Himachal Pradesh High Court
Chhayamani vs Himachal Road Transport Corporation & ... on 22 March, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 246 of 2014 Reserved on: 27.02.2024 Date of decision: 22.03.2024 .
__________________________________________________ Chhayamani ...Appellant Versus Himachal Road Transport Corporation & others ...Respondents __________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting?
__________________________________________________ For the appellant:
Mr. Surinder Saklani, Advocate.
For the respondents: Mr. V.B. Verma, Advocate, for respondents No.1 & 2.
Dr. Lalit K. Sharma, Advocate, for respondents No.3 & 4.
Sushil Kukreja, Judge The instant appeal is maintained by the appellant/ petitioner (hereinafter referred to as the 'petitioner') under Section 173 of the Motor Vehicles Act (for short 'the Act') against the award dated 30.09.2013, passed by the learned Motor Accidents Claims Tribunal, Kinnaur Civil Division, at Rampur Bushahr, H.P., in MAC Petition No.0100035/2011, with a prayer to enhance the awarded amount of compensation.1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 26/03/2024 20:31:17 :::CIS 22. Briefly stated the facts giving rise to the present appeal are that on 06.05.2009, the petitioner was travelling along with her husband in HRTC bus bearing registration No.HP-06- .
2825, from Anni to her village Buchair, Tehsil Anni, District Kullu, H.P. and at around 1:00 p.m., when the aforesaid bus was about to reach the place 'Naali", the driver of the bus (respondent No.3 herein) could not control the vehicle because to his rash and negligent driving, resultantly, it tilted towards the hill and struck against the rock, as a result of which, the left arm of the petitioner was seriously injured. Initially, the petitioner was taken to CHC Anni, from where, she was taken to MGMSC, Khaneri, Rampur, where she remained admitted from 06.05.2009 to 11.05.2009.
Thereafter, when the condition of the petitioner did not improve, she was further referred to IGMC, Shimla, where she remained admitted from 11.05.2009 to 23.05.2009 and she was also operated there. As per the petitioner, she spent Rs.1,50,000/- on her treatment. The petitioner further alleged that she used to earn Rs.10,000/- per month from the agricultural activities, but due to the accident, she was not able to work in the fields, Hence, she prayed for grant of compensation to the tune of Rs.5,00,000/-
alongwith interest @ 12% per annum.
::: Downloaded on - 26/03/2024 20:31:17 :::CIS 33. Respondents No.1 & 2 (HRTC and Regional Manager, HRTC, Depot Rampur, respectively) contested the petition and filed reply, wherein, they denied the accident, in .
which the petitioner suffered the injuries. It has also been denied that the petitioner was earning Rs.10,000/- per month and averred that the claim of the petitioner is exaggerated.
4. The driver as well as the conductor of the offending bus (respondents No. 3 & 4 herein) filed separate replies to the claim petition, wherein they denied the occurrence of the accident and the injuries suffered by the petitioner. They averred that the claim sought by the petitioner is highly excessive.
5. On the pleadings of the parties, the learned Tribunal below framed the following issues on 29.11.2011:-
"1. Whether the petitioner sustained injuries due to rash and negligent driving of bus No. HP-06-2825 being driven by respondent No.3, as alleged? OPP
2. If issue No.1 is proved, to what amount of compensation the petitioner is entitled to and from whom? OPP
3. Relief."
After deciding issues No.1 & 2 in favour of the petitioner, the claim petition was allowed and the petitioner was held entitled for compensation of Rs. 74,740/- alongwith interest from respondents No.1 and 3.
::: Downloaded on - 26/03/2024 20:31:17 :::CIS 46. Feeling aggrieved and dissatisfied, the appellant/ petitioner preferred the instant appeal under Section 173 of the Act for enhancement of the compensation amount.
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7. I have heard the learned counsel for the appellant as well as the learned counsel for respondents and also gone through the entire record carefully.
8. Learned counsel for the appellant-petitioner contended that the Tribunal below has erred in taking the monthly income of the appellant/petitioner as Rs.3,500/-, which could not have been taken below Rs.5,000/- per month. He further contended that the Tribunal below has also erred in taking the functional disability of the petitioner only to 10%, which ought not to have been taken below 20% with respect to the whole body. He also contended that the amount awarded under the heads pain and sufferings, special diet and transportation charges have also been awarded much on lower side, as such, the impugned award is liable to be modified by enhancing the amount of compensation.
9. It has been proved on record that the petitioner had sustained injuries in the accident, which took place on 06.05.2009 due to rash and negligent driving of HRTC bus bearing ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 5 registration No.HP-06-2825 by its driver Raghuveer Singh (respondent No.3). It is also not in dispute that the petitioner had sustained 31% permanent disability with respect to left upper .
limb as per disability certificate Ext.PW5/A. The present appeal has been filed on the ground that the learned Tribunal below had not granted her adequate compensation.
10. The law with respect to the grant of compensation in injury cases is well-settled. The basic judgment on the issue has been rendered by the Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and another, 2011 (1) SCC 343. The Court in the said case has explained the general principles relating to compensation in injury cases and assessment of future loss of earnings due to permanent disability as under:-
"General principles relating to compensation in injury cases:
5. The provision of the Motor Vehicles Act, 1988 ("the 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 the 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 ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 6 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. Subramania Iyer v. T. Kunhikuttan Nair, R.D. Hattangadi v. Pest Control (India) (P) Ltd. and Baker v. Willoughby]
6. The heads under which compensation is awarded in .
personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads
(ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
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 ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 7 claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the 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 accident 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 ("the 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 ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 8 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, the 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.
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. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd.and Yadava Kumar v. National Insurance Co. Ltd.)
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 9 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 disability (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 per cent, 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 ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 10 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 hand.
Sometimes the injured claimant may be continued in service, but may not be 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 Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised 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 ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 11 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 give 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 the 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 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 ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 12 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 the percentage of loss of earning capacity is the same as the percentage of permanent disability).
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(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 to 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 rother factors."
11. From the aforesaid analysis of the law on the subject, it is clear that loss of earning capacity of person who has suffered permanent disability depends upon several factors like the kind of disability suffered, the occupation of the injured, age of the injured and similar other factors.
12. In New India Assurance Company Limited Vs. Gajender Yadav and others, (2018)11 SCC 630, it has been held by the Hon'ble Supreme Court as under:-
"4.In Raj Kumar Vs. Ajay Kumar & anr, the Court has laid down the principle regarding assessment of future loss of earning due to permanent disability. The same issue was discussed in more detail in the case of a chartered accountant in the recent judgment in Sandeep Khanuja Vs. Atul Dande. In the latter case, this Court has awarded compensation applying the multiplier for the permanent disability to the tune of 70% for the Chartered Accountant. In Raj Kumar's case, this Court has discussed about the functional disability and has held that ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 13 compensation would vary from case to case depending on how much the person has been affected as far as his earning capacity is concerned.
5.In the case before us, it is in evidence that there is 85% permanent disability as far as left leg is concerned. It is also in evidence that he had been working as a Security .
Officer in a reputed company and from the evidence of Deputy Chief Manager before the Tribunal, it has come out that "prior to accident Gajender was doing duty in our office established at Bahadur Shah Zafar Marg and he was in active job and after his accident when he joined the duty he had been shifted to our office established at Dariya Ganj where he has to do lesser work i.e. sedentary duty in which no physical work is required. The future of employee Gajender has been sealed and he will not be able to get any promotion in future.
6.Having heard the learned counsel on both sides and having regard to the fact that the claimant has, in fact, suffered a serious injury leading to amputation of the left leg below the knee and which has certainly caused a functional disability since he had been in employment as a Security Officer and since according to the Management, his future promotions have been sealed, we are of the view that in the facts of this case, the computation of compensation for the disability is also to be worked out by applying a multiplier. The monthly salary which the claimant was drawing in 2004 was around Rs.14,000/-. If the future prospects in terms of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 is added, it will be Rs.21,000/- per month. Having regard to the disability suffered by the claimant, we are of the view that without any further deduction, if the total disability factor is taken as 40%, the claimant would be entitled to an amount of Rs. 8,400/- per month towards the loss of future earnings. The age being 37 years, the multiplier 15 has to be applied. Thus, the compensation towards future earnings comes to Rs.15,12,000/- (Rupees Fifteen Lakhs and Twelve Thousand)."
13. In the instant case, the petitioner has submitted that she was earning Rs.10,000/- per month. To prove her case, the petitioner herself appeared in the witness-box as PW-2 and tendered her affidavit Ext. PW2/A by way of examination-in-chief, ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 14 in which, she deposed that prior to the accident, she used to do the entire household work, sell the milk and also used to do the agriculture work and was earning Rs.10,000/- per month. She .
further deposed that after the accident, she had become handicapped and could not do any work. PW-3 Raghubir Singh (husband of the petitioner) also tendered his affidavit Ext.PW3/A by way of examination-in-chief, in which he deposed that after the accident, the petitioner had become handicapped and she could not do her daily routine work and they were looking after her. He further deposed that prior to the accident, the petitioner used to do the entire household work and sell the milk and also used to do agriculture work and used to earn at-least Rs.10,000/- per month.
14. However, there is no cogent and convincing evidence on record as regards the income of the petitioner. In these circumstances, the income of the petitioner becomes a matter of speculation and guess. It is settled law that the services of a housewife cannot be ignored as she renders assistance to the other family members. However, in absence of any evidence, documentary or otherwise, to establish the earnings of the petitioner, the Courts have to determine the income of the ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 15 petitioner on the basis of the minimum wages notified under the Minimum Wages Act. In Govind Yadav Vs. New India Assurance Co. Ltd., 2012 ACJ 28 Supreme Court cases, it has .
been held by the Apex Court as under:-
"17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as helper and was getting salary of Rs.4,000 per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer. Learned Tribunal then proceeded to determine the amount of compensation in lieu of loss of earnings by assuming the appellant's income to be Rs.15,000/- per annum.
On his part, the learned Single Judge of the High Court assumed that while working as a cleaner, appellant may have been earning Rs.2,000 per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that the relevant time minimum wages payable to a worker were Rs.3,000 per month. Therefore, in the absence of other cogent evidence, Tribunal and the High Court should have determined the amount of compensation in lieu of loss of earnings by taking the appellant's notional annual income as Rs.36,000 and the loss of earnings on account of 70 percent permanent disability as Rs.25,200 per annum."
15. Therefore, in the absence of any cogent and satisfactory evidence on record with respect to the earning of the deceased, the reference can be made to the minimum wages payable at the relevant time in the State of Himachal Pradesh.
The accident in question had occurred on 06.05.2009 and the minimum wages payable in the year 2009 to the un-skilled worker ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 16 were Rs.3,300/- per month.
16. As per the judgment of the Supreme Court in National Insurance Company Ltd Vs. Pranay Sethi and ors, .
(2017) 16 SCC 680, there has to be an addition of 25% to the income on account of future prospects where the age is between 40 to 50 years in the cases relating to self-employed persons.
The petitioner was aged about 42 years at the time of accident as per Pariwar Register Ext. PW1/C. In view of the law laid down by the Apex Court in Pranay Sethi's case (supra), an addition of 25% of the notional monthly income of the petitioner, can be made towards future prospects, since she was aged about 42 years. Accordingly, after fixing the notional monthly income of the petitioner at Rs.3,300/- and adding 25% of the monthly income towards future prospects, the amount comes to Rs.4,125/- per month (3300 +825 = 4,125) and her annual income is to be taken as Rs.49,500/- (4125 x12).
17. As per the disability certificate Ext.PW5/A, the petitioner had suffered permanent disability to the extent of 31% with respect to her left upper limb. Therefore, the question arises whether with this disability, the petitioner is incapacitated to such an extent that she would not be able to do any work which she ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 17 was doing prior to the accident. PW-5 Dr. Baldev Kumar stated that the disability sustained by the petitioner was 31% permanent in nature. However, he had not stated that the petitioner would be .
totally incapacitated to do any work. No other evidence has been led by the petitioner in order to establish that due to the disability suffered by her, she was not in a position to do household work or any other work. Since the petitioner has suffered 31% permanent disability only with respect to her left upper limb, therefore, it cannot be said that she became totally incapacitated to do any work. Hence, the learned Tribunal below had rightly assessed the functional disability of the petitioner qua the entire body at 10%. By taking the disablement of the petitioner for the purpose of compensation as 10%, she would suffer future loss of Rs.4,950/- per annum.
18. At the time of the accident, the age of the petitioner was 42 years, as mentioned in the Pariwar Register, Ext.PW1/C. In view of the decision of the Hon'ble Apex Court in Sarla Verma and others Versus Delhi Transport Corporation and another, (2009) 6 SCC 121, wherein it has been held that the multiplier to be used should be as mentioned in column (4) of the table in paragraph 40 of the said decision [prepared by applying ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 18 Susamma Thomas, Trilok Chandra and Charlie], the multiplier of '14' is applicable. By applying the multiplier of '14' as per the settled law, the compensation under the head future loss of income is re-
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fixed as Rs.69,300/- (4,950x 14).
19. Further case of the petitioner is that the learned Tribunal below had not awarded any compensation under the head medical expenses. However, the medical bills have not been proved by the petitioner in accordance with law as only photocopies of the same have been filed and original medical bills have not been produced.
Although, the petitioner has failed to prove the medical bills in accordance with law, yet the fact remains that the petitioner received injuries and had undergone treatment, therefore, some amount must have been spent by her on her medical treatment, as such, a sum of Rs. 5,000/- is awarded to her under the head medical expenses.
20. The learned Tribunal below had awarded a sum of Rs.10,000/- towards pain and suffering, Rs.1,000/- as special diet and Rs.1,000/- for travelling expenses. However, in the opinion of this Court, the compensation awarded under the aforesaid heads is on a very lower side and the same is required to be enhanced.
Since the petitioner remained hospitalized at MGMSC Khaneri w.e.f. 06.05.2009 to 11.05.2009 and thereafter she was referred to IGMC, Shimla, where she remained admitted ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 19 w.e.f. 11.05.2009 to 23.05.2009 and had gone through surgical operation, besides an iron rod was also affixed on her left arm, hence, the petitioner is granted Rs. 20,000/- under the head pain .
and sufferings, Rs. 5,000/- under the head special diet and also Rs. 5,000/- for travelling expenses. So far as the compensation awarded by the learned Tribunal under the head attendant charges and loss of earning during hospital stay is concerned, the same appears to be justified. Accordingly, this Court deems it fit to modify the award passed by learned Tribunal below to the extent as indicated below:-
Head Amount Loss of income towards future Rs.69,300/-
earnings on account of
permanent disability
Pain and suffering Rs.20,000/-
Medical expenses Rs 5,000/-
Loss of earning during Rs.1,440/-
Hospital stay
Attendant Charges Rs.2,500/-
Special diet Rs.5,000/-
Transportation charges Rs.5,000-
Total compensation awarded Rs.1,08,240/-
21. Consequently, in view of detailed discussion made here-in-above and the law laid down by the Hon'ble Apex Court, the impugned award stands modified. The remaining terms of the ::: Downloaded on - 26/03/2024 20:31:17 :::CIS 20 impugned award, including the interest component, shall remain the same. The appeal stands disposed of in the above terms, so also the pending application(s), if any.
.
( Sushil Kukreja )
Judge
March 22, 2024
(VH)
r to
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