i^lMWf l^ 1^1 © ¥ISi IN THE HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH. MISC. APPEAL f C yns8 OF 2007 APPELLANT OWNER '^ ^^••"\ yws^'" c5 ys °B Gopal Krishna Bangde S/o Late Harishankar BangA aged about 55 years R/o Village Amlipara Police Station Arjuni District Dhamtari (CG) VERSUS fRESPONDENTS: 'k^i fe ^ ^:-& /7f ^ ^> 1. Nand Kumar dhritlahre S/o Tir^tTPNtey-Ram Dhritlahre aged about 35 years, Sarpanch and Agriculturist R/o Village PatJd Police Station Arjuni District Dhamtari (CG) ( Claimant) 2. Jaicand S/o MehtaruRam Gond aged about 23 years R/o Village Chhindbhai'rT Post Chanagaon Police Station Arjuni District Dhamtari (CG) ( Driver ) MISCELLANEOUS APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT. 1988. i^. /'^3 HIGH COURT OF CHHATTISGARH: BILASPUR D.B.: Hon'ble Shri I. M. Quddusi & Hon'ble Shri Manindra Mohan Shrivastava, JJ. Appellant Owner Respondents M.A.(C)No.1158of2007 Gopal Krishna Bangde Versus Nand Kumar Dhritlahre and another [Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988] . Present: - Shri Vishnu Koshta, counsel forthe appellant. Shri Govind Dewangan, counsel for respondent No.1. ORDER(ORAL) (Passed on this 2na day of May, 2011) Per I.M. QUDDUSI 1. This appeal has been filed againstthe impugned award dated 11-09-2007 passed by the Additional Motor Accident Claims Tribunal, Dhamtari (hereinafter referred to as "the Tribunal") in Ctaim Case No. 122/2005 allowing theclaim petition of the claimant/injured, whereby the Tribunai has imposed liability to pay compensation to the tune of Rs.3,04,400/- upon the owner and driver of the offending vehicle along with interest @ 6% per annum. 2. Brief facts of the case are that the claimant while returning to his village Aarod in the offending vehicle Tractor Trolley bearing Registration No.C.G.-04-D- 2374 & C.G.-04-D-2375, which was driven by the respondent No.-2/Driver in a rash and negligent manner, as a result ofwhich, near the village Madamsilli, the said tractor troiley turned turtle and got damaged. Consequently, the applicant (Nand Kumar) received severe injury on the right leg, on account ofwhich, right leg below the knee was amputed. The<applicant(Gajanand) also received injury on the back bone, due to which, the back bone got fractured. The applicant(Gajanand) also l^^i^M ^BI^ff ^'yS'v^f 1SSglli .^^s^'^ 'T?'"?^^^^^'^':^"- -^7. :.^ <^. received injury ori the chest and leg. Both applicants were hospitalized at Masihi Hospital, Dhamtari. The applicant (Nand Kumar) was working as Sarpanch of the Village. He was acraftsman and earning Rs.5,000/- per month. The matter was reported to the Police Station Arjuni and an offence was registered against the non- applicant No.l-Driver. 3. Vide Claim Case No. 122/2005, the claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs.15,00,000/- under various heads along with interest. 4. Learned Claims Tribunal having regard to the facts situation and the evidence on record held that the claimant is entitled for an award of compensation of Rs.3,04,400/- under various heads in Claim Case No. 122/2005, holding the appellant-owner as well as the non-applicant No.l-Driver liable for payment of the aforesaid award. Aggrieved by the impugned award, the appellant/owner has preferred this appeal. 5 We have heard learned counsel appearing for the parties and perused the lower Court record and found that the permanent disability certificate has been issued by the Consultant Orthopedics, Christian Hospital, Dhamtari, Ex.P-78, on 29-09-2005 and proved his permanent disability certificate by appearing in the witness box as applicant's witness No.2. According to the certificate,' the claimant/injured has suffered got 70% permanent physical disability due to the accident in question. The Tribunal besides medical and other expenses calculated the loss of income only calculating the permanent disability to the extent of 40% and awarded compensation accordingly. The Tribunal has calculated monthly income by adopting multiplier of 12 and calculating permanent disability to the extent of40% and reduced 60% income and calculated the compensation on 40 % permanent disability, after adopting the multiplier of 16, considering his age. Therefore, the Tribunal, in our opini,on, has committed an error in substituting the ^^^^m; ^c-^t^'ll^ ^^^s • ^iilllli •^iSSiS, 1BSS8S 'r, .Cii^ii. '^^!7^'^? \ ^lilliljt^U 11 l'ftS8SI it ^M&^^ 118S It ll'-i' ^SSSSJS II il IIS8. issss^' .tfSfiSS^ I- •I 'liMgII^ 1; "^s^fi^ SKB61 "w^» il ii :mSiS\ ^SilSSS^^ '^SSSSi^ '^"iM^^ i~ :a'iiw^;s:i?i^ ^js'^SIti ^^ss^. ''^s^^^-"^'^. %®BSI:i ^—^^^^^^ Ys ^) percentage of the physical disabtement towards loss of earning. It has not been calculated by assessing the functional capacity of the claimant/injured. The permanent disability has a direct link with the functional capacity of the insured. If a person has become permanently disabled, but is having functional capacity, the loss of income would not be calculated in the ratio of the percentage of the permanent disability, rather it should be calculated considering the loss of functional capacity ofthe insured. 6. In the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed and another reported in (2007) 2 SCC 349 the Hon'ble Apex Court has held in para 8 as under:- "Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court's order and restore that of th6 Commissioner, in view of the fact situation. Coming to the question of liabilJty to pay interest, Section 4-A(3) deals with that question. The provision has been quoted above." 7. In the case of Oriental Insurance Co. Ltd. Vs. Mohd. Nasir & Anr. reported in 2009 AIR SCW 3717 the Hon'ble Supreme Court has held thus in paragraphs8,10,11,12,13,14 & 16asunder:- Sl »li% ^;-.;. ^^••^.—'^^:;::-'.-. ^ ^^•^..•^ •''•'. ^: ^ ^. "8. Both, the 1923 Act and 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the claimants suffering permanent disability. 10. Both the Acts aim at providing for expeditious relief to the victims of accident. In these cases, the accidents took place by reason of use of motor vehicles. Both the statutes are beneficial ones for the workmen as also the third parties. The benefits thereof are available only to the persons specified under the Act besides' under the Contract or Insurance. The statutes, therefore, deserves liberal construction. The legislative intent contained therein is required to be interpreted with a view to give effect thereto. 11. With the aforementioned backdrop, we may analyse the contentions raised before us by the learned counsel for the parties. Both the statues provide for the mode and manner in which the percentage of laws of earning capacity is required to be calculated. They provide that the amount of compensation in cases ofthis nature would be directly relatable to the percentage ofphysical disability suffered by the injured vis'a-vis the injuries specified in the First Schedule of the 1923 Act. Indisputably where injuhes are specified in the First Schedule, the mode ahd manner provided for the purpose of calculating the amount of compensation would be applicable. 12. The status provide for determination of the extent of ' physical disability suffered by a qualified medical practitioner so as to enable him to assess the loss of earning capacity. Explanation 1 appended to clause (c) of sub-section (1) of Section 4 provides that where there are more injuries than one, the aggregate amount of compensation has to be taken but the same should not exceed the amount which would have been payable in case of permanent total disablement. It is also beyond any doubt or dispute that while determining the amount of loss of earning capacity, the Tribunal or the High Court must record reasons for arriving at their conclusion. -i^^^^s: ^%IS:%I.iS 'SiS^S y^^y^'^^'t E% .^w^.^^":^^1, ^('M^i^^^'^ it ^^^^M^ ''ssissss ss&ss^ •ii^litlSij :aBi .^^^^^; ^^iiSSiM^ K-N^^i^^' ^^j^p:'! "^iiW^- ^.^?!"'^^^^ ^ S^:i ^issi® 's^^ Si%! ^ IB ,'nl;ti :^SS^K^ ^SM^^. ^^i^i^:v 'Kgi? ws^ ^' ...-^iei!3SS^. ..,^\ '^ r?cv ^,. ^ ,<?.' The 1923 Act which would also be the claims applications arising out of use of motor vehicles in terms of the provisions of 1988 Act would for the purpose of determination of the amount of compensation wherethe victim of the accident suffers from disability in the cases coming within the pumew thereof. The Note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that 'injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule 1 under the Workmen's Compensation Act, 1923'. Permanent disability, therefore, for certain purposes have been correlated with functional disability. 13. As to what, therefore, in our opinion, would be relevant is to find out the nature of injuries and as to whether the same falls within the pur/iew of Part 1 or Part II thereof. We have noticed hereinbefore that whereas part 1 specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement. The distinction between the {permanent total disablement' and cpermanent partial disablement' is that whereas in the former it is 100% disablement, in the latter it is only the disablement to the extent specified in the Schedule. 14. Similar terms have been used in clauses (a) and (b)(of paragraph 5 of the Second Schedule of the Motor Vehicle Act It, by reference, incorporates the provisions of the First Schedule of the 1923 Act. Indisputably, therefore, the Note appended thereto would not only be applicable to the cases falling under the 1923 Act but apply to the cases which fall under the 1988 Act as well. 16. In determining the amount of compensation, several factors are required to be taken into consideration having regard to the Note. Functional disability, thus, has a direct relationship with the loss oflimb. Mohd. Nasir was a driver. A driver ofa vehicle mustbe able to make use of both his feet. It was the case of the claimant that he would not be in a position to drive the vehicle and furthermore would not be able to do any other work. He was incapable of taking loa^ on his body. It, however, appears that in his cross-examination, he oategorically stated that only Chief Medical Officer had checked him -llilSS g|gg|§ ilS®S '^i^i^ •^^^^ ^iltli ^i^S in his office. No disability certificate had been granted. He admitted that he had not suffered any permanent disability. He, even according to the Chief Medical Officer who had not been examined, suffered only 15% disability. The Tribunal has arrived at the following findings: "On page 16 original of disability certificate the preschption of medicine X-Ray report of Sar^odaya and of Mohan X-Rays have been produced which reveals the fracture ofright leg. CMO certificate 0/M 9/2003 dated 21.3.2005 has also been produced which is alleged to be false by insurance Co. 1 have perused them carefully which bears signature of Deputy CMO officer of Disability Board, Moradabad had it shown that the applicant had appeared before them for medical check up and whose examination was done by senior orthopedics surgeon Dr. R.K. Singh on the basis of recommendation of Dr. Bansal operation was done on 2.10.2004 the applicant walk with the help of the support and is not competent to drive the heavy motor vehicle the said certificate was issued with recommendation that after six months his conditions is to be reviewed. That document was filed on 29.3.2005. Insurance company has stated the doctor who has issued disability certificate has not been produced in the court. But looking into the aftermath situation the plea of insurance company that the said certificate is forged and the same has not been issued by the MBBS doctor, carries no force." 8. The claimant-injured was working as a Sarpanch before the accident had taken place. The Tribunal ought to consider as to what is the loss of income ofthe claimant/injured towards working as Sarpanch and craftsman. Learned counsel for the appellant has further submitted that the claimant/injured has got appointment as Skisha Karmi Grade-111 in the pay scale of Rs.3800-100-5800/- vide order No-6100/J.P./Shiksha Karmi Bharti/07, Lohandiguda, District Bastar, dated 04-07- 2007 issued by the Chief Executive Officer, Janpad Panchayat, Lohandiguda, District Bastar, C.G. and is working in that pay scale. Therefore, in view ofthis, it is necessary to calculate loss of functional capacity of the claimant/injured. Thus, we ^i^ ^w 388 3S181SSI J8WSS3 @ are ofthe considered opinion that the matter requires re-consideration at the end of the Tribunal. 9. For the reasons stated hereinabove, we allow the appeal in part, set-aside the impugned award dated 11-09-2007 and remit back the matter to the Tribunal for decision afresh. No order as to costs. 10. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings'and may file ^J further documents and get the documents verified etc. Thereafter, the decision shall be made by the Tribunal on merits. 11. The lower Courts record shall be sent back forthwith. 12. The parties shall appear before the Claims Tribunal concerned on 14th June, 2011. Tumane Sd/- LM.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge T^M^. ^P^li-;l ^^ ;^%%^^:^w ^^A..;^';;;^;^ ^ligj^^ ^i^^Mi^ J'^l^.fg^^ ^.^:^^'^' ^issis ia-^..-..—.--—— lssp ^^ ^