Delhi High Court
Sunil Kumar vs Inder Singh & Ors. on 30 September, 2011
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision : 30th September, 2011
+ FAO.No.408/2002
%
SUNIL KUMAR ...Appellant
Through : Mr. S.N. Parashar, Adv.
versus
INDER SINGH & ORS. ...Respondents
Through : Mr. D.K. Sharma, Adv.
for R-3.
Ms. Manjusha Wadhwa,
amicus curiae.
+ FAO.No.350/1998
%
BAJRANG LAL ...Appellant
Through : Mr. Dinesh Kapoor, Adv.
versus
SEHDEV & ORS. ...Respondents
Through : Mr. K.L. Nandwani, Adv. for
R-3.
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?
FAO.Nos.408/2002 & 350/1998 Page 1 of 71
JUDGMENT
J.R. MIDHA, J.
*
FAO No.408/2002
1. The appellant has challenged the award of the learned
Tribunal whereby compensation of `1,10,642/- has been
awarded to the appellant. The appellant seeks enhancement
of the award amount.
2. On 21st January, 1993 at about 3:30 PM, the appellant
was travelling as a pillion rider on a two wheeler scooter
bearing No.DL-2SC-8258 when the said scooter was hit from
behind by a truck No.DDL-6696. The appellant fell down and
sustained serious/grievous injuries including fracture of right
leg. The bone of his right leg entered in the stomach and both
the testicles as well as the penis were damaged.
3. The Claims Tribunal has awarded a sum of `4,000/-
towards medical expenditure, `6,642/- towards loss of earning
for six months and `1,00,000 for disability for reproduction,
mental torture and pain to the appellant. The total
compensation awarded is `1,10,642/-.
4. Learned counsel for the appellant urged the following
grounds at the time of the hearing of this appeal:-
(i) The compensation for loss of earning capacity due
to permanent disability be awarded.
(ii) The compensation for loss of income during the
period of treatment be enhanced.
(iii) The compensation for medical expenses be
enhanced.
(iv) The compensation for conveyance and special diet
be awarded.
(v) The compensation for loss of reproduction, mental
torture and pain be enhanced.
(vi) The compensation for loss of marital life be
awarded.
(vii) The compensation for loss of enjoyment of life be
awarded.
5. The appellant examined two witnesses before the Claims
Tribunal. The appellant himself appeared in the witness box
as PW-1 and deposed that his right leg came under the tyre of
the truck and the truck dragged his scooter to a distance of
5/10 paces. The appellant was first taken to ESI Hospital and
was thereafter shifted to Dr. Ram Manohar Lohia Hospital
where he remained admitted for about three months. The
appellant's right leg and thigh bone were fractured, bone of his
leg entered into his stomach and both his testicles were
damaged due to the accident. The appellant's penis was
completely damaged in the accident. The appellant further
stated that a major operation was conducted on his stomach
to thighs at Dr. Ram Manohar Lohia Hospital. He remained in
the oxygen room for 11 days as his condition was very serious
and thereafter, he was shifted to the ward where he remained
for about three months. Another operation was conducted on
his right leg for insertion of steel rod, which was removed after
three months. Thereafter, he was treated by a private doctor
at Verma Clinic at Mangol Puri. The appellant deposed that he
would require treatment throughout his life. The appellant
claimed to have spent a sum of `1,00,000/-. The appellant
proved the medical bills as Ex.PW1/1 to Ex.PW1/53 and the
M.L.C. as Ex.PW1/54. At the time of the accident, the
appellant was in the service of M/s Tag Garments, Mansarovar
Park earning `2,500/- p.m. but he has not been able to carry
out his job after the accident. The appellant could not lift
weight and do work with his hands due to stomach injuries. He
could not run due to leg injuries and could not sit properly.
The appellant was married at the time of the accident and was
unable to perform his marital relations with his wife due to the
damaged testicles. In his cross-examination, the appellant
stated that his treatment at Dr. Ram Manohar Lohia hospital
was free of charge, but he had to purchase medicines from
outside. He got himself treated from private doctors for about
one year and used to spend `100/- per visit. The appellant did
not do any work after the accident and his wife was
maintaining him. The appellant suffered 100% permanent
disability due to injuries suffered by him.
6. PW-2, S. Mehta, Record Clerk, Dr. Ram Manohar Lohia
Hospital, Delhi deposed that Sunil Kumar was admitted to Dr.
Ram Manohar Lohia Hospital on 21st January, 1993 and was
discharged on 10th March, 1993. PW-2 proved the case sheet,
Ex.PW2/1. The disability certificate issued by Dr. Ram Manohar
Lohia Hospital was proved as Ex.PW2/2. The discharge
summary was proved as Ex.PW2/3.
7. The condition of the appellant is described in the
disability certificate, Ex.PW2/2 dated 30th January, 1996 issued
by Dr. Ram Manohar Lohia Hospital, New Delhi which is
reproduced as under:-
"Certified that Shri Sunil Kumar, aged 30 years,
male, S/o Shri Pyare Lal, R/o K-969, Mongolpuri, New
Delhi, has been medically examined on 11.01.96.
He is a case of bilateral loss of testes
because of trauma, patient cannot produce now.
His disability for reproduction is 100% (HUNDRED
PERCENT). Psychological problem because of loss
of testes causing mental anguish 10% (TEN
PERCENT) extra should be added.
(DR. BISWAL) (DR. S.P. BAJAJ) (DR. V.L. KOCHHAR)
S.R SURGEON CONS.BURSN. & CONS.&HOD.ORTHO.)
MEMBER PLASTIC SURGERY CHAIRMAN
MEMBER
CONTR. SIGN BY CIVIL SURGEON"
8. The appellant was examined by this Court on 6th May,
2011 when he stated that he was unable to do any work due to
the permanent disability suffered in the accident.
9. Vide order dated 22nd March, 2010, this Court appointed
Ms. Manjusha Wadhwa, Advocate as an Amicus Curiae to assist
this Court. The learned Amicus Curiae has done extensive
research work and has submitted that the Guidelines of the
Government of India published on 13th January, 2001 for
evaluating permanent disabilities under Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, defines five categories of
disablement, namely, visual impairment, locomotor/orthopedic
disability, speech and hearing disability, mental retardation
and multiple disabilities. The said guidelines did not define
disability arising out the loss of sexual organs. The loss of
sexual organs has also not been described in Schedule I to the
Workmen's Compensation Act, 1923. The learned Amicus
Curiae has submitted that according to the Medical Journals,
the loss of testes result in loss of reproduction and side effect
of breast enlargement, hot flashes, infertility, loss of sexual
interest, osteoporosis, loss of muscle mass and weight gain,
which materially affect the functional disability. It is submitted
that in various countries, such as Australia and USA, loss of
sexual organs is described as a disability and the percentage
of disability has been given for assessing the compensation.
In Illinois, fifth most populous state of USA, the Illinois Workers'
Compensation Commission provides for compensation equal to
162 weeks of the worker's income as compensation in case of
loss of both testicles. Workers' Compensation Act, 1951 of
Australian Capital Territory stipulates the disability arising out
of loss of penis or both testicles as 47%. Workers
Rehabilitation and Compensation Act, 1986 of South Australia
provides for minimum compensation for loss of genital organs
as US$ 1,40,320. The Accident Compensation Act, 1985 of
Victoria in Australia provides for compensation of US$
1,18,570 for loss of penis or both testicles. The Workers'
Compensation and Rehabilitation Act, 2003 of Queensland in
Australia defines the disability to be 50% for loss of genital
organs and compensation of US$ 1,00,000 for the same. In
New South Wales in Australia, the permanent disability for the
loss of penis or both testicles is taken to be 47% and the
compensation of US$ 47,000 is provided for the same. The JSB
Guidelines for assessment of general damages in personal
injury cases in UK provides for compensation up to £96,000/-
for total loss of anal function and dependence on colostomy
and £96,000 for loss of function and control of urinary bladder.
The learned Amicus Curiae has also referred to the following
two South African cases:
9.1 In AA Mutual Insurance Association Ltd v Van
Jaarsveldt 1974 (4) SA 729, the plaintiff, aged 34 years,
sustained a dislocation of the cervical spine at C 4/5 level with
an incomplete tertraplegia, a large segmental fracture of the
left femur which also separated the greater fronchanter, a
fracture of the superior and inferior romi on the right side of
the pelvis, a fracture of the left 5th rib, and a fracture of the 3rd,
4th and 5th transverse processes. His treatment consisted of
skull traction for a couple of months which was very painful.
He was in hospital for six months, whereafter he was
discharged walking with only a stick. The fractured femur was
reduced and an intramedullary nail inserted. A catheter was
inserted too and a vascular tube passed. He was completely
paralysed for a period of 3½ months, whereafter he was able
to walk on crutches before being able to walk with a stick. He
had urinary tract infection and inflammation of the bladder. His
sexual potency was also affected. The claimant was left with
very serious disabilities. He had a slight spastic haemaplegia
involving his dominant side and his right arm and hand were
so badly affected that they could be described as a nuisance.
His right leg was also affected by the same spastic
haemaplegia. He walked with a tendency to drag the foot
which, together with a clawing of the toes, caused his foot to
catch occasionally while walking and resulted in his stumbling
and falling. He could not walk more than 200 yards at a
stretch. It was difficult for him to sit on a chair for too long. He
had severe recurring cramps in both legs, particularly at night.
The court awarded him `8,66,000/- for the permanent
disability.
9.2 In Swanepoel v Road Accident Fund (1271/2004)
[2008] ZANCHC 34, the claimant, Johannes Frederick Theron
Swanepoel, instituted action against the defendant, the Road
Accident Fund ("RAF"), for damages suffered by him in the
roads. The claimant could not control his bladder and bowels
and sometimes soiled himself. The claimant also became
impotent. The High Court observed that due to sexual
impotence, the claimant was unable to enjoy normal sexual
relations with his wife. Inevitably, this had caused serious
strains in their once happy and blissful marriage. The claimant
also had to wear nappies for the rest of his life. Due to the
claimant's incontinence which was the result of the accident,
the claimant often soiled himself. The High Court awarded the
general damages of `8,00,000/- to the claimant.
FAO No.350/1998
10. The appellant has challenged the award of the learned
Tribunal whereby compensation of `1,47,000/- has been
awarded to him. The appellant seeks enhancement of the
award amount.
11. The accident dated 10th May, 1999 resulted in grievous
injuries to the appellant. The appellant was travelling on his
two-wheeler scooter bearing No.DBF 1033 near Old Yamuna
Bridge while going from Yamuna Bazar to Shahdara when he
was crushed under the front left wheel of bus No.DBP 243
resulting in grievous injuries including fracture of pelvis bone
of the appellant. The left testicle, rectum and urinary bladder
were crushed. The appellant also suffered grievous injuries on
the joint of left thigh and testicles. The appellant underwent
six surgeries due to the injuries suffered in the accident.
12. The learned Tribunal has awarded a sum of `18,600/-
towards loss of earnings, `7,700/- towards loss on account of
brother's leave, `70,386/- towards expenditure on treatment,
special diet and conveyance, `20,000/- towards loss of
amenities of life and `30,000/- towards general damages to
the appellant. The total compensation awarded is `1,47,000/-.
13. The learned counsel for the appellant has urged the
following grounds at the time of hearing of this appeal:-
(i) The compensation for loss of earning capacity due
to permanent disability be awarded.
(ii) The compensation for loss of income during the
period of treatment of three and a half years be
awarded.
(iii) The compensation for future treatment be awarded.
(iv) The compensation for pain and suffering be
awarded.
(v) The compensation for loss of amenities of life be
enhanced.
(vi) The compensation for impotency and loss of
matrimonial prospects be awarded.
14. The appellant was hospitalized on seven occasions for
treatment of the injuries suffered in the accident. The brief
summary of the hospitalization of the appellant is as under:-
(i) 10th May, 1989 to 26th June, 1989 - After the accident, the
appellant was taken to LNJP Hospital, where he remained till
26th June, 1989 for fracture of pelvis bone and crushing of the
left testicle, laceration of anal canal and rupture of urethra.
The medical record in this regard is Ex.PW1/3.
(ii) 6th August, 1989 to 11th August, 1989 - The appellant was
again admitted in LNJP Hospital for colostomy, a surgical
procedure for connecting the colon on to the anterior
abdominal wall, leaving the patient with an opening of the
colon in abdomen called "stoma". The discharge slip of LNJP
Hospital is Ex.PW1/34.
(iii) 21st August, 1989 to 23rd August, 1989 - The appellant
was again admitted in LNJP Hospital for distal colonogram, a
procedure in which water soluble contrast is instilled into a
defunctioned colon via a stoma. A small balloon catheter is
inserted into the distal stoma, the balloon inflated, and
contrast injected by hand to adequately distend the
defunctioned loop and in the case of anorectal atresia to
demonstrate any fistula. The distal colonogram was done on
22nd August, 1989. The discharge summary of LNJP Hospital is
Ex.PW1/35.
(iv) 10th February, 1990 to 27th February, 1990 - The
appellant was again admitted in LNJP Hospital for
Urethroplasty (an operation for repair of an injury or defect in
the walls of the urethra which is end to end anastamosis). The
discharge slip of LNJP Hospital is Ex.PW1/31.
(v) 12th March, 1990 to 17th March, 1990 - The appellant was
again admitted in LNJP Hospital for MCU (Micturating Cysto-
Urethrogram). The discharge slip of LNJP Hospital has been
placed on record.
(vi) 13th June, 1990 to 7th July, 1990 - The appellant was
admitted in LNJP Hospital for colostomy closure. The discharge
slip of LNJP Hospital is Ex.PW1/32.
(vii) 13th September, 1991 to 18th December, 1991 - The
appellant was again admitted in LNJP Hospital for incisional
hernia. The discharge slip of LNJP Hospital is Ex.PW1/33.
15. The urinary bladder of the appellant was completely
damaged due to the injuries suffered in the accident, due to
which the appellant was unable to pass the urine through
penis and a catheter was inserted in the urinary bladder every
7th/10th day for more than 1½ years after the accident. The
appellant's urinary system has not healed with the treatment
and he passes urine with difficulty.
16. The colostomy tube was inserted for passing of the stool
every 10/15 days for more than 1½ years after the accident.
The appellant had to pass the stool six to eight times a day.
The appellant cannot hold the stool and urine and, therefore,
could not remain outside his house for more than two hours at
a stretch.
17. The appellant has become impotent due to the accident
and, therefore, he could not marry. The appellant has to
undergo urethral dilatation every six months. The skin inside
the penis grows after every one/two months and the excess
skin is removed by a minor operation and this may continue
lifelong.
18. The appellant appeared in the witness box before the
learned Trial Court as PW1 and proved the medical record, the
treatment taken by him as well as the expenditure on the
treatments. The appellant deposed that he was earning
`2,500/- per month at the time of the accident, but did not do
any work for three/four years after the accident and thereafter,
he was earning `800/- to `900/- per month. The appellant
became impotent due to the accident. The appellant was
unmarried at the time of the accident. The appellant proved
the medical record and the expenses on the treatment as
Ex.PW1/3 to PW1/345.
19. The appellant also examined Dr. Kapil Kumar from LNJP
Hospital, who proved that the appellant had become
permanently impotent. The PW3 proved Ex.PW1/1, which is a
Certificate issued by Maulana Azad Medical College. The
condition of the appellant after undergoing seven surgeries is
described in the Certificate dated 12th August, 1994 by
Maulana Azad Medical College in Ex.PW1/1 reproduced as
under:-
"DEPARTMENT OF SURGERY
Maulana Azad Medical College
Bahadur Shah Zafar Marg, New Delhi-110002
Dated : 12.8.94
CERTIFICATE
This is to certify that Bajranglal 26 year male
had undergone multiple surgical procedures as a
consequence of a Road side accident in 1989. He
has undergone the following procedures.
1. Debridement & Toileting along with
colostomy at the time of injury.
2. Incisional Hernia repair.
3. Urethroplasty.
4. Internal urethrotomies.
5. Urethrol dilatation.
As a consequence of this accident he has
lost his potency. This has also been investigated.
The treatment for this condition is still underway.
(DR. R.C.M. KAZA)
ASSOCIATE PROFESSOR
L.N.J.P.N. Hospital
New Delhi."
20. Vide order dated 14th January, 2010, this Court directed
the Medical Superintendent of LNJP Hospital to constitute a
Board to examine the appellant and to issue a certificate with
respect to the disability suffered by him in the accident in
pursuance to which a Board was constituted and the appellant
was examined. The appellant was called upon to undergo a
combined papaverine injection and penile doppler test which
involved certain risks and, therefore, the appellant did not
undergo the said test. The appellant was examined by the
Board and a report dated 15th/16th March, 2010 was submitted
before this Court which is reproduced hereunder:-
"Sub : Regarding Assessment of the
Disability by Medical Board in Lok
Nayak Hospital, New Delhi, as per
the Hon'ble High Court order
dated 14.01.2010.
As per directions of the Hon'ble High
Court Delhi vide order dated 14/01/2010
issued to the Medical Superintendent, Lok
Nayak Hospital, New Delhi, to constitute a
Medical Board for the medical
examination/assessment of exact physical
disability percentage of the petitioner, the
candidate Sh.Bajrang Lal has been examined
in detail and reviewed in the medical board
dt. 28/1/10, 11/2/10 and 11/3/10 with
investigations done. In this regard, the
findings of the Medical Board are submitted
as under:-
1. That the impotency could not be assessed
because of non consent for Injection
Papaverine and Penile Doppler evaluation,
however previous records mention
presence of impotence as a
consequence of trauma, which if occurs,
is permanent in nature.
2. That there is anal incontinence
leading to major disability and
disturbance of social and personal life.
3. That there is left testicular atrophy.
4. That there is no urinary system
abnormality.
5. That there is no bony disability.
Items no.1, 2, 3 are significant deficits
but they do not fit into the classification of
Disability as published in the Gazette
notification of India."
21. The Board constituted by the LNJP Hospital has opined
that there is anal incontinence leading to major disability of
social and personal life as well as left testicular atrophy.
However, since the said disability does not fall in the
classification of disability as published by the Gazette
notification, the Board has not determined the percentage of
disability.
22. Vide order dated 6th August, 2010, this Court permitted
the appellant to place the additional evidence on record with
respect to his present condition as well as the treatment taken
after the award of the Claims Tribunal.
23. The appellant submitted the additional evidence by way
of affidavit before this Court which was proved as Ex.CW1/1.
The relevant portion of the additional evidence led by the
appellant is as under:-
"2. That I met with an accident on
10.5.1989 as mentioned in my petition and
as a consequence of the accident I have
become impotent and have suffered annal
incontinence, left testicular atrophy and
other disabilities as mentioned in the medical
record.
3. That I had to undergo various surgical
operations from 10-5-1989 to 18-12-1991
and during that period I remained confined to
bed and could not work for approximately 3-
1/2 years after the accident.
4. That due to the accident my intestines,
stomach system, urinary system have
become very weak and I pass stool about 12
to 14 times a day and I cannot hold my stool
or urine even for a few minutes. I have
stated so even in my evidence recorded as
PW-1 on 6-1-1995. I am continuously
suffering from diarrhea and other stomach
problems.
5. That I have to undergo Urethral
dilatation approximately after every six
months and I incur medical expenses
regularly and this problem of diarrhea etc
and dilatation would continue throughout my
life.
6. That I am unmarried because of
impotency suffered by me and I feel very
lonely, dejected and low because of
disability.
7. That I am not engaged in any job and I
am not earning anything for the last about
five years as I am physically very weak and
not in position to move out of the house. I
have no control over my stool and urine.
8. That I have filed medical record up to
18-11-1997 of LNJP Hospital, Delhi and I do
not possess any medical record from 18-11-
97 till date.
9. I submitted myself to the Medical Board
of LNJP on 28/1/10, 11/2/10 and 11/3/10 and
on other dates and I undertook various
medical examinations as directed by the
Board.
10. I refused to give my consent to the
combined papaverine Injection and Penile
Doppler test as I was told by Doctors that
since I am accident victim and have
undergone several surgical operations, the
said tests may endanger my life.
11. That my medical record Exhibit PW1/27
shows that on 21/5/93 Papverine test was
recommended and my consent was obtained
for such test on 2/6/93.
12. I submit that Dr.Kaza issued certificate
dated PW1/1 on 12-8-94 regarding my
impotency after carrying out investigations.
13. I submit that Medical Board of LNJP
assessed my medical record and in para no 1
of the report dtd 15/3/10 observed that
previous records mention presence of
impotence as a consequence as
consequence of trauma, which if occurs, is
permanent in nature.
14. I submit that the Board conducted
Urethral dilatation and the relevant record is
available with the Board."
24. The learned counsel for the appellant has placed on
record the material downloaded from the internet to show the
meaning of the medical terms used by the doctors in respect
of the appellant and the side-effects of papaverine injection,
which are reproduced hereunder:-
(i) Incontinent : In the website www.MedicineNet.com,
"Incontinent" has been described as "unable to control
excretions, to hold urine in the bladder or keep feces in the
rectum".
(ii) Anal Incontinence : In the website
www.MedicineNet.com, "anal incontinence" has been
described as "inability to hold feces in the rectum. This is due
to failure of voluntary control over the anal sphincters. This
failure results in the untimely passage of feces and gas".
(iii) Faecal Incontinence : In the website
http://en.wikipedia.org/wiki/Fecal-Incontinence, "Faecal
Incontinence" has been described as "the loss of regular
control of the bowels. Involuntary excretion and leaking are
common occurrences for those affected. Subjects relating to
defecation are often socially unacceptable, thus those affected
may be beset by feeling of shame and humiliation. Some do
not seek medical help and instead attempt to self-manage the
problem. This can lead to social withdrawal and isolation,
which can turn into cases of agoraphobia. Such effects may
be reduced by undergoing prescribed treatment, taking
prescribed medicine and making dietary changes".
(iv) Penile Doppler Test : In the website
http://mydoctortells.com/penile-doppler, "penile doppler test"
is described as a sophisticated test to measure the blood flow
in and out of the penis. The test gives important information
as to the nature of penile function, both in the erect and non-
erect state. Intracavernosal Injection of Vasoactive substance
like Papaverine is the main treatment for Erectile Dysfunction.
Priapism is a risk associated with intra penile injection.
Priapism is the presence of a persistence, usually painful,
erection of the penis unrelated to sexual stimulation or desire.
It is a true urologic emergency that may lead to permanent
erectile dysfunction and penile necrosis, if left untreated.
(v) The side effects of Papaverine injection are described in
http://www.rxlist.com/papaverine-injection-drug.html as
"general discomfort, nausea, abdominal discomfort, anorexia,
constipation or diarrhea, skin rash, malaise, vertigo, headache,
intensive flushing of the face, perspiration, increase in the
depth of respiration, increase in heart rate, a slight rise in
blood pressure, and excessive sedation".
25. LAW WITH RESPECT TO GRANT OF COMPENSATION
IN INJURY CASES
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 and there may be special or additional
circumstances depending on the facts in each case.
26. In the case of Raj Kumar v. Ajay Kumar & Anr.,
(2011) 1 SCC 343, the 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."
27. In R.D. Hatangadi v. Pest Control (India) Pvt. Ltd., I
(1995) ACC 281, the 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."
28. In the case of Common Cause, A Registered Society
v. Union of India, AIR 1999 SC 376, the 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.
29. In Nagappa v. Gurudayal Singh and Ors., AIR 2003
SC 674, the 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.
30. 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
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 `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 : `36,000/-.
b) Loss of future earning per annum : `5400/-.
(15% of the prior annual income)
c) Multiplier applicable with reference : 17
to age
d) Loss of future earnings (5400 x 17) : `91,800/-
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 to the accident : `36,000/-
b) Loss of future earning per annum : `.27,000/-
(75% of the prior annual income)
c) Multiplier applicable with reference : 17
to age
d) Loss of future earnings : (27000 x 17) : `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 : `60,000/-
have got if had been employed as
an Engineer
b) Loss of future earning per annum : `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) : `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 Orthopedic 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/-.
31. In the case of Arvind Kumar Mishra v. New India
Assurance Co. Ltd., 2010 (10) SCALE 298, the accident
resulted 70% permanent disablement. The Supreme Court
held the functional disability to be 70%. The loss of earning
capacity was computed according to the multiplier method.
The 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."
32. 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.
33. In Oriental Insurance Company Ltd. v. V.S. Vijay
Kumar Mittal, 2008 ACJ 1300, this Court discussed the
principles relating to the award of non-pecuniary
compensation towards pain and suffering, loss of amenities of
life and disfiguration. This 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 `3,00,000/- under the heads of
non-pecuniary damages for permanent disability of 50% and
above. The findings of this 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 `3,00,000/-
under the head non-pecuniary damages, a
Single Judge of this Court awarded `75,000/-
for 'pain and suffering' and `2,00,000/- for
'continuing disability suffered by him'. Thus, a
total of `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 : `50,000/-
(ii) Loss of amenities of life : `1,00,000/-
(iii) Loss of marriage prospects : `50.000/-
(iv) Damages for amputation of : `1,50,000/-
leg before knee
(v) Loss of expectation of life : `50,000/-
_______________
Total : `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 : `80,000/-
(ii) Pain and suffering : `50,000/-
(iii) Loss of expectation of
life and proper marital : `50,000/-
alliance
(iv) For mental agony : `1,00,000/-
_____________________
Total : `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 : `1,00,000/-
(ii) Compensation for : `2,00,000/-
continuing permanent
disability
(iii) Mental agony, torture and : `75,000/-
Humiliation because of
Amputation _______________
Total : `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 `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 `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 : `1,00,000/-
(ii) Permanent disability : `1,00,000/-
(iii) Loss of social life and loss : `1,00,000/-
in profession _______________
Total : `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 `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 : `50,000/-
(ii) Loss of amenities, happiness, : `1,00,000/-
frustration
(iii) Loss of marriage prospects : `50,000/-
(iv) Amputation of leg below knee : `1,50,000/-
and knee dis-articulation ____________________
Total : `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 `3,00,000/- under the head
'non pecuniary damages' for amputation of
leg resulting in permanent disability of 50%
and above."
34. In A. Robert vs. United Insurance Co. Ltd., II (1999)
ACC 425, the claimant, aged 15 years, suffered fracture of
pelvis and left humerus and bladder was distended in a road
accident dated 17th June, 1984. The claimant suffered difficulty
in passing urine and his sexual life was affected for the rest of
his life. The Supreme Court awarded additional amount of
`1,00,000/- to the claimant under the head of pain, shock and
suffering considering that the injuries were permanent in
nature and had permanent adverse effect on his future healthy
life including his sexual life. The compensation was enhanced
from `96,500/- to `1,50,000/-.
35. In National Insurance Co. Ltd. vs. Krishnappa, I
(2001) ACC 686 (DB), the claimant, aged 40 years,
agriculturist, suffered fracture of vertebra with traumatic
paraplegia with involvement of bladder and bowel dysfunction
in a road accident dated 17th July, 1997. The claimant was
confined to a wheel chair and had no control over his bladder
and bowel. He required constant assistance throughout his
future life. The Karnataka High Court enhanced the
compensation awarded under the head of injury, pain and
suffering from `16,000/- to `1,50,000/- and compensation
under the head of inconvenience, hardship, disappointment
frustration and mental stress undergone from `45,000/- to
`75,000/-.
36. In New India Assurance Co. Ltd. vs. Har Lal, II
(2009) ACC 162, the claimant aged 50 years suffered crush
injuries on his right leg below knee which was amputated and
his right hand was severed due to the accident dated 20th July,
2003. This Court upheld the Tribunal's award for `2,00,000/-
towards pain and suffering, `2,00,000/- towards loss of
amenities of life/permanent disability, `75,000/- towards loss
of income, `7,50,000/- towards loss of earning capacity and
`50,000/- towards conveyance, special diet and attendant
charges.
37. In Delhi Transport Corporation v. Arun Sondhi, 65
(1999) DLT 989, the claimant bachelor aged 21 years
suffered amputation of one leg and paralysis of the other leg
and had no control on urine and stool due to the accident
dated 4th March, 1983. This Court awarded `2,00,000/- for
pain and suffering, assistance and loss of enjoyment of life.
38. In Jyoti Gupta v. Ashok Kumar, 2002 ACJ 1056, the
claimant, a married woman aged 33 years suffered spinal
injuries which turned her into a paraplegic due to the accident
dated 6th August, 1983. The claimant could not lead life of a
normal human life and discharge her duties to her husband
and her children. This Court enhanced the non-pecuniary
damages of `20,000/- awarded by the Tribunal to `6,72,000/-.
39. In Virendra Singh v. Anand Prakash, I (2008) ACC
456, the claimant bachelor aged 26 years, a Sepoy in the
Indian Army, suffered serious head injuries which resulted in
the paralysis of left side of body and 100% permanent
disability. He also suffered various neurological disorders due
to the accident dated 13th June, 2001. This Court awarded
`1,50,000/- towards pain and suffering, `15,000/- for loss of
expectation of life, `50,000/- towards depression and mental
stress and `1,00,000/- towards loss of marriage prospects.
40. In Saravanan @Saravanakumar v. M. Sankaran, IV
(2008) ACC 324, the Madras High Court awarded `3 lakhs for
loss of amenities of life due to impotency suffered by a 26
years old bachelor due to the road accident dated 23rd August,
1991.
FINDINGS
41. FAO No.408/2002
The appellant's right leg and thigh bone were fractured,
bone of his leg entered into his stomach and both his testicles
were damaged due to the accident. The appellant's penis was
completely damaged in the accident. A major operation was
conducted on his stomach to thighs at Dr. Ram Manohar Lohia
Hospital. Another operation was conducted on his right leg for
insertion of steel rod, which was removed after three months.
The appellant has suffered 100% disability due to bilateral loss
of testes and cannot reproduce and 10% extra for mental
anguish due to his loss of testes, as per disability certificate,
Ex.PW2/2, which has also affected his earning capacity.
However, the Claims Tribunal has not awarded any
compensation to the appellant towards loss of earning
capacity. Applying the principles laid down by the Supreme
Court in the case of Ajay Kumar (supra) to the facts of the
present case, the loss of earning capacity of the appellant is
taken to be 50%. The appellant claimed to be earning `2,500/-
at the time of accident. However, in the absence of any proof
of income, the Claims Tribunal took the minimum wages of
`1,107/- per month. In the case of Kanwar Devi v. Bansal
Roadways, 2008 ACJ 2182 and National Insurance Co. Ltd.
v. Renu Devi, III (2008) ACC 134, this Court took judicial
notice of the increase of minimum wages, namely, price index
and inflation rate. This Court held that minimum wages get
doubled over a period of 10 years and increase in minimum
wages is not akin to future prospects. Following the
judgments of this Court in the above cases, the income of the
appellant for computation of loss of earning capacity is taken
to be `1,660.50 (`1,107 + `2,214/2). The appellant was aged
29 years at the time of accident and applying the multiplier of
17 and taking 50% of the same, the loss of the earning
capacity is taken to be `1,69,371/-(`1,660.5 x 12 x 17 x 50%).
The Claims Tribunal has awarded compensation of `6,642/-
towards loss of income during the period of treatment. There
is no proof on record with respect to the period of treatment of
more than six months. In that view of the matter, the
compensation for loss of income during the period of
treatment does not warrant any interference. The Claims
Tribunal has awarded `4,000/- towards medical expenditure
which do not warrant any enhancement in the absence of any
evidence in support thereof. The Claims Tribunal has not
awarded any compensation towards conveyance and special
diet. Considering the nature of injuries suffered and period of
treatment, the compensation of `20,000/- is awarded towards
conveyance and special diet. The Claims Tribunal has
awarded a sum of `1,00,000/- towards disability of
reproduction, mental torture and pain. Applying the
principles laid down in the aforesaid cases, the compensation
of `1,00,000/- awarded by the learned Tribunal is treated
towards the loss of impotency, loss of reproduction and marital
life. `1,00,000/- is awarded to the appellant towards the pain
and sufferings and `50,000/- is awarded towards the loss of
amenities of life. The appellant is entitled to total
compensation of `4,50,013/- as per break-up given hereunder:-
(i) Compensation for loss of earning `1,69,371.00
capacity due to permanent disability
(`1,660.5 x 12 x 17 x 50%)
(ii) Compensation for loss of income `6,642.00
during treatment
(iii) Compensation towards medical `4,000.00
expenses
(iv) Compensation towards loss of `20,000.00
convenience and special diet.
(v) Compensation towards loss due to `1,00,000.00
impotency, reproduction and marital
life
(vi) Compensation for pain and suffering `1,00,000.00
(vii) Compensation for loss of amenities of `50,000.00
life
Total `4,50,013.00/-
42. FAO No.350/1998
The appellant was admitted to the LNJP Hospital for
fracture of pelvis bone, crushing of left testicle, laceration of
anal canal and rupture of urethra. The urinary bladder of the
appellant has become completely damaged. The appellant has
become permanently impotent due to the accident. The
appellant was hospitalized on seven occasions and undergone
six surgeries, namely, Debridement & Toileting along with
Colostomy at the time of injury, Incisional Hernia repair,
Urethroplasty, Internal urethrotomies, Urethrol dilatation and
Colostomy closure. The appellant is unable to do any work due
to the accident as he has no control over stool and urine and,
therefore, the injuries suffered have affected his functional
disability. The appellant has become impotent and has
suffered anal incontinence, left testicular atrophy due to which
he cannot hold his stool or urine even for a few minutes. The
appellant has also to undergo urethral dilatation after every six
months. However, the learned Tribunal has not awarded any
compensation to the appellant for loss of earning capacity.
Applying the principles laid down by the Supreme Court in the
case of Ajay Kumar (supra), the loss of earning capacity is
taken to be 60%. The appellant was earning `2,500/- per
month at the time of accident. However, the Claims Tribunal
took the income of the appellant as `18,600/- per annum on
the basis of his income tax returns, Ex.PW1/37 and Ex.PW1/38.
Appellant was aged 26 years. Adding 50% towards future
prospects, the annual income for the appellant is taken to be
`27,900/- [`18,600 + (50% of `18,600)]. Applying the
multiplier of 17 and taking 60% of the same, the loss of
earning capacity of the appellant is taken to be `2,84,580/-
(`27,900 x 17 x 60%). The Claims Tribunal has awarded a sum
of `18,600/- for loss of earning for one year. The appellant
remained under treatment for about 3½ years for which he is
entitled to loss of income. The compensation for loss of
earning is enhanced from `18,600/- to `65,100/- (`18,600 x 3½
years). The Claims Tribunal has not awarded any
compensation to the appellant for future treatment. The
appellant has successfully proved on record that he has to
undergo urethral dilation every six months for whole of his life
and, therefore, the lump sum compensation of `1,00,000/- is
awarded considering that the said amount shall be kept in
fixed deposit and interest thereof should be sufficient for the
future treatment of the appellant. The Claims Tribunal has
awarded `30,000/- to the appellant towards general damages
for pain and suffering and `20,000/- towards loss of amenities
of life. No compensation has been awarded to the appellant
towards impotency and loss of matrimonial prospects.
Following the principles laid down by the courts in the
aforesaid cases and the injuries suffered by the appellant and
the six surgeries underwent by him, the compensation of
`1,00,000/- is awarded to the appellant towards impotency and
the loss of matrimonial prospects. The compensation towards
the pain and suffering is enhanced from `30,000/- to
`1,00,000/- and the compensation for loss of amenities of life
is enhanced from `20,000/- to `1,00,000/-. The appellant is
entitled to total compensation of `8,27,766/- as per the
breakup given hereunder:-
(i) Compensation for loss of earning `2,84,580.00
capacity [{`18,600 + (50% of `18,600)}
x 17 x 60%]
(ii) Compensation for loss of income during `65,100.00
the treatment for a period of 3½ years
(`18,600 x 3½ years)
(iii) Compensation for loss on account of `7,700.00
brother's leave.
(iv) Compensation for expenditure of `70,386.00
treatment, special diet and conveyance
(v) Compensation for impotency and loss of `1,00,000.00
matrimonial prospects
(vi) Compensation for pain and suffering `1,00,000.00
(vii) Compensation for loss of amenities of `1,00,000.00
life
(viii) Compensation for future treatment `1,00,000.00
Total `8,27,766.00
43. CONCLUSION
43.1 In the facts and circumstances stated above, both the
appeals are allowed.
43.2 In FAO No.408/2002, the compensation is enhanced from
`1,10,642/- to `4,50,013/-. The Claims Tribunal has awarded
interest at the rate of 9% per annum which is not disturbed on
the original award of `1,10,642/-. However, on the enhanced
award amount, the rate of interest shall be 7.5% from the date
of filing the petition before the Claims Tribunal till the date of
payment.
43.3 In FAO 350/1998, the compensation is enhanced from
`1,47,000/- to `8,27,766/-. The Claims Tribunal has awarded
interest at the rate of 12% per annum which is not disturbed
on the original award of `1,47,000/-. However, on the
enhanced award amount, the rate of interest shall be 7.5%
from the date of filing the petition before the Claims Tribunal
till the date of payment.
43.4 The enhanced award amount along with up to date
interest be deposited by respondent No.3 with UCO Bank
within 30 days by means of cheque in the name of UCO Bank
A/c Sunil Kumar in FAO No.408/2008 and UCO Bank A/c
Bajrang Lal in FAO No.350/1998.
43.5 Upon the aforesaid amount being deposited, UCO Bank is
directed to release 10% of the amount to the respective
appellants by transferring the same to their Saving Bank
Account and the remaining amount be kept in Fixed Deposit in
the name of the respective appellants in the following
manner:-
(i) Fixed deposit of 10% of the enhanced award
amount for a period of one year.
(ii) Fixed deposit of 10% of the enhanced award
amount for a period of two years.
(iii) Fixed deposit of 10% of the enhanced award
amount for a period of three years.
(iv) Fixed deposit of 10% of the enhanced award
amount for a period of four years.
(v) Fixed deposit of 10% of the enhanced award
amount for a period of five years.
(vi) Fixed deposit of 10% of the enhanced award
amount for a period of six years.
(vii) Fixed deposit of 10% of the enhanced award
amount for a period of seven years.
(viii) Fixed deposit of 10% of the enhanced award
amount for a period of eight years.
(ix) Fixed deposit of 10% of the enhanced award
amount for a period of nine years.
43.6 The interest on the aforesaid fixed deposits shall be paid
monthly by automatic credit of interest in the Savings Account
of the respective appellants.
43.7 Withdrawal from the aforesaid accounts shall be
permitted to the respective appellants after due verification
and the Bank shall issue photo identity card to the respective
appellants to facilitate identity.
43.8 No cheque book be issued to the appellants without the
permission of this Court.
43.9 The original fixed deposit receipts shall be retained by
the Bank in the safe custody. However, the original Pass Book
shall be given to the respective appellants along with the
photocopy of the FDRs. Upon the expiry of the period of each
FDR, the Bank shall credit the maturity amount in the Savings
Account of the respective appellants.
43.10 No loan, advance or withdrawal shall be allowed on
the said fixed deposit receipts without the permission of this
Court.
43.11 Half yearly statement of account be filed by the
Bank in this Court.
43.12 On the request of the appellants, the Bank shall
transfer the Savings Account to any other branch according to
the convenience of the appellants.
44. Before parting with the case, this Court would like to
record the appreciation for the extremely valuable assistance
provided by the learned amicus curiae. Ms. Manjusha Wadhwa
not only provided valuable assistance on the questions of law
but inspected the entire record of this Court and filed a
comprehensive note with regard to the national and foreign
law regarding compensation for impotency. It is extremely
rare that such good assistance is provided by the amicus
curiae. The learned amicus curiae has discharged her
obligation towards the profession in an exemplary manner.
SEPTEMBER 30, 2011 J.R. MIDHA, J.
