# United India Insurance Company Ltd v. Sanjay Dixit & Anr

- **Citation:** (2022) 3 ILRA 918
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-03
- **Case number:** First Appeal From Order No. 3591 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-company-ltd-v-sanjay-dixit-anr-48262
- **Pages:** 10

## Headnote

Civil Law - Motor Vehicle Act, 1988 -
Finding of Tribunal as to functional disability
arising from certified permanent disability of 50
%-Tribunal to consider award of compensation
under head of future prospectus, loss under
head of pain, suffering and trauma, future
medical expenses.

Appeal allowed partly. (E-9)

List of Cases cited:

## Text

918 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)03ILR A918
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

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

First Appeal From Order No. 3591 of 2014

United India Insurance Company Ltd.
 ...Appellant
Versus
Sanjay Dixit & Anr. ...Respondents

Counsel for the Appellant:
Sri Nagendra Kumar Srivastava, Sri A.
Verma, Sri V.C. Dixit

Counsel for the Respondents:
Sri Vidya Kant Shukla, Sri Amit Kumar
Verma

Civil Law - Motor Vehicle Act, 1988 -
Finding of Tribunal as to functional disability
arising from certified permanent disability of 50
%-Tribunal to consider award of compensation
under head of future prospectus, loss under
head of pain, suffering and trauma, future
medical expenses.

Appeal allowed partly. (E-9)

List of Cases cited:

1. Shri Ram Kushwaha Vs U.P. State Sugar
Corporation Ltd. through General Manager, 2015
(2) ADJ 578

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

3. N. Manjegowda Vs Manager, United India
Insurance Co. Ltd., (2014) 3 SCC 584

4. Sarla Verma (Smt.) & ors. Vs Delhi Transport
Corporation & anr., (2009) 6 SCC 121

5. National Insurance Co. Ltd. Vs Pranay Sethi,
(2017) 16 SCC 680
6. Jagdish Vs Mohan & ors., (2018) 4 SCC 571

7. Kajal Vs Jagdish Chand & ors., (2020) 4 SCC
413
(Delivered by Hon'ble J.J. Munir, J.)

1. This is an appeal by the Insurance
Company, questioning the judgment and
award of Mr. Gopal Kulshreshtha, the
Additional
District
Judge,
Court
No.8/Motor Accident Claims Tribunal,
Kanpur Nagar dated 16.09.2014, awarding
compensation to the claimant-respondent
for the injuries sustained by him in a motor
accident.

2. Mr. Sanjay Dixit, along with his
friend, Jawahar Lal, was proceeding on
foot, according to rule of the road, on the
left-hand-side from Ram Narayan Bazar to
Phool Bagh, located in District Kanpur
Nagar on 23.09.2013 at about half past
eleven in the night hours. As the two had
traversed a small distance beyond the Baba
Sweet House, a Maruti Car bearing
Registration No. UP 78 AB 7211, that is
said to have been driven very fast and
negligently by its driver, came up behind
them and hit the two on the rear side. Both
Sanjay Dixit and his friend sustained
grievous injuries. The passers-by, that
include one Kanhaiya Lal and another Anil
Kumar, amongst many others, called alarm
and
made
efforts
to
apprehend
the
offending vehicle. The driver, however,
sped away and escaped. The members of
the public present, nevertheless, noted
down the registration number of the
offending vehicle. The Police reached the
spot. The members of the public and the
Police, together conveyed Sanjay Dixit and
his friend Jawahar Lal for medical aid to a
certain K.P.M. Hospital, where they were
admitted. The two were administered first
aid there. Mr. Sanjay Dixit, who has
3 All. United India Insurance Company Ltd. Vs. Sanjay Dixit & Anr.
919
brought this claim petition, shall hereinafter
be referred to as "the claimant".

3. Since the claimant had sustained
grievous injuries, and the hospital where he
was given first aid did not have the facility
of doing an x-ray imaging, he was referred
to Ursala Hospital. It is the claimant's case
that until the institution of the claim
petition, he was under treatment at the
Ursala Hospital. The accident was reported
to the Police by Bandi Lal, a brother of the
claimant's friend and the other injured
Jawahar Lal. On the report lodged by the
aforesaid informant relating to the accident,
Case Crime No. 156 of 2013, under
Sections 279, 338 IPC, Police Station -
Philkhana, District - Kanpur Nagar was
registered. The claimant is an Advocate,
practicing in the District Courts at Kanpur
since the year 1996. The claimant's case is
that he had a monthly income from his
profession in the sum of Rs. 20,000/-,
which was the source of his livelihood and
that of his family members. As a result of
the accident, the claimant says that he has
become physically handicapped, the injury
afflicting his right lower limb. It has
become difficult for him to move about. He
further says that the handicap has adversely
affected the claimant's profession and, in
turn, wiped out his income therefrom. It is
also the claimant's case that he cannot do
any work or activity in the same manner as
he could before the accident. At the time of
the accident, he was aged 44 years. The
claimant asked for a total compensation of
Rs. 29,33,000/-. The owner of the car, one
Nazim Khan and the Insurance Company,
the United India Insurance Company Ltd.
were arrayed as opposite parties to the
claims petition. Both the owner and the
Insurance
Company
contested
the
claimant's case, denying the involvement of
the offending vehicle, besides raising other
pleas. It would be idle to refer to the
pleadings of the parties, inasmuch as the
limited issue that has been raised on behalf
of the Insurance Company in this appeal is
about the quantum of compensation.

4. There were five issues framed by
the Tribunal and all of them were answered
in favour of the claimant. In view of the
limited challenge raised by the appellant,
findings recorded by the Tribunal on Issues
Nos. 1 to 4 are not required to be examined
and must be held to have become final inter
partes. It is the fifth issue alone that is the
subject matter of this appeal and this issue
(translated into English from Hindi) would
read :

"Whether
the
claimant
is
entitled to receive any compensation
from the opposite parties? If yes, how
much and from which opposite party?"

5. Before the Court, the Insurance
Company has criticised the award largely
for its quantum, and there does not appear
to be any issue about the party who has to
answer the liability.

6. Heard Mr. Nagendra Kumar
Srivastava,
learned
Counsel
for
the
appellant-Insurance Company and Mr.
Vidya Kant Shukla, learned Counsel
appearing on behalf of the claimantrespondents.

7. Mr. Nagendra Kumar Srivastava,
learned Counsel for the appellant-Insurance
Company has largely criticised the award
on ground that the Medical Disability
Certificate, on the foot of which the award
is founded, was issued by a Medical Board,
but the doctors, who scribed the certificate,
were not produced in evidence to prove the
precise extent and nature of the disability.
920 INDIAN LAW REPORTS ALLAHABAD SERIES
It is submitted by the learned Counsel for
the appellant that the claimant has to be
compensated for the loss in his earning
capacity, and that depends upon the
functional disability sustained by him in
consequence of the accident. He submits
that assuming that the claimant has
sustained a 50 percent physical disability,
as certified by the Medical Board, the same
would not ipso facto translate to a 50
percent loss of earning capacity. The kind
of limitations that the victim has become
subject to, in consequence of the disability,
would have to be precisely ascertained by
the Tribunal and its relative impact on his
earning capacity, bearing in mind the
nature of his profession, calling, trade or
business. Learned Counsel for the appellant
further submits that there is no amputation
of any limb or any injury that appears in the
second schedule to the Motor Vehicles Act,
1988.

8. Mr. Vidya Kant Shukla, learned
Counsel for the claimant on the other hand,
submits that the medical report certifying a
50 percent permanent disability is a public
document, which is not required to be
proved, as held by a Division Bench of this
Court in Shri Ram Kushwaha v. U.P.
State Sugar Corporation Ltd. through
General Manager1. He has particularly
placed reliance upon the decision of the
Supreme Court in Raj Kumar v. Ajay
Kumar and another2 to submit that 50
percent disability would impact the actual
earning capacity, which is required to be
ascertained by the Tribunal, adopting a
three-step test laid down by their Lordships
in order to ascertain the functional
disability. Mr. Shukla supports the decision
of the Tribunal to submit that the claimant
is an Advocate, and by the nature of his
profession, he does not require mental
faculties alone, but also physical fitness to
inspire confidence with his clients and
sustain his profession and the resultant
earnings therefrom. In support of this
contention, Mr. Shukla has placed reliance
upon the holding of their Lordships in N.
Manjegowda v. Manager, United India
Insurance Co. Ltd.3 to submit that the
profession of an Advocate does not require
mental fitness alone, but also energetic
functioning of all limbs of the body.

9. This Court has carefully considered
the submissions advanced on both sides
and perused the record. So far as objection
of Mr. Srivastava about proof of the
Disability Certificate dated 05.03.2014
issued by the Board of three doctors is
concerned, there is little doubt that the
document is a public document, issued by
the Viklang Board, established in the
Office of the Chief Medical Officer,
Kanpur Nagar. It is not required to be
formally proved, in view of the provisions
of Sections 74 and 77 of the Indian
Evidence Act, 1872. The principal about
the non-requirement of formal proof of a
Chief
Medical
Officer's
disability
certificate, for reason it is a public
document, has the endorsement of a
Division Bench of this Court in Shri Ram
Kushwaha (supra). The said objection
raised by Mr. Srivastava, therefore, does
not have much force. The Tribunal has
committed no error in acting on the
Disability Certificate issued by the Viklang
Board. This Court has also perused the
same, and it is a dependable document.

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
3 All. United India Insurance Company Ltd. Vs. Sanjay Dixit & Anr.
921
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. The principles to assess
the extent of functional disability of the
victim have been laid down by their
Lordships of the Supreme Court in Raj
Kumar (supra), where 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 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
922 INDIAN LAW REPORTS ALLAHABAD SERIES
the award of compensation. Be that as it
may."

11. It has also been emphasised in
Raj
Kumar
that
the
Tribunal
in
determining what just compensation would
be, must play a proactive or inquisitorial
role in ascertaining the percentage of
functional disability with reference to the
whole body. 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 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.

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
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
3 All. United India Insurance Company Ltd. Vs. Sanjay Dixit & Anr.
923
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

(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
would
924 INDIAN LAW REPORTS ALLAHABAD SERIES

 have got if had been employed as
an engineer :
Rs. 60,000

(b) Loss of future earning per
annum

(70% of the expected annual
income)
:
Rs. 42,000

(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] .]

12. In N. Manjegowda (supra), their
Lordships of the Supreme Court have
indeed emphasised the principle that an
Advocate does not only require the
possession of his mental ability, but also
physical ability and fitness in order to
command
his
clientele.
In
N.
Manjegowda, it has been held :

"12. In the present case the
appellant
has
been
found
to
suffer
weakness of four limbs. He has to work
slowly and requires help in climbing steps,
cannot run, cannot write sharply and
speedily with his right hand. With his left
hand he cannot lock the shirt button and
has difficulty in holding of spoon for selffeeding. He was having partial sensory loss
all over his limbs and lacked proper
coordination in all four limbs. It is the
medical opinion that for these reasons the
appellant requires an assistant for daily
routine work. In view of aforesaid medical
assessment of the appellant's condition after
sustaining injuries in the accident and in the
light of whole body disability of 50%, it
would be certainly very difficult for the
appellant to practise as an advocate and
compete with others so as to command
confidence and acceptability of general
clients. Unlike many other professions,
legal profession requires not only sharp and
focused mind but also good health and
ability to put in hard work within a limited
time-frame. The requirement of impressing
the client at the age of 36 is much more. It
is only when a young advocate has built a
good impression and reputation, then in the
evening of his life he may continue to
command professional work on the basis of
his acquired knowledge and reputation. A
young advocate is bound to suffer huge
professional loss on account of injuries as
have been sustained by the appellant and
the condition in which the doctor found
him."

13. This Court finds that the claimant
has
indeed
established
his
income
preceding the accident by wholesomely
proving it through his annual Income Tax
Returns for the five assessment years
preceding the event. The returns have been
more
than
successfully
proved
by
examining the relevant functionary from
the Income Tax Department, who has
testified before the Tribunal. He is one
Brijesh Kumar, a Senior Assistant in the
Office of the Income Tax Officer, Ward2(4), Kanpur Nagar. The said witness has
appeared before the Tribunal as P.W.3 and
proved the returns. The Tribunal has rightly
inferred the victim's overall annual income
at a figure of Rs. 1,55,000/- preceding the
accident. That finding is flawless.
3 All. United India Insurance Company Ltd. Vs. Sanjay Dixit & Anr.
925

14.

During
the
hearing,
Mr.
Srivastava pointed out that the Tribunal has
committed an error in applying the
multiplier of 15, according to the Second
Schedule appended to the Motor Vehicles
Act, where that is the indicated multiplier
for a person in the age group of 40-45
years. It was pointed out by Mr. Srivastava
that going by the table in Sarla Verma
(Smt.) and others v. Delhi Transport
Corporation
and
another4,
the
appropriate multiplier for a victim in the
age group of 40-45 years is 14; not 15.

15. Mr. Shukla, learned Counsel for
the claimant very fairly does not dispute
this proposition and indeed, this Court is of
opinion that that the law about the
multiplier is well settled. It has to be
governed by the table laid down in Sarla
Verma (supra), which, going by the age
bracket of the victim, would inevitably lead
to a multiplier of 14. The Tribunal,
therefore, has erred in applying the
multiplier of 15.

16. The most crucial question,
however, that remains to be answered is
whether the 50 percent physical disability
certified by the Medical Board translates
for
the
claimant
into
an
arithmetic
equivalent of functional disability, leading
to a proportionate loss in his earnings. A
perusal of the finding recorded by the
Tribunal on Issue No. 5 constrains this
Court to remark that the Tribunal has
hardly bestowed any consideration to this
most vital question. The Tribunal has
proceeded in the manner that opining the
annual income of the claimant to be a
figure of Rs. 1,55,000/-, the loss of it has
been inferred to be 50 percent on the basis
of the 50 percent disability ipso facto.
There is absolutely no assessment done by
the Tribunal about the impact upon the
claimant's income post accident, or so to
speak, corresponding functional disability
that has arisen from the 50 percent certified
physical disability. The determination of
functional disability in this case may
require some further probe by the Tribunal
into the nature of the physical disability and
how it impacts the claimant's capability and
physical ability to go about his profession.
It may also require some consideration of
the impact of the accident on the
professional prospects of the victim after
eliminating irrelevant factors. This Court
may not be understood to mean that 50
percent physical disability sustained by the
claimant could not have led to an equal
measure of functional disability. Depending
on the nature of the injury, the manner it
would work to impact the claimant's ability
to undertake his profession, is required to
be assessed. It could turn out to be an equal
measure of functional disability, that is to
say, 50 percent, or may be more than that
or less than it. This may require some
enquiry to be made from one of the doctors
on the Medical Board, who have certified
the
physical
disability.
The
doctor's
evidence would not be assessed to doubt
the correctness of the opinion of the
Medical Board, but to ascertain the nature
of the physical disability for the purpose of
inferring, on its basis, its precise impact on
the claimant's professional prospects. This
evidence is not at all there on record. The
doctor was never called by the claimant;
nor by the Tribunal for the limited purpose
indicated above. This Court is of opinion
that one of the doctors on the Medical
Board, who have issued the Permanent
Disability Certificate, should be summoned
in order to enable the Tribunal to ascertain
the precise nature of the claimant's
disability and then assess its percentage
impact on his functional disability. The
Permanent Disability Certificate dated
926 INDIAN LAW REPORTS ALLAHABAD SERIES
05.03.2014 issued by the Medical Board
records the following opinion :

प्रमाणित
णकया
जाता
है
णक
कु०/श्रीमती/श्री सुंजय दीणक्षत आयु 44 वषट
पुत्र/पुत्री/ पत्नी स्व० रूप णकशोर दीणक्षत णनवासी
(पूिट आवासीय पता) 112/164 बेनाझाबर रोड
आयटनगर थाना स्वरूप नगर

णजला कानपुर नगर आज मेरे सम्मुख
अपनी शारीररक जाुंच हेतु उपज्यस्थत हये/हई।
सम्यक शारीररक जााँच के उपरान्त उनके शरीर
में णनम्नणलज्यखत णवकलााँगता पाई गई जो स्थाई
प्रकार की है।

उपरोक्त णवकलााँगता के आिार पर
इनका णवकलााँगता प्रणतशत लगभग 50%(fifty)
है। इनका पहचान णचन्ह Raise mole Rt side
face है। इनके (दायें/बायें) अुंगूठे का णनशान
णनम्नवत् हैः-

17. The Tribunal, while writing the
impugned judgment, has not analysed this
medical opinion expressed in medical terms
in order to assess its impact on the
claimant's
functional
disability
or
impairment in pursuing his profession.

18. At one stage of his submissions,
Mr. Shukla, learned Counsel for the
claimant has invited the attention of the
Court to the Tribunal's failure to award
anything
under
the
head
of
future
prospects, bearing in mind the principles
laid down by the Constitution Bench of the
Supreme Court in National Insurance
Company Ltd. v. Pranay Sethi5. The
future prospects are no longer limited to the
salaried class, but extend to the selfemployed professionals, businessmen and
others. Mr. Shukla impressed upon this
Court the fact that in cases of injury, not
only fatal accident, future prospects are to
be awarded. He has drawn this Court's
attention to the decision of their Lordships
of the Supreme Court in Jagdish v. Mohan
and others6. There is little doubt that
future prospects ought to be considered for
the claimant, which the Tribunal did not do,
going by the principles of law governing
the subject then declared. Nevertheless, the
claimant is entitled to an assessment about
his future prospects.

19. Learned Counsel for the claimant
urged this Court to go about the exercise of
assessing future prospects based on well
settled principles, which he said this Court
could do without a claim in that behalf or a
cross appeal. He invited the attention of
this Court to the holding of the Supreme
Court in Kajal v. Jagdish Chand and
others7 . That principle is not in doubt and
this Court would not hesitate to pass an
award, directing just compensation, without
a cross appeal relating to future prospects
or some other heads like trauma, suffering
and pain that have escaped the Tribunal's
determination. But since this Court is of
opinion that the issue of functional
disability is required to be ascertained by
the Tribunal on the basis of the doctor's
evidence and other relevant factors, it is
best left to the Tribunal to go into the issue
of future prospects as also compensation to
be awarded under the head of pain,
suffering
and
lost
amenity,
besides
expenses on future medical treatment, if
found involved on further evidence being
led about it.

20. This order of remand and the
consequent setting aside of the impugned
award, would not mean that the sum of
money that has been paid to the claimant
under the interim orders of this Court and
the impugned award, since set aside by this
3 All. Amod Kumar Vs. Director Training & Employment , U.P. Rozgar Bhawan, Lko. & Ors.
927
order, would have to recovered from the
claimant
right
away.
The
said
compensation would remain with the
claimant to abide by the final determination
about the claimant's extent of entitlement to
compensation.

21. For the sake of eschewing any
confusion, it is made clear that all other
findings recorded by the Tribunal in the
impugned award are affirmed, except the
finding relating to functional disability
arising from the certified permanent
disability of 50 percent. The Tribunal is
also
required
to
consider
award
of
compensation under the head of future
prospects that the claimant would be
entitled to, besides loss under the head of
pain, suffering and trauma resulting from
the accident, the inability of the victim to
lead a normal life, together with its
amenities and any future medical expenses
related to the accident. These matters
would be gone into by the Tribunal on the
basis of evidence led before it or evidence
that the Tribunal comes by, upon inquiring
into what would be just compensation in
this case.

22. In the result, this appeal succeeds
and stands allowed in part. The impugned
award is set aside, with a remand of the
claim petition to the Tribunal now
competent to hear the claim petition. The
Tribunal shall hear and decide the claims
petition afresh in accordance with the
remarks in this judgment and on issues
made over to it for determination. The
necessary evidence shall be examined by
the Tribunal for the purpose of passing an
award that determines just compensation,
to which the claimant is entitled. The sum
of money already paid to the claimant
under the Tribunal's award, since set aside
in terms of the interim order passed in this
appeal, shall not be recovered from the
claimant and shall abide by the final
determination to be made relating to the
claim. The Tribunal shall proceed to decide
the claim afresh within three months of
receipt of a copy of this judgment, after
hearing both parties, that is to say, the
Insurance Company and the claimant. Both
the parties shall appear before the Presiding
Officer, Motor Accident Claims Tribunal,
Kanpur Nagar on 21.03.2022.

23. Let this order be communicated to
the Presiding Officer, Motor Accident
Claims Tribunal, Kanpur Nagar by the
Registrar (Compliance) and let the lower
court records be sent to the said Tribunal
by the Office, forthwith.
----------
(2022)03ILR A927
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal No. 1 of 2022

Amod Kumar ...Petitioner
Versus
Director Training & Employement, U.P.
Rozgar Bhawan, Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Amita Srivastava

Counsel for the Respondents:
C.S.C., A.S.G.I.

A. Service Law - Service Rules of 1991 -
Rule 8 - U. P. Industrial Training Institutes
(Instructors) Service Rules, 1991 - Rule 5
- U. P. Procedure for Direct Recruitment