The assessment of compensation for permanent disability must consider its impact on earning capacity, not just the percentage of disability.

JUDGMENT :

BISWAJIT PALIT, J.

This appeal under Section 173 of M.V. Act is preferred by the claimant-appellant for enhancement of the award dated 19.03.2024 delivered by Learned Member, Motor Accident Claims Tribunal No.2, Gomati District, Udaipur in connection with case No. TS(MAC) No.36 of 2020. The connected CO(FA) No.7 of 2024 is also preferred by the cross-objector-Insurance Company under Order 41 Rule 22 of CPC read with Section 151 of CPC against the appeal bearing No.MAC App. No.49 of 2024 filed by the respondent-claimant. Both the matters are taken up together for hearing and accordingly, by this judgment both the matters are disposed of.

2. Heard Learned Counsel, Mr. J. Majumder appearing on behalf of the claimant-appellant and also heard Learned Counsel, Mr. A. K. Deb appearing on behalf of the objector.

3. Before proceeding with the merit of the appeal, let us discuss about the subject matter of the claim petition for which this present appeal has arisen. The appellant as claimant filed one application under Section 166 of M.V. Act to the Learned Tribunal below claiming compensation due to injury suffered by a road traffic accident which took place on 27.11.2019 at about 11:30 am at Rajarbag Jeep Stand, Udaipur under R. K. Pur P.S. The claimant-appellant in her claim petition stated that on 27.11.2019 at about 11:30 am when the claimant-appellant, Smt. Jharna Rani Acharjee was about to board the vehicle bearing registration No.TR-01-E-2006 (Bolero Plus) for proceeding towards Agartala from Udaipur Jeep Stand, that time, she had gone to the backside of the vehicle when the said vehicle dashed against her resulting which she sustained trauma on left eye and face following severe orbital fracture left side and multiple bleeding injuries all over her body. Soon after the accident, the victim was taken to Gomati District Hospital but considering the gravity of injuries, she was referred to AGMC & GBP Hospital, Agartala wherein she was admitted and treated up to 16.12.2019 as an indoor patient. Again, on 23.12.2019, the claimant-appellant was referred to Susrat Eye Foundation & Research Centre, Kolkata for better treatment. On 28.12.2019, the claimant-appellant had visited the said Research centre at Kolkata wherein several X-ray and medical examinations were done. After prolonged treatment also, the claimant-appellant did not recover from injuries and she had lost her eye sight. The claimant-appellant also averred that due to accident she had become permanently disabled and lost her working capacity and longevity of life. On this issue, a written ejahar was filed to O/C, R. K. Pur PS which was registered as R.K. Pur case No.200 of 2019 under Section 279/338 of IPC and also under Section 177/187 of M.V. Act. It was also stated that the accident took place due to rash and negligent driving of vehicle by the driver of the said vehicle bearing No.TR-01-E-2006. Hence, the appellant as claimant filed the claim petition claiming compensation.

The opposite parties contested the proceeding by filing written statement. The O.P. No.1 being the owner-cum-driver of the vehicle bearing No.TR-01-E-2006 (Bolero Plus) took the plea that there was no rash and negligent act on his part for the said accident and, as such, he denied the averments made by the claimantappellant in her claim petition and further submitted that on the alleged day, the vehicle was duly insured with the respondentInsurance Company. The respondent-Insurance Company also denied the assertions made by the appellant-claimant in the claim petition and submitted that the claim petition was subjected to strict proof by the claimant-appellant.

Upon the pleading of the parties, Learned Tribunal below framed the following issues:

i) Whether Smt. Jharna Rani Acharjee, W/O Sri Kartik Acharjee sustained injuries in a road traffic accident on 27.11.2019 at aoubt 10:30 am at Udaipur Rajarbag Jeep Stand, under R. K. Pur due to rash and negligent driving by driver of the vehicle bearing