 55%. However, it is important to consider the relevant fact, namely that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. Further, it is very crucial to note that the High Court has clearly observed that his right hand was completely crushed and deformed.

In Raj Kumar v. Ajay Kumar, this Court specifically gave the illustration of a driver who has permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore, clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again. The contention of the respondent Insurance Company that the appellant could take up any other alternative employment is no justification to avoid their vicarious liability. Hence, the loss of earning is determined by us at Rs.54,000/- per annum. Thus, by applying the appropriate multiplier as per the principles laid down by this Court in Sarla Verma v. DTC, the total loss of future earnings of the appellant will be at Rs.54,000 X 16 = Rs.8,64,000/-.

From the facts, circumstances and evidence on record it is clear that a cost of Rs.2,00,000/- was incurred during medical treatment of the appellant. Keeping in mind his medical condition and future medical needs and requirements, we further award Rs.2,00,000/- towards future medical treatment and incidental expenses in favour of the appellant by applying the legal principles laid down by this Court in Nagappa v. Gurudayal Singh."

In case of Parminder Singh vs. New India Assurance Company Limited and others, reported in (2019) 7 SCC 217, the claimant had suffered 75% physical disability. The Supreme Court referring to the decision in case of Raj Kumar vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 assessed the functional disability of the claimant at 100% making following observations:

"5.8. In Raj Kumar v. Ajay Kumar, this Court held that:

"13. 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 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.

For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.

It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may." (emphasis supplied)

5.9. In the present case, it is an admitted position that it is not possible for the Appellant to get employed as a driver, or do any kind of manual labour, or engage in any agricultural operations whatsoever, for his sustenance. In such circumstances, the High Court has rightly assessed the Appellant's functional disability at 100% insofar as his loss of earning capacity is concerned. The appellant is, therefore, awarded Rs. 32,40,000/ towards loss of earning capacity."

In the present case, the claimant was an agriculturist. The injuries resulted in amputation of his right leg and serious defects in his left leg. He would undoubtedly not be in a position to either do any manual work or supervise his plantation since the disability would drastically reduce his mobility. Assessing his functional disability at 100% was thus perfectly justified.

While assessing the future loss of income on the basis of his current income and the disability, one factor cannot be lost sight of namely that in case of an agriculturist, the Courts have adopted principle that the source of income remains continuous and therefore entire income cannot be projected as a loss. In the present case, the land of the claimant as well as the rubber plantation would remain intact. At the same time, the productivity and profitability of his operations would be seriously diminished on account of lack of his personal supervision. On account of his lack of mobility firstly, there would be no personal supervision and secondly, he would have to higher manual labour for carrying out the same work which he was previously doing himself. His loss of current income may therefore be assessed at Rs.10,000/- per month. Applying the principle laid down by the Supreme Court in case of Pranay Sethi (Supra), there shall have to be 25% increase for the future rise in income. This would bring his loss of earning at Rs.12,500/- per month or Rs. 1,50,000/- per annum. Adopting the multiplier of 14 looking to his age as prescribed by the Supreme Court in case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, the loss of future income would come to Rs.21,00,000/-. The claimant would thus receive the compensation under different heads as under:

Loss of earning

Rs.21,00,000/-

Pain, shock and suffering & loss of enjoyment of amenities of life

Rs.03,00,000/-

Medical expenditure at Kolkata

Rs.01,37,855/-

Incidental medical expenditure

Rs. 69,800

Transportation through air

Rs. 64,449/-

Escort charges

Rs. 20,000/-

Total -

Rs.26,92,104/-

The claimant would thus receive additional compensation of Rs.05,55,000/- (Rupees Five lakh fifty five thousand) (Rs.26,92,104 - 21,37,104). This amount shall carry simple interest @ 7% per annum from the date of claim petition till actual payment. Insurance Company shall deposit such amount before the Claims Tribunal within 2 (two) months from today. Upon such amount being deposited, the Claims Tribunal shall release 50% in favour of the claimant through account payee cheque. Remaining 50% may be invested in non-recurring fixed deposit in any nationalized bank for a period of 3 years at the end of which such invested amount with interest be released in favour of the claimant. If the insurance company has deposited any sum before this Court while filing the cross objection, the same may be transmitted to the Claims Tribunal and would be adjusted towards the additional liability of the insurance company as per this judgment.

Before closing, it may be recorded that in view of allowing the appeal of the claimant in part would automatically result in rejecting the cross objection of the insurance company. It is therefore not necessary for me to comment upon maintainability of the cross objection. Further, learned counsel for the insurance company may be right that Claims Tribunal should not have awarded penal interest if amount is not deposited within stipulated time. However, interest awarded is @ 6% for normal period which itself is on the lower side. I have therefore not interfered with the directions for payment of interest.

Appeal of the claimant is allowed in part. Cross appeal of the insurance company dismissed. Pending application(s), if any, also stands disposed of.

Send down the lower Court records forthwith.