The New India Assurance Co. Ltd. Policy Issuing Office at 2883, Vasant Dutey Road, Mahad, District Raigad, Through Mumbai Regional Office – V, Vindhya Commercial Complex, 2nd Floor, Section 11, CBD Belapur, Navi Mumbai – 400 614.

… Appellant
(Org. Insurer)

Versus

1. Smt. Sushama mahendra Sonawane Aged 32 years, Occupation Housewife, Widow of the deceased
2. Master Viraj Mahendra Sonawane Aged 10 years, Occupation Student, Son of the deceased Respondent No.2 being minor through Respondent Nos. 1 and 2 mother natural guardian and next friend Both residing at B/26/41, Vijay Nagari Complex, Ghod Bunder Road, Waghbil Naka, Thane – 400 607.
3. Mr. Laxman Bageshwar Yadav, 602, Maharani, Sector 17, Vashi, Navi Mumbai, Dist. Thane.

… Respondents
(Resp. 1-2 Org. Claimants,
Resp. 3 Org. Opp. Party)

…..

Mr. Devendranath S. Joshi for the Appellant and for the Applicant in CAF/991/2015.
Mr. U.N. Mehta along with Ms. Swati Uday Mehta for the Respondent Nos. 1 and 2.

…..

CORAM: R.D. DHANUKA, J.
RESERVED ON: 27th NOVEMBER, 2019
PRONOUNCED ON : 20th DECEMBER, 2019

JUDGMENT :

1. By this First Appeal filed under Section 173 of the Motor Vehicles Act, 1988, the appellant (original opponent no.2) has impugned the judgment and award dated 4th January, 2014 passed by the Motor Accident Claims Tribunal (MACT), Thane in Motor Accident Claim Petition (MACP) No. 608 of 2008 allowing the application filed by the respondent nos. 1 and 2 (original applicants) partly and directing the appellant and original opponent no. 1 to pay jointly and severally an amount of Rs.29,51,000/- to the respondent nos. 1 and 2 with interest @ 7% p.a. from the date of application till its realization. By consent of appellant and the respondent nos. 1 and 2, contesting parties, the First Appeal is heard finally. Some of the relevant facts for the purpose of deciding this First Appeal are as under:-

2. The respondent nos. 1 and 2 were the original applicants (claimants) before the Tribunal whereas the appellant was the original opponent no.2. The respondent nos. 1 was wife of the deceased Mahendra N. Sonawane, whereas the respondent no.2 was son of the said deceased. On 21st February, 2007 at 6:30 a.m. the said deceased was proceeding to Nashik by his Matiz Car bearing registration No.MH-12-AX-6678 along with his mother late Savita N. Sonawane. The said deceased was proceeding by Mumbai-Agra Road at a moderate speed and when his vehicle was within its lane of Mumbai-Agra highway, proceeding from Mumbai to Nashik and when the said vehicle reached near Gangaram Pada, opposite Soni Nursery and house of Mr. Vijay Salunke, at Villa Vadva, on the said highway, offending truck bearing registration no. MH-04-AL-7773 which was being driven very rashly, negligently, without observing rules of traffic and without proper lookout and which was at excessive speed could not controlled by its driver.

3. The said truck suddenly left its track and came to the wrong side and rammed into the car of the deceased. As a result thereof, the front side of the said vehicle driven by the said deceased came below the body of the truck and got crashed. As a result of the said accident, the said deceased Mahendra Sonawane and his mother Savita Sonawane died on the spot. Their bodies were removed out of the car after lifting the truck with the help of the crane. The said deceased as well as his mother were later declared as dead by the Indira Gandhi Memorial Hospital, Bhiwandi. The postmortem of the dead bodies was carried out. An offence was registered vide C.R.No.I-29/2007 dated 21st February, 2007 by Bhiwandi Police Station.

4. The respondent nos. 1 and 2 made various claims by filing MACP No. 608 of 2008 against the driver of the offending vehicle and the appellant in the sum of Rs.60,00,000/- along with interest @ 12% p.a. from the date of application till payment. The original opponent no.1 did not appear before the Tribunal and also did not file any written statement. The appellant herein resisted the claim by filing written statement and contended that the said claim petition was hit by non-joinder of parties and there was no cause of action against the appellant. It was the case of the appellant that as per the police papers, there were two vehicles involved in the motor vehicular accident i.e. the Matiz Car driven by the said deceased and the motor truck bearing registration no. MH-04-AL-7773. It was also urged that respondent nos. 1 and 2 herein had not impleaded the owner and insurer of the Matiz Car as necessary parties and thus the said claim was bad for non-joinder of necessary parties.

5. Mr. D.S. Joshi, learned counsel for the appellant invited my attention to some of the findings rendered by the Tribunal in the impugned judgment and award and would submit that the Tribunal has not considered the contributory negligent on the part of the deceased in the impugned judgment and award. He however fairly submitted that no evidence was led by the appellant before the Tribunal.

6. The next submission of the learned counsel for the appellant is that the driver of the offending vehicle was not examined by the respondent nos. 1 and 2 thus the Tribunal could not have awarded any compensation against the appellant on the ground of negligence on the part of the said driver of the offending vehicle.

7. In so far as the quantification of the claim awarded by the Tribunal is concerned, it is submitted by the learned counsel that the income tax return of the said deceased was filed by the respondent nos. 1 and 2 after the demise of the said deceased and thus such income tax return could not have been considered by the Tribunal. He submits that the respondent no.1 who was widow of the said deceased was remarried within 1 year of the date of demise of the said deceased and thus could not have filed any application for compensation arising out of the death of the said deceased being not a dependent. He submits that the accident had taken place on 21st February, 2007. The respondent no.1 was remarried on 13th March, 2008. The claim petition was filed by the respondent nos.1 and 2 only on 29th August, 2008.

8. Mr. U.N. Mehta, learned counsel for the respondent nos. 1 and 2 on the other hand submits that his client had already produced the copy of the Spot Panchanama, FIR, Truck Sketch, Inquest Panchanama and Postmortem Report. He submits that the documents produced by the respondent no.1 who was examined as a witness clearly showed that the driver of the offending vehicle was negligent. The truck bounced upon the bonnet and cabin of the car. He submits that the Tribunal thus rightly rendered a finding that the driver of the offending vehicle was solely responsible. The appellant did not examine the said driver of the offending vehicle.

9. In so far as the issue raised by the learned counsel for the appellant that the Tribunal had not considered the contributory negligence on the part of the deceased is concerned, learned counsel submits that the Tribunal has rightly rendered a finding that driver of the offending vehicle was solely responsible by considering the evidence produced on record in detail. It was for the appellant to examine the driver of the offending vehicle to prove that the said deceased was negligent and not the said driver of the offending vehicle.

10. In so far as the quantification of the claim awarded by the Tribunal is concerned, it is submitted by the learned counsel for the respondent nos. 1 and 2 that the Tribunal had rightly considered Form No. 16 filed by the respondent no.1 showing the income of the said deceased in the respective income tax returns.

11. In so far as the submission of the learned counsel for the appellant that in view of the remarriage of the respondent no.1 within 1 year from the date of demised of the said deceased and thus she could not be considered as a dependent of the said deceased and could not make any claim for compensation is concerned, it is submitted that the position of the widow for considering her claim as a dependent has to be considered on the date of the accident and not thereafter.

12. In support of this submission, learned counsel placed reliance on the judgment of Punjab and Haryana High Court in case of National Insurance Co. Ltd. v/s. Nidhi Goel and others, 2018 ACJ 2732 and in particular paragraphs 12 and 13. He also placed reliance on the judgment of this Court in case of New India Assurance Co. Ltd. v/s. Mona and others, 2011 ACJ 662 and in particular paragraph 7. On the issue of contributory negligent raised by the learned counsel for the appellant, learned counsel for the respondent nos. 1 and 2 placed reliance on the judgment of Allahabad High Court in case of Prabandhak, U.P. Rajya Sadak Parivahan Nigam v/s. Rabia Begum and others, 2015 ACJ 1492 and in particular paragraph 28 and would submit that the burden was on the appellant to prove the contributory negligence on the part of the said deceased, which burden the appellant failed to discharge.

13. Learned counsel for the respondent nos. 1 and 2 placed reliance on the judgment of Jammu and Kashimir High Court in case of Union of India and others v/s. Nusrat Khan and another, 2009 ACJ 2875 and in particular paragraph 17 and would submit that driver of the offending vehicle is not a necessary party but a proper party. In support of this submission, he also placed reliance on the judgment of Rajasthan High Court in case of Dayabhai v/s. Shri Gopal, 2010 (1) T.A.C. 945 (Raj.), the judgment of this Court in case of New India Assurance Co. Ltd. v/s. Babruwan and others, 2009 ACJ 2871, judgment of Gujarat High Court in case of New India Assurance Co. Ltd. v/s. Cargo Motors Ltd. And others, 2009 ACJ 2771.

14. Learned counsel for the respondent nos. 1 and 2 placed reliance on the judgment of Supreme Court in case of Navjyot Singh and others v/s. Delhi Transport Corporation and others, 2018 ACJ 540, in support of the submission that since the said deceased was self-employed, reliance on the income tax return to prove income of the said deceased including Form No. 16 was proper.

15. Learned counsel also relied upon paragraph 5 of the said judgment in support of the submission that the Tribunal ought to have allowed interest @ 9% p.a. instead of 7% p.a. Learned counsel also placed reliance on the unreported judgment of this Court in case of New India Assurance Company Limited v/s. Smt. Rajni Harshwardhan Sharma in First Appeal No. 445 of 2015 and would submit that Division Bench of this Court had awarded interest @ 9% p.a. It is lastly submitted by the learned counsel that the respondent no.2 has now become major and thus order of investment made by the Tribunal in respect of the compensation due and payable to the respondent no.2 shall be modified and an order be passed to release the payment of compensation to the extent of 50% in favour of the respondent no.2 directly.

REASONS AND CONCLUSIONS :-

16. I have heard the learned counsel for the appellant (original opponent no.2) and the learned counsel for the respondent nos.1 and 2 (original applicants) and have perused the pleadings, documents and evidence produced on record by the parties.

17. The Tribunal framed three issues for determination. It is not in dispute that the respondent nos.1 and 2 (original applicants) examined the witness who produced various documents including inquest panchnama, Post Mortem report and cause of death certificate in addition to the FIR and Spot panchanama. The said witness was cross-examined by the appellant’s counsel. The respondent nos.1 and 2 had also examined Mr.Raveendran P.M., Chartered Accountant of the said deceased who was also cross-examined by the appellant’s counsel.

18. The said witness examined by the respondent nos.1 and 2 produced income-tax returns for the year 2004 to 2007 along with the statements of income, PAN card and various other documents. He had also annexed Form 16 along with the respective income tax returns. The account statement of the said deceased issued by the Bank of Maharashtra was also produced. Certificate of Import and Export Code i.e. I.E.C. issued by Ministry of Commerce was also annexed with income tax returns.

19. The respondent no.1 deposed that the said deceased prior to his death was working as Director of M/s.Ceal Shipping & Logistics Pvt. Ltd. and in the year 2004-05, he was drawing a salary of Rs.1,70,000/- p.a. In the year 2005-06, he was drawing salary of Rs.1,80,700/- p.a. In the year 2006- 07, he was drawing salary of Rs.2,10,000/- p.a. His salary was increasing every year. The said witness also deposed that the said deceased was also running a proprietary concern M/s.Venkateshwara Sales Corporation and was exporting flowers to U.K. The said witness also produced the license obtained from Ministry of Commerce, Government of India. The Government of India had allotted him the import-export code.

20. In so far as the submission of the learned counsel for the appellant that the respondent nos.1 and 2 ought to have examined the driver of the offending vehicle and not having examined, the Tribunal could not have rendered a finding of negligence on the part of the said driver is concerned, in my view, there is no substance in this submission of the learned counsel for the appellant. It was for the appellant to examine the said driver of the offending vehicle to prove that the said deceased was responsible for the said accident or there was any contributory negligence on his part for the accident which had taken place. Learned counsel for the appellant did not dispute before this Court that no evidence was led by the appellant before the Tribunal.

21. The Allahabad High Court in case of Prabandhak, U.P. Rajya Sadak Parivahan Nigam v/s. Rabia Begum and others (supra) has held that burden was on the insurer to prove contributory negligence on the part of the deceased. In my view the appellant had failed to discharge such burden to prove by not leading any evidence.

22. A perusal of the findings rendered by the Tribunal clearly indicates that after considering large number of the documents produced by the respondent nos.1 and 2 in evidence which were not disputed by the appellant, when those documents were exhibited, the Tribunal rightly rendered a finding that the driver of the offending vehicle was solely responsible for the rash and negligent driving of the offending vehicle. I do not find any infirmity in the said finding of fact rendered by the Tribunal.

23. In so far as the quantification of claim awarded by the Tribunal is concerned, a perusal of the judgment and award indicates that the Tribunal has considered the oral and documentary evidence led by the respondent nos.1 and 2 and the Chartered Accountant of the said deceased who had produced various proof of income including income tax returns and Form 16 for several years. The said evidence of the Chartered Accountant or of the respondent no.1 was not shattered in the cross-examination by the appellant.

24. In so far as the submission of the learned counsel for the appellant that the respondent no.1 having remarried within one year from the date of death of the said deceased and thus could not have been awarded any claim for compensation as the said respondent no.1 was allegedly not dependent on the said deceased is concerned, in my view, the status of the widow as dependent has to be considered on the date of death of the said deceased and not on the date of filing the claim for compensation.

25. The Punjab and Haryana High Court in the case of National Insurance Co. Ltd. Vs. Nidhi Goel & Ors. (supra) has held that there is no bar under the Motor Vehicles Act, 1988 against a widow from claiming compensation on account of her re-marriage. After the death of her husband, the widow continues to represent his estate irrespective of her remarriage because she inherits part of the estate of her deceased husband. It is held that the said Motor Vehicles Act is a social welfare legislation and should be interpreted so as to fulfill its objective with which it was enacted. It is also held that though the said widow got re-married within about three months of the death of her husband, she was entitled to claim for compensation. The principles of law laid down by the Punjab and Haryana High Court are applicable to the facts of this case. I respectfully agree with the views expressed by the Punjab and Haryana High Court.

26. In my view, merely because widow of the said deceased was remarried within one year from the date of death of the deceased or even within the shorter period, that would not make the widow dis-entitled to make claim for compensation on the ground that the said widow was not dependent on the date of filing claim application. Such widow continues to represent the estate of the said deceased and thus was entitled to make claim for compensation irrespective of change of her marital status after demise of the said deceased. The status of the claimant as dependent has to be considered on the date of death of the said deceased and not on the date of date of making an application for seeking compensation arising out of such death of the husband. The Tribunal thus rightly considered the claim of the respondent no.1 being widow of the said deceased in view of the death of her husband due to the said accident, along with the claim of the respondent no.2 being also one of the legal heirs and representative of the said deceased.

27. This Court in the case of New India Assurance Co. Ltd. v/s. Mona and others (supra) has held that Section 166 of the Motor Vehicles Act is a social legislation and the same must be interpreted to further its objective.Remarriage cannot be an impediment in claiming compensation nor can it be a ground to reduce the compensation to which the widow is otherwise entitled to. In my view, the said judgment of this Court squarely applies to the facts of this case. I am respectfully bound by the said judgment.

28. In so far as the submission of the learned counsel for the appellant that no reliance on the income tax returns alone could be placed by the respondent nos.1 and 2 to show the income of the deceased is concerned, Supreme Court in the case of Navjyot Singh and others v/s. Delhi Transport Corporation and others (supra) has held that the said deceased was self-employed and thus reliance placed on the income tax returns of the said deceased including Form No.16 was proper.

29. In so far as the submission of the learned counsel for the appellant that the claim filed by the respondent nos.1 and 2 was bad for non-joinder of the driver of the offending vehicle is concerned, the Jammu and Kashmir High Court in case of Union of India and others v/s. Nusrat Khan and another (supra) has held that the driver of the offending vehicle is not a necessary party but proper party. Similar views has been also taken by the Rajasthan High Court in case of Dayabhai v/s. Shri Gopal (supra), by this Court in case of New India Assurance Co. Ltd. v/s. Babruwan and others (supra) and by the Gujarat High Court in case of New India Assurance Co. Ltd. vs. Cargo Motors Ltd. and others (supra). I respectfully agree with the views expressed by the Jammu and Kashmir High Court, Rajasthan High Court and the Gujarat High Court. The principles of law laid down by this Court are applicable to the facts of this case. I am respectfully bound by the said judgment.

30. In my view, the driver of the offending vehicle is not a necessary party but is proper party. The said claim thus could not have been rejected even otherwise on that ground by the Tribunal. It was for the appellant to examine the said driver of the offending vehicle as one of the witnesses which the appellant has failed in this case.

31. During the course of arguments, learned counsel for the respondent nos.1 and 2 also pressed in service an unreported judgment of this Court in case of New India Assurance Company Limited v/s. Smt. Rajni Harshwardhan Sharma (surpa) in support of the submission that the rate of interest @7% was on the lower side and ought to have awarded @9% p.a. In my view, in the facts and circumstances of this case, the Tribunal ought to have been awarded interest @9% p.a. Judgment of this Court in case of New India Assurance Company Limited (supra) applies to the facts of this case.

32. For the reasons recorded aforesaid, I do not find any infirmity in the findings rendered and the conclusions drawn by the Tribunal in awarding compensation except to the extent of rate of interest awarded by the Tribunal @7% p.a. Appeal is devoid of merit.

33. I therefore pass the following order :-
(i) The appellant and the respondent no.3 are jointly and severally liable to pay an amount of Rs.29,51,000/- to the respondent nos.1 and 2 with interest @9% p.a. from the date of claim petition till its realisation. The said amount shall be paid equally to the respondent nos.1 and 2.
(ii) Since the respondent no.2 has attained the age of majority, the order passed by the Tribunal to invest 50% share of the respondent no.2 in the Fixed Deposit is modified to the effect that the respondent no.2 would be entitled to be paid with his share.
(iii) The respondent nos.1 and 2 would be entitled to recover the entire amount awarded by the Tribunal by judgment and award dated 4th January 2014 duly modified by this order out of the amounts deposited by the appellant before the Tribunal.
(iv) The operative part of the judgment and award passed by the Tribunal stands modified to the aforesaid extent.
(iv) In view of the aforesaid order, if there is any shortfall in recovering the amount by the respondent nos.1 and 2, the appellant shall deposit the balance amount with the Tribunal within two weeks from the date of computation of shortfall. If the Tribunal finds any surplus amount deposited by the appellant, Tribunal shall refund the said surplus amount to the appellant within four weeks from the date of such computation.
(v) If there is any shortfall in payment of Court fees, the appellant shall pay the deficit within two weeks from the date of computation by the Tribunal. Respondent Nos. 1 and 2 would be at liberty to withdraw amount only upon payment of deficit Court fees, if any.
(vi) First appeal is disposed off on aforesaid terms. No order as to costs. Parties as well as the Tribunal to act on the authenticated copy of this order.
(R.D. DHANUKA, J.)

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.__17998_____OF 2017
(Arising from SLP (C) No.4841/2016)

Ankur Kapoor       ….Appellant
Versus
Oriental Insurance Co. Ltd.     ….Respondent

DATE : 6-November-2017

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. The appellant has sought enhancement of compensation by filing this appeal, questioning the judgment dated 31.10.2015 passed by the High Court of Punjab and Haryana at Chandigarh in FAO No. 3218 of 2003 (O&M).

3. Facts leading to this appeal are as under:

In the accident that occurred at about 10.30 p.m. on 21.3.2000 at Jamnagar, the appellant sustained grievous injury to his right arm which resulted in permanent disability to the extent of 50% to his right arm. Since the appellant was immediately admitted to the hospital at Jamnagar his life was saved; the appellant remained as in-patient in the hospital from 21.03.2000 to 31.05.2000 and had undergone several surgeries. It is the case of the appellant that even after discharge from the hospital at Jamnagar, he was taking treatment at Karnal as out-patient. At the time of accident, the appellant was “Dec Cadet trainee” of Merchant Navy in the Binnyship Management Company Ltd. and as a trainee, he was getting fifty US dollars per month as salary, apart from free boarding and lodging. It was the claim of the appellant that he would have become “third Officer” after 18 months and the said post was attached with the salary of 1500 US dollars per month. According to the appellant, he would have then become “Chief Officer” within three years and then “Captain” of the ship after about eight years of the service, but as a result of accident and as a result of permanent disability to the right arm of the appellant, he has not only lost his job in Binnyship Management Company Ltd. but he has become unfit for the Merchant Navy. He alleges that his future career is ruined, apart from sustaining heavy financial loss.

4. The Motor Accident Claims Tribunal, Karnal awarded compensation of Rs.6,60,000/- (Rupees Six Lacs Sixty Thousand only) along with 9% interest per annum from the date of filing the claim petition to the appellant.

5. Dissatisfied with the quantum of compensation, the appellant approached the High Court of Punjab and Haryana at Chandigarh seeking enhancement of compensation. The High Court has enhanced the compensation by Rs.2,20,000/- (Rupees Two Lacs Twenty Thousand only) along with interest @ 6% per annum, which means the appellant has been awarded a total compensation of Rs.8,80,000/- along with interest. As mentioned supra, this appeal is filed praying for further enhancement of compensation.

6. The Tribunal as well as the High Court have not quantified the compensation under separate heads, which in our considered opinion has resulted in grant of lesser compensation.

7. It is by now well settled by this Court in a catena of decisions including the case of Raj Kumar vs. Ajay Kumar reported in (2011) 1 SCC 343, in the case of permanent disability, the compensation is usually awarded under the following heads:

A. 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.

B. 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)

8. The record reveals that the Tribunal has made a note while recording the deposition of the claimant about the seriousness of the injuries sustained by the claimant. The observation of the Tribunal reads thus:

“At this stage I have seen the right arm i.e. right upper limb which is almost completely in a damaged condition and skin is not visible properly from elbow onward till shoulder and there seems to be some muscle loss.”

The record also reveals that the claimant was unconscious for a couple of days in the hospital and he was operated by the doctor at Jamnagar hospital. According to the appellant, he has spent an amount of Rs.3,00,000/- (Rupees Three Lacs only) at Jamnagar hospital. Thereafter, he has taken the assistance of Dr. O.P.Miglani at Karnal for getting the dressing done every day. The disability certificate is Ex. P1 and the treatment certificate issued by the hospital is Ex. P9. Due to the injuries sustained, the appellant has lost strength and flexibility in his right arm and he cannot lift the weight. The appellant cannot raise the arm beyond the level of 90 degree and he cannot drive the vehicle as his arm is not as strong as it was before the accident. The appellant had completed six and half months training prior to the incident. When the ship had halted at Jamnagar for ten days, he took casual leave for seven days to go to Karnal for applying fresh passport, during which time the accident occurred. After completion of his 10+2, the appellant had passed Diploma in Applied Research International, New Delhi which is a condition precedent for joining Merchant Navy. The appellant had also passed Diploma in Personal Safety and Social Responsibilities, Oil Tanker Familiarization, Elementary First Aid, Personal Survival Techniques, Fire Prevention and Fire Fighting(all are related to sea courses) for Dec Cadet and thereafter he joined Binniship Management Company as Dec Cadet. The record further reveals that the appellant has to undergo one more surgery i.e. plastic surgery at Mumbai inasmuch as such facility is not available in his native place at Karnal. According to the appellant, the said surgery may cost him rupees three to four lacs.

9. Having regard to the afore-mentioned material on record and keeping in mind that the future of the appellant has become bleak, so also his marriage prospects are reduced to greater extent, in our considered opinion, the compensation awarded to the appellant needs to be enhanced to certain extent.

The appellant, as mentioned supra, has spent about rupees three lacs for treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure during the course of treatment. He lost his earnings during the course of treatment, i.e., at least for a period of four months. He has also lost his future earnings since he may not be able to do the job as before and he cannot join Merchant Navy. Even, it would be very difficult for him to get an alternate job easily, particularly in view of 50% permanent disability to his right arm. Thus, the appellant is awarded Rs.10,00,000/- (Rupees Ten Lacs only) on account of the expenses relating to treatment, hospitalization, medicines etc, loss of earnings during the course of treatment and loss of future earnings on account of permanent disability. The appellant is awarded Rs.3,00,000/- (Rupees Three Lacs only) for future medical expenses. The appellant must have suffered pain, agony and trauma as a consequence of injuries. The Court can take judicial notice of the fact that he may not have bright future as before. He was just 22 years of age at the time of accident and was unmarried. It is unfortunate that he had to suffer at this young age when he was thinking of his bright future life. Having regard to the material on record, we award Rs.3,00,000/-(Rupees Three Lacs only) towards pain, agony and trauma as a consequence of injuries, and Rs.3,00,000/-(Rupees Three Lacs only) towards loss of amenities(including loss of prospects of marriage) and Rs.3,00,000/-(Rupees Three Lacs only) towards loss of expectation of life.

10. Thus, on all counts, the appellant is awarded, in total, a compensation of Rs.22,00,000/-(Rupees Twenty Two Lacs only), instead of Rs.8,80,000/-(Rupees Eight Lacs Eighty Thousand only) awarded by the High Court, along with uniform rate of interest @ 8% per annum from the date of filing of the claim petition before the Motor Accident Claims Tribunal till its realization. It is also directed that the payment of compensation with interest shall be made to the appellant within three months from today. Needless to mention that any amount, if already paid, shall be adjusted. The findings of the Motor Accident Claims Tribunal and the High Court regarding composite negligence and liability to pay will remain undisturbed.

11. The instant appeal is accordingly allowed to the aforesaid extent. There shall be no order as to costs.

…………….J.
[S.A. BOBDE]
…………….J.
[MOHAN M. SHANTANAGOUDAR]

NEW DELHI;
NOVEMBER 06, 2017.

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1329 OF 2017
(ARISING OUT OF SLP (C) NO. 22790 OF 2013)

SANDEEP KHANUJA         …..APPELLANT(S)
VERSUS
ATUL DANDE & ANR.         …..RESPONDENT(S)

JUDGMENT

A.K. SIKRI, J.
Leave granted.

2) In a motor accident, the appellant herein suffered physical injuries. It happened on July 08, 2006 when the appellant was going on a scooter to Gram Pendri in the State of Chhattisgarh. When he reached near Gram Pendri, a Hyundai Getz car bearing Registration No. MH 12 CR 6917, driven by respondent No.1, hit the scooter, as a result of which the appellant fell down and sustained fractures on both the legs, thereby suffering permanent disability to some extent. He filed claim for compensation against the respondents before the Motor Accidents Claims Tribunal (MACT), Rajnandgaon, Chhattisgarh. The MACT, vide award dated May 05, 2009, granted him compensation in the sum of ₹5,35,227, under the following heads:

3) Not satisfied with the quantum of compensation, the appellant approached the High Court by way of appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, the ‘Act’). The High Court has, vide impugned judgment, enhanced the compensation to 6,35,000. The ₹ High Court has not awarded compensation under different heads but has deemed it proper to award lump sum compensation in the aforesaid amount. Relevant discussion in this behalf can be traced to paras 8 and 9 of the impugned judgment, which reads as under:

“(8) We have gone through the evidence adduced by the claimant on the issue of injury sustained by him. In our opinion, taking into consideration the nature of injury, the permanent disability occurred on the body of the appellant (claimant) to some extent, as a result of which he claims to be not as fit as he was prior to accident in his day-to-day work, resulting in reducing his capacity to do some extent of work, the expenditure incurred in receiving medical treatment in actual, the loss and mental pain suffered due to his involvement in accident we consider it proper to enhance in lump sum the compensation from Rs.5,35,227/- to Rs.6,35,000/-. In other words, in our view, the claimant is held entitled for a total sum of Rs.6,35,000/- by way of compensation for the injuries sustained by him.

(9) In our considered opinion, due to injuries in both legs which is also duly proved in evidence by the claimant and his doctor, he cannot freely move and attend to his duties. His movements are restricted to a large extent and that too in young age. It is for all these reasons, we feel that the Tribunal had awarded a less compensation under this head and hence, some enhancement under the head of pain and suffering and also under the head of permanent partial disability and loss of earning capacity is called for. This enhancement figure is arrived at taking into consideration all relevant factors.”

4) The appellant is not satisfied with the aforesaid approach and the manner in which the compensation is awarded. According to him, had the Court applied proper provision and principles laid down under the Act, the appellant would have been entitled to much more compensation.

5) We may state, at the outset, that the MACT recorded a specific finding that the accident took place due to rash and negligent driving of car by respondent No.1 which hit the scooter of the appellant. Respondent No.1 did not challenge the finding of the MACT and, therefore, this aspect has attained finality and we need not go into the same. The dispute, therefore, pertains only to the quantum of the compensation that has to be awarded. Few facts relevant for resolving the dispute, which appear on the record, are as under:

6) At the time of the accident, the appellant was aged about 30 years. He was working as a Chartered Accountant. The appellant had produced evidence to the effect that he had worked as a Chartered Accountant for various institutions for which he was paid professional fee. He had produced statements in this behalf (Exhibits P-195 to P-208) and on that basis he claimed that his monthly income was 34,600. He also proved ₹ on record the income tax return for the year 2006-2007 (Exhibit P-194). The certificates which were produced by the appellant showing the professional fee which he had received was not accepted by the MACT on the ground that he had started the business in the month of March 2006 and there was enough professional competition in the said field. Moreover, the person issuing the certificate had not been produced. On this basis, the Tribunal assessed the monthly income of the appellant at ₹10,000.

7) Insofar as injuries suffered by the appellant in the said accident are concerned, he had stated that his health had impaired drastically and lungs infected because of which he was admitted in the Intensive Care Unit and he was kept on ventilator and was operated thrice. He had problem in climbing stairs, running, trouble of back while sleeping, etc. A rod is planted in his leg. Because of all this he has suffered 70% permanent disability, apart from mental and physical agony and the said disability is going to give him frustration and disappointment towards life. He pleaded that this disability has affected his efficiency in work as well resulting in loss of future income as well.

8) As already noticed above, the MACT granted him compensation by reimbursing expenses incurred towards treatment and transportation, loss of income, mental and physical agony and expenses for removing the rod planted in his leg. The appellant contends that compensation awarded for mental agony and physical suffering is too less. That apart, his main grievance is that only a paltry sum of ₹70,000 is awarded by the MACT for permanent disability suffered by him, which is too inadequate.

9) We may note in this behalf that the MACT, though accepted the aforesaid injuries and physical incapacity suffered by the appellant, was of the opinion that even when it was not possible for the appellant to do work like a healthy person, looking to the nature of the said injuries, insofar as work of a Chartered Accountant is concerned, he could still perform it properly and there was no impairment therein. For this reason, the MACT refused to award compensation to the appellant by applying the principle of multiplier based on permanent disability and granted a lump sum amount of 70,000. The High Court has not gone ₹ into this aspect specifically.

10) In this conspectus, the only argument advanced by the learned counsel for the appellant was that the appellant was entitled to the compensation on the basis of multiplier, as per the provisions of the Act, fur suffering permanent disability to the extent of 70% and there was no reason not to apply the said multiplier.

11) Learned counsel for the respondent, on the other hand, made an endeavour to justify the approach of the MACT with the submission that when the injuries suffered by him, even resulting in 70% permanent disability, had no adverse affect on the working of the appellant, who was a Chartered Accountant, he was not entitled to have the compensation computed by invoking the principle of multiplier.

12) We may observe at the outset that it is now a settled principle, repeatedly stated and restated time and again by this Court, that in awarding compensation the multiplier method is logically sound and legally well established. This method, known as ‘principle of multiplier’, has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident. Recognition to this principle was given for the first time in the year 1966 in the case of Municipal Corporation of Delhi v. Subhagwanti & Ors. Again, in Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar & Ors. , the Court referred to an English decision while emphasising the import of this principle in the following manner:

“4. A method of assessing damages, usually followed in England, as appears from Mallet v. McMonagle , is to calculate the net pecuniary loss upon an annual basis and to “arrive at the total award by multiplying the figure assessed as the amount of the annual ‘dependency’ by a number of ‘year’s purchase’ that is the number of years the benefit was expected to last, taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand…”

13) While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be. In injury cases, the description of the nature of injury and the permanent disablement are the relevant factors and it has to be seen as to what would be the impact of such injury/disablement on the earning capacity of the injured. This Court, in the case of U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors. justified the application of multiplier method in the following manner:

“13. It was rightly clarified that there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of ‘just’ compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country.”

The multiplier system is, thus, based on the doctrine of equity, equality and necessity. A departure therefrom is to be done only in rare and exceptional cases.

14) 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 has been exhaustively dealt with after referring to the relevant case law on the subject in the case of Raj Kumar v. Ajay Kumar & Ors. in the following words:

“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 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.”

15) The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, the MACT approached the issue in right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of the MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT 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 the 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, as held by this Court in Yadava Kumar v. Divisional Manager, National Insurance Company Limited & Anr. :

“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.”

16) In that case, after following the judgment in Kerala SRTC v. Susamma Thomas7 , the Court chose to apply multiplier of 18 keeping in view the age of the victim, who as 25 years at the time of the accident.

17) In the instant case, the MACT had quantified the income of the appellant at ₹ 10,000, i.e. ₹ 1,20,000 per annum. Going by the age of the appellant at the time of the accident, multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70%, the compensation under this head would be worked out at ₹ 14,28,000. The MACT had awarded compensation of ₹ 70,000 for permanent disability, which stands enhanced to ₹ 14,28,000. For mental and physical agony and ₹ frustration and disappointment towards life, the MACT has awarded a sum of ₹ 30,000, which we enhance to ₹ 1,30,000. In this manner, the compensation that is payable to the appellant is worked out as under:

The appellant shall also be entitled to the interest, as awarded by the High Court, as well as costs of this appeal. The amount shall be paid to the appellant within two months after deducting the payments already made.

18) The appeal is disposed of accordingly.

……………J.
(A.K. SIKRI)
……………J.
(R.K. AGRAWAL)

NEW DELHI;
FEBRUARY 02, 2017.

The post Sandeep Khanuja vs. Atul Dande & Anr. appeared first on B&B Associates LLP.

DATE: 06-January-1995

BENCH: SINGH N.P. (J) AHMADI A.M. (CJ)

CITATION: 1995 AIR 755 1995 SCC (1) 551, JT 1995 (1) 304 1995 SCALE (1)79

JUDGMENT:

The Judgment of the Court was delivered by N.P SINGH, J.- The appellant met with an accident while travelling in an Ambassador car (Registration No. MEQ 4583) on 20-5-1980 at about 8.30 a.m. near Village Sirur on Karwar-Mangalore Road (National Highway No. 17) within the State of Karnataka. There was a head-on collision between the car in which the appellant was travelling and the motor lorry (Registration No. MYS 7218). Because of the said collision, the driver of the car in which the appellant was travelling was thrown out and died on the spot, whereas the appellant was trapped between the dashboard and the seat. Mr Nagarkatti who was also travelling with the appellant in the car was thrown on the road. The impact was so severe that the front left side of the door of the car was jammed and could not be opened. Seeing the accident, the villagers gathered and broke open the left side of the car with the help of crowbar and the appellant was taken out. The appellant was removed to the Kasturba Hospital where he was treated as indoor patient from 20-5-1980 to 27-5-1980. When the relations of the appellant reached the hospital, a decision was taken to remove the appellant to Bombay and accordingly on 27-5-1980 he was brought to Bombay and was admitted in the Sion Hospital. The appellant remained in the said hospital as indoor patient from 27-5-1980 to 2-8- 1980. Because of the accident, the appellant suffered serious injuries resulting into 100% disability and a paraplegia below the waist.

2. The car was owned by M/s Pest Control (India) Pvt. Ltd., Respondent 1 and was insured with New India Assurance Company Limited, Respondent 2. The motor lorry was owned by one Madhav Bolar – Respondent 3 and was insured by Oriental Fire and General Insurance Company Limited, Respondent 4. According to the appellant, the driver of the car in which the appellant was sitting as well as the driver of the lorry which was coming from the opposite side, both were driving in a rash and negligent manner which resulted in a head-on collision. On 11-10-1980 the appellant gave notice to the Insurance Company and other parties who were liable to pay compensation and called upon them to pay compensation of Rs4,00,000. Since there was no response, on 13-11-1980 the appellant filed the claim petition under Section 110 -A of the Motor Vehicles Act, 1939 (hereinafter referred to as the ’Act’). Initially, the appellant made a claim for compensation amounting to Rs4,00,000 but on 16-4-1984 he claimed Rs 35,00,000 as the compensation from the respondents and claim petition was amended. The age of the appellant at the time of accident was 52 years.

3.The appellant was a practising advocate before the accident. He was also a Judge of the City Civil Court for sometime until he resigned in the year 1964. The appellant used to appear in the various courts including the High Court and the Supreme Court of India. Because of tile accident, the appellant became disabled and he was unable to resume his practice.

4.The claim made on behalf of the appellant was resisted by the respondents to the said petition on different grounds. The owner of the lorry resisted his liability to pay any amount of compensation on the ground that although he was the owner of the said lorry but since it was insured with Respondent 4, the insurance company was liable to pay compensation, if any, to the appellant. M/s Pest Control (India) Pvt. Ltd. who were the owners of the car resisted the claim made on behalf of the appellant asserting that the driver of the said car was driving the car very cautiously and carefully and the accident took place entirely due to the negligence on the part of the driver of the motor lorry. In any case, according to the said respondent, the compensation claimed on behalf of the appellant was excessive, imaginary and speculative in nature, which according to the said respondent was an attempt to make “a fortune out of misfortune”. Respondent 2, New India Assurance Co. Ltd,, with whom the car in question was insured took a plea that their liability was limited to the requirements as per law and terms and conditions of the insurance policy issued by them in favour of Respondent 1. The Oriental Fire and General Insurance Co. Ltd., who had insured the motor lorry of Respondent 3, their stand was also the same that they were bound by the terms and conditions of the insurance policy.

5.The Accidents Claim Tribunal on consideration of the materials on record and the evidence adduced on behalf of the parties passed on Award directing Respondents 1 and 2 to pay jointly and severally to the appellant compensation of Rs 26,25,992 to-ether with interest at the rate of 12% per annum from the rate of the application i.e. 13-11-1980 till payment and costs of the said application within three months. The Tribunal was also of the view that Respondent 4 the insurer of the motor lorry belonging to Respondent 3 was liable to pay the compensation to the extent of Rs 50,000 and interest there on and proportionate costs. In the award a direction was given to Respondent 2, the insurer of the car to pay all the compensation along with interest and costs on behalf of Respondent 1.

6.Against the Award aforesaid, two appeals were filed before the High Court, one on behalf of the appellant for enhancement of the compensation awarded by the Tribunal and the other on behalf of M/s Pest Control (India) Pvt. Ltd., Respondent 1 and New India Assurance Co. Ltd., Respondent 2 questioning the validity and correctness of the award in question. The High Court by the impugned judgment modified the award of the Tribunal and reduced the compensation from Rs 26,25,992 to Rs 8,57,352. The High Court has also reduced the rate of interest from 12% per annum to the rate of 6% per annum. The award against the insurer of the lorry Respondent 4 was affirmed and direction was given to make payment with interest at the rate of 6% and the proportionate costs. It was further directed that if the respondents failed and neglected to pay the amount in full or part, such defaulted amount shall carry 12% interest per annum from the date of default till its realisation. On the aforesaid finding the appeal filed on behalf of the appellant was dismissed, whereas the appeal filed on behalf of Respondents 1 and 2 was allowed by the High Court in part.

7.During the last few decades question of payment of compensation for accidents has assumed great importance, which is correlated with the accidents which have touched a new height not only in India but in different parts of the world. Initially, the theory of payment of compensation was primarily linked with tort compensation- only if the injury or damage was caused by someone’s fault. Of late the injury or damage being caused by someone’s fault is being read as because of someone’s negligence or carelessness. That is why any damage caused by negligent conduct is generally actionable irrespective of the kind of activity out of which the damage arose. Even in an action based on the tort, the applicant has to show that the defendant was negligent i.e. there was a failure on his part to take that degree of care which was reasonable in the circumstances of the case. There has never been any doubt that those using the highways are under a duty to be careful and the legal position today is quite plain that any person using the road as a motorist will be liable, if by his action he negligently causes physical injuries to anybody else.

8.The Tribunal as well as the High Court has examined the evidence adduced on behalf of the parties and have recorded clear findings that at the relevant time the car and the lorry were being driven in a rash and negligent manner. Reference has been made to the evidence adduced on that question. The fact that the front left side of the car was entangled with the front middle of the lorry speaks about the rashness on the part of the drivers of the two vehicles. The Tribunal has also pointed out from the materials on record that the motor car had gone to the wrong side of the road at the time of the accident. The High Court after referring to the order of the Tribunal said that after going through the evidence of the witnesses and the circumstances placed, it was of the opinion that the Tribunal was right in holding that there was composite negligence on the part of the drivers of both the vehicles and because of such negligence the appellant had sustained such serious injuries. The High Court also said that in view of composite negligence, the appellant was entitled for damages from the owners of both the vehicles and consequently the insurers of the two vehicles shall also be liable subject to the terms and conditions of the insurance policies. The Tribunal as well as the High Court were satisfied that because of the accident aforesaid, the appellant had become paraplegic and it was not easy to assess the exact compensation which is payable to him.

9.Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:
(i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

10.It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury “so far as money can compensate” because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.

11. In the case Ward v. James1 it was said “Although you cannot give a man so gravely injured much for his ’lost years’, you can, however, compensate him for his loss during his shortened span, that is, during his expected ’years of survival’. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do 1 (1965) 1 All ER 563 the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money.”

12. In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.

13.This Court in the case of C.K. Subramonia Iyer v. T Kunhikuttan Nair2 inconnection with the Fatal Accidents Act has observed: “In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.”

14. In Halsbury’s Laws of England, 4th Edn., Vol. 12 regarding nonpecuniary loss at page 446 it has been said:

“Non-pecuniary loss: the pattern.- Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.”

15. We are informed that during the pendency of the appeal before the High Court on basis of interim directions- Rs 3 lakhs and Rs 9 lakhs, in total Rs 12 lakhs have been directed to be deposited. However, in the final decision, the High Court was of the opinion that the appellant was entitled to Rs 8,57,352 only as the compensation. 16.During the hearing of the appeal a chart was circulated showing the amountsclaimed on behalf of the appellant under different heads and the amountsallowed or rejected by the High Court under those heads. So far, the amount mentioned against SI. No. 1 is concerned, the High Court has allowed the whole claim of Rs 47,652 and there is no dispute on that account. Against SI. Nos. 2 to 6 the appellant had claimed Rs 37,688 for Ayurvedic treatment against which an amount of Rs 4000 has been allowed by the High Court. According to us, this part of the judgment of the High Court does not require any interference. Against SI. No. 7 the appellant has 2 AIR 1970 SC 376: (1970) 2 SCR 688 claimed for Fowler’s Bed, Rs 21,000 for the present and Rs 21,000 for the future which has not been allowed. Same is the position in respect of electric wheelchair against SI. No. 8 which has been claimed at the rate of Rs 50,000 for the present and Rs 50,000 for the future which has been rejected by the High Court. According to us, when admittedly because of the injuries suffered during the accident, the appellant has become paraplegic, the aforesaid amounts should have been allowed by the High Court. Accordingly, we allow the said claim for Rs 1,42,000 under SI. Nos. 7 and 8. So far claim for Air-Inflated Bed at SI. No. 9 is concerned, the appellant has claimed Rs 5000 for the present and Rs 5000 for the future. The High Court has allowed only Rs 5000 for the present. According to us, the remaining amount of Rs 5000 also should have been allowed by the High Court. Coming to the claim for home attendants against SI. No. 9A, the appellant has claimed Rs 55,450 for the present and Rs 1,87,200 for the future. The High Court has allowed Rs 36,000 and Rs 72,000 respectively. We feel that there was no occasion for the High Court to be so mathematical on this question. Under the circumstances prevailing in the society in respect of home attendants, the High Court should have allowed the amount as claimed by the appellant. We accordingly allow the same. For Drugs and Tablets (Allopathic), claim has been made for Rs 9000 for the present and Rs 18,000 for the future. The High Court has allowed Rs 5400 and Rs 10,800 respectively under that head as detailed against SI. No. 10. The claim under this head appears to be reasonable and should have been allowed, we allow the same. Against SI. No. 11 the appellant has claimed for Ayurvedic treatment Rs 7800 for the present and Rs 37,440 for the future. The High Court has allowed Rs 7200 and Rs 12,000 respectively. According to us this part does not require any interference. Under SI. No. 12 (i) bedsore dressing charges for the present and future have been claimed respectively at Rs 72,900 and Rs 1,29,600 against which the High Court has allowed Rs 20,000 and Rs 10,000 respectively. In normal course for bedsore the claim for Rs 72,900 for the present and Rs 1,29,600 for the future appears to be exorbitant. The High Court has rightly directed payment of Rs 20,000 and Rs 10,000. As such this part of the finding of the High Court does not require interference. Under SI. No. 12 (ii) claim has been made for catheterization charges at Rs 1,29,600 for the present and Rs 2,59,200 for the future. The High Court has allowed Rs 10,000 and Rs 5000 respectively. We are of the opinion that the amount awarded by the High Court under this head does not require any interference. So far the order of the High Court in respect of bladder-wash charges and enema charges is concerned, it also does not require any interference. Under SI. No. 13 Rs 20,100 has been claimed as charges for consulting surgeons for the present and Rs 14,400 has been claimed for the future. The High Court has allowed Rs 5000 for the present and the same amount for future. We feel that this part of the finding of the High Court does not require any interference. For physiotherapy under SI. No. 14, Rs 34,200 has been claimed for the present and Rs 1,87,200 for the future. The High Court has allowed Rs 12,000 for the present and Rs 12,000 for the future. It is well known that for victims of road accidents, physiotherapy is one of the acknowledged mode of treatment which requires to be pursued for a long duration. The High Court should have allowed Rs 34,200 as claimed by the appellant for the present and at least Rs 50,000 for the future. However we allow the same. In respect of loss of earnings under Si. No. 15 claim has been made for Rs 1,80,000, the High Court has allowed Rs 1,44,000. The High Court should have allowed the whole claim. We allow the same. For loss of future earnings, claim has been made at Rs 3,60,000. The High Court has allowed Rs 1,62,000 in respect of loss of future earnings. This part of the award does not require any interference because an amount of Rs 1,62,000 can be held to be a reasonable amount to be awarded taking all facts and circumstances in respect of the future earnings of the appellant.

17. The claim under SI. No. 16 for pain and suffering and for loss of amenities of life under SI. No. 17, are claims for non-pecuniary loss. The appellant has claimed lump sum amount of Rs 3,00,000 each under the two heads. The High Court has allowed Rs 1,00,000 against the claims of Rs 6,00,000. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for nonpecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration. According to us, as the appellant was an advocate having good practice in different courts and as because of the accident he has been crippled and can move only on wheelchair, the High Court should have allowed an amount of Rs 1,50,000 in respect of claim for pain and suffering and Rs 1,50,000 in respect of loss of amenities of life. We direct payment of Rs 3,00,000 (Rupees three lakhs only) against the claim of Rs 6,00,000 under the heads “Pain and Suffering” and “Loss of amenities of life”.

18. So far the direction of the High Court regarding payment of interest at the rate of 6% over the total amount held to be payable to the appellant is concerned, it has to be modified. The High Court should have clarified that the interest shall not be payable over the amount directed to be paid to the appellant in respect of future expenditures under different heads. It need not be pointed out that interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditures to be incurred in future. As such we direct that appellant shall not be entitled to interest over such amount.

19. The appeals of the appellant are allowed to the extent indicated above. No costs.

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8981 OF 2010
(Arising out of SLP (C) No. 10383 of 2007)

Raj Kumar             ….Appellant
Vs.
Ajay Kumar & Anr.       ….Respondents

ORDER

R.V.RAVEENDRAN, J.

Leave granted. Heard.

2. The appellant was injured in a motor accident on 1.10.1991 and sustained fracture of both bones of left leg and fracture of left radius. He was under treatment from 1.10.1991 to 16.6.1992. The Motor Accident Claims Tribunal, by award dated 20.7.2002, awarded compensation of Rs.94,700/-, with interest at 9% per annum from the date of petition till date of realization. The amount awarded was made up of Rs.11,000/- towards medical expenses, conveyance and special diet; Rs.3600/- towards loss of earning during period of treatment; Rs.25,000/- for pain and suffering; and Rs.55,080 towards loss of future earnings. For calculating the loss of future earnings, the Tribunal took the minimum wage as the monthly income of the appellant, that is Rs.891/- rounded off to Rs.900/- and deducted one-third therefrom towards the personal and living expenses; and by assuming the percentage of disability (45%) shown in disability certificate to be the economic disability, the Tribunal arrived at loss of future earnings as 45% of Rs.600/-, that is Rs.270/- per month or Rs.3,240/- per annum. By applying a multiplier of 17, it arrived at Rs.55,080/- as the loss of future earnings. The appellant filed an appeal seeking increase in compensation. The High Court rejected the said appeal by the impugned judgment dated 31.1.2007 on the ground that the disability certificate produced by the appellant was not reliable. The said judgment of the High Court is challenged in this appeal by special leave.

3. The appellant puts forth two grievances: (i) the assessment of monthly income at Rs.900/- was very low; and (ii) deduction of one third of the income (towards personal and living expenses) while assessing the future loss of earning was not warranted. The questions that therefore arise for our consideration are whether the principles adopted for assessing the compensation were erroneous and whether compensation awarded requires to be increased.

General principles relating to compensation in injury cases

4. The provision of the Motor Vehicles Act, 1988 (‘Act’ for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair – AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. – 1995 (1) SCC 551 and Baker vs. Willoughby – 1970 AC 467).

5. 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 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. 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

6. 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.

7. 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%.

8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method 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).

9. 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.

10. 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 permanen disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of ‘loss of future earnings’, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.

11. 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 the 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. 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.

12. 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 crossexamination 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.

13. 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.

14. 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/-
b) Loss of future earning per annum (70% : Rs.42000/- of the expected annual income)
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)].

15. 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.”

16. 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. Tribunals should realize 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 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.

Assessment of compensation

17. In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons. Firstly though the accident occurred in Delhi and the injured claimant was treated in a Delhi Hospital after the accident, as he hailed from Chirori Mandi in the neighbouring District of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the treatment in the place where he resided. Secondly the certificate has been issued by the Chief Medical Officer, Ghaziabad, on the assessment made by the Medical Board which also consisted of an Orthopaedic Surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate.

18. The Tribunal has proceeded on the basis that the permanent disability of the injured-claimant was 45% and the loss of his future earning capacity was also 45%. The Tribunal overlooked the fact that the disability certificate referred to 45% disability with reference to left lower limb and not in regard to the entire body. The said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent of loss of earning capacity, as the disability would not have prevented him from carrying on his avocation as a cheese vendor, though it might impede in his smooth functioning. Normally, the absence of clear and sufficient evidence would have necessitated remand of the case for further evidence on this aspect. However, instead of remanding the matter for a finding on this issue, at this distance of time after nearly two decades, on the facts and circumstances, to do complete justice, we propose to assess the permanent functional disability of the body as 25% and the loss of future earning capacity as 20%.

19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.

20. In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses.

21. As the income of the appellant is assessed at Rs.18000/- per annum, the loss of earning due to functional disability would be 20% of Rs.18000/- which is Rs.3600/- per annum. As the age of appellant at the time of accident was 25, the multiplier applicable would be 18. Therefore, the loss of future earnings would be 3600 x 18 = Rs.64,800/- (as against Rs.55,080/- determined by the Tribunal). We are also of the view that the loss of earning during the period of treatment (1.10.1991 to 16.6.1992) should be Rs.12750/- at the rate of Rs.1500/- for eight and half months instead of Rs.3600/- determined by the Tribunal. The increase under the two heads is rounded of to Rs.20,000/-.

22. In view of the above, we allow this appeal in part and increase the compensation by Rs.20,000/- which shall carry interest at the rate awarded by the Tribunal, from the date of petition to the date of payment.

……J.
(R. V. Raveendran)

……J
(H. L. Gokhale)

New Delhi;
October 18, 2010.

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Judgement Reportable
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 3483 OF 2008
(Arising out of SLP [C] No.8648 of 2007)

Smt. Sarla Verma & Ors. … Appellants
Vs
Delhi Transport Corporation & Anr. … Respondents

ORDER

R.V.RAVEENDRAN, J.

The claimants in a motor accident claim have filed this appeal by special leave seeking increase in compensation.

2. One Rajinder Prakash died on account of injuries sustained in a motor accident which occurred on 18.4.1988 involving a bus bearing No.DLP 829 belonging to the Delhi Transport Corporation. At the time of the accident and untimely death, the deceased was aged 38 years, and was working as a Scientist in the Indian Council of Agricultural Research (ICAR) on a monthly salary of Rs.3402/- and other benefits. His widow, three minor children, parents and grandfather (who is no more) filed a claim for Rs.16 lakhs before the Motor Accidents Claims Tribunal, New Delhi. An officer of ICAR, examined as PW-4, gave evidence that the age of retirement in the service of ICAR was 60 years and the salary received by the deceased at the time of his death was Rs.4004/- per month.

3. The Tribunal by its judgment and award dated 6.8.1993 allowed the claim in part. The Tribunal calculated the compensation by taking the monthly salary of the deceased as Rs.3402. It deducted one-third towards the personal and living expenses of the deceased, and arrived at the contribution to the family as Rs.2250 per month (or Rs.27,000/- per annum).

In view of the evidence that the age of retirement was 60 years, it held that the period of service lost on account of the untimely death was 22 years.

Therefore it applied the multiplier of 22 and arrived at the loss of dependency to the family as Rs.5,94,000/-. It awarded the said amount with interest at the rate of 9% per annum from the date of petition till the date of realization. After deducting Rs.15000/- paid as interim compensation, it apportioned the balance compensation among the claimants, that is, Rs.3,00,000/- to the widow, Rs.75000/- to each of the two daughters, Rs.50000/- to the son, Rs.19000/- to the grandfather and Rs.30000/- to each of the parents.

4. Dissatisfied with the quantum of compensation, the appellants filed an appeal. The Delhi High Court by its judgment dated 15.2.2007 allowed the said appeal in part. The High Court was of the view that though in the claim petition the pay was mentioned as Rs.3,402 plus other benefits, the pay should be taken as Rs.4,004/- per month as per the evidence of PW-4.

Having regard to the fact that the deceased had 22 years of service left at the time of death and would have earned annual increments and pay revisions during that period, it held that the salary would have at least doubled (Rs.8008/- per month) by the time he retired. It therefore determined the income of the deceased as Rs.6006/- per month, being the average of Rs.4,004/- (salary which he was getting at the time of death) and Rs.8,008/- (salary which he would have received at the time of retirement). Having regard to the large number of members in the family, the High Court was of the view that only one fourth should be deducted towards personal and living expenses of the deceased, instead of the standard one-third deduction.

After such deduction, it arrived at the contribution to the family as Rs.4,504/- per month or Rs.54,048/- per annum. Having regard to the age of the deceased, the High Court chose the multiplier of 13. Thus it arrived at the loss of dependency as Rs.702,624/-. By adding Rs.15,000/- towards loss of consortium and Rs.2,000/- as funeral expenses, the total compensation was determined as Rs.7,19,624/-. Thus it disposed of the appeal by increasing the compensation by Rs.1,25,624/- with interest at the rate of 6% P.A. from the date of claim petition.

5. Not being satisfied with the said increase, the appellants have filed this appeal. They contend that the High Court erred in holding that there was no evidence in regard to future prospects; and that though there is no error in the method adopted for calculations, the High Court ought to have taken a higher amount as the income of the deceased. They submit that two applications were filed before the High Court on 2.6.2000 and 5.5.2005 bringing to the notice of the High Court that having regard to the pay revisions, the pay of the deceased would have been Rs.20,890/- per month as on 31.12.1999 and Rs.32,678/- as on 1.10.2005, had he been alive. To establish the revisions in pay scales and consequential re-fixation, the appellants produced letters of confirmation dated 7.12.1998 and 28.10.2005 issued by the employer (ICAR). Their grievance is that the High Court did not take note of those indisputable documents to calculate the income and the loss of dependency. They contend that the monthly income of the deceased should be taken as Rs.18341/- being the average of Rs.32,678/- (income shown as on 1.10.2005) and Rs.4,004/- (income at the time of death). They submit that only one-eighth should have been deducted towards personal and living expenses of the deceased. They point out that even if only one fourth (Rs.4585/-) was deducted therefrom towards personal and living expenses of the deceased, the contribution to the family would have been Rs.13,756/- per month or Rs.1,65,072/- per annum. They submit that having regard to the Second Schedule to the Motor Vehicles Act, 1988 (`Act’ for short), the appropriate multiplier for a person dying at the age of 38 years would be 16 and therefore the total loss of dependency would be Rs.26,41,152/-. They also contend that Rs.1,00,000/- should be added towards pain and suffering undergone by the claimants. They therefore submit that Rs.27,47,152/- should be determined as the compensation payable to them.

6. The contentions urged by the parties give rise to the following questions:

(i) Whether the future prospects can be taken into account for determining the income of the deceased ? If so, whether pay revisions that occurred during the pendency of the claim proceedings or appeals therefrom should be taken into account ?
(ii) Whether the deduction towards personal and living expenses of the deceased should be less than one-fourth (1/4th) as contended by the appellants, or should be one-third (1/3rd) as contended by the respondents ?
(iii) Whether the High Court erred in taking the multiplier as 13 ? (iv) What should be the compensation ? The general principles

7. Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of courts Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. [1951 AC 601] and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601]. The difference between the two methods was considered and explained by this Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, this Court preferred the Davies method to Nance method. We extract below the principles laid down in Susamma Thomas:

“In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether.”

“The matter of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year’s purchase.”

“The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.”

“It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years – virtually adopting a multiplier of 45 – and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible.”

In UP State Road Transport Corporation vs. Trilok Chandra [1996 (4) SCC 362], this Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus :

“In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, remarriage, accelerated payment and increased earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very often as a rough and ready measure, one-third to one-half of the dependency was reduced, depending on the life-span taken. That is the reason why courts in India as well as England preferred the Davies’ formula as being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas’ case, usually English courts rarely exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/Courts began to use a hybrid method of using Nance’s method without making deduction for imponderables……..Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier.”

[emphasis supplied]

8. The lack of uniformity and consistency in awarding compensation has been a matter of grave concern. Every district has one or more Motor Accident Claims Tribunal/s. If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system. We may refer to the following observations in Trilok Chandra :

“We thought it necessary to reiterate the method of working out `just’ compensation because, of late, we have noticed from the awards made by Tribunals and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realized that the Tribunal/Court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused.”

Compensation awarded does not become `just compensation’ merely because the Tribunal considers it to be just. For example, if on the same or similar facts (say deceased aged 40 years having annual income of 45,000/- leaving him surviving wife and child), one Tribunal awards Rs.10,00,000/- another awards Rs.5,00,000/-, and yet another awards Rs.1,00,000/-, all believing that the amount is just, it cannot be said that what is awarded in the first case and last case, is just compensation. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective.

Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated :

“So the proper method of computation is the multiplier method. Any departure, except in exceptional and extra-ordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation.”

9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased;

and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:

Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.

Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.

Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency’ to the family.

Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.

The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.

Question (i) – addition to income for future prospects

10. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects. In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1032/- per month.

Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2000/- as gross income before deducting the personal living expenses.

The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996] INSC 342; [1996 (3) SCC 179], where the deceased was getting a gross salary of Rs.1543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2200/- per month. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/- per annum, (Rs.3500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.

11. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words `actual salary’ should be read as `actual salary less tax’]. The addition should be only 30% if the age of the deceased was 40 to 50 years.

There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.

Re : Question (ii) – deduction for personal and living expenses

12. We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one. It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was a married, and one-half (50%) of the income if the deceased was a bachelor.

This practice was evolved out of experience, logic and convenience. In fact one-third deduction, got statutory recognition under Second Schedule to the Act, in respect of claims under Section 163A of the Motor Vehicles Act, 1988 (`MV Act’ for short).

13. But, such percentage of deduction is not an inflexible rule and offers merely a guideline. In Susamma Thomas, it was observed that in the absence of evidence, it is not unusual to deduct one-third of the gross income towards the personal living expenses of the deceased and treat the balance as the amount likely to have been spent on the members of the family/dependants. In UPSRTC v. Trilok Chandra [1996] INSC 666; [1996 (4) SCC 362], this Court held that if the number of dependents in the family of the deceased was large, in the absence of specific evidence in regard to contribution to the family, the Court may adopt the unit method for arriving at the contribution of the deceased to his family. By this method, two units is allotted to each adult and one unit is allotted to each minor, and total number of units are determined. Then the income is divided by the total number of units. The quotient is multiplied by two to arrive at the personal living expenses of the deceased. This Court gave the following illustration:

“X, male, aged about 35 years, dies in an accident. He leaves behind his widow and 3 minor children. His monthly income was Rs. 3500. First, deduct the amount spent on X every month. The rough and ready method hitherto adopted where no definite evidence was forthcoming, was to break up the family into units, taking two units for and adult and one unit for a minor. Thus X and his wire make 2+2=4 units and each minor one unit i.e. 3 units in all, totaling 7 units. Thus the share per unit works out to Rs. 3500/7=Rs. 500 per month. It can thus be assumed that Rs. 1000 was spent on X. Since he was a working member some provision for his transport and out-of-pocket expenses has to be estimated. In the present case we estimate the out-of-pocket expense at Rs. 250. Thus the amount spent on the deceased X works out to Rs. 1250 per month per month leaving a balance of Rs. 3500-1250=Rs.2250 per month. This amount can be taken as the monthly loss of X’s dependents.”

In Fakeerappa vs Karnataka Cement Pipe Factory – 2004 (2) SCC 473, while considering the appropriateness of 50% deduction towards personal and living expenses of the deceased made by the High Court, this Court observed:

“What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction.”

In view of the special features of the case, this Court however restricted the deduction towards personal and living expenses to one-third of the income.

14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.

15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically.

Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.

Re :Question (iii) – selection of multiplier

16. In Susamma Thomas, this Court stated the principle relating to multiplier thus:

“The multiplier represents the number of years’ purchase on which the loss of dependency is capitalized. Take for instance a case where annual loss of dependency is Rs.10,000. If a sum of Rs.1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually, the multiplier in this case work out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalize the loss of the annual dependency at Rupees 10,000 would be 20. Then the multiplier, i.e.

the number of years’ purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lumpsum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc., Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up.”

17. The Motor Vehicle Act, 1988 was amended by Act 54 of 1994, inter alia inserting Section 163A and the Second Schedule with effect from 14.11.1994. Section 163A of the MV Act contains a special provision as to payment of compensation on structured formula basis, as indicated in the Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs.3,000/- to Rs.40,000/-. It does not specify the quantum of compensation in case the annual income of the deceased is more than Rs.40,000/-. But it provides the multiplier to be applied with reference to the age of the deceased. The table starts with a multiplier of 15, goes upto 18, and then steadily comes down to 5. It also provides the standard deduction as one-third on account of personal living expenses of the deceased. Therefore, where the application is under section 163A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is not specified with reference to the annual income of the deceased, or is more than Rs.40,000/-, by applying the formula : (2/3 x AI x M), that is two-thirds of the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation. Several principles of tortious liability are excluded when the claim is under section 163A of MV Act. There are however discrepancies/errors in the multiplier scale given in the Second Schedule Table. It prescribes a lesser compensation for cases where a higher multiplier of 18 is applicable and a larger compensation with reference to cases where a lesser multiplier of 15, 16, or 17 is applicable. From the quantum of compensation specified in the table, it is possible to infer that a clerical error has crept in the Schedule and the `multiplier’ figures got wrongly typed as 15, 16, 17, 18, 17, 16, 15, 13, 11, 8, 5 & 5 instead of 20, 19, 18, 17, 16, 15, 14, 12, 10, 8, 6 and 5. Another noticeable incongruity is, having prescribed the notional minimum income of non-earning persons as Rs.15,000/- per annum, the table prescribes the compensation payable even in cases where the annual income ranges between Rs.3000/- and Rs.12000/-.

This leads to an anomalous position in regard to applications under Section 163A of MV Act, as the compensation will be higher in cases where the deceased was idle and not having any income, than in cases where the deceased was honestly earning an income ranging between Rs.3000/- and Rs.12,000/- per annum. Be that as it may.

18. The principles relating to determination of liability and quantum of compensation are different for claims made under section 163A of MV Act and claims under section 166 of MV Act. (See : Oriental Insurance Co. Ltd.

vs. Meena Variyal – 2007 (5) SCC 428). Section 163A and Second Schedule in terms do not apply to determination of compensation in applications under Section 166. In Trilok Chandra, this Court, after reiterating the principles stated in Susamma Thomas, however, held that the operative (maximum) multiplier, should be increased as 18 (instead of 16 indicated in Susamma Thomas), even in cases under section 166 of MV Act, by borrowing the principle underlying section 163A and the Second Schedule. This Court observed:

“Section 163-A begins with a non obstante clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or injured, as the case may be. Now if we turn to the Second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims arising out of fatal accidents. The first column gives the age group of the victims of accident, the second column indicates the multiplier and the subsequent horizontal figures indicate the quantum of compensation in thousand payable to the heirs of the deceased victim.

According to this table the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Thus, under this Schedule the maximum multiplier can be up to 18 and not 16 as was held in Susamma Thomas case…..

Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier……What we propose to emphasise is that the multiplier cannot exceed 18 years’ purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16…”

19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years) :

Age of the Multiplier Multiplier Multiplier Multiplier Multiplier actually deceased scale as scale as scale in Trilok specified in used in Second envisaged in adopted Chandra as second column in Schedule to MV Act Susamma by Trilok clarified in the Table in II (as seen from the Thomas Chandra Charlie Schedule to MV quantum of Act compensation) (1) (2) (3) (4) (5) (6) Upto 15 yrs – – 15 20 15 to 20 yrs. 16 18 18 16 19 21 to 25 yrs. 15 17 18 17 18 26 to 30 yrs. 14 16 17 18 17 31 to 35 yrs. 13 15 16 17 16 36 to 40 yrs. 12 14 15 16 15 41 to 45 yrs. 11 13 14 15 14 46 to 50 yrs. 10 12 13 13 12 51 to 55 yrs. 9 11 11 11 10 56 to 60 yrs. 8 10 09 8 8 61 to 65 yrs. 6 08 07 5 6 Above 65 5 05 05 5 5 yrs.

20. Tribunals/courts adopt and apply different operative multipliers.

Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above);

and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.

21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.

Question (iv) – Computation of compensation

22. In this case as noticed above the salary of the deceased at the time of death was Rs.4,004. By applying the principles enunciated by this Court to the evidence, the High Court concluded that the salary would have at least doubled (Rs.8008/-) by the time of his retirement and consequently, determined the monthly income as an average of Rs.4004/- and Rs.8008/- that is Rs.6006/- per month or Rs.72072/- per annum. We find that the said conclusion is in conformity with the legal principle that about 50% can be added to the actual salary, by taking note of future prospects.

23. Learned counsel for the appellants contended that when actual figures as to what would be the income in future, are available it is not proper to take a nominal hypothetical increase of only 50% for calculating the income. He submitted that though the deceased was receiving Rs.4004/- per month at the time of death, as per the certificates issued by the employer (produced before High Court), on the basis of pay revisions and increases, his salary would have been Rs.32,678/- in the year 2005 and there is no reason why the said amount should not be considered as the income at the time of retirement. It was contended that the income which is to form the basis for calculation should not therefore be the average of Rs.4004/- and Rs.8008/-, but the average of Rs.4004/- and Rs.32,678/-.

24. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could rely upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation.

25. The appellants next contended that having regard to the fact that the family of deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one- third, nor one-fourth as assessed by the High Court, but one-eighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one-third in all cases (unless the calculation is under section 163A read with Second Schedule to the MV Act). The percentage of deduction on account personal and living expenses can certainly vary with reference to the number of dependant members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependants. As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on travelling/transportation and other needs. Therefore we are of the view that interest of justice would be met if one-fifth is deducted as the personal and living expenses of the deceased. After such deduction, the contribution to the family (dependants) is determined as Rs.57,658/- per annum. The multiplier will be 15 having regard to the age of the deceased at the time of death (38 years). Therefore the total loss of dependency would be Rs.57,658 x 15 = Rs.8,64,870/-.

26. In addition, the claimants will be entitled to a sum of Rs.5,000/- under the head of `loss of estate’ and Rs.5000/- towards funeral expenses. The widow will be entitled to Rs.10,000/- as loss of consortium. Thus, the total compensation will be Rs.8,84,870/-. After deducting Rs.7,19,624/- awarded by the High Court, the enhancement would be Rs.1,65,246/-.

27. We allow the appeal in part accordingly. The appellants will be entitled to the said sum of Rs.165,246/- in addition to what is already awarded, with interest at the rate of 6% per annum from the date of petition till the date of realization. The increase in compensation awarded by us shall be taken by the widow exclusively.

Parties to bear respective costs.

………..J.
(R V Raveendran)

………..J.
April 15, 2009 (Lokeshwar Singh Panta)

New Delhi;
April 15, 2009

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HALAPPA ….. APPELLANT
Versus
MALIK SAB ….. RESPONDENT

DATE : 15th December 2017

J U D G M E N T

Dr D Y CHANDRACHUD, J

1 The High Court of Karnataka by a judgment dated 12 July 2011 reversed a decision of the Motor Accident Claims Tribunal awarding compensation to the appellant in the amount of Rs.8,66,000/- with interest @ 7% per annum. While reversing the award of compensation, the High Court has come to the conclusion that the appellant was sitting on the mudguard of a tractor and this was not a risk insured by the insurer. Upon this finding, the High Court allowed the appeal of the insurer and rejected the appeal filed by the appellant for enhancement of compensation.

2 The accident took place on 24 September 2005. The appellant was 28 years old at the time of the accident. The case of the appellant is that on 24 September 2005 he was visiting Sirigere to attend an event. A demonstration of tractors was being held at 11.30 A.M. by Sonalika tractors. The appellant, who is an agriculturist, claimed that when he approached the tractor, the driver was unable to bring it to a halt as a result of which it turned turtle and collided with the appellant resulting in his sustaining grievous injuries. A first information report was registered at the Bharamasagara Police Station under Case Crime 147 of 2005 and a charge-sheet was filed against the driver for offences punishable under Sections 279 and 338 of the Penal Code.

3 The appellant claimed compensation in the amount of Rs.25,00,000/-. The appellant was examined as PW 1 in support of his claim. PW 2 Dr Jayaprakash was examined to prove the nature of the injuries sustained by the appellant. The evidence indicated that immediately after the accident the appellant was taken for treatment to the community health centre, Sirigere where he was administered first aid. He was thereafter shifted to Bapuji Hospital, Davangere from where he was referred to the M S Ramayya Hospital, Bangalore for further treatment. The medical records showed that the appellant had suffered paraplegia with a compression fracture. The appellant has been permanently immobilized, is wheel-chair bound, and requires artificial support for bladder and bowel evacuation. The lower portion of his body has been paralyzed. Dr Jayaprakash, PW 2, deposed in evidence that the disability of the appellant is one hundred per cent since both his lower limbs have been paralyzed resulting in a loss of bladder and bowel control.

4 Before the Tribunal the defence of the insurer was that the appellant was riding on the mudguard of the tractor, this having been stated in the FIR. According to the insurer, the policy of insurance did not cover the risk of anyone other than the driver of the tractor. The Tribunal rejected the defence of the insurer and relied upon the testimony of the appellant which was found to have been corroborated by the evidence of PW 3, an eye-witness to the incident. On the aspect of compensation the Tribunal noted that the appellant belongs to a family of agriculturists which has a land holding of 5 acres and 25 gunthas. The appellant was married. The Tribunal did not accept the plea of the appellant that his monthly income was Rs.10,000/-, in the absence of cogent proof. The Tribunal assumed the income of the appellant to be Rs.3,000/- per month. The age of the appellant at the time of the accident being 28 years, the Tribunal applied a multiplier of 16 and computed the compensation on account of the loss of future earning capacity at Rs.5,76,000/-. An additional amount of Rs.50,000/- was awarded towards loss of amenities and Rs.30,000/- for future medical expenses. An amount of Rs.2,10,000/- was awarded towards medical expenses, pain and suffering. Consequently, a total compensation of Rs.8,66,000/- was awarded together with interest at 7% per annum from the date of the claim petition until realization. The driver, owner and insurer have been held to be jointly and severally liable.

5 The appellant filed an appeal for enhancement of compensation. The insurer had also filed an appeal questioning its liability. The High Court has allowed the appeal of the insurer and dismissed the appeal filed by the appellant. The High Court held that in the first information report which was registered on the date of the accident on the basis of the statement of the appellant, it was stated that the appellant was sitting on the mud-guard next to the driver of the tractor. Subsequently on 30 September 2005 another statement was recorded by the police in which the appellant stated that the accident had taken place as a result of the rash and negligent act of the tractor driver, due to which the tractor had turned turtle and fallen over the appellant. In the view of the High Court, the police had attempted to protect the liability of the owner and had recorded a further statement to support the plea that the appellant was a third party and that the tractor had fallen upon him. The High Court has also doubted as to how the police could have recorded the statement of the appellant on 30 September 2005 when he was shifted to M S Ramayya Hospital in Bangalore.

6 Learned counsel appearing on behalf of the appellant submits that the High Court has manifestly erred in reversing the considered judgment of the Tribunal. The appellant urged that the finding of fact recorded by the Tribunal on the basis of substantive evidence could not have been reversed purely on the basis of the FIR. Moreover, it was urged that the insurer had not produced any ocular evidence to displace what was stated by the appellant in the course of his deposition and which was supported by PW 3 who had witnesses the accident.

7 On the other hand, the learned counsel appearing on behalf of the insurer has supported the judgment of the High Court and urged that the finding that the appellant was injured while riding on the mud-guard of the tractor is correct. Consequently it was urged that the insurance policy which was issued to the owner did not cover the risk arising from a third party riding on the tractor and there was hence a breach of the insurance policy.

8 The judgment of the Tribunal indicates that the defence of the insurer based on the first information report, the complaint Exh.P1 and the supplementary statement of the appellant at Exh.P2 was duly evaluated. The Tribunal, however, observed thus:

“…the respondent no.3 and RW.1 submitted that the petitioner has invited the alleged unfortunate accident but except the FIR and complaint Ex.P.1 the respondent no.3 has not produced any documents to show that at the time of accident the petitioner was travelling as a passenger by sitting on the engine of the tractor in question. During the course of cross-examination RW.1 has admitted that the respondent no.3 has maintained a separate file in respect of accident in question and he has also admitted that the respondent no.3 has not produced the investigator’s report of this case. Admittedly the respondent no.3 has not examined any independent eye witness to the accident to prove that on the relevant date and time of the accident the petitioner was travelling as a passenger by sitting on the engine of the tractor. If really the petitioner has sustained grievous injuries by falling down from the engine of said tractor the respondent no.3 insurer could have produced the separate file maintained by it in respect of the accident in question and it could have also produced investigator’s report in respect of the said accident but admittedly the respondent no.3 has not produced the said separate file and investigator’s report in respect of the accident in question for the reasons best known to it. On the other hand as already stated above it is clear from the statement of petitioner on oath and eye witness and from the supplementary statement of petitioner at Ex.P.2 and police statement of witnesses at Ex.P.3 and Charge Sheet at Ex.P.6 it is clear that due to rash and negligent driving of said tractor by respondent no.1 the said tractor turtle down and fell over the petitioner who was about to board the tractor and as a result of which the petitioner has sustained grievous injuries. Moreover as already stated above the Investigating Officer concern after detail investigation has filed the Charge Sheet against the respondent no.1 for the offences punishable u/s.279 and 338 IPC…”

The High Court has proceeded to reverse the finding of the Tribunal purely on the basis that the FIR which was lodged on the complaint of the appellant contained a version which was at variance with the evidence which emerged before the Tribunal. The Tribunal had noted the admission of RW1 in the course of his cross-examination that the insurer had maintained a separate file in respect of the accident. The insurer did not produce either the file or the report of the investigator in the case. Moreover, no independent witness was produced by the insurer to displace the version of the incident as deposed to by the appellant and by PW 3. The cogent analysis of the evidence by the Tribunal has been displaced by the High Court without considering material aspects of the evidence on the record. The High Court was not justified in holding that the Tribunal had arrived at a finding of fact without applying its mind to the documents produced by the claimant or that it had casually entered a finding of fact. On the contrary, we find that the reversal of the finding by the High Court was without considering the material aspects of the evidence which justifiably weighed with the Tribunal. We are, therefore, of the view that the finding of the High Court is manifestly erroneous and that the finding of fact by the Tribunal was correct.

9 That leaves the Court to determine the quantum of compensation. The medical evidence on the record shows that the lower limbs of the appellant have been paralyzed resulting in a loss of bladder and bowel control. The medical evidence establishes that the disability of the appellant is one hundred per cent. The medical records have been scrutinized by the Tribunal. The appellant suffers from traumatic paraplegia and was hospitalized for 42 days. The appellant was 28 years of age when the accident took place on 24 September 2005. In our view, the monthly income of the appellant, having regard to the facts and circumstances of the case should be taken at Rs.4,000/-. After allowing for future prospects and making a deduction for present expenses, the compensation payable to the appellant shall stand enhanced by an amount of Rs.1,50,000/- from Rs.5,75,000/- to Rs.7,75,000/-. The amount for future medical expenses which has been fixed at Rs.30,000/- should be enhanced to Rs.1,20,000/- having regard to the serious nature of the disability. In other words, the compensation of Rs.8,66,000/- awarded by the Tribunal shall be enhanced by an additional amount of Rs.2,70,000/-. The appellant shall be entitled to interest @7% p.a. from the date of the claim petition until realization. The insurer shall deposit the compensation or, as the case may be, the balance payable in terms of this judgment within a period of 12 weeks from today before the Tribunal which shall be released to the appellant upon due verification.

10 The appeals are allowed in the above terms with no order as to costs.

………………………………….CJI
[DIPAK MISRA]

…………………………………..J
[A.M. KHANWILKAR]

…………………………………..J
[Dr D Y CHANDRACHUD]

New Delhi
December 15, 2017

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