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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   4814         OF 2013 (arising out of SLP(C)No.6282 of 2011)

NEERUPAM  MOHAN MATHUR        …. APPELLANT

VERSUS

NEW INDIA ASSURANCE CO.                       ….RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. The present appeal is filed by the claimant­appellant  

against the judgment of Punjab and Haryana High Court at  

Chandigarh in FAO No.693 of 1989, whereby the High Court  

granted a meager enhancement in the amount of compensation  

awarded to him by the Motor Accident Claims Tribunal  

(hereinafter referred to as 'the Tribunal').

3. The facts involved in the present case are as follows:

The claimant was employed as a 'Product Design  

Engineer' in M/s. Utility Engineers (India) Ltd. Dharuhera,  

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District Mohindergarh, Haryana.  The employer had arranged  

for   a Chartered Bus belonging to M/s. National Tours &  

Travels, F­4, East  of Kailash,  New Delhi, 2nd  respondent  

before the Tribunal for carrying the employees to the  

factory at Dharuhera   and back; one Pritam Singh, 1st  

respondent before the Tribunal was the driver of the said  

bus. On 2nd  September, 1987, the claimant along with his  

colleagues was coming back from Dharuhera in the said  

Chartered Bus bearing Registration No.DBP­805. At about 6  

p.m.  when the said Bus reached near the turning of village  

Shikohpur on Gurgaon­Jaipur Highway, it came across a truck  

coming from opposite direction which was crossing  a camel  

cart in front of it.  Pritam Singh, who was driving the bus  

at a very high speed, carelessly, rashly and negligently  

attempted to cross the above said truck without keeping the  

Bus to the extreme left hand side. This resulted in a  

collision of right hand side of the bus with the truck,  

which resulted in severance of right hand of the claimant  

who was sitting in the right side of the bus.   The said  

accident and the mishappenings thereto were witnessed by  

the occupants of the bus.  One Anil Kumar,    PW­3, who was  

also travelling in the said Chartered Bus at the time of  

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the said accident, took the claimant to the Civil Hospital,  

Gurgaon from where he was given medical first­aid and he  

was referred to Safdarjang Hospital, New Delhi.   The  

claimant was later on transferred to ‘Dr. Ram Manohar Lohia  

Hospital’, New Delhi and thereafter he was also treated in  

different Hospitals at various stages.  The matter was also  

reported to the Police by Anil Kumar, PW­3.

4. The cliamant filed a petition under Section 110­A of  

the Motor Vehicles Act, 1988 claiming Rs.12 lacs as the  

compensation for the loss of the right hand which was  

amputated near the shoulder, on various counts.   

5. The respondents contested the claim of the claimant.  

The Tribunal after perusing oral and documentary evidence  

held that the accident took place due to rash and negligent  

driving by Driver, Pritam Singh of Bus No.DBP­805.   The  

Issue No.1 was thus decided in favour of the claimant.  

While assessing the compensation under Issue No.2, the  

Tribunal awarded a compensation of Rs.3,20,000/­ with  

interest at the rate of 12%  per annum.  

6. In the appeal preferred by the claimant the High Court  

taken a loss of earning capacity to 70% in view of  

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permanent disability of right hand. Based on salary of  

Rs.3,000/­ per month as claimed by the claimant adding 50%  

on the same for future prospects of increase and applying  

multiplier of 16, compensation amount was raised to  

Rs.4,500/­ with interest at 6% from the date of petition.  

The High Court made the following observation while  

granting compensation against different heads:

“4. In my view, the issue relating to death or injury  would have no serious difference in the choice of  multiplicand or the multiplier. If at all, case of  injury that completely disables a person for life is  more poignant than a case of death and that is why  Courts do not always provide for deductions for  personal expenses in case claims for injuries. Indeed,  the deduction itself will be meaningless for unlike a  case of death, we need to make provision for his own  living as well as the living of persons, who are  dependent on injured person. The loss in case of  injury where there is an amputation and there is a  high percentage of loss of earning capacity, in my  view, the principle laid down in Sarla Verma providing  for a prospect of future increase in salary cannot be  ruled out. I would, therefore, take the multiplicand  to be Rs.4,500/­ which is the salary of Rs.3,000/­ per  month plus 50% of the same for future prospects of  increase. For a person, who was aged 32 years, the  appropriate multiplier ought to have been 16 and not  15 and I would, therefore, take the annual income to  be Rs.54,000/­ and adopting a multiplier of 16, I  would take the income to be Rs.8,64,000/­. Having  regard to the fact that I have taken the loss of  earning capacity to be 70%, the amount that would bear  to 70% of Rs.8,64,000/­ is the amount that shall  become payable for loss of earning capacity. The loss  of income will be Rs.6,04,800/­. I shall retain the  medical expenses of Rs.10,000/­, Rs.15,000/­ for  attendant's charges and Rs.25,000/­ as  provided for  pain and suffering by the Tribunal. If the same are  

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retained, the amounts will add to Rs.6,54,800/­. The  learned counsel would contend that although there was  evidence placed before the Tribunal that the cost of  prosthesis was Rs.75,000/­, no amount had been granted  towards the same. The learned counsel would also state  across the bar that the present cost is Rs.1,60,000/­.  There is no definite evidence on the same and I would  take the cost to be Rs.50,000/­ which although the  Tribunal did not provide for. I would provide as  necessary equipment that he may require for fending  himself. The learned counsel states that if the  prosthesis were to be fixed, the disability would even  be less. In my view, it will make a minimal difference  for a prosthesis is more for cosmetic value than a  major functional adjunct. Sense of touch, ability to  pinch, ability to push, ability to pick up, are all  factors which go into the making of disability, all of  which do not get improved by a prosthesis. All told,  the amount that shall become payable in the manner  worked out by me would add to Rs.7,04,800/­. The  Tribunal has already awarded Rs.3,20,000/­ and the  amount in excess of what is awarded by the Tribunal  shall be paid by the insurer with interest at 6% from  the date of the petition till the date of  realization.”

7. The claimant has challenged the order passed by the  

High Court on three counts namely:

(i) The permanent disability has been wrongly assessed  

at 70% which should have been 100% in the case of the  

claimant.

(ii) The lower amount has been paid towards cost of  

prosthesis and

(iii) Lesser amounts have been allowed towards  

pecuniary and non­pecuniary damages.

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8. Per contra according to the learned counsel for the  

Insurer, the High Court allowed higher amount than the  

amount of compensation to which claimant was entitled.  

9. In the case of claimant, the High Court for determining  

the earning capacity adopted the percentage of loss of  

earning capacity as per the Workmen's Compensation Act and  

has taken a loss of earning capacity to 70% for amputation  

of arm above elbow.

10. Admittedly, claimant is a graduate in Science from Agra  

University and Post Graduate Diploma holder in Mechanical  

Engineering with specialization in Refrigeration and Air­

conditioning.  He was a young man of 32 years at the time  

of accident.  Before the Tribunal, the claimant appeared as  

PW­4 and stated that he had worked with many companies like  

Blue Star, etc. and has extensive experience. Ultimately he  

joined M/s. Utility Engineers (India) Ltd. on 1st September,  

1986 as Product and Development Engineer and  was promoted  

from Middle Management Group to Senior Management Group on  

the basic pay of Rs.1400/­ to Rs.1500/­ plus other  

incidental benefits like special increment of Rs.100.   At  

the time of accident, he was drawing basic pay of Rs.1900/­  

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plus other incidental benefits total amounting to about  

Rs.3,000/­ per month.   His job was designing of air­

conditioning project.   

11. According to claimant the normal expectancy of life is  

70 years and he was expected to earn up to the said age as  

a specialist in designing, refrigeration and air  

conditioning.   After loss of the right arm due to accident  

he has become 100% disabled as his earning capacity has  

gone down to zero in doing the specialized work like  

designing, refrigeration and air conditioning.   The  

accident has completely jeopardized his mastery on the  

subject and his chances of future promotion and  

professional engagements have been virtually vanished.   

12. The question regarding “Assessment of future loss of  

earnings due to permanent disability” was considered by  

this Court in Raj Kumar vs. Ajay Kumar and Another,  (2011)  

1 SCC 343, wherein this Court held as follows:

“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  

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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%.

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10. Where the claimant suffers a permanent disability  as a result of injuries, the assessment of  compensation under the head of loss of future  earnings would depend upon the effect and impact of  such permanent disability on his earning capacity.  The Tribunal should not mechanically apply the  percentage of permanent disability as the percentage  of economic loss or loss of earning capacity. In most  of the cases, the percentage of economic loss, that  is, the percentage of loss of earning capacity,  arising from a permanent disability will be different  from the percentage of permanent disability. Some  Tribunals wrongly assume that in all cases, a  particular extent (percentage) of permanent  disability would result in a corresponding loss of  earning capacity, and consequently, if the evidence  produced show 45% as the permanent disability, will  hold that there is 45% loss of future earning  capacity. In most of the cases, equating the extent  (percentage) of loss of earning capacity to the  extent (percentage) of permanent disability will  result in award of either too low or too high a  compensation.

11. What requires to be assessed by the Tribunal is  the effect of the permanent disability on the earning  capacity of the injured; and after assessing the loss  of earning capacity in terms of a percentage of the  income, it has to be quantified in terms of money, to  arrive at the future loss of earnings (by applying  the standard multiplier method used to determine loss  of dependency). We may however note that in some  cases, on appreciation of evidence and assessment,  the Tribunal may find that the percentage of loss of  earning capacity as a result of the permanent  disability, is approximately the same as the  percentage of permanent disability in which case, of  course, the Tribunal will adopt the said percentage  for determination of compensation. (See for example,  the decisions of this Court in Arvind Kumar Mishra v.  New India Assurance Co. Ltd.  and  Yadava Kumar  v.  National Insurance Co. Ltd.)”

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13. In the present case, the percentage of permanent  

disability has not been expressed by the Doctors with  

reference to the full body or with reference to a  

particular limb.   However, it is not in dispute that the  

claimant suffered such a permanent disability as a result  

of injuries that he is not in a position in doing the  

specialized job of designing, refrigeration and air  

conditioning.   For the said reason, claimant's services  

were terminated by his employer but that does not mean that  

the claimant is not capable to do any other job including  

the desk job.  Having qualification of B.SC degree and Post  

Diploma in Mechanical Engineering he can perform any job  

where application of mind is required than any physical  

work.   

14. In view of the forgoing discussion we find no grounds  

made out to interfere with the finding of the High Court  

which determined the percentage of loss of earning capacity  

to 70% adopting the percentage of loss of earning capacity  

as per the Workmen's Compensation Act.  The total loss of  

income thus rightly calculated by the High Court at  

Rs.6,04,800/­.  

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15. However from the award passed by the Tribunal and  

judgment rendered by the High Court, we find no ground  

shown by the Tribunal or the High Court in providing  

pecuniary and non­pecuniary damages at a lower rate.  

Against some of the heads even no amount has been allowed.  

16. The Tribunal in its award has noticed that the claimant  

had to go to Hospital every 10 days for treatment. He was  

admitted in different Hospitals and was under treatment as  

indoor patient for about one and a half months.  Claimant's  

hand was amputated and skin was grafted.   Inspite of the  

same, no amount has been allowed towards loss of earning  

during the period of treatment nor any amount allowed  

towards future medical expenses.   

17. From the High Court's judgment and award passed by the  

Tribunal it is clear that the claimant placed evidence to  

suggest that the cost of prosthesis was Rs.75,000/­ . It  

was accepted at Bar that the cost of prosthesis was  

Rs.1,60,000/­.   Inspite of the same the Tribunal did not  

chose to allow any amount towards prosthesis and the High  

Court allowed a petty amount of Rs.50,000/­ for the same.  

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No separate amount has been allowed towards travelling to  

the Hospitals though the claimant was required to go to  

attend the Hospital every 10 days for treatment.   We  

further find that a meager sum of Rs.25,000/­ has been  

allowed by the High Court towards pain and suffering.   

18. Having regards to the fact that the Tribunal and the  

High Court have not allowed reasonable amount for different  

pecuniary and the non­pecuniary damages, we, therefore,  

with a view to do complete justice  to the claimant re­

determined the amount of compensation on the following  

terms:

Pecuniary damages (Special damages)

(i) Expenses relating to  treatment,hospitalisation, medicines,transportation,  nourishing food, and  miscellaneous expenditure.  (medical expenses  Rs.15,000 + Attendant  Rs.15,000 + cost of  prosthesis Rs.75,000)

Rs.1,05,000

(ii) Loss of earnings (and  other gains) which the  injured would have made  had he not been injured,  comprising:

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(a) Loss of earning during  the period of treatment;  

(b) Loss of future  earnings (on account of  70% permanent disability  taking multiplier of 16)

Rs.4,500

Rs.6,04,800

(iii) Future medical expenses. Rs.50,000

Non­pecuniary damages (General damages)

(iv) Damages for pain,  suffering and trauma  as a consequence of the  injuries.

Rs.1,00,000

(v) Loss of amenities Rs.2,00,000

(vi) Loss of expectation of  life (shortening of  normal longevity)

Rs.1,00,000

Total            Rs.11,64,300                      

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19. The respondent Insurance Company is directed to pay the  

claimant­appellant a sum of Rs.11,64,300/­ minus the amount  

already paid pursuant to the order passed by the Tribunal  

within three months from the date of judgment with interest  

@ 12%. The  order  passed by the  High Court and Tribunal  

stands modified to the extent above. The appeal filed by  

the claimant is allowed with the above observation and  

direction. No separate order as to costs.   

………..……………....…………………………..J.       (G.S. SINGHVI)

….......……………………………………………….J.            (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, July 1,  2013.

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