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Judgment
Heard Ms. P. Baruah, leaned counsel for the appellant and Mr. R. Goswami, learned counsel for the respondent/insurance company.
This appeal is filed by the claimant against the judgment and award dated 19.05.2015 passed by the MACT, Golaghat in MAC Case No.
93/2007.
The undisputed facts, which may be relevant for disposal of this appeal are that the claimant/appellant Dipen Bora sustained injury in a motor vehicle accident involving vehicle bearing registration No. AMD 5111. The vehicle was owned by the respondent No. 1 and insured with the respondent No. 4, New India Assurance Company Limited. The claimant was 30 years of age at the time of accident. The claimant filed an application for compensation and on appreciation of evidence and materials brought on record, learned Tribunal graned a compensation of Rs. 3,64,489/-, which consisted of Rs. 1,71,908/- on account of medical expenses and the expenditure incidental thereto, Rs. 2,04,000/- on account of loss of earning, Rs. 15,000/- for pain & suffering and Rs. 10,000/- for loss of amenities of life.
Unsatisfied with the above award, the claimant preferred the instant appeal seeking enhancement of compensation.
Learned counsel for the appellant submits that the claimant suffered 60% permanent disablement of his lower limb and the physical disability was duly assessed by doctor and was proved before the Tribunal. However, the learned Tribunal granted only 20% loss of earning assuming the disability of the whole body as 30%. The contention of the learned counsel is that when the doctor has assessed disability at 60%, learned Tribunal should have accepted the same and ought not to have reduced the loss of earning capacity to 20%. Further contention of the learned counsel is that the claimant was a young businessman having a monthly income of Rs. 10,000/- and also adduced evidence to that effect by proving the income certificate.
However, the learned Tribunal did not accept the income certificate and assumed a notional income of Rs. 5000/- per month and thereby failed to award a just and fair compensation. It is also contended that quantum of award on account of pain, shock & suffering and loss of amenities in life were also extremely meager and urged for enhancement.
Strongly resisting the submission of the learned counsel for the appellant, Mr. R. Goswami, learned counsel for the respondent/insurance company contended that the award is quite reasonable and no enhancement is called for.
Evidently, the claimant sustained fracture of his leg and doctor had assessed the physical disability of the lower limb as 60%. The relationship between physical disability and loss of earning as a result of physical disability or functional disability has been succinctly discussed by the Apex Court in a catena of decisions including Rekha Jain Vs. National Insurance Company reported in (2013) 8 SCC 389, Rajkumar Vs. Ajay Kumar reported in
(2011) 1 SCC 343, G. Dhanasekar —VS- Managing Director, Metropolitan Transport Corporation reported in (2014) 14 SCC 391.
In Rajkumar Vs. Ajay Kumar (supra), the Apex Court elaborately dealt with the correlation between the physical disability suffered in an accident and the corresponding functional disability or loss of earning capacity resulting from the physical disability in para 10, 11 and 13 as under:
“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, 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 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.
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 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 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.
In G. Dhanasekhar Vs. Managing Director, Metropolitan Transport Corporation (supra), the Apex Court elaborated the correlation between physical disability and corresponding loss of earning capacity as under:
“As far as compensation for functional disability is concerned, it has to be borne in mind that the principle cannot be uniformly applied. It would depend on the impact caused by the injury on the victim’s profession/career. To what extent the career of the victim has been affected, thereby his regular income is reduced or dried up will depend on the facts and circumstances of each case. There may be even situations where the physical disability does not involve any functional disability at all. “
It is therefore settled position that extent of physical disability and resultant functional disability or loss of earning capacity may not always be the same. Some time extent of functional disability or loss of earning capacity may be higher than the physical disability and some time it may be lower than the physical disability, depending on the nature of disability, occupation of the person etc. physical disability of a particular limb and disability of the whole body also cannot be the same. For example if a person suffers 70% physical disability of lower limb and 80% physical disability of upport limb, in that case, total disability of the whole body cannot be 150% and it has to be within 100%. Though physical disability is required to be assessed by the doctor, impact of the physical disability on the earning capacity of the injured is required to be assessed by the Tribunal on the basis of material produced before it. Doctor cannot assess the loss of earning capacity. It is therefore, the duty of the Tribunal to assess and determine the impact of physical disability on the income or earning capacity of the injured, on the basis of the physical disability assessed by the doctor, taking into consideration the relevant factors, like age, occupation of the injured, nature of disability etc. The Tribunal, therefore, cannot mechanically apply the percentage of physical disability as the percentage of loss of earning capacity or functional disability without assessing the impact of physical disability on the earning capacity, having regard to the evidence and materials brought before it.
So far income of the claimant is concerned, the material on record shows that the claimant proved an income certificate issued purportedly by Mouzadar, which was marked as Ext.7. In Ext. 7, the income of the claimant from agriculture was shown as Rs. 1,20,000/- per year. Evidently, the author of Ext.7 was not examined in the instant case. It appears from the impugned judgment and the pleadings that the claimant adduced oral evidence to the effect, that he was a businessman and supplier by occupation at the relevant time and no evidence of income from the business was adduced. Though, initially claimant averred in his pleading that his source of income was cultivation, subsequently such plea was abandoned and evidence was adduced showing that he was a businessman and engaged in the business of supply. In view of the above evidence, learned Tribunal disbelieved the Ext.7 and rightly so, as admittedly, the occupation of the claimant was not agriculture. The accident took place in the year 2006. In absence of any reliable evidence to prove the income, learned Tribunal having regard to the occupation of the claimant, his young age and the relevant time when the accident occurred, assumed the income of the claimant as Rs. 5000/- per month, which according to me appears to be quite reasonable in view of the attending facts and circumstances. Therefore, no modification in respect of income or loss of income is considered necessary in the instant appeal. However, having considered the gravity of the injury and disability of the lower limb, the amount granted by the learned Tribunal on account of loss of amenities of life and also pain, shock & suffering appears to be on lower side and as such deserves enhancement. Thus, having considered the nature of injury and the disability, in my considered view, the quantum of compensation on account of pain, shock & suffering and also loss of amenities in life should be enhanced to Rs. 50,000/- each, to make the compensation just and reasonable. Since the Tribunal granted only Rs. 25,000/- on those heads the compensation is enhanced by Rs. 75,000/-.
The respondent ICICI Lombard Insurance Co. Ltd. is directed to pay the said enhanced amount of Rs. 75000/- to the claimant in addition to the amount awarded by the Tribunal by depositing the same with the learned Tribunal within 6 weeks.
Send back the LCR.