Jharkhand High Court
Ranjeet Kumar Gupta @ Ranjeet Prasad ... vs The Divisional Manager on 13 August, 2021
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 408 of 2018
........
Ranjeet Kumar Gupta @ Ranjeet Prasad Gupta .... ..... Appellant Versus The Divisional Manager, United India Insurance Co. Ltd. & Another .... ..... Respondents CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............
For the Appellant : Mr. Nikhil Ranjan, Advocate.
For the Respondent No.1 : Mr. Alok Lal, Advocate.
........
05/13.08.2021.
Heard, learned counsel for the appellant, Mr. Nikhil Ranjan and learned counsel for the respondent no. 1 / United India Insurance Company Limited, Mr. Alok Lal.
Appellant / Claimant / Injured, Ranjeet Kumar Gupta @ Ranjeet Prasad Gupta has preferred this appeal for enhancement of the Award dated 18.01.2018 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No. 275/2011, whereby the learned Tribunal has granted compensation to the claimant / injured to the tune of Rs. 3,82,244/- along with interest @ 12% per annum from the date of award till its realization to be paid by the United India Insurance Company Limited within 30 days from the date of award, as offending Vehicle Tanker bearing registration no. WB-15-3756 was duly insured before the United India Insurance Company.
Learned counsel for the appellant, Mr. Nikhil Ranjan, has submitted that there is no fault on the part of the claimant / appellant, but he has suffered 20% permanent disability in his right lower limb by shortening one inch and thus, he has faced functional disability in running his grocery shop.
Learned counsel for the appellant has assailed the impugned award on the ground that learned Tribunal has wrongly considered the income of the claimant/injured as Rs.3,000/- per month against the claim of Rs.12,000/- per month contrary to the judgment passed by the Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), wherein the -2- Apex Court has considered the income of the deceased, who was a carpenter to be Rs.5,000/- per month for an accident dated 02.01.2001, whereas this injured in this case is a owner of a grocery shop doing his own business and the occurrence is of dated 26.02.2011 and learned Tribunal has also considered 20% loss of earning because of 20% permanent disability of right lower limb of injured / claimant. The learned Tribunal has further not considered the other structured formula considered by the Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343 of which, Para-5 to 23, may profitably be quoted hereunder:-
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 vs. T. Kunhikuttan Nair - [(1969) 3 SCC 64 : AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467 : (1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)].
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 -3- 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.
7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) - depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability
8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
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 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, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals -4- 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 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 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).
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent 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.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred 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 -5- capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not 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.
15. 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.
16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
17. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with -6- reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
19. We may now summarise the principles discussed above :
(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 illustrations:
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/-
-7-
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)].
21. After the insertion of Section 163A in the Act (with effect from 14.11.1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the second schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation :
"5. Disability in non-fatal accidents : The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents : -
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
PLUS either of the following :-
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
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 Workmen's Compensation Act, 1923."
22. We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favorable. This forces the injured claimants to approach `professional' certificate givers whose evidence most of the time is found to be not satisfactory.
23. The Tribunals should realise that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico- legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other -8- suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses.
Learned counsel for the appellant has thus submitted that the award may be enhanced Learned counsel for the appellant has further submitted that there is delay of 73 days' in preferring the appeal and for condonation of the same, I.A. No.988/2020 has been preferred.
Learned counsel, Mr. Alok Lal appearing for the United India Insurance Company Limited has vehemently opposed the prayer and has submitted that no document has been produced by the claimant to show that he has a grocery shop and the learned Tribunal has rightly passed the compensation, which is just and fair compensation as claimant/injured/appellant has no life threat, he has sustained 20% permanent disability, which has been rightly considered by the learned Tribunal as 20% loss of earning capacity, as the injury, which has been suffered by the victim i.e. right lower limb by shortening one inch is not covered under Scheduled-I of Employee's Compensation Act, 1923, as such, in view of Para-5 of the Judgment passed by the Apex Court in the case of Raj Kumar (Supra), the learned Tribunal has rightly considered the compensation, which has already been satisfied to the claimant by the United India Insurance Company Limited, as such, this Court may not enhance the same and condonation application may also be dismissed.
Considering the rival submission of the parties, looking into the facts and circumstances of the case, the delay in preferring the appeal is condoned in a benevolent legislation.
The admitted facts are like this, appellant Ranjeet Kumar Gupta was going on motorcycle as a pillion rider, which was hit by a Tanker bearing registration No. WB-15-3756 coming from opposite direction causing grievous injury upon his person, his right femur and tibia bones got multiple fractured, he was admitted for treatment in Sisir Sewa Kendra, Ranchi under treatment of Dr. Amit Mukherjee for the period from 26.02.2011 to 02.04.2011, from 15.04.2011 to 03.05.2011 and he was also admitted on 19.12.2011 at Christian Medical College, Vellore and further admitted in Hill View Hospital -9- and Research Centre Ranchi for a period from 18.01.2013 to 21.03.2013 for treatment for the injuries sustained in his right shaft tibia, right femur in his right lower limb, as he suffered permanent disablement of 20% in his right lower limb by shortening one inch. At the time of accident, the claimant / injured was aged about 30 years and he was running a grocery shop in Bero, Ranchi and the stand taken by the Insurance Company that the claimant has no grocery shop is not sustainable in the eyes of law, as the Insurance Company has never preferred any appeal against the said finding recorded by the learned Tribunal.
From perusal of the impugned award, it appears that learned Tribunal has wrongly considered income of the injured as Rs.3,000/- per month as a notional income contrary to the judgment passed by the Apex Court in the case of Chameli Devi (Supra), wherein the Apex Court has considered the income of the deceased, who was a carpenter to be Rs.5,000/- per month for an accident dated 02.01.2001, whereas this injured in this case is a owner of a grocery shop doing his own business and the occurrence is of dated 26.02.2011, as such, consider the submission made by learned counsel for the appellant/claimant, this Court considered that his income cannot be less than Rs.5,000/- per month, but his income cannot be Rs.12,000/- as claimed by the claimant in absence of any documentary evidence, as such, to have a fair and just compensation, this Court consider it to be Rs.6,000/- per month. Now the fresh calculation for computation of compensation has to be made under the following heads:-
Under the pecuniary damages (special damages)
(i) Expenses relating to treatment, hospitalization and medicines -
the same has already been awarded by the learned Tribunal on the basis of documentary evidence, though there was claim of the claimant of Rs. 4,00,000/-, but in absence of documentary evidence, learned Tribunal has rightly granted amount to the tune of Rs. 1,34,844/-.
So far transportation is concerned, the learned Tribunal has awarded an amount of Rs. 10,000/-, which is also accepted by this -10- Court as this person has to move several times in different hospital in Ranchi and also in Vellore.
So far nourishing food or special diet is concerned, the learned Tribunal has granted Rs. 5,000/-, which this Court is enhanced as Rs. 50,000/- as because the injured remained in hospital from 26.02.2011 to 02.04.2011, from 15.04.2011 to 03.05.2011, admitted on 19.12.2012 and from 18.01.2013 to 21.01.2013 in different hospitals in Ranchi and in Christian Medical College, Vel- lore, as such, this amount cannot be less than Rs. 50,000/-.
So far attendant charge is concerned, learned Tribunal has granted Rs. 10,000/- which is also enhanced to Rs. 50,000/- as during that period, person, who had attended this appellant / claimant has not earned any money and this Court, having a consistent view that for one month of hospitalization, attendant charge should be Rs. 25,000/- as such, considering it for more than two months, this Court is granting Rs. 50,000/- as attendant charge, which will come under the miscellaneous expenses.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) So far, loss of earning during the period of treatment is concerned, this Court has considered that the income of the injured / claimant in absence of any documentary evidence to be Rs. 6,000/-
per month and the injured / claimant remained on bed for approximately three months, so considering it to be the period of three months, the loss of earning during the period of treatment comes to Rs. 6,000/- x 3 = Rs. 18,000/-.
(b) So far loss of future earnings on account of permanent disability is concerned, this Court considers that the compensation under the loss of future earning should be calculated as follows:-
20% x Rs. 6,000/- x 12 = Rs. 14,400/-.
The injured / claimant falls between the age group of 26-30 years, as such, in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt.) & Ors. Vs. DTC & Anr. reported in (2009) 6 SCC 121 (Para-42), then the multiplier of 17 is applicable.-11-
Then the loss of future earnings on account of permanent disability comes to Rs. 14,400/- x 17 = Rs. 2,44,800/-.
This court is also granting future prospect @ 40% in view of judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (Para-59.4).
Thus, total amount under loss of future earnings on account of permanent disability comes to Rs. 2,44,800/- + 40% of Rs. 2,44,800/- = Rs. 2,44,800/- + Rs. 97,920/- = Rs. 3,42,720/-.
(iii) So far future medical expenses is concerned, no evidence has been brought on record with regard to future medical expenses, and learned Tribunal has not granted future medical expenses, as such, this Court is also not granting future medical expenses as no evidence regarding the same has been adduced before the learned Tribunal.
Under non-pecuniary damages (General Damages)
(iv) So far Damages for pain, suffering and trauma as a consequence of the injuries is concerned, the court finds that the learned Tribunal has granted an amount of Rs. 1,00,000/- under the heading of "Pain and Suffering".
Considering the judgment passed by the Apex Court in the case of Mallikarjun Vs. National Insurance Company Limited & Another reported in 2014 (14) SCC 396, which was with regard to a child aged about 12 years having no income and the Apex Court has recorded at para-12 of the judgment that though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors precedents and the approach of the various High Courts, the Apex Court is of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc. should be, if the disability is above 10% and upto 30% to the whole body, the compensation shall be 3 Lacs, from 31% to 60%, the compensation shall be Rs. 4 Lacs; from 61% to 90%, the compensation shall be Rs. 5 Lacs and from 91% and above, the compensation shall be Rs. 6 Lacs, but that -12- should be for the whole body. For permanent disability upto 10%, it should be Rs. 1,00,000/-, here the permanent disability is 20% and his functional disability is also 20%, as such, it is not on whole body, as such, this Court is granting it to be Rs. 2,00,000/-.
(v) Loss of amenities (and/or loss of prospects of marriage), the learned Tribunal has not granted the same, but this Court is granting it to be Rs. 1,00,000/-.
(vi) Loss of expectation of life (shortening of normal longevity) is concerned, for shortening of one inch, the learned Tribunal has not granted the same as such, this Court is also not granting the same.
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, Rs. 1,34,844/-
hopitalisation, medicines,
transportation, Rs. 10,000/-
nourishing food, and Rs. 50,000/-
miscellaneous expenditure Rs. 50,000/-
(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 (a) Rs. 18,000/- treatment
(b) Loss of future earnings on account of (b) Rs. 3,42,720/-
permanent disability
(iii) Future medical expenses NIL
Non-pecuniary damages (General
damages)
(iv) Damages for pain, suffering and trauma as Rs. 2,00,000/-
a consequence of the injuries
(v) Loss of amenities (and/or loss of prospects Rs. 1,00,000/-
of marriage)
(vi) Loss of expectation of life (shortening of NIL
normal longevity)
Total Rs. 9,05,564/-
Accordingly, the entire compensation amount comes to Rs. 9,05,564/-.
However, the amount of compensation paid under Section 140 of Motor Vehicles Act or pursuant to the award passed by the learned Tribunal shall be deducted from the enhanced amount and balance amount shall be paid along with interest @ 7.5% per annum from the date of award as the learned Tribunal has mentioned that about -13- seven years time was taken in disposal of the case, during this period the claimant has examined only one witness, and delay in hearing of the case was caused due to laches of the applicant only, as such, this Court granted interest @ 7.5 % on the enhanced amount only from the date of filing of the appeal i.e. 10.07.2018.
Accordingly, the miscellaneous appeal is allowed.
(Kailash Prasad Deo, J.) Sunil/-