Allowed

United India Insurance Co. Ltd. v. Ramayan Prasad and Another

Allahabad HC16 Jan 2019FAFO/1391/2003

Case brief

AI extract

What is this about?

In this appeal against a motor accident claim award, the Court reviewed the assessment of permanent disability and loss of future earnings. The Court held that a limb-specific disability percentage cannot equate to whole-body disability for compensation. It recalculated the compensation based on a corrected whole-body disability percentage of 10% and awarded Rs. 1,50,000.

What did the court decide?

Compensation awarded by the Court is Rs. 1,50,000/- against the insured vehicle owner.

United India Insurance Co. Ltd. Vs Ramayan Prasad… — Motor Accident Claims | Allahabad HC (2019)

¶1

Court No. - 25

¶2

Case :- FIRST APPEAL FROM ORDER No. - 1391 of 2003

¶3

Appellant :- United India Insurance Co. Ltd. Respondent :- Ramayan Prasad & Another Counsel for Appellant :- A.C. Nigam Counsel for Respondent :- Rajeev Mishra

¶4

Hon'ble Ram Krishna Gautam,J.

¶5

This appeal under Section 173 of Motor Vehicle Act, 1988, has been filed by United India Insurance Company Ltd. against claimant Ramayan Prashad and owner of the offending vehicle Ishteyak Ahmad against judgment and award dated 10.03.2003 of Motor Accident Claim Tribunal/Additional District Judge, Court No. 9, Deoria, in Motor Accident Claim Petition No. 115 of 1999 (Ramayan Vs. Ishteyak and another), whereby an award of compensation of Rs. 2,96,671/- with 9 percent interest from 2001 till full payment has been made, with this contention that the Tribunal failed to appreciate the facts and law placed before it. Fracture injury over right hand was not of such nature which may make claimant permanently disable from doing his normal function duties. Simply relying upon the prescriptions of a private doctor and forged/manufactured bills passed the award. It was categorically admitted by the claimant in his cross examination that during the period of treatment and subsequent to it no loss of salary was there, rather full salary with promotional benefits is in continuous but huge amount of loss was made which ought to be maximum of Rs. 25,000/-. The claimants never suffered any financial loss, hence this appeal.

¶6

Heard learned counsel for both sides and gone through the record.

¶7

The claim petition by Ramanyan Prashad for his own injury was filed before the Tribunal for an accident of 01.02.1999, in which he has suffered injury at 6:00 A.M. by a rash and negligent driving of truck No. UP780175, being driven rashly and negligently by driver, of which opposite party No. 1, was the owner. The claimant sustained injury in above accident and was referred to district hospital as well as clinic of Dr. T.N. Gupta where he got the treatment and huge amount was spent. The truck was insured by United India Insurance Company Ltd which was valid and effective and was being driven by driver with valid driving license within the terms of the police. The claimant sustained a permanent disability of 50 per cent and for this, this claim petition. Written statement of Driver and the owner of offending vehicle, was with denial of facts and claimed amount to

¶8

be exorbitant and excessive. The Tribunal framed issues, took the evidence and passed the impugned judgment and award.

¶9

The main assail by learned counsel for appellant is about the permanent disability and compensation awarded on above score. The admitted fact is that the claimant was a Government servant with a fixed earning. He sustained injury. The driver of the truck was chargesheeted, he was found to drive the truck rashly and negligently and causing this accident. Truck was validly and effectively insured by Insurance Company-appellant. The driver was well within the terms of the policy and was driving with valid and effective driving license. Hence by these, admitted facts defences, available under Section 149 of Motor Vehicle Act, 1988 are not being pressed by learned counsel for the appellant except that the permanent disability and quantum of compensation and has been taken on the wrong perception of the law. The permanent disability was not taken into correct perspective and for this the law propounded by Hon'ble Apex Court in SLP (C) No. 10383 of 2007 (Raj Kumar Vs. Ajay Kumar & another) 2010 LawSuits (SC) 281 has been pressed. Hon'ble Apex Court while enlarging the provision of 163A and 166 with Schedule II of Motor Vehicle Act, 1988, in an accident claim regarding assessment of loss of future earning due to permanent disability has propounded in Para 4 :

¶10

4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C.K. Subramonia Iyer vs. T. Kunhituttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).

¶11

Again in Para 5:

¶12

5. The heads under which compensation is awarded in personal injury cases are the following :

¶13

Pecuniary damages (Special Damages)

¶14

(i) Expenses relating to treatment, hospitalization, medicines,

¶15

transportation, nourishing food, and miscellaneous expenditure.

¶16

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :

¶17

(a) Loss of earning during the period of treatment;

¶18

(b) Loss of future earnings on account of permanent disability.

¶19

(iii) Future medical expenses.

¶20

Non-pecuniary damages (General Damages)

¶21

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

¶22

(v) Loss of amenities (and/or loss of prospects of marriage).

¶23

(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item

¶24

(i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability.

¶25

As held in Para 6 deals with disability and which propounds this:

¶26

6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a

¶27

person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.

¶28

"Permanent disability and percentage of permanent disability as exposed by doctors remains with reference to whole as has been propounded in Para 7:

¶29

7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.

¶30

8. Para No. 8 as follows:

¶31

8. 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, 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 (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. What

¶32

requires to be assessed by the Tribunal is the effect of the permanently 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 terns 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 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) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).

¶33

Now, the Court had directed that the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:

¶34

(i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

¶35

Now, in case in hand the only injury over the right hand in which there was fracture of radius and owing to it there was stiffness in it along the stiffness over his shoulder and on this ground, the disability was of 30 per cent and this was with regard to movement and use of right hand itself i.e. net disability of 30 per cent of whole body. Rather it was disability in the form of 10%+20% because of stiffness in the shoulder and the radius of the right upper limb. This can never be taken as to the 30 per cent disability of whole body for payment of award. But the Tribunal erroneously took 30 per cent of disability for taking the amount of compensation to be paid to claimant. Hence, apparently it was wrong appreciation of evidence and application of law.

¶36

No documentary evidence regarding the admission in the hospital and expenses of treatment was there on record as has been held by the Tribunal. But the overall expenses of Rs.

¶37

50,000/- in the medical treatment has been taken by the Tribunal and this was said by the claimant in the petition which was filed by him that during treatment he has spent Rs. 50,000/- and this was taken by the Tribunal but learned counsel for the appellant is not assailing this amount.

¶38

The cash in hand salary has been taken to be Rs. 51,99/per month which has been proved by PW-4 in his oral testimony and this partial disability owing to stiffness in the right hand and shoulder amounting 30 per sent was not disability with regard to whole of the body, which may reasonably and justly be of 10 % disability of whole of body.

¶39

Now, on the basis of the counting and conclusion, the monthly income comes to Rs. 5,199/-, the annual income comes to Rs. 62,388/- though being a Government servant and fetching full salary without any loss but notional loss because of above stiffness and disability at the rate of 10 per cent will amount to Rs. 6,238/- and on the basis of admitted factor 15, it will amount to Rs. 93,582/- and the medical expenses admitted by the Tribunal of Rs. 15,825/-, it comes to Rs. 1,09,407/- this was the total pecuniary expenses. The medical officer has proved that the claimant will require physiotherapy, he has suffered pain and suffering and in view of the above treatment 40,593/- is awarded by this Court.

¶40

From the arguments advanced by learned counsel for both parties including Insurance Company and the admission of withdrawal of Rs. 1,40,000/- from the compensation awarded by Tribunal, this appears to be just and appropriate compensation of Rs. 1,50,000/- to claimant-respondent.

¶41

This appeal is being decided accordingly. Order Date :- 16.1.2019 Kamarjahan

United India Insurance Co. Ltd. v. Ramayan Prasad and Another

Case brief

What is this about?

What did the court decide?

United India Insurance Co. Ltd. v. Ramayan Prasad and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dinesh Kumar and 02 Others Vs State of Up and Another

Pranjal Singh Alias Raj Thakur Vs State of Up and Another

Lekh Ram and 04 Others Vs State of Up and 02 Others

Shaanu Vs State of U.P.

Maiya Deen and Others Vs Ram Pal Singh and Others

Ujagar Singh and Another Vs Smt. Satrupa and Others