D. SAMPATHversusUNITED INDIA INSURANCE CO. LTD. & ANR.

'


                              [2011] 11 S.C.R. 420


    A                             D. SAMPATH
                                        v.
                UNITED INDIA INSURANCE CO. LTD. & ANR.
                        (Civil Appeal No. 7824 of 2011)
                            SEPTEMBER 13, 2011
    B,
                    [G.S. SINGHVI AND H.L. DATIU, JJ.]

               Motor Vehicles Act, 1988 - Compensation -
         Assessment of - Motor vehicle accident - According to the
    C    doctor, the pillion rider suffered 75% disability - Tribunal
         quantified the compensation payable by the Insurance
         Company at a sum of Rs. 3,50,0001- - High Court enhanced
         the compensation to Rs. 4, 90, 0001- , while arriving at the loss
         of earning capacity in a sum of Rs. 8, 16, 0001- and reducing
    D    the disability to 50% - On appeal, held: High Court erred in
         reducing the disability to 50% while calculating the loss of
         income - While making disability assessment, there is an
         element of guess work, but that guess work must have
         reasonable nexus to the available material/evidence and the
    E    quantification made - The Court has the discretion to accept
         either totally or partially or reject the Certificate so produced
         and marked in the trial but, that, can be done only by assigning
         cogent and acceptable reasons - Thus, disability suffered by
         the claimant is taken at 75% and keeping in view the loss of
    F    earning capacity of the claimant assessed by the High Court,
         the loss of earning capacity of the claimant is arrived at Rs.
         6, 12,0001- - Insurance Company directed to deposit the sum
         of Rs.6, 12,0001- with 6% accrued interest.

            A pillion rider of a motor cycle (insured· with
    G respondent-Insurance Company) along with the driver
      met with an accident due to oil spill on the road. The
      pillion rider and the driver sustained injuries and were
      treated in the hospital. The doctor assessed that the
      pillion rider suffered 75% disability. The pillion rider filed
    H                             420
  D. SAMPATH v. UNITED INDIA INSURANCE CO.            421
                 LTD. & ANR.
a claim petition. The Tribunal quantified the               A
compensation payable by the Insurance Company at a
sum of Rs. 3,50,000/-. The High Court enhanced the
compensation to Rs. 4,90,000/-. It arrived at the loss of
earning capacity in a sum of Rs. 8,16,000/- while reduced
the disability to 50%. Therefore, the appellant filed the   B
instant appeal.

    Partly allowing the appeal, the Court

     HELD: 1 While making disability assessment, there
is an element of guess work, but that guess work again C
must have reasonable nexus to the available material/
evidence and the quantification made. In the instant case,
the claimant had not only examined himself to sustain the
claim made in the petition bl!t also PW-3-doctor, who
stated that the claimant suffered 75% disability, by D
referring to the Disability Certificate issued by a
competent doctor who had treated· the claimant. Though
the doctor was cross-examined at length by the advocate
for the Insurance Company, but nothing adverse to the
interest of the claimant is elicited. Therefore, the Tribunal E
rightly accepted the evidence of the doctor-PW-3.
However, the High Court took 50% disability into account
while calculating the loss of income and committed the
said mistake. It is not said that under all circumstances,
the court has to blindly accept the Disability Certificate F
produced by the claimant. The Court has the discretion
to accept either totally or partially or reject the Certificate
so produced and marked in the trial but that can be done
only by assigning cogent and acceptable reasons. In this
view of the matter, the disability suffered by the claimant G
is taken at 75% and the loss of income of the claimant is
calculated keeping in view the loss of earning capacity
of the claimant assessed by the High Court. The loss of
earning capacity of the claimant is arrived at Rs. 6,12,000/
-. The Insurance Company is directed to deposit a .sum H ,
    422      SUPREME COURT REPORTS                [2011] 11 S.C.R.


A   of Rs.6,12,000/- after deducting the amount already paid
    or deposited with accrued interest of 6% from the date
    of filing of the claim petition till its payment before the
    Tribunal within two months from. today. [Paras 5 and 6]
    [423-G-H; 424-A-E]
B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7824 of 2011.

      From the Judgment & Order dated 12.04.2010 of the High
  Court of Judicature at Madras in Civil Miscellaneous Appeal
C No. 2098 of 2002.

        Vivek Sharma, P.B. Suresh. Temple Law Firm for the
    Appellant.

          K.L. Nandwani fer the Respondent.
D
          The Judgment of the Court was delivered by

          H.L. DATTU, J. 1. Leave granted.

E       2. This appeal is directed against the Judgment and Order
    passed by the High Court of Judicature at Madras in Civil
    Miscellaneous Appeal No. 2099 of 2002 dated 12.04.2010.
    By the impugned judgment, the Court has modified the
    compensation awarded by the Motor Accident Claims Tribunal,
    Chennai (for short, "the Tribunal") in MCOP No.1971 of 1998
F   dated 12.02.2002.

        3. The facts are not in dispute. Claimant was a pillion rider
  of a motor cycle which was driven by one A. Sridhar. It met
  with an accident due to oil spill on the road on 14.01.1998 at
G about 7.10 P.M. The claimant and the driver of the vehicle
  sustained injuries. Both of them were treated in the hospital
  for the injuries sustained by them. The vehicle was insured with
  United India Insurance Company Ltd. - respondent No.1 by the
  owner of the vehicle - respondent No.2. The claimant filed
H claim petition before the Tribunal inter-alia requesting to award
  D. SAMPATH v. UNITED INDIA INSURANCE CO.                    423
          LTD. & ANR. [H.L. DATTU, J.]
compensation at a sum of '12,00,000/- (Rupees Twelve lakhs           A
only) under various heads. Claimant had examined himself as
PW-2 and other witnesses, including Dr. J.R.R. Thiagarajan -
PW-3, who had assessed the disability sustained by the
claimant at 75%. The Tribunal, after considering the various
factors, including the medical evidence, had quantified the          B
compensation payable by the Insurance Company at a sum of
Rs.3,50,000/-. Being aggrieved by the compensation so
awarded by the Tribunal, the claimant had preferred Civil
Miscellaneous Appeal No.2099 of 2002, before the High Court
of judicature at Madras. The Court, after re-considering ttie        c
claim of the claimant and re-appreciating the evidence on
record, has enhanced the compensation to Rs.4,90,000/- from
Rs.3,50,000/- awarded by the Tribunal. It is this judgment and
order which is called in question in this appeal.

     4. We have heard learned counsel for the parties to the         D
lis and perused the records.

      5. We do not intend to disturb the judgment and order
passed by the High Court except to a limited extent. The High
Court, while assessing the compensation payable to the               E
claimant, has arrived at the loss of earning capacity in a sum
of Rs. 8,16,000/- and, thereafter, though the Doctor has
assessed 75% disability, has taken into account 50% disability
while calculating the loss of income without any rhyme or
reason. In our view, this is a mistake committed by the High         F
Court. It is no doubt true that, while making assessment, there
is an element of guess work, but that guess work again must
have reasonable nexus to the available material/evidence and
the quantification made. In the instant case, the claimant had
not only examined himself to sustain the claim made in the           G
petition but also Dr. J.R.R. Thiagarajan, PW-3, who has stated
that the claimant has suffered 75% disability, by referring to the
Disability Certificate issued by a competent Doctor who had
treated the claimant. Though the Doctor is cross-examined at
length by learned Advocate for the Insurance Company, nothing
                                                                     H
    424      SUPREME COURT REPORTS                  (2011] 11 S.C.R.


A adverse to the interest of the claimant is elicited. Therefore,
  the Tribunal has rightly accepted the evidence of the Doctor-
  PW-3. However, the High Court has taken 50% disability into
  account while calculating the loss of income. This, in our view,
  is the mistake committed by the High Court. We hastened to
B add that we are not saying that under all circumstances, the
  Court has to blindly accept the Disability Certificate produced
  by the claimant. The Court has the discretion to accept either
  totally or partially or reject the Certificate so produced and
  marked in the trial but, that, can be done only by assigning
c cogent and acceptable reasons. In this view of the matter, we
  take the disability suffered by the claimant at 75% and calculate
  the loss of income of the claimant keeping in view the loss of
  earning capacity of the claimant assessed by the High Court.
  Accordingly, we arrive at the loss of earning capacity of the
  claimant at Rs. 6, 12,000/-.
0
       6. In the result, the appeal 1s partly allowed. We direct
  the Insurance Company to deposit a sum of Rs. 6, 12,000/- after
  deducting the amount already paid or deposited with accrued
  interest of 6% from the date of filing of the claim petition till its .
E payment before the Tribunal within two months from today. On
  such deposit, the Tribunal is directed to release the amount to
  the claimant. No order as to costs.

    N.J.                                      Appeal partly allowed.