# Reliance General Insurance Co. Ltd v. Raghav Sharan & Anr

- **Citation:** (2023) 2 ILRA 585
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-17
- **Case number:** First Appeal From Order No. 2682 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/reliance-general-insurance-co-ltd-v-raghav-sharan-anr-49715
- **Pages:** 14

## Headnote

A. Criminal Law - Motors Vehicle Act,
1988-Sections
166,
163-A
&
168Claim/Compensation-Injury case-Tribunal
did not consider future prospects- Such
issues High Court would have determined
for
itself
and
passed
an
award
straightaway, but Tribunal did not give
any finding in regard to estimating
functional
disability
sustained
by
claimant-Matter
remanded
for
reconsideration. (Para 1 to 40)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,823 of 46,528. This is a partial read: ask again with offset=39823 for what follows._

2 All. Reliance General Insurance Co. Ltd. Vs. Raghav Sharan & Anr.
585
therefore, they are required to be proved
with the aid of evidence. Once, they are
proved either way, the findings recorded
thereon are regarded as findings of fact."

8. The Apex Court further went on to
hold as under :

"15. Such appeal is then heard on
the question of admission with a view to
find out as to whether it involves any
substantial question of law or not. Whether
the appeal involves a substantial question
of law or not depends upon the facts of
each case and needs an examination by the
High Court. If the substantial question of
law arises, the High Court would admit the
appeal for final hearing on merit else
would dismiss in limini with reasons that it
does not involve any substantial question/s
of law.

16. Now coming to the facts of
this case, we find that the appeal before the
High Court did not involve any substantial
question of law on the material questions
set out above. In other words, in our view,
the Commissioner decided all the material
questions arising in the case properly on
the basis of evidence adduced by the
parties
and
rightly
determined
the
compensation payable to the respondent. It
was, therefore, rightly affirmed by the High
Court on facts.

17. In this view of the matter, the
findings being concurrent findings of fact
of the two courts below are binding on this
Court. Even otherwise, we find no good
ground to call for any interference on any
of the factual findings. None of the factual
findings are found to be either perverse or
arbitrary or based on no evidence or
against
any
provision
of
law.
We
accordingly uphold these findings."

9. As far as present appeal is
concerned,
the
so
called
substantial
questions of law framed are the questions
of
facts
and
the
findings
of
the
Commissioner on the said issues are not
perverse. As far as question (d) namely of
interest is concerned, the same is answered
against the Insurance Company in view of
the decision of the Apex Court in North
East
Karnataka
Road
Transport
Corporation Case (Supra). In Golla
Rajanna
Etc.
Etc.
Vs.
Divisional
Manager and Another, 2017 (1) TAC 259
(SC) also it has been held that under
Section 30, the High Court cannot enter
into the arena of facts unless they are
proved to be perverse.

10. In view of the above, the appeal
fails and is dismissed. The so called
questions of law framed by the Insurance
Company are answered against it. In fact
the substantial questions of law raised are
the questions of fact.

11. Interim relief, if any, shall stand
vacated
forthwith.
The
amount
be
disbursed to the claimant forthwith.
----------
(2023) 2 ILRA 585
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 2682 of 2017

Reliance General Insurance Co. Ltd.
 ...Appellant
Versus
Raghav Sharan & Anr.
 ...Claimants/Respondents

Counsel for the Appellant:
586 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Sushil Kumar Mehrotra

Counsel for the Respondents:
Sri Ram Singh, Sri S.K. Singh Yadav

A. Criminal Law - Motors Vehicle Act,
1988-Sections
166,
163-A
&
168Claim/Compensation-Injury case-Tribunal
did not consider future prospects- Such
issues High Court would have determined
for
itself
and
passed
an
award
straightaway, but Tribunal did not give
any finding in regard to estimating
functional
disability
sustained
by
claimant-Matter
remanded
for
reconsideration. (Para 1 to 40)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. Sarla Verma (Smt.) & ors. Vs DTC & anr.
(2009) 6 SCC 121

2. Shri Ram Kushwaha Vs U.P. St. Sugar Corp.
Ltd. thru Gen. Mgr. (2015) 2 ADJ 578

3. Raj Kumar Vs Ajay Kumar & anr.. (2011) 1
SCC 343

4. United India Ins. Co. Ltd. Vs Sanjay Dixit
(2022) 2 AWC 1596

5. Jagdish Vs Mohan & ors. (2018) 4 SCC 571

6. New India Assr. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC Online SC 822

7. National Ins. Co. Ltd. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

(Delivered by Hon'ble J.J. Munir, J.)

This appeal by the Insurance Company
is directed against the judgment and award
of the Motor Accident Claims Tribunal/
Additional District Judge, Court No.1,
Banda dated 29.05.2017, allowing Motor
Accident Claims Petition No. 39/70/2012.
By the impugned judgment and award, a
sum of Rs. 10 lakhs has been awarded by
the Tribunal for the permanent disability
sustained by the claimant-respondent in a
motor accident.

2. Heard Mr. S.K. Mehrotra, learned
Counsel
for
the
appellant-Insurance
Company and Mr. Ram Singh, learned
Counsel appearing on behalf of claimantrespondent No.1. No one appears on behalf
of the owner-respondent No. 2.

3. The facts giving rise to this appeal
are that the claimant-respondent No. 1 (for
short, ''the claimant') instituted the claim
petition before the Tribunal giving rise to
this appeal with a case that on 26.09.2011
at about half past five in the evening, he
was proceeding on a bicycle from Village
Ahila to his village. As soon as the
claimant emerged from Village Ahila and
moved on to the Banda-Baberu Road
reaching the culvert, he met one Ram
Kishan son of Basdev, a resident of Village
Poon. The claimant stood on the side of the
road and the two were talking amongst
themselves. Suddenly, a vehicle of Marshal
Max Make, bearing registration No. UP90B/9067, driven by Kalka Prasad @ Kela,
rashly, negligently and at a high speed,
approached from the Banda end. The
vehicle aforesaid struck the claimant,
causing him to be severely injured. The
claimant's son and Ram Kishan ferried him
to the District Hospital for medical aid. He
was found to have sustained grievous
injuries on his body and lower limbs, for
the treatment whereof he was referred by
the District Hospital to a higher centre at
Kanpur. The claimant was admitted for
treatment to the North Star Hospital at
Kanpur. The Doctors there advised that one
of his lower limbs was absolutely crushed
and would have to be amputated in order to
save his life. The lower part of his limb
2 All. Reliance General Insurance Co. Ltd. Vs. Raghav Sharan & Anr.
587
was, therefore, amputated. The claimant
urged that he has sustained a loss in the
sum of Rs. 10 lakhs, which he sought to
recover from the owner of the offending
vehicle
and
the
respondent-Insurance
Company (for short, ''the Insurers').

4. A written statement was filed on
behalf of Kalka Prasad son of Bhaiyadeen,
who is the driver and the owner of the
offending vehicle both. He has denied the
assertions in the claim petition generally,
but acknowledged that he is the owner of
the offending vehicle. It is also accepted
that he was driving the vehicle. It is
pleaded that the offending vehicle is
insured with the Insurers under a policy
that
was
valid
from
23.12.2010
to
22.12.2011. The claimant is not entitled to
receive any compensation. It is further said
that if the Court finds the claimant entitled,
it is the Insurers who have to make good
the compensation.

5. A separate written statement was
filed on behalf of the Insurers. They have
generally denied the claimant's case. It is
asserted that the accident did not happen on
account of the driver of the offending
vehicle driving it negligently and at a high
speed. It has been pleaded that the claimant
has not suffered any permanent disability
and is not entitled to claim compensation. It
is also the Insurers' case that the amount of
Rs. 10 lakhs claimed in compensation is
excessive and exorbitant.

6. On the pleadings of parties, the
Tribunal framed the following issues
(translated into English from Hindi):

"1. Whether on 26.09.2011 at
about 5:30 p.m. on the culvert situate at the
Banda-Baberu State Highway within the
limits of Village Ahila, falling under Police
Station Bisanda, District Banda, vehicle
Marshal Max, bearing registration No. UP90B/9067, driven by its driver Kalka
Prasad at a high speed and negligently,
struck Raghav Sharan, who was standing
on the roadside, leading him to sustain
grievous injuries?

2. Whether on the date and time of
the accident, the driver of vehicle, Kalka
Prasad held a valid and effective driving
licence and the vehicle had other valid papers
available?

3. Whether on the date and time of
accident, the vehicle, bearing registration No.
UP-90B/9067 was insured with opposite party
No. 2, Reliance General Insurance Company
Limited and the vehicle was being operated
according to the terms of the insurance policy?

4. Whether the claimant is entitled
to compensation? If yes, how much and from
which of the opposite parties?"

7. The claimant in support of his case
examined PW-1, Raghav Sharan, PW-2, Ram
Kishan, PW-3, Jawahar Lal Rajput and PW-4
Kamta Prasad. In support of the claimant's
case, a number of documents were filed, a
summary of which is detailed in the impugned
judgment. For the brevity of record, there is no
imperative to recapitulate the same. However,
the relevant of this evidence shall be referred
to during the course of this judgment.

8. The Insurers through a list, paper No.
16 Ga-1 filed the Registration Certificate,
paper No. 17-Ga, the Insurance Policy, paper
No. 18-Ga and a photostat copy of Kalka
Prasad's driving licence, numbered as paper
No. 19-Ga.

9. Issues Nos. 1, 2 and 3 were all dealt
with together by the Tribunal. All these
588 INDIAN LAW REPORTS ALLAHABAD SERIES
issues were answered in favour of the
claimants and it was held that the accident
was caused by Kalka Prasad driving the
offending vehicle at a high speed and
negligently. On the date of accident, he had
a valid and effective driving licence. Also,
the vehicle was validly insured on that date
by the Insurers.

10. Issue No. 4 was decided separately
by the Tribunal. The Tribunal accepted
evidence about the expenditure on the
treatment that the claimant incurred, which led
the Tribunal to hold that a sum of Rs.
3,46,182/- was spent in the treatment. The
Tribunal looked into the disability certificate
wherefrom it found certified a permanent
disability of 70%. In the absence of
documentary evidence, the Tribunal did not
find for the claimant that he had, from his
dairy business and agriculture, a monthly
income of Rs. 30,000/-. Indeed, the Tribunal
determined for the claimant a notional income
of Rs. 3000/-. Thereafter, the Tribunal has
proceeded to hold, rather interestingly, that a
man's life is expectedly 100 years. Since the
claimant is aged 50, the probability is that he
would live for another 25 years. The total
income for the remainder of the claimant's life
has been determined by multiplying his annual
income with a multiplier of ''25'.

11. The certified medical disability of
70% has been regarded by the Tribunal as
one leading to 75% functional disability,
proportionately depriving the claimant of
75% of his income. Out of the total income
that the Tribunal has arrived at by adopting
the multiplier of ''25', 75% has been
discounted as lost income, leading to a
figure of Rs. 6,75,000/-. This, according to
the Tribunal, is the loss of income that the
claimant has sustained. To this figure, has
been added the sum of Rs.3,46,182/-, spent
on medical treatment.

12. A further sum of Rs.2,00,000/-
has been awarded towards loss on account
of mental agony, particularly caused by the
fact that the claimant had lost one of his
limbs permanently. At the tail-end of his
reasoning, the Tribunal has opined that the
total compensation to which the claimant
would be entitled, worked out to a figure of
Rs. 12,21,182/-, but since the claimant has
sought a compensation of Rs. 10,00,000/-
alone, that is what he can be held entitled
to.

13. Mr. Sushil Kumar Mehrotra,
learned Counsel for the Insurers has
submitted that the involvement of the
offending vehicle in the accident is not
proved. To support the said submission, he
relies on the fact that the First Information
Report regarding the incident was lodged
20 days afterwards. The Investigating
Officer submitted a final report. He says
that the said fact shows that the offending
vehicle was introduced as an afterthought
and the FIR lodged after much delay to
create evidence in support of the claim.

14. The next submission is that
assuming the accident happened the way it
is alleged, the site-plan shows that the
claimant was talking to an acquaintance,
standing on the roadside. It was callous
behaviour on his part and he invited the
accident himself. Contributory negligence
is, therefore, to be apportioned.

15. About the quantum, Mr. Mehrotra
submits that the Tribunal has committed
grave error to hold that a multiplier of ''25'
would apply assuming that the claimant
would live for another 25 years. He has
referred to the judgment of the Supreme
Court in Sarla Verma (Smt.) and others
v. Delhi Transport Corporation and
another, (2009) 6 SCC 121 to urge that
2 All. Reliance General Insurance Co. Ltd. Vs. Raghav Sharan & Anr.
589
going by the Table set forth in Paragraph
No. 40 of the judgment in Sarla Verma
(supra), the claimant being in the age
bracket of 46-50 years, the applicable
multiplier would be ''13'.

16. It has next been submitted that the
compensation
worked
out
on
the
assumption that the claimant has sustained
75%
disability
is
manifestly
illegal,
inasmuch as the disability certificate speaks
about 70% permanent disability, which
cannot be equated for a like figure of
functional disability or loss of earning
capacity. There is no way that 70% medical
disability could translate to 75% functional
disability.

17. Mr. Mehrotra in the last submits
that going by the settled principles, the
compensation awarded in a motor accident
claim, should be one that is just and
reasonable. It should neither be a pittance
nor a bonanza.

18. Mr. Ram Singh, learned
Counsel for the claimant, on the other
hand, submits that the Tribunal has made
a just award and what cannot be ignored
is
that
the
claimant
has
suffered
amputation one of his lower limbs. The
injury is disabling and permanent. He
further submits that it is incorrect to say
that the injured sustained the accident on
account of his contributory negligence or
that the offending vehicle was not
involved in the accident. He has pointed
out to the oral testimony and the siteplan
to
submit
that
there
is
overwhelming evidence on record to
establish the factum of the accident, the
involvement of the offending vehicle
and the sole negligence of the driver of
the
offending
vehicle
with
no
contribution on the claimant's part.

19. Upon hearing the learned Counsel
for parties, the foremost to be determined is
the question whether the offending vehicle
was involved in the accident and if at all
there was any contributory negligence on
the injured's part.

20. The scathing attack launched on
behalf
of
the
Insurers
about
the
involvement of the offending vehicle in the
accident is primarily founded on the
belated FIR. A perusal of the FIR shows
that the explanation about the delay is to be
found in its contents. This Court must
remark that the explanation to its face is
reasonable and acceptable. The FIR was
lodged by submission of a written report to
the Superintendent of Police, Banda on
13.10.2011, on the basis whereof after the
SP's order dated 14.10.2011, the case was
registered on 16.10.2011 and a Check FIR
issued. In the written information, after
describing the accident and what followed
regarding the injured's treatment between
the District Hospital, Banda and Kanpur,
the informant, who is the claimant's son,
has stated that he went to lodge the FIR at
Police Station Bisanda, but the Police there
did not register it. Accordingly, he was
making the report to the SP.

21. It is commonplace that FIRs about
accidents are very callously dealt with by
the Police, who refuse registration for
frivolous reasons. It also needs to be taken
note of that no one from amongst the
general public dare insist with the Police to
register their case for fear of their reputed
reprisals. The Police have earned that kind
of a reputation amongst the general public
that the behaviour that is reflected in this
case, including the delay, is absolutely
consistent with an honest reporting of the
incident at the earliest through safe means.
The fact that the Police after investigation
590 INDIAN LAW REPORTS ALLAHABAD SERIES
have submitted a final report is no reason to
disbelieve the incident, particularly where
the final report was duly protested before
the Magistrate. The certified copies of the
protest etc. are on record.

22. A perusal of the testimony of PW1, Raghav Sharan indicates that he has
supported the incident in all material
particulars in his examination-in-chief. In
his cross-examination at the instance of the
Insurers, the claimant has stated that he saw
the truck number as it slowed down. It has
been admitted that the claimant knew the
owner-driver of the truck and he was the
claimant's acquaintance for about 10-15
years. The mere fact that the owner-driver
of the truck was known to the claimant is
not by itself a circumstance to infer a case
of fraudulent introduction of the offending
vehicle in the accident caused by an
unknown vehicle. There are multiple
witnesses, who have testified to the
offending vehicle's involvement, which
lends assurance to the claimant's case about
the identity of the offending vehicle. A
close scrutiny of the evidence of the
witnesses does not spare a shadow of doubt
about the involvement of the offending
vehicle and there is no reason to disbelieve
it. The site-plan drawn by the Police shows
that the offending vehicle, in fact, hit the
claimant by straying away from its path,
which shows exclusive negligence on the
part of the driver of the offending vehicle.

23. This Court is, therefore, inclined
to agree with the Tribunal regarding its
findings on Issues Nos. 1 and 2.

24. So far as the quantum of
compensation is concerned, this Court is
inclined to accept the submission of Mr.
Mehrotra that the Tribunal committed a
manifest error of law in adopting the
multiplier of '25'. The choice of the
multiplier by settled law is governed
according to the principles laid down by the
Supreme Court in Sarla Verma. Paragraph
No. 40 of the judgment in Sarla Verma
indicates the various multipliers that would
be applicable in cases of victims of motor
accidents, both fatal and non-fatal. The age
brackets have been given and for each such
bracket, the proper multiplier to be adopted
has been indicated. Going by the Table in
Paragraph No.40 of the judgment in Sarla
Verma, the injured being in the age bracket
of 46-50 years, the applicable multiplier
would be '13'. It cannot be '25', because that
is a multiplier not at all envisaged in Sarla
Verma. The highest multiplier stipulated in
Sarla Verma is '18' and nothing more. The
multiplier of ''18' can be adopted in the case
of much younger victims. So much about
the proper multiplier to be adopted in this
case.

25. So far as the entitlement of the
claimant to compensation is concerned, the
most crucial issue to be determined is the
functional disability arising from the
physical disability, medically assessed. The
document, on the basis of which the
Tribunal has inferred a 75% disability, is
the ''certificate for persons with disability'
issued by the Medical Board in the office
of the Chief Medical Officer, Banda. It
comprises three Doctors, an Eye Surgeon,
an E&T Surgeon and an Orthopedic
Surgeon. It is countersigned by the Chief
Medical Officer himself. It bears a
photograph of the injured. It shows him
without
his
right
lower
limb.
The
description of the disability is amputation
at right knee and the disability certified is
70% in figures. The certificate has been
issued on a printed proforma and this Court
must remark that the disability percentage
entered in figures is '70%', but in words
2 All. Reliance General Insurance Co. Ltd. Vs. Raghav Sharan & Anr.
591
placed in brackets it seems to be 75%. The
document, no doubt, is a public document
within the meaning of Sections 74 and 77
of the Indian Evidence Act. The formal
proof of such a document is not required. In
this connection, the principle laid down by
a Division Bench of this Court in Shri
Ram Kushwaha v. U.P. State Sugar
Corporation
Ltd.
through
General
Manager, 2015 (2) ADJ 578 is clear. But,
in this case, there does not appear to be
much quarrel about the genuineness of this
certificate; neither before the Tribunal nor
before this Court.

26. It must be remarked here that that
Jawahar Lal Rajput, Chief Pharmacist,
District Hospital, Banda, was examined on
behalf of the claimant as PW-3 and he
testified to the fact on the basis of records
that on 29.09.2011 at 8.40 p.m., the
claimant was medically examined at the
District Hospital. The medical examination
report from the District Hospital, paper No.
70-Ga1 was proved. It was testified that the
report bore the signatures of the Emergency
Medical Officer, Dr. Vineet Sachan. The
witness also said that Dr. Vineet Sachan
examined the claimant. This witness also
proved the discharge/ referral slip, referring
the claimant to a Higher Centre at Kanpur,
paper No. 40-Kha. Though, this witness did
not
specifically
prove
the
disability
certificate given the circumstances and the
fact that its genuineness has not been
disputed, besides the certificate being a
public document, it must be held duly
proved.

27. The thrust of the issue in this case
is not about the validity of the disability
certificate. The question is whether the
70% physical disability assessed by the
Medical Board translates into 70% or 75%
functional disability, as the Tribunal has
held. The Tribunal has not at all gone into
this issue. It has arithmetically inferred
from the percentage of permanent physical
disability certified by the Medical Board an
equivalent functional disability for the
claimant. In fact, the impugned judgment
and award passed by the Tribunal does not
seem to indicate that the Tribunal was
aware
about
the
distinction
between
medically certified ''permanent physical
disability' and the percentage ''functional
disability' arising therefrom. It is of prime
importance, because it is the functional
disability, which alone is relevant to
determine compensation to which the
injured is entitled. The law is well settled
that the permanent physical disability,
medically found, may not translate into the
same percentage of functional disability.

28. The determination of functional
disability depends upon multiple factors. A
three step test in this regard has been held
by the Supreme Court to be essential for
the Tribunal or Court to apply in order to
determine the percentage of the functional
disability,
arising
from
a
specified
percentage
of
permanent
physical
disability. The principles to assess the
percentage of functional disability suffered
by a victim, in consequence of a motor
accident have been laid down by the
Supreme Court in Raj Kumar v. Ajay
Kumar and another, (2011) 1 SCC 343.
In Raj Kumar (supra), it has been held:

"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
592 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. For example, if the left hand
of a claimant is amputated, the permanent
physical or functional disablement may be
assessed around 60%. If the claimant was a
driver or a carpenter, the actual loss of
earning capacity may virtually be hundred
per cent, if he is neither able to drive or do
carpentry. On the other hand, if the
claimant was a clerk in government service,
the loss of his left hand may not result in
loss of employment and he may still be
continued as a clerk as he could perform
his clerical functions; and in that event the
loss of earning capacity will not be 100%
as in the case of a driver or carpenter, nor
60% which is the actual physical disability,
but far less. In fact, there may not be any
need to award any compensation under the
head of "loss of future earnings", if the
claimant continues in government service,
though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes
the injured claimant may be continued in
service, but may not be found suitable for
discharging the duties attached to the post
or job which he was earlier holding, on
account of his disability, and may therefore
be shifted to some other suitable but lesser
post with lesser emoluments, in which case
there should be a limited award under the
head of loss of future earning capacity,
taking note of the reduced earning capacity.

15. It may be noted that when
compensation is awarded by treating the
loss of future 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 and as a
result, only a token or nominal amount may
have to be awarded under the head of loss
of amenities or loss of expectation of life,
as otherwise there may be a duplication in
the award of compensation. Be that as it
may."

29. It has also been emphasized in
Raj Kumar that the Tribunal has to play a
proactive
or
inquisitorial
role
in
ascertaining the percentage of functional
disability with reference to whole body.
This is necessary in order to determine
what just compensation would be. In Raj
Kumar, it has further been held:

"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
2 All. Reliance General Insurance Co. Ltd. Vs. Raghav Sharan & Anr.
593
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 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.

17. If a doctor giving evidence
uses technical medical terms, the Tribunal
should instruct him to state in addition, in
simple non-medical terms, the nature and
the effect of the injury. If a doctor gives
evidence
about
the
percentage
of
permanent disability, the Tribunal has to
seek clarification as to whether such
percentage of disability is the functional
disability with reference to the whole body
or whether it is only with reference to a
limb. If the percentage of permanent
disability is stated with reference to a limb,
the Tribunal will have to seek the doctor's
opinion as to whether it is possible to
deduce
the
corresponding
functional
permanent disability with reference to the
whole body and, if so, the percentage.

18. The Tribunal should also act
with caution, if it proposed to accept the
expert evidence of doctors who did not
treat the injured but who give "ready to
use" disability certificates, without proper
medical assessment. There are several
instances of unscrupulous doctors who
without treating the injured, readily give
liberal disability certificates to help the
claimants.
But
where
the
disability
certificates are given by duly constituted
Medical Boards, they may be accepted
subject
to
evidence
regarding
the
genuineness of such certificates. The
Tribunal may invariably make it a point to
require the evidence of the doctor who
treated the injured or who assessed the
permanent disability. Mere production of a
disability certificate or discharge certificate
will not be proof of 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
with reference to the certificate. If the
Tribunal is not satisfied with the medical
evidence produced by the claimant, it can
constitute a Medical Board (from a panel
maintained by it in consultation with
reputed local hospitals/medical colleges)
and refer the claimant to such Medical
Board for assessment of the disability.

19. 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 the
percentage of loss of earning capacity is the
same as the percentage of permanent
disability).

(iii) The doctor who treated an
injured claimant or who examined him
594 INDIAN LAW REPORTS ALLAHABAD SERIES
subsequently to assess the extent of his
permanent disability can give evidence
only in regard to 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.

20. 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 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

accident

(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 × 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. 27,000

(c)Multiplier applicable with

reference to age
:
17

(d)Loss of future earnings:

 (27,000 × 17) :
Rs. 4,59,000

Illustration C.-- The injured was
aged 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
Rs. 60,000

would have got if had been

employed as an engineer

:
2 All. Reliance General Insurance Co. Ltd. Vs. Raghav Sharan & Anr.
595

(b) Loss of future earning per

: Rs. 42,000

annum (70% of the expected annual
income)

(c)Multiplier applicable (25 years)

: 18

(d)Loss of future earnings: (42,000 ×
18) : Rs. 7,56,000

[Note.-- The figures adopted in
Illustrations (A) and (B) are hypothetical.
The figures in Illustration (C) however are
based on actuals taken from the decision in
Arvind Kumar Mishra [(2010) 10 SCC 254
: (2010) 3 SCC (Cri) 1258 : (2010) 10
Scale 298] .]"

30. This Court is of clear opinion, as
already said, that the percentage of physical
disability cannot arithmetically translate
into an equivalent functional disability.

31. I had occasion to consider this
question in United India Insurance Co.
Ltd. vs. Sanjay Dixit, 2022 (2) AWC
1596. In Sanjay Dixit (supra), it was held:

"10. The crux of the matter is that
a
particular
percentage
of
physical
disability cannot arithmetically translate
into an equal measure of functional
disability.
Functional
disability
would
mean the curtailment of the victim's overall
capacity on account of injuries sustained in
the accident to pursue his profession,
avocation, calling, business or service and
the resultant total of the loss of earning
capacity.
The
degree
of
functional
disability
for
the
same
measure
of
permanent disability medically certified
may be different for different occupations,
jobs or professions. It is not the doctors'
opinion about the physical disability per se
that
would
determine
the
functional
disability. It is after ascertaining from the
doctor the nature of limitations that would
result from the injuries that the Court has to
decide, bearing in mind the nature of the
occupation, profession etc. of the victim,
the degree and extent of loss to his earnings
that would ensue..."

32. In this case, the Court finds that
the Tribunal has rendered the impugned
award without the slightest of consideration
about the functional disability arising from
the medically certified 70% physical
disability. The Tribunal's assessment of the
disability as 75% appears to be without
basis because the disability certificate that
is on record clearly mentions in figures a
permanent disability of 70%. It appears that
the mention of ''seventy five' percent faintly
in words have been acted upon by the
Tribunal to accept it as a certification of
75% physical disability. Thereafter, of
course, the Tribunal has gone completely
astray to work out the percentage disability
without caring to determine the functional
disability resulting from the injury. There is
absolutely no assessment done by the
Tribunal about the way the permanent
physical disability assessed by the Medical
Board has affected the claimant's income.
The determination of functional disability
in this case may require the Tribunal to go
into the nature of the physical disability and
how it impacts the claimant's capability and
physical ability to earn his livelihood by the
means that he did. It would require
consideration of the impact of the physical
disability on the prospects of the claimant
in his job, business or profession.

33. This Court does not mean to say
that the percentage physical disability
found in this case could not produce the
same percentage of functional disability,
596 INDIAN LAW REPORTS ALLAHABAD SERIES
but then it has to be inquired into by the
Tribunal by considering the nature of the
claimant's work that he does to earn his
livelihood and how that would be affected
by the injury. It could turn out to be that the
functional disability is an equivalent
percentage of the permanent physical
disability. It could also turn out to be
something entirely different in terms of
percentage. It may require some inquiry to
be made from one of the Doctors of the
Medical Board, who have given the
disability certificate. The Doctor's evidence
would not be up before the Tribunal for
determination of the truth of it or
otherwise. It has to be carefully evaluated
to determine how the permanent disability,
given the nature of the injury, would affect
the prospects of the injured in earning his
livelihood. Here, the Doctor was never
called by the claimant as a witness. The
Tribunal also did not think it proper to call
the Doctor either. This Court is of opinion
that one of the Doctors of the Medical
Board, preferably the Orthopedic Surgeon,
should be summoned in order to enable the
Tribunal to ascertain the precise nature of
the claimant's disability and then determine
its percentage impact on the claimant's
functional
disability.
In
this
Court's
opinion, one of the Doctors on the Medical
Board, is particularly required to be
examined, which in any case ought to be
done, because the disability certificate is on
a printed proforma. It gives information
about the disability sustained broadly, and
rather,
bereft
of
much
individual
assessment.

34. This Court before proceeding
further in the matter must remark that so far
as the award of the Tribunal relating to the
medical expenses is concerned, the same is
unexceptionable. The sum of Rs. 3,46,182/-
that the Tribunal has accepted as the
medical expenditure involved for the
claimant to secure treatment is found by
this Court to be correct and is upheld.

35. The Tribunal has proceeded to
determine the loss sustained by the injured
on the basis of a notional income of
Rs.3000/-
per
month, discarding
the
claimant's case of income from agriculture
and dairy business in the sum of
Rs.30,000/-. Upon a consideration of the
entire evidence on record, this Court is in
agreement with the Tribunal so far as the
monthly income of the claimant is
concerned. It is, therefore, held that the
claimant's income has to be worked out on
that basis before the accident, at the
relevant time, without anything added to it.
This is not to say that nothing is to be
added towards future prospects. The
claimant had a monthly income of Rs.
3000/-. This finding of the Tribunal is also
affirmed.

36. The applicable multiplier would,
of course, be '13' and not the fanciful figure
of '25' as held by the Tribunal, already
referred to hereinbefore. The Tribunal has
awarded a compensation for mental pain
and suffering, liquidating it at a figure of
Rs. 2,00,000/-. In the opinion of this Court
that assessment for the mental pain suffered
by the claimant is just and fair, considering
that he has lost his right lower limb at the
knee.

37.