Calcutta High Court
United India Insurance Co. Ltd. vs Phurba Dorjay Lama And Anr. on 1 December, 2003
Equivalent citations: 2004(3)CHN360
JUDGMENT
1. This is an application for stay made in aid on an appeal by the insurance company from an award made in a Motor Accidents Claim.
2. The accident occurred in 2000. It resulted in 60% permanent partial disablement. The qualified medical practitioner who examined the victim two years after the accident confirmed his disablement and the problems which had persisted.
3. The certificate of the doctor runs into a long list of head and rib injuries mentioning loss of memory vertigo etc.
4. The insurance company participated at trial. Not a word was spoken by them against the existence of the disablement or the quantum assessed by the Tribunal.
5. The quantum was assessed by using the multiplier 11 on the then salary of the victim, which came to about Rs. 10,000/- per month.
6. It is well-settled that if there is no glaring injustice and the insurance company is not the victim of collusion, fraud or a racket, it cannot appeal on quantum unless it has taken leave to challenge quantum before the Motor Accident Claims Tribunal.
7. For the insurance company, it is stated that the victim, according to his own evidence, was drawing a salary of Rs, 11,000/- per month when he gave evidence. Thus, it was said, no loss could be assessed.
8. This argument overlooks the elementary basis of compensation.
9. Where disablement is permanent, under Section 2(g) of the Workmen's Compensation Act, 1923, made applicable by the Explanation of Section 163A of the Motor Vehicles Act, 1988, the loss of earning capacity is to be assessed not on the basis of actual loss in actual employment, but on the basis of any possible hypothetical loss in any possible hypothetical employment. This is quite in line with common law and common senses; if an Accountant is earning ten crore and loses a leg, that might force him to work more and earn Rs. 15 crore but that does not mean he is disentitled from receiving compensation.
10. Once this is understood the language of Section 163A, Sub-section (1), of the Motor Vehicles Act takes its normal effect. The plain language states that the insurer shall be liable to pay as per the Second Schedule.
11. In the Second Schedule the annual loss of income mentioned in Item No. 5, is relatable, as per the above reasoning, to the annual income mentioned in the body of the Schedule. The multiplier adopted and the Schedule utilised by the Tribunal were correctly adopted and applied.
12. No affidavits are called for. Allegations in the petition cannot be taken to be admitted. The appeal may remain on record for all that it is worth, if anything; we are told that the award was passed in July and money was to be paid within two months. The money is supposed to be paid up today. The insurance company has come at the last moment. We find no injustice which needs to be stopped. On the other hand the victim deserves to be paid immediately.
13. The application for stay is rejected.
14. Notwithstanding with the theoretical pendency of the appeal the Tribunal is encouraged to speed up execution, if necessary.
15. Stay of operation of this order is prayed for but the prayer is unhesitatingly turned down.