Delhi High Court
Arun Sehgal vs Jai Ram Vashisht on 10 December, 2010
Author: J.R. Midha
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO.No.120/1991
Reserved on : 23rd July, 2010
Date of Decision : 10th December, 2010
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ARUN SEHGAL ..... Appellant
Through : Mr. V.P. Chaudhary, Sr. Adv.
with Mr. Nitinjya Chaudhary
and Ms. Sushma, Advs.
versus
JAI RAM VASHISHT ..... Respondent
Through : Mr. L.K. Tyagi, Adv. for R-2.
CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
JUDGMENT
1. The appellant has challenged the award of the learned
Tribunal whereby compensation of `61,936/- has been awarded
to him. The appellant seeks enhancement of the award
amount.
2. The accident dated 26th August, 1986 resulted in grievous
injuries to the appellant. The appellant was travelling in scooter
bearing No.DIK 5857 as a pillion rider when he was hit by car
bearing No.DBA 9011. The appellant suffered lacerated wound
in his left knee and compound fracture of lower 1/3rd of left leg.
The appellant remained admitted in the base hospital from 26th
August, 1986 to 9th September, 1986, from 22nd September,
1986 to 21st November, 1986 and thereafter from 6th January
1987 to 22nd January, 1987.
3. The appellant was aged 34 years at the time of the
accident and was working as a Wireman with the Indian Air
Force. The appellant had joined the Air Force on 6th January,
1972. The appellant was holding a Diploma in Electronics from
Bangalore. As per the Service Rules of Air Force, the appellant
opted for retirement upon completion of 15 years of service
and was scheduled to retire on 31st January, 1987. The
appellant had planned to secure suitable civil employment
after his retirement. However, before the date of retirement,
the appellant suffered accident in question and was confined to
bed from 26th August, 1986 to 22nd January, 1987. The
appellant was retired by Air Force on 31st January, 1987.
4. The injuries suffered by the appellant resulted in disability
which was assessed by the Medical Board of Air Force as 50%
vide disability certificate, Ex.PW1/5. The appellant started
walking with the help of crutches after 5th April, 1987 and
remained on crutches for a period of two months. During this
period, the appellant underwent physiotherapy and thereafter,
he started walking with the help of stick for a period of one
month. The appellant was drawing a salary of `2,120/- per
month at the time of retirement from service. The appellant
had planned to secure suitable civil employment after his
retirement and he ultimately started private job at a salary of
`800/- per month. However, after a period of ten months, the
appellant started his own business of real estate.
5. The Claims Tribunal has awarded a sum of `35,000/-
towards disability, reduction in earning capacity and loss of
income during treatment considering that the appellant was
getting a pension of `400/- per month and also had a private
job of `800/- per month and later on he started his own
business of real estate. The Claims Tribunal has further
awarded `5,936/- towards loss of salary during treatment,
`4,500/- towards special diet, `1,500/- towards conveyance and
`15,000/- towards pain and suffering. The total compensation
awarded is `61,936/-.
6. The learned senior counsel for the appellant has raised
following grounds at the time of hearing of this appeal:-
(i) The compensation be awarded for loss of earning
capacity due to permanent disability.
(ii) The compensation for special diet be enhanced.
(iii) The compensation for conveyance be enhanced.
(iv) The compensation for pain and suffering be
enhanced.
(v) The compensation be awarded for loss of amenities
of life and disfiguration.
7. The principles for assessment of loss of future earnings
due to permanent disability have been laid down by the
Hon‟ble Supreme Court in the recent case of Raj Kumar v. Ajay
Kumar & Anr., MANU/SC/1018/2010 decided on 18th October,
2010 as under:-
"General principles relating to
compensation in injury cases
4. The provision of the Motor Vehicles Act,
1988 („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 tribunal shall
have to assess the damages objectively and
exclude from consideration any speculation or
fancy, though some conjecture with reference to
the nature of disability and its consequences, is
inevitable. A person is not only to be
compensated for the physical injury, but also for
the loss which he suffered as a result of such
injury. This means that he is to be compensated
for his inability to lead a full life, his inability to
enjoy those normal amenities which he would
have enjoyed but for the injuries, and his inability
to earn as much as he used to earn or could
have earned. (See C. K. Subramonia Iyer v. T.
Kunhikuttan Nair - AIR 1970 SC 376, R. D.
Hattangadi v. Pest Control (India) Ltd. - 1995 (1)
SCC 551 and Baker v. Willoughby - 1970 AC
467).
5. The heads under which compensation is
awarded in personal injury cases are the
following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment,
hospitalization, medicines,
transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains)
which the injured would have made
had he not been injured, comprising :
(a) Loss of earning during the
period of treatment;
(b) Loss of future earnings on
account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and
trauma as a consequence of the
injuries.
(v) Loss of amenities (and/or loss of
prospects of marriage).
(vi) Loss of expectation of life (shortening
of normal longevity).
In routine personal injury cases, compensation
will be awarded only under heads (i), (ii)(a) and
(iv). It is only in serious cases of injury, where
there is specific medical evidence corroborating
the evidence of the claimant, that compensation
will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings
on account of permanent disability, future
medical expenses, loss of amenities (and/or loss
of prospects of marriage) and loss of expectation
of life. Assessment of pecuniary damages under
item (i) and under item (ii)(a) do not pose much
difficulty as they involve reimbursement of
actuals and are easily ascertainable from the
evidence. Award under the head of future
medical expenses - item (iii) - depends upon
specific medical evidence regarding need for
further treatment and cost thereof. Assessment
of non-pecuniary damages - items (iv), (v) and
(vi) --involves determination of lump sum
amounts with reference to circumstances such
as age, nature of injury/deprivation/disability
suffered by the claimant and the effect thereof
on the future life of the claimant. Decision of
this Court and High Courts contain necessary
guidelines for award under these heads, if
necessary. What usually poses some difficulty is
the assessment of the loss of future earnings on
account of permanent disability - item (ii)(a). We
are concerned with that assessment in this
case."
"Assessment of future loss of earnings due
to permanent disability
6. Disability refers to any restriction or lack of
ability to perform an activity in the manner
considered normal for a human-being.
Permanent disability refers to the residuary
incapacity or loss of use of some part of the
body, found existing at the end of the period of
treatment and recuperation, after achieving the
maximum bodily improvement or recovery which
is likely to remain for the remainder life of the
injured. Temporary disability refers to the
incapacity or loss of use of some part of the body
on account of the injury, which will cease to exist
at the end of the period of treatment and
recuperation. Permanent disability can be either
partial or total. Partial permanent disability refers
to a person‟s inability to perform all the duties
and bodily functions that he could perform
before the accident, though he is able to perform
some of them and is still able to engage in some
gainful activity. Total permanent disability refers
to a person‟s inability to perform any avocation
or employment related activities as a result of
the accident. The permanent disabilities that
may arise from motor accidents injuries, are of a
much wider range when compared to the
physical disabilities which are enumerated in the
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act,
1995 („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.
7. 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%.
8. Where the claimant suffers a permanent
disability as a result of injuries, the assessment
of compensation under the head of loss of future
earnings, would depend upon the effect and
impact of such permanent disability on his
earning capacity. The Tribunal should not
mechanically apply the percentage of permanent
disability as the percentage of economic loss or
loss of earning capacity. In most of the cases,
the percentage of economic loss, that is,
percentage of loss of earning capacity, arising
from a permanent disability will be different from
the percentage of permanent disability. Some
Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent
disability would result in a corresponding loss of
earning capacity, and consequently, if the
evidence produced show 45% 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. What
requires to be assessed by the Tribunal is the
effect of the permanently disability on the
earning capacity of the injured; and after
assessing the loss of earning capacity in terms of
a percentage of the income, it has to be
quantified in terns(sic) of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of
dependency). We may however note that in
some cases, on appreciation of evidence and
assessment, the Tribunal may find that
percentage of loss of earning capacity as a result
of the permanent disability, is approximately the
same as the percentage of permanent disability
in which case, of course, the Tribunal will adopt
the said percentage for determination of
compensation (see for example, the decisions of
this court in Arvind Kumar Mishra v.New India
Assurance Co.Ltd. - 2010(10) SCALE 298 and
Yadava Kumar v.D.M., National Insurance Co.
Ltd. - 2010 (8) SCALE 567).
9. Therefore, the Tribunal has to first decide
whether there is any permanent disability and if
so the extent of such permanent disability. This
means that the tribunal should consider and
decide with reference to the evidence: (i)
whether the disablement is permanent or
temporary; (ii) if the disablement is permanent,
whether it is permanent total disablement or
permanent partial disablement, (iii) if the
disablement percentage is expressed with
reference to any specific limb, then the effect of
such disablement of the limb on the functioning
of the entire body, that is the permanent
disability suffered by the person. If the Tribunal
concludes that there is no permanent disability
then there is no question of proceeding further
and determining the loss of future earning
capacity. But if the Tribunal concludes that there
is permanent disability then it will proceed to
ascertain its extent. After the Tribunal ascertains
the actual extent of permanent disability of the
claimant based on the medical evidence, it has
to determine whether such permanent disability
has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain
what activities the claimant could carry on in
spite of the permanent disability and what he
could not do as a result of the permanent ability
(this is also relevant for awarding compensation
under the head of loss of amenities of life). The
second step is to ascertain his avocation,
profession and nature of work before the
accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled
from earning any kind of livelihood, or (ii)
whether in spite of the permanent disability, the
claimant could still effectively carry on the
activities and functions, which he was earlier
carrying on, or (iii) whether he was prevented or
restricted from discharging his 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. For example, if the left hand of a
claimant is amputated, the permanent physical
or functional disablement may be assessed
around 60%. If the claimant was a driver or a
carpenter, the actual loss of earning capacity
may virtually be hundred percent, if he is neither
able to drive or do carpentry. On the other hand,
if the claimant was a clerk in government
service, the loss of his left hand may not result in
loss of employment and he may still be
continued as a clerk as he could perform his
clerical functions; and in that event the loss of
earning capacity will not be 100% as in the case
of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact,
there may not be any need to award any
compensation under the head of „loss of future
earnings‟, if the claimant continues in
government service, though he may be awarded
compensation under the head of loss of
amenities as a consequence of losing his hand.
Sometimes the injured claimant may be
continued in service, but may not found suitable
for discharging the duties attached to the post or
job which he was earlier holding, on account of
his disability, and may therefore be shifted to
some other suitable but lesser post with lesser
emoluments, in which case there should be a
limited award under the head of loss of future
earning capacity, taking note of the reduced
earning capacity. 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.
11. 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 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 Referencer for evaluation of
permanent physical impairment (for example,
the Manual for Evaluation of Permanent Physical
Impairment for Orthopedic Surgeons, prepared
by American Academy of Orthopedic Surgeons or
its Indian equivalent or other authorized 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. 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.
12. 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 giving 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 claimant,
is tendered for cross-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.
13. 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.
(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 percentage of
loss of earning capacity is the same as
percentage of permanent disability).
(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 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.
(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.
14. The assessment of loss of future earnings is
explained below with reference to the following
illustrations:
Illustration „A‟: The injured, a workman, was aged
30 years and earning `3000/- per month at the
time of accident. As per Doctor‟s evidence, the
permanent disability of the limb as a
consequence of the injury was 60% and the
consequential permanent disability to the person
was quantified at 30%. The loss of earning
capacity is however assessed by the Tribunal as
15% on the basis of evidence, because the
claimant is continued in employment, but in a
lower grade. Calculation of compensation will be
as follows:
a) Annual income before : `36,000/-
the accident
b) Loss of future earning : ` 5400/-
per annum (15% of the
prior annual income)
c) Multiplier applicable : 17
with reference to age
d) Loss of future earnings : : ` 91,800/-
(5400 x 17)
Illustration „B‟: The injured was a driver aged 30
years, earning `3000/- per month. His hand is
amputated and his permanent disability is
assessed at 60%. He was terminated from his job
as he could no longer drive. His chances of
getting any other employment was bleak and
even if he got any job, the salary was likely to be
a pittance. The Tribunal therefore assessed his
loss of future earning capacity as 75%.
Calculation of compensation will be as follows:
a) Annual income prior : `36,000/-
to the accident
b) Loss of future earning : `27,000/-
per annum (75% of
the prior annual
income)
c) Multiplier applicable : 17
with reference to age
d) Loss of future : ` 4,59,000/-
earnings : (27000 x
17)
Illustration „C‟: The injured was 25 years and a
final year Engineering student. As a result of the
accident, he was in coma for two months, his
right hand was amputated and vision was
affected. The permanent disablement was
assessed as 70%. As the injured was
incapacitated to pursue his chosen career and as
he required the assistance of a servant
throughout his life, the loss of future earning
capacity was also assessed as 70%. The
calculation of compensation will be as follows:
a) Minimum annual income : `60,000/-
he would have got if had
been employed as an
Engineer
b) Loss of future earning : ` 42,000/-
per annum (70% of the
expected annual
income)
c) Multiplier applicable (25 : 18
years)
d) Loss of future earnings : : ` 7,56,000/-
(42000 x 18)
[Note : The figures adopted in illustrations
(A) and (B) are hypothetical. The figures in
Illustration (C), however, are based on
actuals taken from the decision in Arvind
Kumar Mishra (supra)].
15. After the insertion of section 163A in the
Act (with effect from 14.11.1994), if a claim for
compensation is made under that section by an
injured alleging disability, and if the quantum of
loss of future earning claimed, falls under the
second schedule to the Act, the Tribunal may
have to apply the following principles laid down
in Note (5) of the Second Schedule to the Act to
determine compensation :
"5. Disability in non-fatal accidents :
The following compensation shall be payable in
case of disability to the victim arising out of non-
fatal accidents : -
Loss of income, if any, for actual period of
disablement not exceeding fifty two weeks.
PLUS either of the following :-
(a) In case of permanent total disablement the
amount payable shall be arrived at by
multiplying the annual loss of income by the
Multiplier applicable to the age on the date of
determining the compensation, or
(b) In case of permanent partial disablement
such percentage of compensation which would
have been payable in the case of permanent
total disablement as specified under item (a)
above.
Injuries deemed to result in Permanent Total
Disablement/Permanent Partial Disablement and
percentage of loss of earning capacity shall be as
per Schedule I under Workmen‟s Compensation
Act, 1923."
16. We may in this context refer to the
difficulties faced by claimants in securing the
presence of busy Surgeons or treating Doctors
who treated them, for giving evidence. Most of
them are reluctant to appear before Tribunals for
obvious reasons either because their entire day
is likely to be wasted in attending the Tribunal to
give evidence in a single case or because they
are not shown any priority in recording evidence
or because the claim petition is filed at a place
far away from the place where the treatment
was given. Many a time, the claimants are
reluctant to take coercive steps for summoning
the Doctors who treated them, out of respect
and gratitude towards them or for fear that if
forced to come against their wishes, they may
give evidence which may not be very favorable.
This forces the injured claimants to approach
„professional‟ certificate givers whose evidence
most of the time is found to be not satisfactory.
Tribunals should realize that a busy Surgeon may
be able to save ten lives or perform twenty
surgeries in the time he spends to attend the
Tribunal to give evidence in one accident case.
Many busy Surgeons refuse to treat medico-legal
cases out of apprehension that their practice and
their current patients will suffer, if they have to
spend their days in Tribunals giving evidence
about past patients. The solution does not lie in
coercing the Doctors to attend the Tribunal to
give evidence. The solution lies in recognizing
the valuable time of Doctors and accommodating
them. Firstly, efforts should be made to record
the evidence of the treating Doctors on
commission, after ascertaining their convenient
timings. Secondly, if the Doctors attend the
Tribunal for giving evidence, their evidence may
be recorded without delay, ensuring that they
are not required to wait. Thirdly, the Doctors may
be given specific time for attending the Tribunal
for giving evidence instead of requiring them to
come at 10.30 A.M. or 11.00 A.M. and wait in the
Court Hall. Fourthly, in cases where the
certificates are not contested by the
respondents, they may be marked by consent,
thereby dispensing with the oral evidence. These
small measures as also any other suitable steps
taken to ensure the availability of expert
evidence, will ensure assessment of just
compensation and will go a long way in
demonstrating that Courts/Tribunals show
concern for litigants and witnesses.
Assessment of compensation
17. In this case, the Tribunal acted on the disability
certificate, but the High Court had reservations about
its acceptability as it found that the injured had been
treated in the Government Hospital in Delhi whereas
the disability certificate was issued by a District
Hospital in the State of Uttar Pradesh. The reason
given by the High Court for rejection may not be
sound for two reasons. Firstly though the accident
occurred in Delhi and the injured claimant was treated
in a Delhi Hospital after the accident, as he hailed
from Chirori Mandi in the neighbouring District of
Ghaziabad in Uttar Pradesh, situated on the outskirts
of Delhi, he might have continued the treatment in
the place where he resided. Secondly the certificate
has been issued by the Chief Medical Officer,
Ghaziabad, on the assessment made by the Medical
Board which also consisted of an Orthopaedic
Surgeon. We are therefore of the view that the High
Court ought not to have rejected the said disability
certificate.
18. The Tribunal has proceeded on the basis that the
permanent disability of the injured-claimant was 45%
and the loss of his future earning capacity was also
45%. The Tribunal overlooked the fact that the
disability certificate referred to 45% disability with
reference to left lower limb and not in regard to the
entire body. The said extent of permanent disability of
the limb could not be considered to be the functional
disability of the body nor could it be assumed to result
in a corresponding extent of loss of earning capacity,
as the disability would not have prevented him from
carrying on his avocation as a cheese vendor, though
it might impede in his smooth functioning. Normally,
the absence of clear and sufficient evidence would
have necessitated remand of the case for further
evidence on this aspect. However, instead of
remanding the matter for a finding on this issue, at
this distance of time after nearly two decades, on the
facts and circumstances, to do complete justice, we
propose to assess the permanent functional disability
of the body as 25% and the loss of future earning
capacity as 20%.
19. The evidence showed that at the time of the
accident, the appellant was aged around 25 years and
was eking his livelihood as a cheese vendor. He
claimed that he was earning a sum of `3000/- per
month. The Tribunal held that as there was no
acceptable evidence of income of the appellant, it
should be assessed at `900/- per month as the
minimum wage was `891 per month. It would be very
difficult to expect a roadside vendor to have accounts
or other documents regarding income. As the accident
occurred in the year 1991, the Tribunal ought to have
assumed the income as at least `1500/- per month (at
the rate of `50/- per day) or `18,000/- per annum,
even in the absence of specific documentary evidence
regarding income.
20. In the case of an injured claimant with a disability,
what is calculated is the future loss of earning of the
claimant, payable to claimant, (as contrasted from
loss of dependency calculated in a fatal accident,
where the dependent family members of the
deceased are the claimants). Therefore there is no
need to deduct one-third or any other percentage
from out of the income, towards the personal and
living expenses.
21. As the income of the appellant is assessed at
`18000/- per annum, the loss of earning due to
functional disability would be 20% of `18000/- which is
`3600/- per annum. As the age of appellant at the time
of accident was 25, the multiplier applicable would be
18. Therefore, the loss of future earnings would be
3600 x 18 = `64,800/- (as against `55,080/-
determined by the Tribunal). We are also of the view
that the loss of earning during the period of treatment
(1.10.1991 to 16.6.1992) should be `12750/- at the
rate of `1500/- for eight and half months instead of
`3600/- determined by the Tribunal. The increase
under the two heads is rounded of to `20,000/-."
8. In Madan Lal Papneja v. State of Haryana & Ors.,
MANU/ PH/2408/2010, Punjab and Haryana High Court held as
under:-
"VII. Disability assessment, as per
government guidelines
8. In all cases resulting in grievous injuries that
include fractures that further result in
disablement, temporary or permanent, there is a
practice to simply accept whatever the doctor
assesses. There is hardly ever any cross
examination in the disability assessment to the
doctor, except a suggestion that his assessment
is high. It is important to know how the
assessment is made and what the percentage of
disability signifies. In order to review the
guidelines for evaluation of various disabilities
and procedure for certification and to
recommend appropriate modification/alterations,
a committee was set up in 1988 by the
Government of India, Ministry of Social Justice &
Empowerment under the Chairmanship, DGHS,
GOI with subcommittee, one each in the area of
Mental Retardation, Locomotor/ Orthopaedic,
Visual and Speech & Hearing disability. After
considering the reports of committee, keeping in
view the provisions of Persons with Disabilities
(Equal opportunities Protection of rights and Full
participation) Act 1995, guidelines for evaluation
of following disabilities and procedure for
certification was notified vide no. „The Gazette of
India, Extra ordinary Part-II Section 1, Dated 13,
June 2001‟ for:
1. Visual Impairment
2. Locomotor /Orthopedic Disability
3. Speech and Hearing Disability
4. Mental Retardation
5. Multiple Disabilities
9. In the guidelines, the functional (permanent
physical impairment or PPI) due to congenital,
post disease or trauma have been evaluated.
This is commonly interpreted as disability which
is not so, in strict terms. In case of loco motor
conditions, broadly, the body has been divided
into upper limb, lower limb & trunk. In principle,
the function of one part cannot be replaced by
other, therefore each functional part in itself is
100% and thus loss of function/ PPI of that part is
taken as 100%. On the other hand, the whole
body value cannot exceed 100%. Thus in case
the impairment is seen in more than one function
or body part, the mathematical sum may exceed
100 but total of body/individual cannot exceed
100%. Thus a total of one or all segments of body
cannot exceed 100% in any situation.
10. The guidelines shall be applied for determining
the % of disability. If a doctor or a medical board
makes an assessment there shall be no mistake in
accepting the same, prima facie. However, if the
assessment is doubted, it is necessary to cross-
verify with the mode of assessment prescribed
under the guidelines [The method of computation is
meant only to provide a theoretical basis for an
inquisitive judge/lawyer/litigant]. Broadly, it
necessary to know that the injury to upper limb is
assessed thus:
a) Upper limb assessment
Upper Limb
Arm Component Hand Component
(i) Prehension (ii) Sensation (iii) Strength
(i) Loss of motion (ii) Muscle Strength (iii) Co-ordinated activities Assessment shall be done by
(i) Opposition (tested against thumb against all
other fingers)
(ii) Lateral pinch (for e.g. grasping a key,
holding a pen or pencil)
(iii) Cylindrical grasp
(iv) Spherical grasp
(v) Hook Grasp
11. (i) The value of maximum range of motion
(ROM) in the arm component is 90%. Each of the
three joints of the arm (shoulder, elbow and
wrist) is weighed equally, i.e., 30% or 0.30. This
could be understood through an illustration. A
fracture of the right shoulder may affect ROM so
that active abduction (abduct is to draw away
from the medial line of the body) is reduced to
say, 900. It is possible to take the arm thrown
downwards from alongside the leg to touch the
ear by abducting it to 1800. The relative loss is
50% of its efficacy, but in terms of the arm
component, the % of loss shall be 50 X 0.30 =
15% loss of motion for the arm component. If
more than one joint is involved, the same method
is applied and the losses in each of the affected
joints are added. If the loss of abduction of the
shoulder is 600, loss of extension of wrist (as
opposed to bending, extending means
straightening. Medically, they are referred
respectively as palmar flexion and dorsi flexion)
is 400, then the loss of range of motion for the
arm is (60X 0.30) + (40x0.30) = 30%.
ii) The strength of muscles could be tested by
manual testing like 0-5 grading.
0. - 100% (complete paralysis)
1.- 80% (flicker of contraction only)
2.- 60% (power detected when
gravity is excluded, i.e., when
the arm moves sideways and
not upwards against gravity)
3. - 40% (movement against force of
gravity but not against examiner‟s
resistance)
4. - 20% (minimal weakness)
5. - 0% (normal strength)
The mean percentage of muscle strength loss is
multiplied by 0.30. If there has been a loss of
muscle strength of more than one joint, the
values are added as has been described for loss
of ROM.
(iii) Principles of evaluation of co-ordinated
activities shall be:
a. The total value for co-ordinate
activities is
90%
b. Each activity has value of 9%
(iv) Combining the values for the arm component:
The value of loss of function of arm component is
obtained by combining the values of ROM,
muscle strength and co-ordinated activities,
using the following formula:
a + b (90 - a), where 'a' will be the higher
score and 'b' will be
90 the lower score.
12. The total value of hand component is 90%.
i) The principles of evaluation of prehension
include:
a). Opposition (8%) tested against
index finger (2%), middle finger (2%),
ring finger (2%) and little finger (2%).
b). Lateral pinch (5%) tested by
asking the patient to hold a key.
c). Cylindrical grasp (6%) tested for
(a) large object 4" size (3%) and small
object 1" size (3%)
d). Spherical grasp (6%) tested for
(a)large object 4" size (3%) and small
object 1" size (3%)
e.) Hook grasp (5%) tested by asking
the patient to lift a bag.
ii) Principles of evaluation of
sensations:
Total value of sensation is 30%. It
includes, 1. Radial side of thumb
(4.8%, that is the outer side), 2. Ulnar
side of thumb (1.2%, that is the inner
side), 3. radial side of each finger
(4.8%) and 4. Ulnar side of each
finger (1.2%). Total value of strength
is 30%. It includes, 1. Grip strength
(20%), 2. Pinch strength (10%). 10%
additional weightage is to be given to
the following factors viz., 1. Infection;
2. Deformity; 3. Mal-alignment; 4.
Contractures; 5. Abnormal mobility
(when a person has a wobbly hand,
for example); 6.Dominant extremity
(4%), i.e., depending on the lack of
strength.
iii) Combining value of the hand
component shall mean the final value
or loss of function of hand component
obtained by summing up of loss of
prehension, sensation and strength.
iv) Applying the formula mentioned in
the preceding paragraph, the % of
disability for the combined arm and
hand components could be
calculated. If the impairment of the
arm is say 27% and impairment of the
hand is 64%, the combined value is:
27(90-64)
64--------------------- = 71.8%, where 64
is the higher value
90 and 27 is the lower value.
b) Lower limb assessment
13. The lower extremity is divided into
mobility component and stability
component. Mobility component includes
range of movement and muscle strength.
To put it graphically,
Lower Limb
|
-------------------------
| |
Mobility Stability
|
-------------------------------
| |
Range of movement Muscle strength
(i) The value of maximum ROM in the
mobility component is 90%. Each of the 3
joints, i.e., hip, knee, foot-ankle is weighed
equally at 30% or 0.30. For example, a
fracture of the right hip affects range of
motion, so that active abduction is 270
against the abduction of 540 found for the
left hip. There is a 50% relative loss of
abduction. The % of loss of mobility
component is 50X0.30=15%. If more than
one joint is involved, the same method as
applied above is applied and the losses in
each of the affected joints are added. For
example, if the loss of abduction of the hip
is 60% and loss of extension is 40%, the
loss of ROM for mobility component is (60 x
0.30) + (40 x 0.30)=30%
(ii) Principles of evaluation of muscle
strength consists of: (1) Taking the value
for muscle strength in the leg to be 90%
and (2) Taking the strength of muscle
tested by manual testing like 0 to 5
grading:
Grade 0 - 100%
Grade 1 - 80%
Grade 2 60%
Grade 3 40%
Grade 4 20%
Grade 5 0%
The mean % of muscle strength loss is first
multiplied by 0.30. If there has been a loss
of muscle strength of more than one joint,
the values are added as described for ROM.
(iii) Combining values of mobility
component. Suppose an individual has a
fracture of the right hip joint and has in
addition to 16% loss of motion, 8% loss of
strength muscles, combining the values,
the disability is:
8(90-16)
16---------------------- = 22.6%
(iv) Principle of evaluating the stability
component consists of taking the total
value as 90% and tested on „scale method‟
and clinical method.
c) Traumatic and non-traumatic
leisions
14. Cervical spine fractures are assessed
on the basis of evaluation of vertebral
compressions, fragmentation, involvement
of posterior elements, nerve root
involvement of posterior elements and
moderate neck rigidity. They are assessed
by X ray examination and treated
surgically. Cervical inter-vertebral disc
disorders, thoracic and dorso-lumbar spine
fractures resulting in acute pain,
paraplegia, vertebral compression resulting
in severe pain, neurogenic low back disc
injuries resulting in severe pain are
assessed on a scale of 0 to 100%. Without
the accompaniment of any compression,
fractures or leisions, there could be
persistent muscle spasm, stiffness of spine
with mild, moderate to severe radiological
changes are assessed in the range of 0 to
30% .
VIII. Efficacy of disability of
assessment
a) Assessment of compensation for pain.
15. In the manner of assessment of pain
and suffering, the disability assessed will be
a good guide to know how the particular
injury affects performance in the work
place and elsewhere. Head injury or spinal
injury are sometimes regressive and lead to
further complications like epilepsy,
numbness, acute pain and spasms. There is
a need to know the real sufferer from a
malingerer. Expert‟s evidence through a
doctor will help the tribunal in determining
the appropriate response to prayer for
compensation.
b) Translating disability into loss of
earning power
16. All injuries and assessments of
disability do not impact the earning
capacity [Orissa State Road Transport
Corporation v. Bhanu Prakash Joshi-(1994)
1 ACC 467 (Ori); New India Insurance
Company Ltd v. Rajauna-(1996) 1 TAC 149
(Kant); Balaiah (T.) v. Abdul Majeed-AIR
1994 AP 354]; nor in a similar way. The
disability has to be seen in the context of
the particular occupation or calling that the
victim is engaged in. For instance, a mal-
union of fracture in the lower limb and
stiffness at the knee for a professional
driver of motor vehicle may completely
make him unfit to be a driver. In Oriental
Insurance Company Limited v. Koti Koti
Reddy-2000(2) LLJ 552 (AP), the injuries
caused to the claimant were on the
forehead and right leg, particularly at joint
and foot. The permanent disability was
assessed at 30% by the doctor and due to
calcanian fracture, it was in evidence that
he could not work as driver. The WC
Commissioner assessed the loss of earning
capacity as 100% and the HC upheld the
assessment. A deformity of the hand could
affect a carpenter differently than how it
may be irrelevant for, say, a telephone
operator. In Pratap Narain Singh Deo v.
Srinvas Sabata- AIR 1976 SC 222, an
amputation of the arm of a carpenter was
taken to result in 100% loss of earning
capacity; In Sadasihiv Krishan Adke v. M/s
Time Traders- 1992(1) LLJ 877, a coolie lost
his leg. The injury to his leg resulted in his
walking with crutches and the Court
assessed the loss of earning capacity to be
100%. The attempt at the trial shall always
be to elicit how the particular percentage of
disability has affected the job that the
person was doing and if not suitable for the
same job, to what other type of
employment that he or she is fit for, in the
changed circumstances and what is likely
to be the loss of income. With the passing
of Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995, a person may
continue in the same employment,
notwithstanding such disability, the
ascertainment of loss of earning capacity
will still be relevant to know the
employability of the person in open market
with the particular disability. The
continuance of employment despite the
injury may not itself dis-entitle the person
from claiming compensation. Posing the
question what such injury results, the
Madras High Court said in The Management
of Sree Lalithambika Enterprises, Salem v.
S. Kailasam- 1 988 (1) LLJ 63 that the
employer may continue an injured person
in employment and deny that any loss of
earning capacity has resulted in spite of
privation of an organ. This, the court said,
could not be supported and cannot be the
intendment of the WC Act . To the same
effect, see Executive Engineer, PWD,
Udaipur v. Narain Lal-(1977) 2 LLN 415,
1977 LIC 1827 (Raj). It must be noticed
both the Workmen‟s Compensation Act and
the MV Act use the expression loss of
earning capacity differently from disability
per se and without making reference to the
claimant‟s evidence and the expert opinion
of a doctor, it will be arbitrary to simply
take the % of disability as % of loss of
earning capacity. If a Tribunal assesses
compensation at a fixed sum for every %of
disability, it will result in overlapping of
claims if assessment of loss of earning
capacity is independently assessed. There
are certain recent decisions of the Supreme
Court itself [Arvind Kumar Mishra v. New
India Assurance Co Ltd and another
C.A.No.5510 of 2005 dated Sep.29, 2010;
Yadav Kumar v. The Divisional Manager,
National Insurance Co. Ltd & another
C.A.No.7223 of 2010, dated Aug.31, 2010],
where the % of disability assessed has
been taken as synonymous with % of loss
of earning power, but it must be assumed
that the court took the value of % of
disability to be the same as % of earning
power, having regard to the special facts
and circumstances. When the loss of
earning power and compensation are
determined, it is not necessary to make any
deduction for personal expenses, as we do,
for determining dependency for claimants
in fatal accidents. The reason is obvious;
the claimant is alive to receive the whole
loss of income in injury cases and this
principle has also been recognized in
Oriental Insurance Co Ltd. v. Ram Prasad-
(2009) 2 SCC 712.
IX. Future medical expenses
17. The question of providing for future
medical expenses was specifically dealt
with by the Supreme Court in Nagappa v.
Gurudayal Singh - AIR 2003 SC 674, (2003)
2 SCC 274 when it observed that the MV
Act does not provide for further award after
a final award is passed. Therefore in a case
where injury to a victim requires periodical
medical expenses, fresh award cannot be
passed or previous award cannot be
reviewed, when medical expenses are
incurred after finalization of the award.
Hence, the only alternative is that at the
time of passing of final award, the Tribunal
should consider such eventuality and
determine compensation accordingly. It is
most desirable that the Tribunal elicits from
the doctor himself if a future medical
treatment shall be necessary and the likely
expenses."
9. In the present case, the permanent disability of the
appellant has not been proved. The appellant has neither been
examined by the medical Board constituted by the competent
authority under The Persons With Disabilities (Equal
Opportunities, Protection of Rights and Full Participation), Act
1995, nor any disability certificate has been issued by the any
such authority. As per disability certificate - Ex.PW1/5, issued
by Air Force Record Office, the appellant has suffered 50%
disability but the certificate does not specify whether the
disability is permanent or temporary. The medical record -
Ex.PW1/1 to Ex.PW1/4 records that the appellant suffered
compound fracture of both bones of left leg. The copy of the
medical Board proceedings was placed on record before this
Court according to which the probable duration of the degree
of disablement of the appellant is two years. The appellant has
not led any evidence to prove his functional disability arising
out of the permanent disability. In view of the above, the
disability of the appellant is held to be temporary for a period
of two years and the compensation of `35,000/- awarded by
the Claims Tribunal towards temporary disability of two years,
reduction in earning capacity and loss of income during
treatment is held to be fair and reasonable and does not call
for any enhancement.
10. The Claims Tribunal has awarded `5,936/- towards loss of
salary during treatment and `4,500/- towards special diet which
is also fair and reasonable and does not warrant any
enhancement. The Claims Tribunal has awarded `1,500/-
towards conveyance which appears to be on a lower side
considering that the appellant remained under treatment for
about five months and temporarily disabled for about two years
and could not have been able to travel by public transport. The
compensation towards conveyance is, therefore, enhanced
from `1,500/- to `10,000/-.
11. The Claims Tribunal has awarded `15,000/- towards pain
and suffering. Considering that the appellant suffered
compound fracture of both bones of left leg and remained
hospitalized for a long period and also temporarily disabled for
two years, the compensation for pain and suffering is enhanced
from `15,000/- to `25,000/-. The Claims Tribunal has not
awarded any compensation for loss of amenities of life.
`20,000/- is awarded towards loss of amenities of life.
12. The appellant is entitled to total compensation of
`1,00,436/- as per break-up given hereunder:-
Compensation towards temporary disability, : `35,000/-
reduction in earning capacity and loss of
income during treatment
Compensation towards loss of salary : `5,936/-
Compensation towards special diet : `4,500/-
Compensation towards conveyance : `10,000/-
Compensation towards pain and suffering : `25,000/-
Compensation towards loss of amenities of life : `20,000/-
Total : `1,00,436/-
13. The appeal is allowed and the award amount is enhanced
from `61,936/- to `1,00,436/-. The Claims Tribunal has
awarded interest @10% per annum which is not disturbed on
the original award amount of `61,936/-. However, on the
enhanced award amount, the rate of interest shall be 7.5% per
annum from the date of filing of the claim petition till notice of
deposit under Order XXI Rule 1 of the Code of Civil Procedure.
14. The enhanced award amount along with interest be
deposited by respondent No.2 with UCO Bank A/c Arun Sehgal,
Delhi High Court Branch through Mr. Mr. M.M. Tandon, Member-
Retail Team, UCO Bank Zonal, Parliament Street, New Delhi
(Mobile No. 09310356400).
15. Considering that this case relates to the accident dated
26th August, 1996 and the appellant is now about 58 years old,
it is directed that upon the aforesaid amount being deposited,
UCO Bank shall release the same to the claimant without any
restriction of FDR.
16. Copy of this order be given „Dasti‟ to learned counsel for
the parties under signatures of Court Master.
J.R. MIDHA, J
DECEMBER 10, 2010
