Holding

Compensation must be assessed based on the circumstances at the date of the accident; the appellant failed to prove permanent total disablement and suppressed material facts, so the appeal is dismissed.

Summary

The appellant, a driver for the Cantonment Board, was injured in a road accident and claimed Rs 17.94 lakh under Section 166 of the Motor Vehicles Act, 1988 for permanent disability and loss of earnings. The Motor Accident Claims Tribunal awarded Rs 85,000, which the High Court enhanced to Rs 3,75,000 on the basis of a 40% disability assessment. The Supreme Court examined whether the claim fell under Section 166 or Section 163A, the applicability of the Workmen's Compensation Act, 1923, and the proper basis for calculating compensation. It held that the appellant had suppressed material facts about his premature retirement and failed to prove permanent total disablement, and that compensation must be assessed as of the date of the accident. Consequently, the Court found no infirmity in the lower courts' judgments and dismissed the appeal, leaving the awarded compensation intact.

Issues considered

Whether a claim filed under Section 166 of the Motor Vehicles Act, 1988 is within the jurisdiction of the Motor Accident Claims Tribunal and whether Section 163A applies.
Whether the Workmen's Compensation Act, 1923 is applicable to the present claim.
Whether compensation should be determined based on the state of affairs at the date of the accident or on subsequent events.
Whether the appellant's injury constitutes 'total permanent disablement' under the 1923 Act.
Whether the appellant's suppression of facts regarding his retirement and pension affects the quantum of compensation.
Whether the High Court erred in enhancing the compensation to Rs 3,75,000 on an assumed 40% disability.

Legislation cited

Motor Vehicles Act, 1988s. 163A, s. 166, s. 167
Workmen's Compensation Act, 1923s. 2(e), s. 2(i), s. 4

Subjects

Motor Vehicles ActCompensationPermanent disabilityTotal disablementWorkmen's Compensation ActSuppression of factsJurisdictionAccident claim

Judgment

[2008] 13 S.C.R. 1232

A RAMPRASAD BALMIKI
v.
ANIL KUMAR JAIN & ORS.
(Civil Appeal No. 5949 of 2008)
OCTOBER 1, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Motor Vehicles Act, 1988:

Motor Vehicle accident - Permanent disability - Claim
C - Tribunal awarded a sum of Rs. 85, 000/- to the victim - En-
hanced to Rs. 3, 75, 0001- by High Court observing that extent
of injuries suffered was 40% - Correctness of - Held: Amount
of compensation should be determined having regard to state
of affairs as existing on the date of occurrence - In the instant
D case, claimant suppressed facts before the Tribunal about his ·
premature retirement on account of permanent disability - A
claim for obtaining 100% compensation in lieu of permanent
disability must be supported by reasons - But no such mate-
rial has been furnished by the claimant - Doctor, who treated
E the claimant did not state that he had sustained any perma-
nent disability - Moreover, shortening of leg does not come
within the purview of permanent total disablement even under
1923 Act - Under the circumstances, no interference with the
impugned judgment called for ~ Workmen's Compensation
F Act, 1923.
'Total disablement' and 'total permanent disablement' -
Distinction between.
Appellant was working as a driver with the Canton-
G ment Board. While he was riding on a two-wheeler, a
Tempo allegedly driven rashly and negligently by respon-
dent No.1 collided with his two-wheeler. Appellant sus-
tained injuries, he was hospitalized and allegedly, under-
went three operations and his right leg got shortened. He

H 1232
RAMPRASAD BALMIKI v. ANIL KUMAR 1233 ·
JAIN & ORS.

filed a claim petition before the Motor Accident Claims A
Tribunal in terms of Section 166 of the Motor Vehicles Act,
1988 claiming a sum of Rs. 17.94 lakhs for sustaining per-
manent disability in his right leg and expenses in treat-
ment, etc. Long after the said accident, he was referred to
the Civil Surgeon, who declared him unfit to drive a ve- B
hicle pursuant whereto an order of premature retirement
from service on medical ground was passed by the au-
thorities. In the meantime, the Tribunal awarded a sum
of Rs. 85,000/- as compensation. On appeal, the High
Court enhanced the amount of compensation to Rs. c
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%. Hence the present appeal.
Appellant contended that the Tribunal as also the
High Court have committed a serious error insofar as they D
failed to take into consideration that 'total disablement'
would mean 'disablement from doing his job in which he
was engaged'.
Respondents submitted that in absence of any stat-
ute or statutory rule or any other material, the functional E
disability would be the same as loss of earning capacity,
and in that view of the matter, once the structured for-
mula is applied for the purposes of computing the amount
of compensation, what is relevant is not only the income
earned by the appellant but also the extent of purported F
disability suffered by him; and that since the correct mul-
tiplier has been applied, the impugned judgment warrants
no interference.
Dismissing the appeal, the Court
G
HELD: 1.1 Appellant filed an application in terms of
Section 166 of the Motor Vehicles Act and not in terms of
Section 163A thereof. It is not a case where even the
Workmen's Compensation Act, 1923 was applicable. (Para
- 5) (1239,C] H
1234 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 1.2 The jurisdiction exercised by the Tribunal in terms
of Section 163A and Section 166 of the Act is different. ·
(Para -- 5) [1239,D]
Rajesh Kumar@ Raju v. Yudhvir Singh & Anr. (2008) 8
SCALE 497 - relied on. · · · ·
B
1.3 Ordinarily, the amount of compensation should
be dete·rmined having regard to the state of affairs as was
existing on the date on which the cause of action arose.
This Court, however, does not mean to lay down a law
c that the subsequent event(s) can never be taken into con-
sideration but it must be placed on record that for the said
purpose another application would not be maintainable
subsequently. (Para - 5) [1240,F-G]
1.4 Appellant in this case is guilty of suppression of
D facts. With a view to obtain a just compensation, he should t

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
E arrive at a conclusion as regards the quantum of 'just
compensation'. (Para - 6) [1240,H; 1241,A]
2.1 There exists a distinction between a 'total disable-
ment' and 'total permanent disablement' as contained in
Schedule I Part I of the 1923 Act. Sufferance of fracture by
F itself resulting in shortening of leg to some extent does
not come within the purview of the 'permanent total dis-
ablement' even under the 1923 Act. (Para - 9) [1242,D-E]
2.2 PW-3, who had treated the appellant, did not say
that the appellant had sustained any permanent disabil-
G
ity. (Para - 9) [1243,B]
2.3 The High Court correctly proceeded on the as- •
sumption that the extent of permanent disability suffered
by the appellant is only 40% and not 100%. In that view of
H the matter alone he was found to have lost earning ca-
RAMPRASAD BALMIKI v. ANIL KUMAR 1235
> JAIN & ORS.

pacity to the tune of Rs.2000/- per month having regard A
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 quan-
tum of damages and the same was required to be taken into B
.consideration. The High Court, therefore, Was more than lib- .
eral in awarding the said amount of compensation in favour
of the appellant. (Para -10) [1243,G-H; 1244,A-B]

Grifan v. Sarbjeet Singh & Ors. (2000) 9 SCC 338 - held
inapplicable. c
~ 2.4 A claim for obtaining 100% compensation for his
-j
permanent disability must be supported by reason. How-
ever, no material has been brought on record by the ap-
pellant in this regard. (Para - 10) [1244,D-E]
... D
National Insurance Co. Ltd. v. Mubasir Ahmed and Anr.
(2007) 2 sec 349 - relied on.
2.5 In the facts and circumstances of the case, no infir-
mity is found in the impugned judgment. (Para-11) [1244,E]
E
Case Law Reference
(2008) 8 SCALE 497 relied on Para - 5
'l (2000) 9 sec 338 held inapplicable Para - 10
_.. (2001) 2 sec 349 relied on Para - 10 F
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5949
~ of 2008
From the final Judgment and Order dated 27.4.2006 of ·
the High Court of Madhya Pradesh, Bench at Gwalior in Misc. G
Appeal No. 67 of 2003

·;, Ankur Mody, Shashi M. Kapila, Kush Chaturbedi and '{ikas
Mehta for the Appellant.
Dr. Meera Agarwal and R.S. Mishra for the Respondents.
H
1236 SUPREME COURT REPORTS [2008] 13 S.C.R.
<

A The Judgment of the Court was delivered by

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-
B 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 frac-
ture in his. right femur bone as also tibia bone of his right leg. He
was hospitalized. Allegedly, he underwent three operations. The
c 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 sustain-
ing permanent disability in his right leg, loss of service, loss of
leave, deficiency and expenses in treatment, etc.
0
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 de-
clared him unfit to drive a vehicle pursuant whereto an order of
E 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 state-
F ment, 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
G permanent disability. A contention was also raised that the ac-
cident had taken place due to his own negligence.
On the said pleadings of the parties, the Tribunal, inter •
alia, framed the following issues.
H "1. Whether driver Non-applicant No. 1 of Non applicant
RAMPRASAD BALMIKI v. ANIL KUMAR 1237
) JAIN & ORS. [S.B. SINHA, J.]

No. 2 by driving rashly and negligently Tempo No. A
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?
c< B
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.
i c
So far as the question relating to the amount of compen-
sation 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
D
-1 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 E
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 made it clear that there was any chance of his promotion
-( in future, which has come to an end now, therefore on the F
... -+ basis of Rs.5,000/- per month salary claimed for 20 years,
'1 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
i how much pension he will get and after reducing the same
G
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
-
-f
•,
H
1238 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 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
B 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
C 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, 0001- opining that even as per the
certificate issued by the Medical Board, the extent of perma-
0
nent disability suffered by him was 40%, holding: ~

"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
E 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
F 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
Hi~Jh Court have committed a serious error insofar as they failed
to take into consideration that 'total disablement' would mean
G '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 Oeo v. Srinivas Sabata & Anr.
[(1976) 1 sec 289]. It was furthermore submitted that in any ..
event the High Court should have granted a higher amount of
H compensation keeping in view loss of his future prospect. ~
RAMPRASAO BALMIKI v. ANIL KUMAR 1239
JAIN & ORS. [S.B. SINHA, J]

4. Mr. R.C. Mishra, learned counsel appearing on behalf A
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 for-
mula is applied for the purposes of computing the amount of B
compensation, what is relevant is not only the income earned
by the appellant but also the extent of purported disability suf-
fered by him, that is, the multiplicand and as in this case the
correct multiplier has been applied, the impugned judgment
warrants no interference. c
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 ..
D
The jurisdiction of the Tribunal to make an award is con-
fined to determination of the kind of compensation which ap-
pears to it to be just. The jurisdiction exercised by the Tribunal
in terms of Section 163A and Section 166 of the Act is differ-
ent. This distinction has been noticed by this Court in Rajesh
Kumar @ Raju v. Yudhvir Singh &Anr. [2008 (8) SCALE 497} E
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 F
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, G
a case where the claimant could have filed at his 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 H
1240 SUPREME COURT REPORTS [2008] 13 S.C.R.
•
A 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. •
Und_er Section 163A of the Act, however, the question of
8 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,
c '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
D
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
E 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,
+
F would also be applicable." ~

Ordinarily, the amount of compensation should be deter-
mined 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
G
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.
H With a view to obtain a just compensation, he should have
6
,.

_)
RAMPRASAD BALMIKI v. ANIL KUMAR 1241
JAIN & ORS. rs.s; SINHA, J.]

placed all relevant materials on record. The benefits to which A
he was found to be entitled to pursuant to the order of retire-
ment 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 ma-
terials have not been placed before the Tribunal is best known B
to the appellant. We do not know whether he had received any
other or further amount ap.art from the amount of pension. We
are also n.ot aware as to whether any of his ·dependants ob-
tained an appointment on compassionate ground on medical
invalidation, and if sµch a Scheme had been framed by-the c
employer. It has also not been disclosed as to at whose instance
he wa,s referred to Civii Surgeo'n gnd was not examined by a
Medrcal Board of the Cantonment Board itself.

7. The Civil Surgeon of Gwalior, Dr. R.P. Sharma had
granted the certificate of disabHity in favour of the appellant only D
on.-, the. basis of the X-ray reports ..
~

. ·. In his deposition, he,stated:
"It is' true that 1. mys~lf h·as not treated the' a:pplic~nt
· Ramprasad. The certifi~ate given by me is based on the E
record of treatment of the applicant, self examinatidn 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 c;annot say that Whether there is X-ray plate
which I have asked pr not. It is true to. say .that in my F
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.' · · G
".
h 8. It is not a case where the claimant had an option to file
;

> a cJaim 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 H
1242 SUPREME COURT REPORTS [2008] 13 S.C.R.

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 capacity" as by
loss of his left hand he was evidently rendered unfit for the work
B of carpenter as the same was not possible to be done by one
hand only. This Court, however, although took notice of the defi-
nition of the term 'total disablement' as contained in Section
2( 1)(I) of the 1923 Act but had no occasion to consider the pro-
viso appended thereto, which reads as under:
C "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
D those injuries, amount to one hundred per cent or more;"
!3. 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 pur-
E view 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
F 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 next column 40% is
written. But for that it is not clearly mentioned that what is
G 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
H
RAMPRASAD BALMIKI v. ANIL KUMAR 1243
~
·1 JAIN & ORS. [S.B. SINHA, J]
\
.. ,
case the doctor who have issued the identity card should A
..' be produced in evidence. But the applicant has not
produce the doctor who have issued the identity card in
1 evidence.

~
PW-3 Dr. B.P. Purohit, who had treated the appellant, did
not say that the appellant had sustained any permanent disabil- B
ity.
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 c
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

-•J ,;
he has given the statement. This witness has not made it
clear that because of injuries to the appli<:;ant, permanent D
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- E
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 aforesaid discussion on the
basis of evidence produced by the applicant it is not F
i "
-) 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, cor-
· rectly proceeded on the assumption that the extent of perma- G
nent disability suffered by the appellant is only 40% and not
\'
I 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 re-
gard to the fact that he had been getting a salary of Rs.4,847/-
~ . per month. Even otherwise, the amount of pension which he H
-"
1244 SUPREME COURT REPORTS [2008] 13 S.C.R.
' ..
A had been receiving and other benefits at the time of his retire-
ment, which if invested, would have mitigated the quantum of
damages and the same was required to be taken into consid- ,."
eration. The High Court, therefore, in our opinion, was more
than liberal in awarding the said amount of compensation in
B 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
c 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 of the legs
can be made up with specially manufactured shoes. A person

D
can even drive a vehicle even with artificial limbs.
A claim for obtaining 100% compensation for his perma-
nent disability must be supported by reason as has been held
-
~

by this Cou1i 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.
E
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.
F S.K.S. Appeal dismissed.
...
~

~

(

;

-