1. Heard Mr. S. K. Goswami, the learned counsel for the appellant. Also heard Mr. M. Talukdar, the learned counsel for the respondent/claimant.
2. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred by the Oriental Insurance Company Limited, impugning the judgment and award dated 11.09.2023, passed by the Motor Accident Claims Tribunal, Cachar, Silchar, in MAC Case No. 1411/2016. By the aforesaid judgment and award, the Motor Accident Claims Tribunal, Cachar has awarded a compensation amount of Rs.34,37,052/- to the claimant and directed the present appellant to pay the same with an interest at the rate of 7% per annum from the date of filing of the claim petition. The appellant is mainly aggrieved with the quantum of compensation awarded to the claimant by the Motor Accident Claims Tribunal.
3. The facts relevant for consideration of the instant appeal, in brief, are that on 22.10.2016, the claimant, namely, Md. Saddam Hussain Barbhuiya, after closing his workshop, was standing on the extreme side of a road near Vairengtee Bazar for boarding on any vehicle to his home, but all on a sudden, one Maruti Van bearing Registration No. AS-11-G-7891, which was proceeding from Chhimveng, Vairengtee towards Dholai side, being driven in a very rash and negligent manner, knocked him down and the wheel of the said Maruti Van ran over his right leg. As a result of the said accident, the claimant sustained grievous injuries on his person and was immediately shifted to Silchar Medical College and Hospital and was treated there as an indoor patient.
4. During his treatment, his right leg has to be amputated below the knee for saving his life. The claimant, thereafter, approached the Motor Accident Claims Tribunal, Cachar, Silchar, by filing an application under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained by him in the aforementioned motor vehicular accident. On the basis of his application, MAC Case No. 1411/2016 was registered.
5. During the inquiry, the owner of the offending vehicle did not appear before the Tribunal and the inquiry proceeded ex-parte against him. The driver of the offending vehicle as well as the Insurance Company (present appellant) contested the claim of the claimant by filing separate written statements. On the basis of the pleadings of the parties, the Motor Accident Claims Tribunal framed following issues:-
"1. Whether the claimant, Md. Saddam Hussain Barbhuiya sustained injuries and consequent permanent disability as a result of road traffic/motor vehicle accident which occurred on 22.10.2016 at about 6:10 PM at Vairengtee, Zalen Ven, under the jurisdiction of Vairengtee Police Station?
2. Whether the accident occurred due to rash and negligent driving of the OP No. 2/driver of the alleged offending Maruti Van bearing Registration No. AS-11-G-7891?
3. Whether the claimant is entitled to any compensation? If so, what is the just and reasonable amount of compensation? AND
4. By whom amongst the opposite parties the same is payable?”
6. In support of his claim, the claimant adduced evidence of two witnesses, namely, himself as PW-1 and a Medical Officer as PW-2. The Insurance Company did not adduce any evidence in defence. Ultimately, by the judgment and award which has been impugned in this appeal, the claimant was awarded compensation in the manner as already described in foregoing paragraphs of this judgment.
7. Mr. S. K. Goswami, the learned counsel for the appellant has submitted that the claimant sustained injuries resulting in the amputation of his right leg below knee level. He submits that since the claimant was a motor mechanic, he only sustained partial permanent disability and, as such, loss of his earning capacity ought to be assessed. As per the schedules provided in Employees' Compensation Act, 1923, which is 50% in case of any amputation below knee level. He submits that the Motor Accident Claims Tribunal had erred in assessing the loss of earning capacity to the extent of 70%.
8. He submits that the percentage of disability suffered by the claimant cannot, in all cases, be equated with the loss of future earning capacity as the capacity to earn depends on various factors and it may not always be directly proportional to the percentage of permanent disability suffered by the claimant. He submits that in the instant case, loss of earning capacity ought to have been assessed at 50% in accordance to the Schedule-I of the Employees’ Compensation Act, 1923.
9. The learned counsel for the appellant has also submitted that when the compensation is awarded to a claimant treating loss of future earning capacity to be at 100% or even anything more than 50%, the need to award compensation separately under the head loss of amenities or loss of expectation of life disappears and as such only a token or nominal amount may have to be awarded under those heads, however, the Trial Court erred in awarding Rs.5,00,000/- (Rupees Five Lakhs) against pain and suffering and amenities and Rs.2,00,000/- Lakhs against loss of conjugal life even after assessing loss of future earning capacity to be at 70%. He submits that this has only resulted into duplication of compensation award as observed by the Apex Court in the case of "Raj Kumar Vs. Ajay Kumar" reported in "(2011) 1 SCC 343".
10. The learned counsel for the appellant has further submitted that the Tribunal also erred in assessing the monthly income of the claimant at Rs.13,500/- (at the rate of Rs.450/- per day). Though, the claimant was unable to produce any documents in support of his contention regarding his monthly income, however, he submits that the Tribunal made guesswork in assessing the monthly income of the claimant and has erred in computing his monthly income. He submits that the Tribunal ought to have taken notional income of Rs.10,500/- (at the rate of Rs.350/- per day) as notified by the Government of Assam as the rate of wages for skilled worker other than IIT certificate holder in its notification No. ACL 43/2004/56, dated 04.01.2016. He submits that accordingly the quantum of compensation awarded to the claimant may be reduced after considering the submissions made by him. In support of his submission, the learned counsel for the appellant has cited following rulings:-
1. "Parminder Singh v. New India Assurance Company Ltd. " reported in "(2019) 7 SCC 217”
2. "National Insurance Co. Ltd. v. Bimal Nath" reported in “2009 (2) GLR 62”
3. “Lalan D. @ Lal v. The Oriental Insurance Company Limited” reported in “(2020) 9 SCC 805”
11. The learned counsel for the appellant has also submitted that the compensation awarded to the claimant was on higher side even than what has been paid for by the claimant in his claim petition. He submits that though the claimant, in Para No. 22 of his claim petition, had claimed a total compensation of Rs.28,96,000/- only, however, the Motor Accident Claims Tribunal had granted Rs.34,37,052/- which is much more than what was even claimed by the claimant. He also submits that the claimant has also failed to even produce the charge-sheet in respect of the driver of the offending vehicle and he has only exhibited the accident information report and thus has not been able to prove negligence on the part of the driver of the offending vehicle.
12. On the other hand, Mr. M. Talukdar, the learned counsel for the respondent/claimant has submitted that the Motor Accident Claims Tribunal has rightly assessed the quantum of compensation to be awarded to the claimant after taking into consideration all aspects of the case. He, however, submits that the compensation assessed by the Motor Accident Claims Tribunal is rather on a lower side. He submits that the Motor Accident Claims Tribunal has computed the monthly income of the claimant on a lower side at Rs.400/- per day, whereas the claimant had claimed that he was earning Rs.15,000/- per month before the accident.
13. He submits that as the claimant was a motor mechanic, he is totally disabled from performing his earlier vocation due to amputation of his leg. Therefore, the loss of his earning capacity ought to have been assessed at the rate of 100% and not 70% as assessed by the Motor Accident Claims Tribunal. He submits that though there is no dispute that the claimant suffered amputation of his right leg below knee and it is a clear case where a compensation ought to have been awarded against artificial limb to be used by the claimant, which incur expenses of more than Rs.5,00,000/- (Rupees Five Lakhs). However, the Tribunal had awarded only Rs.1,00,000/- (Rupees One Lakh)against future medical income which is on a much lower side.
14. He submits that the physical permanent disability which is assessed by doctor does not always result into same amount of functional disability. He submits that it is for the doctor who treated the injured claimant to assess the extent of physical permanent disability. However, the loss of earning capacity is something that has to be assessed by the Tribunal after taking into consideration entire evidence on record. He submits that the Tribunal while assessing the loss of earning capacity has taken into consideration all the evidence on record and has assessed it at 70% which, though may be regarded as on a lower side, can never be regarded on higher side.
15. He submits that the Schedule-I of Employees' Compensation Act, 2023 is applicable in cases filed under the provisions of Employees' Compensation Act where there is a master-servant relationship between the claimant and the owner of the offending vehicle. However, in the instant case, it is for the Motor Accident Claims Tribunal to assess the loss of earning capacity, which he submits that more or less has been rightly done by the Tribunal.
16. The learned counsel for the claimant/respondent further submits that the Motor Accident Claims Tribunal, considering the fact that the claimant had to suffer immense pain and suffering due to amputation of his right leg, has rightly awarded a compensation amount of Rs.5,00,000/- (Rupees Five Lakhs) against the said head. He also submits that the Motor Accident Claims Tribunal was also right in awarding compensation towards loss of conjugal life as the accident has hindered full enjoyment of his conjugal life. As such, he submits that the compensation awarded to the claimant is not required to be interfered with in this appeal and the appeal may be dismissed. In support of his submission, the learned counsel for the claimant/respondent has cited the following rulings:-
“1.Raj Kumar Vs. Ajay Kumar " reported in"(2011) 1 SCC 343".
2. “Mohammad Masood Vs. New India Assurance Company Limited and Anr.” reported in “2025 Legal Eagle (SC) 1045”
3. "National Insurance Company Ltd. v. Mastan &Anr. " reported in"(2006) 2 SCC 641".
4.“Dinesh Singh v. Bajaj Allianz General Insurance Co. Ltd. , reported in“2014 (2) TAC 737 (SC)”
5. “Tata AIG General Insurance Company Limited v. Suraj Kumar and Ors.”reported in “2025 Legal Eagle (SC)611”
6. “Kajal Vs. Jagdish Chand” reported in “2020 (1) KLT 743 (SC)”
17. I have considered the submissions made by learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions.
18. On perusal of the impugned judgment and award, it appears that the Tribunal arrived at the conclusion regarding negligence on the part of the driver of the offending vehicle on the basis of the testimony of the claimant as well as documentary evidence adduced during evidence like the accident information report. Though, the charge-sheet was not exhibited by the claimant, however, the fact that in connection with the aforesaid accident, a police case bearing No. 59/16 under Sections 279/338/427 of the Indian Penal Code read with Section 181 of the MV Act was registered against the driver of the offending vehicle could not be controverted by the Insurance Company as it did not adduce any evidence to counter the claim of the claimant. As such, this court is of considered opinion that on the basis of the principles of preponderance of probability, the Tribunal was correct in arriving at the conclusion that it was the driver of the vehicle bearing Registration No. AS-11-G-7891 due to whose negligence the accident occurred.
19. As regards the assessment of the loss of future earning capacity of the claimant caused due to injury sustained by him in the accident, this Court is of considered opinion that the Tribunal has rightly assessed the loss of future earning capacity of the claimant to the extent of 70%.The evidence of the doctor (PW-2) to the extent that due to amputation of his right leg below knee level, the claimant suffered from physical disability to the extent of 70% is not disputed by the Insurance Company.
20. The loss of future earning capacity caused due to injuries sustained in a motor vehicular accident is dependent on many factors, like the nature of work, which the claimant was performing before the accident. It may not be the same for two different persons sustaining same kind of injuries. The same injury may affect two different persons in different ways. This has been clarified by the Apex Court in the case of “Mohan Soni Vs. Ram Avtar Tomar & Others ” reported in “(2012) 2 SCC 267” wherein the Apex Court has observed as follows:-
“8. On hearing counsel for the parties and on going through the materials on record, we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule 1 of the Workmen's Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cyclerickshaw- puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.”
21. While assessing the loss of future earning capacity due to permanent disability, the Tribunal has to first assess as to whether the disability suffered by the claimant is permanent or temporary. In the instant case, there is no dispute over the said fact. Thereafter, if the disability is of permanent nature, it has to find out as to whether the claimant is totally disabled from earning any kind of livelihood and whether in spite of permanent disability, he could still effectively carry on the activities and functions which he was earlier carrying on or whether he was prevented or restricted from discharging previous activities or functions but could carry on some other lesser scale of activity and function so that he continues to earn his livelihood.
22. Though, the Tribunal has not discussed these aspects in detail, however, from the evidence on record, it is apparent that the claimant, who was a mechanic, cannot perform his earlier work in the same manner as he was doing before the accident due to the amputation of his right leg below knee as a result of injury sustained by him in the accident. The Tribunal assessed the loss of future earning capacity at the rate of 70%, in which there may be some amount of guesswork, however, same cannot be regarded as without any basis and faulted with on that count. As such, the assessment made by the Tribunal regarding loss of future earning capacity does not require any interference by this Court.
23. As regard the assessment of monthly income of the claimant is concerned, it appears that the Tribunal has not relied on the testimony of the claimant that he used to earn Rs.15,000/- per month as he has failed to adduce any documentary evidence in support of his contention. However, this Court is of considered opinion that the Tribunal has erred in making guesswork regarding the assessment of monthly income of the claimant at Rs.13,500/-.
24. More so, when the notification No. ACL 43/2004/56, dated 4th January, 2016 providing for the rates of wages of skilled and unskilled workers was prevalent at that point of time. As per the said notification, the rates of wages of skilled worker (other than ITI certificate holder) was Rs.350/- per day and Rs.10,500/- per month. This Court is of considered opinion that the notional income of the claimant ought to have been taken by the Tribunal on the basis of the aforesaid notification which was prevalent at that point of time. As such, the monthly income of the deceased is taken at Rs.10,500/- per month only and not as Rs.13,500/- as assessed by the Tribunal.
25. As regards the compensation granted by the Tribunal to the claimant under the head pain and suffering and loss of amenities, though the Apex Court in the case of “Lalan D. @ Lal Vs. The Oriental Insurance Company Limited” (supra) has observed that when the compensation is awarded against the head loss of future earning capacity to the extent of more than 50%, the need to award compensation separately under the head“loss of amenities” or “loss of expectation of life” is not there. However, the court also held that the claimant cannot be altogether deprived from getting compensation under the head “pain and suffering”.
26. In the instant case, since the claimant has suffered several injuries on his person including the amputation of his right leg below knee, the compensation awarded by the Tribunal under the head “pain and suffering” and loss of amenities of life is treated to be only under the head “pain and suffering” and quantum of Rs.5,00,000/- (Rupees Five Lakh) against the same is not disturbed as same is found to be just quantum under the said head.
27. As regards the compensation awarded to the claimant under the head “loss of conjugal life” is concerned, this Court is of considered opinion that in absence of any evidence as regards marital status of the claimant on record, the compensation under the head loss of conjugal life ought not to have been given by the Tribunal as there was no basis for the same for the Tribunal to grant compensation under the said head. As such, the compensation granted to the claimant under the said head is cancelled.
28. Regarding the compensation awarded to the claimant against the head “future medical expenses” Rs.1,00,000/- (Rupees One Lakh only), this Court is of considered opinion that the said compensation is on the lower side as considering the fact that the claimant has suffered from amputation of his right leg below the knee in the aforesaid vehicular accident, the requirement of a prosthetic limb would be there for the claimant.
29. Moreover, the said limb would be required to be changed at least several times during his lifetime considering the age and as such, this Court is of considered opinion that the amount of compensation granted to the petitioner for future medical expenses is required to be enhanced from Rs.1,00,000/- (Rupees One Lakh) to Rs.6,00,000/- (Rupees Six Lakhs).
30. In view of the discussions made and reasons stated in the foregoing paragraph, the total compensation to which the claimant is entitled is computed as below:-
a. Income of the claimant Rs.10,500 x 12 = Rs.1,26,000/-
b. 70% of Rs.1,26,000/-= Rs.88,200/-
c. Aforesaid amount multiplied with the multiplier of 16 (Rs.88,200 x 16)= Rs.14,11,200/-
d. Loss of future prospect at the rate of 40% i.e. 40% of Rs.14,11,200 = Rs.5,64,480/-
FINAL COMPUTATION
e. Compensation against medical expenses equal to Rs.50,092/-
f. Compensation against nursing and attendant Rs.16,800/-
g. Compensation for food and special diet Rs.20,000/-
h. Compensation against conveyance Rs.10,000/-
i. Compensation against pain and suffering equal to Rs.5,00,000/-
j. Compensation against future medical expenses equal to Rs.6,00,000/-
k. Loss of earning (income) Rs.14,11,200/-
l. Loss of future prospect Rs.5,64,480/- Total (Addition of “e” to “l”)= Rs.31,72,572/-
31. Thus, in view of above computation, the claimant is entitled to get a compensation amount of Rs.31,72,572/-along with an interest at the rate of 7% per annum from the date of filing of the claim petition till realization.
32. The appellant is accordingly directed to deposit the remaining outstanding compensation amount before the Registry of this court within a period of four weeks from the date of this order after which same shall be disbursed to the claimant after proper verification.
33. This appeal is accordingly partly allowed.
34. Send back the records of the MAC Case No.1411/2016 to the concerned Tribunal along with a copy of this judgment.
35. Registry to take necessary steps.
