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Judgment
[1] Heard Mr. S. Das, learned counsel appearing for the appellant as well as Mr. A.K. Deb, learned counsel appearing for the respondent No.2, the National Insurance Company Ltd., [the insurer of the vehicle bearing registration No.TR-01-A-1297, Minibus]. None appears for the respondent No.1 despite due notice from this court.
[2] This is an appeal under Section 173(1) of the Motor Vehicles Act from the judgment and award dated 22.02.2018 delivered in TS(MAC) No.29 of 2015 by the Motor Accident Claims Tribunal, No.1, West Tripura, Agartala. By the said judgment dated 22.02.2018, the Tribunal has assessed the damage that the appellant has suffered from the road traffic accident which occurred on 04.12.2013 when the appellant was going to Rungthangcherra Eco Park by riding his motor bike, at Rs.1,14,300/- payable with interest @6% per annum from 28.01.2015, the day of filing the claim petition till the payment is made. There is no dispute about the road traffic accident. On 04.12.2013 when the appellant reached Dewanbajar at 4 in the afternoon, the vehicle of the respondent No.1 bearing registration No.TR-01-A-1297 coming at a high speed and being driven in rash and negligent manner dashed the motor bike of the appellant from his behind. As a result, the appellant received serious injuries. He was immediately transported to Bishramganj hospital wherefrom he was shifted to GBP hospital at Agartala. The appellant was treated in the GBP hospital from 04.12.2013 to 14.12.2013 but he was not fully cured. He took his treatment in a private nursing home being named as 'Asha Child Care & Nursing Home & Research Centre' from 15.12.20123 to 25.12.2013. As the impact of the injury the appellant became disabled to the extent of 40%. The disability that he had suffered has eroded his functional disability according to the appellant and hence, he filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming a sum of Rs.42,32,000/- as compensation on the following heads:
1.
Loss of future/contribution @Rs.15,000/- per month [Rs.15,000X12]=
Rs.36,00,000/-
2.
Cost of treatment at present
Rs.2,00,000/-
3.
Cost of treatment in future
Rs.1,00,000/-
4.
Cost of attendant Rs.100/- per 12 hrs. per attendant for 12 months [100X2X360]
Rs.72,000/-
[3] In the trial, the appellant examined himself as PW-1 and at his instance, one medical expert, namely Dr. Dipti Bikash Roy was examined as PW-2. That apart, the appellant introduced the first information report along with the written complaint, injury report, seizure list, the final report [Exbt.1 series], the discharge certificate [Exbt.2], the prescription, the medical examination report [Exbt.3], cash memos and money receipts [Exbt.4], the admit card [Exbt.6] and the certificate of disability [Exbt.7]. The respondent No.1 who examined himself as OPW-1 and introduced the various documents viz. certificate of registration [Exbt.A], driving license [Exbt.B] and the insurance certificate issued by the respondent No.2 [Exbt.C]. Even some other documents have been placed in the records, but those were not admitted in the evidence viz. road permit, certificate of evidence and tax token etc. It appears that the solitary ground of objection as raised in this appeal hinges on whether the assessment in respect of functional disability that has been suffered by the appellant was properly assessed by the tribunal for purpose of determining the compensation or not. Neither of the parties has raised any objection relating to the fact as determined by the tribunal in respect of the injury received by the appellant, his hospitalization and the consequential disability as reflected in the certificate of disability [Exbt.7]. Therefore, this appeal may be determined on the basis of the said objection alone. While determining the functional disability on the basis of the disability certificate and the testimony of PW-2, the tribunal has observed that the appellant has become temporarily disabled to the tune of 40%. PW-2 in his deposition has stated that the deformity which has affected his right ankle may not be cured. However, the injured leg has not been shortened. The appellant being an electrician by profession has not been permanently disabled incapacitating him to pursue his profession as electrician. Moreover, the said disability has been assessed to be for 5 years. Thus, the tribunal has come to the conclusion that after 5 years no disability would be there. Thus, only for bodily pain Rs.60,000/- has been assessed as compensation along with the components including the medical expenses Rs.31,300/, temporary loss of income for 3[three] months Rs.18,000/-, consultation fees for doctor Rs.1800/- and the transportation cost Rs.3200/-.
[4] Mr. Das, learned counsel appearing for the appellant has strenuously argued that the tribunal has failed to appreciate the expert opinion and thereby returned an incorrect inference in respect of loss of income resulting from the disability that has been certified by the competent board. According to Mr. Das, learned counsel, the disability certificate that has been issued by the District Disability Medical Board, West Tripura [Exbt.7] has clearly observed that the appellant has suffered loco-motor disability [temporary] and thereafter, the board has observed that 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
Deformity Ankle Joint (RT)
40
[4] It has been also noted in that certificate of disability that the condition is progressive and the reassessment is recommended after 5 years 9 months. For the said period the disability certificate [Exbt.7] is made valid. Mr. Das, learned counsel has further urged this court is to read the testimony of PW-2, Dr. Dipti Bikash Roy to have the probable extent of functional disability. PW-2 has stated that the board has examined the appellant and found disability to the tune of 40%. The certificate [Exbt.7] was issued for a temporary period. He has categorically observed that the deformity which has been caused in his right ankle may not be cured. In the cross-examination, he has further stated that the appellant will have to work limping even though his leg has not been shortened. Mr. Das, learned counsel has, therefore, made a robust statement to persuade this court that considering the nature of disability the appellant has suffered, it can be stated to be in the category of permanent partial disability for functionalities. But the tribunal has failed to assess the said functional disability impacting his earning perennially.
[5] From the other side, Mr. Deb, learned counsel appearing for the respondent No.2 has submitted that there is no permanent impairment of any extent and that is why the disability has been assessed at 40% for a period of 5 years. According to Mr. Deb, learned counsel for the respondent No.2, there is no infirmity in the finding of the tribunal and hence, no interference in the impugned judgment and award is called for.
[6] Mr. Das, learned counsel appearing for the appellant in relied on a decision of this court in Sukanta Choudhury vs. Ashutosh Chanda and others, reported in (2015) 2 TLR 499. In the said decision Raj Kumar vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 has been referred extensively and it has been observed that 'since the claimant is not a manual labourer. He is the assistant on a vehicle. He is not required to do hard manual work except changing of punctured tyre or loading or unloading the vehicle. The loss of an index finger will not cause him 100% loss of earning capacity. He can continue to work. His earning capacity may be impaired but it cannot be said that he has become incapable of earning. Loss of one finger of an assistant in a vehicle can never be termed as 100% loss of earning capacity. In the Workmen's Compensation Act, the loss is stated to be 14%. In addition, there is loss of some movement of the middle finger and, therefore, I assess the loss of earning capacity at 20%.'
[7] Mr. Das, learned counsel has also referred to the report in Subhash Chandra Sukla Das vs. Debasish Dey and others, reported in (2019) 2 TLR 44. In that report also Rajkumar (supra) has been extensively referred and it has been observed that the apex court in Sanjoy Batham vs. Munnalal Parihar, reported in (2011) 10 SCC 665 and Nagappa vs. Gurudayal Singh, reported in (2003) 2 SCC 274 has observed that in the scheme of the Motor Vehicles Act, there is no scope for making further award after the final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, the tribunal/court should consider such eventuality and fix the compensation accordingly. No one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred, can be determined only on the basis of fair guess-work after taking into account increase in the cost of medical treatment. Hence, Mr. Das, learned counsel has contended that by not determining the loss in the earning, the tribunal has caused serious prejudice to the appellant. The question that is pertinent is whether there is any loss in the functional capacity or not. The apex court in Manoj Rathaur vs. Anil Raheja and others, reported in (2012) ACJ 1459 SC had occasion to observe as follows:
"10.Respondent No.3 did not adduce any evidence to establish its plea that the disability certificate was fake or that the assessment made by AW2 was not correct and that appellant could continue to do the work with the same degree of efficiency as he was doing prior to the accident. Therefore, it is not possible to approve the view taken by the Tribunal and the High Court that the appellant had not suffered permanent disability due to the fracture on his right thigh and that his working capacity did not get impaired a result of injury caused in the accident."
[8] The apex court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 has approved the use of multiplier for purpose of having the loss of income. The said method has been restated in National Insurance Company Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC 680.
[9] Mr. Das, learned counsel referred a recent decision of this court in Samir Chandra Das vs. Md. Jamal Hossain [the judgment and order dated 31.12.2020 delivered in MAC App. No.03 of 2019] where this court has observed as follows:
"....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."
[10] In Rajkumar (supra) the apex court has observed as follows:
"17. 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.
The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."
[11] True it is that finally the loss of earning capacity is something that will have to be assessed by the tribunal with reference to the evidence in its entirety, but the input of the medical expert would give the foundation to correspond functional disability and such input is of paramount importance and that should not usually be avoided but the tribunal is not barred, however, in absence of such input to do some guess work.
[12] Having considered the nature of profession and the disability that the appellant has suffered [see the evidence of PW-2], this court would assess the perennial functional disability of the appellant at 30%. The plea that has been raised that the claimant has lost the total functional capacity is not accepted by this court. However, by not considering this aspect while assessing the compensation, the tribunal has substantially erred. Thus, this court would determine the loss on the basis of the multiplier and the annual income as has been determined on the basis of the monthly income by the tribunal. The tribunal has determined the income at Rs.6,000/- per month. Thus, the annual income of the appellant would be [6000X12]= Rs.72,000/-. The appellant has lost his financial capacity to the extent of 30% as this court having perused the records is of the clear opinion that the appellant cannot pursue his profession utmost and he has lost the full capacity for the disability that he has suffered. The loss has to be determined finally on the basis of the evidence as brought in the record. The loss of income per year would be [30% of Rs.72,000/-] = Rs.21,600/-. As it appears that from the admit card [Exbt.6], the petitioner was born on 18.08.1961 and on the day of accident the appellant was in the range of 51-55 years. Thus, the multiplier would be '11'. Thus, the loss of earning that has been perennially caused to the appellant is computed [21600X12] =Rs.2,37,600/-.
[13] The other components are not challenged in this appeal and as such, the loss of earning would be added with the compensation that has been assessed by the tribunal. Hence, the total compensation that is liable to be paid to the appellant is Rs.3,33,900/- =[1,14,300-18,000+2,37,600] with interest @6% per annum from 28.01.2015 i.e. the day of presenting the claim petition in the tribunal till the payment is made.
In the result, the appeal stands partly allowed.