--- T fti ^ ^:^^^ ^\^^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR / 2009 APPLICANT : 1. MOHIT M.A. (C) No. s^ PAR^SNATH GS^^Iii DWIVEDI ^i^^ ^ '^ z^. ^^ ^ ^••' ^ ..<^'^ ^^•^ ^•a KUMHARE,^ RESIDENf PRESENT ADDRESS-MAINPUR, DISTRICT- RAIPUR PERMANENT ADDRESS- JUNGALI PARA, WARD N0. -7, NAGARI DISTRICT-DHAMTARI 2. RUPESH SHARMA S/0 R.K. SHARMA, VILLAGE-POST BASIN TAH. RAZIM, DISTRICT-RAIPUR VERSUS 1. C.V. BALCHANDRAN S/0 LATE C.K. VASUDEV, AGE 37 YRS RESIDENT OF VILLAGE ARJUNDA, TAH. GUNDARDEHI, DISTRICT-DURG (C.G.) 2. _ NEW INDIA JNSURANCE COMPANY ^ LTD- T7^R0^67H DrvXS.joM^L ^ MANAGER, G.E. : RAOD, POWER HOUSE, BHILAI, DISTRICT-DURG APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 RESPONDENTS/ CLAIMANTS IV HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Applicant Respondents Claimants M.A. Fcl No.556/2009 Mohit and another Vs C.V. Balchandran and another Present: Mr. Shailendra Dubey, counsel for the appellants. Mr. Raj Awasthi, counsel for respondent No.2/insurance company. ORDER (Oral) (8th December, 2011) Per I.M. Quddusi. J; 1. This appeal under Section 173 of the Motor Vehicles Act has been filed by the appellants/driver & owner against the award of II Additional Motor Accident Claims Tribunal, Durg, dated 9.1.2009 passed in Claim Case No.78/07, fastening the liability to pay compensation to the claimants on the appellants/driver & owner, jointly and severally. 2. Brief facts of the case, as per averments made in the claim petition, are that on 30.4.2006, after attending a marriage function, respondent No.l/claimant alongwith his wife was returning to Mainpur by vehicle bearing registration No. CG 4H 1868, which was being driven by appellant No.1. However, due to rash and negligent driving of appellant No.1, the vehicle turned turtle at Bhilai-3, GE Road, near Padumnagar College. On account of the said accident, respondent No.l/claimant and his wife sustained grievous injuries. The left hand wrist of respondent No.1 got fractured and he also sustained injuries over other parts of his body. At the relevant time, the vehicle in question was owned by appellant No.2 and insured with respondent No.2. 3. At the time of accident, respondent No.l/claimant was aged 37 years and was earning Rs.8,000/- per month by repairing and rs^ ^^'^fe g ^••^m^ manufacturing agricultural instruments in Sree Industries, Devbhog, Gariyaband. Therefore, respondent No.l/claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the act, 1988") before the claims Tribunal for a total compensation of Rs. 25,95,0007- under various heads. 4. However, learned Tribunal, after close scrutiny of the evidence, after hearing counsel for the parties, by the impugned award granted a total compensation of Rs. 3,28,367/- in favour of the claimant, fastening the liability upon the appellants/driver & owner, jointly and severally. 5. Heard learned counsel for the parties and perused the LCR as well as the impugned award. 6. We have perused the LCR and found that the claims Tribunal has not conducted enquiry as provided under Sections 168, 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicle Rules, 1994 for determining the true facts. It should have summoned the concerned persons and further the loss of earning capacity should have been determined, instead of calculating loss of income considering the percentage of permanent disability. Further, percentage of permanent disability has also not been opined by the Medical Board and therefore, the claims Tribunal ought to have referred the injured to the District Medical Board for obtaining opinion in this regard. 7. Sections 168 and 169 of the Act and Rule 226 of the CG Motor Vehicles Rules, provide that the Tribunal shall conduct an enquiry to determine the fact in respect of award of compensation. Therefore, we are of the opinion that the Tribunal was not justified in treating the claim petition as a civil suit and deciding the same only on the basis of pleadings or the evidence adduced by the parties. 8. In the case of Raj Kumar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(12) Scale 265, the Hon'ble Supreme Court, in paras 6 to 11, has observed thus: €€6. Disability refers to any restriction or lack ofability 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 ^;^-:.^ |s»i^i«ea^- existing at the end 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 ofuse ofsomepart ofthe 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 disability refers to a person's inability to perform any avocation or employment related activities 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 disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (CDisabilities 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 ofclaiming compensation. 7. The percentage ofpermanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus ^S^s^^ ^^^^ ' c"'1 'f^Afe.... •^, ~.^^/ 60%). If different parts ofthebody have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss offuture eamings, would depend upon the effect and impact of such permanent disability on his eaming capacity. The Tribunal should not mechanically apply the percentage ofpermanent disability as the percentage of economic loss or loss of eaming capacity. In most of the cases, the percentage of economic loss^ that is, percentage ofloss ofeaming capacity^ arising from a permanent disability will be dijferent from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of eaming capacity and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss offuture eaming capacity. In most of the cases, equating the extent (percentage) of lossof eaming capacity to the extent (percentage) ofpermanent disability will result 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 eaming capacity of the injured; and after assessing the loss ofeaming capacity in terms of a percentage ofthe income, it has to be quantified in terms of money, to arrive at the future loss of eamings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of eaming capacity as a result ofpermanent 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 ^*'%&. l,cl:"lf%i ^, 1 Vi&, Kumar Mishra V. New India Assurance Co. Ltd. IV f2010) SLT 426=2010 18) 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 disablement 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 offuture eaming capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent After the Tribunal ascertains the actual extent ofpermanent disability ofthe claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his eaming capacity. 10. Ascertainment of the effect of the permanent disability on the actual eaming capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding 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 eaming 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) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or ..^1u lesser scale ofactivities andfunctions so that he continues to eam or can continue to eam his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or carpenter, the actual loss ofeaming capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in govemment service, the loss of his left hand may not result in loss ofemployment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of eaming capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future eamings', if the claimant continues in govemment service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account ofhis disability, and may therefore be shifted to some other suitable but lesser post with less emoluments, in which case there should be a limited award under the head of loss offuture eaming capacity, taking note of the reduced eaming capacity. It may be noted that when compensation is awarded by treating the loss offuture eaming capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities 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 ofloss of amenities or loss of expectation oflife, as otherwise there may be a duplication in the award of compensation. Be that as it may. 11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the •^.. 1 •^ ^' injuries and their effect, in particutar the extent of permanent discibility. Sections 168 and 169 ofthe Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suity but as an active explorer and seeker of truth who is required to thold an inquiry into the claimf for determining the sjust conyensation*. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can cissess the €Just compensation9. 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 Bvaluation 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 Workmen9s Compensation Act, 2923 which gives some indication dbout the extent ofpermanent disability in different types of injuries, in the case ojf workfnen. 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 ofpermanent 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 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 (Emphasis supplied) ^"^••^. ^. a ^ 9. In view of the above, we are of the opinion that the matter requires reconsideration at the end of the Tribunal. Therefore, we allow this appeal in part, set aside the impugned award and remit the matter back to the claims Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light of the observations made above. Needless to mention that the parties shall also be allowed to amend the pleadings, adduce further evidence, file documents and get the documents verified etc. and thereafter, fresh findings shall be given by the Tribunal and award shall be passed afresh. The Tribunal shall also conduct an enquiry into the claim for determining the just compensation. The Tribunal shall also obtain a report regarding permanent disability, if any, of the claimant from the District Medical Board. Parties shall appear before the Tribunal on 24* January, 2012. LCR shall be sent back to the Tribunal without further delay. No order as to costs. Certified copy as per rules. 10. 11. 12. 13. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge •^