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REPORTABLE

       IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 7181 OF 2015

ICICI LOMBARD GENERAL INSURANCE     .....APPELLANT CO. LTD.            

                                                                                 Versus  

AJAY KUMAR MOHANTY & ANR.            .....RESPONDENTS

WITH   

CIVIL APPEAL No. 1879 OF 2016

J U D G M E N T

Dr D Y CHANDRACHUD, J       

1 In a claim for compensation under Section 166 of the Motor Vehicles

Act, arising out of a disability sustained by the claimant as a result of a motor

accident, the Tribunal awarded an amount of Rs. 22,85,322/-. The High Court

in an appeal filed by the insurer reduced the compensation to Rs. 12,00,000/-

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Interest was reduced from 7.5 per cent per annum to 7.0 per cent. The only

reasoning  contained  in  support  of  the  order  of  the  High  Court  reads  as

follows:

“Considering the grounds taken in appeal and the submissions made by the learned counsel for the parties and keeping in view the findings of the learned Tribunal given in the impugned award with regard to the quantum of compensation amount awarded and the basis on which the same has been arrived at, I feel, the interest  of  justice  would  be  best  served,  if  the  awarded compensation  amount  of  Rs.  22,85,322/-  is  modified  and reduced to Rs.  12,00,000/-.  The award of  interst  @ 7.5% per annum is also modified and reduced to 7% only. Accordingly, the claimant is entitled to the modified compensation amount of Rs. 12,00,000/- along with interest @ 7% per annum from the date of filing of the Claim application. The impugned award is modified to the said extent.”   

2 Ex-facie, there has been no application of mind by the High Court to the

evidence  on  the  record  and  to  the  relevant  facts  and  circumstances.  The

above  extract  cannot  be  regarded  as  the  expression  of  a  reasoned  view.

Ordinarily, we would have remitted the case back to the High Court for a fresh

determination. However,  we are inclined not to do so in order to prevent a

miscarriage of justice which delay in itself is likely to occasion. The accident

took place on 25 April  2009 when the appellant was 32 years of  age. The

judgment of the Tribunal was rendered on 26 February 2014. The High Court

delivered its judgment on 15 April 2015. Leave was granted by this Court on 25

February  2016.  Hence,  we  have  heard  the  learned  counsel  appearing  on

behalf of the contesting parties on merits and proceed to resolve the dispute

so as to render finality to the case.

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3 The accident in question took place on 25 April 2009 when the claimant

was proceeding from Keonjhar to Badbil. The vehicle fell over a bridge of NH

215. The claimant was rescued by the villagers and was shifted to hospital for

treatment. He suffered from a fracture to the left elbow and femur. The Tribunal

entered a finding of fact that the evidence of the claimant remained unshaken

and that the accident was caused by the rash and negligent act of the driver of

the vehicle. The vehicle was insured with ICICI Lombard General Insurance

Company Ltd. (the insurer).

4 While  assessing  the  claim  for  compensation,  the  Tribunal  noted  the

evidence of  PW2,  the Doctor  who had issued a disability  certificate  to  the

claimant.  The  Doctor  opined  that  the  disability  was  temporary  and  not

permanent. It appears that an admission was elicited during the course of the

cross-examination to the effect that he had made certain interpolations in the

disability  certificate  without  the  consent  or  knowledge  of  the  CDMO.  The

Tribunal held that whether the disability was permanent or temporary, it was

duty  bound  to  make  an  assessment.  From  the  income  tax  returns  of  the

claimant  for  2007,  2008  and  2009,  the  Tribunal  observed  that  his  annual

income would work out to Rs. 1,45,231/-. The Tribunal thereafter observed that

the annual  income was Rs. 2,62,372/-.  The Tribunal  however accepted the

evidence of the claimant which placed his income at a lower amount of Rs.

2,22,000/- annually on the basis of the evidence of the claimant that as a B-

Class contractor, he was earning Rs. 18,500/- per month. The Tribunal applied

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a multiplier of 17 per cent. Treating the disability to be 55 per cent, on the basis

of the certificate of the District Medical Board, Bhadrak, the Tribunal computed

the compensation at  Rs. 20,75,700/-. In addition, an amount of Rs. 2,09,622/-

was  awarded  on  account  of  medical  expenses.  A  total  quantum  of  Rs.

22,85,322/- was awarded.  

5 Learned counsel  appearing on behalf  of  the insurer submits  that the

order  of  the  Tribunal  is  contradictory  and  contrary  to  the  weight  of  the

evidence. The error has been compounded by the failure of the High Court to

attribute  reasons.   Counsel  submits  that  the  Tribunal  proceeded  on  the

manifestly erroneous basis that the claimant suffered a permanent disability.  It

was urged that the evidence of PW 2, the doctor, indicates that the disability

certificate  was  unauthorizedly  interpolated  by  him.  The  admissions  of  the

doctor in the course of his evidence that the injury was of a temporary nature

and was likely to improve have been ignored. Moreover, it has been submitted

that the judgment of the Tribunal, especially paragraph 10, would indicate that

the Tribunal has committed serious and apparent errors of computation and

there is an internal inconsistency in its reasoning.   

6 On the other hand, learned counsel appearing on behalf of the claimant

submits that while PW 2 admits having interpolated the disability certificate,

this  should  in  fact  weigh  in  favour  of  the  claimant  as  the  nature  of  the

interpolation  would  indicate.  Like  the  insurer,  the  claimant   also  has  a

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grievance in regard to the fact that the order of the High Court is not reasoned.

However, what the claimant submits is that there was no justification for the

High Court to reduce the quantum of compensation awarded by the Tribunal.

7 On perusing the order of the Tribunal, we find merit in the contention of

the insurer that while calculating the income in paragraph 10 of its order, the

Tribunal has committed an error of computation. The Tribunal has on the basis

of  the income tax  returns for  2007,  2008 and 2009 arrived at  an average

income of Rs. 1,45,231/-. However, the Tribunal has thereafter noted that the

average income comes to Rs. 2,62,372/-. Ultimately, the Tribunal proceeds on

the  annual  income of  Rs.  2,22,000/-  on  the  basis  of  the  testimony  of  the

claimant that he was earning Rs. 18,500/- per month. This is contradictory. In

our view, on the basis of the finding of the Tribunal that the average income of

the  claimant  for  the  previous  three  years  was  Rs.  1,45,231/-,  it  would  be

necessary to take into account the evidence of PW2 that the disability is to the

extent of 55 per cent. In other words, the loss of earning as a result of the

aforesaid disability would work out to Rs. 79,877/- per year.   

8 In arriving at the quantification of compensation, we must be guided by

the well-settled principle that compensation can be granted both on account of

permanent  disability  as  well  as loss  of  future earnings,  because one head

relates to the impairment of the person’s capacity and the other to the sphere

of pain and suffering on account of loss of enjoyment of life by the person

himself.

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9 In  Sri Laxman @ Laxman Mourya  v  Divisional  Manager,  Oriental

Insurance Co. Ltd1, this Court held thus:  

“The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability,  then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.”    

In Govind Yadav v New India Insurance Company Limited2, this Court after

referring to the pronouncements in R.D. Hattangadi  v  Pest Control (India)

(P) Ltd.3 , Nizam’s Institute of Medical Sciences  v Prasanth S. Dhananka4,

Reshma Kumari   v  Madam Mohan5, Arvind Kumar Mishra  v  New India

Assurance Co. Ltd.6, Raj Kumar v Ajay Kumar7  held thus:

“18. In  our  view,  the  principles  laid  down  in Arvind  Kumar Mishra v. New India  Assurance  Co.  Ltd. and Raj  Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in  determining  the  quantum  of  compensation  payable  to  the victims  of  accident,  who  are  disabled  either  permanently  or temporarily.  If  the  victim  of  the  accident  suffers  permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” (Id at page 693)

1 2011 (12) SCALE 658 2 (2011) 10 SCC 683 3 (1951) 1 SCC 551 4 (2009) 6 SCC 1 5 (2009) 13 SCC 422 6 (2010) 10 SCC 254 7 (2011) 1 SCC 343

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These principles were reiterated in a judgment delivered by one of us (Justice

Dipak Misra, as the learned Chief Justice then was) in Subulaxmi v MD Tamil

Nadu State Transport Corporation8.  

10 In the present case, the evidence of PW2 Dr Umakanta Jena indicates

that  he  had  initially,  before  issuing  the  disability  certificate,  examined  the

shoulder joint, elbow joint and left femur as per the discharge certificate. The

discharge  certificate  indicated  that  the  injuries  sustained  were  grievous  in

nature.  The  Doctor  initially  placed  a  tick  mark  over  the  word  ‘permanent’.

However,  subsequently  he  made  an  interpolation  by  cutting  the  word

‘permanent’  and  “not  likely  to  improve”.  The  evidence  of  the  Doctor  is

reproduced below, insofar as it is material:  

“4) The disability is temporary but not permanent. The disability is likely to improve. The disability certificate is the original one. By mistake, I gave a tick mark on the word “permanent”. Per day about  one  hundred  disability  certificates  are  issued.  So,  I committed this wrong. I have not mentioned which documents I verified  prior  to  issuance  of  this  disability  certificate.  There  is nothing  in  the  certificate  to  show  that  there  was  nailing. Particularly in this case, the disability may improve. Any fracture of extremity will  cause disability.  I cannot give any authority to the opinion of my above sentence.  

5) It is not a fact that the percentage of disability has been made by me being gained over by the injured and that there was no disability. It is not a fact that being gained over by the injured I gave this disability certificate.

TO COURT:-

Q. No. 1:- Whether the certificate issued by you is creating confusion?

Ans; Yes.

Q. No. 2: Whether you will be paid T.A. and D.A. from State Exchequer for your mistake?

Ans:, No, I should be paid.

8 (2012) 10 SCC 177

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Q. No. 3:- Whether my attendance in the court is a govt. duty or C.L.?

Ans: For my mistake I should take C.L.  

Q. No. 4:- Can  you  explain  why  you  interpolated the  certificate  which  was  signed  by  4 doctors including CDMO, Bhadrak?

Ans: I cannot explain.

Q. No. 5:- Was  not  it  desirable  to  obtain  the consent  of  other  three  doctors  before cutting and putting tick mark and making interpolation  on  an  already  prepared public document?

Ans: I should have obtained the consent and signature of all other signatories before interpolating the document.”

11 The doctor has admitted to having made an interpolation in the disability

certificate. The above evidence indicates that the disability is temporary and

not permanent. The Doctor admitted that the disability certificate indicated a

tick  mark  on  the  word  ‘permanent’  by  mistake.  He  further  stated  that  the

disability in the present case was likely to improve.  

12 Having regard to all these facts and circumstances, we find merit in the

contention that the claim for compensation on the basis that the disability was

permanent  was  clearly  not  established.  There  was  no  basis  to  award  an

amount  of  Rs.  20,75,700/-.  The  Tribunal  has  awarded  an  amount  of  Rs.

2,09,622/- towards medical expenses. We accept the figure of an annual loss

of income of Rs. 79,877/-. The disability being of a temporary nature, we award

compensation of Rs. 5 lakhs towards loss of income. We allow compensation

of Rs. 2 lakhs towards trauma, pain and suffering. In addition, the claimant is

entitled to medical expenses of Rs. 2,09,622. We are of the view that the ends

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of justice would be met by directing a payment of Rs. 9,10,000/- . The claimant

shall be entitled to interest at the rate of 9 per cent per annum from the date of

the filing of the petition. The insurer shall deposit the compensation along with

interest before the Tribunal within twelve weeks which shall be disbursed to the

claimant on proper identification.  

13 For the above reasons, we set aside the impugned judgment and order

of the High Court. Both the appeals are disposed of in terms of the directions

issued above. There shall be no order as to costs.              

 ............................................CJI

                                 [DIPAK MISRA]  

             ……...................................... ...J

                      [A M KHANWILKAR]

           ….............................................J

                     [Dr D Y  CHANDRACHUD]

New Delhi March  06, 2018