A^L IN THE HIGH COURT OF JUDICATURE AT BILASPUR c^-^ M.A.(C) 72010 APPELLANT NON APPLICANT No.2 •>^ VERSUS :NATIONALINSURANCE CO.LTD. Through Divisional Manager, G.E. Road, Raipur (C.G.) RESPOND3SNT No.'•- ^ : SHIVAM MAHOBE AGED 28 YEARS S/0 RAMJI LAL MAHOBE R/0 SAKIN SECTOR-1, L.I.G. E/104 NEAR SHFV MANDIR, DEVENDRANAGAR TAH.&DISTT. RAIPUR (C.G.) RESPONDENT N0.2 NON APPLICANT N0.1 RESPONDENT N0.3 NON APPLICANT N0. 3 MUKESH AGARWAL S/o Late Ayodhya Prasad Agarwal R/o SakinAlokTelcom,. Pithoura Post & Thane Pithora, Distt. Mahasainunda (Owner ofScropio No. CG04/5372) Manjeet Singh S/o Surendra Singh Arora R/o E-15, Sector 5, Devendra Nagar Raipur (C.G.) (Owner ofC.G. 04 HA/6905) RESPONDENT N0.4/- The New India Assurance Co. Ltd. ~fo NONAPPLICANT A Through Dhdsional Manager N0. 4 Behind Jeevan Beema Office Pandari TahsU 8s Distt. Raipur (C.G.) ..2.. ..2.. ^' APPEAL UNDER SECTION 173 OP MOTOR VEHICLE ACT. AGAINST THE AWARD DTD^ 1'7^12.09 PASSED BY 7TH ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RAJCT.TRINCLAIMCASE N0^9708 APPEAL VALUEDATRS. 9,79,600/- COURT FEE PAID RS. 15/^ HIGH CQURTOF CHHAmSGARH AT BILASPUR QS: APPELL.ANT RESPONDENTS Hon'ble Shri !.M. Quddusi. Hon'ble Shri Prashant Kumar Mishra. JJ. Misc. Appeal (C) No. 478ff010 National Insurance CO. LTD. Versus Shivam Mahobe and others. Shri Shree Kumar Agarwal, Senior Advocate with Shri Anand Gupta, counsel for the appellant. Miss. Sharmila Singhai, counsel for respondent No.1. Shri Ragvendra Pradhan, counsel for respondent No.2. Shri Deepak Gupta, counsel for respondent No.4. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 ORAL ORDER (14.10.2011) Per I.M. Quddusi, J. This appeal has been filed by the appetlant/National Insurance CompanyLtd. againstthe impugnedaward dated 17/12/20C»passedby the 7 Additional Motor Accident Claims Tribunal, Raipur in claim case No. 89/2008 only on the question of quantum. (2) The appellant was granted permission under Section 170 of the Motor Vehicles, Act. (3) Brief facts of the case as narrated in the claim petition are that on 20/07/2008 at about 5.25 in the evening Jaspreet Singh was driving the Swift Car bearing regisfration No. C.G. 04-HA/6905 in normal speed and was coming from Sunderkera-Navapara side, then near village Danaud Chouraha, Pottee Station Abhanpur, District Raipur (C.G.), Scorpio bearing registration No. C.G. 04 HA/5372 being driven rashly and negligently by its driver dashed the Swift Car, and Scorpio turned turtle and its driver died. Driver of Swift Car Jaspreet Singh and one Ritesh Bhanusali sitting in the Swift Car also died due to injuries they received. Claimant was also sitting in the Swift Car. His jaws got completely damaged. A screw and rod was inserted in the elbcw of left hand and his legs were fractured. Screw and rod was inserted in the thighs of left teg. He was admitted in the Ram Krishna Care Hospital from 20/07/2008 to 19/08/2008 and also from 24/09/2008 to 27/09/2008 for freatment. Claimant has claimed compensation of Rs.21,80,000/-. ^-^ .z' (4) Question has arisen before us that the Dr. who appeared in the witness box and stated that he had examined the claimant/injured has stated that he cannot assess the loss of eaming capacity due to the disability of the claimant. However he has stated that the claimant has got permanent disability to the extent of 30%. (5) In case of Raj Kumar -vs- Ajay Kumar and another decided on 18th October, 2010 and reported in IV (2010) Aceident & Compensation Cases 815 (SC), Hon'ble the Apex Court has laid down princlples regarding assessment of fiiture loss of earnings due to permanent disability in paras 6to 11 as under: 6. Disability refers to any restrtetion or lack of ability to perform an activity in the manner considered normal for a human- being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the wd of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent dteability refers to a person's inability to perform any avocation or employment related activlties as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of much wider range when compared to the physical dlsabilities which are enumerated in the 'Persons with Disabilities (Equal Opportunities, Protection of Rights and Fult Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 7. The percentage of permanent disabiUty is ®<pressedby the Doctore with reference to the whole body, or more often ttian not, with reference to a particular limb. When a disability certificate ^f ::^~ i ^•'""A ^ ^ f|!' 3. states that the injured has suffsred permanent disability to an extent of 45% of the left lower limb, it is not ttie same as 45% permanent disabitity with reference to the whole body. The extent of disability of a limb (or part of ttie body) expressed in terms of a percentage ofthe total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disabilHy of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent di^ibility with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disabilHy with reference to the whole body, cannot obviouslyexceed 100%. 8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of fuhire earnings, would depend upon the effect and impact of such permanent disabil'rty on his earning capacity. The Tribunal should not mechanically apply 8ie percentage of permanent disabil'rty as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, pereentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (pereentage) of permanent disability would result in a corresponding loss of earning capacity and consequently, if the evidence produced show 45% as the permanent disability, wiil hotd that there is 45% loss of future earning capacity. In most of the cases, equating the extent (pereentage) of loss of earning capacity to the extent (percentage) of permanent disability will resutt in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a pereentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard muttiplter method used to determine loss of dependency). We may however note that in some cases, on appreciation of eyidence_^^_ ^ 4' and assessment, the Tribunal may flnd that percentage of loss crf earning capacity as a resutt of permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this Court in Arvind Kumar Mishra V. New India Assurance Co. Ltd. IV (2010) SLT 428=2010 (8) SCALE 567. 9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:. (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disabtement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if Ihe Tribunal concludes ttiat there is permanent disability then it will proceed to ascertain "rts extent. After the Tribunal ascertains the actual extent <rf permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disabillty has affected or will affect his eaming capacity. 10. Ascertainment of the effect of ttie permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disabil'rty and what he couM not do as a result of the (^rmanent ability (this is also relevant for a\rarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether inspite of the permanent disability, the claimant could still efFectively carry on the activities and functions, which he was earlier carrying on, or (iii) vtfiether he Mvas prevented or restricted from discharging his previous .^- }!<y 'JttSfe.i&i-ls. ^ '•<!', ff- activities and functions, but could carry on some ottier or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if ttie teft hand of a claimant is amputated, the permanent physical or ftinctional disabtement may be assessed around 60%. If the claimant was a driver or carpenter, the actual lciss of earning capacity may virtually be hundred percent, if he is neither abte to drive or do carpentry. Onthe other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he coutd perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% whlch is the acfaial phyacal disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in govemment service, though he may be awarded compensation under the head of loss <rf amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suHable for discharging the duties atlached to the post or job which he was earlier holding, on account of his disability, and may therefore bs shifted to some other suitable but lesser post wlth less emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the toss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenHJes or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. 11. The Tribunal should not be a sitent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpjre as in a civil suit, but as an active ^^ -t' ^' explorer and seeker of truth who is required to 'hold an inquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensaUon'. 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 Amertcan 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 schedute to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in ttie 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 functional disability with reference to the whole body or whether it is only with reference to a limb. If the pereentage of permanent disability is stated with reference to a limb, the Tribunal witl have to seek the doctor's opinion as to whether it is posstble to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage. (6) Therefore we are of the opinion that the matter requires reconsideration at fte end ofthe Tribunat. (7) The Tribunal shall permit the claimant to appear before the medical board and parties shall be allowed to amend their pleadings and adduce further evidence, if any, file documents or get documents verified as the case may be and thereafter the Tribunal shall decide the claim petition afresh in the light of the observation made above. (8) In view of the above, we allow fcis appeal in part, set aside the award and remit the matter back to the Tribunal for decision afresh. ../M&'^'"">»" ./' /..;.-''.. <^t ~<0, // .^^v.£s^^^. ;; '^^s?^:.^ /- "}3/ 1-1 (9) The appeltant shall appear before the Tribunal on 30th November, 2011. (10) The LCR shall be sent back without further delay. (11) No order as to cost. (12) tt is hereby clarified that we have not disturbed the finding of Uie Tribunal regarding the expenses incurred in getting the treatment by th® claimant. The amount which is in deposit has been kept in fixed deposit, shall remain in fixed deposit in pursuance to the interim order passed in this appeal eariier and shall be subject to decision of the claim petition _a&esh. Sd/- I.M.Quddusi Judge SA/- Prashant Kumar Mishra Judge ?& -•g