JUDGMENT [ENTITY], J.
1. This miscellaneous appeal is filed by the claimant against award dated 4.10.2002 passed by Claims Tribunal on an application under [SECTION] of [ACT]. The quantum of compensation as awarded by the Tribunal is under challenge in this appeal.
2. The facts of this case are that while the claimant was proceeding towards Haldia by a vehicle on 1.10.2000 at about 10.30 a.m. a truck bearing registration No. WB 19-4903 coming at high speed from the opposite direction dashed against the vehicle of the claimant, as a result of which he sustained serious injuries. He was initially treated at Diamond Harbour Hospital wherefrom he was shifted to a nursing home at Calcutta, where he was treated for a period of about 15 days. The claimant has suffered fracture in his left leg and has become a partially permanent disabled person to the extent of 50 per cent, as certified by the doctor Exh. 8.
3. In the above petition the claimant has claimed compensation for a sum of Rs. 5,00,000 plus interest. The Tribunal relying upon the disability certificate as issued by the doctor, determined the loss of earnings of the claimant at Rs. 83,000 on the basis of notional annual income of Rs. 15,000 of the victim, as he is of the opinion that the victim has failed to prove his actual income as claimed at the rate of Rs. 25,000 per month by any reliable evidence. A further sum of Rs. 3,000 has been awarded for medical expenses and Rs. 1,000 for pain and suffering. Thus a total sum of Rs. 87,000 has been awarded with further direction that the same would carry interest at the rate of 9 per cent per annum from the date of filing of the claim petition till payment, in case the payment of the said awarded amount is not made within a period of two months from the date of the said award.
4. Although the computation of compensation against the loss of earnings by the Claims Tribunal on the basis of the notional income of the victim at the rate of Rs. 15,000 per annum upon finding that he is a non-earning member cannot be supported, as it is not based on evidence and materials on record, but at the same time it deserves consideration as to whether any compensation should be awarded on account of loss of earnings in the facts and circumstances of this case. Similarly, award of compensation for a sum of Rs. 3,000 for medical expenses and Rs. 1,000 for pain and suffering is neither based on materials on record nor by taking any reasonable view of the matter.
5. In this case, the happening of the accident because of rash and negligent driving of the offending vehicle has been proved in evidence vide Exhs. 1, 2 and 3, namely, F.I.R., police report and seizure list respectively. Such finding has not been questioned by either the owner of the offending vehicle or the insurer respondent in this appeal. Considering the said exhibits, we affirm the said finding.
6. The age of the victim as 52 years on the date of the accident is evident from the certificate as issued by the nursing home, Exh. 5. This finding has also not been questioned by the insurer respondent. We, therefore, accept the same and proceed on that basis.
7. So far as the medical certificate, Exh. 8, issued by the doctor showing the permanent disability of the victim to the extent of 50 per cent is concerned, the same requires a probe. Because the victim in his examination-in-chief has merely stated that he cannot lead his normal life. The doctor's certificate, however, records the clinical findings such as the victim cannot sit on the ground and squatting is painful for him, he is limping on his left leg, he cannot put full pressure of his body weight on his left leg, etc. But on the date of his deposition on 16.5.2002 the victim did not say anything about his inability and/or difficulty in running his business. From the income tax returns filed by the victim it appears that he earned as a partner of a firm carrying on shipping contractorship business. Income tax returns for the assessment years 1998-99, 1999-2000 and 2000-2001 have also been filed along with some challans showing payment of income tax, Exhs. 7, 8, 9. As per the said documents gross total income of the claimant for the assessment years 1998-99, 1999-2000 and 2000-2001 were Rs. 2,43,450, Rs. 2,81,912 and Rs. 2,73,687 respectively. On the basis of the aforesaid returns it can be held that the claimant had earnings from his partnership business at the average rate of Rs. 23,000 to Rs. 24,000 per month. These returns relate to the periods just previous to the accident and no income tax return has been filed for the period subsequent to the accident to show any loss of earnings because of the injury suffered by him. All these facts cannot lead us to hold with certainty.that the claimant suffered 50 per cent loss in his earnings because of his permanent disability, if there be any.
8. Though on the basis of the aforesaid documents, the finding of the Tribunal that the claimant was a non-earning person cannot be sustained, but at the same time it deserves consideration as to whether the claimant is suffering any loss of earnings because of such permanent partial disablement.
9. At the risk of repetition it may be stated that there is no evidence worth the credence showing any loss of earnings by the victim since after the said accident. The claimant in his deposition as PW 1 has not stated anything about the loss of income in his business. He has merely stated that he cannot lead his normal life. There is no evidence by the claimant as to the nature of the work performed by him as a partner of such of his business. There is also no evidence in particular that because of such disability it has not been possible for him to carry on his work as a partner of the said business effectively.
10. Mr. [ENTITY], learned advocate appearing on behalf of the claimant has contended that the claimant though at present may not suffer any loss of earnings but because of the permanent partial disability suffered by him he would be losing his earning capacity in future for which he should be compensated in the same manner as in the case of loss of earnings. According to him, the loss of earnings and loss of earning capacity are two different concepts. One may not be entitled to a compensation for the loss of his earnings at present but would certainly be entitled to a compensation for the loss of his earning capacity in future because of the injury suffered by him. In support of such contention Mr. [ENTITY] referred to the decision reported in [PRECEDENT]. The Division Bench of this court in the context of [SECTION] of [ACT], which defines partial disablement by including a situation where disablement of a permanent nature reduces the earning capacity in every employment which he was capable of undertaking at that time, has observed that to equate earnings with earning capacity is to rob the section of vital words. The said decision has been rendered in the context of the said definition of partial disablement which reads as under:
'Partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified in part II of the Schedule I shall be deemed to result in permanent partial disablement;
Whereas permanent disablement has been defined in the [ACT] under [SECTION] as under:
142. Permanent disablement.-For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in [SECTION] if such person has suffered by reason of the accident, any injury or injuries involving:
(a) Permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint; or
(c) permanent disfiguration of the head or face.
No doubt permanent impairing of the powers of any member, in this case left leg, would entitle the victim to a compensation. The doctor who issued the medical certificate, Exh. 8, has deposed by saying that he did not peruse any X-ray plate or report but issued the same upon perusal of the discharge certificates dated 15.10.2000 and 23.10.2000 issued by the nursing home where claimant was treated. The discharge certificate dated 15.10.2000 disclosed that the victim was allowed non-weight bearing ambulation with crutch and by the certificate dated 23.10.2000 he was advised to use crutch for three weeks only. Again discharge certificate dated 15.10.2000 disclosed that the victim was operated upon 4.10.2000. X-ray report dated 2.10.2000, i.e., prior to operation as appearing in the records, disclosed that the fracture was seen in left acetabulum. However, the head of femur was in situ. The head and neck of left femur were normal. The right femur was rotated. No evidence of fracture was seen. A screw was seen in neck of right femur. It, therefore, be stated that the injury to the victim, because of the accident, was confined to his left leg and the screw as seen in neck of right femur was there from before. Taking into consideration all these materials, we are constrained to hold that the above medical certificate Exh. 8, showing 50 per cent permanent partial disablement does not inspire confidence. In this regard the decision cited by Mr. [ENTITY] in [PRECEDENT], is distinguishable on the facts of the present case. The aforesaid claim case arose out of [ACT]. The disability certificate issued by the doctor was exhibited in the proceeding with clear endorsement by the other side to the effect that there was no objection to exhibiting the same. In the case in hand there is no such endorsement by the insurer respondent. On the contrary, the doctor PW 2, who issued the certificate was cross-examined by the insurer on the question of veracity of his opinion as to the extent of disability certified by him.
11. The decision of the High Court of Rajasthan in [PRECEDENT], relied on by Mr. [ENTITY] has also no relevance in this connection. In the said case question arose as to rash and negligent driving of the offending vehicle. In such context, it has been held that the certified copy of F.I.R., inspection report and the site inspection map, panchnama, injury report or the post-mortem report as the case may be and other relevant documents prepared by the police or the doctor while discharging official duty are admissible in evidence without there being a formal proof thereof. Because the strict compliance of the provisions of [ACT] are not to be insisted upon by the Tribunal of limited jurisdiction. In the case in hand, the doctor, PW 2, who issued the medical certificate, Exh. 8, was a private doctor approached by the claimant for such a certificate long after he was discharged from the nursing home, where he was treated. The said doctor was not attached to the said nursing home and such certificate was not issued in due discharge of his official duty. That apart in the case in hand the admissibility of the certificate in evidence has not been disputed, but the evidentiary value thereof.
12. The decision reported in [PRECEDENT], relied on by Mr. [ENTITY] has no application in this case. In that case compensation has been awarded under [ACT], by holding the loss of earning capacity to the extent of 80 per cent, as the claimant was in employment as a driver and from the medical certificate and deposition of the workman, it transpired that he was not in a position to drive or to do any other manual work.
13. The decision in [PRECEDENT] , also does not support the contention that irrespective of everything, compensation has to be awarded for loss of earning capacity in future, on the basis of the percentage of disability. In that case though the right arm of the claimant was amputated and he suffered disability to the extent of 85 per cent but considering the fact that the claimant was still on the same job and did not lose any chance of promotion, a lump sum compensation of Rs. 1,25,000 was awarded for his disability.
14. In the case in [PRECEDENT] , it has been held that apart from the compensation awarded under the head of loss of earning power, the victim would further be entitled to a compensation for permanent disability to cover the mental agony to be suffered by the injured in his future life and his inability to attend to his normal household activities. It thus affirmed the award for a sum of Rs. 10,000 only for permanent disability for covering up such mental agony and inability to attend household activities.
15. Mr. [ENTITY], learned advocate for the insurer respondent, on the other hand, has contended that even the loss of earning capacity should not always be determined in usual manner by making calculation on the basis of the percentage of disability as certified by the doctor, particularly when the income of the victim is from his partnership business. According to him, it is necessary to decide the nature of the job performed by the victim as a partner of the business, for coming to a definite conclusion as to whether such disability has affected his performance in the partnership business resulting in the drop of profit in such business.
16. Mr. [ENTITY] in support of his contention has relied on several decisions, two of which, [PRECEDENT] and [PRECEDENT], are of some relevance. According to the Division Bench of Karnataka High Court in the case of [PRECEDENT] (supra) there are different natures of income from partnership. One may be a share in the profits, other may be interest on the capital invested in the firm or advances made to the firm either by way of loan or deposit. There may be the salary or remuneration received by a partner from the firm. At para 22 of the said report it has been observed as under:
The income from a partnership firm will have to be categorised with reference to the status of the partner, for the purpose of calculating the loss of dependency. A person can be a 'working partner' without contributing any capital, receiving a share in the profits/ losses with or without remuneration. A person may be a sleeping or dormant partner in a firm contributing to the capital of the firm without participating in the management or without contributing any effort or exertion towards the management of the firm but receiving a share in the profits/losses. A person may be an active partner who contributes to the capital and who also participates in the business of the firm and receives a share in the profits/losses with or without any monthly remuneration. Lastly, the person may be a minor admitted to the benefits of the partnership without participation in the management of the firm, who is given only a share in the profits. The position in regard to these four categories is as follows:
(i) Where the deceased was a working partner, who had not contributed any capital to the firm, whatever income he derived either by way of remuneration or by way of share in profits is on account of effort and business acumen and, therefore, the income from partnership in entirety will have to be treated as the 'income' of the deceased for the purpose of determining the loss of dependency.
(ii) Where the deceased was a sleeping/ dormant partner who did not participate in the management of the business, but received the profits from the business only on account of capital contribution, no part of such income is derived by the exertion of the deceased. Such income is a dividend or a return on the investment. On the death of such sleeping partner his legal heir will either receive back the capital or would step into the shoes of the deceased and continue to receive the income from such capital investment. The same will be the position in regard to a minor admitted to the benefits of partnership. Therefore, in the case of a sleeping partner (dormant partner) or a minor admitted to the benefits of partnership, the income from the partnership firm cannot be treated as the 'income' of the deceased, for purposes of calculating the loss of dependency. Such income may have to be excluded and in the absence of any other income, the income of the deceased will have to be determined at a nominal amount (say the notional income of Rs. 15,000 per annum provided in the Second Schedule to the [ACT]).
(iii) Where a person is an active partner, who has not only contributed to the capital of the firm, but also participates in the management of the business, the calculation of income for purposes of loss of dependency is a somewhat difficult process. This is because what can be taken as income for determining the pecuniary loss is the income attributable to the effort, exertion, management skills of the deceased and not the 'income' attributable to the investment made, that is return or interest on the capital. In such cases, where the partner is entitled to only a share in the profits/losses and is not entitled to any remuneration, there should be judicious division of the amount received as share in profits, into income referable or attributable to the capital contribution and the income referable to the effort or exertion put in by him as a partner to manage the affairs of the firm. The actual percentage of division will depend on the facts of each case. If the partnership deed provides for a share in the profits and also a remuneration, normally, but not always, the remuneration is attributable to the efforts and exertion put in by the partner and the share in profits is for the investment made by way of capital. Here again the matter depends on the facts of each case, that is, the terms of partnership, the evidence relating to investment, quantum of profits and the quantum of remuneration and the time spent by the deceased (full-time or part-time) in managing the affairs of the firm. A judicious division will have to be made, of the income to determine the 'income' attributable to the exertion/effort of the deceased and the 'income' attributable to the investment made.
17. In the decision of Karnataka High Court in the case of [PRECEDENT], the victim suffered injuries such as fracture of acetabulum of right hip joint, fracture of inferior pubic ramus and right sided facial palsy. It has held on the question of loss of future income, that one should have some nexus to the person or his employment. The injury should have directly affected the earning capacity or the earning power of the claimant. Upon such consideration the award on the head of loss of income has been deleted as the victim has been found to be in employment enjoying all the benefits of promotion, increment and salary and there has been no reduction or loss of income.
18. In both the decisions, [PRECEDENT] and [PRECEDENT], cited by Mr. [ENTITY] compensation has not been awarded on account of loss of earnings or earning capacity even though the victim in the first case suffered injuries like dislocation of left pelvis, multiple injuries on different parts of the body and in the second case fracture of femur for which the victim had to be confined to hospital for a month and thereafter walked on medical shoes for three months and with the help of a stick for six months.
19. The decision in [PRECEDENT] , relates to a fatal accident. The deceased, a housewife, was a partner in family business. In the said case compensation has not been awarded by calculating the loss of dependency on the basis of her income from family business at Rs. 38,520 per annum as assessed, upon observation that the income that would accrue to her as a partner would go to her heirs and there would be no loss to her estate.
20. Interestingly, the Supreme Court in the decision in [PRECEDENT] , refused to accept the award for a sum of Rs. 1,57,416 towards future loss of income for a fracture on the right wrist of the claimant for which the doctor assessed the disability at 25 per cent. The Supreme Court went to the extent of holding that had the claimant approached any specialist in Orthopaedics who were available in different Medical College Hospitals at the place of residence of the claimant, the disability of 25 per cent would have been rectified considerably, if not fully. On account of loss of income compensation was reduced to Rs. 60,000.
21. Upon conspectus of all those decisions discussed above it appears that it cannot be said as an invariable rule of law that a compensation should always be awarded on account of loss of earning capacity in future because of an injury suffered by the claimant on his person in a motor accident resulting in some disability, irrespective of any loss of his earnings because of such injury or disability. The determination of compensation should be upon consideration of broad facts and circumstances of each case. Compensation for pecuniary damages such as loss of earnings or earning capacity should therefore depend upon such broad facts and circumstances of each case. There should not be a strait-jacket formula in each case as suggested in the Second Schedule to the Act. Loss of earning capacity for the injury suffered in a motor accident depends primarily upon the nature of injury and the kind of job performed by the injured at or around the period when the accident occurred. Such loss is not to be presumed in each case irrespective of the nature of injury and the job performed by the injured in the accident. No doubt loss of earnings may be an indication to presume loss of earning capacity in future, but in the absence of loss of earnings, it would depend upon these factors and some other circumstances that would be relevant to presume a possibility of losing as much earning capacity as the injured was capable of. One of the aspects of compensating is to grant in equal value as far as practicable, the pecuniary loss that would be suffered by the injured in future. For such assessment of loss of earning capacity in future an estimate of probable future earnings, had there been no accident, has to be made. At the same time it should not be a ploy of the injured to make a profit out of it, which he would not have gained had he not faced the accident. "It should neither be punitive against whom claim is decreed nor it should be a source of profit of the person in whose favour it is awarded" as observed by the Apex Court at para 12 of the decision in [PRECEDENT] .
22. In the case in hand there is no material to establish that the claimant has suffered any loss of earnings since after the accident. So far as the partial permanent disablement of the victim is concerned, the certificate showing permanent partial disablement to the extent of 50 per cent has been issued by a stock doctor. As observed earlier we do not feel confident to rely upon such disablement certificate. The claimant has not said a single word in his deposition as to the nature of his partnership business and the job and/or functions required to be performed by him for carrying on his partnership business. Therefore, the essential elements upon which a presumption could be drawn for loss of earning capacity of the claimant, are absolutely missing. We are, therefore, of the view that claimant is not entitled to a compensation either on account of loss of earnings or earning capacity in future.
23. On the head of pecuniary damages, the claimant has produced medical bills and vouchers showing medical expenses incurred by him to the tune of Rs. 50,089.55 only. Such bills and vouchers have not been disputed by the insurer respondent at the trial. The claimant will, therefore, be entitled to the same which is rounded off to Rs. 50,100 only, instead of Rs. 3,000 as awarded by Claims Tribunal. The claimant is not entitled to any amount for future medical expenses as there is no evidence to show that he is receiving medical treatment till now.
24. Claims Tribunal has also failed to assess the compensation for non-pecuniary damages suffered by the claimant because of the injury suffered by him, as the law required. The Apex Court in the decision in [PRECEDENT] , has held at para 9 of the said report as under:
Broadly speaking while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earnings of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
25. The claimant would certainly be entitled to be compensated on account of non-pecuniary damages such as pain and suffering, discomforts and disappointment faced by the claimant during the period while he was treated medically, loss of amenities in life and the mental stress in life, if there be any. There is no doubt that measures of such non-pecuniary damages cannot be made with mathematical precision. Some speculation has to be made considering the facts and circumstances of the case and the position of the injured in life and his age. The claimant is a businessman with a reasonable income and his age was 52 years at the material point of time. Considering all aspects of matter we hold that the claimant would be entitled to a lump sum compensation for another sum of Rs. 75,000 on account of non-pecuniary damages as above. The total amount of compensation would thus be payable to the claimant at Rs. 1,25,100.
26. The judgment and award of the Claims Tribunal is accordingly modified.
27. The aforesaid awarded amount will carry an interest at the rate of 9 per cent per annum from the date of filing of the claim petition till payment.
28. The insurer respondent is, therefore, directed to pay to the claimant directly or to deposit the aforesaid amount with all interest excluding the amount, if any, already paid or deposited with the Claims Tribunal within a period of four weeks from date.
29. If any cheque that was deposited by the insurance company has lapsed in the meantime, then the insurance company will issue a fresh cheque for the amount inclusive of interest at the above rate on the amount so deposited for the period from the date of filing of the claim petition till the date of deposit of the said cheque which has lapsed in the meantime.
30. The above appeal is accordingly disposed of. There will be no order as to costs. Urgent xerox certified copy of this judgment, if applied for, by the parties the same to be supplied as expeditiously as possible.