Page No.# 1/13 GAHC010240562022 2025:GAU-AS:7438 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp./855/2022 THE ORIENTAL INSURANCE CO. LTD. A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956. REPRESENTED BY ITS REGIONAL MANAGER, ULUBARI, GUWAHATI 7 VERSUS RAMEN DAS AND ANR. S/O LATE NARESWAR DAS, RESIDENT OF VILLAGE KHUDRA CHENIKUCHI, PO NANKARBHAIRA, PS AND DIST NALBARI, ASSAM 2:NAYAN BARMAN S/O NAGEN BARMAN RESIDENT OF VILLAGE KHARUA PO KHARUA PS BARAMA DIST BAKSA ASSAM 78134 Advocate for the Petitioner : MR. S K GOSWAMI, MR. R SHARMA Advocate for the Respondent : MR. P K CHOUDHURY (R1), MAYUR DAS (R1),MR S N KRISHNATRAYA (R1) Page No.# 2/13 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 06.06.2025 Heard Mr. S.K. Goswami, learned counsel for the appellant. Also heard Mr. S.N. Krishnatraya, learned counsel for the respondent no.1. 2) This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the order and award dated 31.08.2022, passed by the learned Member, Motor Accident Claims Tribunal, Nalbari in M.A.C. Case No. 75/2020, which was filed by the respondent no.1 as claimant, seeking compensation for the injuries sustained by him in a motor accident which occurred on 30.05.2020. 3) In the claim petition, it was projected that on 30.05.2020, the respondent no. 1 was riding his motorcycle and while coming from Jajiabari Chowk towards Paikarkuchi Chowk on NH-31. On reaching Sonamati Chowk, the respondent no.2, who was driving another motorcycle bearing registration no. AS-14-E-2531, loaded with a LPG full cylinder came in a rash, negligent and zig- zag, and the respondent no. 2 lost his control while trying to overtake the respondent no.1, knocked him. Resultantly, the respondent no.1 had sustained grievous fracture injuries over his right leg and also sustained injuries on his head and chest. 4) The respondent no.1 was admitted in SMK Civil Hospital, Nalbari, where he was referred to Guwahati and accordingly, on the same day, he was admitted in a private hospital at North Guwahati, where he was diagnosed of suffering from fracture of tibia and fibula (i.e. tibial plateau fracture right). The respondent no.1 was operated upon and discharged on Page No.# 3/13 05.06.2020. The respondent no.1 projected in his claim petition that he was undergoing treatment as outdoor patient and till the filing of the claim petition he was unfit to perform his normal duties and has become permanently disabled. The motorcycle of the respondent no. 2 was insured with the appellant, Accordingly, the respondent no. 1 filed a claim petition and prayed for award of a sum of Rs.18.00 Lakh as compensation. 5) The appellant and the respondent no. 2 contested the claim. Thereafter, the following issues were framed for trial: i. Whether there is cause of action to file this case by the claimant? ii. Whether the claimant was injured in a Road Traffic Accident on 30.05.2020 at about 5.30 p.m. at Sonamati Chowk due to rash and negligent riding by the rider of the offending vehicle bearing registration No. AS-14-E/2531 (Motorcycle)? iii. Whether the claimant is entitled to get any compensation as prayed for, and if so, to what extent and from whom? iv. To what other relief or reliefs the claimant is entitled to? 6) Apart from examining himself as claimant witness no.1 (CW-1 for brevity), the respondent no. 1 had also examined Sri Karuna Das (CW-2); Dr. Trailokya Haloi (CW-3); and Sri Nripendra Das (CW-4), and the following documents were exhibited, viz., (i) Form-54 (Ext.1); (ii) certified copy of PRC 243/2020 (Ext.2); (iii) disability certificate (Ext.3); (iv) salary certificate (Ext.4); (v) discharge certificate (Ext.5); (vi) medical certificate and advice slips [Ext.5(2) and Ext.5(3)]; (vii) medical advice slip, prescription and bill [Ext.6(1) to Ext.6(15)]; (viii) medical prescriptions [Ext.7(1) to Ext.7(20)]; (ix) medical Page No.# 4/13 bills[Ext.8(1) to Ext.8(61)]; (x) driving licence and voter card [Ext.9(1) and Ext.9(2)]; and X-ray plate [Ext.10(1) to Ext.10(4)]. All the said CWs were cross- examined and discharged. The appellant and the respondent no. 2 did not examine any witness. 7) In respect of issue nos. (i) and (ii), the learned Tribunal, discussed the evidence on record. By referring to the evidence of CW-1, the learned Tribunal had observed that on an application made by the respondent no. 1 before the Department of Empowerment of Persons with Disabilities, he was examined by the Medical Board of SKM Civil Hospital and a disability certificate issued by in favour of the respondent no. 1.The learned Tribunal also took note of the evidence of the respondent no. 1 that he was suffering of 40% locomotor disability and that prior to the accident, the respondent no. 1 worked as a Manager of Pranita Restaurant, Paikarkuchi Chowk and earned Rs.14,000/- per month and that the respondent no. 1 had incurred Rs.1,21,297/- for his treatment. Accordingly, while answering all the four issues in favour of the respondent, by applying the ratio laid down by the Supreme Court of India in the case of Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, the functional disability was taken as 25%. Accordingly, considering the monthly income of the respondent as Rs.14,000/- per month or Rs.1,68,000/- per annum, loss of earning due to functional disability was calculated at Rs.42,000/- and considering the respondent’s age of 42 years, applied the multiplier of 14 and loss of future earning was calculated at Rs.5,88,000/-. The quantification of the compensation under various sub-heads was as follows:- a. Medical expenses and transport to hospital : Rs.1,15,497/- b. Loss of earning due to disability : Rs.5,88,000/- c. Loss of earning during the period of treatment (Rs.14,000/- X 2) : Rs. 28,000/- Page No.# 5/13 d. Loss of amenities of life : Rs. 60,000/- e. Loss of expectation of life : Rs. 60,000/- f. Pain and suffering : Rs. 60,000/- Total : Rs.9,11,497/- (Rupees Nine lakh eleven thousand four hundred ninety seven only). 8) Accordingly, the aforesaid sum of Rs.9,11,497/- was awarded to the respondent with direction to the appellant to pay the same within 60 days together with interest at the rate of 6% per annum from 19.12.2020, the date of filing of the claim petition. 9) Assailing the impugned order and award, the learned counsel for the appellant, by referring to the grounds of appeal, had submitted that there was no evidence that the respondent had lost his job after the accident and therefore, he would not be entitled to any compensation on account of loss of earning. Moreover, it was submitted that while a sum of Rs.5,88,000/- was assessed on account of loss of earning due to disability, but there was a duplicity of the award because the learned Tribunal had further granted compensation of Rs.60,000/- on account of pain and suffering and a further sum of Rs.60,000/- for loss of expectation of life and a further compensation of Rs.60,000/- on account of pain and suffering, which are not sustainable. It was further submitted that though the locomotor disability was 40%, the learned Tribunal had assessed functional disability at the rate of 25% and in this regard, it was submitted that as the respondent was an Assistant Manager in a restaurant, considering the nature of his job, compensation on account of loss of earning was not sustainable. 10) It was also submitted that in terms of the disability certificate, as the respondent was required to go for his medical review after three years, in light of the evidence of CW-3, the learned Tribunal had erred in law to consider Page No.# 6/13 the medical condition of the respondent as if he had suffered total permanent disability and in not holding that the respondent had suffered temporary partial disability. To support his submissions, the learned counsel for the appellant has cited the case of (i) Mohan Soni v. Ram Avtar Tomar & Anr., (2012) 2 SCC 267, and (ii) Sanjay Kumar v. Ashok Kumar & Anr., (2014) 5 SCC 330. 11) Per contra, the learned counsel for the respondent had made his submissions in support of the award passed in favour of the respondent. It was submitted that as the contents of the disability certificate could not be demolished during cross-examination and therefore, merely because the validity of the recommendation was till 15.07.2024, it cannot be held that the respondent did not suffer permanent partial disability with functional disability of 25%. Thus, it was submitted that the appeal was without any merit and the same deserves to be dismissed. 12) Thus, the only point of determination in this appeal is: Whether the respondent has been able to prove that he had suffered permanent partial disability, entitling him to the award of compensation, and if so, what would be the just and fair compensation? 13) Upon examination of the evidence available on record, it is seen that in his examination-in-chief, the respondent, as CW-1, had stated that he had suffered road accident on 30.05.2020, taken to hospital, where he was diagnosed of fracture of tibia and fibula (tibial plateau fracture right) along with other injuries and that his leg was operated and plate and screw were implanted and he was discharged on 05.06.2020, and he had also exhibited the disability certificate (Ext.4). He had also stated that he was undergoing treatment as an outdoor patient till date and was not yet fit to perform his normal duties and Page No.# 7/13 became physically disabled owing to accidental injuries. He had also stated that he was the sole bread earner and had lost completely owing to disablement sustained due to accident, and he cannot bear any weight, walk properly, suffered restriction in squatting and required regular attendant for his day-to- day activities and that his future prospect was totally lost. During cross- examination, the evidence of the CW-1 could not be dislodged. Rather, in his cross-examination, the CW-1 confirmed that in the accident, he had suffered fracture on his right leg, got injuries on his hip and chest and bruises all over his face. He had also stated that in connection with the accident, Nalbari P.S. Case No. 301/20 under section 279/338 IPC was registered and on completion of investigation, charge-sheet was submitted against the respondent no.2. 14) The CW-2, Karuna Das, was examined as an eye-witness to the accident. However, during cross-examination, CW-2 had stated that at the time of the accident, he was standing on the side of the National Highway and on hearing sound of an accident, he turned and saw that both motorcycles had fallen on the road and both the riders had sustained injuries. Thus, he did not see the accident. 15) Dr. Tralakya Haloi, serving as the Senior Medical and Health Officer, who had issued the disability certificate (Ext.3), was examined as CW-3. He had stated that the claimant (i.e. respondent) was assessed as per guideline dated 04.01.2018 for the purpose of assessing a person included under the RPwD Act, 2016, with percentage of disability assessed to be 40% of locomotor type in relation to his right lower limb, having diagnosed to be a case of post ORIF fracture proximal tibia right with stiffness right knee joint. He had also stated that the said certificate was recommended for three years. He had further stated that the disability is not permanent and that after three years, the Page No.# 8/13 claimant (i.e. respondent) was asked to appear before the Board for review of whether his disability has approved or not. In his cross-examination, DW-3 had stated that seven members were present on 09.07.2021 to assess disability, but in Ext.3, the signatures of all the members present in the Board were not there. He had further stated that in the certificate (Ext.3), it is not mentioned on which date the said patient was examined. He had also stated that there is a chance of recovery of the said patient. 16) Nripendra Das, the proprietor of Pranita Restaurant and Fast Food, Paikarkuchi, where the respondent was purportedly working, was examined as CW-4. He had stated in his examination-in-chief that the claimant was employed in his restaurant as Assistant Manager since 2017 and his monthly salary was Rs.14,000/- only. He had also stated that on 30.05.2020, in a road accident, the respondent was grievously injured and was unable to work till date. He had stated that in Ext.4 (i.e. salary certificate), his signature was Ext.4(1). In his cross-examination, CW-4 had stated that in Ext.4, it is not mentioned that from which date the respondent was working in his restaurant and he had denied that he had issued a false certificate. 17) On appreciation of the evidence of CW-1, his evidence to the effect that he was undergoing treatment as an outdoor patient till date and was not yet fit to perform his normal duties and became physically disabled owing to accidental injuries; he had lost his earning capacity owing to disablement sustained due to accident; that he cannot bear any weight, walk properly, suffered restriction in squatting and required regular attendant for his day-to- day activities and that his future prospect was totally lost could not be demolished during cross-examination. In fact there was no cross-examination on the said oral evidence. It is also seen that the respondent (CW-1) was not Page No.# 9/13 even cross-examined on the contents of the disability certificate (Ext.4). Therefore, in so far as the evidence of CW-1 is concerned, he had projected that he had suffered some sort of disability. To find out the nature of disability, the contents of the disability certificate (Ext.3) and the evidence of CW-3 is required to be evaluated. 18) The doctor (CW-3), who had issued the disability certificate (Ext.3), and whose signature was exhibited as Ext.3(1), had categorically stated in his examination-in-chief that the disability was not permanent and moreover, in his cross-examination, the CW-3 had stated that there is a chance of recovery of the said patient (i.e. respondent), the inevitable conclusion that can be derived from the evidence of CW-3 is that the petitioner had not suffered permanent partial disablement. 19) The burden of proof was on the respondent- claimant to prove that he had suffered permanent partial disability, which could only be done by examining a subject expert, i.e. the doctor (CW-3), who had issued the disability certificate. However, when the CW-3 had stated in his examination-in-chief that the disability was not permanent and the said part of the evidence was accepted by the respondent without any demur, the Court is of the considered opinion that the order and award, impugned in this appeal, is not sustainable on facts and in law. 20) Thus, the point of determination is answered in favour of the appellant and against the respondent by holding that the respondent has failed to prove that he had suffered permanent partial disability. Resultantly, the Court is also constrained to hold that the respondent would not be entitled to compensation, as awarded by the impugned judgment and award. Page No.# 10/13 21) The other corollary question which is required to be determined is whether the non-pecuniary damages awarded to the respondent is sustainable. In this regard, it would be appropriate to refer to paragraph 6 and 7 of the case of Raj Kumar (supra), which was referred to by the learned Tribunal, which are quoted below:- 6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) - depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to Page No.# 11/13 permanent disability.” 22) The said principle has been followed by the Supreme Court of India in the case of Sanjay Kumar (supra), cited by the learned counsel for the appellant. 23) There is another corollary issue to be determined in this case, which is whether the percentage of disability can be mechanically applied or the Tribunal must examine whether the victim of the accident could make up for the loss of income by changing his vocation or by adopting another means of livelihood. In this regard, it would be apposite to refer to the decision of the Supreme Court of India in the case of Raj Kumar (supra), which was followed by the Supreme Court of India in the case of Mohan Soni (supra). 24) Paragraph nos. 10, 11 and 13 of the case of Raj Kumar (supra), as quoted in the case of Mohan Soni (supra), have been extracted below:- 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, 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 produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may Page No.# 12/13 however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation [see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd., (2010) 10 SCC254 and Yadava Kumar v. National Insurance Co. Ltd., (2010) 8 SCC341]. * * * 10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.” 25) Therefore, in the absence of any finding by the learned Tribunal by taking into account the three steps as morefully stated in paragraph 13 of the case of Raj Kumar (supra), that the respondent cannot do the work in the establishment of CW-3, where he was employed before the accident, the respondent has failed to show that he had suffered future loss in his earning capacity. Moreover, even otherwise, the compensation assessed by the learned Tribunal, on account of loss of earning is not found sustainable. 26) Accordingly, in light of the discussions made hereinbefore, the just and fair compensation to which the respondent would be entitled to, would be under the following heads, as culled out from the case of Raj Kumar (supra), referred hereinbefore:- a. Medical expenses and transport to hospital : Rs.1,15,497/- Page No.# 13/13 b. Loss of earning during treatment : Rs. 28,000/- c. Non-pecuniary damages (including pain, suffering and trauma : Rs. 30,000/- d. Total: : Rs.1,73,497/- (Rupees One lakh fifty eight thousand four hundred ninety eight only). 27) The non-pecuniary damages under paragraph 26(c) is assessed at Rs.30,000/- (Rupees Thirty thousand only) considering the evidence of the respondent that he had suffered accident on 30.05.2020, and when taken to hospital he was diagnosed of fracture of tibia and fibula (tibial plateau fracture right) along with other injuries and that his leg was operated and plate and screw were implanted and he was discharged on 05.06.2020. He cannot bear any weight, walk properly, suffered restriction in squatting and required regular attendant for his day-to-day activities and in his cross-examination, the CW-1 confirmed that in the accident, he had suffered fracture on his right leg, got injuries on his hip and chest and bruises all over his face. Thus, the respondent has suffered pain and trauma. 28) Resultantly, in light of the discussions above, this appeal deserves to be and is accordingly, allowed. The award stands reduced to a sum of Rs.1,58,497/- (Rupees One lakh fifty eight thousand four hundred ninety seven only). Ordered accordingly. 29) The said award shall carry interest at the rate of 6% interest from the date of filing of the claim petition till realization. The appellants shall release the payment under the modified award within a period of 30 (thirty) days from the date of this order. JUDGE Comparing Assistant