[Cites 30, Cited by 0]
Punjab-Haryana High Court
Bhim Singh vs Vashishth Tiwari & Ors on 18 December, 2025
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
FAO-8634-2017 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
FAO-8634-2017 (O&M)
Date of Reserve: 14/11/2025
Date of Pronouncement:-18.12.2025
Date of Uploading:-19.12.2025
Bhim Singh ......Appellant
Vs.
Vashishth Tiwari & ors. ......Respondents
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Digvijay, Advocate for Mr. Ashish Gupta, Advocate
for the appellant.
Mr. Atul Yadav, Advocate
for respondent Nos. 1 and 2.
Mr. Gaurav, Advocate for Mr. Sanjeev Goyal, Advocate
for respondent No. 3.
****
SUDEEPTI SHARMA J.
1. The present appeal has been preferred against the award dated
15.07.2017 filed under Section 166 of the Motor Vehicles Act, 1988 by the learned
Motor Accident Claims Tribunal, Gurugram (Haryana) (for short, 'the Tribunal')
for enhancement of compensation granted to the appellant/claimant to the tune of
Rs.20,88,000/- (i.e 60% of the awarded amount), on account of injuries suffered by
him in a Motor Vehicular Accident, occurred on 06.03.2016 by holding
contributory negligent and challenging the contributory negligence determined to
the ratio of 60:40.
Brief Facts
2. Brief facts of the case are that on 6.3.2016, claimant alongwith one
Bijender were travelling in canter vehicle, No HR-60C-0414. At about 8.30 P.M
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when the canter reached near Bilaspur Chowki, one closed body truck bearing
registration No HR-550-7567 was parked on the road without Indicator. Due to the
focus light of vehicles coming from the opposite side, the parked vehicle could not
be seen and vehicle No.HR-60C-0414 hit into the same. As a result, of the
accident, petitioner suffered grievous injuries on his person including serious injury
on forehead and both legs. FIR No.86 dated 7.3.2016 was registered under Sections
279, 337 IPC in this regard.
3. Upon notice of the claim petition, respondents appeared and denied
the factum of compensation.
4. From the pleadings of the parties, the following issues were framed by
the learned Tribunal :-
"1. Whether the accident dated 6.3.2016 took place due to rash
and negligent driving of vehicle No.HR-55U-7567 by
respondent No.1, resulting into injuries to petitioner? OPP.
2) Whether claimant is entitled to receive any compensation. If
so what amount and from whom? OPP.
3) Whether respondent No.1 was not having valid and effective
driving licence on the date of accident. If so its effect? OPR(3)
4) Whether there was violation of terms and conditions of
insurance policy by respondents No. 1&2. If so its effect?
OPR(3)
5) Relief."
5. After taking into consideration the pleadings and the evidence on
record, learned Tribunal awarded compensation to the claimant. However, learned
Tribunal held the accident as a case of contributory negligence in the ratio 60% on
the offending vehicle and 40% on the other vehicle involved in the accident.
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Hence, the present appeal is filed challenging contributory negligence of the
appellant to the extent of 40% and also on the ground that the compensation
awarded to the appellant is on the lower side.
SUBMISSIONS OF LEARNED COUNSELS FOR THE PARTIES
6. The learned counsel for the claimant-appellant contends that the
compensation assessed by the learned Tribunal is on the lower side and deserves to
be enhanced. He further contends that the finding of contributory negligence is
misconceived, unsupported by evidence and is liable to be reversed. He, thus prays
that the present appeal be allowed.
7. Per contra, learned counsel for respondents however, vehemently
argues on the lines of the award. They, therefore prays for dismissal of the appeal.
8. I have heard learned counsel for the parties and perused the whole
record of this case.
9. Before proceeding further, it is relevant to reproduce the relevant
portion of the award, which reads as under:-
"Issues No.1 and 2:
Both these issues are inter-connected and inter-linked, therefore,
these are taken up together for discussion.
10 The onus to prove these issues was upon the claimant. In
order to prove these issues, Smt. Sunita Bhargava, learned
counsel for the claimant has argued that claimant has proved by
examining himself as PWI; Dr. Ashish Kumar, Medanta Hospital
as PW3; Sandeep Kumar, Criminal Ahimad as PW7 and Bijender,
eye witness as PW11 and producing documents ie copies of MLR
Ex.P3, discharge summary Ex. P4 that the claimant suffered
injuries in the accident caused on 6.3.2016 by rash and negligent
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act of parking the offending vehicle on the road by respondent
No. 1.
11 On the other hand. Sh. V.K.Chauhan, learned counsel for
respondents No. 12 and Sh. Deepak Gupta, learned counsel for
respondent No.3 have argued that no such accident was caused
by the offending vehicle due to rash and negligent driving by its
driver I.e respondent No.1. Learned counsel for respondent No.3
further argued that rather the alleged accident occurred due to
rash and negligent driving of vehicle No.HR-60C-0414 by its
driver, in which the petitioner was travelling, as it hit the
stationary truck in question from behind.
While arguing on this point, Smt. Sunita Bhargava, learned has
not counsel for the claimant contended that respondent No.
stepped into the witness box to depose that he had taken
precautionary measures while parking his vehicle on the road
and that the accident occurred because of contributory
negligence of the driver of the canter vehicle, in which petitioner
was allegedly travelling. Thus, plea of contributorv negligence is
not tenable.
12. The claimant has examined PW7 Sandeep Kumar, Criminal
Ahlmad in the court of Ms. Mohini, JMIC, Gurugram, who on the
basis of record of case titled as 'State Vs. Vashisht Tiwari bearing
FIR No.86 dated 7.3.2016 u/s 283, 337 & 338 IPC, P.S Bilaspur,
stated that charge has been framed against the accused and the
case is fixed for prosecution evidence. The claimant also
produced on record copy of MLR EX.P3).
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On the other hand, respondents have not led any evidence.
Respondent No. I himself has not appeared in the witness box to
refute the allegations against him as set up in the claim petition.
More so respondent No. 1 has made no complaint to higher
authorities regarding his false implication in this case. It is not in
dispute that respondent No. I is facing trial for the accident in
question.
13 It has been held by our own Hon'ble High Court in case
Sudama Devi and others Versus Kewal Ram and others, 2008 (2)
RCR (Civil) 72 (P&H) that the driver (against whom criminal
case was registered) could certainly approach the higher police
authorities that he had been falsely implicated in the criminal
case and that the accident did not take place on account of his
rash or negligent act. It was further held that mere silence for a
long time in itself is sufficient to prove that he was negligent in
driving the vehicle. Identical law was laid down by our Hon'ble
High Court in case Ram Sarup and others Vs. Om Parkash and
others, (2008-1) PLR 461.
Further, involvement of truck No.HR-550-7567 in the accident is
proved from the statement of claimant Bhim Singh (PW1) and eye
witness Bijender (PW11), who by way of affidavits Ex.PW1/A and
Ex.PW11/A deposed that the accident took place due to rash and
negligent act of parking the offending truck No.HR-550-7567 on
the road without any indication.
15. In such like cases, rash and negligent driving of offending
vehicle is not to be proved beyond shadow of reasonable doubt
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like criminal cases but on the basis of preponderance of
probabilities as respetration of FIR and trial of the accused in a
criminal Court, are sufficient to arrive at a conclusion that the
accident had taken place because of his negligence. Such a law
was laid down by our own Hon'ble High Court in case Lakhu
Singh Versus Uday Singh, 2008 (1) RCR (Civil) 805, Identical
law was laid down by our own Hon'ble High Court in case
Girdhari Lal Vs. Radhey Shyam and Others, 1993 (2) Punjab
Law Reporter, 109 (P&H) that where the driver of the offending
vehicle was facing trial for rash and negligence, it was safe to
hold that the accident took place due to his rash and negligent
act.
10. After hearing learned counsel for the parties and perusal of
evidence on record, I am of the considered view that the accident
took place due to contributory negligence of respondent No.1 as
well as the driver of canter vehicle No.HR-60C-0414 From
perusal of the statement of PW1 Bhim Singh and PW11 Bijender
it is evident that the offending truck was parked on the road
without any indication or parking lights on. However, in their
statements, both these witnesses admitted that the canter in which
they were travelling, hit the parked truck from behind. PW1 has
stated that he had seen the parked truck from a distance of 15
meters and the driver of canter had applied brakes but it skidded
whereas PW11 has stated that the driver of vehicle, in which they
were travelling, had not applied the brakes.
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17. The driver of the offending vehicle has not appeared in
the witness box to state about the manner of accident or parking
of the truck on the road without any indication. Thus, it can well
be held that respondent No.1 was negligent while parking the
truck in question on the road without parking lights More, ao,
driver of canter No.MR-60C-0414 has not been examined to
prove mode and manner of accident explaining the allegation of
parking of the truck without lights on on the road Pross the
statements of Bhim Singh(PW 1) && Bijender(PW11) it clear
that the canter hit the stationary truck from behind. PWI stated
having seen the parked truck from a distance of 15 meters and
the driver of canter applied brakes but it skidded, which goes to
show that the canter was being run at an excessive speed without
taking due care of other traffic on the road. Meaning thereby, the
accident could have been avoided if the driver of canter had been
a little cautious.
18 In these circumstances, the drivers of both the vehicles should
be held responsible to have contributed to the accident. Similar
matter had gone before the Hon'ble Punjab & Haryana High
Court in case Subhash Chand and others Vs. Satya Rani and
others, 2014(5) RCR (Civil) 265 (P&H) wherein tractor driver
suddenly applied brake and scooterist rammed into the tractor
from behind, the deceased was 20 years aged It was held that
since claimant himself had contributed to the accident, therefore
50% of the amount as assessed abated.
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19. In view of above discussion it can safely be held that accident
took place on 6.3.2016 was because of rash and negligent driving
of respondent No.1 while driving truck bearing registration
No.HR-55U-7567 as well as contributory negligence of driver of
canter vehicle No.HR-60C-0414 resulting into injuries to Bhim
Singh. Negligence between respondent No 1 (driver of truck
No.HR-55U-7567) and the driver of canter No.HR-60C-0414 is
apportioned in the ratio of 60:40 Both these issued are
accordingly decided in favour of the claimant and against the
respondents.
10. So far as the contention of the appellant/claimant that the finding of
contributory negligence attributed, is misconceived and unsupported by evidence is
concerned, this Court finds substantial merit in the said contention.
11. A perusal of the record reveals that learned Tribunal has proceeded on
erroneous premise. The finding of contributory negligence has been returned
primarily on the basis of statements of PW-1 Bhim Singh and PW-11 Bijender who
stated that the offending vehicle was standing in the middle of the road and on the.
The evidence of these witnesses, in fact, clearly establishes that the offending truck
was parked on the road without any warning indication or parking lights. It is
further evident from their testimony that the canter in which the claimant was
travelling collided with the stationary truck from behind. PW-1/claimant (Bhim
Singh) stated that he had noticed the parked truck from a distance of about 15
metres and that the driver of the canter applied brakes, but the vehicle skidded.
PW-11 (Bijender), on the other hand, stated that the driver of the vehicle in which
they were travelling did not apply brakes. On the basis of these statements, the
learned Tribunal concluded that the drivers of both vehicles were equally negligent
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and, therefore, attributed contributory negligence in the ratio of 60:40. The
aforesaid approach is legally untenable. The doctrine of contributory negligence
requires a specific inquiry into the conduct of the person and the manner in which
his own act or omission contributed to the occurrence of the accident. Contributory
negligence cannot be inferred vicariously from the alleged negligence of the driver
of the vehicle in which the claimant was travelling.
12. Even assuming that the drivers of both the offending vehicle and the
canter were negligent, the present case would fall within the realm of composite
negligence. The claimant, being a third-party passenger, cannot be held responsible
for or attributed with any contributory negligence.
13. In cases of composite negligence, the claimant is entitled to recover
the entire compensation from any one of the joint tortfeasors, and there exists no
legal basis for reducing the compensation on account of apportionment of
negligence between the drivers. The legal position in this regard stands settled by
the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan, (2008) 3 SCC 748
wherein it was held as under:
"6.Composite negligence refers to the negligence on the part of
two or more persons. Where a person is injured as a result of
negligence on the part of two or more wrongdoers, each wrongdoer
is jointly and severally liable to the injured for payment of the entire
damages, and the injured has the option of proceeding against all or
any of them. In such a case, the injured need not establish the extent
of responsibility of each wrong-doer separately, nor is it necessary
for the court to determine the extent of liability of each wrong-doer
separately. On the other hand where a person suffers injury, partly
due to the negligence on the part of another person or persons, and
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partly as a result of his own negligence, then the negligence of the
part of the injured which contributed to the accident is referred to as
his contributory negligence. Where the injured is guilty of some
negligence, his claim for damages is not defeated merely by reason of
the negligence on his part but the damages recoverable by him in
respect of the injuries stands reduced in proportion to his
contributory negligence. "
14. It is trite law that where contributory negligence is sought to be
attributed to a rider in a motor accident claim, the burden squarely lies upon the
party alleging such negligence to establish, by cogent and reliable evidence, that
some act or omission on the part of the rider contributed to the occurrence of the
accident. In the absence of such proof, no finding of contributory negligence can
be sustained against a rider merely on account of the manner in which the vehicle
was driven.
15. A further perusal of the award reveals that the driver of the offending
vehicle did not step into the witness box to depose regarding the manner in which
the accident occurred. The insurance company also failed to lead any evidence to
demonstrate that the driver of the vehicle in which claimant was travelling was
negligent in any manner.
16. This Court is, therefore, of the considered view that the learned
Tribunal committed a manifest error in granting the compensation in the ratio of
60% on the ground of alleged contributory negligence. The insurer, upon whom the
burden squarely rested, led no evidence to establish even remote negligence
attributable to the driver of the vehicle in which claimant was travelling.
Consequently, the finding of contributory negligence is unsustainable and is liable
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to be set aside, restoring the entitlement of the appellant/claimant to the full
measure of compensation as determined in accordance with law.
SETTLED LAW ON COMPENSATION
17. Hon'ble Supreme Court has settled the law regarding grant of
compensation with respect to the disability. The Apex Court in the case of Raj
Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343, has
held as under:-
General principles relating to compensation in injury cases
5. 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 Supreme Court 376, R.D. Hattangadi v. Pest Control (India)
Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467).
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6. 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.
xxx xxx xxx xxx
19. We may now summarise the principles discussed above :
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(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.
20. The assessment of loss of future earnings is explained below with
reference to the following
Illustration 'A' : The injured, a workman, was aged 30 years and
earning Rs. 3000/- per month at the time of accident. As per Doctor's
evidence, the permanent disability of the limb as a consequence of the
injury was 60% and the consequential permanent disability to the
person was quantified at 30%. The loss of earning capacity is
however assessed by the Tribunal as 15% on the basis of evidence,
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because the claimant is continued in employment, but in a lower
grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs. 36,000/-.
b) Loss of future earning per annum
(15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration 'B' : The injured was a driver aged 30 years, earning Rs.
3000/- per month. His hand is amputated and his permanent disability
is assessed at 60%. He was terminated from his job as he could no
longer drive. His chances of getting any other employment was bleak
and even if he got any job, the salary was likely to be a pittance. The
Tribunal therefore assessed his loss of future earning capacity as 75%.
Calculation of compensation will be as follows :
a) Annual income prior to the accident : Rs. 36,000/- .
b) Loss of future earning per annum
(75% of the prior annual income) : Rs. 27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-
Illustration 'C' : The injured was 25 years and a final year
Engineering student. As a result of the accident, he was in coma for
two months, his right hand was amputated and vision was affected.
The permanent disablement was assessed as 70%. As the injured was
incapacitated to pursue his chosen career and as he required the
assistance of a servant throughout his life, the loss of future earning
capacity was also assessed as 70%. The calculation of compensation
will be as follows :
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a) Minimum annual income he would
have got if had been employed as an
Engineer : Rs. 60,000/-
b) Loss of future earning per annum
(70% of the expected annual income) : Rs. 42000/-
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[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)].
18. Hon'ble Supreme Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under
Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following
aspects:-
(A) Deduction of personal and living expenses to determine
multiplicand;
(B) Selection of multiplier depending on age of deceased;
(C) Age of deceased on basis for applying multiplier;
(D) Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses, with escalation;
(E) Future prospects for all categories of persons and for different
ages: with permanent job; self-employed or fixed salary.
The relevant portion of the judgment is reproduced as under:-
"Therefore, we think it seemly to fix reasonable sums. It
seems to us that reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral expenses
should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively.
The principle of revisiting the said heads is an acceptable
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principle. But the revisit should not be fact-centric or quantum-
centric. We think that it would be condign that the amount that
we have quantified should be enhanced on percentage basis in
every three years and the enhancement should be at the rate of
10% in a span of three years. We are disposed to hold so
because that will bring in consistency in respect of those
heads."
19. Hon'ble Supreme Court in the case of Erudhaya Priya Vs. State
Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:-
" 7. There are three aspects which are required to be examined by us:
(a) the application of multiplier of '17' instead of '18';
The aforesaid increase of multiplier is sought on the basis of
age of the appellant as 23 years relying on the judgment in National
Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ
2700 (SC). In para 46 of the said judgment, the Constitution Bench
effectively affirmed the multiplier method to be used as mentioned in
the table in the case of Sarla Verma (Smt) and Others v. Delhi
Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age
group of 15-25 years, the multiplier has to be '18' along with factoring
in the extent of disability.
The aforesaid position is not really disputed by learned counsel
for the respondent State Corporation and, thus, we come to the
conclusion that the multiplier to be applied in the case of the
appellant has to be '18' and not '17'.
(b) Loss of earning capacity of the appellant with permanent
disability of 31.1%
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In respect of the aforesaid, the appellant has claimed
compensation on what is stated to be the settled principle set out in
Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep
Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract
below the principle set out in the Jagdish (supra) in para 8:
"8. In assessing the compensation payable the settled principles
need to be borne in mind. A victim who suffers a permanent or
temporary disability occasioned by an accident is entitled to the
award of compensation. The award of compensation must cover
among others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal life together
with its amenities;
(iv) Medical expenses including those that the victim may be
required to undertake in future; and
(v) Loss of expectation of life."
[emphasis supplied]
The aforesaid principle has also been emphasized in an earlier
judgment, i.e. the Sandeep Khanuja case (supra) opining that the
multiplier method was logically sound and legally well established to
quantify the loss of income as a result of death or permanent disability
suffered in an accident.
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:
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(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 femur
(vii) fracture both bones left leg
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 position even after treatment and
the nature of injuries itself show their extent. Further, it has
been opined in para 13 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.
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 61(iii), considering the age of the appellant, would be
50% of the actual salary in the present case.
(c) The third and the last aspect is the interest rate claimed as
12%
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In respect of the aforesaid, the appellant has watered
down the interest rate during the course of hearing to 9% in
view of the judicial pronouncements including in the Jagdish's
case (supra). On this aspect, once again, there was no serious
dispute raised by the learned counsel for the respondent once
the claim was confined to 9% in line with the interest rates
applied by this Court.
CONCLUSION
8. The result of the aforesaid is that relying on the settled
principles, the calculation of compensation by the appellant, as
set out in para 5 of the synopsis, would have to be adopted as
follows:
Heads Awarded
Loss of earning power Rs. 9,81,978/-
(Rs.14,648 x 12 x 31.1/100
Future prospects (50 per Rs.4,90,989/-
cent addition)
Medical expenses including Rs.18,46,864/-
transport charges,
nourishment, etc.
Loss of matrimonial Rs.5,00,000/-
prospects
Loss of comfort, loss of Rs.1,50,000/-
amenities and mental agony
Pain and suffering Rs.2,00,000/-
Total Rs.41,69,831/-
The appellant would, thus, be entitled to the compensation of
Rs. 41,69,831/- as claimed along with simple interest at the rate of 9%
per annum from the date of application till the date of payment.
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20. So far as the compensation awarded to the claimant Bhim Singh on
account of permanent disability is concerned, the findings recorded by the Tribunal
warrant interference.
21. The claimant (PW-1), in his affidavit Ex. PW1/A, asserted that he is
totally bedridden, has suffered 100% disability, and would remain confined to bed
for the rest of his life. However, these assertions are not substantiated by the
medical evidence on record.
22. PW-9 Dr. Pankaj Aggarwal, Senior Medical Officer, General Hospital,
Gurugram, a member of the Medical Board, deposed that the claimant suffered
amputation of the left lower limb at the knee level and that the permanent disability
was assessed at 75%, as reflected in disability certificate Ex. P-13. In his cross-
examination, PW-9 categorically admitted that the disability assessed was in
relation to the affected limb and not qua the whole body.
23. Further, PW-6 Amit Godara, HR Executive of Gati Kintetsu Express
Pvt. Ltd., stated in his cross-examination that the claimant did not suffer any loss
of salary from March 2016 onwards and continues to be in service with the said
company. This evidence materially contradicts the claimant's plea of total
incapacity.
24. The evidence on record, therefore, establishes that the claimant has
suffered 75% permanent physical disability in respect of the left lower limb and
not total disablement of the body as claimed.
25. It is trite law that, for the purposes of awarding compensation under
the Motor Vehicles Act, 1988, the medical assessment of permanent disability is
not decisive. What is required to be assessed is the functional disability, namely,
the extent to which the injury has impaired the earning capacity of the claimant.
The Hon'ble Supreme Court in Jitendra v. Sadiya, 2025 INSC 166, has reiterated
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that functional disability, and not the percentage of permanent physical disability,
governs the determination of just compensation. The relevant portion of the same
is reproduced as under:-
9. Yet dissatisfied, the Claimant-Appellant is now before us. The
significant points of challenge are as follows:
a. As per the certificate issued by PW2, he has suffered
60% permanent disability, leading to 100% functional
disability as he is unable to undertake his occupation as
a labourer.
b. His income should be ascertained more than
Rs.5000/-, as the minimum wage itself was Rs.6,850/- in
2016.
10. We have heard the learned counsel for the Appellant. We are unable
to agree with the view taken by the Tribunal and High Court on the
income of the Appellant and the functional disability suffered by him. At
the outset, we must refer to the exposition of this Court in Gurpreet Kaur
and Ors. v. United India Insurance Company Ltd. and Ors.1, wherein it
was stated the notifications under the Minimum Wages Act can be a
guiding factor in cases where there is no evidence available to evaluate
monthly income.
11. Adverting to the facts at hand, the minimum wage prevalent in the
area for unskilled workers was Rs.6850/-, annexed as Annexure P1. In
view of the above exposition of this Court, we are inclined to accept this
submission of the Appellant.
On the aspect of his functional disability, this Court recognises that due
to the amputation of his right hand, his ability to work as a labourer
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would be significantly hampered. Therefore, in the interest of justice, we
deem it appropriate to increase the percentage of functional disability to
80%."
26. In the present case, the disability is limb-specific and the claimant
continues to be gainfully employed without any loss of salary. Nevertheless,
having regard to the nature of injury, amputation of the left lower limb at the knee
level and the inevitable impact on mobility, efficiency, and future earning
prospects, the functional disability cannot be assessed at a negligible level.
27. Considering the totality of the circumstances, this Court finds that the
assessment of functional disability at 30% does not adequately reflect the
impairment suffered by the claimant. At the same time, equating the functional
disability with the limb disability would be excessive and unwarranted in the facts
of the case.
28. Accordingly, in order to balance the competing considerations and to
secure the ends of justice, the functional disability of the claimant is reassessed at
50% for the purposes of computation of compensation.
29. A perusal of the award further reveals that no amount of compensation
has been awarded by the learned Tribunal for future prospects and future medical
treatment.
30. So far as compensation towards pain and suffering is concerned, the
Hon'ble Apex Court in K.S Muralidhar Vs. R. Subbulakshmi and another,
2024 INSC 886 held as under:-
"12. It is to be noted that both the Tribunal and the High Court
have taken the disability suffered by the claimant-appellant to be
at 100%. We find no ground to take a different view.
13. While acknowledging that `pain and suffering', as a concept
escapes definition, we may only refer to certain authorities,
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scholarly as also judicial wherein attempts have been made to set
down the contours thereof.
13.1 The entry recording the term `pain and suffering' in P.
Ramanatha Iyer's Advanced Law Lexicon[9] reads as under:-
"Pain and suffering. The term `Pain and suffering'
mean physical discomfort and distress and include
mental and emotional trauma for which damages can be
recovered in an accident claim.
This expression has become almost a term of art, used
without making fine distinction between pain and
suffering. Pain and suffering which a person undergoes
cannot be measured in terms of money by any
mathematical calculation. Hence the Court awards a
sum which is in the nature of a conventional award
[Mediana, The (1900) AC 113, 116]"
13.2 Eric Cassell[10], an American Physician and Bioethicist,
defines `pain' not only as a sensation but also `as experience
embedded in beliefs about causes and diseases and their
consequences', and `suffering' as `the state of severe distress
associated with events that threaten the intactness of person'.
13.3 In a recent article[11] published in the journal of the
International Association for the Study of Pain, it has been
recorded that there is no consensus on what exactly the concept
of pain-related suffering includes, and it is often not precisely
operationalised in empirical studies. The authors in their
systematic review analysed 111 articles across a variety of
disciplines such as bioethics, medical ethics, psycho-oncology,
anaesthesiology, philosophy, sociology etc., we may refer to few
of them:
13.3.1 Eugene V. Boisaubin[12], who is currently a Professor at
the University of Texas, at Houston, in a 1989 article defined it
as "Suffering is experienced by individual and arises from
threats to the integrity of the individual as a complex social and
psychological entity."
13.3.2 Andrew Edgar, who is currently a Reader Emeritus in
Philosophy at Cardiff University at UK has defined, in a 2007
article suffering as an "experience of life never getting better,
revealing in the sufferer only vulnerability, futility, and
impotence."
13.3.3 Arthur W. Frank[13], Professor Emeritus, Department
of Sociology, University of Calgary in his well-known article
"Can We Research Suffering?", published in 2001, observed
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that "at the core of suffering is the sense that something is
irreparably wrong with our lives, and wrong is the negation of
what could have been right. Suffering resists definition because
it is the reality of what is not."
13.3.4 Daryl Pullman[14] who currently serves as University
research Professor, Bioethics at the Memorial University of
Newfoundland, Canada in his 2002 article defined suffering as
the "product of [physical], psychological, economic, or other
factors that frustrate an individual in the pursuit of significant
life projects."
13.4 The Judicial Studies Board, now known as the Judicial
College in the United Kingdom, produced guidelines in 1992 to
produce greater consistency of awards and make the judicial
scale of values more easily accessible. They have been deduced
from a study of past cases, examining the range of awards
therein. The latest edition of these guidelines was published in
2021[15]. They record the difficulty of computing `pain and
suffering' as under :-
[15 See : Hassam and Anr. v. Rabot and Anr. (2024) UKSC 11]
"It is widely accepted that making of an award of
general damages for pain and suffering is a somewhat
artificial task. It involves the Judge seeking to convert
the pain and suffering of a given claimant into a
monetary award which he or she considers to be
reasonable by way of compensation. That is a difficult
task and one which has historically led to judges
making widely varying awards of damages in respect of
relatively comparable injuries a result which not only
offends the principle of equality before law but results
in unnecessary appeals and the incurring of additional
cost, apart altogether from the burden that such
appeals place on the Court's own scarce resources."
13.5 In determining non-pecuniary damages, the artificial
nature of computing compensation has been highlighted in Heil
v. Rankin [2001] QB 272, as referred to in Attorney General
of St. Helena v. AB & Ors. Privy Council Appeal No. 0034 of
2018 as under:-
"23. This principle of `full compensation' applies to
pecuniary and non-pecuniary damage alike. But, as
Dickson J indicated in the passage cited from his
judgment in Andrews v. Grand & Toy Alberta Ltd, 83
DLR (3d) 452, 475-476, this statement immediately
raises a problem in a situation where what is in issue
is what the appropriate level of `full compensation'
for non-pecuniary injury is when the compensation
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has to be expressed in pecuniary terms. There is no
simple formula for converting the pain and suffering,
the loss of function, the loss of amenity and disability
which an injured person has sustained, into monetary
terms. Any process of conversion must be essentially
artificial. Lord Pearce expressed it well in H West &
Son Ltd v. Shephard [1964] AC 326, 364 when he
said:
`The court has to perform the difficult and artificial
task of converting into monetary damages the
physical injury and deprivation and pain and to give
judgment for what it considers to be a reasonable
sum. It does not look beyond the judgment to the
spending of the damages.'
24. The last part of this statement is undoubtedly
right. The injured person may not even be in a
position to enjoy the damages he receives because of
the injury which he has sustained. Lord Clyde
recognised this in Wells v. Wells [1999] 1 AC 345,
394H when he said: `One clear principle is that what
the successful plaintiff will in the event actually do
with the award is irrelevant."
13.6 In the context of the United States, the most important
piece of legal literature regarding `pain and suffering' is an
article titled Valuing Life and Limb in Tort: Scheduling Pain
and Suffering, published in the year 1989. Relevant extracts
thereof read as under :
"Pain and suffering and other intangible or non-
economic losses are even more problematic. Physical
pain and attendant suffering have for centuries being
recognised as legitimate elements of damages, and
"modern" tort law has seen a marked expansion of the
rights to recover for forms of mental anguish. Some
Courts have even permitted recovery for emotional
trauma unaccompanied by physical injury, including
derivative losses stemming from injuries to family
members. The precise elements of compensable non-
economic loss vary by jurisdiction. Pain and suffering
may be used as a catch-all category for the jury's
consideration of all non-pecuniary losses in a case of
a nonfatal injury, subsuming other qualitative
categories such as mental anguish and humiliation.
More commonly, though, other non-economic elements
- such as "loss of enjoyment of life" are accorded
independent standing ..."
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Another important observation is that:
"Whatever the categories of non-economic damages
allowed in a given jurisdiction, the law provides no
objective benchmarks valuing them. As one
commentator notes, "Courts have usually been content
to say that pain and suffering damages should amount
to `fair compensation', or a `reasonable amount',
`without any definite guide'."
13.7 Consideration of the above, underlines that while each
discipline has its own conception of the meaning of
pain/suffering, within its confines, the commonality that
emerges is that a person's understanding of oneself is shaken
or compromised at its very root at the hands of consistent
suffering. In the present facts, it is unquestionable that the
sense of something being irreparably wrong in life, as spoken
by Frank (supra); vulnerability and futility, as spoken by
Edgar, is present and such a feeling will be present for the
remainder of his natural life.
14. In respect of `pain and suffering' in cases where disability
suffered is at 100%, we may notice a few decisions of this
Court:-
14.1 In R.D Hattangadi v. Pest Control (India) (P) Ltd. (1995)
1 SCC 551. It was observed :
"17. The claim under Sl. No. 16 for `pain and
suffering' and for loss of amenities of life under Sl.
No. 17, are claims for non-pecuniary loss. The
appellant has claimed lump sum amount of
Rs.3,00,000 each under the two heads. The High
Court has allowed Rs.1,00,000 against the claims of
Rs.6,00,000. When compensation is to be awarded for
`pain and suffering' and loss of amenity of life, the
special circumstances of the claimant have to be
taken into account including his age, the unusual
deprivation he has suffered, the effect thereof on his
future life. The amount of compensation for non-
pecuniary loss is not easy to determine but the award
must reflect that different circumstances have been
taken into consideration. According to us, as the
appellant was an advocate having good practice in
different courts and as because of the accident he has
been crippled and can move only on wheelchair, the
High Court should have allowed an amount of
Rs.1,50,000 in respect of claim for `pain and
suffering' and Rs.1,50,000 in respect of loss of
amenities of life. We direct payment of Rs.3,00,000
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(Rupees three lakhs only) against the claim of
Rs.6,00,000 under the heads "`pain and suffering'"
and "Loss of amenities of life".
(Emphasis Supplied)
14.2 This Judgment was recently referred to by this Court
in Sidram v. United India Insurance Company Ltd. (2023) 3
SCC 439 reference was also made to Karnataka SRTC v.
Mahadeva Shetty (2003) 7 SCC 197 (irrespective of the
percentage of disability incurred, the observations are
instructive), wherein it was observed :
"18. A person not only suffers injuries on account of
accident but also suffers in mind and body on
account of the accident through out his life and a
feeling is developed that his no more a normal man
and cannot enjoy the amenities of life as another
normal person can. While fixing compensation for
pain and suffering as also for loss of amenities,
features like his age, marital status and unusual
deprivation he has undertaken in his life have to be
reckoned."
14.3 In Kajal v. Jagdish Chand (2020) 4 SCC 413 considering
the facts of the case, i.e., 100% disability, child being
bedridden for life, her mental age being that of a nine-month-
old for life - a vegetative existence, held that "even after taking
a conservative view of the matter an amount payable for the
`pain and suffering' of this child should be at least
Rs.15,00,000/-."
14.4 In Ayush v. Reliance General Insurance (2022) 7 SCC
738 relying on Kajal (supra) the amount awarded in `pain and
suffering' was enhanced to Rs.10,00,000. The child who had
suffered the accident was five years old and the Court noted in
paragraph 2 that :
"As per the discharge certificate, the appellant is not
able to move both his legs and had complete sensory
loss in the legs, urinary incontinence, bowel
constipation and bed sores. The appellant was aged
about 5 years as on the date of the accident, hence
has lost his childhood and is dependent on others for
his routine work."
14.5 In Lalan (supra) cited by the claimant-appellant, the
Tribunal awarded Rs.30,000/- which was enhanced to
Rs.40,000/- by the High Court . Considering the fact that the
appellant therein has suffered extensive brain injury awarded
compensation under `pain and suffering' to the tune of
Rs.3,00,000/-.
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15. Keeping in view the above-referred judgment, the injuries
suffered, the 'pain and suffering' caused, and the life-long
nature of the disability afflicted upon the claimant-appellant,
and the statement of the Doctor as reproduced above, we find
the request of the claimant-appellant to be justified and as
such, award Rs.15,00,000/- under the head 'pain and
suffering', fully conscious of the fact that the prayer of the
claimant-appellant for enhancement of compensation was 22
(2022) 7 SCC 738 15| SLP (C) NO. 18337 OF 2021 by a sum
of Rs. 10,00,000/-, we find the compensation to be just, fair
and reasonable at the amount so awarded.
43. Further, the Hon'ble Supreme Court in the case of Baby
Sakshi Greola Vs. Manzoor Ahmad Simon and anothers, 2025(1) RCR
(Civil) 238, where the injured was a female child aged 7 years and had
suffered grievous injuries, learned Tribunal awarded Rs.50,000/-towards
pain and suffering, but the same was enhanced by the Hon'ble High
Court to Rs. 12,00,000/-. When the matter reached to the Hon'ble Apex
Court, the same was enhanced to Rs. 15,00,000/-.
44. In view of the settled law by Hon'ble Apex Court, since in
the present case as well, the disability is 100% by applying the same
parameters a compensation of Rs.15 lakhs is hereby awarded to the
appellant-claimant towards pain and sufferings.
31. In view of the above referred to judgment and considering that
appellant/claimant has suffered 75% physical disability as depicted from Ex P13
and that he remained admitted in hospital for almost 01 month and facts and
circumstances of the present case, this Court deems it appropriate to grant
compensation of three lakhs under the heads of pain and suffering.
32. A perusal of the award further reveals that nothing has been awarded
for attendant charges, loss of amenities of life, medical expenses for future
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treatment. Moreover, the amount awarded for transportation charges, special diet is
on the lower side and the same is liable to be enhanced. Therefore, the award
requires indulgence of this Court.
CONCLUSION
33. In view of the above, the present appeal is allowed and award dated
15.07.2017 is modified. Accordingly, as per the settled principles of law as laid
down by Hon'ble Supreme Court as mentioned above, the appellant-claimant is
held entitled to the enhanced amount of compensation as calculated below:-
Income Rs.30000/- per month
Loss of Future Prospect 40% Rs.12000/-(30000X40%)
Annual Income Rs.5,04,000/- (42000 X12)
Loss of future earning on account of 50% Rs.2,52,000/- (50% of 504000)
disability
Multiplier of 15 Rs.37,80,000/- (252000X15)
Medical Expenses Rs.17,64,657/-
Pain and suffering Rs.3,00,000/-
Attendant Charges Rs.1,00,000/-
Transportation Charges Rs.50,000/-
Loss of amenities of life Rs.1,00,000/-
Special Diet Rs.30,000/-
Loss of earning during period of treatment Rs.40,000/-
Medical expenses for future treatment Rs.60,000/-
Total compensation awarded:- Rs.62,24,657/-
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Deduction:-
Amount awarded by Tribunal Rs.20,88,000/-
Enhanced amount of compensation Rs.41,36,657/- ( 6224657- 2088000)
34. So far as the interest part is concerned, as held by Hon'ble Supreme
Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176
and R.Valli and Others VS. Tamil Nadu State Transport Corporation (2022) 5
Supreme Court Cases 107, the appellant/claimant is granted the interest @ 9%
per annum on the enhanced amount from the date of filing of claim petition till the
date of its realization.
35. Respondent No.3-Insurance Company is directed to deposit the
enhanced amount of compensation along with interest with the Tribunal within a
period of two months from the date of receipt of copy of this judgment. The
Tribunal is further directed to disburse the enhanced amount of compensation
along with interest in the account of the appellant/claimant. The appellant/claimant
is directed to furnish his bank account details to the Tribunal.
36. Pending application(s), if any, also stand disposed of.
(SUDEEPTI SHARMA)
JUDGE
18.12.2025
Gaurav Arora
Whether speaking/non-speaking : Yes
Whether reportable : Yes
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