Partly allowed

United India Insurance Co. Ltd. v. Luxman

Himachal Pradesh HC12 Mar 2024FAO/20/2014

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh allowed appeals challenging a Motor Accident Claims Tribunal award. The court recalculated compensation, reducing future loss of earnings based on a 10% functional disability assessment and awarding separate heads for pain and suffering and loss of amenities. Total compensation was fixed at Rs. 4,97,494/-.

What did the court decide?

The impugned award on compensation of Rs. 8,96,694/- was modified. Total compensation reduced to Rs. 4,97,494/- by adjusting future loss of earnings and granting Rs. 50,000/- for pain and amenities. I

United India Insurance Co. Ltd. Vs Luxman — Motor Accident Claims | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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FAOs No. 20 & 36 of 2014 Reserved on: 27.02.2024 Date of decision: 12.03.2024

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1. FAO No. 20 of 2014: United India Insurance Company Limited Versus Luxman & others 3. FAO No. 36 of 2014: Luxman

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…..Appellant.

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……Respondents.

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…..Appellant. Versus M/s Meridian Medicare Limited & others

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……Respondents.

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_______________________________________________ Coram_ The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? Yes.

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________________________________________________ FAO No. 20 of 2014: For the appellant: Mr. Jagdish Thakur, Advocate. For respondent No. 1: Mr. J.L. Bhardwaj, Sr. Advocate, with Mr. Sanjay Bhardwaj, Advocate. For respondents No. 2&3: Mr. C.S. Thakur, Advocate.

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FAO No. 36 of 2014:

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For the appellant: Mr. J.L. Bhardwaj, Sr. Advocate, with Mr. Sanjay Bhardwaj, Advocate.

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For respondents No. 1&2:

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Mr. C.S. Thakur, Advocate.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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For respondent No. 3:

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Mr. Jagdish Thakur, Advocate.

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Sushil Kukreja, Judge.

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Since both these petitions are offshoots of impugned award dated 06.06.2013, passed by learned Motor Accident Claims Tribunal-I, Solan, District Solan, H.P., in MAC Petition No. 32-S/2 of 2011, they are taken up together for adjudication.

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FAO No. 20 of 2014

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The instant appeal is maintained by the appellant/United India Insurance Company Limited (hereinafter referred to as “Insurer”), under Section 173 of the Motor Vehicles Act for short “the Act”), against the award,

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dated 06.06.2013, passed by the learned Motor Accidents Claim Tribunal-I, Solan, District Solan, H.P., in MAC Petition No. 32-S/2 of 2011, whereby the petition filed by the petitioner/claimant, who is respondent No. 1 in FAO No. 20 of2014 and appellant in FAO No. 36 of 2014 (hereinafter referred to as “the petitioner”), seeking compensation, was allowed and the appellant was directed to pay compensation of Rs.8,96,694/- to the petitioner.

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FAO No. 36 of 2014

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On the other hand, the instant petition (FOA No. 36 of 2014) has been preferred by the petitioner under Section 173 of the Act against the award dated 06.06.2013, passed by the learned Motor Accident Claims Tribunal-I, Solan, H.P., in MAC Petition No. 32-S/2 of 2011, whereby the claim petition filed by him was allowed by awarding compensation of Rs.8,96,694/- in his favour alongwith interest @ 7% per annum, with a prayer to allow his appeal throughout with costs, by modifying the award and consequently awarding a sum of Rs.10,00,000/-, as claimed by him in his claim petition.

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Succinctly, the facts giving rise to the present appeals are that the petitioner, filed a claim petition under Section 166 of the Act against the respondents, i.e., Ms. Meridian Medicare Ltd. Shamti, Shri Devender Kumar and United Insurance Company Ltd. (hereinafter referred to as “the respondents”), whereby compensation for the grievous injuries sustained by the petitioner in a motor vehicle accident, which took place on 21.06.2011, on National Highway-22, at place Din Raat Dhaba near Kumarhatti, was sought.

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As per the petitioner/claimant, on 21.06.2011 he

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was travelling as a pillion rider on scooter No. HP-14-6940 and around 06:40 p.m., when the scooter reached near place

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Din Raat Dhaba on National Highway-22, near Kumarhatti, Innova Car, bearing registration No. HP-14A-5170 came from Kumarhatti side, which was being driven in a rash and negligent manner and in high speed by Devender Kumar, respondent No. 2, before the learned Tribunal below (respondent No. 3 in FAO No. 20 of 2014). The respondent No. 2 could not control his vehicle and the vehicle struck against the scooter No. HP-14-6940. It was further averred by the petitioner that due to the accident, he suffered grievous injuries and also suffered fracture of the right leg. He was taken to Solan hospital for first aid and he was referred to Chandigarh and then he was got treated at Cheema Medical Hospital, Mohali, where he remained admitted upto 27.06.2011. It was averred that the petitioner had to spend approximately Rs.1,50,000/- on his treatment

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and had sustained pain and agony due to the accident. The petitioner had to go for periodical checkups time and again to Cheema Medical Hospital, Mohali, and one permanent attendant was required. As per the petitioner he had to

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spend money on traveling. Lastly, the petitioner sought compensation of rupees ten lacs.

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Respondents No. 1 and 2 (owner and driver of

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the offending vehicle) filed separate replies to the claim petition, wherein they raised preliminary objections, viz., maintainability of the petition, the petitioners have suppressed the material facts, they have no locus-standi and cause of action to file the claim petition. They denied that the petitioner was a Supervisor in House Keeping Agency in Ultimate Utility, Phase-VI, Industrial Area, Mohali. The replying respondents also denied the income of the petitioner to be Rs.6,500/- per month. They admitted the occurrence of the accident, but averred that it occurred due to the rash and negligent driving of the scooter driver. It was further averred

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that due to the high speed of the scooter, it collided with the Innova car, bearing registration No. HP-14A-5170, which was being driven by Shri Devender Kumar. As per the replying respondents, the accident occurred due to the rash and negligent driving of the scooter driver. It was also averred that the driver of the innova car took all steps to avoid the accident by applying emergency brake, but the scooter driver was so rash and negligent in driving the scooter at high

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speed and struck it against the innova car, thus the petitioner is not entitled for any compensation. Lastly, it was averred that in case the learned Tribunal comes to the conclusion that just and reasonable compensation is to be paid to the petitioner, then the insurer may be held liable to the pay the same, as the offending vehicle was insured with the Insurer (United Insurance Company Ltd.).

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The insurer (United Insurance Company Ltd.) filed separate reply to the claim petition, wherein it was averred that driver of offending vehicle No. HP-14-A-5170, was not having valid and effective driving licence, that the vehicle was being driven in violation of the provisions of the Motor Vehicle Act and standard policy conditions of the insurance policy, therefore, the insurer is not liable to pay the compensation. It was further averred that the accident occurred due to the rash and negligent driving of the scooter driver, as he struck his vehicle against the Innova car No. HP-14A-5170 and he was also not having valid and effective

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driving licence. It was also averred that Innova car No. HP14A-5170 was being plied without any valid registration certificate and fitness certificate, thus there was breach of standard policy conditions and also of the provisions of the

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Act, therefore, the insurer is not liable to pay the compensation to the petitioners. As per the replying respondent, the claim is not only exaggerated but also excessive without any legal basis and if interest is liable to be paid, then it should be @ 6% per annum and reasonable

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compensation is only to be paid to the petitioners.

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On 27.06.2012 on the basis of the pleadings of

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the parties, the learned Tribunal below has framed the following issues:

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“1. Whether the accident was result of rash and negligent driving of the offending vehicle in question by respondent No. 2 and the petitioner sustained injuries in that accident? OPP

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2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled to compensation? If so, to what amount and from whom? OPP

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3. Whether the petition is not maintainable? OPR

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4. Whether the petitioner has no locusstandi to file the present petition as alleged? OPR

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5. Whether the offending vehicle in question did not have any valid registration certificate, fitness certificate and route permit at the time of accident? If so, its effect? OPR3

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6. Whether the driver of the offending

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vehicle in question was not having valid and effective driving licence at the time of accident? If so, its effect? OPR3

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7. Whether the accident was the result of contributory negligence as alleged? If so, its effect? OPR3

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8. Relief.”

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After deciding issues No. 1 and 2 in favour of the petitioner, issues No. 3 to 7 against the respondents, the claim petition was allowed and the petitioner was held entitled for compensation of Rs.8,96,694/- from the insurer.

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Feeling dissatisfied, the appellant/Insurer

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preferred appeal (FAO No. 20 of 2014) under Section 173 of the Act against the impugned award with a prayer to set aside the same by dismissing the claim petition, filed by the petitioner/ claimant, with costs throughout and the appellant/petitioner-claimant also filed appeal (FAO No. 36 of 2014) against the impugned award, with a prayer to allow his

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appeal throughout with costs, by modifying the impugned award and consequently awarding a sum of Rs.10,00,000/as compensation amount to him.

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I have heard the learned Senior Counsel/Counsel for the respective parties and carefully examined the entire record.

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The perusal of the record reveals that on

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21.06.2011 the petitioner/claimant-Luxman was travelling on scooter No. HP-14-6940, as pillion rider and around 06:40 p.m., when they reached near place known as Din Rat Dhaba on National Highway-22, near Kumarhatti, the offending vehicle, i.e., Innova car, having registration No. HP-14A-5170, came from the opposite direction and struck against the scooter, as a result of which the petitioner/claimant sustained multiple grievous injuries and also suffered fracture of right leg.

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To prove the rash and negligent driving on the part of respondent No. 2 i.e. the driver of the offending vehicle, the petitioner No. 2, appeared in the witness-box as PW-2 and has tendered his affidavit by way of evidence, Ex.PW-2/A, wherein he deposed that on 21.06.2011 he was travelling on scooter No. HP-14-6940 as a pillion rider, which was being driven by Ramesh Kumar and his deceased son was sitting in between him and Ramesh Kumar. He further deposed that at about 06:40 p.m., when the scooter reached at a place known as Din Raat Dhaba, on the National Highway, Innova Car No. HP14A-5170, which was being driven by respondent No. 2, came from the opposite direction

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in a rash and negligent manner and struck against the

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scooter, as a result of which the accident took place and he sustained multiple injuries, including the fracture in his right

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leg. He was cross-examined at length, however, nothing favourable could be elicited from his lengthy crossexamination to impeach his credibility.

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On the other hand, the driver of the offending vehicle appeared in the witness-box as RW-1 and tendered in evidence his affidavit, Ex. RW-1/A, wherein he deposed that on 21.06.2011 he was driving the vehicle, i.e., HP-14A5170, and was going from Solan to Chandigarh. He further stated that around 06:40 p.m. when he reached near Kumarhatti, a scooter, on which three persons were traveling, came in a high speed from the wrong direction. On seeing the scooter, he stopped his vehicle by applying brake, but the scooter was being driven so rashly and negligently that it struck against his vehicle. He also stated that in the accident, the driver of the scooter, pillion rider and a boy

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sustained injuries and due to the grievous injuries, the boy died. In cross-examination he admitted that he was driving the offending vehicle on the date of the accident. He further admitted that his car got struck against the scooter on the

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relevant date near Din Raat Dhaba and the police had prepared a case of rash and negligent driving against him. He also admitted that regarding the accident in question, a

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criminal case was pending against him in a Court at Kasauli.

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The perusal of the statement of the driver of the offending vehicle shows that he was driving the vehicle in a rash and negligent manner at the time of the accident and

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had struck his vehicle against the scooter, as a result of which the petitioner sustained multiple injuries and his son died. Even, in the FIR, it has been mentioned that accident took place due to his rash and negligent driving and a criminal case has also been registered against him for rash and negligent driving. Thus, in view of the entire evidence on record, it has been duly proved that the accident took place due to the rash and negligent driving of the driver of the offending vehicle, i.e., Innova Car No. HP-14A-5170, as a result of which, the petitioner sustained multiple injuries and his son aged about 8 years died.

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The perusal of the record reveals that the learned Tribunal below had awarded compensation of Rs.8,96,694/to the petitioner. The petitioner, i.e., claimant has filed the present appeal seeking enhancement in the compensation,

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whereas, the Insurance Company had filed the appeal on the ground that the learned Tribunal below had awarded the compensation of Rs.8,96,694/- which is on a higher side.

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Now, the question which arises for consideration is as to what compensation should be awarded to the petitioner/claimant for the multiple grievous injuries and for 15% permanent disability of mild nature, sustained by him in

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the accident in question, as per disability certificate Ext. PW7/A due to fracture of his right leg

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It has been proved on record that the petitioner had sustained grievous injuries and fracture of his right leg in the accident, which took place on 21.06.2011 due to rash and negligent driving of vehicle bearing registration No.HP14A-5170 by its driver Devinder Kumar. It is also not in dispute that the petitioner had sustained 15% permanent disability of mild nature with respect to his right lower limb, as per disability certificate Ext. PW7/A. The treatment of the petitioner, vide documents Ex. PW-6/B to Ex. PW-6/D, has

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been further proved by PW-6 Dr. Jaspreet Kaur, who had treated the petitioner and PW-7 Dr. J.L. Sharma proved on record the disability certificate (Ex. PW-7/A) of the petitioner.

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The law with respect to the grant of

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compensation in injury cases is well-settled. The basic

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judgment on the issue has been rendered by the Supreme Court in the case of Raj Kumar vs. Ajay Kumar and

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another, 2011 (1) SCC 343 . The Court in the said case has explained the general principles relating to compensation in injury cases and assessment of future loss of earnings due to permanent disability as under:-

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"General principles relating to compensation in injury cases:

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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 done as far as money can do so, in a fair, reasonable and equitable manner. The court or the 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

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earn or could have earned. [See C.K. Subramania Iyer v. T. Kunhikuttan Nair, R.D. Hattangadi v. Pest Control (India) (P) Ltd. and Baker v. Willoughby].

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The heads under which compensation is awarded in personal injury cases are the following:

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Pecuniary damages (Special damages)

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(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.

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(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;

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(b) Loss of future earnings on account of permanent disability.

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(iii) Future medical expenses. Non-pecuniary damages (General damages)

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(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

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(v) Loss of amenities (and/or loss of prospects of marriage).

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(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

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expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

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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 nonpecuniary 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. Decisions of this Court and the 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 account of permanent disability--Item (ii)(a). We are concerned with that assessment in this case.

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Assessment of future loss of earnings due to permanent disability

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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,

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16 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 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.

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The percentage of permanent disability is expressed by the doctors with reference to the whole body, or

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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%.

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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

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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.

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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.

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Ltd.)

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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:

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(i) whether the disablement is permanent or temporary;

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(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;

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(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.

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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.

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Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first

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20 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 disability (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 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.

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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 per cent, 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

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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 be 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.

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It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.

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The Tribunal should not be a silent spectator when medical evidence is

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tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to "hold an enquiry into the claim" for determining the "just compensation". The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the "just compensation". While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.

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If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non- medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent

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disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.

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The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give "ready to use" disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-

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examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability.

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We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

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(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

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(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."

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From the aforesaid analysis of the law on the subject, it is clear that loss of earning capacity of person who has suffered permanent disability depends upon several

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factors like the kind of disability suffered, the occupation of the injured, age of the injured and similar other factors.

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In New India Assurance Company Limited Vs. Gajender Yadav and others, (2018)11 SCC 630, it has been held by the Hon'ble Supreme Court as under:-

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“4. In Raj Kumar Vs. Ajay Kumar & Anr. the Court has laid down the principle regarding assessment of future loss of earning due to permanent disability. The same issue was discussed in more detail in the case of a chartered accountant in the recent judgment in Sandeep Khanuja Vs. Atul Dande. In the latter case, this Court has awarded compensation applying the multiplier for the permanent disability to the tune of 70% for the Chartered Accountant. In Raj Kumar's case, this Court has discussed about the functional disability and has held that compensation would vary from case to case depending on how much the person has been affected as far as

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his earning capacity is concerned.

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In the case before us, it is in evidence that there is 85% permanent disability as far as left leg is concerned. It is also in evidence that he had been working as a Security Officer in a reputed company and from the evidence of Deputy Chief Manager before the Tribunal, it has come out that “prior to accident Gajender was doing duty in our office established at Bahadur Shah Zafar Marg and he was in active job and after his accident when he joined the duty he had been shifted to our office established at Dariya Ganj where he has to do lesser work i.e. sedentary duty in which no physical work is required. The future of employee Gajender has been sealed and he will not be able to get any promotion in future.

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Having heard the learned counsel on both sides and having regard to the fact that the claimant has, in fact, suffered a serious injury leading to amputation of the left leg below the knee and which has certainly caused a functional disability since he had been in employment as a Security Officer and since according to the Management, his future promotions have been sealed, we are of the view that in the facts of this case, the computation of compensation for the disability is also to be worked out by applying a multiplier. The monthly salary which the claimant was drawing in 2004 was around Rs.14,000/-. If the future prospects in

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terms of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 is added, it will be Rs.21,000/per month. Having regard to the disability suffered by the claimant, we are of the view that without any further deduction, if the total disability factor is taken as 40%, the claimant would be entitled to an amount of Rs. 8,400/- per month towards the loss of future earnings. The age being 37 years, the multiplier 15 has to be applied. Thus, the compensation towards future earnings comes to Rs.15,12,000/(Rupees Fifteen Lakhs and Twelve Thousand).”

¶151

Now coming to the case on hand, the case of the

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petitioner is that he was working as a supervisor and earning Rs.10,000/- per month. To prove his case, the petitioner examined Shri Ajit Pal Singh (PW-3), who proved on record salary slip, Ex. PW-3/A. Thus, in view of the salary slip, Ex. PW-3/A, it has been proved on record that the petitioner was earning Rs.10,000/- per month. The petitioner was aged about 34 years. In view of the law laid down by the Apex Court in National Insurance Company Ltd vs. Pranay Sethi and ors, (2017) 16 SCC 680, there has to be an addition of 40% to the income on account of future prospects where the age is between 30 to 40 years in the cases relating to selfemployed persons. Accordingly, after taking the monthly

¶153

¶154

income of the petitioner at Rs.10,000/- and adding 40% of the monthly income towards future prospects, the amount comes to Rs.14000/-per month (10,000+4000 = 14,000) and

¶155

his annual income comes to Rs.1,68,000/- (14,000 x 12)

¶156

As per the disability certificate Ext. PW7/A, the petitioner had suffered permanent mild disability to the tune of 15% in relation to his right lower limb. In his evidence by way of affidavit, Ex. PW-2/A, petitioner had claimed that on account of injuries sustained in the accident, he was unable to perform the field duties due to the restricted mobility, as such, he had to leave his job. He further deposed that now he did not have any source of income and was unemployed.

¶157

Now, the question which arises for consideration is as to whether with this disability, the petitioner is incapacitated to such an extent that he would not be able to do any job and to earn any income in future. However, there is no evidence on record to suggest that by suffering 15% permanent mild disability in right leg, the petitioner would be totally incapacitated to do any work in future. The petitioner has examined Dr.J.L.Sharma as PW-7 who reiterated that the petitioner had sustained 15% permanent disability of mild nature in relation to his right leg, but he had not stated

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anything that the petitioner would remain totally incapable of working in aftermath of permanent disability sustained by him. However, the fact remains that in view of the 15% permanent disability suffered by him, the petitioner is likely to face difficulty to some extent in functioning as a Supervisor and difficulty in walking/mobility.

¶160

Therefore in view of the injuries suffered by the petitioner with permanent mild disability only to the extent of 15% with respect to his right lower limb and keeping in view the nature of profession of the petitioner, the functional disability of the petitioner in relation to his whole body and the effect of permanent mild disability on his actual earning capacity is taken as 10% and by taking the disablement of the petitioner for the purpose of compensation as 10%, he would suffer future loss of Rs.16,800/- per annum.

¶161

At the time of the accident, the age of the petitioner was 34 years, as mentioned in the disability certificate Ext.PW7/A. In view of the decision of the Hon’ble Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another,(2009) 6 SCC 121 , the multiplier of‘16’ applied by the learned Tribunal below is just and proper. By applying the multiplier of ‘16’ as per the settled

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law, the compensation under the head future loss of income

¶164

is re-fixed as Rs.2,.68,800/- (16,8,00 x 16).

¶165

Further case of the petitioner is that the learned

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Tribunal below had not awarded any compensation under the head pain and sufferings as well as under the head loss of comfort, amenities and mental agony. The perusal of the record shows that no compensation has been awarded to the petitioner under the aforesaid heads. In Erudhaya Priya vs. State Express Transport Corporation Ltd., AIR 2020 Supreme Court 4284, the Hon’ble Supreme Court has laid down the settled principles for assessing the compensation, in favour of the victim, who suffers a permanent or temporary disability occasioned by an accident, as under:-

¶167

“7. There are three aspects which are required to be examined by us:

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(a)……. …..

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…… (b) Loss of earning capacity of the appellant with permanent disability of 31.1%

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In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others and Sandeep Khanuja v. Atul Dande & Another. We extract below the principle set out in the Jagdish case (supra) in para 8:

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“8.In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of

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compensation. The award of compensation must cover among others, the following aspects:

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(i) Pain, suffering and trauma resulting from the accident;

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(ii) Loss of income including future income;

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(iii) The inability of the victim to lead a normal life together with its amenities;

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(iv) Medical expenses including those that the victim may be required to undertake in future; and

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(v) Loss of expectation of life.”

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26. Therefore, in view of the aforesaid settled

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principles laid down by the Hon’ble Supreme Court, since the petitioner had sustained multiple injuries and fracture in his right lower limb and also sustained permanent disability to the extent of 15% with respect to his right lower limb, and he also remained admitted in the hospital, a sum of Rs. 50,000/is granted under the head pain and sufferings. The petitioner is also entitled to Rs.50,000/- on account of loss of comfort, amenities and mental agony. So far as the compensation awarded by the learned Tribunal below under the heads; medical expenses, transportation charges and attendant charges are concerned, the same appears to be justified. Accordingly, the total compensation amount comes out as

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under:

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*Head* *Com*	*pensation awarded*
Medical expenses	Rs. 98,694/-
Transportation charges	Rs, 12,000/-
Attendant charges	Rs. 18,000/-
Loss of earnings	Rs. 2,68,800/-
Pain and sufferings	Rs.50,000/-
Loss of comfort, amenities and mental agony	Rs. 50,000/-
*Total compensation:*	*Rs. 4,97,494/-*

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Consequently, in view of detailed discussion

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made here-in-above and the law laid down by the Hon'ble Apex Court, the impugned award stands modified. The remaining terms of the impugned award, including the interest component, shall remain the same. The appeals stand disposed of in the above terms, so also the pending applications, if any.

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( Sushil Kukreja ) Judge

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12^th March, 2024

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(virender)

United India Insurance Co. Ltd. v. Luxman

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United India Insurance Co. Ltd. v. Luxman

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