published in http://judis.nic.in/supremecourt/filename=40489
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4814 OF 2013
(arising out of SLP(C)No.6282 of 2011)
NEERUPAM MOHAN MATHUR …. APPELLANT
VERSUS
NEW INDIA ASSURANCE CO. ….RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. The present appeal is filed by the claimantappellant
against the judgment of Punjab and Haryana High Court at
Chandigarh in FAO No.693 of 1989, whereby the High Court
granted a meager enhancement in the amount of compensation
awarded to him by the Motor Accident Claims Tribunal
(hereinafter referred to as 'the Tribunal').
3. The facts involved in the present case are as follows:
The claimant was employed as a 'Product Design
Engineer' in M/s. Utility Engineers (India) Ltd. Dharuhera,
1Page 2
District Mohindergarh, Haryana. The employer had arranged
for a Chartered Bus belonging to M/s. National Tours &
Travels, F4, East of Kailash, New Delhi, 2nd respondent
before the Tribunal for carrying the employees to the
factory at Dharuhera and back; one Pritam Singh, 1st
respondent before the Tribunal was the driver of the said
bus. On 2nd September, 1987, the claimant along with his
colleagues was coming back from Dharuhera in the said
Chartered Bus bearing Registration No.DBP805. At about 6
p.m. when the said Bus reached near the turning of village
Shikohpur on GurgaonJaipur Highway, it came across a truck
coming from opposite direction which was crossing a camel
cart in front of it. Pritam Singh, who was driving the bus
at a very high speed, carelessly, rashly and negligently
attempted to cross the above said truck without keeping the
Bus to the extreme left hand side. This resulted in a
collision of right hand side of the bus with the truck,
which resulted in severance of right hand of the claimant
who was sitting in the right side of the bus. The said
accident and the mishappenings thereto were witnessed by
the occupants of the bus. One Anil Kumar, PW3, who was
also travelling in the said Chartered Bus at the time of
2Page 3
the said accident, took the claimant to the Civil Hospital,
Gurgaon from where he was given medical firstaid and he
was referred to Safdarjang Hospital, New Delhi. The
claimant was later on transferred to ‘Dr. Ram Manohar Lohia
Hospital’, New Delhi and thereafter he was also treated in
different Hospitals at various stages. The matter was also
reported to the Police by Anil Kumar, PW3.
4. The cliamant filed a petition under Section 110A of
the Motor Vehicles Act, 1988 claiming Rs.12 lacs as the
compensation for the loss of the right hand which was
amputated near the shoulder, on various counts.
5. The respondents contested the claim of the claimant.
The Tribunal after perusing oral and documentary evidence
held that the accident took place due to rash and negligent
driving by Driver, Pritam Singh of Bus No.DBP805. The
Issue No.1 was thus decided in favour of the claimant.
While assessing the compensation under Issue No.2, the
Tribunal awarded a compensation of Rs.3,20,000/ with
interest at the rate of 12% per annum.
6. In the appeal preferred by the claimant the High Court
taken a loss of earning capacity to 70% in view of
3Page 4
permanent disability of right hand. Based on salary of
Rs.3,000/ per month as claimed by the claimant adding 50%
on the same for future prospects of increase and applying
multiplier of 16, compensation amount was raised to
Rs.4,500/ with interest at 6% from the date of petition.
The High Court made the following observation while
granting compensation against different heads:
“4. In my view, the issue relating to death or injury
would have no serious difference in the choice of
multiplicand or the multiplier. If at all, case of
injury that completely disables a person for life is
more poignant than a case of death and that is why
Courts do not always provide for deductions for
personal expenses in case claims for injuries. Indeed,
the deduction itself will be meaningless for unlike a
case of death, we need to make provision for his own
living as well as the living of persons, who are
dependent on injured person. The loss in case of
injury where there is an amputation and there is a
high percentage of loss of earning capacity, in my
view, the principle laid down in Sarla Verma providing
for a prospect of future increase in salary cannot be
ruled out. I would, therefore, take the multiplicand
to be Rs.4,500/ which is the salary of Rs.3,000/ per
month plus 50% of the same for future prospects of
increase. For a person, who was aged 32 years, the
appropriate multiplier ought to have been 16 and not
15 and I would, therefore, take the annual income to
be Rs.54,000/ and adopting a multiplier of 16, I
would take the income to be Rs.8,64,000/. Having
regard to the fact that I have taken the loss of
earning capacity to be 70%, the amount that would bear
to 70% of Rs.8,64,000/ is the amount that shall
become payable for loss of earning capacity. The loss
of income will be Rs.6,04,800/. I shall retain the
medical expenses of Rs.10,000/, Rs.15,000/ for
attendant's charges and Rs.25,000/ as provided for
pain and suffering by the Tribunal. If the same are
4Page 5
retained, the amounts will add to Rs.6,54,800/. The
learned counsel would contend that although there was
evidence placed before the Tribunal that the cost of
prosthesis was Rs.75,000/, no amount had been granted
towards the same. The learned counsel would also state
across the bar that the present cost is Rs.1,60,000/.
There is no definite evidence on the same and I would
take the cost to be Rs.50,000/ which although the
Tribunal did not provide for. I would provide as
necessary equipment that he may require for fending
himself. The learned counsel states that if the
prosthesis were to be fixed, the disability would even
be less. In my view, it will make a minimal difference
for a prosthesis is more for cosmetic value than a
major functional adjunct. Sense of touch, ability to
pinch, ability to push, ability to pick up, are all
factors which go into the making of disability, all of
which do not get improved by a prosthesis. All told,
the amount that shall become payable in the manner
worked out by me would add to Rs.7,04,800/. The
Tribunal has already awarded Rs.3,20,000/ and the
amount in excess of what is awarded by the Tribunal
shall be paid by the insurer with interest at 6% from
the date of the petition till the date of
realization.”
7. The claimant has challenged the order passed by the
High Court on three counts namely:
(i) The permanent disability has been wrongly assessed
at 70% which should have been 100% in the case of the
claimant.
(ii) The lower amount has been paid towards cost of
prosthesis and
(iii) Lesser amounts have been allowed towards
pecuniary and nonpecuniary damages.
5Page 6
8. Per contra according to the learned counsel for the
Insurer, the High Court allowed higher amount than the
amount of compensation to which claimant was entitled.
9. In the case of claimant, the High Court for determining
the earning capacity adopted the percentage of loss of
earning capacity as per the Workmen's Compensation Act and
has taken a loss of earning capacity to 70% for amputation
of arm above elbow.
10. Admittedly, claimant is a graduate in Science from Agra
University and Post Graduate Diploma holder in Mechanical
Engineering with specialization in Refrigeration and Air
conditioning. He was a young man of 32 years at the time
of accident. Before the Tribunal, the claimant appeared as
PW4 and stated that he had worked with many companies like
Blue Star, etc. and has extensive experience. Ultimately he
joined M/s. Utility Engineers (India) Ltd. on 1st September,
1986 as Product and Development Engineer and was promoted
from Middle Management Group to Senior Management Group on
the basic pay of Rs.1400/ to Rs.1500/ plus other
incidental benefits like special increment of Rs.100. At
the time of accident, he was drawing basic pay of Rs.1900/
6Page 7
plus other incidental benefits total amounting to about
Rs.3,000/ per month. His job was designing of air
conditioning project.
11. According to claimant the normal expectancy of life is
70 years and he was expected to earn up to the said age as
a specialist in designing, refrigeration and air
conditioning. After loss of the right arm due to accident
he has become 100% disabled as his earning capacity has
gone down to zero in doing the specialized work like
designing, refrigeration and air conditioning. The
accident has completely jeopardized his mastery on the
subject and his chances of future promotion and
professional engagements have been virtually vanished.
12. The question regarding “Assessment of future loss of
earnings due to permanent disability” was considered by
this Court in Raj Kumar vs. Ajay Kumar and Another, (2011)
1 SCC 343, wherein this Court held as follows:
“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
7Page 8
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
accident 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.
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%.
8Page 9
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, the 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% 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 permanent 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 terms 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 the 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. and Yadava Kumar v.
National Insurance Co. Ltd.)”
9Page 10
13. In the present case, the percentage of permanent
disability has not been expressed by the Doctors with
reference to the full body or with reference to a
particular limb. However, it is not in dispute that the
claimant suffered such a permanent disability as a result
of injuries that he is not in a position in doing the
specialized job of designing, refrigeration and air
conditioning. For the said reason, claimant's services
were terminated by his employer but that does not mean that
the claimant is not capable to do any other job including
the desk job. Having qualification of B.SC degree and Post
Diploma in Mechanical Engineering he can perform any job
where application of mind is required than any physical
work.
14. In view of the forgoing discussion we find no grounds
made out to interfere with the finding of the High Court
which determined the percentage of loss of earning capacity
to 70% adopting the percentage of loss of earning capacity
as per the Workmen's Compensation Act. The total loss of
income thus rightly calculated by the High Court at
Rs.6,04,800/.
10Page 11
15. However from the award passed by the Tribunal and
judgment rendered by the High Court, we find no ground shown by the Tribunal or the High Court in providing pecuniary and non pecuniary damages at a lower rate.
Against some of the heads even no amount has been allowed.
16. The Tribunal in its award has noticed that the claimant
had to go to Hospital every 10 days for treatment. He was
admitted in different Hospitals and was under treatment as
indoor patient for about one and a half months. Claimant's
hand was amputated and skin was grafted. Inspite of the
same, no amount has been allowed towards loss of earning
during the period of treatment nor any amount allowed
towards future medical expenses.
17. From the High Court's judgment and award passed by the
Tribunal it is clear that the claimant placed evidence to
suggest that the cost of prosthesis was Rs.75,000/ .
It
was accepted at Bar that the cost of prosthesis was
Rs.1,60,000/.
Inspite of the same the Tribunal did not
chose to allow any amount towards prosthesis and the High
Court allowed a petty amount of Rs.50,000/ for the same.
11Page 12
No separate amount has been allowed towards travelling to
the Hospitals though the claimant was required to go to
attend the Hospital every 10 days for treatment.
We
further find that a meager sum of Rs.25,000/ has been
allowed by the High Court towards pain and suffering.
18. Having regards to the fact that the Tribunal and the
High Court have not allowed reasonable amount for different
pecuniary and the nonpecuniary damages, we, therefore,
with a view to do complete justice to the claimant re
determined the amount of compensation on the following
terms:
Pecuniary damages (Special damages)
(i) Expenses relating to
treatment,hospitalisation,
medicines,transportation,
nourishing food, and
miscellaneous expenditure.
(medical expenses
Rs.15,000 + Attendant
Rs.15,000 + cost of
prosthesis Rs.75,000)
Rs.1,05,000
(ii) Loss of earnings (and
other gains) which the
injured would have made
had he not been injured,
comprising:
12Page 13
(a) Loss of earning during
the period of treatment;
(b) Loss of future
earnings (on account of
70% permanent disability
taking multiplier of 16)
Rs.4,500
Rs.6,04,800
(iii) Future medical expenses. Rs.50,000
Nonpecuniary damages (General damages)
(iv) Damages for pain,
suffering and trauma
as a consequence of the
injuries.
Rs.1,00,000
(v) Loss of amenities Rs.2,00,000
(vi) Loss of expectation of
life (shortening of
normal longevity)
Rs.1,00,000
Total Rs.11,64,300
13Page 14
19. The respondent Insurance Company is directed to pay the
claimantappellant a sum of Rs.11,64,300/ minus the amount
already paid pursuant to the order passed by the Tribunal
within three months from the date of judgment with interest
@ 12%. The order passed by the High Court and Tribunal
stands modified to the extent above. The appeal filed by
the claimant is allowed with the above observation and
direction. No separate order as to costs.
………..……………....…………………………..J.
(G.S. SINGHVI)
….......……………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
July 1, 2013.
14
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4814 OF 2013
(arising out of SLP(C)No.6282 of 2011)
NEERUPAM MOHAN MATHUR …. APPELLANT
VERSUS
NEW INDIA ASSURANCE CO. ….RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. The present appeal is filed by the claimantappellant
against the judgment of Punjab and Haryana High Court at
Chandigarh in FAO No.693 of 1989, whereby the High Court
granted a meager enhancement in the amount of compensation
awarded to him by the Motor Accident Claims Tribunal
(hereinafter referred to as 'the Tribunal').
3. The facts involved in the present case are as follows:
The claimant was employed as a 'Product Design
Engineer' in M/s. Utility Engineers (India) Ltd. Dharuhera,
1Page 2
District Mohindergarh, Haryana. The employer had arranged
for a Chartered Bus belonging to M/s. National Tours &
Travels, F4, East of Kailash, New Delhi, 2nd respondent
before the Tribunal for carrying the employees to the
factory at Dharuhera and back; one Pritam Singh, 1st
respondent before the Tribunal was the driver of the said
bus. On 2nd September, 1987, the claimant along with his
colleagues was coming back from Dharuhera in the said
Chartered Bus bearing Registration No.DBP805. At about 6
p.m. when the said Bus reached near the turning of village
Shikohpur on GurgaonJaipur Highway, it came across a truck
coming from opposite direction which was crossing a camel
cart in front of it. Pritam Singh, who was driving the bus
at a very high speed, carelessly, rashly and negligently
attempted to cross the above said truck without keeping the
Bus to the extreme left hand side. This resulted in a
collision of right hand side of the bus with the truck,
which resulted in severance of right hand of the claimant
who was sitting in the right side of the bus. The said
accident and the mishappenings thereto were witnessed by
the occupants of the bus. One Anil Kumar, PW3, who was
also travelling in the said Chartered Bus at the time of
2Page 3
the said accident, took the claimant to the Civil Hospital,
Gurgaon from where he was given medical firstaid and he
was referred to Safdarjang Hospital, New Delhi. The
claimant was later on transferred to ‘Dr. Ram Manohar Lohia
Hospital’, New Delhi and thereafter he was also treated in
different Hospitals at various stages. The matter was also
reported to the Police by Anil Kumar, PW3.
4. The cliamant filed a petition under Section 110A of
the Motor Vehicles Act, 1988 claiming Rs.12 lacs as the
compensation for the loss of the right hand which was
amputated near the shoulder, on various counts.
5. The respondents contested the claim of the claimant.
The Tribunal after perusing oral and documentary evidence
held that the accident took place due to rash and negligent
driving by Driver, Pritam Singh of Bus No.DBP805. The
Issue No.1 was thus decided in favour of the claimant.
While assessing the compensation under Issue No.2, the
Tribunal awarded a compensation of Rs.3,20,000/ with
interest at the rate of 12% per annum.
6. In the appeal preferred by the claimant the High Court
taken a loss of earning capacity to 70% in view of
3Page 4
permanent disability of right hand. Based on salary of
Rs.3,000/ per month as claimed by the claimant adding 50%
on the same for future prospects of increase and applying
multiplier of 16, compensation amount was raised to
Rs.4,500/ with interest at 6% from the date of petition.
The High Court made the following observation while
granting compensation against different heads:
“4. In my view, the issue relating to death or injury
would have no serious difference in the choice of
multiplicand or the multiplier. If at all, case of
injury that completely disables a person for life is
more poignant than a case of death and that is why
Courts do not always provide for deductions for
personal expenses in case claims for injuries. Indeed,
the deduction itself will be meaningless for unlike a
case of death, we need to make provision for his own
living as well as the living of persons, who are
dependent on injured person. The loss in case of
injury where there is an amputation and there is a
high percentage of loss of earning capacity, in my
view, the principle laid down in Sarla Verma providing
for a prospect of future increase in salary cannot be
ruled out. I would, therefore, take the multiplicand
to be Rs.4,500/ which is the salary of Rs.3,000/ per
month plus 50% of the same for future prospects of
increase. For a person, who was aged 32 years, the
appropriate multiplier ought to have been 16 and not
15 and I would, therefore, take the annual income to
be Rs.54,000/ and adopting a multiplier of 16, I
would take the income to be Rs.8,64,000/. Having
regard to the fact that I have taken the loss of
earning capacity to be 70%, the amount that would bear
to 70% of Rs.8,64,000/ is the amount that shall
become payable for loss of earning capacity. The loss
of income will be Rs.6,04,800/. I shall retain the
medical expenses of Rs.10,000/, Rs.15,000/ for
attendant's charges and Rs.25,000/ as provided for
pain and suffering by the Tribunal. If the same are
4Page 5
retained, the amounts will add to Rs.6,54,800/. The
learned counsel would contend that although there was
evidence placed before the Tribunal that the cost of
prosthesis was Rs.75,000/, no amount had been granted
towards the same. The learned counsel would also state
across the bar that the present cost is Rs.1,60,000/.
There is no definite evidence on the same and I would
take the cost to be Rs.50,000/ which although the
Tribunal did not provide for. I would provide as
necessary equipment that he may require for fending
himself. The learned counsel states that if the
prosthesis were to be fixed, the disability would even
be less. In my view, it will make a minimal difference
for a prosthesis is more for cosmetic value than a
major functional adjunct. Sense of touch, ability to
pinch, ability to push, ability to pick up, are all
factors which go into the making of disability, all of
which do not get improved by a prosthesis. All told,
the amount that shall become payable in the manner
worked out by me would add to Rs.7,04,800/. The
Tribunal has already awarded Rs.3,20,000/ and the
amount in excess of what is awarded by the Tribunal
shall be paid by the insurer with interest at 6% from
the date of the petition till the date of
realization.”
7. The claimant has challenged the order passed by the
High Court on three counts namely:
(i) The permanent disability has been wrongly assessed
at 70% which should have been 100% in the case of the
claimant.
(ii) The lower amount has been paid towards cost of
prosthesis and
(iii) Lesser amounts have been allowed towards
pecuniary and nonpecuniary damages.
5Page 6
8. Per contra according to the learned counsel for the
Insurer, the High Court allowed higher amount than the
amount of compensation to which claimant was entitled.
9. In the case of claimant, the High Court for determining
the earning capacity adopted the percentage of loss of
earning capacity as per the Workmen's Compensation Act and
has taken a loss of earning capacity to 70% for amputation
of arm above elbow.
10. Admittedly, claimant is a graduate in Science from Agra
University and Post Graduate Diploma holder in Mechanical
Engineering with specialization in Refrigeration and Air
conditioning. He was a young man of 32 years at the time
of accident. Before the Tribunal, the claimant appeared as
PW4 and stated that he had worked with many companies like
Blue Star, etc. and has extensive experience. Ultimately he
joined M/s. Utility Engineers (India) Ltd. on 1st September,
1986 as Product and Development Engineer and was promoted
from Middle Management Group to Senior Management Group on
the basic pay of Rs.1400/ to Rs.1500/ plus other
incidental benefits like special increment of Rs.100. At
the time of accident, he was drawing basic pay of Rs.1900/
6Page 7
plus other incidental benefits total amounting to about
Rs.3,000/ per month. His job was designing of air
conditioning project.
11. According to claimant the normal expectancy of life is
70 years and he was expected to earn up to the said age as
a specialist in designing, refrigeration and air
conditioning. After loss of the right arm due to accident
he has become 100% disabled as his earning capacity has
gone down to zero in doing the specialized work like
designing, refrigeration and air conditioning. The
accident has completely jeopardized his mastery on the
subject and his chances of future promotion and
professional engagements have been virtually vanished.
12. The question regarding “Assessment of future loss of
earnings due to permanent disability” was considered by
this Court in Raj Kumar vs. Ajay Kumar and Another, (2011)
1 SCC 343, wherein this Court held as follows:
“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
7Page 8
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
accident 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.
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%.
8Page 9
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, the 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% 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 permanent 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 terms 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 the 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. and Yadava Kumar v.
National Insurance Co. Ltd.)”
9Page 10
13. In the present case, the percentage of permanent
disability has not been expressed by the Doctors with
reference to the full body or with reference to a
particular limb. However, it is not in dispute that the
claimant suffered such a permanent disability as a result
of injuries that he is not in a position in doing the
specialized job of designing, refrigeration and air
conditioning. For the said reason, claimant's services
were terminated by his employer but that does not mean that
the claimant is not capable to do any other job including
the desk job. Having qualification of B.SC degree and Post
Diploma in Mechanical Engineering he can perform any job
where application of mind is required than any physical
work.
14. In view of the forgoing discussion we find no grounds
made out to interfere with the finding of the High Court
which determined the percentage of loss of earning capacity
to 70% adopting the percentage of loss of earning capacity
as per the Workmen's Compensation Act. The total loss of
income thus rightly calculated by the High Court at
Rs.6,04,800/.
10Page 11
15. However from the award passed by the Tribunal and
judgment rendered by the High Court, we find no ground shown by the Tribunal or the High Court in providing pecuniary and non pecuniary damages at a lower rate.
Against some of the heads even no amount has been allowed.
16. The Tribunal in its award has noticed that the claimant
had to go to Hospital every 10 days for treatment. He was
admitted in different Hospitals and was under treatment as
indoor patient for about one and a half months. Claimant's
hand was amputated and skin was grafted. Inspite of the
same, no amount has been allowed towards loss of earning
during the period of treatment nor any amount allowed
towards future medical expenses.
17. From the High Court's judgment and award passed by the
Tribunal it is clear that the claimant placed evidence to
suggest that the cost of prosthesis was Rs.75,000/ .
It
was accepted at Bar that the cost of prosthesis was
Rs.1,60,000/.
Inspite of the same the Tribunal did not
chose to allow any amount towards prosthesis and the High
Court allowed a petty amount of Rs.50,000/ for the same.
11Page 12
No separate amount has been allowed towards travelling to
the Hospitals though the claimant was required to go to
attend the Hospital every 10 days for treatment.
We
further find that a meager sum of Rs.25,000/ has been
allowed by the High Court towards pain and suffering.
18. Having regards to the fact that the Tribunal and the
High Court have not allowed reasonable amount for different
pecuniary and the nonpecuniary damages, we, therefore,
with a view to do complete justice to the claimant re
determined the amount of compensation on the following
terms:
Pecuniary damages (Special damages)
(i) Expenses relating to
treatment,hospitalisation,
medicines,transportation,
nourishing food, and
miscellaneous expenditure.
(medical expenses
Rs.15,000 + Attendant
Rs.15,000 + cost of
prosthesis Rs.75,000)
Rs.1,05,000
(ii) Loss of earnings (and
other gains) which the
injured would have made
had he not been injured,
comprising:
12Page 13
(a) Loss of earning during
the period of treatment;
(b) Loss of future
earnings (on account of
70% permanent disability
taking multiplier of 16)
Rs.4,500
Rs.6,04,800
(iii) Future medical expenses. Rs.50,000
Nonpecuniary damages (General damages)
(iv) Damages for pain,
suffering and trauma
as a consequence of the
injuries.
Rs.1,00,000
(v) Loss of amenities Rs.2,00,000
(vi) Loss of expectation of
life (shortening of
normal longevity)
Rs.1,00,000
Total Rs.11,64,300
13Page 14
19. The respondent Insurance Company is directed to pay the
claimantappellant a sum of Rs.11,64,300/ minus the amount
already paid pursuant to the order passed by the Tribunal
within three months from the date of judgment with interest
@ 12%. The order passed by the High Court and Tribunal
stands modified to the extent above. The appeal filed by
the claimant is allowed with the above observation and
direction. No separate order as to costs.
………..……………....…………………………..J.
(G.S. SINGHVI)
….......……………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
July 1, 2013.
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