IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISCELLANEOUS APPEAL (0 N0. t<24 OF 2011 ^ » » ^; APPELLANT ^" ./- IFFCO Tokio General Insurance Co. Limited, 84 Narmada Road, Jabalpur, District Jabalpur, Madhya Pradesh VERSUS A: RESPONDENTS XCLAIMANTS ./.•/s ^' ^zy./<\ './-f'' ^f^ ~€^y^' ^'"^>~.//< <^ ^ ••f- Gulam Mustafa, son of Gulam Faz Kadari, Musalman, aged about 32 year, resident of Village Salba, Thana and Tehsil Baikunthpur, District Korea, Chhattisgarh Firoz Ahmad, son of Aashiq Ali, aged about 38 years, Musalman, resident of Dabripara, Ward No. 8, Baikunthpur, Thana and Tehsil Baikunthpur, District Korea, Chhattisgarh [ DRIVER ] Sunil Pal, son of Shri Brijendra Prasad Pal, aged about 42 years, resident of Schoolpara, Mission Road, Baikunthpur, Thana and Tehsil Baikunthpur, District Korea, Chhattisgarh [ OWNER ] MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE IVIOTOR VEHICLESACT1988 ' ..^1;^%^ ^T &3. 1 ^stBBI^ | '"'^ssss. n ,'VI HIGH COURT^F CHHATTISGARH, BILASPUR M. A. (C) No. 424 of 2011 Appellant Respondents Versus IFFCO Tokio General Insurance Co. Gulam Mustafa 8s others MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT,_1988 DB: Hon'ble Shri I. M. Quddusi &, Hon'ble Shri'G. Minhajuddin, JJ Shri Amrito Das, Advocate for the appellant. Shri Akhilesh Mishra, Advocate for the respondent No. 1. Shri Yogesh Chandra, Advocate for the respondents No. 2 &, 3. ORDER (Oral) ( Passed on this '26th day of September, 2011 ) Per I. M. Quddusi J 1. This appeal has been filed by the Insurance Company against the impugned award dated 21.01.2011, passecl by the Motor Accident CI^ims Tribunal, Koriya (Baikunthpur) ;n \ Claim Case No. 14/2009 on the question of contributon' negligence and quantum. 2. The appellant had got permission u/s 170 of the Motor Vehicles Act to challenge the quanium. 3. Brief facts of the case as per the version of the claimant/injured are that on 09.03.2008 he was going to village - Salba from Baikunthpur on the motorcyclc of his employer, bearing registration No. C.G. 16-C/0512. The. motorcycle was being driven by one Sheikh Imran and the claimant/injured was sitting as a pillion rider. On the way, near Electric Sub Station, Salka Road, the Marshal Jeep, y;3M E.L. '° 't r'^:^:--.~,^^ ^ isv33b § '•^"" ^p Vi-^fSr bearing registration No. C.G. 16-ZE/0815, which was being driven in a rash and negligent manner by the non-applicant No.l, hit the motorcycle. In that accident claimant received ;rievous injuries, resulting in permanent disability. The claimant/injured filed a clairn petition under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 21,00,OOO/-. Learned Claims Tribunal having regard to the facts situation and the evidence on record awarded a total sum of Rs. 14,68,OOO/-, holding the appellant/Insurance company as liable to pay the amount of compensation, finding that the claimant was a driver, due to 62% permanent disablement he has lost his 100% earning capacity. We have heard learned counsel appearing for the parties and perused the records of the Tribunal. So far as the question of contributoiy negligence is concerned, we have penised the spot map and found that the accident had taken place when the motorcyclist was on his extreme left and the four- wheeler/offending vehicle caused the accident by goin; towards its wrong side when it had gone to the extent of extreme right, as the spot map shows, the blood stains were found at the extreme left side of the motorcyclist. Therefore, the question of contributcAy negligence is ruled out. Dr. Rajendra Banshriya (A.W.2) came into witness box and stated that he had examined the injured, whose right leg was cut below the knee. The permanent disability certificate was issued to the claimant by the medical board. In fact, the injured was treated by DT, Ashish Karan, but he was not examined. On the basis of the permanent disabilitv>-/ )/, \" certificate showing 62% disability, the Tribunal has reached to the conclusion that there is 100% loss of earning capacity. The Tribunal has not assessed the functional disability as well as the future loss of earning. 7. Permanent disability has been defined in Section 142 which reads as under: "242. Permanent disablement.- For the purposes of this Chapter, pennanent 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 ifsuchperson 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 priuation of any m.em.ber or joint; or (b) destruction or permanent imparing of the powers ofany member orjoint; or (c) permanent disfiguration ofthe head orface." 8. Explanation to sub Section (1) ol' 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 after sub-clayse (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-I under Workmeri's Compensation Act, 1923". 9. In the case of Pratap Narain Singh Deo vs. Shrinivas Sabata and another reported in AIR 1976 SC 222 .'^~ ..jsat%^,. '.Sh. """^- .-d^;\. V i^S^.^^c l^ "•~;i S S*,. ^•y"' ''ii^£- 1 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)f 1) ofthe Act asfollows:- <;•° (1) total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all 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 of such 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 Cornmissioner has examined the question and recorded hisfinding asfollows:- "The injured workm.an in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evident.ly been rendered 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 ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item. 3 ofPart II ofSchedule I, because it was not the appellant's case before the Cornmissioner that amputation of the arm was from 8 from tip of acromion to tess than 4Va" 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. Mubasir Ahmed and another reported in (2007) 2 SCC 349 the Hon'ble Apex Court has held in para 8 as under :- -BB°'^a.. "-N... "-;'""- ^-•'" .^-^^' 'yi "Loss of earrdng capacity is, therefore, not a substitute for percentage of the physical disablement. It ;'s 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 ioss of eaming capacity. Without indicating any reason or bas;'s the High Court held that there was 100% loss of eaming capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside thatpart ofthe High Court's order and restore that of the Com.missioner, in view of the 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 case of Oriental Insurance Co. Ltd. Vs. Mohd. Nasir & Anr. reported in 2009 AIR SCW 3717 the HonTsle Supreme Court has held thus in paragraphs 8,10,11,12,13,14 8s 16 as under :- "S. 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 pennanent 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 ,.. f 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 leamed counsel for the parties. Both the statues provide for the mode and manner in which the percentage of laws of eaming capacity is reguired to be calculated. They provide that the amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-a-vis the injuries specified in the First Schedule ofthe 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 ofphysical disability suffered by a qualified medical practitioner so as to enable him to assess the toss of eaming 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 payablein case ofpermanent total disablement. It is also beyond any doubt or dispute that while determining the amount of loss of eaming capadty, the Tribunal 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 detennination of the amoiint of compensation where the victim of the accident suffers froin disability in the cases coming within the purview . thereof. The Note appended to the Second Schedule of the 1988 Act rai'ses a legal fiction, stating that 'injuries deemed to result in Permanent Total Disablement/Pennanent Partial Disablement and, .«T"^. M § \s^^^.y-^ \ ^ ®i ;? 4? Y ^!-^/^f ''y^f' percentage of loss of eaming capacity shall be as per Schedule I 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 otit the nature of injuries and as to whether the same falls within the purview of Part I or Part II thereof. We have noticed hereinbefore that whereas part I specifies the injuries which would deem to result in pennanent total disablement, Part II specifies injuries which would be deemed to result in pennanent partial disablement. The distinction between the 'permanent total disablement' and 'permanent partial disablement' is that whereas in the form.er it is 100% disablement, in the latter it is only the disablement to the extent specified in the Schedule. 14. Similar terms haue 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 Fn'st 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 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 ofthe claimant that he would not be in aposition to dfive the vehicle and furthennore would not be able to do any other work. He was incapable of taking load on his body. ~It, howeuer, appears that in his cross-examination, he categorically ' stated that only ChiefMedical Officer had checked him in his office. JVo, y^ "^A /r ;,/ /•y 12. 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 prescription of medicine X-Ray report of Sarvodaya and of Mohan 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. I 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 suc 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. " Therefore, permanent disability has direct link with the functional capacity of the injured. In the instant case, the Tribunal has not assessed the functional disability of the injured on the basis of the physical disability. The Tribunal has also not assessed the future loss of earning of the clairaant due to actual permanent disability but has assessed 100% loss of earning capacity for the 62% ,!Si"3; v ^ permanent physical disability. 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 of the Motor Vehicles Act, 1988 by summoninj the doctor who had treated the injured to assess the extent offunctional disability ofthe injured/claimant. 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 necessaiy 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 sectionl68 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 18U1 October,;2010 and reported in IV (2010) Accident & Compensation Cases 815 (SC) Hon'ble the Apex Court laid down vide para 11 as under: 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 disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function .s----"¥~^'~-» / ''%>. ''A % ;~^ il '-i i •s»^'. 10 .>-' as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to Tiold an inquiry into the claim for determining the iust compensation. The Tribunal should therefore take.an active role to ascertain the true and correct position so that it can assess the 'just 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 irripairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Acadeiny 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 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 referenc.e 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. (Emphasis supplied) 11 """"•9 S ~-^ •r'. 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 modiiied, since the Appellant is permanently disabled as far as earning a livelihood as a driver is concerned" 16. In view of the foregoing, the appeal is allowed in part, the impugned award dated 21.1.2011 is set aside and the matter is remitted back to the Tribunal for decision afresh in view of the observations made herein above. No order as to cost. 17. Needless to mention that the parties shall be allowed to amend the pleadings,"^ adduce further evidence, file documents or get the documents verified etc., and thereafter decision shall be taken afresh. The Tribunal shall conduct an enquiiy, which is necessaiy for adjydication of the extent of functional disablement and future loss of earning of the claimant injured due to physical permanent disability. r 12 C^7 t'. 18. The parties shall appear before the Claims Tribunal on 15th November, 2011. The LCR shall be sent back without further delay. 19. 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 of the claim petition and it will be subject to fresh decision by the Tribunal. No order as to costs. Sd/- I.M.Quddusl Judge Sd/- G. Minhajuddin Judge Thakur