Dipak Kalita, Vs the Divisional Manager and Ors.

THE DIVISIONAL MANAGER and ORS, THE UNITED INSURANCE CO. LTD., DIVISIONAL OFFICE-2, BHANGAGARH, GUWAHATI-5, DIST. KAMRUP, METRO, ASSAM. INSURER OF THE VEHICLE NO. AS-01/F-8781, MAHINDRA JEEP.

¶10

2:BHAGYA KALITA

¶11

S/O BHAKAT KALITA R/O RAHABARI P.O. REHABARI GUWAHATI-8 P.S. PALTAN BAZAR DIST. KAMRUP METRO ASSAM. OWNEROF THE VEHICLENO. AS-01/F-8781 MAHINDRA JEEP

¶12

3:MD.AMJAD ALI

¶13

S/O MAFIZ ALI R/O NEW MARKET DIBRUGARH P.O. and P.S. DIBRUGARH DIST. DIBRUGARH ASSAM DRIVER OF THE VEHICLE NO. AS-01/F-8781 MAHINDRA JEEP

¶14

Page No.# 2/14

¶15

Advocate for the Petitioner : MR.R P ROY, MR.J I BORBHUIYA,MRS.K H CHOUDHURY

¶16

Advocate for the Respondent : MR.S S SHARMA, MRG JALAN,MR.G MISHRA,MS.L SARMA,MS.F KHAN

¶17

BEFORE HONOURABLE MRS. JUSTICE MARLI VANKUNG

¶18

JUDGMENT

¶19

Date : 18-03-2025

¶20

Heard Mr. JI Borbhuiya, learned counsel for the appellant. Also heard Mr. H. Buragohain, learned counsel for the respondent/Insurance Company.

¶21

2. The is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 21.06.2010, passed in MAC Case No. 847/2005 by the learned Member, Motor Accident Claims Tribunal, Kamrup, for the enhancement of the award arising out of the motor vehicle accident on 10.01.2005 at Rajapara, Kamrup district, Assam.

¶22

3. Facts of the case in a nutshell is that the claimant was injured in a motor vehicle accident which occurred due to rash and negligent driving by the offending vehicle bearing registration No. AS-01/F-8781 (jeep) on 10.01.2005 at about 5:30 pm at Rajapara while the claimant was proceeding towards Goalpara on his motor cycle bearing registration No. AS-18/6372.

¶23

4. The claimant sustained grievous injury on different parts of his body, which resulted in permanent disability of 40%. He filed an application for payment of compensation to the tune of Rs. 10,00,000/- on account of the grievous injuries and for his permanent disability of 40% for the which he could not do his normal work and therefore there was loss of earning capacity.

¶24

Page No.# 3/14

¶25

5. Notice was issued to the opposite parties. However, the opposite parties failed to appear in the Court and finally the learned Tribunal proceeded exparte. The claimant examined himself and exhibited as many as 55 documents including the accident information report, income certificate, disability certificate, age proof certificate, injury report, cash memos, bills and vouchers and other relevant documents. The disability certificates issued by the department of orthopaedics, Mahendra Mohan Choudhury Hospital and District Social Welfare Office was exhibited as Exhibit-50, which showed that the claimant/appellant was suffering from 40% permanent disability. The income certificate issued by the Circle Officer of Matia Revenue Circle was exhibited as Exhibit-47 showing that the claimant/appellant was earning Rs.1,20,000/- per annum.

¶26

6. The learned Tribunal after considering the documents exhibited and the evidences of the claimant/appellant held that the appellant/claimant proved that he spent approximately Rs.39,000/- on account of medical treatment for the injuries sustained by him in the vehicular accident, however since no doctor has been examined to prove the disability, the question of disability or corresponding loss of earning capacity cannot be decided. The learned trial court therefore awarded Rs.39,000/- on account of medical treatment and Rs.20,000/- for pain shock and suffering thus a total of Rs.59,000/-@ of 6% from the date of filing the claim petition till the date of payment was awarded to the claimant/appellant.

¶27

7. Aggrieved by the less quantum of award, the instant appeal has been filed.

¶28

8. Mr. JI Borbhuiya, learned counsel for the appellant has submitted that the

¶29

Page No.# 4/14

¶30

learned Tribunal had erred in awarding the sum of only Rs. 59,000/- which is wholly inadequate and insufficient. The learned counsel submitted that the learned Tribunal had failed to appreciate the documents exhibited as evidence by the claimant wherein 40% of permanent disability is proved. He submitted that in even though the doctor who issued the medical certificate was not examined, in view of the the disability certificate issued by the District Social Welfare Office, who is the competent authority to issue such certificates, the presence of the issuing authority and need not be insisted. The learned counsel explained that the authorities who had issued the certificates were not produced because the case had proceeded ex-parte against the opposite parties and therefore thought it unnecessary. The learned counsel relied on the judgment of the Apex Court in Bajaj Allianz General Insurance Company Private Limited vs. Union of India & Ors ., [WP(s)(C) 534/2020], wherein the Apex Court held that disability need not be proved if the disability certificate is issued by the competent authority.

¶31

9. The learned counsel for the appellant also submitted that the income certificate of the claimant showing the annual income as Rs.1,20,000/- was also issued by the Circle Officer, Matia Revenue Circle and as such, being a document issued by the Government Officer, this document exhibited as Exhibit-47 need not be proved by the Circle Officer, Matia Revenue Circle.

¶32

10. The learned counsel for the appellant also relied upon the judgment of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi & Ors ., reported in (2017) 16 SCC 680 and in the case of Sanjay Verma vs. Haryana Roadways , reported in (2014) 3 SCC 210 , which should be considered while commuting the compensation to be awarded

¶33

Page No.# 5/14

¶34

to the appellant/claimant.

¶35

11. The learned counsel thus submitted that considering the cited judgments of the Apex court, the claimant/appellant is entitled to compensation as below:-

¶36

“ Tentative Calculation

¶37

Computation of Award of Compensation

¶38

Heads Amount

¶39

Medical Expenditure- Rs. 39,000/-

¶40

Future Loss of income due to disability- Rs. 11,42,400/-

¶41

Attendant Charge- Rs.50,000/-

¶42

Conveyance, Transportation, nourishing

¶43

food special diets- Rs.1,00,000/-

¶44

Pain, Shock and suffering

¶45

and mental agony– Rs.1,00,000/-

¶46

Future medical treatment- Rs.1,00,000/-

¶47

Loss of enjoyment of life and amenities- Rs.1,00,000/-

¶48

Total amount Rs. 16,31,400/-

¶49

Age of the injured at the time of accident= 29 years

¶50

Multiplier will applied- 17 (Age group of 26-30)

¶51

Monthly income Rs. 10,000/-

¶52

40% permanent disability= 40% of Rs.10,000/-

¶53

= Rs. 4,000/-

¶54

So, monthly income will be- Rs.10,000/- + Rs.4,000/- =Rs.14,000/-

¶55

Future loss of income due to disability= Rs.14,000x12x17x40% =

¶56

Page No.# 6/14

¶57

Rs.11,42,400/-“

¶58

12. Mr. H Buragohain, learned counsel for the respondent No. 1/Insurance Company, on the other hand, submitted that the documents showing the income and the disability certificate are not proved since the person issuing the said documents were not produced before the Court to proof the same. He further submitted that on perusal of the tentative calculation made by the learned counsel for the appellant with regard to the compensation due to the appellant, the amount of Rs.1,00,000/- for conveyance, the amount of Rs.1,00,000/- for future medical treatment and Rs.1,00,000/- for loss of enjoyment of life and amenities are not justified and excessive.

¶59

13. I have considered the submissions made by both the parties and have perused the documents on record.

¶60

14. It is an admitted fact that the claimant was injured in a motor vehicle accident which occurred due to rash and negligent driving by the offending vehicle bearing registration No. AS-01/F-8781 (jeep) on 10.01.2005 and that since the accident vehicle was covered by a valid insurance policy the respondent no.1/ Insurance Company was liable to pay the compensation for the injuries sustained by the appellant/claimant due to the accident. The only point for consideration in this appeal is whether the learned trial court had erred in not taking into consideration the disability certificate and income certificate while considering the compensation amount to be awarded to the claimant.

¶61

15. On perusal of the disability certificates produced by the claimant, it is seen that the certificate issued by the department of Orthopaedics, Mahendra Mohan Choudhury Hospital and the District Social Welfare Office exhibited as Exhibit-

¶62

Page No.# 7/14

¶63

50, show that the claimant/appellant was suffering from 40% permanent disability. This court finds that because the authorities issuing the certificates were not examined before the learned tribunal, the learned tribunal did not accept the disability certificates, however, on perusal of the records it is seen that the learned Tribunal, while proceeding with the case exparte, had not inform or insist that the claimant is required to prove the disability certificates.

¶64

16. It has been held by the Apex in a number of cases that the trial court should not be a silent spectator and should take an active role to ascertain the truth. This court find it appropriate to refer to the judgment of the Apex court in the case of Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 wherein it was observed as follows :

¶65

“16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to “hold an enquiry into the claim” for determining the “just compensation”. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the “just compensation”. While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep

¶66

Page No.# 8/14

¶67

in view the First Schedule to the Workmen’s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.”

¶68

17. It is also noted that the Apex court in Bajaj Allianz General Insurance Company Private Ltd. Vs. Union of India & Ors.(Supra) , had observed as follows:-

¶69

“(iv) As far as the aspect of the insurance of certificate on disability of victims is concerned, it is reiterated that the guidelines laid down by this Court in Raj Kumar v. Ajay Kumar and Anr., (2011) 1 SCC 343 mandatorily must be followed by the MACTs, in respect of loss of income due to injury/disablement. The District Medical Board is also directed to follow the guidelines issued by the Ministry of Social Justice and Empowerment, Government of India vide Gazette Notification S. No. 61, dated 05.01.2018, for issuance of disability Certificate in order to bring Pan India uniformity. The consequence is that the MACT would ascertain that permanent disability certificate issued by the District Medical Board or body authorized by it is in accordance with the Gazette Notification alone. Once the certificate is issued in this manner, the same can be marked for purposed of being taken into consideration as evidence without the necessity of summoning the concerned witness to give formal proof of the documents unless there is some reason for suspicion on the document.”

¶70

18. In light of the above decisions of the Apex Court, this Court has scrutinized the Disability Certificate exhibited(Exhibit -51) by the claimant, which was issued by the Social Welfare Department wherein, the department had relied upon the medical certificate issued by the Medical board, MMC Hospital, therefore this Court finds it appropriate to accept the Disability Certificate even

¶71

Page No.# 9/14

¶72

though the issuing Authority was not produced before the Court to prove the 40% disability since the District Social Officer can be considered the appropriate authority in the instant case.

¶73

19. It is also noted that the Apex Court had observed in a number of cases that the physical disability caused due to an accident must be judged with reference to the nature of work being done by the injured for assessing award of compensation.

¶74

This Court finds it apt to refer to the Judgment of the Apex Court in the case of Raj Kumar v. Ajay Kumar and Anr., (2011) 1 SCC 343 also held as follows:-, "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 (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.

¶75

11. What requires to be assessed by the Tribunal is the effect of the permanent

¶76

Page No.# 10/14

¶77

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).

¶78

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 functions so that he continues to earn or can continue to earn his livelihood."

¶79

20. In light of the decisions if the Apex court in Raj Kumar v. Ajay Kumar and Anr. (Supra), it has to be seen in the present case, whether the 40%

¶80

Page No.# 11/14

¶81

disability is to be taken while calculating the loss of income. On the perusal of the Disability Certificate issued by the District Social Welfare Officer, the disability of 40% and the certificate issued by the Department of Orthopedics, Mahendra Mohan Choudhury Hospital, Panbazar, it is seen that the claimant is said to suffer pain, stiffness, restriction of all movement in his right knee and also muscular weakness in the right leg following compound fracture BBLL. Thus the disability is seen to be only on the right leg and not a disability of the whole body. The claimant had stated that he was a businessman and an agriculturalist, wherein his annual income was Rs. 1,20,000/-. That because of his permanent disability, his business has been completely closed and he could also not do any agricultural work. The evidence adduced by the claimant does not show the type of business done by the claimant nor is there any detail regarding the type of agriculture work done by him to earn his living. Thus, considering the nature of injury sustained by him which is disability on his right leg has restricted his movements, this Court holds that the disability to perform his duties as a businessman and an agriculturalist is not a disability for the whole body which would make him incapable of earning his living by 40%. Therefore, this Court finds that it would be appropriate to take the permanent disability at 20% instead of 40%, in the absence of any evidence showing how the claimant could not continue with his business due to the restriction of movement of his right leg.

¶82

21. Regarding the income of the claimant, it is seen that the Income Certificate was issued by the Circle Officer, Matia Revenue Circle, however, the claimant has not given even a whisper of the nature of the business by which the income is calculated as Rs. 1,20,000/- per annum and the authority who

¶83

Page No.# 12/14

¶84

issued the Income Certificate is also not produced before the Court to explained by the claimant. It is also not explained as to under what authority or how the said Income Certificate could have been issued by the Circular Officer, Matia Revenue Circle or how it came to a finding that the claimant being self employed, earned Rs. 1,20,000/- per annum.

¶85

22. For the above reason, this Court finds that the Income Certificate cannot be accepted without being proved and this Court finds that the claimant is aged 29 years and that it would be appropriate to fix the notional income of the claimant at Rs. 6000/- per month, considering the fact that there is absolutely no detail as to the nature of this private business or the nature of the income received by the claimant on being an agriculturalist.

¶86

23. This Court while considering the non-pecuniary income finds that the Apex Court in Sanjay Verma vs. Haryana Roadways (supra) had granted Rs. 3,00,000/- for pain and suffering in a case where the claimant had suffered 100% disability. Thus Court finds it fit to grant Rs. 1,00,000/- for pain and suffering of 40% disability on the right leg and Rs. 50,000/- for loss of amenities. No special diet is indicated in the documents however Rs.5000/ may be granted for Conveyance and Transportation during the treatment.

¶87

This Court also finds that there is no evidence in the medical documents submitted that the claimant is required to undergo further medical treatment and therefore, this Court finds no grounds for the claimant to be compensated for future medical treatment. From the nature of the injury requirement of attendant may be fixed at Rs.5000/-.

¶88

Future prospects maybe allowed in light of the decision of the Apex court in National Insurance Company Limited vs. Pranay Sethi & Ors( supra).

¶89

Page No.# 13/14

¶90

24. Accordingly, this Court finds that it would be appropriate to calculate the just and reasonable compensation in the following matter:-

¶91

Age of the injured at the time of accident= 29 years

¶92

Multiplier will applied- 17 (Age group of 26-30)

¶93

Monthly income Rs. 60,000/-

¶94

20% permanent disability= 20% of Rs.6,000/-= Rs. 1,200/-

¶95

So, monthly income will be- Rs.6,000/- + Rs.1,200/- =Rs.7,200/-

¶96

Future loss of income due to disability= Rs.7,200x12x17x20% = Rs. 2,93,760/-“

¶97

From the above findings, the compensation entitled would be as follows:

¶98

Medical Expenditure- Rs. 39,000/-

¶99

Future Loss of income due to disability- Rs. 2,93,760/-

¶100

Attendant Charge- Rs. 5,000/-

¶101

Conveyance and transportation- Rs. 5,000/-

¶102

Pain, Shock and suffering

¶103

and mental agony - Rs. 1,00,000/-

¶104

Loss of enjoyment of life and amenities- Rs. 50,000/-

¶105

Total amount Rs. 4,92,760/-

¶106

25. The appellant is thus found to be entitled to an enhance amount of Rs. 4,92,760/-(Rupees four lakh, ninety two thousand, seven hundred sixty) only to be paid by the respondent Insurance company @ 6% from the date of filing the claim petition till the date of payment any amount of the awarded compensation if already received by the claimant shall be deducted and thereafter the enhanced amount is to be deposited before the court of

¶107

Page No.# 14/14

¶108

Motor Accident Claims Tribunal, Kamrup, Guwahati within 2 (two) months from the date of this order for the disbursement of the same to the claimant/appellant.

¶109

26. Accordingly, MAC App. No. 59 of 2011 stands disposed of as above.

¶110

JUDGE

¶111

Comparing Assistant

Dipak Kalita, v. the Divisional Manager and Ors.

Case brief

What is this about?

What did the court decide?

Dipak Kalita, v. the Divisional Manager and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Chan Ali Sk and 2 Ors. Vs Narayan Konwar and Anr.

Md. Kamal Uddin Ahmed Vs Ms. Mamata Hojai

Nur Ahmed Vs R C Jain and Ors.

Cholamandalam M S General Insurance Co. Ltd. Vs Smti Tulsi Devi and Anr.

Bonti Hazarika Vs Preetom Saikia and Ors.

Akkas Ali Vs Mamata Hojai