IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR cl- IUISC. APPEAL.NO. ^3 QF 2006 R° ° ^rr APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT, 1988 Appellant N.on-Applicant no. 3 ^ Versus Respondents ^^. •United India Insurance Company Limited, D.0. III 16' Hare Street, Kolkatta (West Bengal) through Divisional Office, Jail Road, Raipur (Chhattisgarh) Bharat Kumar Lohar, S/o U. Kumar Lohar, R/o 305, Kando Main Road, Kolkatta- 84 (West Bengal), Presently residing at Punjab Transport, Tatibandh, Raipur. Non-Applicant No. 1 Jagdish Chandra Verma, S/o D.C. Verma, R/o (1)Vill. & Post - Shivpur, Howrah (West Bengal) (2) 106, B.T. Road, Kolkatta (West (Bengal) (3) Jaibharat Credit Ltd. Chitrakoot (north) 230.A.J.C. BoseRoad, Kolkatta (West Bengal), Present Address - Punjab Transport, Tatibandh, Raipur (Chhattisgarh) Non-Applicant no. 2 Harikesh Singh S/o Dharmadev Singh, aged 22 years, through ^ ^-1 ^. s. Smt. Pushpa Devi, W/o Harikesh Singh, aged 20 years, Dharmadev Singh, S/o Late Shivnandan Singh, aged 60 years (Father) Smt. Lakhpati Devi, W/o Dharmadev Singh, aged 55 years, (Mother) R/o Machhli Market, Khursipar, Zone-2, Sector-11, Bhilai, Tehsil & Distt. Durg (Chhattisgarh) Claimants (?~~ >^-- "r-f .?': Lr-^ Claim in Appeal for settmg aside and / or modification of the ^^/ award, valued at Rs. 4,22,173/- (Rupees Four Lacs Twentv Two Thousand One Hundred Seventv Three onlv) ' 1.- --r/s"7^' HjGKCQURT OF CHHATTISGARH AT BtLASPUR D.B: APPEU-ANI RESPONDENTS Hon'ble Shri I.M. Quddusi. Hon'ble Shri Prashant Kumar Mishra, JJ. M.A.(C)No. 663/2006 United India Insurance Company Limited. Versus Bharat Kumar Lohar and others. ABfiearance: Shri Sanjay S. Agrawal, counsel for the appellant. Shri Amrito Das, counsel for respondent No.3. ORAL ORDER (04.01.2011) Per I.M. Quddusi, J. This appeal has been filed by the insurer, United India Insurance Company Limited against the impugned award dated 15/09/2006 passed by the XI Additional Motor Accident Claims Tribunal (F.T.C.), Durg (Chhattisgarh) in Claim Case No. 76/06 awarding Rs.4,22,173/- as compensation to the claimant who was injured and disabled permanently. (2) The brief facts of the case are that on 24/03/2003 applicant Harikesh Singh was going from Bhilai to Khursipar in his bicycto. When he reached near Dabrapara Canal, Khursipar, he was dashed by Truck bearing registration No. W.B. 23/4558 which was driven rashly and negligently by non-applicantNo.1, Bharat Kumar Lohar, due to which the applicant susteined injuries on his head and bone of right hand near wrist was also fractured. He was admitted in Sector-9 Hospital, Bhflai for treatment. He was working in Jyoti Poultry Farm and was earning Rs.1800/- per month. In the afternoon he used to bring vegetables from the village and give to her wife for selling, by this he used to earn -1- Rs.2000/- per month. Theclaimants have claimed total compensation of Rs.11,60,300/-. (3) Learned counsel for the appellant has submitted that since there is no permission under Section 170 ofthe Motor Vehicles fisA, the appellant is not entitled to question the quantum, but his contention is that since the Medical Board certifying the permanent disabiltty of the claimant to the extent of 50%, the Tribunal committed error in not reducing 50% from the annual income ofthe claimant, hence this appeal has been filed only on law point. (4) Before proceeding further, it is necessary to describe the particulars of the claimant regarding his disability given in the certificate and also the statement ofthe Medical Officer recorded by the Tribunal. (5) In the Medical Certificate for physically handicapped persons cert'fying the permanent disabil'riy a note has been indicated which is as under:- "DISTRICT MEDICAL BOARD CERTIFICATE No. Accident on 24-3-2003 operations for Craniotomy at Sector 9 Hospital Bhilai on 24-3-2003 Tracheostomy on 26-3-2003 pt has developed Para paresis and speeoh defeot after head injury as per reoords verified MEDICAL CERTIFICATE FOR PHYSICALLY HANDICAPPED PERSON We the member of the Durg C.G. District Medical Board for Physioally Handicapped Person do hereby certily that we have carefully Shri Harkesh Singh Son of Dharmdeo Singh Resident of Khursipar Bhilai on (Date) 11/2/2004 He is suffering from Mal United # colles ® with deformity with LTD Pronation Supination with # frontal bone with Para Paresis due to head injury. His disability is at ....(not clear) % as per the definition given vide Govemment of India Ministry of Social Welfare Gazette Notification No.D2/88-HM,tll Dated 6.8.1986. Dominao •3 hand 10% Fifty percent ....... (not clear) partial ..,.. (not clear) Head injury 90% He comes under the category of Mild Moderate/Serve/Profound fTotal) disability and that He is a physically handioapped person. This certificate is valid a three years from the date of issue identification of Marks (1)8carforehead ......... (notctear). Sd/- Member District Medical Board Distt. Durg Sd/- Member District Medical Board Distt. Durg Sd/- Member District Medical Board Distt. Durg Sd/- Member District Medical Board Distt. Durg Sd?- Sign. and seal Dr. A.D. Urgaonkar Orthopedic Surgeon District Hospital, DURG Regd. No.2776 Sd/- Member District Medical Board Distt. Durg" (6) On perusal of the above note it cannot be doubted that the claimant was having brain/head injury, speech defect ete. Besides that itwas also mentioned that his permanent disability is 10% in respect of dominal hand. (7) In the statement of Dr. A.D. Urgaonkar, Orthopedic Surgeon Applicanfs Witness No.4 it has come that his brain was operated upon and his respiratory cord was also choke and its tracheostomy operation after making hole in the neck was done. Due to injury his righf hand and foot was also affected by paresis (paralysis). His right hands wrist was also fractured for which its straight turning was not possible. His frontal bone was also fractured and thus the total permanent disability was 50%. (8) Permanent disability has not been defined except in Section 142 which is as under:- "142. Permanent cSsabtement- For ttie purposes of this Chapter, permanent disabtement of a person shali be deemed to have resulted from an accktent of the nature -u. referred to in sub-secSon (1) of section 140 if such person has suffered by reason of ttie accident, any injury or injuries involwng:- (a) permanent privation of fhe sight of either eye or fte hearing of eittier ear, or privation of any member orjoint; or (b) destmction or permanent imparing of the powers ofanymemberorjoint; or (c) permanent disfiguration of fhe head or face." (9) Section 143 provides that regarding applicability of that chapter of Motor Vehicle Act to certain claims under Workmen Compensation Act, 1923. (10) Explanation to sub Section (1) of Section 163 A of the Motor Vehictes 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 II schedule at clause 5 the description of disability in non-fatal accidents has been given and after sub clause B it has been mentioned that "injuries deemed to result in permanent total disability and percentage of loss of earning capacity shall be as per schedule 1 under Workmen Compensation Act, 1923. (11) In the case of Pratap Nara'm Singh Deo vs. Shrinivas Sabata and another reported in AIR 1976 SC 222 four Judges of Hon'bte Apex Court comprising Hon'ble A.N. Ray, C.J., and Hon'ble M.H. Beg, Hon'ble R.S. Sarkaria and Hon'ble P.N. Shinghal, J.J. in paragraph 5 has held thus as under :- "5. The expression "total disablemenf' has been definecfin Section 2(1)(1) oftheActas follows:- "(1) "total disablement" means such disablement, wheffier of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at ffie time of the accident resutting in such disablement" It has not been disputed before us that the J" injury was of such a nature as to cause permanent disablement to the respondent and the question for consideration is whether the disablement incapacitated ffie respondent for all work which he was capable ofperfbrming at the time of Vhe accident. The Commissioner has examined the questksn and recorded his Rnding as foltews:- "The injured workman in ffiis case is carpenter by profession .... By loss of ffiie left hand above the elbow, he has evkiently been renctered untit for ffw work of carpenter as ie work of carpentry cannot be done by one hand only." This is obviously a reasonable and correcf finding. Counsel for the appellant has not been able to assait it on any ground and it ctoes not require to be corrected in this appeal. There is also nojusWcation forfhe other argument which has been advanced wffi reference to Item 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner iat amputation of ffie arm was from 8" from tip of acromion te less than 4%" belaw the tip of olecranon. A new case cannot theiefofe be allcwed to be set up on /acte which have not been admitfed or estabSshed." (12) ln the case of National tnsurance Co. Ltd. Vs. Mubaslr 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 cSsablement. It is one ofthe factors taken into account. In the instant case the doctor who examined the claimant a/so noted about the funcfional disablement In other words, fhe ctoctor had taken note of the relevant factors mlating to toss of earning capacity. Without indicating any feason or basis fte High Couri held that fhere was 100% loss of eaming capacity. S/nce no basis was indicated in support of ihe conclusion, same cannot be mamtemecf. Therefore, we set aside that part of the High Court's order and restore that of the Commjsstoner, in wew of the facl situation. Coming to the i^-S-^s: c- question of liaWity to pay interest, Section 4-A(3) deats with that quesffon. The provision has been quoted afeove." (13) In the case of Onental Insurance Co. Ltd. Vs. Mohd. Nasir & Anr. reported in 2009 AIR SCW 3717 the Hon'ble Supreme Court has held iusinparagraphs8,10,11,12,13,14 &16asunder:- "8. Bo , the 1923 Act and 1988 Act are beneficent legislatimi insofar as ftey provide for payment of compensation to the workmen employed by ve empksyers and/or by use of motor vehicle by the owner theteof andtor the inswer to the claimants suftering permanent disabiSty. 10. BottjffieActsaimatprowdingforexpecSttous relief to ffiie victims of accklent. In ihese cases, the acc/ctenfe took place by reason ofuse ofmotor veWcfes. Both the statutes are beneficial ones for fhe workmen as atso fhe ffiiiid parifes. The berwfits thereof are available onty to the persons speaVed under the Act besides underthe Contractorlnsurance. The statutes, ffiierefore, deserwes libeial construciion. The legistative intent contalned therein is requiied to be interpreted w'rih a wew to give eftect thereto. 11. With the aforemenfoned backdn^), we may analyse STG contentions raised befbre us by the leamed counsel for the parties. Both fhe statiws ptovide for ie mode and manner in which fhe percentage of laws of eaming capacjty is required to be calculated. They provide ffiat fte amount of compensation incases ofthis natwe woukl bedirectly relaiabte to the percentage ofphysical <Ssability suffoted by the injured vis-a-vis (he injunes specified in the First Schecfufe o/ the •f923 Act. Indisputably where injuries are specified in the First Schedule, fte mode and manner provided tbr the pwpose of calculating the amount of compensation woukSbe applicable. 12. The status prov'ide for determination of ihe extent af physicat disabiSty suffered by a quaWed medical pracffffoner so as to enable him to assess the loss of earning capacity. Ex^anatton 1 appended to clause (c) of -7- sub-section (1) of Section 4 prw/ides ffiat wheie ffwre are more injuries than one, the aggregate amount of compensation has to be taken but the same should not exceed the amount which woukl have been payable in case ofpermanent tatal disablement. It is also beyond any doubt or dispufe that while determiring the amountof loss of eaming capacify, the Tribunal or ttw High Couri must record reasons tbr arriving at theirconcliiston. The 1923 Act which woukS also be the claims applications aria'ng outofuse ofmoter vehicles in terms af the provisions of 1988 Act would ter the purpose of determination of the amount of compensaffon where ffw victim of ffw accident suffers from disability in the cases coming within the purview thereof. The Note appended to the Second Schedule ofthe 1988 Act ra/ses a legat fiction, stali'ng that 'injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of toss of earning capacity shail be as per Schedule 1 under the Worifmen's CompensaSon Act, 1923'. Permanent cKsability, therefoie, for certain puiposes have been conelated witti funcfional disabitity. 13. As to what, thetefore, in ouropinton, would be relevant is to find out the nature of injuries and as to whether the same falls wittvn the purview of Part 1 or Part // ffwreof. We have noSced hereinbefore that whereas part 1 specifies ff?e injuries wHch would deem fo lesult in permanent total disablement, Part II specifies injuries u^sich woukl be cteemed to result in permanent pariial disabtement. The disSncVon between the 'permanent totat disablemenf and 'permanent pattial <Ssablemenf is that whereas in the formerit is 100% disablement, in e tatter it is only the disatolement to the exfent spedfied 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, incorporaies the provistens of ffiie First Schedule of the 1923 Act. 3S& '"trS «' Indisputably, thefetbre, fte Wote appended thereto would not only be applicable to the cases falting under fhe 1923 Act but apply to ihe cases which falt under the 1988 Act as well. 16. In determining the anwunt of compensation, several facters are requirecS to be taken into conskteratton having regard to the Note. Funcffonal cSsability, thus, has a direct relationship with the toss oftimb. Mohd. Nasir was a driver. A driver of a whksle must be able to make use ofboth his feet. It was the case of the claimant that he would not be in a positton to drive the vehicle and furthermore woukl not be able to cto any other work. He was incapable of taking load on his body. It, hawever, appears that in his cross-examination, he categorically stated that only Chief Medical OfRcer had checked him in his ofKce. No disability certificate had been granied. He admitted ffiat he had not suffered any permanent disability. He, even accorcSng to the Chief MedicalOfRcer whohad not been examined, suffered only 15% disability. The Tribunat has anived at (fte folkwing Rndings: "On page 16 original of disability cerWcate the prescripSon of medicine X-Ray report of Sarvodaya and of Mohan X-Rays have been produced which reveals the fracture of right teg. CMO certificate 0/M 9/2003 cfeted 21.3.2005 has also been pmduced which is atleged to be false by insurance Co. 1 have perused ttiem caeefully which bears signature oi Deputy CMO ofRcer of Disability Board, Moradabad had it shown ffiat ffiie applicant had appeared before ftem for mexScal check up and whow examination was done by senior ortlwpecScs surgeon Dr. R.K. Singh on ihe basis of recommendaffon ofDr. Bansal operaVon was done on 2. 10.2004 fhe applicant walk wiffi) fte Ae/p o^ fte support and is not compeient to drtw the heavy motor vehicle the said cerWcate was issued wiffii recommendation thaf after six monfhs his concStions is to be reviewed. /' ^o-sSi^ '*^ "^. w -? V That ckxument was fffed on 29.3.2005. Insurance company has stated the doctor who has issued cSsability ce/Wcate has not been pmduced in the court But looking into the aflerma s situation the p/ea ofinsurance company that (fte said certificaie is foiged and the same has not been issued by the MBBS ckxtor, canies no forve." (14) Therefore, permanent disability has a direct link with the functional capacity ofthe injured. In the instant case though the Medical Board hascertified permanent disability to the extent of 50% but due to head injury, paralysis and right hand functional disability with defect in speech as the claimant had undergone major operation of brain respiratory cord ete., as already discussed above the job which he was doing i.e. bringing supply of goods and maintaining accounts would not be possible for him due to complete incapability to do the job due to head injuries and defect in speech. He would also not be able to get any other job even as a Watchman, therefore he has become totally incapable to do any job and hence we are of the opinion that due to 100% incapacity to work the Tribunal has taken into consideration his monthly salary i.e. Rs.1800/- per month and rightly did not reduce it. (15) However, at that rate calculating his annual income from salary i.e. Rs. 21,600/- a multiplier of 17 has been applied. The injured claimant was 22 years old and according to Sarla Verma (Smt.) & Others vs. Delhi Transport Coiporation and another reported in (2009) 6 SCC 121 case a multiplier of 18 was liable to be applied. We are not inclined to interfere in respect of the quantum fixed by the Tribunal. Since cross objection has been filed, therefore we apply a multiplier of 18 towards Rs. 21,600/- therefore we allow cross objection to the extent that instead of applying multiplier of 17 the multiplier of 18 is applied and instead of financial loss of Rs.3,67,200/- assessed by the Tribunal the same is enhanced to Rs. 3,88,800/-. Therefore, instead of &• fc'- ¥s- ^- -/o- total amount of compensation fixed by the Tribunal as Rs. 4,22,173/- the same is enhanced to Rs. 4,43,773/-. (16) Withregard to the interest part no interference is required. (17) In the result, the appeal is dismissed. The cross objection is allowed in part only to the above extent. Sd/- I.M.Qiiddusi Judge Sd//- Prashant Kumar Mishra Judge ^