Jharkhand High Court
Branch Manager vs Piyush Kedia @ Piyush Ramesh Kedia on 26 July, 2021
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 35 of 2018
.........
Branch Manager, ICICI Lombard 2, D. Ashirwad Mansion, Opposite Tirath Mansion, Main Road, Ranchi ..... Appellant Versus
1.Piyush Kedia @ Piyush Ramesh Kedia
2.Anand Dhanuka
3.Rajesh Prasad Allied Road Traders
4.Manish Dhanuka ........ Respondents With M.A. No. 149 of 2018 .........
Piyush Kedia @ Piyush Ramesh Kedia ..... Appellant
Versus
1.Anand Dhanuka
2.Branch Manager, ICICI Lombard 2
3.Rajesh Prasad Allied Road Traders
4.Manisha Dhanuka ........ Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
For the Appellant : Mr. Bibhash Sinha, Advocate (in M.A. No.35/2018)
Mr. Anil Kumar Sinha, Advocate
Mrs. Nirupama, Advocate (in M.A. No.149/2018)
For the Respondents : Mr. Bibhash Sinha, Advocate (in M.A. No.149/2018)
Mr. Ajay Kumar Sah, Advocate (in M.A. No.149/2018)
..........
11/Dated: 26/07/2021.
1. Heard, learned counsel for the parties.
2. Both the appeals are arising out of common award dated 30.08.2017 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No. 244 of 2009, whereby Piyush Kedia @ Piyush Ramesh Kedia, who met with an accident on 16.12.2007 at the age of 21 years by offending vehicle bearing registration No.JH01T-0700, admitted at Nagarmal Sewa Sadan, Hospital, Ranchi from 16.12.2007 till 22.12.2007 and subsequently to P.D. Hinduja Hospital Mumbai from 23.12.2007 to 21.02.2008 having an income from part-time job of Rs.10,000/- per month and sustain 40% physical disability in his left leg by shortening its leg by one inch due to Motor accident have been awarded a compensation to the tune of Rs. 15,96,642/- along with interest @ 9% per annum from the date of admission of the claim application under Section 166 of the MV Act i.e. 19.04.2011 till its realization.
3. Learned counsel for the Insurance Company/appellant, Mr. Bibhas Sinha has assailed the impugned award on the ground that ad interim compensation of Rs.25,000 under Section 140 of the MV Act has been paid to the claimant, but the same has not been deducted from the final award.
-2-4. Learned counsel for the Insurance Company/appellant has further submitted that under the travelling expenses, the learned Tribunal has granted exemplary high travelling amount to the tune of Rs.3,06,947/-, as such, these two parts have been assailed by the Insurance Company though the entire awarded amount excluding the travelling expenses have been indemnified along with interest @ 9% per annum by the ICICI Lombard Insurance Company by cheque paying a sum of Rs.18,89,877/-, as such, Insurance Company has assailed this award on two counts i.e. deduction on the payment made of Rs.25,000/- under Section 140 of the MV Act and deduction with regard to the travelling expenses.
5. Learned counsel for the Insurance Company, Mr. Bibhash Sinha has submitted that nourishing food will be granted to the claimant, but this Court has to examine that how much amount is to be paid.
6. Learned counsel for the Insurance Company has further submitted that shortening of the left leg by one inch of the appellant/claimant is not total permanent disability rather it can only be termed as a partial permanent disability.
7. Learned counsel for the Insurance Company has further submitted that shortening of left leg by one inch will not affect the functional ability of the injured and still he can able to engage in gainful activity as it is partial permanent disability and not a case of total permanent disability.
8. Learned counsel for the Insurance Company has further submitted that in view of judgment passed by the Apex Court in the case of Raj Kumar vs. Ajay Kumar, reported in 2011 (1) SCC 343, the claimant cannot claim enhancement of the compensation on the ground that there shall be future expenses on medical assistance and treatment, in the absence of any specific material evidence brought on record, as such, this part of the claim made by the claimant is not sustainable in the eyes of law as there is no specific medical evidence brought on record with regard to the future expenses on medical side.
9. Learned counsel for the Insurance Company has further submitted that there is pleading in the claim application, that injured- Piyush Kedia @ Piyush Ramesh Kedia will require replacement of right hip, but the claimant failed to adduce any evidence, as such, the learned Tribunal cannot consider the same in the absence of any evidence.
10. Learned counsel for the Insurance Company has further submitted that the learned Tribunal has completely failed to abide the principles laid down by the Apex Court in the case of Raj Kumar & (Supra) in terms of computing the compensation in the case of injury, though amount of compensation has already been indemnified by the Insurance Company to the claimant.
-3-11. Learned counsel for the appellant/claimant, Mr. Anil Kumar Sinha assisted by learned counsel, Mrs. Nirupama has preferred Miscellaneous Appeal vide M.A. No.149 of 2018 for enhancement of the award, on the ground that the learned Tribunal has not granted the compensation with respect to pecuniary damages mentioned herein -
(i) Expenses relating to nourishing food
(ii) (a) Loss of earning during the period of treatment.
(b) Loss of future earnings on account of permanent disability.
12. Learned counsel for the appellant/claimant has further submitted, that the victim is aged about 21 years and he met with an accident while returning after appearing in MBA examination. The permanent disability sustained by the injured/claimant i.e the shortening of the left leg by one inch has definitely affected his future prospect with respect to earning on account of permanent disability, as such, enhanced compensation would have been awarded by the learned Tribunal.
13. Learned counsel for the appellant/claimant has further submitted that injured- Piyush Kedia @ Piyush Ramesh Kedia has suffered grievous injury leading to 40% physical disability in his left leg by shortening its leg by one inch due to motor accident.
14. Learned counsel for the appellant/claimant has substantiated his argument by relying upon the report of Doctor's scanning which shows partial union of fibular fracture with callus visualized in situ. The tibial fracture however is non-united. Multiple defects are seen within the cortex of the tibial shaft consistent with multiple prior surgical intervention. His right hip has to be replaced.
15. Learned counsel for the appellant/claimant has further submitted that if the right hip has to be replaced it can only be replaced by artificial hip by amputating right hip of the injured, as such, the case of the claimant will be squarely covered under item-16 of schedule-I part-II of Employees' Compensation Act, 1923, amputation cases- lower limbs, which is to be considered 90% of loss of his earning capacity.
16. Learned counsel for the appellant/claimant has further submitted that expenditure in future medical assistance and treatment has not been granted by the learned tribunal which ought to have been granted and as such, amount of compensation may be enhanced.
17. Learned counsel for the appellant/claimant has thus submitted that in a benevolent legislation this Court has to consider just compensation for a young boy aged about 21 years, who suffered permanent disability of 40% because of shortening -4- of left leg by one inch and the expenditure for the future medical assistance and treatment, as such, this Court may enhance the compensation.
18. Learned counsel for the claimant has further submitted that under the Pain and Suffering only Rs.1 Lac has been granted though admittedly the victim suffered injury for his whole life and apart from that he has remained in Hospital for a period of six days in Nagarmal Modi Sewa Sadan, Hospital, Ranchi and thereafter at P.D. Hinduja Hospital, Mumbai for two months, as such, the compensation under pain and suffering may also be enhanced in a benevolent legislation.
19. Learned counsel for the respondent/owner of the vehicle, Mr. Ajay Kumar Sah has fairly submitted that it is a case in which unfortunate accident took place causing permanent disability to the injured, though the vehicle was duly insured before the ICICI Lombard Insurance Company vide policy No.3001/51209322/00/000 valid for the period from 03.02.2007 to 01.02.2008, which covers the date of accident 16.12.2007 and since the amount has already been indemnified by the Insurance Company, the owner has nothing to say in this matter.
20. After hearing the learned counsel for the parties, this Court considers that the issue raised by the learned counsel for the Insurance Company with respect to deduction of Rs.25,000/- paid under Section 140 of the MV Act as well as the travelling expenses given for three persons is a very valid objection raised by the Insurance Company.
21. Accordingly, Rs.25,000/- is to be deducted which has been paid under Section 140 of the MV Act and regarding travelling expenses of Rs.3,06,947/-, which has been granted to the injured and his parents i.e. for two attendants, is to be reduced to 2/3rd by deducting 1/3rd of the expenses as normally, the injured is entitled for one attendant as the injured is a major boy of 21 year.
22. Accordingly, this Court considers that under the travelling expenses, the amount of Rs.73,555/- remains intact incurred in shifting the patient. Further Rs.13,855/- which was granted for two passengers i.e. Rs.27,710/- is reduced as Rs.13,855/- for one passenger.
23. Accordingly, the amount remains to be Rs.73,555/- + Rs.13,855/- = Rs.87,410/-
24. Further Rs.2,05,482/- incurred in Rail expenses for three persons will only be paid for two persons that means amount will come to Rs.2,05,482/- x 2/3 rd = Rs.1,36,988/-.
25. Then Rs.1,36,988/- + Rs.87,410/- = Rs.2,24,398/- will be paid under the heading of travelling expenses instead of Rs.3,06,947/-.
-5-26. Learned counsel for the Insurance Company while opposing the same has submitted that under which heads compensation has to be awarded in personal injury cases are as followings: -
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, Hospitalization, Medicines, Transportation, nourishing food and Miscellaneous expenditure
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses;
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
27. Learned counsel for the Insurance Company has further submitted that the compensation under aforesaid headings can only be enhanced, if evidences regarding the same are adduced before the learned Tribunal.
28. Learned counsel for the Insurance Company in support of his submission has relied upon judgment passed by the Apex Court in the case of Raj Kumar vs. Ajay Kumar, reported in (2011) 1 SCC 343 has considered all these aspects of the matter in Paras 6 to 21, which may profitably be quoted hereunder :-
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the -6- evidence. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non- pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii)(a). We are concerned with that assessment in this case.
8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
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. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) -7- 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
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.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to "hold an enquiry into the claim" for determining the "just compensation". The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the "just compensation". While dealing with personal injury cases, the Tribunal should preferably equip -8- itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
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.
18. 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 give 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 the 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.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
20. The assessment of loss of future earnings is explained below with reference to the following illustrations:
Illustration A.-- The injured, a workman, was aged 30 years and earning Rs. 3000 per month at the time of accident. As per doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:
(a) Annual income before the Rs. 36,000
accident
(b) Loss of future earning per
annum (15% of the prior
annual income) Rs. 5400
(c) Multiplier applicable with
reference to age 17
(d) Loss of future earnings: Rs. 91,800
(5400 × 17)
-9-
Illustration B.-- The injured was a driver aged 30 years, earning Rs. 3000 per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:
(a) Annual income prior to the : Rs.
accident 36,000
(b) Loss of future earning per
annum (75% of the prior Rs.
annual income) : 27,000
(c) Multiplier applicable with
reference to age : 17
(d) Loss of future earnings: : Rs.
(27,000 × 17) 4,59,000
Illustration C.-- The injured was aged 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows:
(a) Minimum annual income Rs.
he would have got if had 60,000
been employed as an
engineer :
(b) Loss of future earning per
annum (70% of the Rs.
expected annual income) : 42,000
(c) Multiplier applicable (25 : 18
years)
(d) Loss of future earnings: : Rs.
(42,000 × 18) 7,56,000
[Note.-- The figures adopted in Illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] .]
21. After the insertion of Section 163-A in the Act (with effect from 14-11-1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the Second Schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation:
"5. Disability in non-fatal accidents.-- The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:
Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.
PLUS either of the following:
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under Item (a) above.
Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's Compensation Act, 1923." (emphasis supplied)
29. As such, under the aforesaid circumstances and in view of the judgment passed by Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 at para-8, the Court of Appeal can also compute the -10- compensation, where there is analogous appeal preferred for enhancement or appeal preferred for reduction, though considering it to be a case where evidence is to be required for the determination of just and fair compensation, as such, this Court feels that the matter may be remitted / remanded to the learned Tribunal.
30. This Court after consideration of the material available on record and in view of the judgment passed by the Apex Court in the case of Raj Kumar (supra), is remitting the matter to the learned Tribunal for consideration of pecuniary damages under following heads -
(i)Expenses relating to treatment, hospitalisation, medicines, transportation nourishing food and miscellaneous expenditure
(ii) (a) loss of earning during the period of treatment;
(b) Loss of Future earnings on account of permanent disability,
(iii) Future medical expenses as there is a pleading with regard to replacement of right hip bone, Non-pecuniary damages (General damages)
(iv) Damage for pain, suffering and trauma as a consequence of the injuries and after taking evidence with respect to
(v) loss of amenities (and/or loss of prospects of marriage) and
(vi) Loss of expectation of life (shortening of normal longevity).
31. Parties are directed to appear before the learned Tribunal by 20 th August, 2021 and the learned Tribunal will consider all these issues relying upon the evidence brought by the parties so as to conclude the same by recording the evidence within a period of two months thereafter and the learned Tribunal shall decide the issues keeping in mind the judgment passed by the Apex Court in the case of Raj Kumar (supra) and in view of the judgment passed by the Apex Court in the case of Kajal vs. Jagdish Chand & Ors., reported in (2020) 4 SCC 413.
32. Before parting with this judgment, it is shocking for this Court to see that in the unfortunate accident two persons died on the spot and several persons have suffered injury whether their claim application have been filed or not?
33. Under the aforesaid circumstances, it appears that report has not been submitted by the Police Officers. This deficiency has been considered by the Apex Court in the case of Jai Prakash Vs. National Insurance Co. Ltd., reported in 2002 SC 607, in which Section 158(6) of Motor Vehicles Act has been given effect to.Section 158(6) of Motor Vehicles Act may profitably be quoted herein :-
158............................
"[(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy -11- of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to the Claims Tribunal and Insurer."
34. Since period of limitation has already been amended in the year 1994, as such, in a benevolent legislation and in the facts and circumstances of the present case, the Member Secretary, JHALSA, Ranchi is directed to look into such matter as in the aforesaid accident, two persons have lost their life.
35. In the instant accident, two persons, Harish Somani and Abhishek Bhalla have lost their life on spot and other occupants of the vehicle have sustained grievous injury, as such, necessary steps should be taken by providing legal assistance, if so requires.
36. The appeal preferred by the appellant- ICICI Lombard 2 Insurance Company Limited Vide M.A. No.35 of 2018 is concerned, the same is hereby allowed with regard to deduction of Rs.25,000/- paid under Section 140 of the M.V. Act and the travelling expenses, as ordered above.
37. So far, the appeal preferred by the claimant for enhancement of the compensation is concerned, the same is remanded to the learned Tribunal for the recording of evidence and adjudicating the issues for a just and fair compensation to the claimant. As such, M.A. No.149 of 2018 stands partly allowed.
38. The statutory amount deposited by Insurance Company before this Court at the time of the filing of the appeal shall be remitted/returned to the appellant- ICICI Lombard by the learned Registrar General of this Court, within a period of four weeks from the date of filing of the requisition by the appellant- ICICI Lombard 2.
(Kailash Prasad Deo, J.) sandeep/R.S.