Oriental Insurance Co. Ltd. Vs Ramdulal Pradhan (Calcutta High Court)
Calcutta High Court held that disability certificate shows the disability was assessed by the doctor of the Board of Contai S.D. Hospital and their expertise and experience cannot be doubted in absence of any rebuttable evidence on record. Award granted by Ld. Tribunal justified.
Facts-
Claim petition was filed on account of injury sustained by the claimant/ victim in his right leg causing permanent disablement.
On 06.06.2001 at about 9.30 hours driver of the vehicle being registration no. WB 32/2935 was driving in rash and negligent manner along Contai-Medinipur road towards Contai at a very high speed and near Kulberia knocked down the victim.
PW-3, LCC of Midnapur S.D Hospital proved the handicapped certificate which was admitted in evidence without any further objection. Manager, attached to Orthopedic Nursing Home, deposed that patient was admitted on 07.06.2001 and discharged on 18.06.2001. After appreciation of evidence on record Ld. Tribunal assessed the income of the claimant as Rs. 4,000/- per month i.e. Rs. 48,000/- per annum and after applying multiplier 18 and percentage of disability, assessed award as Rs. 5,85,112/-.
Being aggrieved, Insurance Company preferred the appeal being no. 3288/ 2013 on the ground that Ld. Tribunal should not have considered the disability certificated which was not proved by any member of the Medical Board and also on the ground that Ld. Tribunal ignored the principle of proving loss of earning capacity after the accident.
Conclusion-
I find that disability certificate which was proved by the employee of the hospital (PW-3) cannot be discredited in terms of cross-examination. Disability certificate shows the disability was assessed by the doctor of the Board of Contai S.D. Hospital and their expertise and experience cannot be doubted in absence of any rebuttable evidence on record. That apart, prolong treatment of the claimant by several doctors in several hospitals further buttressed the acceptability of the disability to the extent of 60%. Therefore, I find no ground to interfere with the observation of the Ld. Tribunal on the issue of disability.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
This appeal has been preferred against the judgement and award passed by Motor Accident Claim Tribunal, Fast Court, Alipore, south 24 Paraganas, in connection with Motor Accident Claim Case No. 15 of 2002 under Section 166 of the Motor Vehicles Act, 1988, on 29th day of May, 2013.
Claim petition was filed on account of injury sustained by the claimant/ victim in his right leg causing permanent disablement.
On 06.06.2001 at about 9.30 hours driver of the vehicle being registration no. WB 32/2935 was driving in rash and negligent manner along Contai-Medinipur road towards Contai at a very high speed and near Kulberia knocked down the victim. After the accident Contai PS case no. 176/01 dated 21.08.01 was started against the driver of the vehicle WB 32/2935 under Section 279/338 of the Indian Penal Code which was investigated and ended in charge sheet against the driver of the aforesaid vehicle.
Ramdulal Pradhan/claimant disclosed his age as 27 years and income of Rs. 5,000/- per month from his business under the name and style of M/s Ritwik Enterprise. Claimant filed claim petition with a prayer for compensation to the tune of Rs. 4,65,000/-.
Insurance Company contested the case by filing written statement denying all averments of the claim petition.
To prove the case claimant examined himself as PW-1 and corroborated the contents of the claim petition and in course of his evidence copy of FIR, charge sheet, outdoor ticket, treatment papers of different doctors, handicapped certificate, prescription, Insurance cover note, income tax return, original trade license etc. were admitted in evidence as exhibit 1to 10. In course of his evidence he stated about prolonged treatment by several doctors for considerable period and he had to incur 1,25,000/- towards treatment.
Manas Kumar Mishra, PW-2, claiming himself as eye-witness to the accident testified that the accident by the rash and negligent driving of the vehicle (Motor Cycle) bearing no. WB-32/2935.
PW-3, LCC of Midnapur S.D Hospital proved the handicapped certificate (exhibit-8) which was admitted in evidence without any further objection.
Manager, attached to Orthopedic Nursing Home, deposed that patient was admitted on 07.06.2001 and discharged on 18.06.2001.
After appreciation of evidence on record Ld. Tribunal assessed the income of the claimant as Rs. 4,000/- per month i.e. Rs. 48,000/- per annum and after applying multiplier 18 and percentage of disability, assessed award as Rs. 5,85,112/-.
Being aggrieved by he said award Insurance Company preferred the appeal being no. 3288/ 2013 on the ground that Ld. Tribunal should not have considered the disability certificated which was not proved by any member of the Medical Board and also on the ground that Ld. Tribunal ignored the principle of proving loss of earning capacity after the accident.
In opposition to that, claimant filed cross objection being no. Cot 8 of 2015 on the ground that Ld. Tribunal failed to consider the sanctity of the Income Tax Return and came to an erroneous finding by assessing monthly income of the claimant as Rs. 4,000/-.
Ld. Advocate, Ms. Gopa Das Mukherjee appearing on behalf of the Insurance Company has relied on the case of Raj Kumar Vs. Ajay Kumar & Anr. reported in (2011) 1 Supreme Court Cases 343 wherein Hon’ble Apex Court summurise the principles with regard to disability in terms of earning capacity as follows:
“We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 14. The assessment of loss of future earnings is explained below with reference to the following illustrations: Illustration `A’: The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor’s evidence, the permanent disability of the limb as a consequence Raj Kumar vs Ajay Kumar & Anr on 18 October, 2010 of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows: a) Annual income before the accident: Rs.36,000/-. b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (5400 x 17) : Rs. 91,800/- Illustration `B’: The injured was a driver aged 30 years, earning Rs.3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows: a) Annual income prior to the accident : Rs.36,000/-. b) Loss of future earning per annum (75% of the prior annual income) : Rs.27000/-. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-Illustration `C’: The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows: a) Minimum annual income he would have got if had been employed as an Engineer : Rs.60,000/- b) Loss of future earning per annum (70% : Rs.42000/- of the expected annual income) c) Multiplier applicable (25 years) : 18 d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-”
Ms. Mukherjee has further contended that no evidence has been adduced on behalf of the claimant with regard to loss of future income and therefore the award is not sustainable in law.
Per contra, Mr. Ashique Mondal Ld. Advocate, appearing on behalf of the respondent/claimant has contended the disability certificate was admitted in evidence without any objection and that was proved by an employee of the hospital and subjected to cross-examination. Mr. Mondal has further argued that income of the claimant should be considered according to Income Tax Return admitted in evidence. In support of his contentions Mr. Mondal has relied on the following decissions :-
