High Court · 2012

The findings as returned by the Tribunal as regards the accident that occurred on 04.07.2003 involving the vehicle bearing registration No.ML-08 /9497, which was insured with the respondent No.1, United India Insurance Compan y Ltd. as well as the injuries sustained by the appellant from the said accident are not in dispute by either of the parties or in the appeal. As such, those fi ndings are affirmed and further appraisal thereof is avoided. 3. The solitary question that has been projected in the appeal is t hat the Tribunal acted illegally by not accepting the Disability Certificate (Ex bt.-2) and the other medical documents (Exbts.- 6, 7, 8, 9 and 10 series), which demonstrated the disability of the appellant as received from the accident. The finding of the Tribunal has been brought under serious criticism where the Trib unal has recorded as under : (cid:28)Usually we are to be governed by the section 142 and second schedule of MV Act and schedule 1 of the Workmen’s Compensation Act, so far the question of injurie s deemed to be resulted in permanent disablement, total or partial and correspon ding loss of earning capacity consequent thereof is concerned, in as much as, ac cording to the second schedule of the MV Act disability and resultant loss of ea rning capacity is to be assessed according to schedule 1 of WC Act. The injuries and resultant disability suffered by the claimant as deposed to by PW-3 and dis close by Ex.2 does not appear to be covered by any of the clauses of partial dis ability enumerated in schedule one of the WC Act, or section 142 of the MV Act. However, schedule 2 of the MV Act is meant for a petition under section 163 A of MV Act. The present petition being u/s 166 of MV Act, it is not necessary that we must strictly follow the second schedule, although usually the spirit of the second schedule is taken note of, in deciding the cases under section 166 of MV Act(2). Notwithstanding the disability of 50% in the instant case having not com e within the purview of disability enumerated in schedule 1 of the Workmen’s Com pensation Act or section 142 of the MV Act, it cannot necessarily be said that t he petitioner has not suffered any disability at all. In case of partial disabil ity basic question is what is the corresponding loss of earning capacity for the disability alleged. Evidently the disability in the instant does not come under any of the clauses of schedule one of the WC Act, and as such the loss of earni ng capacity resulted from the disability ahs to be ascertained on the basis of t he facts and circumstances of the present case. The petitioner has not adduced a ny evidence to show as to how far his earning capacity has been affected for the injury. Evidently the claimant has not suffered any fractured injury. As per Ex .2 disability is attributed only to the weakness and pain. Since the claimant ha s failed to adduce any evidence, as to how and to what extent his earning capaci ty has been affected and disability of the claimant also having not covered eith er by schedule one of the WC Ac or sec 142 of the MV Act, it is difficult to hol d that the claimant has suffered any loss of earning capacity for the disability alleged in the instant case. (cid:29)

4. Mr. K. Bhattacharjee, learned counsel appearing for the appellan t strenuously urged this Court to assess the compensation going by the Exbt.-2 d ocument i.e. on the basis of the disability as received by the appellant to the extent of 50%. 5. The Exbt.-3 document also is in the nature of a public document issued by the Govt. of Assam for persons with disability which shows that the ap pellant is orthopedically handicapped by 50%. However, from the certificate issu ed from the Mahendra Mohan Choudhury Hospital (Exbt.-2), it appears that the app ellant only suffered weakness in his right side of his body and pain in the back following the head injury and soft tissue injury in his back which has been acc ounted for the disability to the extent of 50%. The Orthopaedic Surgeon, who iss ued the said certificate (Exbt.-2) has also deposed in the Tribunal as the PW.3. The PW.3, Dr. P.K. Padmapati deposed that he was the authorised 6. person of the District Board constituted by the District Social Welfare Board, K amrup to issue the Certificate for Locomotor Disability and to attend court to g ive evidence. The Locomotor Disablity Certificate has been issued by him as a Me mber of the District Social Welfare Board, Kamrup. He categorically stated that from the head injury, the appellant has suffered 50% permanent disability. 7. Mr. Bhattacharjee, learned counsel appearing for the appellant, quite strenuously argued to re-assess the compensation on taking the Exbt.-2 and Exbt.-3 documents into consideration.

8. On the other hand, Mr. R.K. Bhatra, learned counsel appearing fo r the respondent No.1 submitted that the certificate is vague and it does not ge nerate any confidence. The Tribunal has correctly discarded the said certificate . 9. For purpose of appreciating the rival contentions as advanced by the counsel for the parties, the records available before this Court has been s It is true that Section 142 of the Motor Vehicles Act, 1988 prov crutinised to make a just assessment of the compensation. 10. ides the meaning and purport of permanent disability as under : (cid:28)For the purposes of this Chapter, permanent disablement of a person shall be de emed to have resulted from an accident of the nature referred to in sub-section( 1) of section 140 if such person has suffered by reason of the accident, any inj ury or injuries involving :- (a) ear, or privation of any member or joint; or (b) (c) destruction or permanent impairing of the powers of any member or joint; permanent privation of the sight of either eye or the hearing of either permanent disfiguration of the head or face. (cid:29) There is no reference in this Section to the Schedule 1 of the Workmen’s Compensation Act, 1923. But, in Section 143 of the Motor Vehicles Act, 1988 it has been provided as under : (cid:28)The provisions of this Chapter shall also apply in relation to any claim for co mpensation in respect of death or permanent disablement of any person under the Workmen’s Compensation Act, 1923 resulting from an accident of the nature referr ed to in sub-section(1) of section 140 and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act. (cid:29) As such, if it is found from the medical evidence that some dest ruction or permanent impairing of the powers of any member or joint have been ca used from the injuries that can be treated as the permanent disablement. 11. This Court, after examining the Exbt.-2 and the Exbt.-3 document s has to hold that the medical opinion as tendered by the Exbt.-2 document canno t be brushed aside so easily when it is categorically stated that some parts of the body have been suffering from severe weakness i.e. permanent destruction of the bodily capacity and in the opinion of the medical experts it has reduced the ability of the appellant by 50%. There cannot be any other alternative to accep t the said finding particularly when in the cross-examination the PW.3 has categ orically stated as follows : (cid:28)The percentage of disability of the victim was assessed due to his locomotor di sability. It is not a fact that my estimation of percentage of disability is not correct in view of Ex-10(7). In Ex-2 there is no mention that the disability of the victim is permanent. (cid:29)

12. It is, however, true that the way the medical opinion has been r eflected in the certificates, creates vagueness. However, a conjoint reading of the Exbt.-2 and the Exbt.-3 documents as well as the documents annexed with the memorandum of appeal as Annexure-A, there cannot be any confusion as regards the disability. The inquiry has to be made on the basis of the expert opinion and a s such the way the Tribunal has discarded those opinion cannot be accepted by th is Court. Hence, the findings of the Tribunal as excerpted, stand interfered wit h and set aside. As such, for just compensation in terms of Section 168 of the M otor Vehicles Act the assessment requires to be redrawn. 13. According to the appellant, he had the monthly income of Rs.5,00 0/- from his seasonal stock business and he was 38 years of age at the time of t he accident. The monthly income of the appellant is assessed at Rs.3,000/- on av erage. Therefore, his annual income would be Rs.36,000/- and on consideration of the rate of disablement, the appellant would be entitled to 50% of the said amo unt, which would be multiplied by the multiplier ’15’ for arriving the loss of e arning. Thus the loss of earning comes to Rs.2,70,000/-. With the said sum, a su m of Rs.54,500/- as medical expenses and Rs.20,000/- for pain and sufferings be added. Thus the total compensation comes to Rs.3,44,500/- (rupees three lakhs fo rty four thousand and five hundred). The said amount shall carry interest @ 7% p er annum from the date of filing the claim petition till the payment is made. The respondent No.1, United India Insurance Company Ltd. is dire 14. cted to make the entire awarded sum to the extent as indicated above in the Trib unal within a period of 1(one) month from today on deducting the sum, if any, al ready paid. On such deposit, the claimant-appellant would be at liberty to withd raw the deposited amount from the Tribunal on proper identification. 15. ver, there shall not be any order as to cost. Send down the LCRs forthwith. For the reasons as stated above, the appeal stands allowed. Howe