SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. AND ANR.

The Judgment of the Court was delivered by C J. B. PARDIWALA, J.

1Copy pinpoint1. Leave granted.

2Copy pinpoint2. This appeal has been filed against the impugned final judgment and order dated 25th of April, 2018 passed by the High Court of Karnataka (Dharwad Bench) in “Shri Sidram S/o Raju Bhosale v. Shri Siddu D Mahadev Bhosale & Anr.” urging various legal grounds and contentions for further enhancement of compensation in the case of a motor accident involving the appellant-claimant herein whereby the High Court enhanced the compensation awarded by the Motor Accidents Claims Tribunal, Belgaum (for short, ‘Tribunal’) by Rs. 3,13,800/- to a total of Rs. 9,26,800/ E -. The Tribunal had awarded compensation of Rs. 6,13,000/- under the various heads along with interest at the rate of 6% per annum from the date of filing of the petition till the date of realisation of payment.

3Copy pinpoint3. The briefs facts of the case are given hereinunder. The appellant- claimant suffered grievous injuries in a road accident that occurred on F 18.07.2012, while he was walking on the left side of the Kulgod-Gokak road. While the claimant was near the Laxmeshwar crossing, a goods vehicle bearing registration No. KA-23/9426, being driven in a rash and negligent manner banged into the appellant- claimant. The appellant- claimant was shifted to a hospital and was treated as an indoor patient from 18.07.2012 till 06.08.2012. On account of the accident, the appellant- G claimant suffered permanent disability to the extent of 45%. The appellant-claimant suffered from paraplegia due to the accident. The appellant- claimant was in the business of selling utensils in different villages of the district.

4Copy pinpoint4. The appellant-claimant filed a claim petition before the First H Additional Senior Civil Division Judge & MACT, Belgaum at Belgaum

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 413 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

which was registered as the M.V.C. No. 1786 of 2012. Before the A Tribunal, the appellant- claimant examined himself (PW-1) and also examined Dr. Anil B. Patil as PW2 in respect of his claim and various other documents were taken on record as evidence.

5Copy pinpoint5. The Tribunal held that the accident took place due to the rash and negligent driving of the offending vehicle as a result of which, the B appellant sustained injuries and was awarded pecuniary as well as non- pecuniary damages. The Tribunal held that the appellant was entitled to the compensation as under: Towards pain and suffering : Rs. 40,000/- Loss of earning during laid of period : Rs. 4,000/- C

Loss of earning due to disability : Rs.3,24,000/- Towards Medical expenses : Rs. 1,50,000/- Conveyance, special diet etc : Rs. 20,000/- D Loss of amenities in life : Rs. 30,000/- Towards marriage prospects : Rs. 20,000/- Towards future medical expenses : Rs. 25,000/- Total : Rs.6,13,000/- E

6Copy pinpoint6. Aggrieved by the order of the Tribunal, the appellant filed an appeal in the High Court praying for enhancement of the compensation on the ground that the Tribunal ought to have awarded enhanced compensation on the basis of the evidence adduced. The contentions of the appellant will be taken up in detail at a later stage. F

7Copy pinpoint7. The High Court enhanced the compensation to Rs. 9,26,800/-. The High Court in its impugned order held: “9. The Tribunal has taken the income of the claimant at Rs. 5,000/- which is on the lower sipe. The accident is of the year 2012 and the notional income of the claimant could be G taken at Rs.7,000/- per month considering the nature of business carried on by him.

10. Thus, the claimant would be entitled to compensation under the head of loss of future earning as follows: Rs.7,000/- x 12 x 18 x 40% = Rs.6,04,800/. H

p. 414 Copy page pinpoint

A 11. The compensation awarded under the head of pain and suffering, medical expenses, conveyance, special diet, etc., loss of amenities in life and marriage prospects is just and proper and same is not disturbed. The claimant who suffered grievous injury would have suffered loss of earning during the laid up. The compensation awarded under the head of B pain and suffering, medical expenses, conveyance, special diet, etc., loss of amenities in life and marriage prospects is just and proper and same is not disturbed. The claimant who suffered grievous injury would have suffered loss of earning during the laid up period for a minimum period of six months. C Therefore, he is entitled for a sum of Rs.42,000/- (Rs. 7,000 x 6). The claimant would be further entitled to litigation expenses of Rs.20,000/-.

12. With regard to future medical expenses, the claimant has not stated as to the nature of future treatment required. Hence, D he would not be entitled for any compensation on the head of future medical expenses. However, it is made clear that if at all the claimant incurs any expenses towards any surgery or treatment on account of the injury suffering in the present motor accident and if he proves the same before the insurer, the insurer shall indemnify the same. E

13. Accordingly, the claimant is entitled for a total compensation of Rs.9,26,800/- as against Rs.6,13,000/- awarded by the Tribunal.

14. Thus, the claimant shall be entitled to a total compensation F under the following heads: SI. . Particulars Amount No.

1. Pain and suffering Rs. 40,000/-

2. Loss of earning during laid-up Rs.42,000/- G Period for six months

3. Loss of earning due to disability Rs.6,04,800/-

4. Towards medical expenses Rs.1,50,000/-

5. Conveyance, special diet etc. Rs. 20,000/-

6. Loss of amenities in life Rs. 30,000/- H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 415 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

7. Marriage prospects Rs. 20,000/- A

8Copy pinpoint8. Litigation expenses Rs. 20,000/- Total Rs. 9,26,800/- Accordingly, there would be an enhanced compensation of Rs. 3,13,800/-, which shall carry interest at the rate of 6% per annum from the date of petition till date of realization.” B

8. Not satisfied with the compensation awarded by the High Court, the appellant has appealed to this Court urging various contentions in support of further enhancement of the compensation. SUBMISSION ON BEHALF OF THE APPELLANT C

9Copy pinpoint9. Mr. Anand Sanjay M. Nuli, the learned counsel appearing for the appellant, filed his submissions in writing. The submissions are as under:

10Copy pinpoint10. The accident had occurred on 18.07.2012 when the appellant- claimant was walking on the left side of the Kulgod-Gokak Road, D Karnataka when a goods vehicle bearing No. KA-23/9426 dashed against the appellant-claimant, whilst being driven in a rash and negligent manner. In lieu of the same, the appellant-claimant sustained grievous injuries. The appellant-claimant was admitted to Lake View Hospital from 18.07.2012 to 06.08.2012 and was an indoor patient for 19 days. An amount of Rs.2,00,000/- had been spent towards his medical expenses. E It was observed that there was a permanent physical disability of 45% of the whole body as certified by the doctor and further was a functional disability of 100% as the appellant-claimant is unable to continue with his vocation and unable to find any work in lieu of the accident.

11Copy pinpoint11. It is submitted that the appellant-claimant was hale, healthy F and aged only 19 years at the time of the accident. The appellant-claimant being aggrieved, had sought compensation to the tune of Rs. 25,00,000/- by filing MYC No.1786/20 12 before the Tribunal. The Tribunal had awarded a meagre sum of Rs.6,13,000/- along with interest at 6%. Being aggrieved, the appellant-claimant had proceeded to file G M.F.A. No.100867/2014 (MV) before the High Court of Karnataka (Dharwad Bench). The High Court vide its impugned order has only marginally increased the compensation payable to the appellant-claimant from Rs.6,13,000/- to Rs.9,26,800/-. The High Court had considered the income of the appellant-claimant to be only Rs. 7,000/- as against Rs. H

p. 416 Copy page pinpoint

A 9,000/- which the appellant-claimant was earning through his utensil business. The physical disability had only been taken as 40% as against 45% as opined by the Doctor. The table showing the heads awarded as compensation by the High Court and the Tribunal to the appellant-claimant is as follows: B

12Copy pinpoint12. It is submitted that both the Tribunal as well as the High Court have failed to correctly provide/grant compensation under the head “future prospects” as mandated by this Court by only taking the salary of the F appellant-claimant to be Rs. 7,000/- and not Rs. 9,000/-. It is submitted that it had been specifically stated by Dr. Anil B. Patil (PW-2) that the appellant would require future medical expenses to the tune of Rs. 2,50,000/-. However, the Tribunal awarded only a sum of Rs. 25,000/- towards future medical expenses as against Rs. 2,50,000/- as stated by PW-2. The High Court has not considered the same at all. G

13Copy pinpoint13. It is submitted that with regard to conveyance, it ought to be appreciated that the accident occurred on the Kulgod-Gokak Highway and the appellant was subsequently transferred to Belgaum for treatment. Therefore, compensation under the head of conveyance ought to be granted on the higher side as the appellant was completely disabled and H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 417 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

must have received help from family members or friends to get admitted A at the hospital and back and forth which has also been observed in Master Ayush v. Branch Manager, Reliance General Insurance Company Limited and Another, (2022) 7 SCC 738. Therefore, it would be reasonable to award conveyance charges of Rs.50,000/-.

14Copy pinpoint14. It is submitted that this Court in Sanjay Kumar v. Ashok B Kumar and Another, (2014) 5 SCC 330, was pleased to award compensation to the tune of Rs.75,000/- for loss of marriage prospects wherein the claimant was earning only a sum of Rs.3,500/- per month. Therefore, it would be reasonable to award compensation to the tune of Rs. 1,00,000/- for loss of marriage prospects to the appellant-claimant in the present matter. C

15Copy pinpoint15. The appellant suffers from paraplegia because of the accident and requires an attendant throughout the day and hence, Attendant charges of Rs.4,500/- per month ought to be awarded to the appellant, which has not been considered by the Tribunal as well as the High Court. The appellant is unable to stand, walk or sit and is unable to bend his body or lift any weights. It is pertinent to point out herein that the appellant as a consequence of his grievous injuries will not be able to work in the same manner as he used to prior to the accident and therefore, functional disability of the appellant ought to be considered as 100%.

16Copy pinpoint16. It is further submitted that the appellant had been operated upon twice and has undergone a great deal of pain and suffering in lieu of the accident and has had to give up his vocation as a consequence of the grievous nature of the injuries sustained. This Court in Ramesh v. Karan Singh & Anr. in Civil Appeal No. 6365 of 2022 dated September 16, 2022 was pleased to grant compensation to the tune of Rs. 4,00,000/ F - after taking notice of the grievous nature of the injuries sustained by the Claimant in the said matter and taking into consideration that he had been operated upon 5 times. In light of the same, it would be reasonable to award compensation of Rs. 1,00,000/- to the appellant under the head of pain and suffering. G

17Copy pinpoint17. It is submitted that this Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Others, (1995) 1 SCC 551, (Para-9) had categorically stated that in injury cases, compensation ought to be assessed as Pecuniary Damages i.e the costs incurred by the claimant for the injury and Special Damages which includes damages for mental H

p. 418 Copy page pinpoint

A and physical shock, loss of amenities, loss of expectation of life and inconvenience. It may be observed that cumulatively, only a meagre sum of Rs. 90,000/- has been awarded to the appellant for the same. It ought to be appreciated that the appellant would not be able to marry as a consequence of the accident and is forced to live with the pain and suffering throughout his life as he would require an attendant to care for him as well. It may be observed that it has been specifically stated that the appellant is unable to squat or sit cross legged and unable to stand and walk as well as per the disability certificate. Keeping in mind the same, it would be reasonable to award compensation of Rs.50,000/- each to the appellant-claimant under the non-pecuniary heads of loss of amenities. It is submitted that with regards to litigation expenses, the appellant has contested the matter right from the point of the Tribunal upto this Court, in light of the same, it would be reasonable to award litigation expenses of Rs.50,000/- to the appellant.

18Copy pinpoint18. It is submitted that this Court in Govind Yadav v. New India D Insurance Company Limited, (2011) 10 SCC 683, Arvind Kumar Mishra v. New India Assurance Company Limited and Another, (2010) 10 SCC 254, and Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343, has categorically held that adequate compensation ought to be awarded not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.

19Copy pinpoint19. It is pertinent to point out herein that the appellant would be entitled to fair and just compensation in order to place the appellant in such a position as close to how the appellant was living prior to the accident as held by this Court in National Insurance Company Limited v. Pranay Sethi and Others, (2017) 16 SCC 680, (Para-55) and in Raj Kumar v. Ajay Kumar (supra)(Para-5). This Court has also held in Helen C. Rebello (Mrs.) and Others v. Maharashtra State Road Transport Corporation and Another, (1999) 1 SCC 90 (Para-36), that the Motor Vehicles Act, 1988 (for short, ‘the Act’) is a beneficial piece of legislation and hence the object of the Courts ought to be to assist the injured/deceased person.

20Copy pinpoint20. It is pertinent to point out herein that the claim of the appellant -claimant before the Tribunal was only Rs. 25,00,000/-. However, it is submitted that this Court in Nagappa v. Gurudayal Singh and Others,

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 419 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

(2003) 2 SCC 274, and in Laxman alias Laxman Mourya v. Divisional A Manager, Oriental Insurance Company Limited and Another, (2011) 10 SCC 756, had categorically stated that there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claim amount.

21Copy pinpoint21. Thus, in view of the aforesaid, the learned counsel prayed that there being merit in his appeal, the same may be allowed and the amount of compensation may be enhanced accordingly. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1-INSURANCE COMPANY

22Copy pinpoint22. Mr. Maibam Nabaghanashyam Singh, the learned counsel appearing for the insurance company has also submitted his submissions in writing. The same are as under:

23Copy pinpoint23. It is submitted that the present petition is filed by the petitioner challenging the impugned order whereby the High Court had allowed the appeal filed by the petitioner and enhanced the compensation from D Rs. 6,13,000/- to Rs. 9,26,800/-. The petitioner by filing the present petition is seeking further enhancement of the award. It is submitted that the High Court after considering the evidence on record and also after considering the MACT award had rightly enhanced the award as claimed by the petitioner as such there is no scope for any further enhancement E of the amount in the present petition.

24Copy pinpoint24. It is submitted that the High Court has rightly appreciated the evidence and has taken 40% disability for whole body after considering the nature of injury suffered and the evidence of treating doctor, which is 10% more than what has been considered by the Tribunal. The High F Court has rightly assessed the future earning as per the law laid down by this Court in Anant son of Sidheshwar Dukre v. Pratap son of Zhamnnappa Lamzane and Another in Civil Appeal No. 8420 of 2018 dated August 21, 2022. The calculation of loss of future earning where the claimant suffers permanent disability as a result of injuries has been dealt in the aforementioned judgment in para no. 7.2. Therefore, under G this head there is no scope of enhancement as claimed in the present petition.

25Copy pinpoint25. It is submitted that the appellant has wrongly claimed enhancement of the compensation towards the loss of future earnings during the laid-up period. In fact, the High Court has awarded for loss of H

p. 420 Copy page pinpoint

A earning during the laid-up period for six months. Whereas as per the law laid down by this Court in Anant v. Pratap (supra), this Court has held that the claimant cannot succeed in the claim of actual loss of income. It was observed by this Court in para No. 7.3 that “The grant of loss of future income compensates for any further period of time where income was lost. Actual loss of income can be awarded for the month in which accident took place.” In fact, the High Court had rather awarded on the higher side under this head i.e. for actual loss income, which ought to be have been awarded only for the month in which accident took place.

26Copy pinpoint26. It is submitted that the appellant therein without any evidence on record is allegedly claiming that the claimant had 100% disability. It is pertinent to submit here that the appellant had miserably failed to produce any document before the Tribunal, the High Court or even in this Court to show that the claimant had 100% disability. The only document relied upon by appellant as regards to the disability of the claimant is the disability certificate which shows that total permanent physical disability of 45% to whole body. No document filed by the appellant is showing that the claimant has 100% disability. Therefore, the contention made by the appellant for enhancement of the compensation on the ground of disability of 100% is nothing but a desire of the claimant to gain sympathy of this Court to grant further amount as enhancement of the award. The E approach of the appellant is unhealthy and will set a bad precedent if such pleas are accepted by this Court. In view of the same the present appeal is liable to be dismissed being devoid of merits.

27Copy pinpoint27. Thus, in view of the aforesaid, the learned counsel appearing for the insurance company prays that there being no merit in the appeal filed by the original claimant, the same may be dismissed. ANALYSIS

28Copy pinpoint28. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the appellant-claimant has made out any case for further enhancement of the amount of compensation. POSITION OF LAW

29Copy pinpoint29. The process of determining the compensation by the court is essentially a very difficult task and can never be an exact science. Perfect H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 421 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

compensation is hardly possible, more so in claims of injury and disability. A As rightly pointed out in H. West & Son Ltd. v. Shephard, 1958-65 ACJ 504 (HL, England): “…money cannot renew a physical frame that has been battered.”

30Copy pinpoint30. The principle consistently followed by this court in assessing B motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683.] C

31Copy pinpoint31. It is now a well settled position of law that even in cases of permanent disablement incurred as a result of a motor-accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, D taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases – and admits such possibility of future prospects, in case of the victim’s death.

32Copy pinpoint32. This Court has emphasised time and again that “just compensation” should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives.

33Copy pinpoint33. In Santosh Devi v. National Insurance Company Limited and Others, (2012) 6 SCC 421, this Court held that: H

p. 422 Copy page pinpoint

A “14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121] that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a B departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/ income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., C would remain the same throughout his life.

15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum D on those who are self-employed or who get fixed income/ emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their families.

16. The salaries of those employed under the Central and E State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.

17. Although the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the government employees and those employed in private sectors, but it cannot be denied that there has been incremental enhancement in the income of those who are self- employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 423 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.

18. Therefore, we do not think that while making the observations in the last three lines of para 24 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] judgment, the Court C had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30% increase in his total income over a D period of time and if he/she becomes the victim of an accident then the same formula deserves to be applied for calculating the amount of compensation.”

34Copy pinpoint34. In Jagdish v. Mohan and Others, (2018) 4 SCC 571, the victim, a carpenter, suffered permanent disablement, and his claim for E compensation including for loss of future prospects was considered by a three-Judge Bench which included, incidentally, the judges who had decided National Insurance Company (supra). This Court held that: “13. In the judgment of the Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC F 680], this Court has held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the G present case, the appellant would be entitled to an enhancement of Rs. 2400 towards loss of future prospects.

14. In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a H

p. 424 Copy page pinpoint

A serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing—at least in the facts of this case—can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law’s doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.

D 15. The Tribunal has noted that the appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90%. The disability is indeed total. Having regard to the age of the appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the appellant on account of the loss of income, including future prospects, would be Rs 18,14,400. In addition to this amount, the appellant should be granted an amount of Rs 2 lakhs on account of pain, suffering and loss of amenities. The amount awarded by the Tribunal towards medical expenses (Rs 98,908); for extra nourishment (Rs 25,000) and for attendant’s expenses (Rs 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The appellant should be allowed an amount of Rs 3 lakhs towards future medical expenses. The appellant is thus awarded a total sum of Rs 25,38,308 by way of compensation. The appellant would be entitled to interest at the rate of 9% p.a. on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver jointly and severally which is affirmed. The amount shall be deposited

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 425 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

before the Tribunal within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification.”

35Copy pinpoint35. The case of Parminder Singh v. New India Assurance Company Limited and Others, (2019) 7 SCC 217, involved an accident victim, who underwent surgery for hemiplegia (weakness of one half of the body on the left side; in this case, caused by an accident). According to the treating medic, the victim could not work as a labourer or perform any agricultural work, or work as a driver (as he was wont to); the assessment of his disability was at 75%, and of a permanent nature. The Court held that: C “5.1. The appellant has however, produced an affidavit by his employer in this Court. As per the said affidavit, the appellant was earning Rs 10,000 p.m. at the time of the accident. 5.2. On the basis of the affidavit filed by the employer of the D appellant, we accept that the income of the appellant was Rs 10,000 p.m. at the time of the accident, for the purpose of computing the compensation payable to him. 5.3. Taking the income of the appellant as Rs 10,000 p.m., with future prospects @ 50% as awarded by the High Court, E the total income of the appellant would come to Rs 15,000 p.m. 5.4. The appellant was 23 years old at the time when the accident occurred. Applying the multiplier of 18, the loss of future earnings suffered by the appellant would work out to F Rs 15,000 × 12 × 18 = Rs 32,40,000. ********* ********* ********* 5.7. In K. Suresh v. New India Assurance Co. Ltd. (2012) 12 SCC 274, this Court held that: (SCC p. 279, para 10) “10. It is noteworthy to state that an adjudicating G authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as H

p. 426 Copy page pinpoint

A much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad-based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of “just compensation” should be inhered.” ******** ********* ******** 5.9. In the present case, it is an admitted position that it is not possible for the appellant to get employed as a driver, or do any kind of manual labour, or engage in any agricultural operations whatsoever, for his sustenance. In such circumstances, the High Court has rightly assessed the appellant’s functional disability at 100% insofar as his loss of earning capacity is concerned. The appellant is, therefore, awarded Rs 32,40,000 towards loss of earning capacity.”

36Copy pinpoint36. Yet later and in near past, in an accident case, which tragically left in its wake a young girl in a life-long state of paraplegia, this Court, in Kajal v. Jagdish Chand and Others, (2020) 4 SCC 413, reiterated that in addition to loss of earnings, compensation for future prospects too could be factored in, and observed that: “14. In Concord of India Insurance Co. Ltd. v. Nirmala Devi [ (1979) 4 SCC 365 : 1979 SCC (Cri) 996 : 1980 ACJ 55], this Court held : (SCC p. 366, para 2)

F “2. … the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.”

15. In R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250], dealing with the different heads of compensation in injury cases this Court held thus: G (SCC p. 556, para 9) “9. Broadly speaking while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 427 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

those which the victim has actually incurred and which A are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; B (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.”

16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161], this Court laid down the heads under which compensation is to be awarded for personal injuries: (SCC p. 348, para 6) E “6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous F 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; G (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) H

p. 428 Copy page pinpoint

A (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). B 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), C (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.”

17. In K. Suresh v. New India Assurance Co. Ltd., (2012) 12 D SCC 274 : (2013) 2 SCC (Civ) 279 : (2013) 4 SCC (Cri) 638, this Court held as follows: (SCC p. 276, para 2) “2. … There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity “the Act”) stipulates that there should be grant of “just compensation”. Thus, it becomes a challenge for a court of law to determine “just compensation” which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance. ******** ******** ******** Loss of earnings

20. Both the courts below have held that since the girl was a G young child of 12 years only notional income of Rs 15,000 p.a. can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs 15,000 p.a. Each case has to be decided H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 429 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

on its own evidence but taking notional income to be Rs A 15,000 p.a. is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs 4846 per month. In our opinion, this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs 6784.40 per month i.e. 81,412.80 p.a. Applying the multiplier of 18, it works out to Rs 14,65,430.40, which is rounded off to Rs 14,66,000.”

37Copy pinpoint37. In Neerupam Mohan Mathur v. New India Assurance Company, (2013) 14 SCC 15, this Court considered the case of a victim, whose injury was assessed to 70% as loss of earning capacity for amputation of the arm; he was a postgraduate diploma holder in mechanical engineering, 32 years of age and earning about Rs. 3000/- per month. This Court held, approving the High Court’s order (which had adopted the formula from the Workmen’s Compensation Act, 1923 to determine 70% for the purpose of deciding loss of earning capacity) D as follows: “12. 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 of doing the specialised job of designing, refrigeration and air conditioning. For the said reason, the 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 BSc degree and postgraduate diploma in Mechanical Engineering, he can perform any job where application of mind is required than any physical work.

13. 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 was thus rightly calculated by the High Court at Rs 6,04,800.” H

p. 430 Copy page pinpoint

38Copy pinpoint38. However, making a monetary assessment of the injury suffered is the only process devised to compensate the victim. The process of making such an assessment, whether in case of death or injury, is provided in Section 168 of the Act which requires that the tribunals constituted under the Act determine compensation, which appears to be ‘just’. Thus, the Act vests a wide discretion upon the tribunals. The decision of this B Court in Divisional Controller, KSRTC v. Mahadeva Shetty and Another, (2003) 7 SCC 197, needs mention here (para 15): “15. ……It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be E “just” and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be “just” compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration. Though by use of the expression “which appears to it to be just”, a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness.. …”

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 431 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

39Copy pinpoint39. This Court in R.D. Hattangadi (supra), posited certain principles to be followed: “9.……while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, D i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.” E

40Copy pinpoint40. In the case of Raj Kumar (supra) this Court has explained in the following terms the general principles relating to compensation in injury cases and assessment of future loss of earnings due to permanent disability: F “General principles relating to compensation in injury cases

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 G 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 H

p. 432 Copy page pinpoint

A 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 B 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. Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250] C and Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)].]

6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) D (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would E 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. F 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). G (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 H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 433 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

evidence corroborating the evidence of the claimant, that A 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. B

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. C 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. Decisions of this D 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. E 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 H

p. 434 Copy page pinpoint

A 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%.

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 H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 435 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

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. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) F 8 Scale 567])

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: G (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; H

p. 436 Copy page pinpoint

A (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 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.

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 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

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 437 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

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 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.

15. 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.

16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 F 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 G 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 H

p. 438 Copy page pinpoint

A 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 B Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.

17. 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 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.

E 18. 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- examination with reference to the certificate. If the Tribunal H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 439 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

is not satisfied with the medical evidence produced by the A 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.

19. We may now summarise the principles discussed above: B (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (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 C 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). D (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 E with reference to the evidence in entirety. (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.” F

41Copy pinpoint41. Later, in another judgment, i.e., Jakir Hussein v. Sabir and Others, (2015) 7 SCC 252, this Court had to consider the correctness of a compensation assessment based on the High Court’s analysis of the injury to the victim (a driver who suffered permanent injury to his arm, impairing movement as well as the wrist, which rendered him incapable G of driving any vehicle). The High Court had assessed permanent disablement at 30%, even though the doctor had certified it to be 55%. This Court, reversing the High Court order, observed inter alia that: “15. …..Due to this injury, the doctor has stated that the appellant had great difficulty to move his shoulder, wrist and H

p. 440 Copy page pinpoint

A elbow and pus was coming out of the injury even two years after the accident and the treatment was taken by him. The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. He was once again operated upon during the pendency of the appeal before the High Court and he was hospitalised for 10 days. The appellant was present in person in the High Court and it was observed and noticed by the High Court that the right hand of the appellant was completely crushed and deformed. In view of the doctor’s evidence in this case, the Tribunal and the High Court have erroneously taken the extent of permanent disability at 30% and 55%, respectively for the calculation of amount towards the loss of future earning capacity. No doubt, the doctor has assessed the permanent disability of the appellant at 55%. However, it is important to consider the relevant fact, namely, that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. Further, it is very crucial to note that the High Court has clearly observed that his right hand was completely crushed and deformed.

16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], this Court specifically gave the illustration of a driver who has permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore, F clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again. The contention of the respondent Insurance Company that the appellant could take up any other alternative employment is no justification to avoid their vicarious liability. G Hence, the loss of earning is determined by us at Rs 54,000 per annum. Thus, by applying the appropriate multiplier as per the principles laid down by this Court in Sarla Verma v. DTC [(2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], the total loss of future H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 441 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

earnings of the appellant will be at Rs 54,000 × 16 = Rs A 8,64,000.”

42Copy pinpoint42. In Anthony alias Anthony Swamy v. Managing Director, Karnataka State Road Transport Corporation, (2020) 7 SCC 161, where the victim was a painter by profession, a three-Judge Bench had followed Raj Kumar (supra) and Nagarajappa v. Divisional B Manager, Oriental Insurance Company Limited, (2011) 13 SCC 323. The High Court had assessed the injury to be 25% permanent disability, although the treating doctor had said that the injury incurred by the bus passenger (who was earning Rs. 9000/- per month) was 75% of the left leg and 37.5% for the whole body. In Raj Kumar (supra), the physical disability of the upper limb was determined as 68% in proportion to 22- C 23% of the whole-body. The High Court had assessed the injury as 25% and granted compensation. However, this Court assessed the injury on the basis that the disability was 75%, stating as follows: “8. PW 3 had assessed the physical functional disability of the left leg of the appellant at 75% and total body disability at 37.5%. The High Court has considered it proper to assess the physical disability at 25% of the whole body only. There is no discussion for this reduction in percentage, much less any consideration of the nature of permanent functional disability suffered by the appellant. The extent of physical functional disability, in the facts of the case has to be considered in a manner so as to grant just and proper compensation to the appellant towards loss of future earning. The earning capacity of the appellant as on the date of the accident stands completely negated and not reduced. He has been rendered permanently incapable of working as a painter or do any manual work. Compensation for loss of future earning, therefore has to be proper and just to enable him to live a life of dignity and not compensation which is elusive. If the 75% physical disability has rendered the appellant permanently disabled from pursuing his normal vocation or any similar work, it is difficult to comprehend the grant of compensation to him in ratio to the disability to the whole body. The appellant is therefore held entitled to compensation for loss of future earning based on his 75% permanent physical functional disability recalculated with the salary of Rs 5,500 with multiplier of 14 at Rs 6,93,000.” H

p. 442 Copy page pinpoint

43Copy pinpoint43. The question of amount of compensation payable to one suffering injury as a result of motor vehicle accident was considered in Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735, when this Court had to apply the correct standard for awarding compensation for loss of future prospects for a vegetable vendor, whose right leg had to be amputated, as a result of a motor accident. The High Court had considered the disability to be 65%. This Court held as follows: “7. Further, the appellant claims that he was working as a vegetable vendor. It is true that a vegetable vendor might not require mobility to the extent that he sells vegetables at one place. However, the occupation of vegetable vending is not confined to selling vegetables from a particular location. It rather involves procuring vegetables from the wholesale market or the farmers and then selling it off in the retail market. This often involves selling vegetables in the cart which requires D 100% mobility. But even by conservative approach, if we presume that the vegetable vending by the appellant claimant involved selling vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the market place which otherwise would be extremely difficult for him with an amputated leg. We are required to be sensitive E while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood. Yet, considering that the appellant claimant is still capable to fend for his livelihood once he is brought in the market place, we determine the disability at 85% to determine the loss of income.

F 8. The appellant claimant in his appeal further claimed that he had been earning Rs 10,000 p.m. by doing vegetable vending work. The High Court however, considered the loss of income at Rs 3500 p.m. considering that the claimant did not produce any document to establish his loss of income. It G is difficult for us to convince ourselves as to how a labour involved in an unorganised sector doing his own business is expected to produce documents to prove his monthly income…..”

44Copy pinpoint44. In Arvind Kumar Mishra (supra), the appellant at the time of accident was a final year engineering (Mechanical) degree student in

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 443 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

a reputed college. He was a brilliant student and had passed all his semester examinations with distinction. He suffered grievous injuries and remained in a coma for about two months; his studies were disrupted as he was moved to different hospitals for surgeries. For many months, his condition remained serious; his right hand was amputated and vision seriously affected. This Court accepted his claim and held that he was permanently disabled to the extent of 70%. In Mohan Soni v. Ram Avtar Tomar and Others, (2012) 2 SCC 267 (page 272), in a case of injury entailing loss of a leg, this Court held that medical evidence of the extent of disability should not be mechanically scaled down: “8. On hearing the counsel for the parties and on going through the materials on record, we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule I of the Workmen’s Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle- E rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one’s personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller. ******** ********* **********

10. This Court in K. Janardhan case [(2008) 8 SCC 518 : (2008) 2 SCC (L&S) 733], set aside the High Court H

p. 444 Copy page pinpoint

A judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen’s Compensation. In K. Janardhan [(2008) 8 SCC 518 : (2008) 2 SCC (L&S) 733] this Court also referred to and relied upon B an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289 : 1976 SCC (L&S) 52] in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity. C ******** ********* **********

13. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting D another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by the Persons with Disabilities (Equal Opportunities, Protection of Rights E and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganised sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income.

F 14. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%. We, accordingly, find and hold that the compensation for the loss of the appellant’s future earnings must be computed on that basis. On calculation on that basis, the amount of compensation would come to Rs 3,56,400 and G after addition of a sum of Rs 30,000 and Rs 15,000 the total amount would be Rs 4,01,400. The additional compensation amount would carry interest at the rate of 9% per annum from the date of filing of the claim petition till the date of payment. The additional amount of compensation along with H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 445 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

interest should be paid to the appellant without delay and not later than three months from today.”

45Copy pinpoint45. One more decision, Sandeep Khanuja v. Atul Dande and Another, (2017) 3 SCC 351, too had dealt with the precise aspect of assessing the quantum of permanent disablement. The victim was aged about 30 years, working as a chartered accountant for various institutions for which he was paid professional fees. The injuries suffered by him resulted in severe impairment of movement; as he had problems in climbing stairs, back trouble while sleeping, etc. A rod was implanted in his leg. He suffered 70% permanent disability, and mental and physical agony. This Court enhanced the compensation, observing the proper manner to calculate the extent of disability. This Court held as under: C

“13. In the last few years, law in this aspect has been straightened by this Court by removing certain cobwebs that had been created because of some divergent views on certain aspects. It is not even necessary to refer to all these cases. We find that the principle of determination of compensation in D the case of permanent/partial disablement has been exhaustively dealt with after referring to the relevant case law on the subject in Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] in the following words: (SCC pp. 348-50, paras 8-11) E “Assessment of future loss of earnings due to permanent disability

8. xx xx xx

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 H

p. 446 Copy page pinpoint

A 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%.

B 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.”

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 447 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

14. The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, MACT approached the issue in the right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is not impaired. Such a conclusion was justified if the appellant was in the employment where job requirement could be to do sitting/table work and receive monthly salary for the said work. An important feature and aspect which is ignored by MACT is that the appellant is a professional Chartered Accountant. D To do this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate E Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is not only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered F Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though G the High Court recognised this, it did not go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of compensation with the adoption of multiplier method……. H

p. 448 Copy page pinpoint