Allowed

Awadhesh Kumar Tiwary v. Vijay Kumar Jaiswal

Jharkhand HC22 Nov 2023MA/597/2018

Case brief

AI extract

What is this about?

This miscellaneous appeal challenged a compromise award of Rs. 3,24,314 given to a motor vehicle accident victim. The High Court allowed the appeal, quashed the award for mechanically equating limb disability to loss of earning capacity without assessing actual earning impact as per Raj Kumar, and remanded the case for a fresh inquiry.

What did the court decide?

Impugned award is set aside and appellant's miscellaneous appeal is allowed; Tribunal directed to examine Medical Board and decide case afresh.

Awadhesh Kumar Tiwary Vs Vijay Kumar Jaiswal — Medical Negligence | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellant Jurisdiction) M.A. No.597 of 2018

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Awadhesh Kumar Tiwary, age about 52 years, son of Late Muksudan Tiwary, resident of Qtr. No. F-82, Mandir Colony, P.O. +P.S.-Dugda, District-Bokaro(owner of the alleged offending ambassador car)

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…. Appellant/Opp. Party No.1

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Versus

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Vijay Kumar Jaiswal, son of Late Anant Lal Jaiswal, resident of Village-Dugda, Tola-Chandwadih, P.O.+P.S.-Dugda, District-

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Bokaro ... .... .... Respondent/Plaintiff/Claimant

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Ajay Kumar Jaiswal, son of Late Anant Lal Jaiswal, resident of village-Dugda Tola-Chandwadih P.O.+P.S.-Dugda, District-

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Bokaro (Owner of the Motorcycle No.JH-10B-5772)

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... .... .... Respondent/Opp. Party No.2 ------

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Coram: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA -----For the Appellants : Mr. Atanu Banerjee, Advocate For the Resp. No.1 & 2 : Mr. Randhir Kumar, Advocate.

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JUDGMENT

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CAV On 16/10/2023 Pronounced On 22 /11/2023

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Heard learned counsel for the parties.

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Present miscellaneous appeal has been preferred by the appellant being aggrieved and dissatisfied with the judgment/award dated 30.07.2018 passed by Mr. Ghulam Haidar, learned District Judge-II-cum-P.O., M.A.C.T., Bermo at Tenughat in Motor Vehicle Claim Case No.60 of 2004, whereby and whereunder an award of Rs.3,24,314/- along with simple interest @ 7 % per annum has been passed in favour of the claimant/respondent no.1 under Section 166 of the Motor Vehicles Act, 1988.

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Factual Matrix of the case giving rise to the appeal is that on 24.11.2003 at about 8 A.M., the claimant Vijay Kumar Jaiswal along with one Basant Kuamr Singh was going on a motorcycle bearing registration no.Jh-10B-5772 from Shopping Centre at

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M.A. No.597 of 2018

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Dugda, District-Bokaro to the Mandir Colony, Dugda. The claimant was a pillion rider. It is alleged that when the motorcycle reached near the Mandir Colony, all of a sudden opposite party No.1, Awadhesh Kumar Tiwary(appellant) driving white Ambassador car bearing registration No.WGM-1857 in rash and negligent manner coming from opposite direction dashed the motorcycle, due to which, claimant and the said Basant Kumar Singh fell down on road and sustained grievous injuries. It is alleged that claimant was immediately taken to Pandit Clinic, Dhanbad for his treatment. Later on, due to his multiple injuries and compound fracture and dislocation of his right hip joint bone, he was in a critical condition, hence referred to Popular Nursing Home, Patna where he undergone treatment for about one month. When the claimant returned from Patna, he came to know that inspite of information given to the local police station about the accident, no F.I.R. was registered. Hence, he lodged a complaint bearing Complaint Case No.64 of 2004, which was forwarded to the concerned police station under Section 156(3) of the Cr.P.C. for registration of the case and investigation. Accordingly, Dugda P.S. Case No.08 of 2004 dated 21.04.2004 was registered under Section 279, 337, 338 of I.P.C and after completion of investigation, charge sheet was submitted against opposite party No.1 for the offences under Sections 279, 337 and 338 of Indian Penal Code. It is alleged that the age of the claimant on the date of occurrence was 26 years and he was earning Rs.5,000/- per month from business and private service and due to the said accident, the claimant has become completely disabled and permanently handicapped and incurred huge expenses in his treatment. Therefore, the claimant has claimed Rs.4,00,000/- as compensation.

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After service of notice, opposite party no.1/appellantOwner-cum-Driver of the offending vehicle, Ambassador Car bearing registration no.WGM-1857 appeared before the learned Tribunal and filed his written statement and contested the claim case.

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M.A. No.597 of 2018

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After considering the oral as well as documentary evidence adduced by parties, the learned Tribunal has decided all the issues in favour of the claimant and against the opposite party No.1/appellant and awarded the claim to the tune of Rs.3,24,314/along with simple interest @ 7 % per annum from the date of filing of the claim petition till its realization, which is assailed in this appeal.

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Learned counsel for the appellant has submitted that false case has been instituted by the claimant in order to squeeze money from the appellant. The claimant has miserably failed to prove the accident caused by the appellant by use of motor vehicle at public place. The criminal case lodged in connection with the alleged accident has been culminated into the acquittal of the appellant from the charges leveled against him. In the instant claim case, no eye witness of occurrence has been examined and documentary evidence adduced by the claimant does not correspond with the happening of accident. No injury report has been brought on record and no concrete material has been placed on record to assume any accident, which is creation of afterthought false implication. Learned Tribunal has miserably failed to properly consider the documentary evidence by the appellant and has passed an illegal and perverse award, which is fit to be set aside.

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It is further submitted that the calculation of compensation on the basis of permanent disabilities resulting in lower limb (hip joint) of 51% functional disability and earning capacity of the claimant is based upon conjuncture and surmises. Non examination of any member of the Board of doctors, who examined and issued Disability Certificate (Ext.-3) vitiates the whole approach of the learned Tribunal regarding 51% functional disability and earning capacity/economic loss can not be ascertained. Learned counsel has placed reliance upon reported judgment in rendered in Raj Kumar v. Ajay Kumar & Anr reported in (2011) 1SCC 343 .

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M.A. No.597 of 2018

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Per contra - Learned counsel for the respondents has submitted that the claimant has proved its case beyond doubt through oral as well as documentary evidence within his possession and power which has been reportedly considered by the learned Tribunal. Hence, there is not illegality and infirmity in the impugned award calling for any interference.

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Having considered the rival contentions of the parties and examination of record, I find that apart from the medical bills of total Rs.9,694/- (Ext.4,4/23), permanent disability certificate of the claimant dated 06.10.2005 (Ext.-3) has been filed, which appears to be issued by Medical Board, Bokaro constituted by the order of Civil Surgeon. It reveals that post traumatic dislocation of right hip causing 51% permanent physical disability has been found which is not likely to be improved.

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From perusal of the impugned award, it also transpires that the learned Tribunal has assumed percentage of loss of earning capacity of the claimant on the basis of 51 % of disability shows in the Disability Certificate, which is not justified in law. Functional disability as a whole must be considered on the basis of medical evidence in order to ascertain the earning capacity.

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In the case of Raj Kumar (supra), the Hon’ble Apex Court has held that 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. The extent of disability of a limb(or part of the body) in terms of a percentage of the total functions of that limb, obviously can not be assumed to be the extent of disability of the whole body. Where the claimant suffers a permanent disability as a result of injuries, the assessment of 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. 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

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M.A. No.597 of 2018

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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).

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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. 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.

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When compensation is awarded by treating the loss of further earning capacity as 100 % (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear or a token or nominal amount may have to be awarded under that head.

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14 If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage or disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. Mere production of a disability certificate or discharge certificate will not be proof the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-examination. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board and refer the claimant to such Medical Board for assessment of the disability.”

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M.A. No.597 of 2018

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In view of the aforesaid discussions and reasons, it is quite obvious that the learned Tribunal without examining any member of the Medical Board in relation to the disability certificate of the claimant (Ext.-3) has wrongly assumed the functional disability of claimant is 51% of whole body and equated it with loss of earning capacity which requires to be reconsidered. The Learned Tribunal is directed to examine any member of the Medical Board constituted in this case for issuing disability certificate to the claimant and decide the case afresh in the light of guidelines issued by the Hon’ble Apex Court in the case of Raj Kumar(supra) .

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In view of the aforesaid discussion and reasons, impugned award is set aside and this Miscellaneous Appeal is allowed. 17. I.A. Nos.818 of 2022 and I.A. No.2700 of 2023 are disposed off.

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(Pradeep Kumar Srivastava, J.)

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Pappu/N.A.F.R.

Awadhesh Kumar Tiwary v. Vijay Kumar Jaiswal

Case brief

What is this about?

What did the court decide?

Awadhesh Kumar Tiwary v. Vijay Kumar Jaiswal

Case brief

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What did the court decide?

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