Mana Singh vs Vijay @ Lovekush Kumar and Others

I.M. Quddusi, J.—Since, both the appeals are barred by limitation, applications (I.A. No. 1) for condonation of delay in filing the appeals have been filed.

Having heard learned counsel for the appellants and for the reasons stated in applications, we are of the opinion that the appellants have satisfactorily explained the reasons for the delay in filing the appeals, therefore, the applications are allowed and the delay in filing the appeals is condoned.

Heard finally with the consent of the counsel for the parties.

The claimant injured has filed M.A. (C) No. 803/2010 for enhancement of the amount of compensation granted vide impugned award dated 29-1-2010 passed by the First Additional Motor Accident Claims Tribunal, Jagdalpur, Bastar in Claim Case No. 85/2008 whereas the insurer has preferred M.A. (C). No. 928/2010 challenging the involvement of the vehicle in question as well as the quantum fixed by the Tribunal.

Brief facts of the case as per the version of claimants are that on 18-3-2008 claimant Mana Singh who was employed as conductor (helper) in the Truck bearing No. C.G. 13-A/8496 had gone to Hira Cement Factory, Pandaripani alongwith the driver namely Vijay (non-applicant no. 1) in the said, Truck. At Heera Cement Factory, the driver of the Truck was required to reverse the vehicle, therefore, he asked the conductor to get down the truck and show him side from back side. Accordingly, while showing the side by the conductor, the driver in rash and negligent manner suddenly drove back the Truck and dashed Mana Singh who sustained grievous injuries on his hand, legs, head, chest and other parts of the body. Soon after the incident the injured was admitted in M.P.M. Hospital, Jagdalpur. He was given treatment as indoor patient from 18-3-2008 to 7-4-2008 due to fracture of bone on left pelvis region with bladder injury and an operation was conducted on him. At the time of accident, the claimant was aged about 19 years and was earning Rs. 4000/- per month by working as conductor (helper) in the said Truck. As a consequence of the injuries sustained in the said accident, the claimant has completely become unemployed due to permanent disability caused to him. Therefore, the injured filed claim petition for awarding compensation to the tune of Rs. 13 lakhs on various heads.

The Tribunal on a close scrutiny of evidence adduced and the material placed on record held that Truck bearing Regn. No. C.G. 13-A/8496 was involved in the accident in which, the claimant sustained injuries and he became permanently disabled to the extent of 70% and it is not proved that the offending vehicle has breached the conditions of the insurance policy. It has awarded a total compensation of Rs. 4,59,446/- to the claimant which he is entitled to receive from the non-applicants.

Learned counsel for the appellant insurance Company has submitted that since the FIR was lodged mentioning a different registration number of the vehicle, the Insurance Company is not liable to pay the compensation and further the amount of compensation fixed by the Tribunal is excessive and the Tribunal has wrongly assessed the physical disability as loss of earning capacity. He has placed reliance on a decision of the Supreme Court in Raj Kumar Vs. Ajay Kumar and Another, , decided on 18th October, 2010.

Learned counsel for the claimant has submitted that Truck No. C.G. ISA/8496 was only involved in the accident in which the claimant sustained injuries and became totally disabled. He refers to the Certificate issued by the Medical Board and submits that a person like injured claimant who cannot move and sit properly and even cannot pass urine in general routine, will not be able to work to any extent in future, therefore, it is a case of total permanent disability and the amount awarded by the Tribunal needs to be enhanced.

So far as the involvement of the vehicle in question is concerned, we have perused the record of the Tribunal. Claimant Mana Singh has examined himself as A.W. 1 who has stated that on the date of incident he was on duty in Truck No. C.G. 13-A/8496 in the capacity of conductor. The said Truck was being driven by driver Vijay (non-applicant no. 1). When the vehicle has reached near Heera Cement Factory, Vijay told him that he has to reverse the vehicle. Therefore, he got down the Truck and was showing the side from back side. At that time, Vijay reversed the vehicle in rash and negligent manner and dashed him.

Another claimant witness Sunder Singh (A.W. 2) has stated that Mana Singh is his son who was working as conductor in Truck No. C.G. 13-A/8496 and on receiving information that his son was admitted in hospital, he rushed to see him where he came to know that the report has not yet been lodged. Therefore, he lodged report in P.S. Parpa vide Ex. P. 1. He has further stated that his son who was in unconscious state of mind in the hospital could not clearly tell the Truck number; therefore, he has mentioned a wrong truck number that is C.G. 17-H/113 in the First Information Report.

Head Constable Sudarshan Dubey (A.W. 3) has stated in his evidence that he had gone to the place of incident and investigated the matter. He has deposed that on enquiry, it was made clear that in fact Truck No. C.G. A/8496 was involved in the accident and not C.G. 17-H/113. He has further stated that he had taken the statements of eye-witnesses namely Deen Bandhu and Rakesh Kumar vide Ex. P. 73 & Ex. P-74 in which they mentioned the Truck Number as C.G. 13-A/8496. He had also taken the statement of Truck driver Vijay who has stated that Truck No. C.G. 13-A/8496 met with the accident.

During the course of investigation, owner of Truck Appala Raju has given affidavit in writing that he was the owner of Truck No. C.G. 13-A/8496 which had gone to load the crushed stones (Gitti) at Hira Industries, Pandripani where while reversing the Truck/conductor Mana Singh sustained injuries.

In view of the evidence discussed above, it is clear that Truck No. C.G. 13-A/8496 has met with accident in which the claimant sustained injuries and by mistake Sunder Singh (A.W. 2) has mentioned a wrong truck number in his report i.e., C.G. 17-H/113. Therefore, we are of the opinion that the Tribunal has given a correct finding on the basis of evidence that the offending truck number was C.G. 13-A/8496 on which the claimant injured was working as conductor and the accident had taken place due to rash and negligent driving of the truck driver at the time when he was reversing the truck.

Now coming to the question of quantum, the owner of the Truck had issued the certificate where he mentioned that the claimant was getting Rs. 4000/- but the Tribunal has taken the income of deceased as Rs. 3000/- per month. Treating the permanent disability as 70%, it has calculated the future loss of earning to the extent of 70% that is Rs. 2100/- per month and Rs. 25,200/- per annum. By applying multiplier 16, the total loss of income has been assessed as Rs. 4,03,200/- which according to the Tribunal the claimant is entitled as compensation. Besides this the Tribunal has awarded Rs. 5000/- for mental agony and physical suffering; Rs. 5000/- for special diet; Rs. 5000/- for keeping attendant; Rs. 15,000/- for loss of amenities and Rs. 26,246/- for medical expenses which in all comes to Rs. 56,246/- under the other heads. Thus the Tribunal has awarded a total compensation of Rs. 4,59,446/-

The disability certificate issued by the medical board is relevant here and reproduced as under:

DISABILITY CERTIFICATE

DISTRICT MEDICAL BOARD, JAGDALPUR

Certificate No. 402

Dated 1-11-2008

Treated at M.P.M. Hospital, Aghanpur, Jagdalpur from 18-3-2008 to 7-4-2008 for fracture pelvis with bladder injury OPD No. 31949 Indoor No. 12099

KESSLER''S SYSTEM ISSUED TO ASSESS DISABILITY

CERTIFICATE FOR THE PERSONS WITH DISABILITIES

This is to certify that Shri MANA SINGH, son of Shri Sunder Singh Address: Bhatiguda. Jagdalpur, age 19 years old male is a case of old malunited fracture pelvis left half (left superior and inferior pubic ramis). He is physically disabled and has 70% (Seventy Percent) permanent physical impairment in relation to his permanent disability operative scar mark + Ant, in lower abdomen in midline from umbilicus upto pubic symphysis (length 5"), cannot stand and walk, cannot run, cannot sit properly on the floor in squatting, kneeling and in cross leg position. Cannot pass urine in normal routine i.e., through urethra. Supra pubic catheterization is made. Power in both the legs is grade III.

PERMANENT PHYSICAL DISABILITY IN HIS WAIST 7 BOTH LOWER LIMBS IS SEVENTY PERCENT (70%) ONLY.

Sd/- Mana Singh Signature/thumb impression of the OPD

Sd/- Doctor (Seal) Member, District Medical Board, Maharani Hospital, Jagdalpur, Bastar

Sd/- Doctor (Seal) Member, District Medical Board, Maharani Hospital, Jagdalpur, Bastar

Sd/- Doctor (Seal) Member, District Medical Board, Maharani Hospital, Jagdalpur, Bastar

Seventy percent Sd/- Chairman District Medical Board District Medical Board, Maharani Hospital, Jagdalpur, Bastar

Further, one of the members of the Board namely Dr. Virender Jha (A.W. 3) entered the witness box and proved the above certificate. He has stated in his evidence that he examined the claimant on 1-11-2008 in Maharani Hospital, Jagdalpur under the control of District Medical Board. On X-ray being done on the left middle portion of Pelvis region, he detected an old malunited fracture in superior and inferior pubic remi. The claimant cannot stand and walk, cannot run, cannot sit in squatting, cannot sit on the strength of knees and in cross leg positions and cannot discharge his stools on Indian system. Even he cannot discharge his urine in general routine like all general men. Therefore, the claimant was operated to discharge his urine by supra public catheterization and there was much less strength in his both legs. He has stated that there was 70% of permanent disability in his waist and both the legs.

In case of Raj Kumar v. Ajay Kumar (supra), Hon''ble the Apex Court has laid down principles regarding assessment of future loss of earnings due to permanent disability in paras 6 to 11 as under:

Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person''s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person''s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (''Disabilities Act'' for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.

The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.

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 disability. 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 terms 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 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 Vs. New India Assurance Co. Ltd. and Another, and Yadava Kumar Vs. The Divisional Manager, National Insurance Co. Ltd. and Another, .

Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

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 inspite of the permanent disability 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 inspite 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 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 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 less 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.

The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to ''hold an inquiry into the claim'' for determining the ''just compensation''. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the ''just compensation''. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen''s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor''s opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.

(Emphasis supplied)

Further this Court in United India Insurance Co. Ltd. Vs. Bharat Kumar Lohar and Other, has held in Paras 8 to 13 which are reproduced herein below:

Permanent disability has not been defined except in Section 142 which is as under:--

Permanent disablement.--For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:--

(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or

(b) destruction or permanent impairing of the powers of any member or joint; or

(c) permanent disfiguration of the head or face.

Section 143 provides that regarding applicability of that chapter of Motor Vehicle Act to certain claims under Workmen Compensation Act, 1923.

Explanation to sub Section (1) of Section 163A of the Motor Vehicles Act express that for the purpose of that sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen Compensation Act, 1923. In II schedule at clause 5 the description of disability in non-fatal accidents has been given and after sub clause B it has been mentioned that "injuries deemed to result in permanent total disability and percentage of loss of earning capacity shall be as per schedule 1 under Workmen Compensation Act, 1923.

In the case of Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, four Judges of Hon''ble Apex Court have held in paragraph 5 thus as under:--

The expression "total disablement" has been defined in Section

2(1)(1) of the Act as follows:--

(1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement." It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:--

The injured workman in this case is carpenter by profession....by loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry "cannot be done by one hand only." This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule I, because it was not the appellant''s case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 1/2 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.

In the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, the Hon''ble Apex Court has held in para 8 as under:--

Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court''s order and restore that of the Commissioner, in view of the fact situation. Coming to the question of liability to pay interest, Section 4-A(3) deals with that question. The provision has been quoted above.

In the case of Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and Another, the Hon''ble Supreme Court has held thus in paragraphs 8, 10, 11, 12, 13, 14 & 16 as under:--

Both, the 1923 Act and 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the claimants suffering permanent disability.

Both the Acts aim at providing for expeditious relief to the victims of accident. In these cases, the accidents took place by reason of use of motor vehicles.

Both the statutes are beneficial ones for the workmen as also the third parties. The benefits thereof are available only to the persons specified under the Act besides under the Contract or Insurance.

The statutes, therefore, deserve liberal construction. The legislative intent contained therein is required to be interpreted with a view to give effect thereto.

With the aforementioned backdrop, we may analyse the contentions raised before us by the learned counsel for the parties.

Both the statues provide for the mode and manner in which the percentage of laws of earning capacity is required to be calculated. They provide that the amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-�-vis the injuries specified in the First Schedule of the 1923 Act. Indisputably where injuries are specified in the First Schedule, the mode and manner provided for the purpose of calculating the amount of compensation would be applicable.

The statues provide for determination of the extent of physical disability suffered by a qualified medical practitioner so as to enable him to assess the loss of earning capacity. Explanation 1 appended to clause (c) of sub-section (1) of Section 4 provides that where there are more injuries than one, the aggregate amount of compensation has to be taken but the same should not exceed the amount which would have been payable in case of permanent total disablement.

It is also beyond any doubt or dispute that while determining the amount of loss of earning capacity, the Tribunal or the High Court must record reasons for arriving at their conclusion. The 1923 Act which would also be the claims applications arising out of use of motor vehicles in terms of the provisions of 1988 Act would for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview thereof. The Note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that ''injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen''s Compensation Act, 1923''. Permanent disability, therefore, for certain purposes have been correlated with functional disability.

As to what, therefore, in our opinion, would be relevant is to find out the nature of injuries and as to whether the same falls within the purview of Part I or Part II thereof. We have noticed hereinbefore that whereas Part I specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement. The distinction between the ''permanent total disablement'' and ''permanent partial disablement'' is that whereas in the former it is 100% disablement, in the latter it is only the disablement to the extent specified in the Schedule.

Similar terms have been used in clauses (a) and (b)(of paragraph 5 of the Second Schedule of the Motor Vehicle Act. It by reference, incorporates the provisions of the First Schedule of the 1923 Act. Indisputably, therefore, the Note appended thereto would not only be applicable to the cases falling under the 1923 Act but apply to the cases which fall under the 1988 Act as well.

In determining the amount of compensation, several factors are required to be taken into consideration having regard to the Note. Functional disability, thus, has a direct relationship with the loss of limb.

Mohd. Nasir was a driver. A driver of a vehicle must be able to make use of both his feet. It was the case of the claimant that he would not be in a position to drive the vehicle and furthermore would not be able to do any other work. He was incapable of taking load on his body. It, however, appears that in his cross-examination, he categorically stated that only Chief Medical Officer had checked him in his office. No disability certificate had been granted. He admitted that he had not suffered any permanent disability. He, even according to the Chief Medical Officer who had not been examined, suffered only 15% disability. The Tribunal has arrived at the following findings:

On page 16 original of disability certificate the prescription of medicine X-Ray report of Sarvodaya and of Mohan X-Rays have been produced which reveals the fracture of right leg. CMO certificate O/M9/2003 dated 21-3-2005 has also been produced which is alleged to be false by insurance Co. I have perused them carefully which bears signature of Deputy CMO officer of Disability Board, Moradabad had it shown that the applicant had appeared before them for medical check up and whose examination was done by senior orthopedics surgeon Dr. R.K. Singh on the basis of recommendation of Dr. Bansal operation was done on 2-10-2004 the applicant walk with the help of the support and is not competent to drive the heavy motor vehicle the said certificate was issued with recommendation that after six months his conditions is to be reviewed.

That document was filed on 29-3-2005. Insurance company has stated the doctor who has issued disability certificate has not been produced in the court. But looking into the aftermath situation the plea of insurance company that the said certificate is forged and the same has not been issued by the MBBS doctor, carries no force.

In the instant case though the Medical Board has certified the permanent disability of the claimant only to the extent of 70% but the doctor who examined him has also noted about the functional disablement that he cannot stand and walk, cannot run, cannot sit on the floor in squatting, kneeling and in cross leg positions, cannot discharge his stools on Indian system and even cannot pass urine in normal routine i.e., through urethra, therefore, Supra public catheterization is made and the power in both the legs is grade III. Further according to the learned counsel for the claimant he has to change uro-bag periodically to avoid infection which needs further expenditure. Therefore, in the above circumstances, though the Medical Board has certified 70% permanent disability but looking to the above functional disablement, to our opinion, there is 100% loss of earning capacity. Therefore, the earning capacity of the claimant would be nil and as such there is 100% loss of earning capacity. Hence loss of income taken by the Tribunal as 70% is not proper.

In Raj Kumar case (supra), it has been held by the supreme Court vide Para 13 that the percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity and the doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability but the loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence as a whole. In the said case it has also been laid down that 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 Apex Court further observed in para 11 as quoted above that the Tribunal should not be a silent spectator when medical evidence is on record in regard to the injuries and their effect, especially the extent of permanent disability. Sections 168 & 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to ''hold an inquiry into the claim'' for determining the Just compensation''.

In view of what has been discussed above, we are of the considered view that it is a case where the total loss of earning capacity is 100%. Therefore, we take the income of the deceased as Rs. 3,000/- per month and Rs. 36,000/- per annum. At the time of accident, the claimant was aged about 19 years. According to the multiplier scale given in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, multiplier 18 should have been made applicable but the Tribunal has applied the multiplier 16. Therefore, on multiplying by 18, the total loss of income comes to Rs. 6,48,000/- (Rs. 36,000 x 18). Besides this, the amounts awarded by the Tribunal under the other heads which in all comes to Rs. 56,246/- as mentioned above should remain in tact. Thus if we add this amount, the total compensation comes to Rs. 7,04,246/- which the claimant is entitled to receive from the Insurance Company. We also direct that the aforesaid award shall carry simple interest @ 7.5% per annum from the date of filing of the claim petition till payment is made. The claimant injured shall get Rs. 2 lakhs in cash and the remaining amount shall be kept in a fixed deposit for a period of six years. Needless to mention that the claimant has to change the uro-bag periodically to avoid infection which needs further expenditure. However since we have enhanced the amount of compensation, the requirement of change of uro-bag can be satisfied from the amount deposited with the Bank. Accordingly, the impugned award dated 29-1-2010 is modified to the above extent. In the result, M.A(C). No. 803/2010 filed by the claimant is allowed and M.A(C). No. 928/2010 filed by the Insurance Company is dismissed. No order as to costs.