Delhi High Court
Azad vs Barun Brahamachari & Ors. on 25 March, 2011
Author: J.R. Midha
31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.215/2009
% Date of decision: 25th March, 2011
AZAD ...Appellant
Through : Mr. M.K. Sharma, Adv.
versus
BARUN BRAHAMACHARI & ORS. ...Respondents
Through : Mr. L.K. Tyagi, Adv.
CORAM :-
THE 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 Rs.3,86,555.90 has been
awarded to the appellant. The appellant seeks enhancement of
the award amount.
2. On 23rd July, 2005 at about 9.00 AM, the appellant was on
duty on bus No.DL-1PA-6417 as a helper. When the said bus
reached Shalimar Bagh, a noise was noticed from the chamber of
the engine. The driver stopped the bus and asked the appellant
to check the sound whereupon the appellant went under the
engine chamber. However, in the meantime, the driver started
the bus without waiting for the appellant to come out. As a
result, the rear wheel of the bus ran over the right leg of the
appellant. The appellant suffered multiple fractures on right leg
and severe urethral injuries.
3. The Claims Tribunal has awarded a sum of Rs.50,000/-
towards pain and suffering, Rs.22,979/- towards medical
expenditure, Rs.30,000/- towards expenses on conveyance,
special diet and attendant charges, Rs.6,940/- towards expenses
on travel from Delhi to his native place during the course of
treatment, Rs.2,46,636.90 towards loss of earning capacity due
to permanent disability and Rs.30,000/- towards impotency due
to erectile disfunction. The total compensation awarded is
Rs.3,86,555.90.
4. Learned counsel for the appellant urged the following
grounds at the time of the hearing of this appeal:-
(i) Compensation for pain and suffering be enhanced.
(ii) Compensation for loss of amenities of life be awarded.
(iii) Compensation for loss of enjoyment of married life be
enhanced.
(iv) Compensation for future medical expenses be
awarded.
(v) Compensation for loss of income during treatment be
awarded.
(vi) Compensation for loss of future income be enhanced.
(vii) Compensation for conveyance be enhanced.
5. The appellant examined seven witnesses to prove his case
before the Claims Tribunal. The appellant himself appeared in
the witness box as PW-1 and deposed that on 23rd July, 2005 at
about 9.00 AM, bus bearing No.DL-1PA-6417 developed a noise.
The driver stopped the bus and asked the appellant to go under
the bus to check the fault whereupon the appellant went below
the bus. In the meantime, the driver moved the bus crushing the
appellant's right leg resulting in multiple fractures in the right leg
and serious urethral injuries. The appellant was initially taken to
the house of the owner of the vehicle (respondent No.2) from
where he was taken to Hindu Rao Hospital where he underwent
plaster. Respondent No.2 got the appellant forcibly discharged
without the consent of the doctors but his condition being critical,
he was again taken back to Hindu Rao Hospital where he
remained admitted from 24th July, 2005 to 8th August, 2005 and
number of operations were carried out and a steel road was
inserted in the right leg of the appellant. The appellant was
again admitted from 4th October, 2005 to 22nd October, 2005 and
from 22nd February, 2006 to 25th February, 2006 in Hindu Rao
Hospital. The discharge slips of Hindu Rao Hospital are Ex.PW-1/1
to Ex.PW-1/3. The appellant also took treatment from All India
Institute of Medical Sciences where he was advised to undergo a
surgery but due to financial problems, the appellant could not get
the surgery done and he returned back to his native village
where he used to visit the Hospital at Gori Ganj for periodic check
up. The appellant also took treatment at Dr. Ram Manohar Lohia
Hospital where he was admitted from 16th October, 2006 to 23rd
October, 2006 and also underwent a surgery. After discharge
from hospital, the appellant used to visit the hospital twice a
week. At the time of leading the evidence before the Tribunal,
the appellant had visited the hospital about 70-80 times and for
each visit, he had to spend Rs.200/- on auto-rickshaw. The
appellant's urinal pipe had ruptured and, therefore, a urine pipe
and bag was attached to his body which was changed every
fifteen days. The appellant was working as a Helper on the
offending bus at the time of the accident and claims to be
earning Rs.6,000/-. The appellant lost his job due to the accident
and was not able to do any work due to permanent disability.
The appellant proved the medical record including the discharge
slip of Hindu Rao Hospital as Ex.PW-1/1 to 1/11; medical record of
All India Institute of Medical Sciences as Ex.PW-1/12 to Ex.PW-
1/21; Health Centre at Gori Ganj as Ex.PW-1/22 to Ex.PW-1/23;
and Dr. Ram Manohar Lohia Hospital as Ex.PW-1/24 to 39. The
bills towards the purchase of medicines were proved as Ex.PW-
1/40 to Ex.PW-1/102. The expenditure towards travel was proved
as Ex.PW-1/103 to Ex.PW-1/115.
6. PW-2, Head Constable from P.S. Shalimar Bagh proved the
FIR No.118/2006 under Section 279/338 IPC as Ex.PW-2/A. PW-3,
Medical Record Clerk from Hindu Rao Hospital produced the
admission record of the appellant and proved the attested copies
of the record as Ex.PW-3/A. PW-4, Medical Record Technician
from Dr. Ram Manohar Lohia Hospital proved the medical record
of the appellant as Ex.PW-4/A. PW-5 is the younger brother of the
appellant who was working as an Automobile Mechanic with M/s
Yadav Hero Honda Service Centre, Gori Ganj, UP at a salary of
Rs.4,000/- but due to the serious injuries suffered by the
appellant, PW-5 went on leave to look after the appellant as there
was no other male member in the family to look after the
appellant. PW-6, Record Clerk from Dr. Ram Manohar Lohia
Hospital proved the admission record of the appellant from 22 nd
May to 28th May, 2007 as Ex.PW-6/1. PW-7, Dr. Sachin Kathuria
from All India Institute of Medical Science deposed that he
treated the appellant in Dr. Ram Manohar Lohia Hospital. He
further deposed that the appellant suffered pelvic fractures with
uretheral injury for which urethroplasti was done twice followed
by recurrent endoscopic surgery. He further deposed that the
appellant had not recovered fully and would require surgical
interventions in future, may be for life long. He further deposed
that the appellant would have difficulty in leading normal married
life due to erectile dysfunction.
7. The treatment of the appellant continued even after passing
of the award. During the pendency of the appeal, the appellant
filed the original prescription slips and the future medical
expenses incurred by him on treatment from 11th January, 2010
to 24th April, 2010. Vide order dated 26th May, 2010, this Court
granted the permission to lead additional evidence to prove the
treatment and the additional expenditure incurred by the
appellant. The appellant filed the additional evidence by way of
affidavit dated 31st May, 2010 in which he proved the medical
record and the bills totaling Rs.5,625.80. The appellant further
proved the disability certificate dated 21st December, 2009 issued
by Ram Manohar Lohia Hospital in which the disability of the
appellant has been assessed at 100% in respect of erectile
dysfunction. The prescription, bills and disability certificate were
proved as Ex.AW-1/1 to Ex.AW-1/26.
8. The law with respect to the grant of compensation in injury
cases is well-settled. The injured is entitled to pecuniary as well
as non-pecuniary damages. Pecuniary damages also known as
special damages are generally designed to make good the
pecuniary loss which is capable of being calculated in terms of
money whereas non-pecuniary damages are incapable of being
assessed by arithmetical calculations. The pecuniary or special
damages, generally include the expenses incurred by the
claimants on his treatment, special diet, conveyance, cost of
nursing/attending, loss of income, loss of earning capacity and
other material loss, which may require any special treatment or
aid to the insured for the rest of his life. The general damages or
the non-pecuniary loss include the compensation for mental or
physical shock, pain, suffering, loss of amenities of life,
disfiguration, loss of marriage prospects, loss of expected or
earning of life, inconvenience, hardship, disappointment,
frustration, mental stress, dejectment and unhappiness in future
life, etc. The above list is not exhaustive in nature and there may
be special or additional circumstances depending on the facts in
each case.
9. In the case of Raj Kumar v. Ajay Kumar & Anr., (2011)
1 SCC 343, the Hon'ble Supreme Court laid down the following
general principles for computation of compensation in injury
cases:-
"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."
10. In R.D. Hatangadi v. Pest Control (India) Pvt. Ltd., I
(1995) ACC 281, the Hon'ble Supreme Court held that:-
"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 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
capable 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 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 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 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. No amount of compensation can restore the
physical frame of the appellant. That is why it
has been said by courts that whenever any
amount is determined as the compensation
payable for any injury suffered during an
accident, the object is to compensate such injury
"so far as money can compensate" because it is
impossible to equate the money with the human
sufferings or personal deprivations. Money
cannot renew a broken and shattered physical
frame.
In its very nature whenever a Tribunal or a Court
is required to fix the amount of compensation in
cases of accident, it involves some guess work,
some hypothetical consideration, some amount
of sympathy linked with the nature of the
disability caused. But all the aforesaid elements
have to be viewed with objective standards."
11. In the case of Common Cause, A Registered Society v.
Union of India, AIR 1999 SC 376, the Hon'ble Supreme Court
held that:-
"121. The object of an award of damages is to
give the plaintiff compensation for damage, loss
or injury he has suffered. The elements of
damage recognized by law are divisible into two
main groups: pecuniary and non-pecuniary loss
is not so calculable. While the pecuniary loss is
capable of being arithmetically worked out, the
non-pecuniary loss is not so calculable. Non-
pecuniary loss is compensated in terms of
money, not as a substitute or replacement for
other money, but as a substitute, what McGregor
says, is generally more important than money: it
is the best that a court can do.
12. In Nagappa v. Gurudayal Singh and Ors., AIR 2003 SC
674, the Hon'ble Supreme Court held that:-
"26. While calculating such damages, the
Tribunal/court is required to have some
guesswork taking into account the inflation
factor. This aspect is well discussed by M.J. Rao,
J. (as he then was) in P. Satyanarayana v.I. Babu
Rajendra Prasad and Anr. 1988 ACJ 88. The
learned Judge has given a Classification or
Injuries: A Useful Guide and has observed thus:-
24. If a collection of cases on the quantum
of damages is to be useful, it must
necessarily be classified in such a way that
comparable cases can be grouped
together. No doubt, no two cases are alike
but still, it is possible to make a broad
classification which enables one to bring
comparable awards together. Such
classifications have been made by Bingham
in his Motor Claims Cases, Munkman in his
Employer's Liability and Kemp & Kemp in
their Quantum of Damages. (Munkman
p.181).
26. (sic) Cases relating to injuries have
been classified into four categories, i.e.: (a)
total works; (b) partial wrecks and (c)
where limits and eyes and other specific
parts of the body are lost, which can be
sub-grouped according to the type of limb
lost and (b) smaller injuries which cannot
be specifically grouped but for which
compensation can be assessed by
comparison with injuries of loss of limbs,
e.g., comparing permanent 'wrist injuries'
with 'loss of hand', or comparing a
temporary broken arm with the loss of the
arm etc. Such comparisons are often made
by judges. Munkman points out that in
America, Mr. Melvin M. Belli, an eminent
lawyer, classified injuries into 11 categories
as (1) Back; (2) Traumatic amputation of
leg; (3) Paralysis; (4) Hand or arm off; (5)
Death; (6) Multiple fractures; (7) Burns; (8)
Personality change; (9) Blindness; (10)
Brain injury and (11) Occupation diseases.
By 1967, awards (say) for blindness had
risen to 930,000 dollars (Munkman pp. 181-
182). Today after 20 years, these awards
must have gone up further. The 'total
wreck' category comprises of cases of
complete incapacity for work and virtually
no enjoyment of life, e.g., paralysis, severe
brain injury causing insanity, multiple
injuries leaving the victim a total cripple.
The 'partial wreek' cases are also cases
where the entire body is affected and not
one set of limbs alone as in the third
category. Cases of brain injuries resulting in
a personality change and multiple injuries
with grave disfigurement fall in this second
category. The third category does not
present much difficulty for sub-
classification. The fourth category deals
with minor injuries in a limb which be
compared with major injuries in the same
limb.
13. In case of a permanent disability, percentage of permanent
disability is determined on the basis of the disability certificate
issued by the Medical Board constituted by the competent
authority. The permanent disability also results in functional
disability and the loss of earning capacity is determined on the
basis of the loss of functional disability. In the case of Raj Kumar
v. Ajay Kumar & Anr. (supra), the Hon'ble Supreme Court laid
down the following principles for assessment of future loss of
earnings due to permanent disability:-
"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 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 Rs.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 the accident : Rs.36,000/-.
b) Loss of future earning per annum : Rs. 5400/-.
(15% of the prior annual income)
c) Multiplier applicable with reference : 17
to age
d) Loss of future earnings (5400 x 17) : Rs. 91,800/-
Illustration 'B': The injured was a driver aged 30
years, earning Rs.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 to the accident : R. s.36,000/-
b) Loss of future earning per annum : R. s.27,000/-
(75% of the prior annual income)
c) Multiplier applicable with reference : 17
to age
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-
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 he would : Rs.60,000/-
have got if had been employed as
an Engineer
b) Loss of future earning per annum : Rs.42,000/-
(70% of the expected annual
income) Multiplier applicable (25 years)
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings:(42000 x 18) : Rs.7,65,000/-
[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 issue 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
Rs.3000/- per month. The Tribunal held that as
there was no acceptable evidence of income of
the appellant, it should be assessed at Rs.900/-
per month as the minimum wage was Rs.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 Rs.1500/-
per month (at the rate of Rs.50/- per day) or
Rs.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
Rs.18000/- per annum, the loss of earning due to
functional disability would be 20% of Rs.18000/-
which is Rs.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 =
Rs.64,800/- (as against Rs.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 Rs.12750/- at
the rate of Rs.1500/- for eight and half months
instead of Rs.3600/- determined by the Tribunal.
The increase under the two heads is rounded of
to Rs.20,000/-.
14. In the case of Arvind Kumar Mishra v. New India
Assurance Co. Ltd., 2010 (10) SCALE 298, the accident
resulted 70% permanent disablement. The Hon'ble Supreme
Court held the functional disability to be 70%. The loss of earning
capacity was computed according to the multiplier method. The
Hon'ble Supreme Court held as under:-
"The basis of assessment of all damages for
personal injury is compensation. The whole idea
is to put the claimant in the same position as he
was in so far as money can. Perfect
compensation is hardly possible but one has to
keep in mind that the victim has done no wrong;
he has suffered at the hands of the wrongdoer
and the court must take care to give him full and
fair compensation for that he had suffered. In
some cases for personal injury, the claim could
be in respect of life time's earnings lost because,
though he will live, he cannot earn his living. In
others, the claim may be made for partial loss of
earnings. Each case has to be considered in the
light of its own facts and at the end, one must
ask whether the sum awarded is a fair and
reasonable sum. The conventional basis of
assessing compensation in personal injury cases
- and that is now recognized mode as to the
proper measure of compensation - is taking an
appropriate multiplier of an appropriate
multiplicand."
15. The injured is also entitled to general damages.
Assessment of General Damages is a vexed question. It is really
difficult to assess the exact amount of compensation, which
would be equivalent to the pain, suffering and the loss suffered
by the claimant. It can never be full compensation, but it must be
fair and just. No amount of money can restore the physical frame
of the claimant, yet the Courts have to make an effort to assess
the compensation, which may provide relief to the injured. The
general damages are "so far as money can compensate"
meaning thereby that it is impossible to equate money with
human suffering or personal deprivation. The money awarded
can be calculated so as to make good a financial loss. Money may
be awarded so that something tangible may be procured to
replace something else of like nature, which has been destroyed
or lost. But money cannot renew a physical frame that has been
battered and shattered. All that Judges and Courts can do is to
award sums which must be regarded as giving reasonable
compensation. In the process, there must be the endeavour to
secure some uniformity in the general method of approach. It is,
therefore, eminently desirable that so far as possible comparable
injuries should be compensated by comparable awards. The
general damages awarded in the case of injuries are therefore to
a considerable extent conventional.
16. The principles for computation of general damages laid
down in Ward v. James, (1995) ALL.ER 563 are as under:-
"(1) The award should be moderate, just and fair and it
should not be oppressive to the respondent;
(2) The award should not be punitive, exemplary and
extravagant; and
(3) So far as possible similar cases must be decided
similarly. The community of public at large may
not carry the grievance of discrimination."
17. Principles of uniformity and predictability are very
important. There should be some measure of uniformity in
awards, so that similar decisions may be given in similar cases
otherwise there will be great dissatisfaction in the community
and much criticism of the administration of justice. Secondly, the
parties should be able to predict with some measure of accuracy
the sum, which is likely to be awarded in a particular case. For,
by this means, the cases can be settled peacefully, a thing very
much to the public good.
18. In Oriental Insurance Company Ltd. v. V.S. Vijay
Kumar Mittal, 2008 ACJ 1300, the Delhi High Court discussed
the principles relating to the award of non-pecuniary
compensation towards pain and suffering, loss of amenities of life
and disfiguration. The Delhi High Court examined all the previous
judgments with respect to the non-pecuniary compensation
awarded in the case of permanent disability and held that the
courts have awarded about Rs.3,00,000/- under the heads of non-
pecuniary damages for permanent disability of 50% and above.
The findings of the Delhi High Court are as under:-
"10. The possession of one's own body is the first
and most valuable of all human rights and while
awarding compensation for bodily injuries this
primary element is to be kept in mind. Bodily
injury is to be treated as a deprivation which
entitles a claimant to damages. The amount of
damages varies on account of gravity of bodily
injury. Though it is impossible to equate money
with human suffering, agony and personal
deprivation, the Court and Tribunal should make
an honest and serious attempt to award
damages so far as money can compensate the
loss. Regard must be given to the gravity and
degree of deprivation as well as the degree of
awareness of the deprivation. Damages awarded
in personal injury cases must be substantial and
not token damages.
11. The general principle which should govern
the assessment of damages in personal injury
cases is that the Court should award to injured
person such a sum as will put him in the same
position as he would have been in if he had not
sustained the injuries.
12. Broadly speaking, while fixing an amount of
compensation payable to a victim of an accident,
the damages have to be assessed separately as
pecuniary damages and non pecuniary damages.
Pecuniary damages are those which the victim
has actually incurred and which is capable of
being calculated in terms of money. Whereas,
non pecuniary damages are those which are
incapable of being assessed by arithmetical
calculations.
13. Pecuniary loss may include the following:
(i) Special damages or pre-trial pecuniary loss.
(ii) Prospective loss of earnings and profits.
(iii) Medicinal expenses.
(iv) Cost of future care and other expenses.
14. Non pecuniary loss may include the
following:
(i) Pain and suffering.
(ii) Damages for mental and physical shock.
(iii) Loss of amenities of life which may include
a variety of matters i.e. on account of injury
the injured may not be able to walk, run or
sit etc.
(iv) Loss of expectation of life i.e. on account of
injury normal longevity of the life of the
person concerned is shortened.
(v) Disfigurement.
(vi) Discomfort or inconvenience, hardship,
disappointment, frustration and mental
stress in life.
xxxxx
18. In order to properly appreciate the
contentions advanced by the learned
counsel for the appellant, I note the
following judgments:-
(i) B.N.Kumar vs. D.T.C., 118 (2005) DLT 36.
In said case, injured sustained crush injuries on
his right leg leading to its amputation above
knee in a road accident on 5th November 1987.
He suffered a permanent disability of 85%.
Noting various judgments wherein Courts had
awarded Rs.3,00,000/- under the head non-
pecuniary damages, a Single Judge of this Court
awarded Rs.75,000/- for 'pain and suffering' and
Rs.2,00,000/- for 'continuing disability suffered
by him'. Thus, a total of Rs.2,75,000/- was
awarded under this head.
(ii) Fakkirappa vs. Yallawwa & Anr., 2004 ACJ 141
In said case, a minor male child sustained
grievous injury in a road accident which occurred
on 8.5.2000 resulting in amputation of his left leg
below knee. Considering the gravity of injury
suffered the injured, Division Bench of Karnataka
High Court awarded following compensation
under the head 'non-pecuniary damages':-
(i) Pain and suffering : Rs.50,000/-
(ii) Loss of amenities of life : Rs.1,00,000/-
(iii) Loss of marriage prospects : Rs.50.000/-
(iv) Damages for amputation of : Rs. 1,50,000/-
leg before knee
(v) Loss of expectation of life : Rs.50,000/-
_______________
Total : Rs.4,00,000/-
______________
(iii) K. Shankar v. Pallavan Transport Corporation, 2001
ACJ 488
In said case, injured sustained serious injuries on
his right leg in an accident on 14.2.1989. His
right leg was amputated and he suffered
permanent disability of 80%. A learned Single
Judge of Madras High Court awarded the
following compensation under the head 'non-
pecuniary damages'.
(i) For permanent disability : Rs. 80,000/-
(ii) Pain and suffering : Rs. 50,000/-
(iii) Loss of expectation of
life and proper marital : Rs. 50,000/-
alliance
(iv) For mental agony : Rs. 1,00,000/-
_____________________
Total : Rs. 2,80,000/-
_____________________
(iv) M. Jaganathan v. Pallavan Transport Corporation,
1999 ACJ 366
In said case, injured aged 45 years sustained
injuries in an accident on 21.6.1990. The injury
sustained by the injured resulted in the
amputation of his left leg above the knee.
Division Bench of Madras High Court awarded
following compensation under the head 'non
pecuniary damages':-
(i) Pain and suffering : Rs. 1,00,000/-
(ii) Compensation for continuing : Rs. 2,00,000/-
Permanent disability
(iii) Mental agony, torture and : Rs. 75,000/-
Humiliation because of
Amputation _______________
Total : Rs.3,75,000/-
_______________
(v) Bhagwan Singh Meena v. Jai Kishan Tiwari, 1999
ACJ 1200
In said case, the injured sustained severe and
serious injuries on account of the road accident.
His right leg was amputated. A learned Single
Judge of Rajasthan High Court awarded a
compensation of Rs.3,00,000/- under the head
non-pecuniary damages.
(vi) Dr. Gop Ramchandani v. Onkar Singh & Ors.,
1993 ACJ 577
In said case, in an accident which had occurred
on 17.12.1985, injured sustained injuries
because of which his left leg was amputated
resulting in 50% permanent disability. A Single
Judge of Rajasthan High Court awarded a
compensation of Rs.3,00,000/- under the head
'non pecuniary damages'. Break-up of the
compensation under the said head is as under:-
(i) Physical and mental agony : Rs.1,00,000/-
(ii) Permanent disability : Rs.1,00,000/-
(iii) Loss of social life and loss : Rs.1,00,000/-
in profession _______________
Total : Rs.3,00,000/-
_______________
(vii) Jitendra Singh v. Islam, 1998 ACJ 1301
In said case, in an accident which had occurred
on 14.02.1992, injured sustained injuries
because of which his left leg was amputated
resulting in 55% permanent disability. A Single
Judge of Rajasthan High Court awarded a
compensation of Rs.3,00,000/- under the head
'non pecuniary damages'.
(viii) Iranna v. Mohammadali Khadarsab Mulla & Anr.
2004 ACJ 1396
In said case, on 19.4.2000, injured aged 7 years
met with an accident. Due to the said accident,
he sustained grievous injuries resulting in
amputation of his left leg below knee. Tribunal
awarded following compensation to him under
the head 'non pecuniary damages':-
(i) Pain and suffering : Rs.50,000/-
(ii) Loss of amenities, happiness, : Rs.1,00,000/-
frustration
(iii) Loss of marriage prospects : Rs.50,000/-
(iv) Amputation of leg below knee : Rs.1,50,000/-
and knee dis-articulation ____________________
Total : Rs.3,50,000/-
___________________
From the afore noted judicial decisions, a trend
which emerges is that between the years 1985
to 1990, Courts have been awarding about
Rs.3,00,000/- under the head 'non pecuniary
damages' for amputation of leg resulting in
permanent disability of 50% and above."
19. To sum up, in accident claims relating to injuries, the victim
is entitled to pecuniary as well as non-pecuniary damages. The
pecuniary damages such as expenditure on treatment, special
diet, conveyance, attendant, loss of income etc. are based on
documentary evidence produced by the claimant. The non-
pecuniary damages such as pain and suffering, loss of amenities
of life, disfiguration and matrimonial prospects are conventional
and depend upon the nature of injuries suffered and are based on
comparable awards to maintain uniformity and predictability. In
cases of permanent disablement, the claimant is also entitled to
loss of earning capacity. The permanent disability is assessed on
the basis of the certificate issued by the medical board. Every
permanent disability does not result in loss of earning capacity.
The loss of earning capacity is determined according to the
principles laid down by the Hon'ble Supreme Court in the case of
Raj Kumar v. Ajay Kumar (supra).
20. Coming to the facts of this case, it is noted that the
appellant's right leg was crushed under the wheel of the bus
resulting in multiple fractures on the right leg and urethral
injuries. A steel rod was also inserted in his right leg and nailing
and bone-grafting was carried out on 7th October, 2005. The
appellant remained hospitalized at Hindu Rao Hospital from 24th
July, 2005 to 8th August, 2005 (Ex.PW-1/1); from 4th October, 2005
to 22nd October, 2005 (Ex.PW-1/2); from 22nd February, 2006 to
25th February, 2006 (Ex.PW-1/3); at Dr. Ram Manohar Lohia
Hospital from 16th October, 2006 to 23rd October, 2006 (Ex.PW-
1/4); and from 2nd April, 2007 to 6th April, 2007 (Ex.PW-1/5); and
from 22nd May, 2007 to 28th May, 2007 (Ex.PW-1/6).
21. The permanent disability suffered by the appellants due to
the fracture of both the bones of the right leg has been assessed
at 25% vide Ex.PW-PX. The appellant urinary pipe was ruptured
due to which appellant could not pass urine through normal
process and a urinal pipe and a bag was attached to his body.
The appellant had to undergo urethroplasti twice followed by
recurrent endoscopic surgery. The appellant has to undertake
dilation twice a month and due to persistent partial narrowing
down. The permanent disability of the appellant has been
assessed at 100% by Ram Manohar Lohia Hospital vide certificate
dated 21st December, 2009 which is reproduced hereunder:-
"Patient has 100% Erectile Dysfunction after
Genitourinary trauma and subsequent
management. He is passing urine now through
natural passage yet need frequently 6-8 weekly
intervention (OIU) in operation theater due to
persistent partial narrowing."
22. In the facts and circumstances of this case, the appellant is
entitled to following compensation:-
(i) Compensation for Loss of future income:-
The appellant has suffered 25% disability with respect to
the right leg and 100% disability due to the urethral injuries.
The present condition of the appellant seen in the Court on
18th March, 2011 is as under:-
"3. The appellant is present in Court and his
present condition has been examined. The
appellant is aged about 30 years and he walks
with the help of crutches. The appellant submits
that he is not fit to do any work and is out of job
since accident. The appellant has to undergo
dilation of geneto-urinal track every 30-45 days
due to the persistent partial narrowing down of
the urinary track. The appellant submits that he
is dependent upon his father for meeting his and
his wife's expenses. The appellant's father is a
rickshaw puller. The appellant was married prior
to the accident but does not have any issue as
he has become impotent due to the accident."
The Claims Tribunal has taken the functional disability of
the appellant to be 25% on the basis of the permanent
disability certificate, Ex.PW-PX relating to right leg. As per
the permanent disability certificate relating to urethral
injuries issued by Ram Manohar Lohia Hospital after the
decision of the Tribunal, the permanent disability of the
appellant is 100%. Although, the appellant is not doing any
work after the accident, the loss of earning capacity cannot
be taken as 100%. The percentage of functional disability
has to be determined on the basis of the principles laid
down by the Hon'ble Supreme Court in the case of Raj
Kumar v. Ajay Kumar & Anr. (supra). Considering both
the permanent disability certificates and the present
condition of the appellant, functional disability of the
appellant is taken to be 50%. The Claims Tribunal has
calculated the loss of earning capacity of the appellant at
Rs.2,46,636.90 by taking minimum wages and applying the
multiplier of 18 and has taken 25% of the said amount. The
percentage of functional disability is enhanced from 25% to
50% but the multiplier is reduced from 18 to 17. The
compensation for loss of future income of the appellant is
enhanced from Rs.2,46,636.90 to Rs.4,65,870/-
(Rs.4,567.35 x 12 x 17 x 50%).
(ii) Compensation for expenditure on medical treatment
The appellant remained hospitalized on six occasions from
24th July, 2005 to 8th August, 2005; 4th October, 2005 to
22nd October, 2005; 22nd February, 2006 to 25th February,
2006; 16th October, 2006 to 23rd October, 2006; 2nd April,
2007 to 6th April, 2007; and 22nd May to 28th May, 2007 and
underwent surgery. The Claims Tribunal awarded a sum of
Rs.22,979/- on the basis of the bills proved before the
Claims Tribunal. The appellant incurred further expenses of
Rs.5,625/-. As such the compensation towards medical
expenses is enhanced from Rs.22,979/- to Rs.28,604/-
(Rs.22,979 + Rs.5,625)
(iii) Compensation for future medical expenses
The appellant has to undergo dilation of geneto-urinal track
every 30 to 45 days due to persistant partial narrowing
down of urinary track. No compensation is awarded by the
Claims Tribunal towards future expenses. In the facts and
circumstances of the case, a lump sum amount of
Rs.50,000/- is awarded to the appellant on the basis that
the said amount would remain in fixed deposit and interest
thereon should be sufficient to meet the future medical
expenses.
(iv) Compensation towards conveyance
The Claims Tribunal has awarded a sum of Rs.30,000/-
towards the conveyance, special diet and attendant
charges. Considering the nature of injuries suffered, the
appellant would not be able to travel by public transport
and shall have to spend Rs.1,000/- per month on the
expenditure on conveyance, the compensation awarded by
the Claims Tribunal needs enhancement. The
compensation of Rs.30,000/- awarded by the Claims
Tribunal is treated towards special diet and attendant
charges. A lump sum amount of Rs.50,000/- is awarded
towards the conveyance on the basis that the said amount
would remain in fixed deposit and interest thereon should
be sufficient to meet the future medical expenses.
(v) Compensation for pain and suffering, loss of
amenities of life and loss of enjoyment of married
life.
The Claims Tribunal has awarded a sum of Rs.50,000/-
towards pain and suffering and Rs.30,000/- towards
impotency due to erectile dysfunction. However, no
compensation has been awarded to the appellant towards
the loss of amenities of life.
The appellant is under treatment since the date of accident.
The appellant got fracture of both bones of right leg and
fracture of pelvis with urethral injuries and tibial interlock
nailing (right) and bone grafting was done on 7th October,
2005. The appellant was hospitalized on six occasions for
various operations and a pipe was fixed for passing the
urine. The evidence clearly establishes that the serious
internal injuries sustained by the appellant have affected
the functioning of one of his excretory system. The rupture
of urethra, which required urgent surgical intervention,
would require periodical medical intervention to ensure
proper function of the urinary system. The appellant will
have to undergo dilation at least once a month for lifetime
and that the failure to take periodical dilation might create
difficulty in passing urine and give rise to complications
including dribbling of urine. The appellant has taken
dilation many times which is a very painful process. It is
usually given under local anaesthesia. The post accident
physical condition of the complainant, therefore, is such
that besides leading to frequent absence from work, it is
bound to generate in him a fear of future incapacity as to
health or uncertainty of life and a feeling of remorse and
embarrassment. The pain and suffering by the injury have
not ended. The appellant will be subjected to physical pain
and discomfort and suffering from time to time for the rest
of his life. It cannot be overlooked also that if for reasons
beyond his control, the appellant is unable to take timely
dilations, the symptom of dribbling of urine would manifest
itself. Indeed, the appellant has deposed that this trouble
occasionally manifests itself and that causes him
embarrassment on account of the ridicule to which he is
subjected by the onlookers and he has to undergo similar
suffering in future till his lifetime.
Regarding loss of amenities in life, the appellant would
suffer on account of accident throughout his life and cannot
enjoy the amenities of life as another normal person can.
While fixing compensation for pain and suffering and as also
for loss of amenities of life, features like his age, marital
status and unusual deprivation, he has undertaken in his life
have to be reckoned. However, no amount is awarded by
the Learned Tribunal on this account.
Regarding loss of enjoyment of married life: Dr. Sachin
Kathuria, PW-7, who treated the appellant/injured on
different occasions deposed before the Tribunal that he has
treated the injured in Dr. Ram Manohar Lohia Hospital who
had pelvis fracture with urethral injuries for which
Urethroplasti was done twice, followed by recurrent
endoscopic surgery. The patient has not recovered fully
yet. The appellant has suffered "Erectile Dysfunction" and
may have difficulty in leading normal married life. The
appellant has become impotent and is not in a position to
discharge the matrimonial obligation since the day of
accident. However, a very nominal amount of Rs.30,000/-
has been awarded by the Tribunal under the said head
which is not just and fair.
In the facts and circumstances of the case and following the
principles laid down by the Hon'ble Supreme Court and this
Court in the aforesaid cases, the following non-pecuniary
compensation is awarded to the appellant:-
(i) Compensation for pain - Enhanced from Rs.50,000/-
and suffering to Rs.75,000/-;
(ii) Compensation towards - Rs.1,00,000/-
loss of amenities of life
(iii)Compensation for not - Enhanced from Rs.30,000/-
being able to lead to Rs.1,00,000/-.
normal married life due
to erectile dysfunction
resulting in 100%
permanent disability
23. The appellant is held to be entitled to compensation of
Rs.9,06,414/- as per the break-up given below:-
(i) Compensation for loss of : Rs.4,65,870/-
earning capacity
(ii) Compensation towards : Rs.28,604/-
medical expenses
(iii) Compensation towards : Rs.50,000/-
future medical expenses
(iv) Compensation towards : Rs.30,000/-
special diet and
attendant charges
(v) Compensation towards : Rs.50,000/-
conveyance
(vi) Compensation towards : Rs.75,000/-
pain and suffering
(vii) Compensation towards : Rs.1,00,000/-
loss of amenities of life
(viii) Compensation for not : Rs.1,00,000/-
being able to lead
normal married life due
to erectile dysfunction
resulting in 100%
permanent disability
(ix) Compensation for : Rs.6,940/-
expenses on travel
during treatment
Total : Rs.9,06,414/-
24. The appeal is according allowed and compensation is
enhanced from Rs.3,68,555.90 to Rs.9,06,414/-. The Claims
Tribunal has awarded interest at the rate of 9% per annum which
is not disturbed on the original award amount of Rs.3,68,555.90.
However, on the enhanced award amount, rate of interest shall
be 7.5% from the date of filing of the claim till realization.
Enhanced award amount along with upto date interest be
deposited by the Respondent No.3 with State Bank of India, Tis
Hazari, Delhi-110054 in Savings Bank Account No.30759909478.
25. Upon the aforesaid amount being deposited, the State Bank
of India, Tis Hazari, Delhi is directed to release 10% of the same
to the appellant by transferring the same to the Saving Bank
Account of the appellant. The remaining amount be kept in fixed
deposit in the name of the appellant in the following manner:-
(i) Fixed deposit in respect of 10% of the amount for a
period of one year.
(ii) Fixed deposit in respect of 10% of the amount for a
period of two years.
(iii) Fixed deposit in respect of 10% of the amount for a
period of three years.
(iv) Fixed deposit in respect of 10% of the amount for a
period of four years.
(v) Fixed deposit in respect of 10% of the amount for a
period of five years.
(vi) Fixed deposit in respect of 10% of the amount for a
period of six years.
(vii) Fixed deposit in respect of 10% of the amount for a
period of seven years.
(viii) Fixed deposit in respect of 10% of the amount for a
period of eight years.
(ix) Fixed deposit in respect of 10% of the amount for a
period of nine years.
26. The interest on the aforesaid fixed deposits shall be paid
monthly by automatic credit of interest in the Savings Account of
the appellant.
27. Withdrawal from the aforesaid account shall be permitted to
the appellant after due verification and the Bank shall issue photo
Identity Card to the appellant to facilitate identity.
28. No cheque book be issued to the appellant without the
permission of this Court.
29. The Bank shall issue Fixed Deposit Pass Book instead of the
FDRs to the appellant and the maturity amount of the FDRs be
automatically credited to the Saving Bank Account of the
beneficiary at the expiry of the period of the FDRs.
30. No loan, advance or withdrawal shall be allowed on the said
fixed deposit receipts without the permission of this Court.
31. Half yearly statement of account be filed by the Bank in this
Court.
32. On the request of the appellant, Bank shall transfer the
Savings Account to any other branch according to the
convenience of the appellant.
33. The appellant shall furnish all the relevant documents for
opening of the Fixed Deposit Account to Mr. H.S. Rawat,
Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:
09717044322), State Bank of India, Tis Hazari, Delhi.
34. Copy of the order be given dasti to counsel for both the
parties under the signatures of the Court Master.
35. Copy of this order be also sent to Mr. H.S. Rawat,
Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:
09717044322) under the signature of Court Master.
J.R. MIDHA, J
th
25 March, 2011
s.pal
