Karnataka High Court
New India Assurance Company ... vs Abdul S/O Mehaboob Tahasildar on 27 May, 2022
Bench: Krishna S Dixit, P.Krishna Bhat
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R
MFA No. 103807 of 2016
C/W MFA No. 103835 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY, 2022
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO. 103807 OF 2016 (MV-
I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 103835 OF 2016
MISCELLANEOUS FIRST APPEAL NO. 103807 OF 2016
BETWEEN:
NEW INDIA ASSURANCE COMPANY LIMITED,
BY ITS DIVISIONAL MANAGER,
II FLOOR, SHRINATH COMPLEX,
NEW COTTON MARKET, HUBBALLI,
REPRESENTED BY ITS
DULY CONSTITUTED ATTORNEY,
THE CHIEF REGIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LIMITED,
REGIONAL OFFICE,
PINTO ROAD, HUBBALLI.-580020
...APPELLANT
(BY SRI. G N RAICHUR, ADVOCATE)
AND:
1. ABDUL S/O MEHABOOB TAHASILDAR,
AGE: 39 YEARS, OCC: NIL,
Digitally signed
by JAGADISH T
R/O: WALVEKAR PLOTS,
R
Location: HIGH
COURT OF KESHWAPUR, HUBBALLI-580020
KARNATAKA,
DHARWAD
Date:
2022.06.01
16:51:01
+0530
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C/W MFA No. 103835 of 2016
2. THE MANAGING DIRECTOR N.K.W.R.T.C.,
CENTRAL OFFICE, GOKUL ROAD,
HUBBALLI-580020
3. THE SELF INSURANCE FUND,
N.K.W.R.T.C., GOKUL ROAD,
CENTRAL OFFICE, HUBBALLI-580020
4. SMT.SHANTABAI W/O SHRISHAIL HATTI,
AGE: MAJOR,
OCC: OWNER OF TRUCK NO.
KA-28/A-1988,
R/O: AT POST TIDAGURDI,
TQ AND DIST: VIJAYAPURA
...RESPONDENTS
(BY SRI. DINESH M KULKARNI, ADV., FOR R1;
SRI. S. L. MATTI, ADV., FOR R3;
R3 & R4 - NOTICE SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
17.09.2016 PASSED IN MVC NO.998/2011 BY THE I-ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, HUBBALLI BY ALLOWING THIS
APPEAL.
IN MISCELLANEOUS FIRST APPEAL NO. 103835 OF 2016
BETWEEN:
ABDUL S/O MEHABOOB TAHASILDAR,
AGE: 39 YEARS, OCC: NIL,
R/O: WALVEKAR PLOTS, KESHWAPUR,
HUBBALLI, DIST: DHARWAD.
...APPELLANT
(BY SRI. DINESH M KULKARNI, ADVOCATE)
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MFA No. 103807 of 2016
C/W MFA No. 103835 of 2016
AND:
1. THE MANAGING DIRECTOR,
N.K.W.R.T.C. CENTRAL OFFICE,
GOKUL ROAD, HUBBALLI,
DIST: DHARWAD-580007
2. THE SELF INSURANCE FUND,
NWKRTC GOKUL ROAD,
HUBBALLI, DIST: DHARWAD-580007
3. SMT.SHANTABAI
W/O SHRISHAIL HATTI,
AGE: MAJOR,
OCC: OWNER OF THE VEHICLE,
R/O: AT POST: TIDAGURDI,
TQ and DIST: VIJAYAPURA-586101.
4. THE NEW INDIA ASSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
2ND FLOOR, SHRINATH COMPLEX,
NEW COTTON MARKET, HUBBALLI,
DIST DHARWAD -580007.
...RESPONDENTS
(BY SRI. S. L. MATTI, ADV., FOR R1;
SRI. G. N. RAICHUR, ADV., FOR R4;
R2- NOTICE DISPENSED WITH; R3-NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 17.09.2016
PASSED IN MVC NO.998/2011 ON THE FILE OF THE I-
ADDITIONAL SENIOR CIVIL; JUDGE AND MEMBER ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 103807 of 2016
C/W MFA No. 103835 of 2016
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
ADMISSION, THIS DAY, P.KRISHNA BHAT J., DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals arise out of the judgment and
award dated 17.09.2016 in MVC No.998/2011 passed by
the I-Additional Senior Civil Judge and Additional M.A.C.T.,
Hubballi (for short "the Tribunal").
2. The brief facts so far as the same are relevant
for the present purposes are that on 31.12.2009 at 9.30
p.m., while the claimant, who is appellant in one of the
appeals was returning to Hubballi from Kerur in KSRTC
Bus bearing registration No.KA-25/F-803, a lorry which
was parked partly by the side of the road and partly on the
tar portion of the road, having not been clearly sighted,
the bus collided against the same and due to the impact,
the claimant-appellant suffered grievous injuries. On his
presenting a claim petition, respondent Nos. 1 and 2
entered appearance through a common learned advocate
and respondent No.4 entered appearance through its
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panel counsel. They filed their separate Written
Statements denying the material averments in the claim
petition.
3. During trial, the claimant examined himself as
PW-1 and he also examined a Medical Expert as PW-2.
Ex.P-1 to Ex.P-15 were marked for the claimant.
Respondents examined two witnesses as RW-1 and RW-2
and Ex.R-1 to Ex.R-4 were marked.
4. Upon hearing the learned counsel on both sides
and perusing the records, learned Tribunal allowed the
claim petition in part and awarded a compensation of
Rs.5,23,000/- with interest thereon at 9% per annum from
the date of petition till the date of realization with liability
to pay the same, apportioned in the ratio of 70:30
between respondent Nos.1 & 2 on the one side and
respondent Nos.3 and 4 on the other.
5. The insurer of the offending truck is in appeal
before us advancing three fold contentions. Firstly, it is
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contended that the apportionment of liability to pay
compensation on the offending truck to the extent of 30%
is wholly against the weight of evidence inasmuch as it
was parked by the side of the road and further the
NWKRTC bus being a heavy vehicle fitted with bright
headlights and therefore, the NWKRTC bus having collided
against the stationery truck, the learned Tribunal ought to
have fastened the entire liability to pay the compensation
on the NWKRTC itself.
6. The second contention of the learned counsel
for the insurer of the offending truck is that the learned
Tribunal has committed a serious error in awarding
interest @ 9% per annum and also in fixing the date of
liability to pay the interest on the compensation amount
with effect from the date of the claim petition ignoring
earlier order of the Tribunal itself dated 21.10.2015 on
I.A.No.8, which is to the effect that the liability to pay the
interest on the compensation shall commence on the date
when the claimant closes his evidence.
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C/W MFA No. 103835 of 2016
7. His last submission is that the learned Tribunal
has fixed the higher notional income for the claimant
inasmuch it has proceeded on the premise that he was
earning Rs.6,000/- per month, the date of accident being
31.12.2009, whereas as per the chart prepared by the
Karnataka State Legal Services Authority, which is being
followed throughout the State, the notional income for the
year 2009 was only Rs.5,000/- per month. On these
contentions, the learned counsel for the Insurance
Company of the offending truck submits that his appeal is
entitled to be allowed.
8. Learned counsel for the NWKRTC, per contra,
contends that the weight of the evidence clearly shows
that the offending truck which was stationery was not
entirely parked on the road side margin and on the other
hand, it was parked partly on the tar portion of the road
and the owner of the truck or the insurer has not placed
any evidence to show that the parked vehicle was
displaying parking lights, which is mandatory under the
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Act and the Rules. He further submitted that the evidence
clearly shows that on the date of the accident, it was
raining and this also added to the low visibility for the
driver of the bus and therefore, the Insurance Company
cannot disclaim its liability to pay the compensation as
fixed by the learned Tribunal.
9. Learned counsel for the claimant in support of
his appeal submits that the learned Tribunal was not
properly guided by the principles governing the award of
compensation in case of injury and therefore, it has
awarded a lower compensation and accordingly, his appeal
is entitled to be allowed and enhanced compensation is
required to be awarded.
10. We have bestowed our careful consideration to
the submissions made on both sides and we have perused
the records furnished at the Bar meticulously.
11. Insofar as the contention of the learned counsel
for the Insurance Company, which had insured the
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offending truck is concerned, the evidence clearly shows
that the vehicle was not parked wholly on the margin of
the tar road and on the other hand, the evidence further
shows that it was partly parked on the tar portion of the
road. The Insurance Company or the owner of the
offending truck has not placed conclusive evidence to
show that the parked vehicle was displaying parking lights,
which is mandatory under the Act and the Rules. As an
example, we may immediately refer to the recital in the
complaint (Ex.P-1) lodged by one of the passengers in the
NWKRTC bus. The complaint clearly states that the parking
lights were not on display at the time of the accident. The
Mahazar (Ex.P2) drawn up soon after the accident also
shows that in spite of the fact that the road margin was 8
feet wide, the truck was parked about 2 feet inside the tar
road. In that view of the matter, it is impossible for us to
disagree with the finding of the learned Tribunal that there
is composite negligence on the part of the driver of the
offending truck in having parked the same in an improper
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manner and therefore, we further agree with the learned
Tribunal that the owner of the truck as well as the insurer
is liable to pay 30% of the compensation that was
determined.
12. In regard to the contention touching the rate of
interest awarded is concerned, learned Tribunal has
awarded interest @ 9% per annum and having regard to
the facts and circumstances, we are not inclined to slash
down the same in this case. In regard to the date with
effect from which liability to pay interest on the
compensation is concerned, learned Tribunal at the
instance of the appellant-Insurance Company had
entertained I.A.No.8 and on appreciation of contentions
advanced before it on both sides, had passed an order on
21.10.2015 directing that interest on the compensation
adjudicated shall be liable to be paid with effect from the
date on which the claimant closed his evidence. In this
case, we do not find any good reason to disagree with the
said direction passed by the learned Tribunal; but the
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C/W MFA No. 103835 of 2016
learned Tribunal while ultimately disposing of the matter
under the impugned judgment and award has overlooked
the said order and has erroneously directed the interest to
be paid with effect from the date of the claim petition and
not with effect from the later date as it had earlier
directed, which is 26.07.2016 and accordingly, we are
bound to correct the same. Therefore, we award the rate
of interest at 9% per annum with effect from 26.07.2016
only and not with effect from the date on which the claim
petition was presented.
13. Now, we are required to deal with the appeal
filed by the claimant seeking enhancement of the
compensation. Certain foundational facts with regard to
assessment of compensation namely the nature of the
injury suffered by the claimants cannot be disputed.
Claimant had suffered a major fracture. He had sustained
open fracture below knee left leg lower 1/3rd. He had also
suffered certain other injuries and the fracture
necessitated fixing of DCP plates and screws and K-wire
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C/W MFA No. 103835 of 2016
fixation. The learned Tribunal has awarded Rs.30,000/-
towards pain and suffering. We find the same inadequate
and accordingly having regard to the fact that the fracture
was a serious one and it was on the lower limb, we
quantify the same at Rs.50,000/-.
14. The records produced during the trial indicate
that the claimant was inpatient in various hospitals in
separate spells for total period of 49 days. Therefore, he is
required to be awarded Rs.15,000/- under the head of
nourishment, food, conveyance expenses and attendant
charges.
15. The claimant has produced medical bills to show
that he had incurred an amount of Rs.1,90,000/- towards
medical expenses and accordingly, we award the same
under the said head.
16. The Tribunal assessed the monthly income at
Rs.6,000/-. The contention of the learned counsel for the
Insurance Company is that though the accident had
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C/W MFA No. 103835 of 2016
occurred in the year 2009, the learned Tribunal has erred
in assessing the monthly income of the claimant on
notional basis at Rs.6,000/- instead of Rs.5,000/- as per
the chart prepared by the Karnataka Legal Services
Authority. The learned counsel for the claimant has
produced the statement of income and expenditure
account (I.T. returns, Ex.P.309) for the year ending
31.03.2009, which shows gross receipt from tailoring
business at Rs.3,28,535/- and he had spent Rs.60,000/-
towards salary and wages, Rs.3,374/- towards electricity
charges and Rs.2,875/- towards telephone charges etc. It
further shows that he had spent Rs.82,435/- towards cost
of materials purchased (thread, buttons etc.,) for the year
ending 31.03.2009. This also shows that the net profit for
the year ending 31.03.2009 was Rs.1,47,649/-. Therefore,
no exception can be taken for the learned Tribunal arriving
at the finding that he was earning at least Rs.6,000/- per
month and the contention of the learned counsel for the
Insurance Company in this regard cannot be accepted and
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C/W MFA No. 103835 of 2016
we do not find any fault with Tribunal assessing the
monthly income of the claimant at Rs.6,000/-.
17. In view the serious fractures suffered by him,
he would not have been in a position to engage himself in
any gainful activity for at least a period of six months and
accordingly for loss of income during the laid up period we
award Rs.36,000/- (Rs.6000 x 6000 = Rs.36,000/-).
18. Claimant has spoken about the nature of injury
suffered by him and the resultant incapacity suffered by
him and also he has produced several medical documents
to establish the same. Apart from the same, he has
examined PW-2/Medical Expert, who has given evidence
and also produced disability certificate (Ex.P-14) issued by
him. On careful evaluation of the same, the learned
Tribunal has come to the conclusion that the resultant
whole body disability suffered by the claimant is to the
extent of 20%. We are in agreement with the said
assessment made by the learned Tribunal. The claimant
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was aged about 40 years at the time of the accident and
therefore, the appropriate multiplier applicable to his case
is '15'.
19. While assessing the functional disability at 20%
for the claimant, we are guided by the decision of the
Hon'ble Supreme Court in the matter of RAJ KUMAR v.
AJAY KUMAR AND ANOTHER1. Para No.9 to 14 of the said
judgment is very instructive for the present purposes and
they read as follows:
"9. The percentage of permanent disability is expressed
by the doctors with reference to the whole body, or more
often than not, with reference to a particular limb. When
a disability certificate states that the injured has suffered
permanent disability to an extent of 45% of the left lower
limb, it is not the same as 45% permanent disability with
reference to the whole body. The extent of disability of a
limb (or part of the body) expressed in terms of a
percentage of the total functions of that limb, obviously
cannot be assumed to be the extent of disability of the
whole body. If there is 60% permanent disability of the
right hand and 80% permanent disability of left leg, it
does not mean that the extent of permanent disability
(2011) 1 SCC 343
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with reference to the whole body is 140% (that is 80%
plus 60%). If different parts of the body have suffered
different percentages of disabilities, the sum total thereof
expressed in terms of the permanent disability with
reference to the whole body cannot obviously exceed
100%.
10. Where the claimant suffers a permanent disability
as a result of injuries, the assessment of compensation
under the head of loss of future earnings would depend
upon the effect and impact of such permanent disability
on his earning capacity. The Tribunal should not
mechanically apply the percentage of permanent disability
as the percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of
economic loss, that is, the percentage of loss of earning
capacity, arising from a permanent disability will be
different from the percentage of permanent disability.
Some Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent disability
would result in a corresponding loss of earning capacity,
and consequently, if the evidence produced show 45% as
the permanent disability, will hold that there is 45% loss
of future earning capacity. In most of the cases, equating
the extent (percentage) of loss of earning capacity to the
extent (percentage) of permanent disability will result in
award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is
the effect of the permanent disability on the earning
capacity of the injured; and after assessing the loss of
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earning capacity in terms of a percentage of the income,
it has to be quantified in terms of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of dependency).
We may however note that in some cases, on
appreciation of evidence and assessment, the Tribunal
may find that the percentage of loss of earning capacity
as a result of the permanent disability, is approximately
the same as the percentage of permanent disability in
which case, of course, the Tribunal will adopt the said
percentage for determination of compensation. (See for
example, the decisions of this Court in Arvind Kumar
Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC
254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298]
and Yadava Kumar v. National Insurance Co. Ltd. [(2010)
10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) 8 Scale
567] )
12. Therefore, the Tribunal has to first decide whether
there is any permanent disability and, if so, the extent of
such permanent disability. This means that the Tribunal
should consider and decide with reference to the
evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
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(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of such
disablement of the limb on the functioning of the
entire body, that is, the permanent disability suffered
by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding further
and determining the loss of future earning capacity. But if
the Tribunal concludes that there is permanent disability
then it will proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence,
it has to determine whether such permanent disability has
affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the permanent
disability and what he could not do as a result of the
permanent disability (this is also relevant for awarding
compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession
and nature of work before the accident, as also his age.
The third step is to find out whether (i) the claimant is
totally disabled from earning any kind of livelihood, or (ii)
whether in spite of the permanent disability, the claimant
could still effectively carry on the activities and functions,
which he was earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his previous
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activities and functions, but could carry on some other or
lesser scale of activities and functions so that he
continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss of
earning capacity may virtually be hundred per cent, if he
is neither able to drive or do carpentry. On the other
hand, if the claimant was a clerk in government service,
the loss of his left hand may not result in loss of
employment and he may still be continued as a clerk as
he could perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in the
case of a driver or carpenter, nor 60% which is the actual
physical disability, but far less. In fact, there may not be
any need to award any compensation under the head of
"loss of future earnings", if the claimant continues in
government service, though he may be awarded
compensation under the head of loss of amenities as a
consequence of losing his hand. Sometimes the injured
claimant may be continued in service, but may not be
found suitable for discharging the duties attached to the
post or job which he was earlier holding, on account of his
disability, and may therefore be shifted to some other
suitable but lesser post with lesser emoluments, in which
case there should be a limited award under the head of
loss of future earning capacity, taking note of the reduced
earning capacity." (underlined by us)
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20. The learned counsel for the Insurance Company
was trenchant in his criticism of the award of compensation
made by the learned Tribunal under the head loss of future
earning capacity due to disability. He contended that the
evidence of PW-2, the Medical Expert, as well as that of
claimant is not entitled to be accepted and further on the
said basis, it was improper on the part of the learned
Tribunal to have come to conclusion that the claimant had
indeed suffered loss of future earning capacity due to the
disability. Incidentally, he also seriously questioned the
extent of physical disability suffered having impact on the
assessment of the earning capacity of the claimant made by
the learned Tribunal. Learned Tribunal while coming to the
conclusion that the claimant had suffered physical disability
to the extent of 20% resulting in diminished future earning
capacity of the claimant made reference to the nature of the
injury suffered by the claimant which in fact is a fracture of
the left lower limb and also the evidence of PW-2 touching
upon the residual incapacity which lingers in the said limb
even after undergoing complete treatment. In spite of vast
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progress made by mankind in the field of science and
ingenuity of the human mind, he has not, as yet, been able
to invent a barometer or establish a scientific method for
making an exact estimation with mathematical precision the
correlation between the physical disability suffered and
impact it would have on his reduced capacity to earn over a
period of time in future. Inevitably, therefore, some amount
of educated guess work needs to enter this domain.
21. In the background of the contentions advanced
by the learned counsel for the Insurance Company, a
question now arises as to the guiding philosophy which the
learned Tribunals should bear in the inner recesses of mind
as the beacon light to determine the appropriate
compensation to be awarded under the said head. The
materials produced before the learned Tribunal show that the
claimant was running a tailoring business, which undeniably
requires an able body and more particularly, a fully
functional pair of lower limbs. It would be harsh, unrealistic,
nay, almost nihilistic on the part of the Tribunal to ignore the
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philosophy of the constitution of India in the process of their
decision making which sets great store by the dignity of
human-being. The "life" as encapsulated in the Indian
Constitution does not merely view human life as a
conglomeration or an assemblage or the cobbling together of
the individual constituent parts but as an integrated core
which has a purpose, content and dignity. Any disability,
therefore, to any limb of the body which has a role to play in
the functional-economic sense indubitably causes its effect
on the whole body warranting curial intervention in its
reparative and recompensing role. An useful observation in
this behalf is found in the decision of the Hon'ble Apex Court
in the case of JAGDISH v. MOHAN AND OTHERS2, which
reads as under:
"14. ......But the measure of compensation must reflect a
genuine attempt of the law to restore the dignity of the
being. Our yardsticks of compensation should not be so
abysmal as to lead one to question whether our law
values human life. If it does, as it must, it must provide a
realistic recompense for the pain of loss and the trauma
(2018) 4 SCC 571
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of suffering. Awards of compensation are not law's doles.
In a discourse of rights, they constitute entitlements
under law. Our conversations about law must shift from a
paternalistic subordination of the individual to an
assertion of enforceable rights as intrinsic to human
dignity."
22. The learned counsel for the Insurance Company
was vehement in his submission that the component of loss
of future prospects can be factored in while awarding
compensation under the head of loss of future earning
capacity where disability arises due to amputation alone and
he was insistent that the ratio of the decision of Constitution
Bench of the Hon'ble Supreme Court in National
Insurance Company Limited v. Pranay Sethi and
others3, in this behalf should be extended only to such
cases of personal injury where physical disability has
resulted due to amputation of the limbs. The above
contention requires to be noticed only to be rejected.
(2017) 16 SCC 680
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23. A catena of decisions emanating from the
Hon'ble Supreme Court in SANDEEP KHANUJA vs. ATUL
DANDE4, Jagadish v. Mohan and others5 and
Erudhaya Priya v. State Express Transport
Corporation Limited6 2020 SCC Online SC 601, make
no such distinction in regard to applicability of 'loss of future
prospects' to cases of physical disability resulting in loss of
earning capacity from injuries with amputation of the limbs
and without amputation of the limbs as was sought to be
contended by the learned counsel for the Insurance
Company. This kind of arguments advanced at the bar by the
learned counsel appearing for the Insurance Company only
brings to sharp relief the urgent need for updation by the
learned counsel of the fast changing approach of the law
inconsonance with the felt necessities of the time without
which the precious time of the Courts will be wasted in
needlessly dwelling on the same.
(2017) 3 SCC 351
(2018) 4 SCC 571
2020 SCC Online SC 601
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24. That there is no warrant for such a proposition
either in law, or in any recognized principles or on authority
is evident from the decision of the Hon'ble Apex Court in
Erudhaya Priya's7 case at paragraph Nos. 12 to 14 which
reads as follows:
"12. In the factual contours of the present case, if we
examine the disability certificate, it shows the
admission/hospitalization on 8 occasions for various
number of days over 1½ years from August 2011 to
January 2013. The nature of injuries had been set out as
under:
"Nature of injury:
(i) compound fracture shaft left humerus
(ii) fracture both bones left forearm
(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft left femur
(vii) fracture both bones left leg"
13. We have also perused the photographs annexed to
the petition showing the current physical state of the
appellant, though it is stated by learned counsel for the
respondent State Corporation that the same was not on
record in the trial court. Be that as it may, this is the
2020 SCC Online SC 601
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position even after treatment and the nature of injuries
itself show their extent. Further, it has been opined in
para 12 of Sandeep Khanuja case (supra) that while
applying the multiplier method, future prospects on
advancement in life and career are also to be taken into
consideration.
14. We are, thus, unequivocally of the view that there is
merit in the contention of the appellant and the aforesaid
principles with regard to future prospects must also be
applied in the case of the appellant taking the permanent
disability as 31.1%. The quantification of the same on the
basis of the judgment in National Insurance Co. Ltd.
case (supra), more specifically para 59.3, considering the
age of the appellant, would be 50% of the actual salary in
the present case."
25. In the above case, before the Supreme Court,
appellant did not suffer any amputation of the limbs.
26. What is the true basis for incorporating 'loss of
future prospects' in computing compensation under the head
of loss of future earning capacity? Is it because courts have
to make a distinction between various classes of injuries
resulting in disabilities having a bearing on the earning
capacity and thereafter, mark the cases only of disability
resulting from amputation of limbs for incorporating an
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additional component of 'loss of future prospects' into the
computational process of loss of future income? Our answer
is an emphatic No! In an opinion marked by considerable
prescience and percipience, Singhvi J. speaking for a Bench
of Supreme Court observed as follows:
"14. We find it extremely difficult to fathom any rationale
for the observation made in paragraph 24 of the
judgment in Sarla Verma's case that where the deceased
was self-employed or was on a fixed salary without
provision for annual increment, etc., the Courts will
usually take only the actual income at the time of death
and a departure from this rule should be made only in
rare and exceptional cases involving special
circumstances. In our view, it will be naïve to say that the
wages or total emoluments/income of a person who is
self-employed or who is employed on a fixed salary
without provision for annual increment, etc., would
remain the same throughout his life.
15. The rise in the cost of living affects everyone across
the board. It does not make any distinction between rich
and poor. As a matter of fact, the effect of rise in prices
which directly impacts the cost of living is minimal on the
rich and maximum on those who are self- employed or
who get fixed income/emoluments. They are the worst
affected people. Therefore, they put extra efforts to
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generate additional income necessary for sustaining their
families.
16. The salaries of those employed under the Central and
State Governments and their agencies/instrumentalities
have been revised from time to time to provide a cushion
against the rising prices and provisions have been made
for providing security to the families of the deceased
employees. The salaries of those employed in private
sectors have also increased manifold. Till about two
decades ago, nobody could have imagined that salary of
Class IV employee of the Government would be in five
figures and total emoluments of those in higher echelons
of service will cross the figure of rupees one lakh.
17. Although, the wages/income of those employed in
unorganized sectors has not registered a corresponding
increase and has not kept pace with the increase in the
salaries of the Government employees and those
employed in private sectors but it cannot be denied that
there has been incremental enhancement in the income of
those who are self-employed and even those engaged on
daily basis, monthly basis or even seasonal basis. We can
take judicial notice of the fact that with a view to meet
the challenges posed by high cost of living, the persons
falling in the latter category periodically increase the cost
of their labour. In this context, it may be useful to give an
example of a tailor who earns his livelihood by stitching
cloths. If the cost of living increases and the prices of
essentials go up, it is but natural for him to increase the
cost of his labour. So will be the cases of ordinary skilled
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and unskilled labour, like, barber, blacksmith, cobbler,
mason etc.
18. Therefore, we do not think that while making the
observations in the last three lines of paragraph 24 of
Sarla Verma's judgment, the Court had intended to lay
down an absolute rule that there will be no addition in the
income of a person who is self-employed or who is paid
fixed wages. Rather, it would be reasonable to say that a
person who is self-employed or is engaged on fixed wages
will also get 30 per cent increase in his total income over
a period of time and if he/she becomes victim of accident
then the same formula deserves to be applied for
calculating the amount of compensation."
(Santosh Devi v. National Insurance Company
Limited and others)8
27. It is thus evident that this component of 'loss of
future prospects' is a forensic tool forged by the Supreme
Court to off-set the adverse effect of imponderable vagaries
of inflation on the assessment of loss of future earning. To
link this component only to disability arising from amputation
of limbs defies logic and has no sanction of law. It is
undoubtedly true that it is no part of the statutory law
governing the field of award of compensation in motor
(2012) 6 Supreme Court Cases 421
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vehicle accident cases. But, Courts are enjoined under law to
award "just compensation" and no compensation can be
regarded as just unless law is capable of reinventing itself by
making proper adjustments as the "needs of the time
require". Judges some times make law if the statutes made
by the Parliament fall short of meeting the requirements of
the time.
28. The eminent judge Lord Reid in his lecture "The
Judge As Law Maker" said as under:
"There was a time when it was thought almost indecent to
suggest that judges make law- they only declare it.
Those with a taste for fairy tales seem to have thought
that in some Aladdin's cave there is hidden the Common
Law in all its splendour and that on a judge's appointment
there descends on him knowledge of the magic words
Open Sesame. Bad decisions are given when the judge
has muddled the pass word and the wrong door opens.
But we do not believe in fairy tales anymore."
29. Eminent American jurist Richard Allen Posner was
more forthright when he said:
"(j)udges make rather than find law, and they use as
inputs both the rules laid down by legislation and previous
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courts. ............ and their own ethical and policy
preferences".9
30. Lord Justice Harman put it pithily thus:
"Equity is not past the age of Child bearing"
31. Resultantly we are constrained to reject the
contention of Sri. G. N. Raichur, learned counsel for the
Insurance Company. 'Loss of future prospects' also has to
be factored in notwithstanding the fact that this is not a
case of death but a case of injury without amputation
resulting in whole body disability to the extent of 20%
which ultimately has a bearing on the reduced earning
capacity. It is essentially on account of the fact that
money value does not remain constant over a long spell of
years and thus claimant being aged only 40 years, he has
long years ahead of him to look forward to, the sliding
value of the money will have adverse impact on his future
prospects. Accordingly, having due regard to the fact that
he was aged about 40 years at the time of the accident,
R.Posner, the problems of Jurisprudence, 457 (1990)
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25% of his established income will have to be factored in
towards compensation for 'loss of future prospects'.
Therefore, 'loss of earning capacity' is recomputed as
follows:
Rs.6,000/- + 25% (Rs.1,500/-) = Rs.7,500/-
Rs.7,500 x 12 x 15 x 20% =Rs.2,70,000/-.
32. Learned Tribunal has awarded separately a sum
of Rs.50,000/- under the head of loss of expectation of life
and amenities. We may observe that the same is required to
be maintained in view of the fact that in Rajakumar's10
case, the Hon'ble Supreme Court has directed dispensing
with award of compensation on the said head only when the
compensation under the head of future loss of earning
capacity due to disability assessed is on the footing of
disability at a degree higher than 50%. The relevant
observation is at paragraph 15 of the said decision, which
reads as follows:
"15. It may be noted that when compensation is awarded
by treating the loss of future earning capacity as 100%
(2011) 1 SCC 343
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(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."
33. Thus, the claimant is entitled to the total
compensation as follows:
Amount
Heads (in Rs.)
Towards pain and sufferings 50,000/-
Towards loss of earnings along with future 2,70,000/-
prospects at 25% of the income (Rs.7,500
x 12 x 15 x 20% = 2,70,000/-)
Towards Medical expenses 1,90,000/-
Towards loss of income during laid up 36,000/-
period (Rs.6,000 x 6 months)
Towards loss of expectation of life and 50,000/-
amenities
Towards food, nourishment, conveyance 15,000/-
and attendant charges
Total 6,11,000/-
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34. In view of the above, the claimant is entitled to
total compensation of Rs.6,11,000/- as against
Rs.5,23,000/- awarded by the learned Tribunal. The total
compensation will carry interest @ 9% per annum with
effect from 26.07.2016 i.e., the date of closure of the
evidence as against the date of claim petition awarded by
the Tribunal.
35. In the result, both appeals are allowed in part.
36. The amount in deposit, if any, shall be
transmitted to the jurisdictional Tribunal for disbursement,
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
