FAO No.2001 of 2006 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2001 of 2006 Date of Decision. 18.08.2010 Oriental Insurance Company Limited, through its Chief Regional Manager, LIC Building, 2nd Floor, Jagadhari Road, Ambala Cantt. ......Appellant Versus Pardeep Kumar son of Surender Mohan and others ......Respondents Present: Mr. Mrigank Sharma, Advocate for Mr. Ashwani Talwar, Advocate for the appellant. Mr. Tapan Kumar, Advocate for respondent No.1. None for respondent No.2. Mr. R.A. Sheoran, Advocate for respondent No.3. Mr. Paramjit Thakur, Advocate for Mr. Sandeep Kotla, Advocate for respondent No.4. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The insurance company is on appeal on the question of quantum by pointing out that the claimant had amended the petition under Section 163-A of the Motor Vehicles Act but the Tribunal while awarding compensation for injury suffered by the claimant had provided for medical expenses to the tune of Rs.45,000/- against the statutory limit of Rs.15,000/- and Rs.40,000/- towards pain and FAO No.2001 of 2006 -2- suffering against the statutory limit of Rs.5,000/-. I have no difficulty in accepting that when the claimants had opted for claim under a particular provision, the Tribunal could not have breached the statutory prescriptions and provided for amounts in excess of what was permissible. I will, therefore, reduce the amount of what was awarded by the Tribunal under the heads of medical expenses and pain and suffering to Rs.15,000/- and Rs.5,000/- respectively. 2. The case would still survive for consideration of how the Tribunal has assessed the compensation for the injury sustained in the accident. In this case, the doctor Dinesh Podal had been examined as PW2, who had stated that there were members of the Board, who assessed the disability. The Board had noticed that the claimant had suffered a deformity of the right thigh with moderate restricted movement of the right knee joint and a mild restricted movement movement right hip joint. This functional disability was assessed at 30%. If the claim were to be prosecuted under Section 163-A of the Motor Vehicles Act, it must be remembered that the attempt of the claimant shall be to give evidence with reference to the loss of earning capacity that the injury has resulted. The application of Schedule II provides that injuries, which are deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule II of the Workmen's Compensation Act of 1923. The reference to the Workmen's Compensation Act in Schedule II is in the context of ascertaining the percentage of loss of earning capacity in relation to a permanent total disablement or permanent partial FAO No.2001 of 2006 -3- disablement. The assessment of earning capacity is not the same as assessment of disability. A disability that is assessed has a relation to the functional impairment such as range of movement, degree of obduction, the ability to flex or extend etc. This assessment again is on scientific basis, which the Government through the Ministry of Health and Family Welfare has prescribed with the help of expert committee of doctors. This more or less follows a universal pattern of assessment of disability in diverse regimes across the globe. The Workmen's Compensation Act, however, while it affords compensation for injuries has provided for a formula of determination of loss of earning capacity. It can be noticed from the provision in Schedule I, Parts I & II the injuries which are described are privations of limbs, loss of eye sight, hearing impairments etc. They are understood in common parlance as schedule injuries. The Act itself does not give a guide about the assessment of loss of earning capacity for non-schedule injuries but in practice, it is always appropriate to refer to a medical opinion to enable the Commission to translate the functional disabilities to loss of earning capacity. This distinction between percentage of disability and percentage of loss of earning power has been lost in its appreciation by the Tribunal. An illustration of how this aspect could been seen is how a functional disability for a person, who may have use of legs for carrying weight for a manual worker may result in a complete loss of earning power. For a more skilled person, say like a computer mechanic, a functional disability for motor activities may not result immediately in loss of earning power substantially as it FAO No.2001 of 2006 -4- does to a manual worker, though the disability may cause loss of amenities of life and other inconveniences. The attempt in all cases of injuries must be to translate the incident of disability to a loss of earning capacity by particular reference to the evidence secured through doctor and the evidence given by the injured person himself. 3. Under normal circumstances, I would have thought it necessary to remit the matter to the Tribunal to afford such evidence through the parties to ascertain the loss of earning capacity and to determine the compensation appropriately for injuries. I do not, however, feel inclined to do so, in view of the modest claim for damages, which the Tribunal has granted. The injured was a Policeman who continues to be in service. A Policeman's activities cannot be sedentary. His work is mostly on the fields. If there was evidence that he has suffered a restricted movement for his right knee and a still restricted movement in right hip joint, it could be easily anticipated that loss of earning capacity could not have been less than 20%. If the earning loss were to be taken as 20%, then by application of schedule II under Section 163-A of the Motor Vehicles Act, a formula is provided under clause 5 of the Schedule, which states that the compensation shall be the loss of income, if actual period of disablement not exceeding 52 weeks plus in the case of permanent total disablement, the amount shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining compensation or in the case of permanent partial disablement such percentage of FAO No.2001 of 2006 -5- compensation, which would have been payable in case of permanent total disablement as specified in the earlier situation (underlining mine). If the case were to be taken as 20% loss of earning power for 30% functional disability, the total loss for a person, who was earning Rs.3,96,000/- annually, if 20% were to be applied, the loss as per clause 5, shall be Rs.79,200/-. The total compensation comes to Rs.1,35,640/- and on that shall be added Rs.20,000/-, which shall be the maximum amount for medical expenses and pain and suffering. In all, the amount that shall become payable would be Rs.1,54,640/-. The Tribunal has awarded Rs.1,43,208/-, which is even less than the amount which he would be otherwise entitled to. 4. I maintain the award and dismiss the appeal filed by the Insurance company. (K. KANNAN) JUDGE August 18, 2010 Pankaj*