5. The learned counsel appearing for the Insurance company submitted that the Doctor, who assessed the disability suffered by the claimant as 94%, has categorically stated in his evidence that he has assessed only the percentage of disability suffered by the claimant and not the earning capacity. But, the Tribunal based on the percentage of disability assessed by the Doctor awarded an exorbitant sum of Rs.37,64,114/-. Based on the percentage of disability fixed by the Doctor, the Tribunal can award only on the head permanent disability. Further, as per Schedule I of the Workmen Compensation Act, 1923, for amputation of right leg below knee, the disability can be only fixed as 60%. Hence, the compensation awarded by the Tribunal by fixing the disability as 94% is liable to be set aside and the amount is liable to be modified by fixing the disability as 60%. In this regard, he relied on a decision of the Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar and another reported in (2011) 1 SCC 343.
6. Per contra, the learned counsel appearing for the claimant submitted that the claimant had sustained multiple injuries apart from the amputation of leg. PW2, who was the Headmaster of the school where the claimant was working as a Teacher, has categorically stated that the claimant is not able to work as a Teacher. Under such circumstances, the loss of earning capacity has to be fixed at 100%, but the Tribunal has taken only 94% of amount awarded towards loss of earning power and future prospects. Further, the Tribunal has failed to award a sum of Rs.3,000/- for each percentage of permanent disability. In this regard, the learned counsel for the claimant relied upon a decision of the Hon'ble Supreme Court in Jakir Hussein Vs. Sabir and others reported in 2015 ACJ 721. The amount awarded under the head of Pain and Sufferings, Extra Nourishment, Expenses for Assistants are very meagre. Thus, the amount awarded by the Tribunal has to be enhanced.
7. Keeping the submissions made on either side, we have carefully gone through the entire materials available on record. It is the main submission of the learned counsel for the Insurance Company that PW3 has stated in his evidence that he has assessed the disability as 94%, but he has not assessed the actual percentage of loss of earning power. The percentage of disability and loss of earning power cannot go together and they have to be assessed independently. In this regard, the learned counsel for the Insurance Company placed reliance on the judgment of the Hon'ble Supreme Court in Raj Kumar case, cited supra, wherein at paragraph No.19, the Hon'ble Supreme Court has held as follows;
"19.We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person cannot be assumed to be the percentage of loss of earning capacity. To put in differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv)The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
8.From the reading of the above dictum, it is clear that the loss of earning capacity ought to have been ascertained by the Tribunal based on the evidences. But, in the instant case, the Tribunal has not done so and instead, it has taken the percentage disability suffered by the victim as loss of earning capacity, made the calculation and awarded a sum of Rs.37,64,114/- towards permanent disability, loss of earning capacity and loss of future income. Hence, now this Court has to assess the loss of earning capacity.
9.Admittedly, the claimant was working as Secondary Grade Teacher and earning Rs.23,230/- under Ex.P14 - Salary certificate. The claimant's right leg below knee was amputated. He sustained multiple fractures and underwent several surgeries. According to PW3 - Dr.Ramaguru, the weakness and restrictions of movements are there in both hips and left knee and he cannot fold his legs and thus, he assessed the permanent disability as 94%. According to the claimant, due to amputation of right leg, weakness and restrictions of movements in both hips and left knee, he could not stand and walk without the help of others and in such circumstances, he lost his profession. PW2 - the Headmaster of the school, has also affirmed the same. The learned counsel for the Insurance Company has stated that the claimant has already fixed artificial limb and even if he cannot walk freely, he can do job like tutor, etc. and thus continue his livelihood. Considering these aspects, this Court is of the view that the loss of earning capacity can be fixed as 85%.
10. So far as the permanent disability is concerned, it is submitted by the learned counsel for the Insurance Company that as per Schedule I of the Workmen Compensation Act, 1923, for the amputation of the right leg below knee only 60% of permanent disability can be fixed. But, the Doctor has assessed the permanent disability as 94%. In fact, the claimant has not only sustained amputation of right leg below knee but also he has sustained multiple fractures, which has caused restriction of his movements. Further, according to PW3, the claimant cannot sit freely and fold his legs. Considering these aspects, the Tribunal has held that the disability fixed by the Doctor as 94% can be taken as the disability pertaining to the whole body. We do not find any infirmity in the same. Therefore, the permanent disability fixed by the Tribunal as 94% based on the evidence of the Doctor, is confirmed.
11.The Tribunal, by taking into account the salary of the claimant as Rs.23,230/- and after deducting 15% for income tax, arrived at a sum of Rs.2,36,946/- as annual loss of income and then, added 30% of annual income for future prospects, which comes to Rs.3,08,029/- (Rs.2,36,946 + Rs.71,083/- ). Considering the age of the claimant, the Tribunal rightly fixed the multiplier No.13. By applying the same with the annual loss of income, it comes to Rs.40,04,377/-, out of which, 85% of the amount comes to Rs.34,03,720/-. If Rs.3,000/- is awarded for per percentage of permanent disability, the same comes to Rs.2,82,000/-. Further, we find that a sum of Rs.45,000/- awarded by the Tribunal under the head of pain and sufferings is on the lower side and hence, the same is enhanced to Rs.60,000/-. The amount awarded by the Tribunal under the other heads appear to be reasonable and hence, the same are confirmed. Consequently, the total amount of Rs.49,67,570/- awarded by the Tribunal is reduced to Rs.49,14,176/- as under:
Loss of income and loss of future prospects 34,03,720/- Permanent disability 2,82,000/- Pain and Sufferings 60,000/- Transport expenses 2,26,737/- Extra nourishment 20,000/- Expenses for assistants 10,000/- Medical expenses 7,54,019/- Expenses for artificial limb 1,07,700/- Future medical expenses 50,000/- -------------- Total 49,14,176/- ---------------
12.In fine, Both the appeals are disposed of accordingly. No costs.
The compensation awarded by the Tribunal is reduced to Rs.49,14,176/- . The Insurance company is directed to deposit the entire award amount with 7.5% interest per annum from the date of petition till the date of deposit, less the amount already deposited, if any, before the Tribunal, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimant is permitted to withdraw entire amount with interest and costs. Excess amount, if any, had already been deposited, the same shall be withdrawn by the Insurance company.
Index : Yes (R.P.S., J.) (J.N.B., J.) Internet : Yes 03.03.2017 gcg To 1.The Motor Accidents Claims Tribunal cum III Additional District Judge, Tirunelveli. .