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. 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 parts of his body 3. Whether applicant is entitled to receive severally and jointly compensation of Rs. 17,94,000/- from Non-applicants The issue 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 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 "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 and Another ((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.;