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Judgment
Heard Mr. Ivon Santimano for the Appellant/Original Claimant and Ms. Yadika Mandrekar for the 3rd Respondent (Insurance Company). The 1st and 2nd Respondents, though served, at present not represented.
The Appellant-Claimant challenges the Judgment and Award dated 09.03.2020 made by the Motor Accident Claims Tribunal (Tribunal) to the extent the Award denies the Petitioner loss of future earnings due to permanent disability of 25% suffered by him.
The Tribunal, for denying compensation for loss of future earnings, has reasoned as follows in paras 63 and 64 of the impugned Judgment and Order:
“63.The Apex Court also observed that 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 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.
64.The Certificate at Exh.20 issued by CW10 Dr. Sunny Kamat states that the claimant had a tenderness at the lower end of right tibia with right ankle stiffness and that the permanent disability was 25%. CW10 Dr. Sunny Kamat has given evidence that he had examined the claimant on 14.09.2016 to evaluate his permanent disability. The doctor has given evidence that with the said disability of 25%, the patient will have some difficulty in walking a long distance for squatting for a long time and that it is less likely that the patient will have difficulty in moving swiftly. The doctor has further deposed that the patient will not have any difficulty in climbing steps and that the tenderness would be reduced with treatment. I am therefore in agreement with Ld. Adv. Shri Halarnkar that the claimant had not suffered any functional disability and as such, is not entitied for any compensation towards loss of future earning under the head (ii) (b).”
The Appellant had produced a certificate dated July 4, 2015 issued by Air Borne Recruiting Pvt. Ltd., certifying that the Appellant was working with Disney Cruise Line as a Custodial Host from August 12, 2013 to March 16, 2014. The certificate also states that the Appellant was supposed to rejoin on May 24, 2014, but could not join the ship as he met with an accident in the month of April, 2014.
The Appellant examined Gazella Britto (CW9), who was the Branch Manager of Air Borne Recruiting Pvt. Ltd. In her evidence, which was dated 26.04.2019, Gazella Britto stated that she knows the Appellant since “he is our crew member”. This deposition was recorded on 26.04.2019. Based upon this, Ms. Yadika Mandrekar contended that the Appellant, even in 2019, was a crew member on the Vessel. So this witness has denied the suggestion that no extension beyond 16.03.2014 could have been granted to the Appellant. The witness also stated that the Claimant was to rejoin on 24.05.2014 at Canada.
The Appellant also examined Dr. Sunny Kamat (CW10). His deposition i.e. Examination-in-chief and cross-examination is quite brief. It is transcribed below for the convenience of reference:
“Examination in chief of Cw10 by Ld. Advocate Shri T. Karmalkar for the Claimant.
I had examined Mr. Savio Manueal D’Costa to evaluate his permanent disability on 14.09.2016. With the disability of 25% in view of the tenderness at lower end of right tibia with right ankle stiffness, the patient will have some difficulty in walking a long distance or squatting for a prolonged time. It is less likely that the patient will have difficulty in moving swiftly, He will not have any difficulty in climbing steps.
None present for respondent nos. 1 and 2.
Cross-Examination of Cw9 by Ld. Adv. Shri A. Halarnkar for the Respondent no. 3:
The tenderness would be reduced with treatment.”
Based on the above evidence, the Tribunal has concluded that the Appellant suffered from no functional disability and, therefore, merely on the premise that the Appellant had suffered medical disability to the extent of 25%, no compensation could be granted towards loss of future earnings.
Ms. Mandrekar, while supporting such reasoning, contended that there was no evidence led by the Appellant that he was unable to obtain employment on foreign vessels after the accident. She referred to the evidence of Gazella Britto (CW9), in which, Gazella Britto had stated that the Appellant “is our crew member”. This deposition was tendered on 26.04.2019. Accordingly, she contended that even as of 26.04.2019, the Appellant was functioning as a crew member on a vessel.
There is some ambiguity regarding the Appellant’s service after the accident on 02.04.2014. However, even if it is considered that the Appellant was working as a crew member in 2019, it is difficult to accept that the Appellant, who admittedly suffered medical disability of 25%, sustained no functional disability whatsoever. CW10 has deposed that, in view of tenderness at the lower end of the right tibia and right ankle stiffness, the Appellant would have difficulty walking long distances or squatting for a long time. However, this doctor also deposed that it was less likely that the Appellant would have difficulty in moving swiftly or in climbing steps.
Based on the above evidence, it is evident that the Appellant did suffer some functional disability. The Appellant was working on a foreign cruise line vessel. He was working as a Custodial Host or a Housekeeping Utility. At a stretch, the Appellant would have to work for about seven months on the cruise boat before he returned home and again rejoin the cruise boat after about five months for another seven months term. His duties could involve some walking on the cruise boat, not to mention some squatting as well. However, considering Dr. Sunny Kamat’s evidence that the Appellant was unlikely to have difficulty in moving safely or climbing steps, the functional disability in this case cannot be on par with the medical disability of 25%.
In the facts of the present case, or rather, considering the evidence placed on record in the present case, the functional disability can safely be taken at 5%, though the medical disability was assessed at 25%. This is because there is evidence about the Appellant working as a housekeeping utility or a Custodial Host on a cruise vessel. It is reasonable to infer that the Appellant would face some difficulties in discharging the duties of the post of which he was recruited. The difficulties would not be too great since CW10 admitted that the Appellant would have no serious difficulties in moving safely or in climbing steps. The difficulties would be in walking a distance or squatting for a prolonged time.
Therefore, based on the functional disability of 5%, the compensation would come to Rs. 3,85,000/- after taking into account the fact that the Appellant was earning a total guaranteed weekly wage of USD165, and normally, a 40% increase is allowed towards future prospects when a claimant was a contractual employee or not a permanent employee.
Accordingly, the impugned Judgment and Award is modified. In addition to the compensation already awarded, further compensation of Rs.3,85,000/- is awarded to the Appellant. This added amount should also carry interest @ 9% per annum from the date of filing of the claim petition till its actual payment.
This appeal is partly allowed by enhancing the compensation amount by Rs.3,85,000/- together with interest on this enhanced amount @ 9% per annum to be compounded from the date of institution of the claim petition till the actual payment of this amount.
The Respondents are directed to jointly and severally pay this amount to the Appellant within two months from today, either by directly paying the amount or by depositing the amount in this Court. The deposit should be made after due intimation to the learned Counsel for the Appellant. Upon deposit, the Appellant will be entitled to withdraw the deposited amount.
The appeal is partly allowed with the above directions. No costs.