01Facts
On 22.10.2007, the claimant, Shyamal Kumar Dey, was allegedly hit from behind by vehicle No. NL-02-D-3633 while he was near Tinkonia, Kali Mandir, Tinsukia. His right hand was seriously injured when it came under the vehicle’s wheel. The vehicle’s driver allegedly attempted to flee and collided with another car.
pp. 3, paras 3–5The claimant underwent treatment at Tinsukia, Dibrugarh, Patna and Ludhiana, and claimed permanent disability and loss of income.
p. 4, para 4The Motor Accident Claims Tribunal, Tinsukia, held that the accident resulted from rash and negligent driving and awarded the claimant Rs.4,54,600, including amounts for loss of income, medical expenses, future medical expenses, pain and suffering, loss of marriage prospects, loss of future prospects and miscellaneous expenses, with interest at 6% per annum.
pp. 4, paras 6–7The insurer appealed, challenging the award of Rs.1,00,000 for “loss of future prospects” and contending that the driver did not possess a valid driving licence on the date of the accident. The claimant filed a connected appeal seeking enhancement of compensation.
pp. 5, paras 8–1102Issues
i.1. Whether the Tribunal was justified in awarding Rs.1,00,000 under the head of “loss of future prospects” without sufficient evidence regarding the claimant’s occupation, income, functional disability and loss of earning capacity?
pp. 6–9, paras 14–24ii.2. Whether the claimant’s physical disability could be treated as functional disability affecting his earning capacity, particularly when the disability certificate was not proved through the concerned medical authorities?
pp. 6–9, paras 17–23iii.3. Whether the driver possessed a valid and effective driving licence on the date of the accident and, if not, whether the insurer was entitled to a pay-and-recover order?
pp. 9–10, paras 25–29iv.4. Whether the compensation and consequential liability of the parties required fresh determination?
pp. 10–11, paras 29–3103Law Applied
The Court applied the principle in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, that the percentage of permanent physical disability is not automatically equivalent to the percentage of loss of earning capacity; functional disability must be assessed with reference to the claimant’s occupation and actual work-related limitations.
pp. 7, paras 18–20It also relied on Mohd. Sabeer @ Shabir Hussain v. Regional Manager, U.P. State Road Transport Corporation, holding that a claimant suffering permanent disablement may be entitled to both future loss of income and future prospects, provided the evidentiary basis for such assessment exists.
pp. 8–9, para 21Under National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, where breach of the insurance policy relating to the driver’s invalid or ineffective licence is established, the insurer may be directed to satisfy the third-party award and thereafter recover the amount from the owner/insured.
p. 10, para 27Compensation must represent “just compensation” and be determined on the basis of proved disability, earning capacity, and the relevant statutory principles.
Provisions in the judgment · 3 · Linked ones open on LawLens
Motor Vehicles Act, 1988 Section 166
Indian Penal Code, 1860 Section 279Section 338
04Reasoning
The Tribunal had itself found that the claimant had not proved his occupation or actual income and had therefore assessed his income notionally at Rs.3,000 per month only for loss during treatment.
p. 7, para 16Although the claimant relied on a disability certificate showing 50% locomotor disability, neither the assessing doctor nor the concerned Social Welfare Officer was examined, and the evidence did not establish that the claimant had suffered 50% functional disability of the whole person.
pp. 7–9, paras 17–23Consequently, the award of Rs.1,00,000 for loss of future prospects was unsupported by a proper assessment of functional disability and earning capacity. However, because the medical records indicated serious impairment of the right thumb, simply deleting the amount would not ensure just compensation; fresh evidence and determination were necessary.
pp. 9, paras 23–24The insurer’s licence defence also could not be conclusively decided merely on the basis of assertions in the claim materials. The licensing authority’s records, the insurance policy conditions and the evidence regarding renewal had to be examined to determine whether the driver’s licence was valid on 22.10.2007 and whether any policy breach had occurred.
pp. 9–10, paras 25–28If breach were proved, the Tribunal would have to consider the appropriate pay-and-recover relief under Swaran Singh.
p. 10, para 2705Holding
The High Court allowed both appeals by way of remand and set aside the Tribunal’s judgment and award dated 14.07.2015.
pp. 11, paras 29–30The matter was remitted for fresh determination of compensation and liability after permitting the parties to adduce additional evidence regarding the claimant’s age, occupation, income, physical disability, functional disability, loss of future earning capacity and future prospects, as well as the validity of the driver’s licence and the possible application of the pay-and-recover principle.
pp. 11–12, paras 31–33The Court expressed no final opinion on these issues and directed the Tribunal to endeavour to dispose of the matter preferably within six months of receipt of the record and judgment.
pp. 12, paras 33–34The statutory deposit was directed to abide by the Tribunal’s final determination, and both appeals were disposed of.
pp. 12, paras 36–38Original Court PDF
The Oriental Insurance Co. LtdvsSri Shyamal Kumar Dey And 2 Ors
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