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(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,
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 :
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
authenticity of this order/judgment.
FAO-8659-2014 (O&M)
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)].
7. 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
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."
8. 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
authenticity of this order/judgment.
FAO-8659-2014 (O&M)
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%
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:
(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
authenticity of this order/judgment.
FAO-8659-2014 (O&M)
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%
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 cent Rs.4,90,989/-
addition)
Medical expenses including Rs.18,46,864/-
transport charges,
nourishment, etc.
Loss of matrimonial prospects Rs.5,00,000/-
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/-
authenticity of this order/judgment.
FAO-8659-2014 (O&M)
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.
9. A perusal of the award reveals that the appellant/claimant was stated
to be 45 years old at the time of the accident. However, learned Tribunal has not
applied the multiplier system in calculating the compensation. Furthermore, the
learned Tribunal erred in not calculating loss of earning due to the disability.
Therefore, this Court deems it fit to assess income on the basis of Schedule II of
the Motor Vehicles Act, 1988, which comes to Rs.3,300/- per month.
10. A further perusal of the award reveals that the claimant/appellant had
suffered multiple injuries and fractures in the accident on his person, to
substantiate the same certificate Ex.C-1 was placed on record , which shows the
permanent disability of 30%, furthermore CW-1 Dr. Minakshi Garg, Eye Surgeon,
Civil Hospital, Bathinda has been examined, who proved the disability certificate
of the appellant/claimant.
11. Furthermore, learned Tribunal has rightly taken into consideration the
medical bills of the claimant/appellant and rightly awarded the compensation to
the tune of Rs.03,47,192/- by placing reliance upon Oriental Insurance Company
Ltd. Vs. Gurdev Singh and Others, 2013(2) RCR(Civil) 611. Therefore, no
interference of this Court is required under this regard.
12. This Court further put reliance on the judgment of this Court in
Gurdev Singh's case (supra), in which this Court has held that the Court can go
beyond the Schedule II of the Motor Vehicles Act, 1988 to provide the just and
needful compensation to the claimant/appellant. The relevant paras of the same
are reproduced as under:-
authenticity of this order/judgment.
FAO-8659-2014 (O&M)
"15. There is still another reason as to why the provisions of
2nd Schedule may prove to be inadequate in certain situations,
while assessing fair compensation in injury cases. For
example, a person suffers a head injury in a motor vehicular
accident and as a result of such injury, he losses effective
control over his legs and/or hands though strictly speaking,
there is no disability in the legs or hands of the claimant. In
such a situation, reference to the Schedule of the Workmen
Compensation Act for assessing the loss of earning
capacity/disability will prove to be futile in as much as the
Schedule of said Act does not mention head injury at all. In
such a situation, is the claimant left with no remedy even
though he has suffered grievous injuries in the accident?
Obviously, law cannot and should not fail a genuine claimant
and hence, judicial interpretation assumes utmost significance.
16. Accordingly, even in cases filed under section 163A of the
Motor Vehicle Act, where the claimant has been injured e.g.
amputation of leg in the present case, the Courts can go
beyond the pre-set limit of L 15000 for medical expenses
imposed by 2nd schedule. Medical expenses would not only be
restricted to immediate and urgent medical attention as such
an interpretation would be restrictive/retroactive and not in
consonance with the spirit of the welfare legislation. Medical
expenses must include, keeping in mind the nature of injury
suffered, provision for all such expenses as have to be
reasonably incurred or can be expected to be incurred to
enable the injured claimant to stand back on his feet and lead a
normal life, wherein, he can not only go about his daily
personal routine but also lead a productive life so as to be able
to support himself and/or his dependent family members
financially, physically as well as psychologically. Suffice to say
that such a right of the injured claimant is a right to live with
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dignity, a right which is implicit in Article 21 of the
Constitution of India."
13. A further perusal of the award reveals that no amount has been
awarded towards future prospects, which is contrary to the judgment of Apex
Court. With regard to grant of future prospects in a claim petition filed under
Section 163-A of the Motor Vehicles Act, 1988, reference can be made to the
judgment of the Apex Court Mohd. Sabeer @ Shabir Hussain vs. Regional
Manager, U.P. State Road Transport Corporation, 2023 (1) R.C.R (Civil) 349
wherein Hon'ble the Supreme Court has held as under:-
"18. It is a well settled position of law that in cases of
permanent disablement caused by a motor accident, the claimant is
entitled to not just future loss of income, but also future prospects. It
has been reiterated by this Court in multiple instances that "just
compensation" must be interpreted in such a manner as to place the
claimant in the same position as he was before the accident took
place."
14. In view of the above judgment, future prospects of 40% is to be made
while calculating the compensation.
15. A further perusal of the record shows that the learned Tribunal has
awarded the compensation on the lower side to the claimant under the heads of
pain and suffering, which is required to be enhanced.
16. It is trite that permanent disability suffered by an individual not only
impairs his cognitive abilities and his physical facilities, but there are multiple
non-quantifiable implications for the victim. Further, the very fact that healthy
person turns into invalid being deprived of normal companionship and incapable
authenticity of this order/judgment.
FAO-8659-2014 (O&M)
of leading a productive life makes one suffer loss of dignity. As per the facts of the
case the claimant suffered multiple and grievous injuries on his person. Due to the
accident, the appellant/claimant has suffered various injuries and fractures due to
which permanent disability on the right eye of 30% has occurred for which
disability certificate (Ex.C-1) was placed on record. Furthermore, (CW-1) Dr.
Minakshi Garg, Eye Surgeon, Civil Hospital, Bathinda was also examined to
prove the disability certificate. This fairly concludes the fact that the claimant
have suffered immense amount of pain and agony due to the accident in question.
17. The Hon'ble Apex Court in the case of 'KS Muralidhar versus R
Subbulakshmi and another 2024 INSC 886 highlighted the intangible but
devastating consequence of pain and suffering. The relevant portion of the same is
reproduce as under:-
"15. Keeping in view the above-referred judgments, 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 by a
sum of Rs. 10,00,000/-, we find the compensation to be just,
fair and reasonable at the amount so awarded."
authenticity of this order/judgment.
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18. Therefore, in view of the above judgment and facts and
circumstances of the present case, this Court deems it appropriate to grant
compensation of 1 lakh under the heads of pain and suffering.
19. A further perusal of the award reveals that learned Tribunal has
awarded meager amount under the heads of special diet and transportation charges
and attendant charges. Therefore, the award requires indulgence of this Court.
RELIEF
20. In view of the above, the present appeal is allowed and award dated
05.07.2014 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:-
Sr. No. Heads Compensation Awarded
1 Income Rs.3,300/-
2 Loss of future prospects (40%) Rs.1,320/-
(40% of Rs.3300/-)
3 Annual Income Rs.55,440/-
(Rs.4620/- X 12)
4 Loss of future earning on Rs.16,632/-
account of 30% permanent (Rs.55,440/- X 30%)
disability
5 Multiplier of 15 Rs.2,49,480/-
(Rs. 16,632 /-X 15)
6 Medical Expenses Rs.3,47,192/-
7 Pain and suffering Rs.1,00,000/-
8 Attendant Charges Rs.30,000/-
9 Transportation Charges Rs.20,000/-
10 Special Diet Rs.20,000/-
11 Total compensation awarded:- Rs.7,66,672/-
authenticity of this order/judgment.
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12 Deduction:- Rs.4,25,000/-
Amount awarded by Tribunal
13 Enhanced amount of Rs.3,41,672/-
compensation (7,66,672 - 4,25,000)
21. 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 amount so calculated shall carry an interest @ 9%
per annum from the date of filing of the claim petition, till the date of realization.
22. Respondent No.2-Insurance Company is directed to deposit the
enhanced amount 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 directed
to disburse the enhanced amount of compensation along with interest to the
appellant-claimant.
23. Respondent No.2-Insurance Company is hereby directed to disburse
the current scheduled fee to Mr. R.C. Kapoor, Advocate, within a period of 20
days from the date of receipt of the copy of this judgment, in view of the order
dated 18.07.2024 passed in FAO No.1682 of 2007 by this Court.
24. Pending application(s), if any, also stand disposed of.
.
17.04.2026 (SUDEEPTI SHARMA)
Ayub/Saahil JUDGE
Whether speaking/non-speaking : Speaking
Whether reportable : Yes/No
authenticity of this order/judgment.
