Hon'ble Anil Kumar Sharma,J.
This is an appeal for enhancement of the award dated 26.03.2012 passed by M.A.C.T./Additional District Judge, Court No.3, Kanpur Nagar in M.A.C.P. No. 1044 of 2010, whereby the compensation of Rs. 31,817/- has been awarded to the appellant.
We have heard learned counsel for the appellant and perused the impugned award.
The only point canvassed before us is that learned Tribunal has erred in ignoring the disability certificate of the appellant.
Learned counsel for the appellant submits that as per the certificate dated 01.06.2011 issued by the office of C.M.O. Kanpur Nagar the appellant suffered 40% disability and the learned Tribunal has not awarded a single penny to the appellant for the alleged disability. It has been further argued that the appellant was a driver in U.P.S.R.T.C. but on account of accident he is not performing his duty as a driver. The appellant has got medical reimbursement of his medical claim by the department.
Learned counsel for the appellant could not inform us the amount of medical reimbursement paid to the appellant by U.P.S.R.T.C. and his case is that the department did not allow medical bills for a sum of Rs. 42,404/- and his 15 days salary amounting to Rs. 4413/- was also not paid by the department. Both these amounts have been awarded by the learned Tribunal. Apart from this Rs. 5,000/- has been awarded on account of pain and sufferings.
As regards the permanent disability of the appellant, in the alleged disability certificate it is not specifically mentioned that whether the alleged disability is permanent disability or partial disability or total permanent disablement. It has also not been shown that 40% disability refers to the whole body of the appellant. In this connection, it is important to note the following observations of the Supreme Court given in paras 7 and 8 of case of Raj Kumar vs. Ajay Kumar and another, 2011 (1) TAC 785 (SC),:
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8.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. 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 terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may 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) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).
In this case the Hon'ble Court has given guidelines for assessment of permanent disability and calculating compensation there for, the relevant para is as under:
"13. We may now summarize 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 it 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 percentage of loss of earning capacity is the same as 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 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.
In view of the above guidelines given by the Apex Court, in our opinion, the learned Tribunal has rightly ignored the disability certificate. It has also come in evidence through the testimony of Umesh Chandra Yadav PW-2 that there is no loss of income to the appellant except the travelling allowance. Travelling allowance is not the part of pay package of an employee.
In view of above, we find that learned Tribunal has awarded just and reasonable compensation to the appellant and there is no scope for enhancement. The appeal is merit less and is accordingly dismissed.
Order Date :- 6.8.2012 Imroz