t-"3> IN THE mOH COURT.OF CHHATTISGARH AT BILASPUR MISC.APPEALNO. [T1 / 2004 ~ APPELLANT : ^. National Insurance Company Ltd. CSURER ' through itsBranch Manager, Natioiial Iiisuruice Compmy Ltd., Korba DistrietKorba(C.G.) / VER8U8 RESiPONDENTS^l^ ^ s^ •• y^^ ft:-'" /•^^ ^•'^' k'y. <':^-/ 5 3- / /f4^ Shankar Sahu son ofMohit Sdiu, aged 30years Jeq? owtier- JeepNo,M.P.27B-4774, R/o. Charcha kalri, V.T.C. Colony, Charcha, P.8. and Tehsil Baikunthpur, DistrictKorea(C.G.) Haleem alias Bhaki Son of Jabbar Ansari, Aged 25 years, Occupation Driver, R/o. Vivekmand Colony, Charcha, P.S. Kaikunthpur Distt. Korea (C.G.) Dilip Kumar Jain Son ofHanuman Prasa4 aged 26years, Truck Owner, r/o. College : Road, Jashpur, P.S. andDistrictJashpur (C.O.) Sabu Driver, Truck No. M.P. 26 D-4351, Jashpur, P.S. and Distt. Jashpur, Through Truck Owner Dilip Kumar Jain r/o. College Road, Jashpur, P.S. and District Jashpur (C.O.) RE8PONE(ENT Dhaneshwari Devi Wjfe of Jagdish Prasad aged 42 years, R/o. Chareha Kalri, P.S. Baikunthpur, Distt. Korea(C.G.), Fresent addre^- Navapara, Surajpur, P.S. andTehsil Surajpur, District Sarguja (C.O.) pLAIMANT MISC. APPEAL UNDER SECTION 173 OFMOTOR -YEHICLESACT HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. WIINHAJUDDIN. JJ. M.A. No. 199/2004 Appellant Insurer Respondents Vs National Insurance Company Ltd. Korba, Distt. Korba (CG) Shankar Sahu and others rwiiBlsia WMteSt Present: Mr. Goutam Khetrapal, counsel for the appellant. Mr. Atanu Ghosh, counsel for respondents No. 1 & 2. Mr. Sanjeev Banjare, Advocate appears on behalf of Mr. Awadh Tripathi, counsel for respondent No.5. ithORDER (Oral) (28InSeptember,2011) Perl.M. Quddusi.J This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 by the appelianVinsurance company against the award of the 5 Additional Motor Accident Claims Tribunal (FTC), Surajpur, Distt. Surguja (in short 'the Tribunal) dated 31.10.2003 passed in Claim Case No.12/02, challenging the quantum part only. 2. Brief facts of the case are that on 17.8.2000 at about 20:00 hours, Dhaneshwari Devi (claimant) was coming to Charcha from Bihar Giridih by traveling in Jeep bearing registration No. MP 27B/4774. When the driver of the said jeep stopped the jeep at Jashpur Forest Naka, at that time the driver of Truck bearing registration No. MP 26D/4351 by driving the said truck rashly and negligently, dashed the jeep, as a result of which Dhaneshwari Bai sustained grievous injuries over her person. Report ofthe accident was lodged at Police Station - Jashpur. She,'was treated by the doctors of Holy Cross Hospital, Ambjkapur, Bhilai Medical Department and Charcha Colliery. The left hand wrist of the injured was badly fractured and therefore, it was amputated. Thus, on account of the said accident, the injured sustained 60% permanent disability. At the time of accident, the injured/daimant was 42 years of age and was earning Rs.5000/- per month by makirig senwa/, chips and papad. However, on account of lisiUiR aaiu. the accident, her left hand wrist was amputated and she has lost her livelihood and is now dependent upon others. Therefore, by filing a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988"), she claimed a total compensation of Rs.25,00,000/- under various heads. 3. However, learned Tribynal, after close scrutiny of the evidence adduced by the parties before it, by the impugned award granted a total compensation of Rs.4,60,800/- in favour of the claimant, fastening the liability upon the appellant/insurance company. 4. We have heard learned counsel for the parties, perused the LCR as also the impugned award. 5. Learned counsel for the appellant has submitted that permission under Section 170 of the Act, 1988 has been granted to the appellant and in this appeal, he is chaltenging the award only in respect of quantum. He has contended that the claims Tribunal has awarded exorbitant amount under various heads without any basis. 6. Upon perusal of the record and the impugned award, we have found that the Tribunal has not assessed the percentage of functional disability resulting in loss of earning capacity. 7. Permanent disability has not been defined except in Section 142 which reads 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 sub-section (1) of section 140 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.h^aring ofeitherear, orprivation ofany memberorjoint; or (b) destruction or permanent imparing of the powersof any member orjoint; or (c) permanent disfiguration of the head or face." lrl!i.S;: ;i"f?ri;]-,i[^ i.8:i 9. Explanation to sub Section (1) of Section 163 A of the Motor Vehicles Act express that for the purpose of that sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen Compensation Act, 1923. In Second Schedule of Section 163-A at clause 5, the description of 'disability in non-fatal accidents' has been given and aftersub- clause (b), it has been mentioned 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 Workmen's Compensation Act, 1923". In the case of Pratap Narain Singh Deo vs. Shrinivas Sabata and another reported in AIR 1976 SC 222 four Judges of Hon'ble Apex Court have held in paragraph 5 thus as under:- "5. The expression "total disablement" has been defined in Section 2(1 )(1) ofthe Act as follows:- °(1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates workman forall work which he was capable ofperforming at the time of the accident resulting in such disablement." It has not been disputed before us that the injury was ofsuch a nature as to cause permanent disablement to the respondent and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:- "The jnjuKd workman in this case is carpenter by profe&s/on .... By loss of the left hand above the elbow, he has evidently been readered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only." This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any grounol. and it does not require to be corrected in this a6i!lltt ^IIIBfl.]. 4 appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 ofPart II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 41A" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established." 10. In the case of National Insurance Co. Ltd. Vs. MubasirAhmed and another reported in (2007) 2 SCC 349 the Hon'ble Apex Court has held in para 8 as under:- "Loss ofeaming 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 foss 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 the Commissioner, in view ofthe fact situation. Coming to the question of liability to pay interest, Section 4-A(3) deals with that question. The provision has been quoted above." 11. In the c&se of Oriental Insurance Co. Ltd. Vs. Mohd. Nasir & Anr. reported in 2009-AIR SCW 3717 the Hon'ble Supreme Court has held thus in paragraphs 8,10,11,12,13,14 & 16 as under:- "8. Both, the 1923 Act and 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by ,0 /^. l<B11!itit M#» the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the claimants suffehng 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 underthe 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 injuhes specified in the First Schedule of the 1923 Act. Indisputably where injuries are specified in the First Schedule, the mode and 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 'mbdical practitioner so as to enable him to assess the toss of earning capacity. Explanation 1 appended to c/ause (c) of sub-section (1) of Section 4 provides that where there are more injuhes than one, the aggregate amount of compensation has to be taken but the same ^ •*t(as liHliliiBiltBta should not exceed the amount which would have been payable in case ofpermanent total disablement. It is also beyond any doubt or dispute that while determining the amount of loss of earning capacity, the Thbunal or the High Court must record reasons for arriving at their conclusion. 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 where the victim of the accident suffers from disability in the cases coming within the purview thereof. The Note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that 'injuhes deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of eaming 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 purview 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 'permanent 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. nil.i.'BB 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 underthe 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 of limb. Mohd. Nasir was a driver. A driver of a vehicle must be 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 cfo any other work. He was incapable of taking load on his body. It, however, appears that in his cross- examination, he categorically stated that only Chief Medical Officer had checked him 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 Thbunal has arrived at the following findings: "On page 16 ohginal of disability certificate the prescription of medicine X-Ray report of Sarvodaya and ofMohan X-Rays have been produced which reveals the fracture of right 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 ofthe support and is not competent to drive the heavy motor vehicle •nr eiwia the said certificate was issued with recommendation that aftersix 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 aHermath situation the plea of insurance company that the said certificate is forged and the same has not been issued by the MBBS doctor, carhes no force." 12. Therefore, permanent disability has direct link with thefunctional capacity of the injured. In the instant case, the Tribunal has not assessed the fynctional disability of the injured on the basis of the physical disability resulting in loss of earning capacity. In such circumstances, the Tribunal should have conducted proper enquiry as laid down in Rule 226 of the C.G. Motor Vehicles Rules, 1994 and Section 168 ofthe Motor Vehicles Act, 1988. 13. It has been provided in Rule 226 of C.G. Motor Vehicles Rules, 1994 that the Claims Tribunal shall obtain whatever information and documents which may be found necessary from the police, medical and other authorities and proceed to award the claim whether the parties who were given notice, appear or not, on the appointed date. Further we cannot ignore the provisions of section 168 of the Motor Vehicles Act, 1988 which provides that on receipt of an application for compensation made u/s 166, the Claims Tribunal shall after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim and subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to-'be just. However, the Tribunal has not conducted any enquiry in the manner indicated above. 14. Further in Raj Kumar -vs- Ajay Kumar and another decided on 18th October, 2010 and reported in IV (2010) Accident & Compensation Cases 815 (SC) Hon'ble the Apex Court laid down vide para 11 as under: / s ;i"3:!!!iSlJ Blla, 11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the iniuries and their effect, in particular the extent of permanent disabilitv. 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 reauired to 'hold an inquiry into the claim' for determinina the 'iust comDensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'iust compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized 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. 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 J4nctional 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. ^y^ -^ 'E. T' 10 'WiBBii :»!il'SEB)(jji>i, 15. Hon'ble Supreme Court in Palraj V. Divisional Controller, NEKRTC, 2010 AIR SCW 6996 has held that "while computing compensation for disabilities being suffered by a workman in the case of his employment, it is the functional disability resulting in loss of earning capacity which is the criteria which is followed in assessing compensation." Further, in para 14 of the judgment Hon'ble Supreme Court held as under: "Accordingly, apart from the fact that the Commissioner, Workmen's Compensation, had confused the concept of functional disablement with permanent disablement in arriving at the figure of 85% loss of earning capacity, we also have to take into consideration the fact that the injury suffered by the Appellant did not disable him permanently from earning his living other than as a driver. We, therefore, are of the view that the percentage of functional disablement has to be modified, since the Appellant is permanently disabled as far as earning a livelihood as a driver is concerned." 16. Therefore, we are of the opinion that the matter requires reconsideration at the end of the Tribunal in respect of quantum part i.e. assessment of the compensation to be awarded to the claimant injured with reference to the permanent disability. For the above purpose, the Tribunal shall conduct proper enquiry and find out the future loss of earning of the claimant with reference to the permanent disability and for that, the Tribunal may get the opinion of the Medical Board. It will also be open for the daimant to get the salary certificate proved by producing the employer, if so advised. 17. In the result, the appeal is allowed in part. The impugned award is set aside. The matter is rejiiitted back to the Tribunal for decision afresh in view ofthe observations made herein above. 18. Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the p" 11 documents verified etc., and thereafter decision shall be taken afresh. The Tribunal shall conduct an enquiry, which is necessary for adjudication of future loss of earning of the claimant injured due to permanent disability. 19. The parties shall appear before the Claims Tribunal on 16 November, 2011. The LCR'shall be sent back without further delay. 20. If the amount is deposited by the Insurance Company, the same shall be kept in a fixed deposit in^a Nationalized Bank for a period of six months extendable from time to time. However, if the sum or any part of the sum has been paid to the claimant, the same shall not be recovered during the pendency ofthe claim petition. u S^!t]«a8: No Qrder.as-ta-coste. Sd/- \ I.M. Quddusi ; -\ Judge Sd/- G. Minhajuddin Judge