Smt. Mohni Devi others v. M/s. Kashipur Automobiles Service others

On the basis of the pleadings of the parties, the Tribunal framed the following issues for determination:

1. Whether on 25.06.2008 at about 12:00 midnight, near village Udhawala on Afzalgarh–Jaspur road, Police Station Afzalgarh, District Bijnor, the accident occurred due to tanker No. UA-06C-2921 while attempting to save a tractor-trolley coming from the opposite direction, resulting in injuries to claimant Devdatt Joshi? If yes, what is its effect?

2. Whether on the date of the accident, the driver of tanker No. UP-06C-2921 was not holding a valid and effective driving licence? If yes, what is its effect?

3. Whether the claimant is entitled to receive compensation? If yes, to what amount and from whom?

7. While deciding Issue No.1, the Tribunal, upon appreciation of oral and documentary evidence, held that the accident occurred on the date, time and place as pleaded by the claimant. The Tribunal relied upon the testimony of P.W.1 Devdatt Joshi, the FIR, site plan, medical records and the statements of witnesses, and recorded a finding that the accident occurred when the tanker driver lost control of the vehicle while trying to save the tractor-trolley coming from the opposite direction. The Tribunal found that due to the collision with the house, the claimant fell down from the tanker 4 and sustained serious injuries leading to amputation of his right hand. Accordingly, Issue No.1 was decided in favour of the claimant.

8. While deciding Issue No.2 related to the validity of the driving licence of the tanker driver the Insurance Company pleaded that the driver did not possess a valid and effective driving licence at the time of the accident. However, the Tribunal, after examining the evidence led by the parties, including the driving licence on record and the testimony of the concerned official, recorded a categorical finding that the tanker driver Lalit Singh was holding a valid and effective driving licence on the date of the accident. Consequently, Issue No.2 was decided against the Insurance Company.

9. While deciding Issue No.3, the Tribunal held that the claimant was entitled to compensation on account of injuries sustained in the accident. The Tribunal took note of the fact that the claimant had suffered amputation of his right hand and had undergone prolonged treatment. However, without assessing the percentage of permanent disability or its functional impact on the earning capacity of the claimant, the Tribunal awarded a compensation of Rs.50,000/- towards medical expenses, disability and other heads combined. The Tribunal further held that since the tanker was duly insured and the driver possessed a valid driving licence, the liability to pay compensation was fastened upon the Insurance Company.

10. Having heard learned counsel for the parties and upon careful consideration of the material available on record, this Court finds that the Tribunal, while 5 correctly recording findings with regard to the occurrence of the accident, validity of the insurance policy and driving licence, committed a serious error in law in failing to assess compensation by taking into account the permanent disability suffered by the claimant. The medical evidence on record, including the disability certificate issued by the competent medical authority, clearly establishes that the claimant suffered amputation of his right upper limb and sustained permanent disability to the extent of 80%. The Tribunal has noticed the nature of injuries as well as the disability certificate, yet proceeded to award a lump sum compensation of Rs.50,000/- without undertaking the mandatory exercise of assessing loss of earning capacity and functional disability, rendering the award wholly inadequate and legally unsustainable. The law is well settled that in cases of permanent disability, particularly where the injured was engaged in manual labour, the assessment must focus on the functional impact of the disability on earning capacity rather than merely the percentage of physical disability. The claimant was working as a cleaner on a tanker, a vocation which requires full use of physical strength and limbs. The amputation of the right hand has, therefore, resulted in severe impairment of his earning capacity. In the facts of the present case, this Court finds no reason to take a view different from the medical assessment, and holds that the functional disability suffered by the claimant corresponds to the assessed permanent disability of 80%. The Tribunal has also returned a clear finding that on the date of the accident, the offending vehicle was duly insured and the driver was holding a valid and effective driving licence. No breach of policy conditions has been established by the 6 Insurance Company. These findings have not been even assailed before this Court. Consequently, the liability to satisfy the award rests upon the Insurance Company.

11. With regard to the assessment of income, it is true that the claimant could not produce documentary evidence to establish his exact monthly earnings. However, it is equally well settled that in cases involving workers from the unorganised sector, strict proof of income is often unavailable, and the Court is required to adopt a realistic and pragmatic approach. In Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. (2011) 13 SCC 236, the Hon’ble Supreme Court held that income of a labourer cannot be assessed at an unrealistically low figure merely for want of documentary proof and that the Court must take judicial notice of prevailing economic conditions. Similarly, in Syed Sadiq v. United India Insurance Co. Ltd. (2014) 2 SCC 735, the Hon’ble Supreme Court accepted a higher notional income for a self-employed person the absence of documentary evidence, emphasising that compensation must be just, fair and reasonable, and not illusory. In the present case, the accident occurred in the year 2008 and the claimant was employed as a cleaner on a tanker, indicating regular engagement rather than casual labour. Keeping in view the nature of employment, the period of accident, and the principles laid down in the aforesaid judgments of the Supreme Court, this Court deems it appropriate to assess the notional monthly income of the claimant at Rs.3,300/-, which reasonable, modest commensurate with the facts of the case.

12. The claimant was aged about 52 years at the time of the accident. As per the multiplier table approved 7 in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, the appropriate multiplier for the age group of 51 to 55 years is 11. The annual income of the claimant thus comes to Rs.39,600/- (Rs.3,300 × 12). Since the claimant was self-employed and there is no evidence of assured future increments, no addition towards future prospects is warranted in view of the principles laid down in Pranay Sethi (2017) 16 SCC 680. Applying the multiplier of 11, the total income for the multiplier period comes to Rs.4,35,600/- (Rs.39,600 × 11). As the claimant has suffered 80% permanent functional disability, he is entitled to compensation to the extent of 80% of the aforesaid amount towards loss of future earning capacity. Accordingly, the loss of future earnings is computed at Rs.3,48,480/- (80% of Rs.4,35,600/-).

13. In addition to loss of earning capacity, the claimant is entitled to compensation under non- pecuniary heads. The Tribunal has awarded a lump sum amount of Rs.50,000/- towards medical expenses, pain and suffering and other allied heads. Considering the nature of injuries, amputation, prolonged treatment and loss of amenities of life, the said amount, though on the lower side, is not disturbed in the absence of detailed medical bills warranting further enhancement.

14. Thus, the total compensation payable to the claimant is recalculated at Rs.3,98,480/- (Rs.3,48,480/- towards loss of future earning capacity plus Rs.50,000/- under conventional heads).

15. In view of the aforesaid discussion, the appeal is allowed. The judgment and award dated 29.03.2011 passed by the Motor Accident Claims Tribunal is modified to the extent indicated above. The claimant 8 shall be entitled to a total compensation of Rs.3,98,480/- along with interest at the rate awarded by the Tribunal from the date of filing of the claim petition till actual realization. It also appears that the Tribunal has already awarded a sum of Rs.50,000/- along with interest at the rate of 7% per annum if not deposited/paid in two months. The Insurance Company shall, therefore, be liable to pay only the balance enhanced compensation if not already paid/deposited. Accordingly, out of the total compensation of Rs.3,98,480/- as recalculated by this Court, the claimant shall be entitled to the enhanced amount of Rs.3,48,480/-. The compensation shall carry interest at the rate of 7% per annum from the date of filing of the claim petition till actual realization. The amount already paid or deposited pursuant to the award of the Tribunal shall be duly adjusted.

16. Let the T.C.R. be immediately sent back to the trial court for consignment.

17. Pending application, if any, stands disposed of accordingly. AK (Pankaj Purohit, J.)

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