REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   5949       OF 2008 (Arising out of SLP (C) No. 17058 of 2006)

RAMPRASAD BALMIKI      … APPELLANT

Versus

ANIL KUMAR JAIN & ORS.             … RESPONDENTS

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellant  was  working  as  a  driver  with  the Cantonment  Board,

Gwalior.  On  or  about  14.5.1997,  he  was  riding  on  a  two-wheeler.  A

Tempo bearing  No. MIH-7952 was allegedly being driven by the  first

respondent rashly and negligently; it collided with the two-wheeler of the

appellant.  Appellant sustained a fracture in his right femur bone as also

tibia bone of his right leg.  He was hospitalized.  Allegedly, he underwent

three  operations.   The  right  leg  of  the  appellant  is  said  to  have  been

shortened.  He filed a claim petition before the Motor Accident Claims

Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988 (for

short,  “the  Act”)  claiming  a  sum  of  Rs.  17.94  lakhs  for  sustaining

permanent  disability  in  his  right  leg,  loss  of  service,  loss  of  leave,

deficiency and expenses in treatment, etc.   

Long after the said accident took place as also after the filing of the

claim petition, he was referred to the Civil Surgeon, Gwalior for medical

check up.   Allegedly, the Civil  Surgeon declared him unfit  to drive a

vehicle pursuant whereto an order of premature retirement from service

on  medical  ground  was  passed  by  the  authorities  of  the  Cantonment

Board.   The driver  and the owner of the vehicle indisputably did not

contest the claim.   

The Insurance Company, however, filed a written statement, inter

alia, raising a contention that as the appellant had obtained a discharge

from J.A. Hospital without permission of Medical Officer and undertaken

treatment  from other  doctors,  he was  himself  responsible  for the sorry

state  of  affairs.   It  was  furthermore  denied  and  disputed  that  he  had

sustained any permanent disability.  A contention was also raised that the

accident had taken place due to his own negligence.   

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On the said pleadings of the parties, the Tribunal, inter alia, framed

the following issues.

“1. Whether  driver  Non-applicant  No.  1  of Non applicant No. 2 by driving rashly and negligently  Tempo  No.  MIH-7952  has caused the accident?

2. Whether  because  of  accident  the applicant  sustained  severe  injuries  and permanent disability on different party of his body?

3. Whether  applicant  is  entitled  to  receive severally  and  jointly  compensation  of Rs.17,94,000/- from Non-applicants?

The issues Nos. 1 and 2 were answered in the affirmative.   

So far as the question relating to the amount of compensation to

which the appellant claimed himself to be entitled to, is concerned, it was

recorded that he had not sustained any kind of permanent disability and,

thus, was not entitled to any amount on that count.  As regards the issue

that he had been made to retire from service having been found to be unfit

to drive a vehicle, the learned Tribunal opined:

“In  the  cross  examination  AW-4  Satish  Dixit has stated that  complete information regarding retirement is mentioned in the Pension Register which has been sent  to department.   From the statement  of  this  witness  it  appears  that  after retirement the applicant will receive pension.  In the departmental evidence the applicant has not

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made it  clear that there was any chance of his promotion in future, which has come to an end now,  therefore  on  the  basis  of  Rs.5,000/-  per month salary claimed for 20 years, the amount of  compensation  which  the  petitioner  has claimed, he is not entitled for the same.  In case if  the applicant  would have  made it  clear  that after retirement how much pension he will get and  after  reducing  the  same  how  much difference  per  month  will  come,  in  such circumstances, proper amount of compensation can be calculated.  Since in the case it has not been  established  that  to  do  any  work  the applicant has rendered completely disabled and when it is found that after retirement he will get the pension, in such circumstances on the basis of  permanent  disability  no  amount  as  claimed for compensation for the same can be allowed but  because  of  actual  loss  sustained  by  him some amount should be allowed to him and the same will  have  to  be  decided  on  the  basis  of best  judgment  keeping  in  view  his  monthly salary.   As  such  after  retirement,  the  loss  of salary  which  the  petitioner  will  have  to  bear, keeping  in  view the  age  of  the  applicant,  the amount of compensation is fixed at Rs.30,000/-. ”

An award for a sum of Rs. 85,000/- was passed by the Tribunal.   

The High Court, however, on an appeal preferred by the appellant

herein against the said judgment enhanced the amount of compensation to

Rs.  3,75,000/-  opining  that  even  as  per  the  certificate  issued  by  the

Medical Board, the extent of permanent disability suffered by him was

40%, holding:

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“Even  assuming  that  the  doctors  have  not proved  any  permanent  disability,  still  it  has come on  record  from the  statement  of  Satesh Dixit  AW-4  that  the  present  appellant  was retired from the services due to the said injury in the year 2001 i.e. after a period of two years as he  was  declared  unfit  for  driving  the  vehicle. Considering this fact, it cannot be said that there is no permanent loss to the earning capacity of the appellant and we assess the loss of earning capacity to the extent of 40%.

3. Mr.  Ankur  Mody,  learned  counsel  appearing  on  behalf  of  the

appellant  would  submit  that  both  the  Tribunal  as  also  the High Court

have  committed  a  serious  error  insofar  as  they  failed  to  take  into

consideration  that  ‘total  disablement’  would  mean  ‘disablement  from

doing his job in which he was engaged’.  Strong reliance in this behalf

has been placed by the learned counsel in  Pratap Narain Singh Deo  v.

Srinivas  Sabata  &  Anr.  [(1976)  1  SCC  289].   It  was  furthermore

submitted that in any event the High Court should have granted a higher

amount of compensation keeping in view loss of his future prospect.   

4. Mr.  R.C.  Mishra,  learned  counsel  appearing  on  behalf  of  the

respondents,  on the  other  hand,  would contend that  in  absence  of  any

statute  or  statutory rule  or  any other  material,  the  functional  disability

would be the same as loss of earning capacity, and in that view of the

matter,  once  the  structured  formula  is  applied  for  the  purposes  of

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computing the amount of compensation, what is relevant is not only the

income earned by the appellant but also the extent of purported disability

suffered by him, that is, the multiplicand and as in this case the correct

multiplier  has  been  applied,  the  impugned  judgment  warrants  no

interference.  

5. Appellant filed an application in terms of Section 166 of the Act

and not in terms of Section 163A thereof.  It is not a case where even the

Workmen’s  Compensation  Act,  1923  (for  short,  “1923  Act”)  was

applicable.

The jurisdiction of the Tribunal to make an award is confined to

determination of the kind of compensation which appears to it to be just.

The jurisdiction exercised by the Tribunal in terms of Section 163A and

Section 166 of the Act is different.  This distinction has been noticed by

this Court in  Rajesh Kumar @ Raju v.  Yudhvir Singh & Anr. [2008 (8)

SCALE 497] holding:

7. The  claim  petition  was  filed  under Section 166 of  the  Act  and not  under Section 163A  thereof.   It  was  contended  by  the claimant-appellant that the driver of the bus in question  was  rash  and  negligent  as  a  result whereof, the accident took place.  By reason of Section 167 of the Act,  an injured person had the option either to file a claim under the Motor Vehicles Act or the Workmen’s Compensation Act,  if  both the Acts apply.  It  is,  therefore,  a case where the claimant could have filed at his

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option  an  application  under  the  Workmen’s Compensation Act.   

Section  163A  provides  for  filing  of  a claim petition where an accident took place by reason  of  use  of  the  motor  vehicle.   It  is  not necessary to prove any fault on the part of the driver  or  the  vehicle.   The  Tribunal  in  a proceeding arising under Section 166 of the Act is  required  to  hold  a  full  fledged  trial.   It  is required to collect  datas on the basis  whereof, the amount of compensation can be determined. Under  Section  163A of  the  Act,  however,  the question of liability and extent of proof thereof are not justiciable.  The Tribunal can determine the  amount  on  the  basis  of  the  basic  datas provided therefor.   

Explanation  appended  to  Section  163A of  the Act, reads, thus :

Explanation.—For  the  purposes  of  this  sub- section,  ‘permanent  disability’  shall  have  the same meaning and extent as in the Workmen’s Compensation Act, 1923.”

8. The  reference  to  Workmen’s Compensation  Act  by  incorporation  was  only for  the  purpose  of  sub-section  (1)  of  Section 163A.   It  was  not  meant  to  apply  in  a  case falling under Section 166 of the Act.  Had the provisions of the Workmen’s Compensation Act been  applicable,  the  procedure  laid  down therein would also apply.  For the purpose of the definition  of  total  disablement  as  also  person who can grant  a certificate therefor,  namely, a qualified medical practitioner, Section 2(e) and 2(i)  would be attracted.   In terms of the  1923 Act, the amount of compensation is required to be  determined as  specified  in  Section 4.   The Rules made in terms of  Section 32 of the Act known  as  Workmen’s  Compensation  Rules 1924, would also be applicable.”

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Ordinarily,  the  amount  of  compensation  should  be  determined

having regard to the state of affairs as was existing on the date on which

the cause of action arose.  We, however, do not mean to lay down a law

that the subsequent event(s) can never be taken into consideration but we

must also place on record that for the said purpose another application

would not be maintainable subsequently.  

6. Appellant in this case is guilty of suppression of facts.  With a view

to  obtain  a  just  compensation,  he  should  have  placed  all  relevant

materials on record.  The benefits to which he was found to be entitled to

pursuant to the order of retirement on medical invalidation were required

to  be  disclosed  before  the  Tribunal  so  as  to  enable  it  to  arrive  at  a

conclusion  as  regards  the  quantum of  ‘just  compensation’.  Why those

materials have not been placed before the Tribunal is best known to the

appellant.  We do not know whether he had received any other or further

amount apart from the amount of pension.  We are also not aware as to

whether  any  of  his  dependants  obtained  an  appointment  on

compassionate ground on medical invalidation, and if such a Scheme had

been framed by the employer.   It  has  also not  been disclosed as  to  at

whose instance he was referred to Civil Surgeon and was not examined

by a Medical Board of the Cantonment Board itself.   

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7. The Civil  Surgeon of Gwalior,  Dr. R.P. Sharma had granted the

certificate of disability in favour of the appellant only on the basis of the

X-ray reports.   

In his deposition, he stated:

“It  is  true  that  I  myself  has  not  treated  the applicant Ramprasad.  The certificate given by me is  based on the record of  treatment  of  the applicant,  self  examination  and  X-ray  report. Himself  said  that  X-ray  of  the  applicant  was also carried out.  After perusing the X-ray plate enclosed in the case, I cannot say that whether there is X-ray plate which I have asked or not. It is true to say that in my certificate I have not mentioned the kind and percentage of disability caused  to  Ramprasad.   It  is  not  necessary  to describe the same in such certificate.”

It is accepted that the appellant obtained treatment from different

Orthopedic specialists.    

8. It is  not a case where the claimant had an option to file a claim

petition either under the Act or under the 1923 Act.   

In Pratap Narain Singh Deo (supra), whereupon reliance has been

placed by Mr. Mody, this Court was dealing with a case under the 1923

Act.  Respondent therein suffered injuries resulting in amputation of his

left arm from the elbow.  In that view of the matter, the Commissioner of

Workmen  adjudged  him  to  have  lost  “100  per  cent  of  his  earning

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capacity” as by loss of his left hand he was evidently rendered unfit for

the work of carpenter as the same was not possible to be done by one

hand only.  This Court, however, although took notice of the definition of

the term ‘total disablement’ as contained in Section 2(1)(l) of the 1923

Act but had no occasion to consider the proviso appended thereto, which

reads as under:

“PROVIDED that  permanent  total  disablement shall  be  deemed  to  result  from  every  injury specified  in  Part  I  of  Schedule  I  or  from any combination  of  injuries  specified  in  Part  II thereof  where  the  aggregate  percentage  of  the loss of earning capacity, as specified in the said Part  II  against  those  injuries,  amount  to  one hundred per cent or more;”

9. There exists a distinction between a ‘total disablement’ and ‘total

permanent disablement’ as contained in Schedule I Part I of the 1923 Act.

Sufferance  of  fracture  by itself  resulting  in  shortening  of  leg  to  some

extent  does  not  come  within  the  purview  of  the  ‘permanent  total

disablement’ even under the 1923 Act.  It is in that view of the matter, the

Tribunal opined:  

“For  sustaining  permanent  disability,  the identity card issued to disabled person by Board is  produced  by the  Applicant  as  Ex.P-8.   On perusal of the said identity card it is found that in  column  No.11  the  nature  and  extent  of disability it is not made clear that what kind of disability was found.  On the contrary below the

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next column 40% is written.  But for that it is not clearly mentioned that what is 40% and if it is  for  disability,  the  kind  of  disability  is  not mentioned.  In such situation on the basis of Ex. P-8 Identity Card it cannot be held that Identity Card  is  issued  to  the  applicant  for  permanent disability.   Although  original  identity  card  in evidence  is  acceptable  but  when  regarding permanent disability the position is not clear, in such  a  case  the  doctor  who  have  issued  the identity  card  should  be  produced  in  evidence. But  the  applicant  has  not  produce  the  doctor who have issued the identity card in evidence.  

PW-3 Dr. B.P. Purohit, who had treated the appellant, did not say

that the appellant had sustained any permanent disability.   

With  regard  to  the  evidence  of  PW-6  Dr.  R.P.  Sharma,  Civil

Surgeon, the Tribunal opined:

“Although AW-6 R.P. Sharma has stated that on request  of  the  Cantonment  Board  Officers  he has examined the applicant and have not found him fit for driving.  This witness has stated that after looking to the photo copy of Certificate he has given the statement.  This witness has not made  it  clear  that  because  of  injuries  to  the applicant, permanent disability was found in the applicant.   The opinion for not finding him fit for  driver,  was  given  by  him  because  bones could not have joint but he has not made it clear whether  joint  of  bones  was  possible  or  not. Keeping in view the statement of this witness it can be held that due to non-joint of bones the applicant  was not  able to work on the post  of driver but it cannot be held that for the work of driver  he  has  become  unfit  for  the  work  of driver  for  ever.   As  such  on  the  basis  of  the

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aforesaid  discussion  on  the  basis  of  evidence produced by the applicant it  is not proved that because of  sustaining injuries  by the applicant in accident the same has caused him permanent disability.”

10. Be  that  as  it  may,  the  High  Court,  in  our  opinion,  correctly

proceeded  on  the  assumption  that  the  extent  of  permanent  disability

suffered by the appellant is only 40% and not 100%.  In that view of the

matter alone he was found to have lost earning capacity to the tune of

Rs.2000/- per month having regard to the fact that he had been getting a

salary of Rs.4,847/- per month. Even otherwise, the amount of pension

which  he  had  been  receiving  and  other  benefits  at  the  time  of  his

retirement,  which  if  invested,  would  have  mitigated  the  quantum  of

damages and the same was required to be taken into consideration. The

High Court, therefore, in our opinion, was more than liberal in awarding

the said amount of compensation in favour of the appellant.  

The  decision  in  Grifan  v.  Sarbjeet  Singh & ors.  [(2000)  9  SCC

338], relied upon by Mr. Mody does not lay down any legal principle.

Although therein medical evidence showed that the claimant had suffered

80% disability, the overall disability was taken at 50% only; of course,

the future prospects have been taken into consideration, as in that case

also the right leg of the claimant had to be amputated.  Some shortening

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of the legs can be made up with specially manufactured shoes.  A person

can even drive a vehicle even with artificial limbs.   

A  claim  for  obtaining  100%  compensation  for  his  permanent

disability must be supported by reason as has been held by this Court in

National Insurance Co. Ltd.  v.  Mubasir Ahmed and Anr. [(2007) 2 SCC

349].  No material has been brought on record by the appellant in this

regard.   

11. For the reasons aforementioned, we do not find any infirmity in the

impugned judgment.  The appeal is dismissed accordingly. However, in

the facts and circumstances of the case, there shall be no order as to costs.

……………….…..………….J. [S.B. Sinha]

..………………..……………J.    [Cyriac Joseph]

New Delhi; October 01, 2008

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