Himachal Pradesh High Court
Reserved On: 22.4.2025 vs Nitya Nand & Others on 6 May, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2025:HHC:12655
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
FAO (MVA) No. 181 of 2016
Reserved On: 22.4.2025
Date of decision: 6.5.2025
United India Insurance Co. Ltd. …Appellant.
Versus
Nitya Nand & others. ...Respondents.
Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Appellant. Mr.Pritam Singh Chandel, Advocate.
For the Respondents: Mr.H.S. Rangra, Advocate, for respondent
No. 1.
Mr.Vijay Chaudhary, Advocate, for
respondents No. 2 to 4.
Vivek Singh Thakur, Judge
Appellant-Insurance Company has preferred this appeal
against award dated 4.12.2015 passed in Claim Petition No. 19/14/2009,
titled as Nitya Nand Vs. Hardev Singh Saini and others, by Motor
Accident Claims Tribunal-III, Mandi, District Mandi, H.P. camp at
Jogindernagar, whereby claim petition preferred by respondent No. 1-
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
1
2 2025:HHC:12655
FAO (MVA) No. 181 of 2016
claimant Nitya Nand has been allowed by awarding compensation of
₹4,53,047/- alongwith 9% interest per annum from the date of filing the
petition till payment with costs of ₹5,000/-.
2. Respondent No. 1-claimant Nitya Nand had preferred the
claim petition for receiving injury in a motor accident involving Motor
Cycle No. HP-33A-6577 and HP-33A-6201. At the time of accident Motor
Cycle HP-33A-6577, owned by respondent No. 2 Hardev Singh, was
being driven by respondent No. 3 Chhabil Kumar, whereas respondent
No. 4 Tek Chand is owner cum driver of another Motor Cycle.
3. Occurrence of the accident, injuries received by respondent
No. 1-claimant and details of his treatment are not in dispute. Present
appeal has been preferred by assailing the quantum of compensation
determined by the Motor Accident Claims Tribunal under different heads
and also on the ground that liability to pay compensation is also to be
shared by the owner or insurer of another Motor Cycle involved in the
accident who, according to appellant, was also equally responsible for the
accident.
4. So far as involvement of another Motor Cycle HP-33A-6201
is concerned, in the FIR, there is reference of Motor Cycle HP-33A-6201,
but it has been categorically mentioned in the FIR that accident was
caused on account of rash and negligent driving of rider of another
Pulsar Bike, who was trying to overtake Motor Cycle HP-33A-6201 and
3 2025:HHC:12655
FAO (MVA) No. 181 of 2016
because of rash and negligent act of rider of another Motor Cycle i.e. HP-
33A-6577 respondent-claimant Nitya Nand suffered injuries after
collusion of both Motor Cycles. There is no other evidence placed on
record by the Insurance Company or any body else including the driver
and owner of Motor Cycle HP-33A-6577 with respect to rash and
negligent driving of Motor Cycle No. HP-33A-6201. Therefore, for no
evidence on record, it cannot be concluded only on the basis of ground
taken in the appeal or for reference of another Motor Cycle in the FIR,
that there was contributory negligence of both Motor Cycles involved in
the accident. For want of material on record plea of appellant
Insurance Company with respect to equal liability to pay compensation by
owner/rider of another Motor Cycle or its’ insurer, is not sustainable and
is rejected.
5. With respect to quantum, learned counsel for the appellant-
Insurance Company has pointed out that disability certificate, placed on
record as Ex. RW-4/C, is not sufficient evidence to determine disability
as well as loss of earning, for non examination of any Doctor who had
issued this certificate. Further that the certificate even if considered in
evidence, it depicts that disability was temporary which was to be
reviewed after one year and the claimant Nitya Nand has not produced
any evidence with respect to continuity of disability, discontinuity of his
job and loss of earning.
4 2025:HHC:12655
FAO (MVA) No. 181 of 2016
6. Learned counsel for the appellant has also questioned the
amount of medical treatment awarded on the basis of medical bills
produced in evidence, production whereof in evidence was objected to by
the Insurance Company regarding the mode of proof. Further that
awarding sum of ₹40,000/- as attendant charges for engaging two
attendants during the treatment and amount of ₹20,000/- towards special
diet is also not permissible and sustainable.
7. It has been contended by learned counsel for appellant that
considering 25% disability as permanent disability and thereby awarding
₹1,98,000/- for suffering 25% permanent disability causing the loss of
income to the same proportion is also contrary to the settled law of the
land because claimant has failed to establish 25% functional disability
qua the entire body.
8. It has also been contended on behalf of the appellant that
amount of ₹80,000/- awarded for damages for pain suffering and trauma
is also highly exorbitant.
9. It has been contended by learned counsel for the appellant
that alongwith bills of medicines produced in evidence, there are Medical
Charges Reimbursement Forms duly attested by the Doctors which
indicates that medical charges were reimbursed to the claimant and,
therefore, claimant is not entitled for any compensation on account of
medical bills.
5 2025:HHC:12655
FAO (MVA) No. 181 of 2016
10. So far as awarding pecuniary damages (special damages)
and non-pecuniary damages (general damages) are concerned, the
Motor Accident Claims Tribunal has awarded compensation under
various heads after relying upon judgments of the Supreme Court in case
titled as R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd. And
others, (1995) 1 SCC 551 and Raj Kumar Vs. Ajay Kumar and
Another (2011) 1 SCC 343.
11. The aforesaid judgments have been considered, relied upon
and approved by the Supreme Court in its judgment in Sidram Vs.
Divisional Manager, United India Insurance Company Limited and
Another, (2023) 3 SCC 439 alongwith other judgment as under:-
“40. In Raj Kumar this Court has explained in the following terms the
general principles relating to compensation in injury cases and
assessment of future loss of earnings due to permanent disability:
(SCC pp. 347-52, paras 5-19)
“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
6 2025:HHC:12655
FAO (MVA) No. 181 of 2016physical 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. Subramania
Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970 SC
376] , R.D. Hattangadi v. Pest Control (India) (P) Ltd.
[(1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Baker v.
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, 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),
7 2025:HHC:12655
FAO (MVA) No. 181 of 2016
(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. 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
8 2025:HHC:12655
FAO (MVA) No. 181 of 2016
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
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
9 2025:HHC:12655
FAO (MVA) No. 181 of 2016
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.
[(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10
Scale 298] and Yadava Kumar v. National Insurance Co.
Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010)
8 Scale 567])
10 2025:HHC:12655
FAO (MVA) No. 181 of 2016
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 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
11 2025:HHC:12655
FAO (MVA) No. 181 of 2016
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 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,
12 2025:HHC:12655
FAO (MVA) No. 181 of 2016
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 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
13 2025:HHC:12655
FAO (MVA) No. 181 of 2016
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 of earning capacity is not the same
as the percentage of permanent disability (except in a few
14 2025:HHC:12655
FAO (MVA) No. 181 of 2016cases, 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).
(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 other factors.”
41. Later, in another judgment, i.e., Jakir Hussein v. Sabir and Others,
(2015) 7 SCC 252, this Court had to consider the correctness of a
compensation assessment based on the High Court’s analysis of the
injury to the victim (a driver who suffered permanent injury to his arm,
impairing movement as well as the wrist, which rendered him
incapable of driving any vehicle). The High Court had assessed
permanent disablement at 30%, even though the doctor had certified it
to be 55%. This Court, reversing the High Court order, observed inter
alia that:
“15. …..Due to this injury, the doctor has stated that the
appellant had great difficulty to move his shoulder, wrist and
elbow and pus was coming out of the injury even two years
after the accident and the treatment was taken by him. The
doctor further stated in his evidence that the appellant got
delayed joined fracture in the humerus bone of his right
hand with wiring and nailing and that he had suffered 55%
disability and cannot drive any motor vehicle in future due to
the same. He was once again operated upon during the
pendency of the appeal before the High Court and he was
hospitalised for 10 days. The appellant was present in
person in the High Court and it was observed and noticed
15 2025:HHC:12655
FAO (MVA) No. 181 of 2016by the High Court that the right hand of the appellant was
completely crushed and deformed. In view of the doctor’s
evidence in this case, the Tribunal and the High Court have
erroneously taken the extent of permanent disability at 30%
and 55%, respectively for the calculation of amount towards
the loss of future earning capacity. No doubt, the doctor has
assessed the permanent disability of the appellant at 55%.
However, it is important to consider the relevant fact,
namely, that the appellant is a driver and driving the motor
vehicle is the only means of livelihood for himself as well as
the members of his family. Further, it is very crucial to note
that the High Court has clearly observed that his right hand
was completely crushed and deformed.
16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], this
Court specifically gave the illustration of a driver who has
permanent disablement of hand and stated that the loss of
future earnings capacity would be virtually 100%. Therefore,
clearly when it comes to loss of earning due to permanent
disability, the same may be treated as 100% loss caused to
the appellant since he will never be able to work as a driver
again. The contention of the respondent Insurance
Company that the appellant could take up any other
alternative employment is no justification to avoid their
vicarious liability. Hence, the loss of earning is determined
by us at Rs 54,000 per annum. Thus, by applying the
appropriate multiplier as per the principles laid down by this
Court in Sarla Verma v. DTC [(2009) 6 SCC 121 : (2009) 2
SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], the total loss of
future earnings of the appellant will be at Rs 54,000 × 16 =
Rs 8,64,000.”
42. In Anthony alias Anthony Swamy v. Managing Director, Karnataka
State Road Transport Corporation, (2020) 7 SCC 161, where the
victim was a painter by profession, a three-Judge Bench had followed
Raj Kumar (supra) and Nagarajappa v. Divisional Manager, Oriental
16 2025:HHC:12655
FAO (MVA) No. 181 of 2016
Insurance Company Limited, (2011) 13 SCC 323. The High Court had
assessed the injury to be 25% permanent disability, although the
treating doctor had said that the injury incurred by the bus passenger
(who was earning Rs. 9000/- per month) was 75% of the left leg and
37.5% for the whole body. In Raj Kumar (supra), the physical disability
of the upper limb was determined as 68% in proportion to 22- 23% of
the whole-body. The High Court had assessed the injury as 25% and
granted compensation. However, this Court assessed the injury on the
basis that the disability was 75%, stating as follows: ”
8. PW 3 had assessed the physical functional disability of
the left leg of the appellant at 75% and total body disability
at 37.5%. The High Court has considered it proper to
assess the physical disability at 25% of the whole body only.
There is no discussion for this reduction in percentage,
much less any consideration of the nature of permanent
functional disability suffered by the appellant. The extent of
physical functional disability, in the facts of the case has to
be considered in a manner so as to grant just and proper
compensation to the appellant towards loss of future
earning. The earning capacity of the appellant as on the
date of the accident stands completely negated and not
reduced. He has been rendered permanently incapable of
working as a painter or do any manual work. Compensation
for loss of future earning, therefore has to be proper and just
to enable him to live a life of dignity and not compensation
which is elusive. If the 75% physical disability has rendered
the appellant permanently disabled from pursuing his
normal vocation or any similar work, it is difficult to
comprehend the grant of compensation to him in ratio to the
disability to the whole body. The appellant is therefore held
entitled to compensation for loss of future earning based on
his 75% permanent physical functional disability
recalculated with the salary of Rs 5,500 with multiplier of 14
at Rs 6,93,000.”
17 2025:HHC:12655
FAO (MVA) No. 181 of 2016
43. The question of amount of compensation payable to one suffering
injury as a result of motor vehicle accident was considered in Syed
Sadiq and Others v. Divisional Manager, United India Insurance
Company Limited, (2014) 2 SCC 735, when this Court had to apply the
correct standard for awarding compensation for loss of future
prospects for a vegetable vendor, whose right leg had to be
amputated, as a result of a motor accident. The High Court had
considered the disability to be 65%. This Court held as follows:
“7. Further, the appellant claims that he was working as a
vegetable vendor. It is true that a vegetable vendor might
not require mobility to the extent that he sells vegetables at
one place. However, the occupation of vegetable vending is
not confined to selling vegetables from a particular location.
It rather involves procuring vegetables from the wholesale
market or the farmers and then selling it off in the retail
market. This often involves selling vegetables in the cart
which requires 100% mobility. But even by conservative
approach, if we presume that the vegetable vending by the
appellant claimant involved selling vegetables from one
place, the claimant would require assistance with his
mobility in bringing vegetables to the market place which
otherwise would be extremely difficult for him with an
amputated leg. We are required to be sensitive while
dealing with manual labour cases where loss of limb is often
equivalent to loss of livelihood. Yet, considering that the
appellant claimant is still capable to fend for his livelihood
once he is brought in the market place, we determine the
disability at 85% to determine the loss of income.
8. The appellant claimant in his appeal further claimed that
he had been earning Rs 10,000 p.m. by doing vegetable
vending work. The High Court however, considered the loss
of income at Rs 3500 p.m. considering that the claimant did
not produce any document to establish his loss of income. It
is difficult for us to convince ourselves as to how a labour
18 2025:HHC:12655
FAO (MVA) No. 181 of 2016involved in an unorganised sector doing his own business is
expected to produce documents to prove his monthly
income…..”
44. In Arvind Kumar Mishra (supra), 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 v. Ram Avtar Tomar and Others, (2012) 2 SCC 267 (page
272), in a case of injury entailing loss of a leg, this 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 cyclerickshaw, 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
19 2025:HHC:12655
FAO (MVA) No. 181 of 2016a person engaged 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.
******** ********* **********
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.
******** ********* **********
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 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
20 2025:HHC:12655
FAO (MVA) No. 181 of 2016vast 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.”
45. One more decision, Sandeep Khanuja v. Atul Dande and Another,
(2017) 3 SCC 351, 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; as he had problems in
climbing stairs, back trouble while sleeping, etc. A rod was implanted in
his leg. He suffered 70% permanent disability, and mental and physical
agony. This Court enhanced the compensation, observing the proper
manner to calculate the extent of disability. This Court held as under:
“13. In the last few years, law in this aspect has been
straightened by this Court by removing certain cobwebs that
had been created because of some divergent views on
certain aspects. It is not even necessary to refer to all these
cases. We find that the principle of determination of
compensation in the case of permanent/partial disablement
21 2025:HHC:12655
FAO (MVA) No. 181 of 2016has been exhaustively dealt with after referring to the
relevant case law on the subject in Raj Kumar v. Ajay
Kumar [(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011)
1 SCC (Cri) 1161] in the following words: (SCC pp. 348-50,
paras 8-11)
“Assessment of future loss of earnings due to permanent
disability
8. xx xx xx
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,
22 2025:HHC:12655
FAO (MVA) No. 181 of 2016the 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.”
14. 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, MACT approached the issue in the right direction by
taking into consideration the aforesaid test. However, we feel that
the conclusion of MACT, on the application of the aforesaid test,
is erroneous. A very myopic view is taken by MACT in taking the
view that 70% permanent disability suffered by the appellant
would not impact the earning capacity of the appellant. MACT
23 2025:HHC:12655
FAO (MVA) No. 181 of 2016
thought that since the appellant is a Chartered Accountant, he is
supposed to do sitting work and, therefore, his working capacity
is not impaired. Such a conclusion was justified if the appellant
was in the employment where job requirement could be to do
sitting/table work and receive monthly salary for the said work.
An important feature and aspect which is ignored by MACT is
that the appellant is a professional Chartered Accountant. To do
this work efficiently and in order to augment his income, a
Chartered Accountant is supposed to move around as well. If a
Chartered Accountant is doing taxation work, he has to appear
before the assessing authorities and appellate authorities under
the Income Tax Act, as a Chartered Accountant is allowed to
practice up to Income Tax Appellate Tribunal. Many times
Chartered Accountants are supposed to visit their clients as well.
In case a Chartered Accountant is primarily doing audit work, he
is not only required to visit his clients but various authorities as
well. There are many statutory functions under various statutes
which the Chartered Accountants perform. Free movement is
involved for performance of such functions. 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……
15. In Arvind Kumar Mishra case [Arvind Kumar Mishra v. New
India Assurance Co. Ltd., (2010) 10 SCC 254 : (2010) 4 SCC
(Civ) 153 : (2010) 3 SCC (Cri) 1258], after following the judgment
in Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 176 : 1994
SCC (Cri) 335], the Court chose to apply multiplier of 18 keeping
24 2025:HHC:12655
FAO (MVA) No. 181 of 2016
in view the age of the victim, who was 25 years at the time of the
accident.
16. In the instant case, MACT had quantified the income of the
appellant at Rs 10,000 i.e. Rs 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 Rs 14,28,000. MACT had awarded compensation
of Rs 70,000 for permanent disability, which stands enhanced to
Rs 14,28,000. For mental and physical agony and frustration and
disappointment towards life, MACT has awarded a sum of Rs
30,000, which we enhance to Rs 1,30,000……..”
46. In the case of Arvind Kumar Mishra (supra), this Court observed as
under:
“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 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.”
25 2025:HHC:12655
FAO (MVA) No. 181 of 2016
47. In Pappu Deo Yadav v. Naresh Kumar and Others, AIR 2020 SCC
4424, it was held that 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 this 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 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.”
12. Perusal of heads, under which compensation has been
awarded, depicts that Motor Accident Claims Tribunal has awarded
compensation under various heads in consonance with the broad
principles laid down by the Supreme Court for awarding compensation.
13. Plea with respect to objection of the Insurance Company
with respect to medical bills, is not sustainable for the reasons that at the
time of production of medical bills Ex. PW-4/B1 to Ex. PW-4/B109, there
is mention of OT (Objected to), but it is not clear that who raised this
objection and on what ground. Therefore, in absence of specific mention
of the ground of objection raised and party who raised it, it is difficult to
26 2025:HHC:12655
FAO (MVA) No. 181 of 2016
assume and accept that Insurance Company had object to with respect to
mode of proof of these documents.
14. On one side Insurance Company is referring objection with
respect to mode of proof of these medical bills and on the other hand
learned counsel for the appellant-Insurance Company has relied upon the
forms of Medical Reimbursement Charges filed with these medical bills.
These Reimbursement Forms contained the details of medical bills
produced by the claimant and these have been duly attested by the
Medical Officers including Associate Professor verifying the expenditure
of the medicines and tests etc incurred by the claimant/respondent No. 1
daily treatment.
15. Plea of Insurance Company that these medicine bills were
reimbursed to claimant Nitya Nand is also not sustainable as there is no
mention of employer with whom claimant-respondent No. 1 was serving
with facility of medical reimbursement. Had there been reimbursement of
medical bills, then original bills with original verification forms duly
attested, verified and signed by treating Doctor would not have been
available with the claimant/respondent No. 1. In such eventuality, original
medical bills with original Medical Reimbursement Forms were to be
deposited with the employer for reimbursement.
16. There is force in argument of learned counsel for the
claimant/respondent No. 1 that there was and is no other way to get the
27 2025:HHC:12655
FAO (MVA) No. 181 of 2016
medical bills verified from the Doctor, except by filling up the Medical
Charges Reimbursement Forms, so as to place on record the medical
bills duly verified and attested by the Doctors/hospital wherefrom
claimant/respondent No. 1 had received treatment. It is not the case of
the appellant-Insurance Company that medical bills are fake. Therefore,
objection with respect to awarding compensation on the basis of medical
bills is not sustainable.
17. Claimant/respondent No. 1 has to suffer treatment for more
than 7 months and during this period he has also undergone surgery and
a plate was also inserted in his leg and he was not able to move at his
own. Therefore, damages for pain suffering and trauma @ ₹80,000/- is
justified.
18. The objection with respect to awarding ₹40,000/- by
assuming that claimant must have required at least two attendants,
deserves to be interfered with, because in the claim petition claimant has
referred engaging one attendant during his treatment from August, 2007
to March, 2008. However, even if one attendant had to be engaged for 6-
7 months it would not have been available at the minimum wages of
₹4,000/- per month in the year 2007. Work of attendant requires special
skill and patience. Such attendant has to work and serve round the
clock. Therefore, such attendant would be available on wages in
comparison to a normal labourer. Therefore, single attendant must have
28 2025:HHC:12655
FAO (MVA) No. 181 of 2016
been paid one and half time higher wages, which in present case would
be ₹6,000/- per month, thus total expenditure inured for attendant for
seven months comes to ₹42,000/-. Therefore, on this ground claimant-
respondent No. 2 is definitely entitled for at least ₹42,000/-
19. Earning of ₹6,000/- per month, claimed by the
claimant/respondent No. 1 in his evidence, was and is not disputed by the
Insurance Company either in cross-examination or otherwise. Motor
Accident Claims Tribunal has awarded loss of income for not going on
work for 6 months, whereas treatment for 7-8 months is evident from the
record. Therefore, instead of ₹36,000/-, claimant/respondent No. 1 is
entitled for ₹42,000/- as loss of income during his treatment.
20. Plea of Insurance Company that disability certificate Ex.
PW-4/C, placed on record, indicates only temporary disability that too at
the most for one year, has force. Because the certificate itself states that
disability is temporary in nature and is to be reassessed after a period of
one year. It was issued on 19.3.2009/-. Therefore, as argued by learned
counsel for the appellant-Insurance Company, temporary disability at the
most has been proved for one year only from the date of issuance of
certificate. In cross-examination on behalf of Insurance Company,
claimant/respondent No. 1 has also admitted himself that at the time of
deposing in the Court, i.e. on 20.7.2015, he had been cured (यह ठीक हे की
अब मै ठीक हो गया हँ )ू . Though, he has further clarified by saying self that
29 2025:HHC:12655
FAO (MVA) No. 181 of 2016
he feels pain in the legs, but pain in leg may not a substitute for proof of
permanent disability or loss of 100% earning capacity.
21. For the evidence on record, I am in agreement with the plea
raised on behalf of Insurance Company that at the most disability
certificate placed on record indicates the temporary disability of 25% till
March, 2010. Therefore, even if it is considered that claimant has
suffered 25% disability with respect to loss of income also, though it can
be less or more than that and for longer period but for want of any
material on record, it is not possible to assess the accurate loss of
income and also loss for future income beyond March, 2010. Therefore,
quantum of compensation determined under this head is not sustainable.
Therefore, loss of income under this head would have been at the most
till March, 2010. Loss of income till March, 2008 has already been
awarded @ 100% during the period of treatment. Therefore, future loss
of income can be considered only for 2 years i.e. from April, 2008 till
March, 2010 and accordingly the claimant/respondent No. 1 shall be
entitled for loss of future income @ 25% of total income on account of
temporary disability for two years which will be
6000×25%=₹1500x12x2=₹36,000/-.
22. The amount of ₹20,000/- awarded for special diet and
₹5000/- as cost is more than reasonable. Therefore, deserves no
interference.
30 2025:HHC:12655
FAO (MVA) No. 181 of 2016
23. No other ground urged or raised.
24. In view of above, under the head of medical expenses
claimant/respondent No. 1 is entitled for ₹1,41,047/- i.e.
(₹79,047+42,000+20,000/-=₹1,41,047/-).
25. Under the head of loss of income and future income,
claimant shall be entitled for ₹42,000/-+36,000/-=₹78,000/-.
26. Non pecuniary damages of ₹80,000/-, cost of ₹5,000/- as
well as interest @ 9% per annum from the date of filing the petition shall
remain unchanged.
27. Accordingly claimant/respondent No.1 is entailed for
compensation of ₹2,99,047/- alongwith 9% interest per annum from the
date of filing petition, i.e. 7.10.2009 till full and final payment or deposit of
the amount in the Court alongwith cost of ₹5,000/-. Rest terms of the
award shall remain as such.
The appeal is partly allowed and disposed of in aforesaid
terms, alongwith pending applications, if any.
(Vivek Singh Thakur),
th
6 May, 2025 Judge.
(Keshav)
[ad_1]
Source link