Punjab-Haryana High Court
Prtc & Another vs Karnail Singh & Another on 7 April, 2014
Author: Anita Chaudhry
Bench: Anita Chaudhry
FAO No.229 of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision:07.04.2014
FAO No.229 of 2008 (O&M)
PRTC & another .... Appellant
versus
Karnail Singh & another .... Respondents
FAO No.404 of 2008 (O&M)
Karnail Singh .... Appellant
versus
PRTC & others .... Respondents
CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY
Present: Mr. Nikunj Dhawan, Advocate for
Mr. Harsh Aggarwal, Advocate
for the appellants in FAO No.229 of 2008 and
for the respondents in FAO No.404 of 2008.
Mr. Ashwani Arora, Advocate
for the respondents in FAO No.229 of 2008 and
for the appellant in FAO No.404 of 2008.
*****
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Anita Chaudhry, J.(Oral)
These are two appeals one preferred by the owner of the offending bus seeking their discharge from liability of payment of compensation while another appeal has been preferred by the claimants seeking enhancement of compensation awarded vide award dated 17.09.2007 passed by the Motor Accident Claims Tribunal, Chandigarh.
Bura Sonia 2014.04.24 12:37 I attest to the accuracy and integrity of this document chandigarh FAO No.229 of 2008 (O&M) -2-
Karnail Singh was a conductor with Pepsu Road Transport Corporation. On the fateful day, he was travelling in bus No.PB-11-N-0773 from Chandigarh to Pathankot. The bus was driven by respondent No.2. At 5.00 pm, when the bus reached Majari Bus Stand on the Balachauar - Hoshiarpur road, the driver could not control the bus and struck against the tractor trolley going ahead. The lady who was sitting on the front seat sustained grevious injuries and died. The iron pipes carried in the tractor trolley broke the front glass of the bus and had injured the passengers. Karnail singh also suffered grevious injuries resulting in amputation of his right leg. Karnail Singh was 51 years old at the time of accident and was drawing the salary of Rs.12,000/- per month. He had claimed that he had spent Rs.50,000/- on his treatment.
The Tribunal had awarded following compensation on the following heads:
Sr. Name of head Amount in
No. rupees
1 Compensation for loss of leave 61,488/-
2 Actual medical expenses 38,739/-
Compensation for pain and suffering and 40,000/-
3 loss of enjoyment of life
Compensation for special diet and 15,000/-
4 transportation
5 General damage for 80% permanent 2,00,000/-
disability and for loss of promotion
prospects
Total 3,55,227/-
Rounded off to Rs.3,55,300/-
The Tribunal had noted that there was no loss of earning capacity due to disability as he was still continuing in the job and there was no reduction in salary. The plea raised by the respondent that the Bura Sonia 2014.04.24 12:37 I attest to the accuracy and integrity of this document chandigarh FAO No.229 of 2008 (O&M) -3- claimant was a gratuitous passenger was rejected and the claim was partly allowed.
The argument put-forth on behalf of the PRTC is that Karnail Singh was travelling as a gratuitous passenger and he was not a conductor in this bus and was not holding a ticket and there is an admission in this regard and they should be discharged of their liability. It was urged that the claimant was still in service and was drawing the same salary and was not entitled to any enhancement. It was also urged that the claim under the Motor Vehicles Act, 1988 was not maintainable.
The argument on the other hand was that it was a case of amputation and the disability was assessed at 80% and the claimant had been operated twice and adequate compensation had not been allowed. It was urged that besides the loss of amenities, the claimant was also entitled to compensation on account of permanent disability in addition to the amount awarded under the head of loss of earning capacity. It was urged that in the case of amputation, the claimant has to forego the personal comfort and has to depend on others and there is difficulty experienced in day-to-day life and there should be a distinct head for compensation for loss of enjoyment of life. Reliance was placed upon K. Suresh vs. New India Assurance Co. Ltd. & another, 2012 STPL (Web) 622 SC, B.Kothandapani versus Tamil Nadu State Transport Corporation Ltd., 2011 STPL (Web) 493 SC and Surjit Singh vs. Major Singh (FAO No.1810 of 1995) decided on 13.05.2013.
So far as the appeal preferred by PRTC is concerned, the Tribunal had considered the arguments and had rightly rejected their Bura Sonia 2014.04.24 12:37 I attest to the accuracy and integrity of this document chandigarh FAO No.229 of 2008 (O&M) -4- plea. Karnail Singh was entitled to travel free in the PRTC bus though he was not on duty on that bus. He was not supposed to buy the ticket. This plea was not available to the Corporation. The argument was misplaced.
Now coming to the appeal filed by the claimant, I find that the claimant had produced a salary certificate according to which, his monthly salary was Rs.10,984/-. The Tribunal had made the calculations after reducing the amount by Rs.2,200/- per month, which should not have been made and the compensation should have been awarded on the total income. The Hon'ble Apex Court in Raj Kumar vs. Ajay Kumar, 2011(1) SCC 343 had detailed out how the amount is to be awarded in cases of disabilities and the heads under, which compensation should be awarded. It was observed that where a person suffers 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. It was observed that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity and it is the functional disability which has to be considered for calculating the compensation.
Firstly, it has to be decided whether the disablement was permanent or temporary and whether the disablement is with reference to a specific limb. It would be relevant to reproduce para 10 of the judgment, which reads as under:
"Ascertainment of the effect of the permanent disability on the actual earning capacity Bura Sonia 2014.04.24 12:37 I attest to the accuracy and integrity of this document chandigarh FAO No.229 of 2008 (O&M) -5- involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his Bura Sonia 2014.04.24 12:37 I attest to the accuracy and integrity of this document chandigarh FAO No.229 of 2008 (O&M) -6- hand. Sometimes, the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
In the present case, the Medical officer had assessed the disability at 80%, which is of the entire body. I would take the functional disability to be 50% and the monthly loss would be Rs.5,492/- and the annual loss would be Rs.65,904/- and after applying the multiplier of 11, the compensation would come to Rs.7,24,944/-. The Tribunal had awarded compensation of Rs.2 lacs on account of permanent disability and after deducting the same, the additional compensation payable on this head would be Rs.5,24,944/-. In addition to this, I would add Rs.1 lac on account of loss of amenities/enjoyment of life, which has a permanent effect due to the nature of injuries and the ordeal, which he will have to undergo. The Tribunal had awarded just compensation on other heads. Thus, the Bura Sonia 2014.04.24 12:37 I attest to the accuracy and integrity of this document chandigarh FAO No.229 of 2008 (O&M) -7- claimant is entitled to enhancement of Rs.6,24,944/- and it shall be payable with interest @6% from the date of filing of petition till realization.
The award is modified to the above extent and the appeal filed by the PRTC is dismissed while the appeal preferred by Karnail Singh is allowed to the above extent.
(Anita Chaudhry) Judge 07.04.2014 sonia Bura Sonia 2014.04.24 12:37 I attest to the accuracy and integrity of this document chandigarh