2008 Supreme(SC) 1464

2008(7) Supreme 129
SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
Ramprasad Balmiki — Appellant
versus
Anil Kumar Jain & Ors. — Respondents
Civil Appeal No. 5949 of 2008
(Arising out of SLP (C) No. 17058 of 2006)
Decided on : 01-10-08

IMPORTANT POINT
A claim for obtaining 100% compensation for permanent disability must be supported by reason.

Headnote:Motor Vehicles Act, 1988 – Section 166 – Collision between a two-wheeler driven by Appellant and a Tempo allegedly being driven by Respondent 1 rashly and negligently – Appellant sustained a fracture in his right femur bone as also tibia bone of his right leg and had to undergo three operations – Claim petition by appellant for sustaining permanent disability in his right leg, loss of service, loss of leave, deficiency and expenses in treatment, etc. – Tribunal held that appellant had not sustained any kind of permanent disability and, thus, was not entitled to any amount on that count and passed an award for a sum of Rs. 85,000/- High Court, however, on an appeal preferred by appellant enhanced the amount of compensation to Rs. 3,75,000/- opining that even as per certificate issued by Medical Board, the extent of permanent disability suffered by him was 40% – Appeal – Plea of appellant that both Tribunal as also High Court had committed a serious error insofar as they failed to take into consideration that ‘total disablement’ meant ‘disablement from doing his job in which he was engaged’ – There exists a distinction between a ‘total disablement’ and ‘total permanent disablement’ as contained in Schedule I Part I of the 1923 Act – Sufferance of fracture by itself resulting in shortening of leg to some extent does not come within the purview of the ‘permanent total disablement’ even under the 1923 Act – Evidence on record that appellant obtained treatment from different Orthopedic specialists – No case where claimant had an option to file a claim petition either under Act or under 1923 Act – Prosecution witness 3 Doctor, who had treated appellant, did not say that appellant had sustained any permanent disability – Held, High Court, correctly proceeded on the assumption that the extent of permanent disability suffered by appellant was only 40% and not 100% – In that view of the matter alone he was found to have lost earning capacity to the tune of Rs.2000/- per month having regard to the fact that he had been getting a salary of Rs.4,847/- per month – Even otherwise, the amount of pension which he had been receiving and other benefits at the time of his retirement, which if invested, would have mitigated the quantum of damages and the same was required to be taken into consideration – A claim for obtaining 100% compensation for his permanent disability must be supported by reason – Since no material had been brought on record by appellant in this regard-Hence no infirmity found in the impugned judgment – Appeal dismissed. (Paras 9 to 11)

        [(2007) 2 SCC 349] – Relied upon.

       Facts of the Case :

        Appellant herein in the instant case sustained a fracture in his right femur bone as also tibia bone of his right leg and had to undergo three operations on a Collision between a two-wheeler driven by Appellant and a Tempo allegedly being driven by Respondent 1 rashly and negligently. Claim petition was filed by appellant for sustaining permanent disability in his right leg, loss of service, loss of leave, deficiency and expenses in treatment, etc. Tribunal held that appellant had not sustained any kind of permanent disability and, thus, was not entitled to any amount on that count and passed an award for a sum of Rs. 85,000/. High Court, however, on an appeal preferred by appellant enhanced the amount of compensation to Rs. 3,75,000/- opining that even as per certificate issued by Medical Board, the extent of permanent disability suffered by him was 40%.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court ;

        Evidence on record showed that appellant had obtained treatment from different Orthopedic specialists. No case where claimant had an option to file a claim petition either under Act or under 1923 Act.Prosecution witness3 Doctor , who had treated appellant, did not say that appellant had sustained any permanent disability. Held, High Court, correctly proceeded on the assumption that the extent of permanent disability suffered by appellant was only 40% and not 100%. In that view of the matter alone he was found to have lost earning capacity to the tune of Rs.2000/- per month having regard to the fact that he had been getting a salary of Rs.4,847/- per month. Even otherwise, the amount of pension which he had been receiving and other benefits at the time of his retirement, which if invested, would have mitigated the quantum of damages and the same was required to be taken into consideration. A claim for obtaining 100% compensation for his permanent disability must be supported by reason .Since no material had been brought on record by appellant in this regard. Hence no infirmity was found in the impugned judgment of High Court.

       Result : Appeal dismissed.