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2014 Supreme(P&H) 294
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
FAO No. 2358 of 1999
Naresh Kumar
v.
Kartar Singh & Ors.
{Decided on 11/04/2014}
For the Appellant:Mr. R.S. Mamli, Advocate.
For the Respondent No.3:Mr. Manmohan, Advocate for Mr. Suman Jain, Advocate.
Headnote:Accident--Disability--Assessing of percent age--Mere reference to percentage of disability cannot convey any meaning--It should be co-relate to the actual injuries.
Accident--Personal Injury--Loss of pain and suffering and loss of Earning Capacity--Both are to be calculated under distinct heads.
(A) Motor Vehicles Act, 1988, S.166--Accident--Personal Injury--Pecuniary Loss--Factors to be considered--(i) age; (ii) employment/avocation and income; (iii) period of hospitalisation and details such as (a) cost of medicines; (b) hospitalisation charges, including consultation charges, room rent, etc; (c) attendant charges; (d) special diet and (e) expenses for future hospitalisation and treatment, including physiotherapy; (iv) nature of injuries, such as abrasions, cut injuries, crush injuries, fractures; (v) loss of income during the period of treatment and (vi) transportation. (Para 2)
(B) Motor Vehicles Act, 1988, S.166--Accident--Personal Injury--Pecuniary Loss--Hospitalization--Period as in patient in hospital; period of full had rest of home and duration taken for resumption of duty and carrying of normal activities for living is to be considered. (Para 2)
(C) Motor Vehicles Act, 1988, S.166--Accident--Personal Injury--Pecuniary Loss--Transportation--If patient is carried in private car or taxi reasonable charges should be compensated, even if there are no vouchers for payment to taxi operator. (Paras 2 & 5)
(D) Motor Vehicles Act, 1988, S.166--Accident--Personal Injury--Loss of pain and suffering and loss of Earning Capacity--Both are to be calculated under distinct heads. (Para 3)
(E) Motor Vehicles Act, 1988, S.166--Accident--Disability--Assessing of percent age--In every case where there is a disability, Tribunal must invariably direct the claimant to be present personally for the Tribunal to observe disability and record its perception of disability in its own words in proceedings paper--As Tribunals are not themselves experts in ascertainment of disability, at least the alleged disability could be perceived and recorded faithfully made available in awards. (Para 4)
(F) Motor Vehicles Act, 1988, S.166--Accident--Disability--Assessing of percent age--Mere reference to percentage of disability cannot convey any meaning--It should be correlated to the actual injuries--It has three components: (i) It impairs functionality and causes loss normal amenities of life; restricts movements and diminishes happiness; (ii) It causes pain and suffering, which could be transitory or permanent and (iii) It might impact earning capacity--Disability would therefore be required to address compensation under three heads. (Para 5)
(G) Motor Vehicles Act, 1988, S.166--Accident--Disability--Assessing of percent age--Whenever a percentage of disability is assessed, it shall be converted in terms of a disability qua the whole body and could be provided for a compensation at the rate of Rs. 2,000/- per percentage (increased from Rs. 1000 already suggested). (Para 6)
A fracture in the arm that results in no future disability would require to be compensated only for pain and suffering under the non-pecuniary head and the loss of amenities on a conservative scale for the limited period of temporary disability. If the fracture had resulted in mal-union that leads to consequence of any impairment of functionality of the arm, the percentage of disability as assessed, say, if it is 10% qua the whole body, then it could be Rs. 20,000/- towards loss of amenity.
(H) Motor Vehicles Act, 1988, S.166--Accident--Loss of earning capacity--Compensation under this head is not to be denied evening employee was continued to be on same employment despite amputation of any organ and enumerated in Schedule of Workmen Compensation Act; because he cannot evenly compete with a person in open market with another person who has no such disability. (Para 8)
(I) Motor Vehicles Act, 1988, S.166--Accident--Disability--Percentage of Functional disability is not to be taken as percentage of loss of earning capacity. (Para 8)
(J) Motor Vehicles Act, 1988, S.166--Accident--40% Disability--Injured was driver aged 27 years--There was mal union of lower tibia--Loss of earning capacity taken at 20%--Total compensation enhanced from Rs.87,000/- to Rs.2,99,200 with 7.5% p.a. interest. (Para 13)
INJURY CASE
Age 27 years
Period of Hospitalization 20.09.94 to 06.01.1994 108 days
Occupation Driver, Haryana Roadways and income Rs.4000
Heads of claim Tribunal High Court
Sl. No. Amount (Rs.) Amount (Rs.)
1 Loss of income 10,000 10,000
2 Medical expenses
(i) Medicines 16,000 16,000
(ii) Hospital Charges 5000
(iii) Attendant Charges 5000
(iv) Special Diet 5000
(v) Future medical expenses -
3 Transport 5000
4 Pain & Suffering @ Rs. 10000 per fracture + 50,000
Rs. 7500 per surgery
5 Loss of amenity for 20% disability qua whole body 40,000
(40% qua limb), as assessed by the doctor
6 Loss of earning capacity 20%
Income 4000
Multiplier 17
Future loss of income (20% X 4000 X 12 X17) 1,63,200
7 Reduction in life expectancy -
8 Loss of prospect of marriage -
9 Loss due to disfugurement -
10 Total 87,000 2,99,200
Mr. K. Kannan J.:- I. The subject of lis: claim for injuries
1. The appeal is for enhancement of compensation for injuries suffered in a motor accident on 20.09.1994. The appellant was on duty on Haryana Roadways bus as driver. The accident was the result of collision between the bus and a truck that came from the opposite direction. The driver suffered grievous injuries as also some of the passengers who were travelling in the bus. The Tribunal assessed a compensation of Rs. 87,000/- under various heads. There was evidence to the effect that the claimant had prolonged treatment from 20.09.1994 to 06.01.1995 during which period he had been operated upon four times. He gave evidence to the effect that he spent about Rs. 50,000/- and produced bills therefor. He had gangrene in his foot at the site of injury and therefore, he had to undergo three surgeries to secure a full correction of his leg and obtain appropriate skin grafting to help healthy skin care. There was also evidence that he had been taking physiotherapy for gaining strength in his leg.
II. Search for surer tools for determination of compensation for injuries
a. The pecuniary heads, the easier part – the need to collect relevant materials
2. While we have come by a definite scales of compensation for death with reference to the manner of assessment of income with provisions of increase of salary and the deductions to be made for personal expenses and the multiplier to be adopted with variance in the recent years only with reference to the compensation payable for loss of consortium, loss of love and affection and loss to estate, the assessment of compensation for injuries are by and large arbitrary and follow no objective criteria. When the Tribunal makes an appraisal for compensation, it should take into account all the following details: (i) age; (ii) employment/avocation and income; (iii) period of hospitalisation and details such as (a) cost of medicines; (b) hospitalisation charges, including consultation charges, room rent, etc; (c) attendant charges; (d) special diet and (e) expenses for future hospitalisation and treatment, including physiotherapy; (iv) nature of injuries, such as abrasions, cut injuries, crush injuries, fractures; (v) loss of income during the period of treatment and (vi) transportation. While collecting the details, the following may be borne in mind. It shall detail the period of hospitalization as inpatient in hospital and the period of domiciliary rest and recuperation; i.e., when the patient is still advised full bed rest at home when he/she cannot resume duty and carry on the normal activities for living. This is essential for determination of loss of income, which is a distinct head. Medical bills are also to be seen as an item of expenditure which can be proved with greater certainty by production of bills. It may not be necessary to secure the presence of a chemist to speak about the genuineness. The Tribunal can look for the appropriate prescriptions and the purchase of medicines that have been made to ascertain to itself that bills produced are genuine. If there is also a future medical expenditure that has to be incurred such as removal of implants, continuance of physiotherapy, periodical visits to be made in future or constant monitoring to prevent any further deterioration, appropriate medical evidence must be brought. It is most desirable that the doctor who his brought before the Court is also asked appropriate questions to elicit the above details. Transportation again is a head of claim where very poor evidence is brought. If the person must be compelled to travel by private car or a taxi, it is essential to at least give a distance and the likely charges that are incurred for even if there are no vouchers for payment of amounts to the taxi operator. It shall become possible for a Tribunal or appellate forum to make some assumption that has a basis to reality.
(b) Non-pecuniary heads – translating in monetary ter
