New India Assurance Co. Ltd. vs Parvaiz Ahmed Bhat & Ors.

i)

Whether the petitioner was driving the vehicle (Truck) bearing No. HR 68B-0354 and met with an accident at Gugava Pul, Gatampur Janpad Kanpur Nagar (Utter Pradesh) due to rash and negligent driving by the respondent No. 3 who was plying the offending vehicle bearing registration No. MH43Y-9530, collided his vehicle, as a result of which petitioner received grievous injury on head, chest and other parts of body and also lost his right leg, leading to his permanent disablement?-------OPP

ii) In case issue No. 1 is proved in affirmative, whether the petitioner is entitled to receive the compensation, if yes, to what amount and from whom? ........OPP

iii) Whether the offending vehicle was being driven at the time of accident in contravention of terms and conditions of the insurance policy and the driver was not holding a valid and effective driving license, route permit and fitness certificate at the time of accident, as such, the respondent insurance company is not liable to pay compensation to the petitioner?--- OPR-1

iv) Relief?”

“9.

As to how compensation, in case where permanent disability of an injured affects his functional disability, is to be assessed has been considered by this Court, repeatedly. Reference can be made to the judgment of this Court in Mohan Soni vs. Ram Avtar Tomar And Others. In the aforesaid case the injured was working as a cart puller. As a result of the accident, his left leg was amputated. His permanent disability was assessed at 60%. The Tribunal assessed the compensation taking the loss of earning at 50% on the theory that he can still do some other work while sitting. The High Court did not disturb the finding regarding loss of income on account of disability. This Court found that the Tribunal was in error in taking the loss of earning at 50% as the injured was 55 years of age and it may be difficult for him to find a job at that stage. In fact, any physical disability resulting from an accident has to be judged with reference to the nature of the work being performed by the person who suffered disability. The same injury suffered by two different persons may affect them in different ways. Loss of leg by a farmer or a rickshaw puller may be end of the road as far as his earning capacity is concerned. Whereas, in case of the persons engaged in some kind of desk work in office, loss of leg may have lesser effect. This Court enhanced the loss of earning capacity from 50% to 90%.

10.

Applying the same principle to the case in hand, we find that the appellant herein was working as a gunman with Bharat Hotel Limited. On account of amputation of his right leg above the knee, he was terminated from service w.e.f. 31.05.2015. It is not a matter of dispute that a person with his right leg amputated cannot perform the duty of a gunman. This is his functional disability. He was 50 years & 5 months old at the time of accident. Considering the aforesaid facts, in our view, the Tribunal was right in assessing the loss of earning capacity of the appellant at 100% and assessing the compensation accordingly. The High Court was in error in reducing the loss of earning capacity to 80%, relying upon the judgment of High Court, despite there being a judgment of this Court available on the issue.”

“21.

However, the High Court, while observing that physical disability cannot be mechanically equated with functional disability, reduced the functional disability suffered by the appellant-claimant from 63% to 30% without adverting in detail to the medical evidence on record, particularly the findings of the Medical Board and the neuropsychological report evidencing cognitive deficits suffered by the appellant-claimant as a consequence of the injuries suffered in the accident. No independent contra material was placed on record by the respondent- insurer to displace the evidentiary value of the disability certificate. In our considered view, such reduction of the functional disability, in the absence of convincing evidence impeaching the credibility of the medical certificates placed on record by the appellant-claimant and without assigning cogent reasons, was not at all justified. For ready reference, the relevant extract from the impugned judgment is reproduced herein below: -

“10.

According to the claimant he was earning a sum of Rs.29,108/- per month by working as a Manager in a private concern, which has been proved through Exs.21 to 25. Thus, the Tribunal has arrived the amount under the head of loss of earning power, by multiplying the disability as 63%. It appears to be on the higher side. Though the Medical Board has assessed the physical disability of the claimant as 63%, after going through the records, we have come to the conclusion that the functional disability suffered by the claimant would be 30%. After adding 40% towards future prospectus, the total income of the claimant is arrived at Rs.40,751/-, rounded off to Rs.40,000/-. Thereby, the claimant is entitled for an amount of Rs.24,48,000/- (Rs.40,000/- x 12 x 30% x 17); Rs.1,00,000/- for Loss of amenities; Rs.2,00,000/- under Pain and sufferings; since the claimant was unmarried at the time of accident and sustained grievous injuries in the accident, an amount of Rs.2,00,000/- is granted towards loss of marital prospectus; The amounts awarded under the heads of Medical expenses, Transportation to hospital, Extra nourishment and Damage to clothing and articles are confirmed.”

22.

A careful reading of the aforesaid extract indicates that the High Court merely adverted to the general principles governing assessment of disability and, without undertaking any independent analysis of the evidence on record, abruptly concluded that the functional disability suffered by the appellant- claimant would be 30%. There is no discussion as to why the medical findings, the disability certificate issued by the competent Medical Board, or the neuropsychological report were doubtful or insufficient to sustain the conclusion reached by the MACT. Equally, while reducing the quantum of compensation, no specific or cogent reasons have been assigned for curtailing the amounts awarded under the heads of “Loss of Amenities” and “Pain and Suffering,” which were based on the nature and gravity of the injuries sustained by the appellant-claimant. In our considered opinion, such conclusions, abruptly arrived at without proper re-appreciation of the evidence and without recording adequate reasons, are in the nature of presumptions and assumptions and cannot be sustained in the eyes of law.

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25.

In order to determine the functional disability suffered by the appellant-claimant, it is necessary to advert to the findings recorded by the Medical Board with respect to the permanent physical disability, as well as the neuropsychological assessment report placed on record. Both these documents remained uncontroverted and hence, they provide credible expert evidence so as to assess the extent and nature of disability. The true nature and extent of the injuries, and their impact on the cognitive and functional abilities of the appellant-claimant, can be properly appreciated only upon a careful consideration of these materials. For ready reference, the relevant extracts from the said documents are reproduced herein below: -

“Neuropsychological Assessment Report: Interpretation & Conclusion

•

Memory Scale shows that his verbal and Visual memory is impaired severely.

•

On tests for frontal lobe functioning-impairment.

•

On the test for parietal lobe functioning, normal performance shows that the lobe function is intact.

The IQ range of 65,fall into the category of Mild Intellectual Disability. Report of the Medical Board.

Case of Head injury treated conservatively, facial injury x left femur fracture treated by surgical intervention. Above injury has resulted in partial blindness, cognitive impairment and partial lom of Rom and stability of left knee. His disability due to above injuries sixty three percent (63%).”

26.

Having bestowed our anxious consideration to the material placed on record, we find that the disability certificate issued by the Medical Board clearly records that the appellant-claimant had suffered a head injury treated conservatively, facial injury, and left femur fracture treated by surgical intervention. These injuries progressively resulted in partial blindness, cognitive impairment and partial loss of range of motion and stability of the left knee. The neuropsychological assessment further evidences severe impairment in verbal and visual memory, impairment of frontal lobe functions and an IQ score of 65, placing the appellant-claimant in the category of Mild Intellectual Disability. These findings, read conjointly, demonstrate that the injuries suffered by the appellant-claimant were not merely orthopedic in nature, but had significant neurological sequelae directly impacting his functional and cognitive abilities.

27.

This Court, in Raj Kumar v. Ajay Kumar, has authoritatively laid down the principles governing assessment of permanent and functional disability for the purpose of awarding compensation. It has been held that the percentage of permanent disability assessed by a medical expert cannot be mechanically equated with the percentage of loss of earning capacity. What is required to be determined is the actual impact of such disability on the earning capacity of the injured, having regard to his avocation, age and the nature of work performed. The Tribunal is required to undertake a structured analysis to ascertain the activities the claimant can or cannot perform post-injury, the nature of his profession prior to the accident, and whether the disability has resulted in total incapacity or merely restricted or reduced earning capacity. For ready reference, the relevant extracts from the said judgment are reproduced hereinbelow: -

“9.

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%.

“10.

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 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.

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 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 the percentage of loss of earning capacity as a 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. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd.

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.”

28.

In view of the principles laid down by this Court in Raj Kumar (supra), as consistently affirmed thereafter, the assessment of functional disability must be grounded in a realistic appraisal of the impact of the injury on the claimant’s capacity to earn. The inquiry is not confined to the numerical percentage of physical impairment certified by the Medical Board, but extends to evaluating whether the claimant, in light of his educational background, skill set and nature of employment, is capable of meaningfully pursue his avocation.”

“By virtue of the aforesaid amputation, the appellant has effectively lost his capacity to continue the work of a mason, which was admittedly the sole avocation being pursued by him for earning his livelihood. It is not even the case of the respondents that the appellant was engaged in any other sedentary occupation or that despite the amputation suffered by him, his earning capacity remained unaffected.