Compensation for personal injury must consider functional disability and pain suffered, with total compensation reflecting justness and proportionality based on medical evidence and contributory negligence.

JUDGMENT :

K.Vinod Chandran, J.

1. Leave granted.

2. The appellant while travelling pillion in a bike met with an accident when a bus rammed into the bike, killing the driver of the bike and seriously injuring the appellant. The right leg of the appellant was amputated, below the knee and the right hand was also deformed from the injuries sustained. The appellant before the Tribunal sought a total compensation of Rs.35,00,000/-, asserting a salary of Rs. 12,000/- per month as a watchman, which employment he was not able to continue after the accident, due to the amputation.

3. The Tribunal found contributory negligence on the bike driver which was apportioned @ 20% while the bus driver was found to be more negligent @ 80%. The Tribunal found that the income of the injured as per the documents produced clearly indicated Rs.9,918/- which was adopted for the purpose of deciding the loss of income which also was of a permanent nature due to the permanent physical disability suffered. The Tribunal relied on Raj Kumar v. Ajay Kumar , (2011) 1 SCC 343, to find 55% functional disability, for payment of Rs. 50,000/- and the income loss for 2 months was assessed at Rs. 20,000/. The medical bills coming to a total of Rs. 5,17,850/- was allowed with an additional amount of Rs. 10,000/- for special diet. The total compensation awarded by the Tribunal came to Rs.16,34,650/- with interest @ 9% per annum. The Tribunal directed the insurer of the bike and bus to compensate the petitioner respectively in a ratio of 20:80.

4. The High Court in the appeal granted 40% increase in the income as has been held in Pranay Sethi, (2017) 16 SCC 680. Actual loss of income was calculated for 6 months with the future prospects included. According to us, that may not be correct since 40% increase is to take in the future prospects of the injured and as on the date of accident when the income is proved, the loss of income should be based on the income proved before the Tribunal. We are conscious of the fact that the Insurance Company is not before us but since just compensation is to be paid, we reduce the same to Rs. 60,000/- for 6 months.

5. As far as the loss of future income is concerned, the Tribunal and the High Court adopted 55% as the disability. The learned Counsel appearing for the appellant would contend that he was working as a watchman and considering the amputation, his disability would be 100%. The appellant’s counsel would also seek for increase in the other heads including that for pain and suffering.

6. Raj Kumar (supra), found that the disability assessed for determining compensation should be the functional disability. In the present case the physical disability of the appellant was proved by the evidence of a doctor who examined him and assessed his physical disability. The certificate proved by the doctor clearly indicated 80% disability with respect to his amputated leg and 10% disability insofar as the deformed right hand. The doctor had clearly deposed that the stump of the right leg was also deformed and there was no possibility of using an artificial limb. In such circumstances, we are of the opinion that the disability of the appellant would be 80% only considering the fact that the appellant could still move on crutches. The appellant had been in hospital for one and a half months and due to the amputation, would have definitely suffered bed rest for some time in the context of which the High Court has granted 6 months loss of income though the loss of income has been reduced by us. We are of the opinion that the pain and suffering of the appellant has to be increased along with an increase for special diet and attendant charges. The compensation for pain and suffering would be Rs. 1,00,000/- and the attendant charges including special diet for th