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2022 Supreme(J&K) 412
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Puneet Gupta, J.
Oriental Insurance Company Ltd. - Appellant
Vs.
Sat Pal & Ors. - Respondent
MA No. 335 of 2017
Decided On : 02-09-2022
Advocate Appeared:
For the Appellant : D.S. Chauhan
For the Respondents: Ashish Sharma
Assessment of permanent disability and compensation must consider the impact on the whole body and the victim's earning capacity.
Headnote:
Motor Accidents Claims Tribunal - Assessment of Permanent Disability - Medical Evidence - Compensation - Loss of Future Income - Pain and Sufferings - Loss of Amenities of Life - Insurance Policy Violation - Just Compensation
Fact of the Case:
The appellant challenges the award passed by the Motor Accidents Claims Tribunal, claiming that the assessment of permanent disability and liability upon the appellant were incorrect, and the compensation awarded was excessive. The accident resulted in serious injuries and permanent disability to the claimant.
Finding of the Court:
The Court upheld the Tribunal's assessment of permanent disability, compensation for loss of income and medical bills, and the findings regarding the insurance policy violation. The appeal was dismissed.
Issues: Assessment of permanent disability, liability of the appellant, compensation amount, insurance policy violation
Ratio Decidendi: The extent of permanent disability must be assessed for the whole body, not just the particular limb injured. The nature of the injury and its impact on the victim's earning capacity are crucial in determining compensation. The evidence failed to prove the insured willfully violated the insurance policy.
Final Decision: The appeal was dismissed, and the Tribunal's award was upheld.
JUDGEMENT/ORDER :
1. The appellant is aggrieved of the award dated 12.08.2017, passed by the learned Presiding Officer, Motor Accidents Claims Tribunal, Rajouri, whereby the appellant has been held liable to pay compensation to the respondent No. 1-claimant to the tune of Rs. 10,44,064/- along with pendentelite and future interest @ 7.5% per annum till realization except on the head of loss of future income. The challenge to the award is on the ground that the Tribunal has wrongly assessed the permanent disability of the claimant as 70%; that the Tribunal has wrongly fastened the liability upon the appellant though the driver of the vehicle was not holding valid license at the time of accident. In short, it is submitted that the Tribunal has not granted just compensation in favour of the claimant but has awarded the excess amount of compensation to the claimant.
2. The respondent-claimant has appeared through Mr. Ashish Sharma, Advocate. Respondent Nos. 2 & 3 have been set ex-parte. The photo copy of the record of the Tribunal is before the court for perusal.
3. The submission of the appellant is that the assessment made by the doctors with regard to the injury received by the victim is not of the whole body but of the particular limb and, therefore, the compensation cannot be assessed as per the percentage of disability as per the medical evidence that has come on record. The Tribunal has wrongly assessed the percentage of permanent disability to the extent of 70% is the submission of the learned counsel for the appellant.
4. Mr. Ashish Sharma, learned counsel appearing for the respondent-claimant has argued that the Tribunal has awarded just compensation in favour of the claimant. The permanent disability suffered by the claimant is not in any way less than 70% as held by the Tribunal keeping in view the injury suffered by the claimant in the accident. Infact the claimant is entitled to much more compensation than the one awarded by the Tribunal.
5. The accident which took place on 15.02.2015 near workshop Rajal within the jurisdiction of Police Station, Nowshera and involving vehicle No. JK11-3756 (Tipper) driven rashly and negligently by the driver of the vehicle resulted into receiving of serious injuries to the claimant. The injuries resulted into permanent disability of the claimant.
6. The accident which resulted into permanent disability of the claimant-respondent is not in dispute. The main issue which requires consideration is the extent of permanent disability suffered by the victim in consequence to the accident.
7. The medical certificate issued by the Medical Board read with the statement of Dr. Abdul Salam recorded in the court brings out that Sat Pal had deformity of both foot and the right head and secondary OA of both joints with ulcer over right head (non-healing ulcer). As per the certificate the claimant is permanently disabled to the extent of 70% and can walk with escort only. Dr. Abdul Salam, who is one of the members of the Board, which issued the certificate and has recorded the statement before the Tribunal has during cross-examination stated that it is correct that the disablement pertains to the particular parts of the body and not of the whole body and in case the disablement is to be measured in terms of the whole body than the percentage of the disablement may come down proportionately.
8. It is well settled that the extent of permanent disability suffered by the victim has to be assessed of the whole body and not the particular limb which may have suffered injury. It is not necessary that the percentage of injury suffered on a particular part of the body will reflect the same percentage of permanent disability for whole body. For instance, if a person receives injury on a particular part of the body, say injury on the index finger of his left hand to the extent that it has to be amputated. The injury to the said finger may amount to 100% disability of that finger only and cannot be said that the body
