The assessment of disability and future income prospects is crucial in determining compensation in motor accidents claims cases.

JUDGMENT :

RAJNESH OSWAL, J.

1. This batch of four appeals and cross-appeals arise out of a common award dated 20.09.2018 passed by the learned Motor Accidents Claims Tribunal, Rajouri (hereinafter referred to as “the Tribunal”) whereby claim petitions filed by four claimants for grant of compensation on account of the injuries suffered by them, in a road traffic accident on 17.08.2018 at Bawli, due to rash and negligent driving of offending vehicle (Matadoor) bearing Registration No. JK-02H-3429 by its driver, have been allowed.

2. The appellant/Insurance Company has impugned the awards in all the claim petitions on the ground that the learned Tribunal has not taken into consideration the medical record of the claimants in its right perspective and the disability of a particular portion of the body has been considered as the disablement of whole body while determining the compensation.

3. On the contrary, respondent No. 1/claimant in each appeal (appellants in respective cross-appeals) have impugned the award on the ground that just compensation has not been awarded to the claimants, taking in to consideration the injuries suffered by each of the claimant/respondent No. 1.

4. Heard learned counsel for the parties and perused the record.

5. Before this Court examines each appeal and cross-appeal separately, the perusal of the common award impugned by the contesting parties reveals that the learned tribunal has considered the disability of the particular part of the body in respect of whole body of the injured/claimant despite the fact that the Doctor who was examined to prove the disability certificate had categorically stated that the disability suffered by each of the complainant would be reduced when compared to the whole body. The learned Tribunal has not put any question to the Doctor so as to find out the permanent disability in respect of whole body and the corresponding functional disability. In this context, it would be profitable to take note of the observations made by the Hon’ble Apex Court in Raj Kumar vs. Ajay Kumar, (2011) 1 SCC 343:

“9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.

10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence