MAC APP 264/2005 Page 1 of 30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16
th
November, 2011
Pronounced on: 3
rd
January, 2012
+ MAC.APP. 264/2005
UTTARANCHAL TRANSPORT CORPORATION
..... Appellant
Through: Mr. R.K. Kapoor Advocate with
Ms. Reetu Sharma Advocate.
versus
NAVNEET JERATH .... Respondent
Through: Mr. Rajat Aneja Advocate with
Ms. Shweta Singh Advocate,
Mr. Vaibhav Jairaj Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T
G. P. MITTAL, J.
1. This Appeal is directed against the judgment dated 17.05.2004
passed by the Motor Accident Claims Tribunal (the Tribunal)
whereby a compensation of ` 11,71,000/- was awarded in
favour of the First Respondent for having suffered amputation
of right hand above elbow and other injuries in an accident
which took place on 20.05.1995. He suffered permanent
disability in respect of his right upper limb to the extent of 85%.
2. The grounds of challenge are that the accident took place on
account of rash and negligent driving of the truck driver who
came from the opposite direction and struck against bus number MAC APP 264/2005 Page 2 of 30
UP-02B-6972 driven by the Appellant’s (Corporation) driver.
The First Respondent also contributed to the accident as he held
his arm outside the window. It is averred that the compensation
awarded is exorbitant and excessive.
3. The First Respondent filed cross objections on the ground that
the compensation awarded is too low and meager and cannot be
said to be just and proper as envisaged under Section 168 of the
Motor Vehicles Act, 1988 (the M.V. Act).
NEGLIGENCE
4. The accident took place on 20.05.1995 when First Respondent
(Navneet Jerath) was travelling in bus number UP-02B-6972
from Nainital to Delhi. First Respondent entered the witness
box as PW-10 and deposed that at about 1:30/1:45 A.M. (in the
night) the bus reached near Gajrola U.P. His son aged about 4½
years was sleeping in his lap. He was sitting on the window
side on the right side of the bus. The witness deposed that the
bus was being driven at a high speed. He noticed a huge impact
and something came scratching from the right side of the bus.
He found his right arm missing and felt tremendous pain. The
bus stopped after a distance of 400-500 meters. A few people
went to the spot in search of his missing arm but it could not be
traced.
5. PW-9 Vinay Kumar corroborated PW-10’s testimony. He
deposed that at about 1;00/1:30 A.M. he was occupying a seat MAC APP 264/2005 Page 3 of 30
in the rear side of the bus. The bus was being driven at a fast
speed when the collision took place. Even after the accident, the
bus stopped at a distance of about half a km. He deposed that
the claimant pointed out that his right arm was missing. The
bus was reversed to the place of the accident. With the help of
some torches the Claimant’s right arm was tried to be traced but
the same was not found.
6. The Tribunal by the impugned judgment held that the driver of
the offending bus was not produced. There was no reason to
disbelieve PW-8 and PW-10’s testimonies. The Tribunal
applied the principle of res ipsa loquitor and held that the
accident took place on account of rash and negligent driving by
the bus driver. It is urged by the learned counsel for the
Appellant that the accident occurred on account of rash and
negligent driving of the truck coming from the opposite
direction. The driver and the owner of the truck have not been
impleaded in the petition. In any case, the driver and owner of
the truck were equally responsible and without them being
impleaded, compensation could not have been awarded against
the Appellant.
7. The second limb of argument on negligence is that since the
First Respondent kept his arm outside the window, he was
equally at fault and the compensation awarded to be reduced on
account of First Respondent’s contributory negligence. I see no
reason to disagree with the conclusion reached by the Tribunal MAC APP 264/2005 Page 4 of 30
with regard to the negligence of the driver of bus number UP-
02B-6972 for more than one reason.
8. Firstly, there was no negligence on First Respondent’s part in
placing his elbow/arm on window sill which I would deal in
detail a little later. The driver of the bus was not produced by
the Appellant Corporation to prove the manner of the accident.
Thus, it could not be said that there was no negligence on the
part of the bus driver or that the truck driver was at fault.
Assuming that the driver of the bus number UP-02B-6972 and
the truck driver were equally responsible, this would be a case
of composite negligence. In such cases, it is for the victim to
elect as to against which of the two tortfeasors he would
proceed to claim the compensation. In this connection, I am
supported by a judgment of the Supreme Court in T.O. Anthony
v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under :-
“6. 'Composite negligence' refers to the
negligence on the part of two or more persons.
Where a person is injured as a result of negligence
on the part of two or more wrongdoers, it is said
that the person was injured on account of the
composite negligence of those wrongdoers. In such
a case, each wrongdoer is jointly and severally
liable to the injured for payment of the entire
damages and the injured person has the choice of
proceeding against all or any of them. In such a
case, the injured need not establish the extent of
responsibility of each wrongdoer separately, nor is
it necessary for the court to determine the extent of
liability of each wrongdoer separately. On the MAC APP 264/2005 Page 5 of 30
other hand where a person suffers injury, partly
due to the negligence on the part of another person
or persons, and partly as a result of his own
negligence, then the negligence of the part of the
injured which contributed to the accident is
referred to as his contributory negligence. Where
the injured is guilty of some negligence, his claim
for damages is not defeated merely by reason of
the negligence on his part but the damages
recoverable by him in respect of the injuries stands
reduced in proportion to his contributory
negligence.”
9. As far as the First Respondent’s plea of placing his arm / elbow
on window sill is concerned, it is important to note that the
Appellant Corporation’s bus was running on night service. It is
no where the Appellant’s case that First Respondent had flung
his arm outside the window. Most of the passengers do sleep
while travelling in a bus running in the dead of night. It was
Appellant’s duty to ensure that the passengers are carried to
their destination with adequate care and safety. It was expected
of the Appellant’s driver to have taken care that his bus would
not come too close to any vehicle coming from the opposite
direction in order to avoid any danger to the safety of the
passengers in which the Appellant’s driver utterly failed.
10. In Delhi Transport Undertaking v. Krishnawanti, 1972 ACJ
423, an accident took place while a passenger was travelling in
a bus resting her elbow on the window. The driver suddenly
overtook a cart carrying logs of wood which were protruding. A
passenger’s elbow struck against a log and she was injured. MAC APP 264/2005 Page 6 of 30
This Court held that there was no contributory negligence on
the part of the passenger and the accident took place because of
the negligent driving of the bus driver. Para 10 of the report is
extracted hereunder:-
“10. It is the duty of the driver of the public buses
to take all steps, which a person of ordinary
prudence would take, to ensure the safety of the
passengers. The driver of the bus in question
cannot be said to be unaware of the fact that the
passengers were in the habit of putting their hands
outside the bus. He could thus foresee that while
overtaking a moving cart if he would not leave
sufficient space between the cart and the bus, there
was a likelihood of the passengers’ arms being
injured. The respondent had elbow on the window
while sitting in the bus. This cannot be said to be
negligent way of sitting. On the other hand it may
be called a slightly more comfortable way of
sitting. The driver having noted the protruding
wooden logs should have ensured a sufficient
space between the bus and the cart while
overtaking it. In case, he found that the oncoming
traffic did not permit him of that much space, it
was his duty not to risk overtaking the cart. The
driver thus was rightly held negligent in
overtaking the cart which resulted in injuries to the
respondent.”
11. The Delhi High Court in Krishnawanti (supra) relied on a
judgment of Punjab High Court in The State of Punjab & Anr.
v. Guranwanti, 1960 PLR 571, where it was held as under:-
"It is well known that often passengers travel with
their elbows resting on the window of the car.
There is no prohibition against it. The plaintiff at MAC APP 264/2005 Page 7 of 30
that time of the morning considering the state of
traffic cannot be said to have failed to use
reasonable care for her safety by resting her below
on the window."
12. In Ramesh Kumar Awasthi v. The Collector, Saharanpur &
Ors., AIR 1982 Allahabad 425, a similar question came before
the Division Bench of Allahabad High Court. The Division
Bench relied on Krishnawanti (supra) and held as under:-
“6. On the perusal of the evidence we are satisfied
that the appellant had kept his elbow on the
window sill when the accident occurred. It was the
duty of both the drivers to ensure safety of the
passengers and for that purpose they should have
taken care to leave sufficient space between the
two vehicles at the time of crossing each other. The
story introduced by Satvir Singh (DW2) that the
accident occurred as the driver of the bus coming
from the opposite direction wanted to save a cow
is a cock and bull story. No evidence has been
produced to prove that story. The driver's evidence
would have been the best evidence to prove the
circumstances which led to the accident but he was
not produced. The drivers of the two buses were
employees of the Corporation and they were best
persons to state the truth about the accident but
they were not produced for the reasons best known
to the Corporation. The two drivers had special
knowledge of the manner in which the accident
took place and the reason for the two buses
crossing each other with such closeness as to
cause the accident. The Corporation did not
produce them. Consequently, the irresistible
conclusion is that if they had been produced their
testimony would have gone against the case set up
by the Corporation. It is well settled that if a MAC APP 264/2005 Page 8 of 30
witness having special knowledge of the facts is
withheld it is legitimate to draw an adverse
inference against that party. In our opinion, the
two drivers were best persons to explain the
circumstances which led to the accident and since
the Corporation did not produce them we have to
proceed on the assumption that the accident
occurred on account of their negligence.
Moreover, the fact that the two buses plying on a
wide road, crossed each other so closely without
there being any justification for the same itself
proves the negligence of the two drivers.
9. It is a matter of common knowledge that
passengers sitting near the window rest their hand
on the window sill specially when on a long
journey in the country-side. The driver of a bus
carrying passengers on long journeys is expected
to have knowledge of this fact. The drivers of the
two buses were bound to take precaution against
the possibility that while grazing each other some
person might be placing his hand or elbow on the
window sill. Since the two vehicles came too close
to each other resulting into accident without there
being justification for the same it has to be
presumed that the drivers had failed to take
reasonable care for the safety of passengers and
therefore they were negligent. In Jamnagar Motor
Transport Union v. Gokaldas Pitambar's L.Rs.
(1966 ACJ 42) the Supreme Court in a similar
situation where the two buses grazed while
crossing each other held that both the drivers were
negligent. The view that we are taking has been
taken by various High Courts in a number of
cases. Reference may be made to State of Punjab
v. Smt. Guranwanti (AIR 1960 Punj.490), Sushma
Mitra v. M.P.S.R.T.C. (1974 ACJ 87), Delhi
Transport Undertaking v. Krishnawanti (1972 ACJ MAC APP 264/2005 Page 9 of 30
423) and General Manager State Road Transport
Corpn. v. Krishnan (1981 ACJ 273).
10. We are then faced with the question as to
whether the appellant was guilty of contributory
negligence as his right hand elbow was protruding
out of the bus and for that reason he was not
entitled to any compensation. On the evidence on
record it is well established that the appellant was
resting his right elbow on the window sill at the
time when the accident occurred. Bool Chand,
Conductor of the bus has stated that a portion of 2
1/2" of the appellant's right elbow was protruding
outside the bus. His statement thus makes it amply
clear that the appellant had not taken his arm out
of the window, in-stead while resting his hand on
the window sill a small portion of his hand 2 1/2"
was protruding out of the bus. This is a normal for
a passenger who sits on the seat near the window
to rest his hand on the window sill. There is no law
prohibiting resting of hand on the window sill or
protruding small part of the body outside the bus.
There is further no evidence on record to show
that any signboard was placed in the bus warning
the passengers from placing their elbows or hands
on the window sill. The conductor also did not
state that on seeing the bus coming from the
opposite direction he had warned the appellant to
keep his elbow inside the bus. In Sushma Mitra v.
M. P. State Road Transport Corporation (1974
ACJ 87) it was held that the appellant was not
guilty of contributory negligence in keeping his
elbow on the window sill because it is common
practice for the passengers who sit near the
window to rest their arm on the window and there
was no evidence that the passengers were
cautioned not to do so. The Court held that the
passenger was not guilty of any contributory
negligence. We would like to emphasize that the MAC APP 264/2005 Page 10 of 30
evidence on record shows that the place where the
accident occurred was outside the town and the
traffic was not heavy and there was ample space
for the two vehicles to pass each other without
coming close. If the drivers had taken adequate
care for the safety of the passengers the accident
could not have occurred in the manner it has
happened in the present case. There is also no
evidence that the bus coming from the opposite
direction blew its horn or that the appellant was
cautioned by the conductor or the driver on seeing
the bus coming from the opposite direction to
remove his hand from the window sill. The
appellant was going on a long journey from
Meerut to Rishikesh and in that" process it was
quite natural for him to rest his hand on the
window sill. It appears that two vehicles were
being driven with excessive speed as merely by the
impact the appellant's fore-arm was slit and
severed instantaneously leaving no time for the
appellant to withdraw his hand. These
circumstances show that the appellant was not
guilty of negligence by placing his elbow on the
window sill.”
13. Simply because the First Respondent was resting the elbow on
window sill and even if his elbow was protruding by a few
inches, it was the duty of Appellant’s driver to drive the bus in
such a manner that there is safe distance between the two
vehicles. That having not been done, it has to be held that the
accident took place on account of rash and negligent driving of
driver of bus number UP-02B-6972 owned by the Appellant. MAC APP 264/2005 Page 11 of 30
QUANTUM OF COMPENSATION
14. The First Respondent was aged about 35 years on the date of
the accident and was a successful Chartered Accountant (CA)
paying income tax on the date of the accident and even much
before that. Because of the injuries suffered by him, the First
Respondent remained admitted in Sir Ganga Ram Hospital from
21.05.1995 to 27.05.1995 for traumatic amputation of right arm.
He was operated upon for debridement and closure of stump.
The First Respondent was then admitted in Vohra Nursing
Home, Rajouri Garden where he remained admitted till
02.06.1995. The Tribunal awarded the compensation under
various heads which can be extracted from Para 30 of the
judgment in a tabulated form:-
1. Reimbursement of medical expenses ` 30,000/-
2. Permanent disability/loss of future
earning
` 5,76,000/-
3. Pain, sufferings and loss of enjoyment of
amenities of life
` 2,00,000/-
4. Provision of artificial limb ` 3,15,000/-
5. Special diet/conveyance/other assistant ` 50,000/-
TOTAL COMEPNSATION ` 11,71,000/-
15. In the Claim Petition filed before the Tribunal a compensation
of ` 75 lacs was claimed. It was averred that the First
Respondent would have to visit UK or USA to get artificial MAC APP 264/2005 Page 12 of 30
limb and would have to arrange a sum of ` 6 to 7 lacs for the
same. Considering his visits for replacement of the artificial
limbs 7-8 times, the expenses under that head were assessed to
be ` 42 to 45 lacs. It was stated that the First Respondent had
already spent a sum of ` 75,000/- on his treatment, special diet
and conveyance.
16. The First Respondent averred (in the Claim Petition) that he
possessed a handsome personality, quick movement, sharpness
and was of jovial nature. He had to attend various offices i.e.
Income Tax, Sales Tax, Registrar of Companies on behalf of his
clients and loss of the right arm would always be a handicap to
him. He was a Treasurer of Lion’s Club Delhi. As a CA he had
a very bright future and his earning capacity was affected to the
extent of 85%.
17. In the written submissions filed before the Tribunal on
04.04.2004 and in this Appeal more details were filed and a
compensation of ` 89,23,000/- was claimed which is extracted
as under:-
Particulars Average
span of
Active
Professional
Practice
upto
Amount
(in ` )
(i) Cost of Artificial limb every 7/8
years (Average life of Artificial
Limb). The Petitioner could not
35 years 15,00,000/-MAC APP 264/2005 Page 13 of 30
opt for it because of paucity of
funds, since cost is ` 4 to 5 lacs
the average is taken for
computation. As per Endolite
(PW11, Ex.PW11/A &
Ex.PW11/B), it will require a
change after every 7 years.
(ii) Cost for automatic designed car `
6,25,000/- meant for disabled
persons as the Petitioner has lost
his right arm (3 cars in 20 years
would be required during this
remaining spend of life).
35 years 18,75,000/-
(iii) Salary to Attendant for minimum
20 years @ ` 4,000/- x 12 months
x 20 years on an average, though,
in future the salary of the
Attendant would also increase.
35 years 9,60,000/-
(iv) Salary to Driver ` 3,500 x 12
months x 20 years on an average,
though, in future the salary of the
Driver would also increase.
35 years 8,40,000/-
(v) Cost of medicines, special diabetic
diet etc. ` 1,500 per month x 12
months x 20 years
35 years 3,60,000/-
(vi) Physiotherapy present cost ` 1,200
x 12 months x 20 years and
conveyance, which will increase in
future.
35 years 2,88,000/-
(vii) For pain, agony and suffering and
loss amenities of life, loss of
society, social status, marital life
etc. etc., which will also increase
in future. With 85% disability all
around social status will fact not
only his future prospects but also
--- 1,00,000/-MAC APP 264/2005 Page 14 of 30
his life span and that of his wife,
who has already grown in
appearance and for prospects of
education and marriage of
children.
(viii) Disfigurement deformity at 85% --- 15,00,000/-
(ix) To loss of income from
21.05.1995:
(a) One year total disablement;
(b)Loss of earnings; and
(c) Future prospects of loss of
income with the increased
income.
35 years 15,00,000/-
TOTAL AMOUNT 89,23,000/-
18. The principle governing grant of compensation in injury and
death cases is to place the claimant in almost the same financial
position as they were in before the accident. In Concord of
India Insurance Co. Ltd. v. Smt. Nirmala Devi & Ors., 1979 (4)
SCC 365, the Supreme Court observed that the determination of
compensation must be liberal, not niggardly since the law
values life and limb in a free country in generous scales.
19. In General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Mrs. Susamma Thomas & Ors.,
1994 ACJ 1, the Supreme Court held as under:-
“5……The determination of the quantum must
answer what contemporary society "would deem to MAC APP 264/2005 Page 15 of 30
be a fair sum such as would allow the wrongdoer
to hold up his head among his neighbours and say
with their approval that he has done the fair
thing". The amount awarded must not be niggardly
since the law values life and limb in a free society
in generous scales'. All this means that the sum
awarded must be fair and reasonable by accepted
legal standards.”
20. In Oriental Insurance Co. Ltd. v. Ram Prasad Varma & Ors.,
2009 (2) SCC 712, the Supreme Court held that the expression
‘just’ must be given its logical meaning. Though, the
compensation awarded cannot be a bonanza or a source of profit
but in considering as to what would be just and equitable, all
facts and circumstances must be taken into consideration.
21. As per the disability certiciate Ex.PW-1/A, the First Respondent
suffered amputation of right arm above elbow. He suffered
85% permanent physical impairment in relation to his right
upper limb. The question of grant of compensation in respect of
permanent disability, particularly, with reference to loss on
earning capacity came up for consideration before the Supreme
Court in Raj Kumar V. Ajay Kumar & Anr., 2011 (1) SCC 343,
the Supreme Court held as under:-
“5. The provision of the Motor Vehicles Act, 1988
('the Act' for short) makes it clear that the award
must be just, which means that compensation
should, to the extent possible, fully and adequately
restore the claimant to the position prior to the
accident. The object of awarding damages is to
make good the loss suffered as a result of wrong MAC APP 264/2005 Page 16 of 30
done as far as money can do so, in a fair,
reasonable and equitable manner. The court or
tribunal shall have to assess the damages
objectively and exclude from consideration any
speculation or fancy, though some conjecture with
reference to the nature of disability and its
consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also
for the loss which he suffered as a result of such
injury. This means that he is to be compensated for
his inability to lead a full life, his inability to enjoy
those normal amenities which he would have
enjoyed but for the injuries, and his inability to
earn as much as he used to earn or could have
earned. [See C.K. Subramonia Iyer v. T.
Kunhikuttan Nair, AIR 1970 SC 376, R.D.
Hattangadi v. Pest Control (India) (P) Ltd., 1995
(1) SCC 551 and Baker v. Willoughby, 1970 AC
467.
6. The heads under which compensation is
awarded in personal injury cases are the
following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been injured,
comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.MAC APP 264/2005 Page 17 of 30
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of
normal longevity).
In routine personal injury cases, compensation
will be awarded only under heads (i), (ii)(a) and
(iv). It is only in serious cases of injury, where
there is specific medical evidence corroborating
the evidence of the claimant, that compensation
will be granted under any of the heads (ii)(b), (iii),
(v) and (vi) relating to loss of future earnings on
account of permanent disability, future medical
expenses, loss of amenities (and/or loss of
prospects of marriage) and loss of expectation of
life.
7. Assessment of pecuniary damages under
item (i) and under item (ii)(a) do not pose much
difficulty as they involve reimbursement of actuals
and are easily ascertainable from the evidence.
Award under the head of future medical expenses -
item (iii) - depends upon specific medical evidence
regarding need for further treatment and cost
thereof. Assessment of non-pecuniary damages -
items (iv), (v) and (vi) -involves determination of
lump sum amounts with reference to circumstances
such as age, nature of injury/deprivation/disability
suffered by the claimant and the effect thereof on
the future life of the claimant. Decision of this
Court and High Courts contain necessary
guidelines for award under these heads, if
necessary. What usually poses some difficulty is
the assessment of the loss of future earnings on MAC APP 264/2005 Page 18 of 30
account of permanent disability - item (ii)(a). We
are concerned with that assessment in this case.
Assessment of future loss of earnings due to
permanent disability
8. Disability refers to any restriction or lack of
ability to perform an activity in the manner
considered normal for a human-being. Permanent
disability refers to the residuary incapacity or loss
of use of some part of the body, found existing at
the end of the period of treatment and
recuperation, after achieving the maximum bodily
improvement or recovery which is likely to remain
for the remainder life of the injured. Temporary
disability refers to the incapacity or loss of use of
some part of the body on account of the injury,
which will cease to exist at the end of the period of
treatment and recuperation. Permanent disability
can be either partial or total. Partial permanent
disability refers to a person's inability to perform
all the duties and bodily functions that he could
perform before the accident, though he is able to
perform some of them and is still able to engage in
some gainful activity. Total permanent disability
refers to a person's inability to perform any
avocation or employment related activities as a
result of the accident. The permanent disabilities
that may arise from motor accidents injuries, are
of a much wider range when compared to the
physical disabilities which are enumerated in the
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act,
1995 ('the Disabilities Act' for short). But if any of
the disabilities enumerated in Section 2(i) of the
Disabilities Act are the result of injuries sustained
in a motor accident, they can be permanent
disabilities for the purpose of claiming
compensation.MAC APP 264/2005 Page 19 of 30
9. The percentage of permanent disability is
expressed by the Doctors with reference to the
whole body, or more often than not, with reference
to a particular limb. When a disability certificate
states that the injured has suffered permanent
disability to an extent of 45% of the left lower
limb, it is not the same as 45% permanent
disability with reference to the whole body. The
extent of disability of a limb (or part of the body)
expressed in terms of a percentage of the total
functions of that limb, obviously cannot be
assumed to be the extent of disability of the whole
body. If there is 60% permanent disability of the
right hand and 80% permanent disability of left
leg, it does not mean that the extent of permanent
disability with reference to the whole body is 140%
(that is 80% plus 60%). If different parts of the
body have suffered different percentages of
disabilities, the sum total thereof expressed in
terms of the permanent disability with reference to
the whole body, cannot obviously exceed 100%.
10. Where the claimant suffers a permanent
disability as a result of injuries, the assessment of
compensation under the head of loss of future
earnings, would depend upon the effect and impact
of such permanent disability on his earning
capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as the
percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of
economic loss, that is, percentage of loss of
earning capacity, arising from a permanent
disability will be different from the percentage of
permanent disability. Some Tribunals wrongly
assume that in all cases, a particular extent
(percentage) of permanent disability would result
in a corresponding loss of earning capacity, and
consequently, if the evidence produced show 45% MAC APP 264/2005 Page 20 of 30
as the permanent disability, will hold that there is
45% loss of future earning capacity. In most of the
cases, equating the extent (percentage) of loss of
earning capacity to the extent (percentage) of
permanent disability will result in award of either
too low or too high a compensation.
11. What requires to be assessed by the
Tribunal is the effect of the permanently disability
on the earning capacity of the injured; and after
assessing the loss of earning capacity in terms of a
percentage of the income, it has to be quantified in
terns of money, to arrive at the future loss of
earnings (by applying the standard multiplier
method used to determine loss of dependency). We
may however note that in some cases, on
appreciation of evidence and assessment, the
Tribunal may find that percentage of loss of
earning capacity as a result of the permanent
disability, is approximately the same as the
percentage of permanent disability in which case,
of course, the Tribunal will adopt the said
percentage for determination of compensation (see
for example, the decisions of this Court in Arvind
Kumar Mishra v. New India Assurance Co. Ltd.
2010 (10) SCC 254 and Yadava Kumar v. D.M.,
National Insurance Co. Ltd. 2010 (10) SCC 341.
12. Therefore, the Tribunal has to first decide
whether there is any permanent disability and if so
the extent of such permanent disability. This means
that the tribunal should consider and decide with
reference to the evidence:
(i) whether the disablement is
permanent or temporary;
(ii) if the disablement is permanent,
whether it is permanent total MAC APP 264/2005 Page 21 of 30
disablement or permanent partial
disablement,
(iii) if the disablement percentage is
expressed with reference to any
specific limb, then the effect of such
disablement of the limb on the
functioning of the entire body, that is
the permanent disability suffered by
the person.
If the Tribunal concludes that there is no
permanent disability then there is no question of
proceeding further and determining the loss of
future earning capacity. But if the Tribunal
concludes that there is permanent disability then it
will proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical
evidence, it has to determine whether such
permanent disability has affected or will affect his
earning capacity.
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain
what activities the claimant could carry on in spite
of the permanent disability and what he could not
do as a result of the permanent ability (this is also
relevant for awarding compensation under the
head of loss of amenities of life). The second step
is to ascertain his avocation, profession and nature
of work before the accident, as also his age. The
third step is to find out whether (i) the claimant is
totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry
on the activities and functions, which he was
earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his MAC APP 264/2005 Page 22 of 30
previous activities and functions, but could carry
on some other or lesser scale of activities and
functions so that he continues to earn or can
continue to earn his livelihood.
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual
loss of earning capacity may virtually be hundred
percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a
clerk in government service, the loss of his left
hand may not result in loss of employment and he
may still be continued as a clerk as he could
perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in
the case of a driver or carpenter, nor 60% which is
the actual physical disability, but far less. In fact,
there may not be any need to award any
compensation under the head of 'loss of future
earnings', if the claimant continues in government
service, though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not found suitable for discharging the duties
attached to the post or job which he was earlier
holding, on account of his disability, and may
therefore be shifted to some other suitable but
lesser post with lesser emoluments, in which case
there should be a limited award under the head of
loss of future earning capacity, taking note of the
reduced earning capacity.”
22. The Appellant’s grievance is that the amount of compensation
awarded is exorbitant and excessive whereas the First
Respondent’s contention is that although he could never be MAC APP 264/2005 Page 23 of 30
placed in the position in which he was before he lost his right
arm but he has to be awarded compensation to be placed in the
same financial position. On behalf of the First Respondent, it is
contended that he wanted to have the latest artificial limb
manufactured by Endolite and cost of one such limb would be `
11 to 13 lacs.
23. It is urged that the compensation awarded towards loss of
earning capacity was on the lower side. The First Respondent
being a CA would use his right hand in his day to day activities;
the Tribunal fell into error in reducing 85% disability in respect
of the right upper limb to be 50% with respect to the whole
body. It is argued that no compensation has been awarded for
future medical expenditure / physiotherapy; for arrangement of
a driver; for arrangement of an attendant and for purchase of a
automatic vehicle.
24. On the other hand, it is urged on Appellant’s behalf that the
First Respondent had not purchased any artificial limb (as per
his own showing) till the arguments in the Appeal were heard
which would show that the First Respondent really did not need
the artificial prosthesis. It is averred that the Tribunal was
benevolent in granting 50% of future income towards the loss of
earning capacity when the disability of 85% was only with
respect to the right upper limb. MAC APP 264/2005 Page 24 of 30
LOSS OF FUTURE EARNING CAPACITY
25. First Respondent’s income tax returns were placed on record
since Assessment Year (AY) 1994-95 when the Respondent
returned the income of ` 32,300/-. In the next year, the First
Respondent had taxable income of ` 62,200/-; in the next AY
1996-97, although, the gross receipts had increased but the
taxable income was almost at the same level i.e. ` 62,200/-. The
Tribunal, therefore, took the First Respondent’s monthly
income to be ` 6,000/- per month, estimated the loss of earning
capacity to be 50% and applied the multiplier of 16 to compute
the loss of future earning capacity as ` 5,76,000/-.
26. Considering the First Respondent’s job who was to carry out the
writing work would also use the Desktop and Laptop in the
present day, the Tribunal was right in assessing the loss of
earning capacity in view of Raj Kumar (supra) as 50%. The
three income tax returns placed on record including the two
previous Assessment Year would show that the First
Respondent’s income gradually increased from AY-1994-95 to
AY-1996-97. The First Respondent was entitled to be given an
addition of 50% of the income towards future prospects. The
compensation for loss of earning capacity at the rate of ` 6,000/-
would come to ` 7,72,800/- (` 6,000/- x 12 – 7600/- (income
tax) + 50% x 16 x 50%). MAC APP 264/2005 Page 25 of 30
FUTURE MEDICAL EXPENSES/IMPLANTATION OF
ARTITIFICIAL LIMB.
27. The First Respondent as PW-1 deposed that he would feel pain
in his right limb and had to go for physiotherapy periodically.
He deposed that he would spent ` 1200/- to ` 1500/- for taking
medicines for diabetes and other health problems like high
Cholesterol level. First Respondent did not lead any evidence
to prove that he suffered diabetes and high level of Cholesterol
because of the accident. The Tribunal rightly declined to grant
any compensation for the same. At the same time, considering
the nature of injuries suffered, it can be inferred that the First
Respondent would require physiotherapy from time to time. I
award lump sum compensation of ` 15,000/- towards future
medical expenses/physiotherapy.
28. The bone of contention between the parties is with regard to the
purchase of artificial prosthesis. During inquiry before the
Tribunal, the First Respondent himself proved the quotation
Ex.PW-11/A and PW-11/B to show the price of the prosthesis
as ` 2,98,100/-. PW-11 Rajender Kumar examined by the First
Respondent deposed that artificial limb had been provided to
about 900 patients with 100% success rate. The maintenance
cost for a period of five years was given by him to be `15,000/-.
At the time of the Appeal, quotation of another version of that
very company was placed on record whose costs is quoted as `
11,13,000/-. It is urged by the learned counsel for the First MAC APP 264/2005 Page 26 of 30
Respondent that since he (the First Respondent) was a
professional CA he was expected to have meetings with his
high ranking clients and attend various conferences and
therefore, needed the latest prosthesis as was mentioned in the
quotation dated 04.04.2011. It is submitted that one prosthesis
may last from 7-8 years and therefore, the First Respondent
would need five prosthesis considering his life expectancy to be
75 years.
29. On the other hand, it is submitted by the learned counsel for the
Appellant that the fact that the First Respondent did not go for
purchase of any prosthesis till hearing of the appeal would
speak volume that he really did not need any artificial limb or
he might have purchased a cheaper version.
30. It was the First Respondent himself who wanted an artificial
limb from Endolite and proved its quotation through PW-11 for
` 2,98,000/-. It is contended on First Respondent’s behalf that
the artificial limb could not be purchased because of non-release
of the compensation. I would not agree. The compensation was
released to the First Respondent as and when he applied for the
same during pendency of the appeal. Considering that the First
Respondent was a professional CA and would need an artificial
limb to carry out day to day activities to the extent possible, I
would grant the cost of two artificial limbs and the
compensation of ` 3,15,000/- is increased to ` 6,30,000/-
including the cost of maintenance as ` 30,000/-. MAC APP 264/2005 Page 27 of 30
PROVISION OF AN ATTENDANT/DRIVER
31. First Respondent examined PW-9 Rohit Kumar who deposed
that he was working as Assistant with First Respondent since
1995. He was initially getting a salary of ` 1200/- per month
which was subsequently raised to ` 2500/- per month. In crossexamination the witness deposed that in the year 1995 when he
joined the services of the First Respondent six employees were
working with him. Even in those days, he (First Respondent)
would take some officials with him during his visits to the ITO.
Once the First Respondent was granted compensation towards
loss of earning capacity, he was not entitled to any
compensation for engaging office assistance. At the same time,
considering First Respondent’s status he would need help of a
driver in driving his motor car who can also double up as his
personal attendant.
32. The Tribunal granted a sum of ` 50,000/- as lump sum
compensation towards special diet, conveyance and attendant.
The minimum wages of a skilled worker on the date of the
accident were ` 1919/- per month. If a young driver between
the age of 25-35 was employed by him, he would help in
ferrying the First Respondent from one place to another place
and would also help him in carrying his day to day activities. I
would apply the multiplier of 16 to the salary of a driver and
would award him a compensation of ` 2,000/- x 12 x 16 = `
3,84,000/-. In view of provision made for a driver, the First MAC APP 264/2005 Page 28 of 30
Respondent would not be entitled to any compensation for
purchase of an automatic motor car.
33. I would further award him a sum of ` 10,000/- towards special
diet and ` 5,000/- for conveyance for attending to the doctor.
PAIN AND SUFFERING / LOSS OF AMENITIES /
DISFIGUREMENT
34. A compensation of ` 2,00,000/- was granted to the First
Respondent for pain and suffering, loss of amenities of life and
loss of expectancy. In the case of Raj Kumar (supra) it was
held that where compensation of more than 50% of loss of
earning capacity is granted, the compensation for loss of
amenities in life should be nominal.
35. In this case, I have granted a compensation of 50% towards the
loss of earning capacity. There are a catena of judgments where
compensation of ` 3,00,000/-was awarded towards loss of one
limb above elbow or above knee. In S.Achuthan v. M. Gopal, 3
(2003) ACC 765 (DB), a compensation of ` 3,00,000/- was
granted towards pain and suffering in the case of fracture
Tibia/Fibula left leg and neurological injuries. In the case of
Oriental Insurance Company Limited v. Vijay Kumar Mittal &
Ors. 2008 ACJ 1300 after referring to a number of decision, this
Court awarded a sum of ` 2.5 lacs towards non pecuniary
damages for the loss of right leg below knee i.e. 60% permanent
disability.MAC APP 264/2005 Page 29 of 30
36. In the circumstances, I would award a sum of ` 1,00,000/- each
towards pain and suffering, towards loss of amenities in life and
towards disfigurement.
REIMBURSEMENT OF MEDICAL EXPENSES
37. The First Respondent placed on record bills for purchase of
medicines for ` 8,000/- and paid ` 20,945/- towards treatment
in Sir Ganga Ram Hospital. Grant of compensation of `
30,000/- under this head cannot be faulted.
38. The overall compensation granted by the Tribunal and by this
Court is extracted in the tabulated form as under:-
Head of Compensation Granted by
the Tribunal
Granted by
High Court
1. Reimbursement of medical
expenses
` 30,000/- ` 30,000/-
2. Permanent disability/loss of
future earning
` 5,76,000/- ` 7,72,800/-
3. Pain, sufferings and loss of
enjoyment of amenities of life
` 2,00,000/- ` 3,00,000/-
4. Provision of artificial limb ` 3,15,000/- ` 6,30,000/-
5. Special diet/conveyance/other
assistant
` 50,000/-
6. Future medical expenses/
Future Physiotherapy
-- ` 15,000/-
7. Provision of a driver-cumattendant
` 3,84,000/-
8. Special Diet and conveyance
for attending to the doctor
` 15,000/-MAC APP 264/2005 Page 30 of 30
TOTAL 11,71,000/- 21,46,800/-
39. The Tribunal awarded interest @ 6% per annum from the date
of filing of the petition till the date of payment. The interest
rates were quite low at the beginning of this century which
impelled the Tribunal to award interest at the rate of 6% per
annum. The accident took place in the year 1995. The interest
rates were very high at that time. Again there is rise in the
interest rate on account of inflation being in doubt digits. In the
circumstances, the First Respondent would be entitled to
interest @ 7.5 % per annum throughout.
40. 75% of the enhanced amount along with its interest shall be
held in FDR in UCO Bank, Delhi High Court Branch for a
period of seven years, on which First Respondent would be
entitled to payment of interest on quarterly basis. Rest of the
amount along with interest shall be released to the First
Respondent forthwith.
41. In the result, MAC APP.264/2005 filed by the Appellant
Corporation is dismissed and the cross objections filed by the
First Respondent are allowed in above terms. No costs.
42. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 03, 2012
vk
