Gujarat High Court
Yogeshkumar Badharsinh Baria vs Dilipkumar Ranchhodbhai Damor on 8 September, 2025
NEUTRAL CITATION
C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4321 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE --Sd/-
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Approved for Reporting
Yes No
✔
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YOGESHKUMAR BADHARSINH BARIA
Versus
DILIPKUMAR RANCHHODBHAI DAMOR & ANR.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 08/09/2025
ORAL JUDGMENT
1. Heard Mr. Nishit Bhalodi, learned advocate for the appellant - original claimant.
2. The notice for final disposal is reported to have been duly served upon the respondents, however, no appearance has been entered. Noticing the limited issue involved, the present appeal is taken-up for hearing in absence of the Page 1 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined respondents.
3. The present appeal is filed under Section 173 of the Motor Vehicles Act, 1988 at the instance of the original claimant praying for enhancement of the amount of compensation to the tune of Rs.5,00,000/- as against the award amount of Rs.4,68,600/- awarded by the Motor Accident Claims Tribunal (Auxi.) & 6 th Addl. District Judge, Panchmahals at Godhra vide judgment and award dated 8 th February, 2023 passed in MACP no.695 of 2016 with proportionate costs and interest at the rate of 9% per annum from the date of filing of claim petition till its actual realization.
4. Learned advocate for the appellant has assailed the impugned judgment and award confining it to the quantum of compensation being determined on the lower side. It is submitted that the applicant has successfully established before the Tribunal that he was engaged as skilled worker attending masonry work and centering work and was also additionally earning income by attending agriculture activities. Learned advocate had fairly pointed-out that Page 2 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined though in the claim petition the income of the applicant was stated as Rs.6,000/- per month, and before the Tribunal it was confined to Rs.4,000/- per month, however, considering the standard rates prescribed under the Minimum Wages Act, prevailing at the relevant point of time, the Tribunal ought to have considered amount of Rs.7,800/- per month as the income of the applicant, more particularly when the legislation imposes obligation upon the Courts to determine just and proper compensation in the facts of each case. Learned advocate had further pointed-out that the Tribunal has not considered the additional income of future prospects while considering the compensation under the head of loss of future prospects. The reliance was placed on the decision of the Hon'ble Supreme Court in case of National Insurance Company Ltd., Vs. Pranay Shethi and others reported in (2017) 16 SCC 680. He has therefore urged this Court to consider 40% towards additional income of the applicant while determining the amount of compensation under the head of loss of future prospect is concerned. It was further submitted that the disability certificate of the original claimant has been produced on record at Exh.38 along with the injury certificate produced on record at Exh.39, wherein it Page 3 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined has clearly transpired that the applicant had suffered amputation of right leg below knee.
4.1 Referring to the aforesaid documents, learned advocate had further relied upon the affidavit of Dr. Jayesh Patel, who has been examined as witness at Exh.49 before the Tribunal. According to the learned advocate, upon overall appreciation of the aforesaid medical evidence brought on record, the Tribunal ought to have considered awarding an amount of compensation under the head of pain, shock and suffering, on the higher side. It is further submitted that looking at the serious injuries sustained and the employment of the applicant, the Tribunal ought to have considered functional disability while considering the amount of compensation under the head of future prospects. He has therefore urged this Court to allow the present appeal and to modify the impugned judgment and award by enhancing the amount of compensation to the tune of Rs.5,00,000/-, which may be awarded with proportionate costs and interest.
5. Considering the aforesaid submissions of the learned advocate for the appellant in light of the findings and reasons Page 4 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined assigned by the Tribunal, the only question which falls for consideration of this Court in the present appeal is as to whether the Tribunal has committed any error in awarding amount of compensation in the facts of the case and the evidence brought on record?
6. I have carefully considered the findings and reasons assigned by the Tribunal while determining the issue of quantum of compensation in light of the original record and proceedings placed for consideration. Indisputably, in absence of any challenge being made by the respective parties on record on the other issues of negligence and liability, the same has attained finality. The foundational facts has also remained uncontroverted. It is an undisputed fact that the applicant has sustained permanent disability because of the accidental injuries caused due to rash and negligent driving of the respondent no.1. The bare appreciation of the injury certificate produced on record at Exh.39 and the disability certificate produced at Exh.38, it is evident that the applicant has sustained amputation of his right leg below the knee. The disability certificate produced on record by the Medical Authority, Panchmahal, Gujarat in prescribed format as issued Page 5 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined by Department of Empowerment of Persons with Disability, Ministry of Social Justice and Empowerment, Government of India, the original claimant is diagnosed with the aforesaid disability and it is opined that he has sustained 65% permanent disability in relation to his part of body in terms of the guidelines specified. The injury certificate of the original claimant is produced on record at Mark-23/8 issued by Dr. Jayesh Patel, M.S. Ortho. on 1st February, 2017 (Exh.39), wherein it transpires that the original claimant has sustained injuries including fracture. The original claimant was operated, which has resulted in amputation of right leg below knee. The said doctor, who has performed the operation has also issued disability certificate and has opined 70% permanent disability being sustained by the original claimant. The said doctor has also been examined as witness at Exh.49 as noted by the Tribunal. The said witness in his cross- examination has agreed to consider 35% of disability for the body as a whole. Accordingly, the Tribunal has accepted the case of the applicant to have sustained physical disability to the extent of 35% for the body as a whole. However, the Tribunal fell for error in ignoring the functional disability in reference to the loss of future prospective income of the Page 6 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined applicant. The Tribunal ought to have considered the functional disability in the peculiar facts of the case once it has been established before the Tribunal that the original claimant has sustained amputation of right leg below knee.
7. It would be appropriate to consider the principles laid down by the Hon'ble Supreme Court in the case of Rajkumar Vs. Ajaykumar reported in (2011) 1 SCC 342, wherein the Court has broadly explained the parameters to be followed in case of assessment of compensation for loss of future earnings where the claimant suffers permanent disability. Paras 4 and 8 of the said judgment reads as under :-
"4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full Page 7 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined 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 vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest 4 Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467)."
"8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method Page 8 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE
567)."
7.1 The aforesaid principles has been reiterated by three Judges Bench in case of Pappu Deo Yadav Vs. Naresh Kumar reported in AIR 2020 SC 4424. In para-7, the Court framed two questions :-
"7. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and two, the extent of disability. On the first question, the High Court no doubt, is technically correct in holding that Pranay Sethi involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three- judge bench decision in Jagdish was not binding, but rather that the subsequent decision in Anant to the extent that it did not award compensation for future prospects, was binding. This court is of the opinion that there was no justification for the High Court to have read the Page 9 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined previous rulings of this court, to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death."
7.1.1 On the second issue with regard to the extent of disability while considering a case of permanent disablement incurred as a result of motor accident, entitlement of future loss of income and amount of future prospects, the Court has relied upon its earlier decisions in case of Arvind Kumar Mishra (supra) and Sandip Khanduja (supra) , as referred in paras 18 and 19 , held that Courts should be mindful in serious injuries like amputation. The compensation has to be judged in relation to the profession, vocation or business of the victim; there cannot be blind arithmetic formula for ready reference. Thus, the Courts instead of taking myopic view by simply relying upon physical disability, as assessed by the medical expert, instead are expected to consider the effect and impact of permanent disability on the earning capacity of injured.
18. In Arvind Kumar Mishra Vs. New India Assurance Co. Page 10 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025
NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined Ltd., the appellant at the time of accident was a final year engineering (Mechanical) degree student in a reputed college. He was a brilliant student and had passed all his semester examinations with distinction. He suffered grievous injuries and remained in a coma for about two months; his studies were disrupted as he was moved to different hospitals for surgeries. For many months, his condition remained serious; his right hand was amputated and vision seriously affected. This court accepted his claim and held that he was permanently disabled to the extent of 70%. In Mohan Soni Vs. Ram Avtar Tomar again a case of injury entailing loss of a leg, the court held that medical evidence of the extent of disability should not be mechanically scaled down:
"8. On hearing the counsel for the parties and on going through the materials on record, we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule I of the Workmen's Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged (2010) 10 SCC 254 (2012) 2 SCC Page 11 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined 267 at page 272 in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.
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10. This Court in K. Janardhan case [(2008) 8 SCC 518 :
(2008) 2 SCC (L&S) 733] , set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation.
In K. Janardhan [(2008) 8 SCC 518 : (2008) 2 SCC (L&S) 733] this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289 : 1976 SCC (L&S) 52] in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.
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13. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal Page 12 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined that the victim enjoyed some legal protection (as in the case of persons covered by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganised sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income.
14. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%. We, accordingly, find and hold that the compensation for the loss of the appellant's future earnings must be computed on that basis. On calculation on that basis, the amount of compensation would come to Rs 3,56,400 and after addition of a sum of Rs 30,000 and Rs 15,000 the total amount would be Rs 4,01,400. The additional compensation amount would carry interest at the rate of 9% per annum from the date of filing of the claim petition till the date of payment. The additional amount of compensation along with interest should be paid to the appellant without delay and not later than three months from today."
19. One more decision, Sandeep Khanduja Vs. Atul Dande too had dealt with the precise aspect of assessing the quantum of permanent disablement. The victim was aged about 30 years, working as a chartered accountant for various institutions for which he was paid professional fees. The injuries suffered by him resulted in severe impairment of movement; he had problems in climbing stairs, back trouble while sleeping, etc. A rod was implanted in his leg. He Page 13 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined suffered 70% permanent disability, and mental and physical agony. This court enhanced the compensation, observing the proper manner to calculate the extent of disability:
"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 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 2017 (3) SCC 351 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 Page 14 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined 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 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." The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, the MACT approached the issue in right direction by taking into consideration the aforesaid test.
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NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined However, we feel that the conclusion of the MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant.... A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did not go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of compensation with the adoption of multiplier method, as held by this Court in Yadava Kumar v Divisional Manager, National Insurance Co. Ltd., [2010 (10) SCC 341]:
"9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.
10. In some cases for personal injury, the claim could be in respect of lifetime's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each Page 16 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases--and that is now recognised mode as to the proper measure of compensation--is taking an appropriate multiplier of an appropriate multiplicand." In that case, after following the judgment in Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176, the Court chose to apply multiplier of 18 keeping in view the age of the victim, who as 25 years at the time of the accident.
In the instant case, the MACT had quantified the income of the appellant at ₹10,000, i.e. ₹1,20,000 per annum. Going by the age of the appellant at the time of the accident, multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70%, the compensation under this head would be worked out at ₹14,28,000. The MACT had awarded compensation of ₹70,000 for permanent disability, which stands enhanced to ₹14,28,000. For mental and physical agony and frustration and disappointment towards life, the MACT has awarded a sum of ₹30,000, which we enhance to ₹1,30,000."
20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong Page 17 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined application of some 'proportionate' principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case.
21. This court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did, i.e. as a typist/data entry operator in court premises in Delhi, his assertion about earning ₹12,000/- could not be discarded substantially, to the extent of bringing it down to ₹ 8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than ₹ 1,60,000/- per annum.29 The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellant's monthly earnings at ₹ 8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of ₹ 8,500/-) the realistic figure would be ₹10,000/- per month. Adding future prospects at 40%30, the income should be Page 18 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined taken as ₹14,000 for the purpose of calculation of compensation. Accordingly, this court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be ₹19,65,600/- (i.e., ₹ 14,000/- x 12 x 65% x 18) or Rupees Nineteen lakhs sixty five thousand six hundred only."
8. Having noted the broad parameters to be considered while objectively determining the compensation to be awarded towards future loss of income, the seminal question arises as to how the Court should assess functional disability, in the facts on hand. It would be relevant to mention about note appended to the Second Schedule of the 1988 Act, which raises a legal fiction, stating that 'injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule-I under the Workmen's Compensation Act, 1923.' The Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd., Vs. Mohd. Nasir and Another reported in (2009) 6 SCC 280 has considered the applicability of the respective provisions of the Workmen's Compensation Act, 1923 (1923 Act) and Motor Vehicles Act, 1988 (1988 Act), in respect of the claimants who have sustained disability. Relevant observations of the Hon'ble Page 19 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined Supreme Court in the aforesaid judgment reads as under :-
14. A question has been raised as to whether the percentage of loss of earning capacity and the physical disability shall be the same. A question has furthermore been raised as regards applicability of the multiplier specified in the Second Schedule appended to the 1988 Act on the premise that the same would not be applicable in respect of the claim petition which is filed under Section 166 of the Act.
23. Both the 1923 Act and the 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the claimants suffering permanent disability.
24. The amount of compensation is to be determined in terms of the provisions of the respective Acts. Whereas in terms of the 1923 Act, the Commissioner who is a quasi judicial authority, is bound to apply the principles and the factors laid down in the Act for the purpose of determining the compensation, Section 168 of the 1988 Act enjoins the Tribunal to make an award determining the amount of compensation which appears to be just.
26. Both the statutes provide for the mode and manner in which the percentage of loss of earning capacity is required to be calculated. They provide that the amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-`-vis the injuries specified in the First Schedule of the 1923 Act. Indisputably where injuries are specified in the First Schedule, the mode and manner Page 20 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined provided for the purpose of calculating the amount of compensation would be applicable.
28. The 1923 Act would also be applicable to the claims applications arising out of use of motor vehicles in terms of the provisions of 1988 Act for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview thereof. The Note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that "injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's Compensation Act, 1923". Permanent disability, therefore, for certain purposes have been co-related with functional disability.
29. As to what, therefore, in our opinion, would be relevant is to find out the nature of injuries and as to whether the same falls within the purview of Part I or Part II thereof. We have noticed hereinbefore that whereas Part I specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement."
9. Considering the aforesaid principles in light of evidence
- medical case papers brought on record, in order to determine just and proper compensation in the facts of the case, this Court has considered the Schedule-I provided under the Employees Compensation Act, 1923 for the purpose of Page 21 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined determining the effect of functional disability on the earning capacity of the original claimant. On bare appreciation of Schedule-I appended to Employees Compensation, 1923, under part-II thereof specifies list of injuries which would be deemed to result in permanent partial disablement. The said list includes amputation below knee at Entry nos.20 and 21, wherein the percentage of loss of earning capacity is suggested as 50. Applying the aforesaid schedule in the facts of the case, this Court is inclined to accept the submission of learned advocate for the appellant to consider the overall disability including the effect of the amputation of the right leg below knee, more particularly, noticing the fact that the original claimant was engaged in masonry and centering work at the time of accident, to be considered as 50% for the body as a whole.
10. As regards the submissions made by the learned advocate to consider minimum wages, as rightly concluded by the Tribunal, looking to the nature of work of the original claimant, he can be considered as a skilled workman. Considering the standard rates of minimum wages as prescribed during the period between 1 st April, 2016 to 30th Page 22 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined September, 2016, it can safely be assessed as Rs.7,800/- as monthly income of the claimant. Applying the settled principles of law as laid down by the Hon'ble Supreme Court in the case of Pranay Shethi (supra), looking to the age of the appellant, which is determined as 28 years at the time of accident, this Court is inclined to consider 40% towards the future rise of income. Thus, the monthly income of the claimant is determined as Rs.10,920/- (Rs.7,800/- x 40%).
11. In absence of any challenge being made by the appellant to the multiplier adopted and as same appears to be just and proper, considering the judgment of Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transportation & Anr., reported in (2009) 6 SCC 121, the total amount of compensation towards future loss of income is determined as (Rs.10,920/- x 50% / 100) Rs.5,460/- x 12 x 17 comes to Rs.11,13,840/-.
12. This brings me to the issue of pain, shock and suffering being determined on the lower side as contended by the appellant. Considering the nature of injuries sustained by the original claimant having suffered grievous injuries including Page 23 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined fracture and amputation of right leg below knee, this Court is inclined to enhance the amount of compensation under the aforesaid head. Thus, the original claimant is entitled to an enhanced amount of compensation under the head of PSS to the extent of Rs.1,00,000/- as against Rs.50,000/- being awarded by the Tribunal.
13. So far as the amount of compensation awarded by the Tribunal under the head of SAT (special diet, attendant and transportation) is concerned, the same being not disputed and is hereby confirmed as Rs.25,000/-.
14. The medical expenses as awarded by the Tribunal to the tune of Rs.60,000/- appears to be just and proper in light of the medical bills produced on record at Exh.40 to the tune of Rs.52,296/-. In absence of any challenge being made to the aforesaid amount, the same is upheld.
15. Since the amount of income of the claimant is reconsidered and revised to Rs.7,800/- per month, looking to the nature of injuries sustained, the actual loss of income is considered for the period of one year, which comes to Page 24 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined Rs.93,600/- (Rs.7,800 x 12).
16. Lastly, the amount of compensation is also required to be reconsidered under the head of future medical expenses. Unfortunately, the Tribunal has lost complete sight of the aforesaid component of compensation. As per the settled principles of law, as reiterated by the Hon'ble Supreme Court in case of Sidram Vs. Divisional Manager, United India Insurance Company and Anr., (2023) 3 SCC 439, in Para- 38 and para -39 after referring to earlier decisions in case of Divisional Controller, KSRTC Vs. Mahadeva Shetty and Anr. (2003) 7 SCC 197 and in case of R. D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., reported in (1995) 1 SCC 551 , the Tribunal ought to have awarded compensation towards future medical expenses as well, more particularly, the original claimant having suffered amputation of right leg below knee, the Tribunal ought to have considered the expenses towards prosthetic leg and the replacement of the same in the coming years. Noticing the age of the applicant as 28 years at the time of accident, this Court is inclined to consider the future medical expenses to the tune of Rs.2,50,000/-. For the foregoing reasons, the total amount of Page 25 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined compensation is reconsidered and revised as under:-
1. Future loss Rs.11,13,840/-
2. PSS Rs.1,00,000/-
3. SAT Rs. 25,000/-
4. Medical Expenses Rs. 60,000/-
5. Actual loss Rs. 93,600/-(Rs.7800 x 12)
6. Artificial limb & future medical expenses Rs.2,50,000/-
============ Total : Rs.16,42,440/-
Actual award. - Rs. 4,68,600/-
============
Enhanced Rs.11,73,840/-
17. Thus, the captioned appeal is hereby allowed. The
appellant - original claimant is held entitled to total amount of compensation to the tune of Rs.11,73,840/- with 9% interest from the date of filing of the claim petition till its actual realization with proportionate costs to be recovered from the respondents, who are held jointly and severally liable to pay such amount of compensation. Let the enhanced amount of compensation with proportionate costs and interest be deposited with the concerned Tribunal within a period of eight weeks from the date of receipt of certified copy of this order. On deposit of the aforesaid amount, the Tribunal shall be at Page 26 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025 NEUTRAL CITATION C/FA/4321/2024 JUDGMENT DATED: 08/09/2025 04:58:44 PM undefined liberty to proceed with the release and disbursement of 50% of the enhanced amount of compensation so deposited in favour of original claimant, subject to due verification and the remaining 50% is directed to be invested in noncumulative Fixed Deposit Scheme in any nationalized bank initially for the period of five years, which may be renewed thereafter for further period of five years. The claimant shall be at liberty to seek periodical withdrawal of interest which may accrue on such fixed deposit.
18. With these observations, the first appeal stands disposed of. R. & P. is directed to be sent back to the concerned Tribunal forthwith with the copy of writ of this order.
Sd/-
(NISHA M. THAKORE, J.) AMAR RATHOD...sfs/10.09 & 16.09 Page 27 of 27 Uploaded by AMAR RATHOD(HC01074) on Wed Sep 17 2025 Downloaded on : Sat Sep 20 01:53:48 IST 2025