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Evidence to show that as a result of injury the income is reduced or there is a loss of earnings while awarding compensation: high court of Calcutta

Evidence to show that as a result of injury the income is reduced or there is a loss of earnings while awarding compensation: high court of Calcutta

 

It has to be borne in mind, while awarding compensation for future loss of earnings, there must be evidence to show that as a result of injury the income was reduced or there was loss of earnings or he was removed from service on account of disability or he is incapable of doing any work, is upheld by the high court of Calcutta, by the learned bench of Honourable Justice Rajiv Sharma and Honourable Justice Shivakant Prasad, in the case of The New Indian Assurance Co.Ltd V. Sri Sankar Biswas Barman and others, F.M.A. 185 of 2006.

 

FACTS

 

The New India Assurance Co. Ltd. preferred this appeal under Section 173 M.V. Act, 1988 challenging the Order dated 17th March, 2005 passed by the Additional District Judge, 14th Court, Alipore and Motor Accident Claims Tribunal Judge, Alipore in M.A.C. Case No. 283 of 2000 on the grounds inter-alia, that the award assessed by the learned Tribunal for a sum of Rs. 4,02,259/- less already paid a sum of Rs. 25,000/- in the case under no fault liability is illegal and bad in law inasmuch as the learned Tribunal while assessing the amount of compensation failed to consider the fact that the claimant/ respondent was more than 59 years old on the date of accident and that he was due to retire from his service only after 6/7 months from my, the date of accident and as such, multiplier of it should not have been applied in the instant case in view of a decision of the Hon’ble Supreme Court in the case of Maala Prakasha Rao Vs. Maala Janhabi and others reported in (2004) 3 SCC 343.

It is submitted on behalf of the appellant that the injured claimant did not suffer any loss of income for the injury he sustained since as P.W.-1 in the cross-examination he stated in clear crystal term that his income has been increased after the accident and that he did not suffer any loss of income.

 

CONTENTION

 

It is contended on behalf of the appellant that Dr. P. K. Mondal who assessed the permanent partial disablement to the extent of 28% did not treat the injured claimant/respondent for the injury he sustained. He only issued the certificate. He used to issue certificate and adduce evidence on behalf of the injured claimants in different claim cases before the Tribunal. Therefore, his certificate as regards the percentage of permanent partial disablement should not have been accepted by the learned Tribunal.

The learned Counsel for the appellant submits that the award of compensation on account of future loss of earnings ought not have been given as there is no evidence that as a result of injury, income of the injured was reduced rather his salary has increased. This is not a case where there has been loss of earnings for the reason of removal from service on account of disablement incapable of doing any work as he used to do in his job before the accident.

JUDGEMENT

The court is in the opinion that that facts and circumstances of the case is distinguishable from the instant case inasmuch as claimant while riding two wheelers met with the accident having been hit by bus belonging to appellant and he became permanently disabled and lost his earning capacity. The cited decision, therefore, is not apposite to the facts and circumstances of the instant case because in this case the respondent/claimant has not suffered permanent disablement rather he suffered fracture injury. He has also not lost his earning capacity rather his salary was increased by virtue of his service as Deputy Manager of BSNL. It appears to the court that the respondent /claimant suffered pecuniary damages to the tune of Rs Rs. 35,616/- which the victim has actually incurred is capable of being calculated in terms of money as per the vouchers and bills submitted by the claimant before the Claim Tribunal. According to the high court, it is submitted on behalf of the appellant that the injured claimant/respondent is entitled to a sum of Rs. 35,616/- on account of his medical treatment which was supported by cash memos, bills, vouchers and a sum of Rs. 5,000/- on account of pain and suffering as has been awarded by the learned High court. The total amount therefore comes to Rs. 40,616/- out of which the injured claimant/respondent has received Rs. 25,000/- in the case of under Section 140 of the M. V. Act. Therefore, the balance amount of Rs. 15,616/- plus interest from the date of filing the claim case till the date of payment is payable by the appellant/Insurance Company was laid out by the court.

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Judgement reviewed by – Rani Banerjee

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