Judgment:
S.P. Wangdi, J. (Oral)
1. This Appeal under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment of the Motor Accident Claims Tribunals, East Sikkim at Gangtok, dated 10.11.2014 in MACT Case No. 6 of 2014, by which compensation of Rs. 15,09,541/- (Rupees fifteen lakhs nine thousand five hundred forty one) was awarded to the Appellant for the loss of his left leg in an accident of the vehicle belonging to Respondent No.2, insured with the United Insurance Company Limited, Respondent No. 1.
2. The Appellant had sustained the injury when around 18.00 hrs of 10.01.2012 the vehicle, Maxx Festiva Jeep bearing No.Sk-01-J/0382, in which he was travelling, met with an accident at Chyandara, Malangthang-Ranka Road, East Sikkim. It resulted in his left leg being amputated and a prosthetic limb inserted that require replacement periodically.
3. In the Appeal, the Appellant has challenged the judgment only on one of the components of the award, i.e., on the loss of earning, at sl. No.1 of the compensation calculated in paragraph 38 of the impugned judgment.
4. By referring to paragraph 22 of the impugned judgment, it was submitted that the Claims Tribunal fell in error in rejecting the earning capacity of the Petitioner @ Rs.15000/- being the salary offered to him by the Managing Director, M/s. Yakthung Manpower and Security Services (P) Ltd., Siliguri, West Bengal, as would appear from Exhibit 14 being a certificate issued by the Managing Director of that Company.
5. Mr. Ajay Rathi, Learned Counsel for the Appellant, would submit that Exhibit 14 would clearly reveal that the Petitioner had been offered with a job opportunity in the Company in the month of December, 2011 and that he was to join the service from the month of February, 2012, but due to the accident he was unable to do so. He pointed out that in the letter Exhibit 14 it has been stated that the Petitioner had been offered salary of Rs. 15000/- (Rupees fifteen thousand) which he would have earned from February, 2012 but was deprived of it due to the injury. This as per the Learned Counsel, had been rejected by the Claims Tribunal on grounds that were quite presumptuous and in a manner that was quite cryptic.
6. Mr. Thupden G. Bhutia, Learned Advocate, appearing for the Respondents No.1-Insurance Company, resisting the Appeal, submitted that there was no error in the finding of the Claims Tribunal. As rightly held by it, the Appellant was not at all employed in the Security Company at the time of the accident and, therefore, the question of loss of his earning to the extent of Rs. 15,000/- (Rupees fifteen thousand) as salary, would not have arisen at all.
7. Relying on Raj Kumar v. Ajay Kumar and Anr. : (2011) 1 SCC 343, it was submitted that the decision of the Claims Tribunal was in consonance with the law laid down therein whereby it has been held that while deciding on the permanent disability it has, inter alia, to ascertain the actual extent of permanent disability of the claimant based on the medical evidence while deciding on the capacity of his earning. It was then contended that the question of his in-capacity would not arise since, even as of now, the Appellant continues to receive his pension as an Ex-Service Man.
8. I have duly considered the respective contentions of the Learned Counsel for the parties and have examined the impugned judgment and the records of the case and, in my view, there is considerable force in the submissions of the Learned Counsel for the Appellant.
9. The document, Exhibit 14., the certificate issued by M/s Yakthung Manpower and Security Services (P) Ltd., is the document which would be crucial for determination of the issue involved in the case. It clearly states in most clear and unambiguous terms that the Appellant had been "given job opportunity in Manpower and Security Services, as Field Officer in the month of December, 2011 and he had to join his services from the month of February, 2012, but due to his accident he was unable to join the said services. He was offered a salary to the tune of Rs. 15000/- (Rupees fifteen thousand) only". The authencity of this document has not been disputed both before the Claims Tribunal and this Court. The document undeniably and in most unequivocal terms states that the Appellant had to join the service from the month of February, 2012 but was unable to do so due to the accident and that he had been offered salary to the tune of Rs. 15,000/- (Rupees fifteen thousand) only per month.
10. It is not anybody's case that the Appellant did not intend to join the service so offered. To the contrary, it is the firm case of the Appellant that he would have earned the salary of Rs. 15,000/- (Rupees fifteen thousand) in the service offered to him which he was going to join. The accident had taken place on 10.01.2012 which is a date after the offer of service in December, 2011 and before the date on which he was supposed to join the services, i.e., February, 2012.
11. In the aforesaid circumstances, I am of the view that the Claims Tribunal fell in error in holding that the document Exhibit 14 was only an offer of the job and that as he never joined the said service, he could not have earned Rs. 15000/- (Rupees fifteen thousand). When it is clear that he suffered from the injury resulting in his left leg being amputed, from below the knee, the question of him joining the service could not have arisen and that it is also abundantly clear that his inability to join the service had caused him loss of assured earning of Rs. 15,000/- (Rupees fifteen thousand) only as salary in terms of Exhibit 14. It is unmistakable that this salary was in exclusion of the pension of about Rs. 3,529/- (Rupees three thousand five hundred twenty nine) that he was already earning as an Ex- Service Man.
12. In the very case of Raj Kumar v. Ajay Kumar And Another (Supra) it has been already as under-
"13. 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 disability (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. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or a carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
(underlining mine)
13. The aforesaid decision was also relied upon by this Court in Branch Manager, New India Assurance Company Limited v. Bikram Chettri and Another, AIR 2011 Sikkim 45, to decide on the very question under consideration before us.
14. In the present case, as noted earlier, the Appellant was offered the job of a Field Officer by the Security Services which, as per the document Exhibit 14 issued by the Managing Director of the Company, could not be taken up by the Appellant due to his accident. Having regard to the nature of the service offered to the Appellant and the nature of the injury which he had suffered, apart from the fact that he was about 46 years of age at the time of accident, i.e., 10.01.2012, which would mean that he is now past 49 years, there can be no doubt of the fact that loss of earning is 100% following from what has been held in Raj Kumar v. Ajay Kumar And Another (Supra). The Appellant certainly could not have served as a Field Officer in a Security Company with an amputated leg replaced by a prosthetic limb. The consequence of the injury is that he is completely deprived of the job offered to him.
15. For the aforesaid reasons, the Appeal deserves to be allowed and is accordingly allowed.
16. Consequently, the award on loss of earning calculated in paragraph 30 of the impugned judgment stands modified as follows:-
Rs. 15000 x 12 x 13 = Rs. 23,40,000/-
(Rupees twenty three lakhs forty thousand) only.
17. Resultantly, the total amount of compensation worked out in paragraph 38 of the impugned judgment shall stand modified to the above extent which shall be as follows:-
| 1. | Loss of earnings | Rs. 23,40,000.00/- |
| 2. | Medical expenses | Rs. 1,26,835.00/- |
| 3. | Transportation expenses | Rs. 32,182.00/- |
| 4. | Non-pecuniary damages | Rs. 3,00,000.00/- |
| 5. | Future medical expenses along with replacement of prosthetic limb | Rs. 3,00,000.00/- |
| 6. | Cost of attendant | Rs. 2,00,000.00/- |
| Total | Rs. 32,99,017.00/- |
18. The rest of the award as regards interest shall remain unaltered. The Respondent No.1 shall ensure that the Appellant is paid the aforesaid compensation in the form of a demand draft within a period of 6 (six) weeks from this day making it clear that in the event of there being any deficiency in payment of the Court fee by the Appellant, it shall be made good by him.
19. A copy of this order and the original trial record be transmitted to the Claims Tribunal at Gangtok forthwith for compliance.
Appeal allowed.