Reportable

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

O R D E R

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

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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

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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

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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

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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,

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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

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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

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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).

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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 permanent

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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

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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

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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

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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 cross-

examination with reference to the certificate. If the Tribunal is not satisfied

with the medical evidence produced by the claimant, it can constitute a

Medical Board (from a panel maintained by it in consultation with reputed

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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.

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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:

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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)].

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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

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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

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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,

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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

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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.

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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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