Kalyan Jyoti Sengupta, J.
1. This appeal is preferred against the judgment and order of the learned trial Judge of Motor Accidents Claims Tribunal (Tenth Additional District Judge, Alipore) passed in proceeding under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the said Act'). The appellant was the claimant before the learned court below which awarded a sum of Rs. 85,886 on account of compensation as against her claim of Rs. 5,00,000. The facts of the case involved in this appeal are stated in short hereunder:
The appellant met with an accident on 5.11.1998 at about 11.15 a.m. while she was travelling by autorickshaw and proceeding towards Pal Bazar, Behala, 24-Paraganas (South). A Matador van bearing registration No. WB 03-A 0666 came from opposite direction and dashed against the autorickshaw in which she was travelling. She suffered fractures on six ribs on the right side and also sustained head injury. She was taken to A.M.R.I. Hospital and she remained there for treatment from 5.11.1998 to 17.11.1998. After her release from A.M.R.I. Hospital she felt that she had developed respiratory trouble on the right side and found her right hand had been impaired so much so that she could not lift or carry any object. She could not lie on her right side. She claimed she had to spend a sum of Rs. 50,000 for medical treatment because of the accident. She made the aforesaid claim in aggregate on account of shock, mental agony, loss of income and for other expenses. The claim was contested by National Insurance Co. Ltd. The appellant-claimant examined herself and also examined one Dipika Roy (Karmakar), an employee of the school in which she was an Assistant Teacher. A doctor, PW 3, was also examined who is said to have certified that the claimant had developed respiratory problems and had suffered partial and permanent disability of 50 per cent on account of the accident. He, however, said that he did not treat the claimant. That apart, another witness was examined who was a fellow passenger in the same autorickshaw.
2. Insurance company did not examine anyone.
3. The learned trial Judge, upon considering the respective pleadings, framed as many as six issues which are mentioned below:
(1) Is the claim case maintainable?
(2) Did the claimant Mukti Majumder sustain injuries in a motor accident? If so, what was the nature of injury?
(3) Did the accident take place due to rash and negligent driving on the part of the driver?
(4) Was the vehicle No. WB 03-A 0666 involved in the accident? Was it duly insured?
(5) Is the claimant entitled to compensation? If so, to what amount and against whom?
(6) To what relief or reliefs, if any, is the claimant entitled?
4. It appears from the impugned judgment and order that the learned trial Judge after deciding issue No. 1 in favour of the claimant-applicant proceeded to deal with issue Nos. 2 to 6 collectively. The learned trial Judge, on appreciation of evidence, found that the autorickshaw and the said van were involved in the accident and such accident occurred due to rash and negligent driving of the bigger vehicle. While awarding compensation, the learned trial Judge found that the loss of earning capacity of the claimant was assessable at 35 per cent and followed the structured formula as provided under Section 163-A of the Motor Vehicles Act. Following the structured formula, he awarded a sum of Rs. 94,080 being the non-pecuniary loss and damages and a sum of Rs. 5,000 and Rs. 11,806 on account of pecuniary damages which included medical expenses and the loss of income during the period of the treatment. A sum of Rs. 25,000 paid under Section 140 of the Act was deducted from the aggregate amount of compensation/award.
5. Appellant was not satisfied with the quantum of compensation on the ground that the nature of the injury and disablement entitled her to a larger sum.
6. Learned Counsel Mr. Krishanu Banik appearing for the appellant, contends that learned trial Judge had committed grave error in law while equating the loss of income with the extent of injury. He contends that the well settled principle of law is that loss of income cannot be equated with the loss of earning capacity, which stands on a different footing. Compensation has to be quantified and awarded on the basis of loss of earning capacity. According to him, the test as to the loss of earning capacity is whether the victim is capable of undertaking all possible work which she could undertake at the time of the accident. The nature of injury found by the doctor, is 50 per cent permanent disability. After the accident she cannot perform all possible work which she could do before the accident. It is true that she had been earning as she did before the accident. She could have earned more than what she was earning. But this was not the factor to be considered. Because of accident she lost her mobility. She continues to suffer from pain. She cannot lift any weight with her right hand. She cannot lie down on the right side. These amount to loss of her earning capacity. In support of his submissions, he has relied on a number of decisions of various courts including of this court and of the Apex Court which are enumerated: Calcutta Licensed Measurers v. Md. Hussain 1969 ACJ 92 (Calcutta), a Division Bench of this court; R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. : [1995]1SCR75 ; Mohanbhai Gemabhai v. Balubhai Savjibhai : (1993)1GLR249 ; Executive Engineer, Nawarangpur Electrical Division v. Istapan Gonda : 96(2003)CLT173 judgment of the learned single Judge of Orissa High Court); Andhra Pradesh State Road Trans. Corporation v. S. Dhanamjaya Reddy : 2001(6)ALD790 .
7. The learned Counsel appearing for National Insurance Co. Ltd. contends that there was no infirmity or illegality in the findings of the learned trial Judge. He had proceeded to decide the matter as per established principles of law. In the evidence it was found that there was neither loss of income nor any loss of earning capacity. It is an admitted position that she resumed duty and thereafter continued as a teacher. At the time of the accident she was a teacher and after the accident she resumed her duties as a teacher. Therefore, the injuries resulting from the accident had not changed her earning capacity. Moreover, compensation in case of loss of earning capacity has to be awarded only on the basis of evidence that there was real loss of earning capacity which was a result of the accident. It is not the case here. The decisions cited by the learned Counsel for the appellant are not applicable in the present case. The circumstances in which compensation could be awarded on account of loss of earning capacity had been decided by this court in Atanu Kumar Ghosal v. National Insurance Co. Ltd. , which was rendered upon considering Supreme Court decision Divisional Controller, Karnataka State Road Trans. Corporation v. Mahadeva Shetty : AIR2003SC4172 and the Full Bench decision of Karnataka High Court Shivalinga Shivanagowda Patil v. Erappa Basappa Bhavihala : (2004)ILLJ1089Kant and also a number of decisions of Division Benches of this court. As such, there is no merit in this appeal and it should be dismissed.
8. While reading the grounds of appeal and examining the contentions of learned Counsel for the parties we find that moot point is whether appellant-claimant is entitled to further compensation on account of alleged partial and permanent disability. The doctor witness certified such disability to the extent of 50 per cent though, in fact, there was no resultant loss of income. The question is whether such partial and permanent disability calls for further compensation towards loss of earning capacity irrespective of actual loss of income.
9. According to Mr. Banik, the law is now well settled. Loss of income is one thing and loss of earning capacity is another and the two cannot be equated. It is possible that even after having sustained serious injury one may continue to earn at the same level or be retained by the employer whether on sympathy or otherwise. But that is not the real test. The principle is whether the victim is capable of undertaking all possible jobs as he or she was before accident. In other words, whether the saleability of the services ordinarily rendered by the victim had been diminished. This principle of law has been discussed in a fairly old decision of this court rendered in the case of Calcutta Licensed Measurers v. Md. Hussain 1969 ACJ 92 (Calcutta). In this case, on facts it was found that after the accident a workman was receiving a higher salary as a measure of concession or of grace. In substance there was no loss of earnings, but factually it was found that his partial and permanent disablement was caused by the accident and it was such that it was not possible for him to perform the same work that he performed before the accident. Of course, this case was decided under the Workmen's Compensation Act, 1923 but the principle can very well be applied to the present case, where there is no statutory guidance for assessment of damages. The Bench in that case while discussing the two earlier decisions of this court Agent, East Indian Railways v. Maurice Cecil Ryan : AIR1937Cal526 and Sukhai v. Hukam Chand Jute Mills Ltd. : AIR1957Cal601 observed in their lucid manner as follows:.if a workman suffers as a result of an injury from a physical defect which does not in fact, reduce his capacity to work, but at the same time makes his labour unsaleable in any market reasonably accessible to him, there will be either total incapacity for work when no work is available to him at all or there will be a partial incapacity when such defect makes his labour saleable for less than it would otherwise fetch.
10. In Mohanbhai Gemabhai v. Balubhai Savjibhai : (1993)1GLR249 , the Division Bench had followed the same principle while assessing compensation. In para 10 it was held amongst others that:.an attempt of the court to place the claimant in the same financial position as he would have been, had there been no accident.
11. In para 11 it is also observed by the Division Bench amongst other that:
Tribunals must also be conscious of the fact that the compensation awarded should neither be punitive to the person against whom the claim is awarded nor should it be a windfall or bonanza to any person in whose favour it is awarded. The amount of compensation should be just and reasonable in the circumstances and keeping an eye on all the relevant aspects. No doubt, precise assumption or estimation of loss suffered in such cases may be hardly obtainable. In such cases, arithmetic may be a good servant, but would be a bad master. Therefore, the Tribunal is also required to take into account various circumstances including several imponderables and uncertainties of life.
12. Andhra Pradesh High Court in a Bench decision while deciding the case of a claim under Section 166 of the said Act has followed the same principle.
13. The Supreme Court in the case of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. : [1995]1SCR75 , held that the victim was entitled not only for the loss of actual earning but also for the loss in earning capacity. The principle of law on this subject as enunciated in all these decisions is beyond dispute. This court has also accepted such principle and approach. In a recent decision rendered in case of Atanu Kumar Ghosal v. National Insurance Co. Ltd. , after summing up the earlier decisions, it has been held that there must be evidence that on account of partial and permanent disablement the victim lost earning capacity. In that case an insurance agent lost one of his fingers. Even after accident he could perform the same work and his services were also saleable in market. Therefore, factually he did not lose his earning capacity even though he must have been facing inconvenience and discomfort. But it was held that such inconvenience and discomfort could not be equated with the loss of earning capacity.
14. In the case at hand, factually there has been neither loss of income nor loss of earning capacity as the lady even after accident continued in the same job and she was found to be fit therefor. She was not removed to any other position nor was she given salary on account of grace. She was eligible to retire with full benefits. Before the accident, it was possible for her to undertake a job as teacher and no other. We, therefore, do not find any reason to apply the principle in this case. The appellant ought to get nothing more than what has been found due to her by the learned trial court. Hence we do not find any reason to interfere with the judgment and award or to enhance the compensation.
15. This appeal is dismissed without any order as to costs.
Sanjib Banerjee, J.
16. I agree.