Calcutta High Court
Pravat Chandra Maity vs Oriental Insurance Co. Ltd. And Ors. on 20 September, 2006
Equivalent citations: 2008ACJ53
JUDGMENT Prabir Kumar Samanta, J.
1. This miscellaneous appeal is by the claimant by challenging the quantum of compensation determined by the Claims Tribunal in a motor accident claim case.
2. The claimant-appellant is the victim of the accident. He was severely injured while travelling by C.S.T.C. bus resulting in amputation of his right hand above elbow and thereby making him permanently disabled to the extent of 84 per cent for the rest of his life.
3. It has been proved before the Claims Tribunal that while the victim was travelling by C.S.T.C. bus, one truck bearing No. WB 25-6669 moving from opposite direction at high speed hit the said bus causing serious bodily injury as above to the claimant-appellant. The insurer has not disputed this finding of the Tribunal. It has also been proved in evidence that neither C.S.T.C. bus in which the claimant was travelling nor he himself was in any way guilty of contributory negligence for the cause of the said accident. The said accident occurred due to rash and negligent driving of the said truck. The truck, the offending vehicle was covered by an insurance policy issued by respondent No. 1 at the relevant point of time.
4. The Tribunal after recording all such findings has determined the compensation payable to the claimant at Rs. 70,375 only in total after assessing different amounts of compensation under different heads such as loss of enjoyment in life, pain and suffering, expenses incurred towards medical treatment and the expenses that may be incurred for future medical treatment. The Tribunal has not awarded any compensation whatsoever on account of loss of earnings. It is no doubt true that because of such injury and/or permanent disablement to such extent, the claimant-appellant did neither lose his job nor suffer any reduction in his pay scale. Accordingly, Claims Tribunal is of the opinion that the claimant is not entitled to compensation under the head of loss of income.
5. In this appeal, therefore, the short questions involved are whether the claimant is entitled to receive compensation under the head of loss of income or earning capacity in the facts and circumstances of this case and if so, what should be the amount of compensation on such head as being the just and proper compensation? These questions have cropped up for consideration, as the respondent insurer has not disputed the findings as above made by the Tribunal.
6. The above questions, which are necessary to answer in this appeal, are mixed questions of facts and law.
7. The facts are that claimant-appellant did not lose his job because of the injury suffered by him and thereby making him permanently disabled to the extent of 84 per cent in the said accident. In fact, there has been no loss of earnings from his employment, even after he became 84 per cent permanently disabled. The question of law involved herein is whether in the proven facts as above, Motor Vehicles Act, 1988 entitles the claimant to receive compensation under the head of loss of earnings or earning capacity and if so what would be the amount by way of just and proper compensation.
8. On behalf of the respondent insurer reliance has been made on the Division Bench judgment of Karnataka High Court in M.V. Chowdappa v. Mohan Breweries & Distilleries Ltd. and single Bench judgment of the same High Court in K.C. Ajjanna v. S.M. Nagaraja .
9. On behalf of the claimant two decisions have been cited, one of the Supreme Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and the other of the Division Bench of Calcutta High Court in United India Insurance Co. Ltd. v. Phurba Dorjay Lama (2004) 1 WBLR Cal 597.
10. In the case of K.C. Ajjanna , it does not appear that there any specific question was raised as to the entitlement of the claimant for compensation on account of loss of earnings as because he had not suffered any reduction of his salary after he became permanently disabled to the extent of 10 to 12 per cent. There the questions were: (i) Whether the insurance policy issued by the insurer to the owner of offending vehicle continued to remain in force even when the payment of premium by the insured made by cheque was dishonoured by the bank wrongly and for such payment another cheque was given to insurance company after the accident which, however, was honoured? (ii) Whether the compensation awarded by the Tribunal under the heads of medical expenses, pain and suffering, future medical expenses and towards the disability caused to him was required to be enhanced or not? There was no specific issue as to whether the claimant would be entitled to compensation under the head of loss of earnings or earning capacity even when he had in fact not suffered any loss of his earnings in his employment after the accident.
11. Similarly, the Division Bench judgment in the case of M.V. Chowdappa 2005 ACJ 644 (Karnataka), did not deal with the above specific question. Rather in the said case, claimant claimed his monthly earnings at Rs. 5,000 through milk-vending, who suffered permanent disability in the accident which was certified by the doctor as 90 per cent but Tribunal took the same to be at 40 per cent and computed the compensation accordingly under the different heads. The Division Bench for the purpose of computing the compensation took the income of the appellant at Rs. 3,000 per month instead of Rs. 5,000 as claimed by him on the view that earnings from the side business like milk-vending is something like speculating. Thereafter determined the compensation by holding him to be 90 per cent permanently disabled instead of 40 per cent as held by the Tribunal. This decision in our view also does not support the case of the insurance company.
12. In the case of R.D. Hattangadi 1995 ACJ 366 (SC), before the Apex Court the victim was a practising advocate. Because of the accident he became disabled and he was unable to resume his practice. The Apex Court considering the facts and circumstances of the case allowed the claim as made by claimant in respect of loss of earnings without reducing the same and further allowed Rs. 1,62,000 on account of loss of future earnings as against the claim made in respect thereto for Rs. 3,60,000 by the claimant. There the claimant became paraplegic because of the injuries suffered by him in the accident resulting in total permanent disability. In our view, the said decision of the Apex Court is not wholly relevant for the purpose of deciding the question involved in the case on hand. The decision of the Division Bench of this Court in the case of United India Insurance Co. Ltd. (2004) 1 WBLR Cal 597, is very much relevant. It has been held therein that 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.
13. In a case before the Division Bench of the Gujarat High Court in Mohanbhai Gemabhai v. Balubhai Savjibhai , the injured sustained severe injuries by receiving compound fractures in the right arm restricting free movement and amounting to 60 per cent permanent partial disability. Injured was a peon and continued to work on the same salary but the employer allotted him light work duty. The court held that the compensation under the head of loss of earning capacity cannot be refused merely because the salary of the injured was continued to be the same. The claimant is entitled to just and reasonable compensation on such account.
14. Upon considering all the facts and circumstances of this case and all the decisions as discussed above we are of the view that it is not the salient principle of law that if a victim of an accident suffers permanent disability and because of his such permanent disability he has neither been removed from service nor his salary has been reduced, such factors, would not necessarily mean and imply that the said victim shall not be entitled under the law to get compensation on account of loss of earning capacity. This view is more logical than any other contrary view if there be any. May be the victim has not been removed from his service nor his salary has been reduced for any reason whatsoever. These facts only cannot have the implication of not losing any of his earning capacity even if he has become a disabled man after the accident. No doubt, any kind of permanent disability, more particularly in this case, the permanent disability to the extent of 84 per cent, undoubtedly would reduce the capability of discharging his job and/or function in the same manner and ability as he had before he became permanently disabled. He may not get promotion in future and also will not be able to seek any better employment anywhere else if he so desires. He will also not be able to engage himself in any other gainful employment if for any reason he is not retained in his service by his employer in future because of his permanent disability. These imponderables cannot be ignored altogether.
15. It has been rightly held by Claims Tribunal that the permanent disability of the claimant to the extent of 84 per cent will definitely make his life miserable during employment and after retirement too. We, therefore, hold that claimant-appellant should be compensated on account of his loss of earning capacity.
16. In this case, we do not want to interfere with the findings made by the Tribunal that the petitioner had drawn salary at the rate of Rs. 5,688 per month even after the accident. The same has been proved by Exh. 5, the certificate issued by the Drawing and Disbursing Officer of the Income Tax Department of the Government of India. The claimant has been proved to be an aged person of 50 years on the date of the accident. His extent of permanent disability is to the tune of 84 per cent. The Second Schedule to the Motor Vehicles Act, 1988, cannot have any application in this case because as per the said Schedule, the same is applicable in cases where the annual income of the victim is not above Rs. 40,000.
17. However, considering the fact that the claimant met the accident at the age of 50 years and in the Central Government, the normal age of superannuation being 60 years we apply the multiplier of 10 on the annual income of the victim which we take at a monthly rate of Rs. 5,000. This we do only for purpose of computing compensation on account of loss of his earning capacity by taking note of the fact that victim is getting at least at the rate of Rs. 5,688 per month by way of his salary till today and that too without any reduction of his salary. On such basis, the claimant would be entitled to 84 per cent of the amount that will be calculated upon applying the multiplier of 10 on the annual income of Rs. 60,000. The same will be Rs. 5,04,000.
18. We also do not find any reason to interfere with the award of compensation granted by Claims Tribunal for a sum of Rs. 40,000 on account of loss of enjoyment in life, Rs. 10,000 for pain and suffering, Rs. 10,000 for future medical expenses and for Rs. 10,375 for the medical expenses incurred by him which have been proved at the trial by medical bills. The claimant would, therefore, be entitled to a compensation for a total sum of Rs. 5,74,375.
19. The judgment and order of Tribunal passed in the aforesaid claim case is modified accordingly. The respondent insurance company is, therefore, directed to pay the aforesaid amount less the amount already paid along with simple interest at the rate of 6 per cent per annum from the date of making of the application till actual payment. Such payment shall be made by the insurance company by drawing an account payee cheque in the name of the claimant-appellant and by handing over the same to him within a period of 8 weeks from the date of communication of this order.
20. This appeal is accordingly allowed.
Urgent xerox certified copies of this judgment, if applied for, be supplied to the parties as expeditiously as possible.