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Judgment
This appeal is filed by the original claimant to challenge an award dated 07.08.2018 passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala in case No.T.S.(MAC) 72 of 2017. He seeks enhancement of the compensation awarded by the Claims Tribunal.
Though the issues arising this appeal are of simple nature of appreciation of evidence on record and computing just compensation payable to the claimant, one ticklish issue which I have noticed in number of motor accident claims based on personal injuries arises in this appeal also and which requires resolution. In accident claim cases arising out of injuries, it is found that in the State of Tripura there is a practice of obtaining injury certificates from District Disability Medical Board (the Board, for short) which assesses the extent of disability of a victim of motor accident for a limited period of 5(five) years and recommends review of such disability after completion of such period. Quite apart from obscure origin of this practice, in number of cases this results into gross and irreparable injustice to the claimants. Present is a classical example of such injustice suffered by the claimant on account of such misplaced and as we shall see hereafter, a practice wholly impermissible in law in the context of motor accident claims.
Facts of the case may be noted at the stage:
The appellant original claimant was aged about 46 years at the relevant time. He met with an accident on 08.05.2016. At about 1.30 p.m. when he was travelling on his motorcycle, a motor car coming from the opposite direction collided with the claimant causing serious injury on his leg. He was a daily labourer. He claimed that he was earning Rs.10,000 per month from such occupation. He was admitted as an indoor patient from 08.05.2016 to 22.06.2016. He was examined by the Board on 06.12.2017. A certificate of disability was issued which reads as under:
"This is to certify that I have carefully examined Sri SAMIR CHANDRA DAS, S/O LATE RAGHUNATH DAS Date of Birth 01 Jan 1967 Age: 50 Years, Sex: M, Registration No. 10287/2017, Permanent resident of TAMSABARI, Post Office-SONAMURA, PS- SONAMURA, District- WEST TRIPURA, State-TRIPURA, whose photograph is affixed below and we are satisfied that:
He is a case of Locomotor Disability (TEMPORARY)
His extent of permanent physical impairment/ disability has been evaluated as per Govt. guidelines and is shown against the relevant disability in the below:
Disability
Affected Part of Body
Diagnosis
Disability (%)
Locomotor
Right Leg
RESTRICTED MOVEMENT DUE FRACTURE BOTH BONE RT LOWER LIMB WITH MILD DEFORMITY.
60
This condition is Progressive
Re-assessment is recommended after 5 year 0 month and validity of certificate up to 06 Dec 2022."
Dr. Dipti Bikash Roy, who was a panel doctor who had examined the claimant before issuing the said disability certificate, was examined before the Claims Tribunal as PW-2. He deposed that upon examination it was found that due to accident the patient's right leg was affected. The disability was diagnosed as restricted movement due to fracture of both bones of right lower limb with mild deformity. Re-assessment was recommended after 5(five) years. To the question put by the Court as to how such disability will affect the claimant in his earning capacity, the doctor stated that he can do light work but he will not be able to perform any heavy work. The Court persisted with the level of disability and asked the doctor as to in his opinion what is the percentage of functional disability of the victim to which he said he would assess the functional disability at 40%.
The Claims Tribunal held the driver of the motor car solely negligent in causing the accident. The claimant would, therefore, receive compensation from the owner and insurer of the said vehicle. While assessing the compensation, the Claims Tribunal believed the income of the claimant at Rs.7,500 per month at the time of the accident, awarded Rs.15,000 towards actual loss of income for two months. The Tribunal applied functional disability of 40% and assessed the loss of income at Rs.3,000 per month and awarded Rs.1,80,000 towards future loss of income. With the remaining computation of medical charges, attendant charges and pain, shock and suffering not much dispute is possible none made. I, therefore, not refer to these headings separately.
In the context of awarding future loss of income, the Tribunal has committed three major errors. Firstly, the Tribunal has limited the loss to a period of 5(five) years. This is presumably on the basis of the certificate of the Board suggesting that the claimant should approach again for another examination after 5(five) years. This is a most disturbing aspect and with respect to which I would like to make some elaboration. The second error which is a fall out of the first one is that the Claims Tribunal has not granted any rise for the future income. When the compensation is being assessed with reference to the date of the accident, as is established through series of judgments of the Supreme Court, providing rise for the future income to offset for depreciation in rupee value over a period of time, is inbuilt in the system of computing compensation which is evolved over a period of time. The third area which requires correction is the assessment of functional disability. Though the Medical Board certified that the claimant suffers from 60% disability of the body as a whole, the Court pressed the panel doctor to express his opinion on the functional disability resulting out of such bodily disability and reduced the disability to 40%.
We have noticed the contents of the medical certificate issued by the District Disability Medical Board. This certificate states that the claimant was suffering from locomotor disability but certified that the same was only temporary. The certificate contains two further narrations "(i) This condition is Progressive; (ii) Re-assessment is recommended after 5 years and validity of certificate is up to 06.12.2022". Quite a few disturbing things emerge from this certificate. We may recall the accident took place on 08.05.2016. The Board had examined the claimant on 06.12.2017, i.e. almost a year and a half later. On what basis the Medical Board certified that the injury is temporary is difficult to appreciate. If the injury had not healed for a year and a half and showed 60% disability after such a long time, the Medical Board had to indicate some reason why it believed that the injury was temporary. I am conscious that in the motor accident claim cases the Courts recognize injuries leading to disability which is either temporary or permanent and which is total or partial. In the present case, however, when the Medical Board certified a year and a half after the accident that the injury was temporary, there had to be some explanation to this.
Secondly, I have come across all injury certificates issued by the District Disability Medical Boards which routinely suggest that the validity of the injury certificate is for a period of 5(five) years and that the injured should appear before the Medical Board at the end of the said term. There is no provision under the Motor Vehicles Act, 1988 or the Rules framed thereunder to assess the disability of the injured for a fixed period and to work out his loss of future income on such basis. No decision of this Court or any other Court is brought to my notice under which such procedure is evolved. Such procedure thus has no authority in law.
The complications and the injustice which such procedure can lead, need to be appreciated. Under the Motor Vehicles Act, a claimant would file his claim petition in terms of either Section 166 or 163A. On an application for compensation filed under Section 166 of the Motor Vehicles Act, the Claims Tribunal would pass award under Section 168 which requires determination of the amount of compensation which appears to the Tribunal to be just. Awarding just compensation thus is central to any motor accident claim case. Under Section 173 of the Motor Vehicles Act, any person aggrieved by the award of the Claims Tribunal could prefer an appeal to the High Court. The filing and awarding compensation for a motor accident claim is thus a one time measure and is not open to periodic revision. In a routine manner thus if the Medical Board certifies the disability of an injured for a fixed period, it is difficult to see how after completion of the said period of 5(five) years the claimant could seek any redress for compensation for the rest of the duration of his life. Take for example, if a claimant whose disability has been certified by the Medical Board for a period of 5(five) years and on which basis, as in the present case compensation is assessed and awarded by the Claims Tribunal for loss of income for a limited period, what would happen if such injured revisits the Medical Board at the end of said period of 5(five) years and is certified that his disability is permanent. His original claim petition would have been decided assessing his loss of income for a period of 5(five) years. He would have no opportunity of filing a fresh claim petition. This would result into a grave loss to the claimant and would destroy the very basis of awarding just compensation in a motor accident claim case. Such practice, therefore, must be stopped forthwith. It is, therefore, provided that hereafter whenever a claimant injured presents himself to the District Medical Board for issuance of disability certificate, the Medical Board shall certify whether such disability if at all is permanent or temporary. If it is assessed as temporary, the period that such disability is likely in the opinion of the Medical Board to last shall be indicated. In any case, there shall be no recommendation for revisiting the Medical Board after completion of period of 5(five) years by issuing certificate with limited validity.
In the present case, since the claimant was examined by the Medical Board almost a year and a half after the accident and the Medical Board still found that he was suffering from 60% physical disability, such disability must be considered as permanent in nature. The Claims Tribunal forced the doctor to opine on what this physical disability would convert in terms of functional disability. Ordinarily Courts project a person's loss of earning capacity in proportion to the permanent disability suffered by him as a body as a whole. This may not be the ideal way of assessing possible loss of earning capacity, nevertheless presents a better alternative than any other readily available. However, the Courts always make a distinction between physical disability and functional disability whenever the projection of physical disability over the reduction in earning capacity of the injured is dramatically different. For example, if a painter by profession undergoes amputation of his dominant hand, his medically assessed physical disability may be in the range of 40% or thereabouts whereas on the premise that such person totally loses his ability to generate income from his original source, his functional disability is taken at 100%. It is not necessary to refer to large number of decisions on this point. In this context, reference to a decision of Supreme Court in case of Rekha Jain vrs. National Insurance Company Limited and others reported in (2013) 8 SCC 389 would be sufficient.
However, any such assessment of conversion of physical disability into functional disability is the task to be performed by the Claims Tribunal and not the medical expert. The deposition of the doctor before the Tribunal had to be confined to his assessment of the locomotive disability sustained by the claimant on account of the injury. He ought not to have been asked to assess the level of functional disability. To the Court's query he had sufficiently made it clear that the claimant could carry out light work but not heavy work.
In the present case, above discussion would lead to the following re-computation of compensation. The income of Rs.7,500 believed by the Claims Tribunal at the time of accident needs to be maintained. Looking to the age of the claimant being about 46 years, as per the decision of Supreme Court in case of National Insurance Company Limited vrs. Pranay Sethi and others reported in (2017) 16 SCC 680, there shall be 25% increase for the future income. This would bring the claimant's prospective income to Rs.9,375. 60% thereof for the disability would make the future loss of income assessable at Rs.5,625 per month, or Rs.67,500 per annum. As per the decision of Supreme Court in case of Sarla Verma (Smt.) and others vrs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, multiplier of 13 will be applied. His future loss of income would, therefore, come to Rs.8,77,500. Coupled with remaining heads of compensation already awarded by the Claims Tribunal for which I propose to make no amendment, the claim easily crosses Rs.9,00,000 which is what is claimed by the claimant. In facts of the case, such award would be restricted to what is claimed by the claimant though I am conscious that in motor accident claim cases the Tribunal and the High Court has the power to award compensation higher than what is claimed by the claimants because subject to paying the deficit court fees.
Additional compensation shall be paid by the Insurance Company with simple interest @ 7% per annum from the date of claim petition till actual payment.
Copy of this judgment be circulated to all the District Courts in the State as well as the District Disability Medical Boards through the Secretary, Health Department.
Appeal is disposed of accordingly.
Pending application(s), if any, also stands disposed of.