Case: ICICI Lombard General Insurance Co. Ltd Vs. Ajay Kumar Mohanty

the income tax returns for 2007, 2008 and 2009 arrived at an average income of Rs. 1,45,231/-. However, the Tribunal has thereafter noted that the average income comes to Rs. 2,62,372/-. Ultimately, the Tribunal proceeds on the annual income of Rs. 2,22,000/- on the basis of the testimony of the claimant that he was earning Rs. 18,500/- per month. This is contradictory. In our view, on the basis of the finding of the Tribunal that the average income of the claimant for the previous three years was Rs. 1,45,231/-, it would be necessary to take into account the evidence of PW2 that the disability is to the extent of 55 per cent. In other words, the loss of earning as a result of the aforesaid disability would work out to Rs. 79,877/- per year.8. In arriving at the quantification of compensation, we must be guided by the well-settled principle that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the persons capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the person himself.9. In Sri Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd, this Court held thus:"The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victims inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."In Govind Yadav v. New India Insurance Company Limited, this Court after referring to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd. Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, Reshma Kumari v. Madam Mohan, Arvind Kumar Mishra v. New India Assurance Co. Ltd., Raj Kumar v. Ajay Kumar, held thus:"18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." (Id at page 693)These principles were reiterated in a judgment delivered by one of us (Justice Dipak Misra, as the learned Chief Justice then was) in Subulaxmi v. MD Tamil Nadu State Transport Corporation, 10. In the present case, the evidence of PW2 Dr Umakanta Jena indicates that he had initially, before issuing the disability certificate, examined the shoulder joint, elbow joint and left femur as per the discharge certificate. The discharge certificate indicated that the injuries sustained were grievous in nature. The Doctor initially placed a tick mark over the word `permanent. However, subsequently he made an interpolation by cutting the word `permanent and "not likely to improve". The evidence of the Doctor is reproduced below, insofar as it is material:"4) The disability is temporary but not permanent. The disability is likely to improve. The disability certificate is the original one. By mistake, I gave a tick mark on the word "permanent". Per day about one hundred disability certificates are issued. So, I committed this wrong. I have not mentioned which documents I verified prior to issuance of this disability certificate. There is nothing in the certificate to show that there was nailing. Particularly in this case, the disability may improve. Any fracture of extremity will cause disability. I cannot give any authority to the opinion of my above sentence.5) It is not a fact that the percentage of disability has been made by me being gained over by the injured and that there was no disability. It is not a fact that being gained over by the injured I gave this disability certificate.TO COURT:-Q. No. 1:- Whether the certificate issued by you is creating confusion?Ans; Yes.Q. No. 2: Whether you will be paid T.A. and D.A. from State Exchequer for your mistake?Ans:, No, I should be paid.Q. No. 3:- Whether my attendance in the court is a govt. duty or C.L.?Ans: For my mistake I should take C.L.Q. No. 4:- Can you explain why you interpolated the certificate which was signed by 4 doctors including CDMO, Bhadrak?Ans: I cannot explain.Q. No. 5:- Was not it desirable to obtain the consent of other three doctors before cutting and putting tick mark and making interpolation on an already prepared public document?Ans: I should have obtained the consent and signature of all other signatories before interpolating the document."11. The doctor has admitted to having made an interpolation in the disability certificate. The above evidence indicates that the disability is temporary and not permanent. The Doctor admitted that the disability certificate indicated a tick mark on the word `permanent by mistake. He further stated that the disability in the present case was likely to improve.12. Having regard to all these facts and circumstances, we find merit in the contention that the claim for compensation on the basis that the disability was permanent was clearly not established. There was no basis to award an amount of Rs. 20,75,700/-. The Tribunal has awarded an amount of Rs. 2,09,622/- towards medical expenses. We accept the figure of an annual loss of income of Rs. 79,877/-. The disability being of a temporary nature, we award compensation of Rs. 5 lakhs towards loss of income. We allow compensation of Rs. 2 lakhs towards trauma, pain and suffering.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds], there has been no application of mind by the High Court to the evidence on the record and to the relevant facts and circumstances. The above extract cannot be regarded as the expression of a reasoned view. Ordinarily, we would have remitted the case back to the High Court for a fresh determination. However, we are inclined not to do so in order to prevent a miscarriage of justice which delay in itself is likely to occasion. The accident took place on 25 April 2009 when the appellant was 32 years of age. The judgment of the Tribunal was rendered on 26 February 2014. The High Court delivered its judgment on 15 April 2015. Leave was granted by this Court on 25 February 2016. Hence, we have heard the learned counsel appearing on behalf of the contesting parties on merits and proceed to resolve the dispute so as to render finality to the case.On perusing the order of the Tribunal, we find merit in the contention of the insurer that while calculating the income in paragraph 10 of its order, the Tribunal has committed an error of computation. The Tribunal has on the basis of the income tax returns for 2007, 2008 and 2009 arrived at an average income of Rs.However, the Tribunal has thereafter noted that the average income comes to Rs.Ultimately, the Tribunal proceeds on the annual income of Rs. 2,22,000/on the basis of the testimony of the claimant that he was earning Rs. 18,500/per month. This is contradictory. In our view, on the basis of the finding of the Tribunal that the average income of the claimant for the previous three years was Rs.it would be necessary to take into account the evidence of PW2 that the disability is to the extent of 55 per cent. In other words, the loss of earning as a result of the aforesaid disability would work out to Rs. 79,877/per year.8. In arriving at the quantification of compensation, we must be guided by theprinciple that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the persons capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the personHaving regard to all these facts and circumstances, we find merit in the contention that the claim for compensation on the basis that the disability was permanent was clearly not established. There was no basis to award an amount of Rs.The Tribunal has awarded an amount of Rs. 2,09,622/towards medical expenses. We accept the figure of an annual loss of income of Rs.The disability being of a temporary nature, we award compensation of Rs. 5 lakhs towards loss of income. We allow compensation of Rs. 2 lakhs towards trauma, pain and suffering.