Sumit Kumar Sahu v. Ranjeet Singh

Shri A.D. Kuldeep, Advocate Shri Pankaj Agrawal, Advocate Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board 22 /06/2023

1. With the consent of the parties, the matter is heard finally.

2. This appeal filed by the claimant against the award dated 09/03/2018 passed by 8th Additional Motor Accident Claims Tribunal, Raipur (C.G.) in Claim Case No.253/2017 awarding total compensation of Rs.16,97,528/- with interest @ 8% per annum from the date of application till realization, fastening liability on the Insurance Company.

3. As per the averments made in the claim petition, on 18/11/2016 appellant-claimant Sumit Kumar Sahu, aged about 25 years, earning 2 Rs.10,000/- per month as Driver, was going towards Bilaspur in Tata S bearing registration number C.G. 04 ZD 9369. When he reached near village Bhumiya, at that time driver of the vehicle (non-applicant No. 1) by driving Tanker bearing registration number C.G. 12 C 1671 (hereinafter referred to as ‘‘offending vehicle’’), in a rash and negligent manner came from the opposite side and dashed the vehicle of the injured-claimant, as a result of which appellant Sumit Kumar Sahu (claimant) sustained grievous injuries on his body and his both legs were fractured and during treatment his both legs were amputated. At the relevant time, the offending vehicle was owned by Vijay Kumar Verma/non-applicant No.2 and insured with The New India Assurance Company Limited/non-applicant No.3.

4. On claim petition being filed by the claimant under Section 166 of the Motor Vehicles Act claiming compensation of Rs.35,20,000/- under various heads, the Tribunal considering the evidence led by the parties, awarded a compensation of Rs.16,97,528/- with interest @ 8% per annum from the date of application till realization, fastening the liability on the Insurance Company/non-applicant No.3 along with non-applicant Nos. 1 & 2 jointly and severally. It is pertinent to mention here that non- applicants No. 1 & 2 remained ex parte before the Tribunal.

5. Learned counsel for the appellant/claimant submits that though he has raised various grounds in the memo of appeal, however, he is not pressing all those grounds and is assailing the award on the following grounds :- (i) that the tribunal has wrongly considered the income of the injured 3 claimant as Rs. 6,000/- per month, whereas it should have been Rs.8,000/- per month, looking to the job of the claimant. (ii) that the tribunal has not awarded any amount towards artificial legs as both the legs of the claimant has been amputated during treatment on account of injuries sustained by him in the said accident. (iii) that the amount awarded by the tribunal under other heads (pain and suffering, diet, attendant etc.) i.e. Rs.60,000/- is also on lower side which needs to be enhanced suitably.

6. On the other hand, learned counsel for the respondent No.3 / Insurance Company supported the impugned award and submits that the Tribunal considering all the relevant aspects of the matter has rightly awarded compensation, which needs no interference by this Court.

7. So far as the income of the claimant is concerned, though the claimant has pleaded that he was earning Rs.10,000/- per month as Driver, but no documentary evidence has been adduced by the claimant to substantiate the said plea. In such circumstances, the tribunal has considered the monthly income of the deceased as Rs. 6000/-, which in the considered opinion of this Court is not reasonable. Therefore, I propose to recompute the income of the claimant/injured by taking into account the fact that the injured/claimant was a driver of delivery vehicle, the incident took place on 18/11/2016, at that time, claimant was aged about 25 years young boy, his monthly income can safely be taken as Rs.7,000/- i.e. Rs. 84,000/- per annum.

8. So far as permanent disability is concerned, the claims Tribunal based on Ex.P/10 which is a Permanent Disability Certificate, has held that the 4 disability suffered by the claimant has affected on his earning, trade and work and that the appellant was doing the work of driving and both the legs are amputated above knee, whose disability has been assessed by the Medical Board as 89%.

9. In the matter of Mohan Soni vs. Ram Avtar Tomar and Others, reported in (2012) 2 SCC 267 Hon’ble Supreme Court has held in para 10,11,12, 13 and 14 as under :- "10. This Court in K. Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518 set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation. In K. Janardhan this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289, in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.

11. In a more recent decision in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, thi13s Court made the following observations: (SCC pp. 349-50) “10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage 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 5 (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (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 the percentage of loss of earning capacity as a result of the 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. (2010) 10 SCC 254 and Yadava Kumar v. National Insurance Co. Ltd. (2010) 10 SCC 341).

13. Ascertainment of the effect of the 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 disability and what he could not do as a result of the permanent disability (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 earning any kind of livelihood, or (ii) whether in spite 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 lesser scale of activities and 6 functions so that he continues to earn or can continue to earn his livelihood."

12. In the light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellant's earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors.

13. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income.

14. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%. We, accordingly, find and hold that the compensation for the loss of the appellant’s future earning must be computed on that basis. On calculation on that basis, the amount of compensation would come to Rs.3,56,400 and after addition of a sum of Rs.30,000 and Rs. 15,000 the total amount would be Rs.4,01,400. The additional compensation amount would carry interest at the rate of 9% per annum from the date 7 of filing of the claim petition till the date of payment. The additional amount of compensation along with interest should be paid to the appellant without delay and not later than three months from today”.

10. Therefore, the learned claims tribunal thought it appropriate to consider this percentage as effective in the future income of the claimant and the lack of future income earning is being assessed as damage on the basis of this percentage. The approach of the tribunal in assessing the claimant’s permanent disability as 89% is not just and reasonable because of claimant is a driver and his both legs are amputated, therefore, he is unable to do his job as driver, so he has functional disability. In the opinion of this Court, I propose to reassess the claimant’s permanent disability at 100% looking to his both legs were amputated.

11. Reverting to the facts of the present case that both the legs of the appellant have been amputated, therefore, in light of decision of Hon’ble Supreme Court in the matter of Mohan Soni (supra) and so far as non- grant of any amount towards artificial legs is concerned, considering the facts and circumstances of the case, the nature and extent of injuries sustained by the claimant in the said accident, his age i.e. 25 years, the nature of his job and the fact that on account of the injury sustained by the claimant/injured in the said accident, his both legs have been amputated during treatment. Therefore, this Court is of the opinion that the appellant is entitled for Rs.2,00,000/- towards artificial legs.

12. Further, looking to the injuries suffered by the claimant/injured in the accident, the amount awarded by the Tribunal towards other heads (pain and suffering, diet, attendant etc.) is also on the lower side and which is enhanced to Rs. 1,00,000/-. 8

13. In view of above, the claimant is held entitled for compensation in the following manner:- S. No.

6. Head Awarded by the Tribunal (Rs.) Awarded by this Court (Rs.) Income of the deceased Rs.6000/- per month Rs. 6000 x 12 = 72,000/- Rs.7,000/- per month Rs.7,000/- Rs.84,000/- (per annum) x 12 = Rs.64,080/- Rs.84,000/- Rs.64,080 x 18 = Rs.11,53,440/- Rs.84,000 x 18 = Rs.15,12,000/- Rs.4,84,088/- Rs.4,84,088/- As awarded by the tribunal. Rs.60,000/- Rs. 1,00,000/- Not given by the tribunal. Rs.2,00,000/- Loss of earning capacity @ 100% Multiplier of 18 for assessing dependency Towards medical expenses Pain & suffering, diet and attendant etc. Towards artificial legs. Total Rs.16,97,528/- Rs. 22,96,088/-

12. Since, the Tribunal has already awarded Rs.16,97,528/-, after deducting the same from the above amount, the claimant is held entitled for an additional compensation of Rs.5,98,560/-. This additional amount shall carry interest at the rate of 8% per annum from the date of claim application till its realization. However, rest of the conditions of the impugned award shall remain intact.

13. In the result, the appeal is allowed in part with modification in the impugned award to the above extent. Sd/- (Radhakishan Agrawal) Judge Kamde