IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) 256 of 2002 & Cross Objection No. 282 of 2002. Judgment Reserved on May 1, 2008. Date of decision 5th June, 2008. Pawan Sharma …Appellant. Versus Roshan Lal Sharma and others …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the appellant Sh. Dibender Ghosh, Advocate. For respondent No. 3 Sh. K.D.Sood, Advocate. Dev Darshan Sud, J. This is the claimant’s appeal against the judgment and award of the learned Motor Accident Claims Tribunal, passed in the claim petition instituted by the appellant herein seeking compensation for permanent impairment of his earning capacity. The appellant pleaded that on 14.3.1996, Truck No. HP-51-0386 was being driven by 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - respondent No. 2 Ram Rattan Sharma in a rash and negligent speed and crashed into the tea shop where the claimant was having tea resulting in multiple injuries to him. He pleaded that his face, leg, thigh and right hand were injured. He had to undergo repeated surgery at the P.G.I. He was a tailor by profession and lost three fingers of his right hand which were amputated to save his life. The petition was resisted on a number of grounds and after trial, the learned Tribunal held that the petitioner was entitled to compensation as detailed in para 17 of the judgment, that is to say for medicine, loss of income, future income, pain and suffering, amenities in life etc. The break up of the award is: Cost of medicines 65,000 Loss of income 70,000 Loss of future income 2,00,000 Pain and suffering 50,000 Loss of amenities of life 25,000 Loss of expectation of life 25,000 Discomfort and inconvenience 10,000 Total Rs. 4,45,000 - 3 - While awarding this compensation, the learned Motor Accident Claims Tribunal considered the medical record and oral evidence in its entirety. The appellant claims that the assessment of compensation which has been made is on the lower side and that the loss of income should be worked out at Rs.4000/- per month and not Rs.1000/-. He also claims that the Tribunal is in grave error in not awarding the full medical costs. Cross objections have been filed on behalf of the Insurance Company claiming that the liability should be fixed on other respondents also and it is not the Insurance Company alone which is responsible for satisfying the award in law. I have heard the learned counsel for the parties and gone through the record. While awarding compensation, the learned District Judge has considered the medical record on the case and specially the disability certificate Ex. PW-1 which shows that the appellant was 25 years of age and has suffered 60% disability. It is undisputed before me that the appellant is a tailor and amputation of three fingers of his right hand would mean practical loss of his entire - 4 - working skill as a tailor. The compensation to be awarded has to be considered in terms of this and not by reference to 60% disability of the whole body. Learned counsel for the appellant has placed reliance on judgment of this Court in Munish Kumar v. State of H.P. and others, Latest HLJ 2007 (HP) 1238 (OSA No. 28 of 2000, decided on 27th August, 2007), holding therein that the Court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. The compensation or damages assessed for the personal injuries should be substantial damages to compensate the injuries for the deprivation suffered by him throughout his life. Token damages are not to be awarded. Under the head of non pecuniary damages, the damages are to be awarded for personal loss, damages for pain and sufferings, loss of amenities, personal inconvenience and discomfiture and in case of pecuniary damages, it is the actual money spent on the treatment, transportation etc., actual loss of income and the estimated future loss of income which has to be awarded. This was a case where the - 5 - plaintiff-appellant had suffered paraplegia i.e. paralysis of his entire body. The Court held: “32. The principles with regard to determination of the just compensation contemplated under the Motor Vehicles Act are well settled. Injuries cause a deprivation to the body which causes losses which entitle the plaintiff to claim damages. The damages may vary according to the gravity of the injuries sustained by the plaintiff. On account of the injuries, the plaintiff may suffer consequential losses, such as, (i) loss of earning; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc. and (iii) loss or diminution to the pleasures of life by loss of a particular part of the body and then loss of future earning capacity. The damages can be pecuniary as well as non- pecuniary. But that all have to be converted into rupees and paise. It is impossible to equate human suffering and personal deprivation with money. However, the Court has to make judicious attempt to award the damages, so as to compensate the - 6 - claimant for the loss suffered by him. Such compensation is what is termed as just compensation. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. 33. The Court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. The compensation or damages assessed for the personal injuries should be substantial damages to compensate the injuries for the deprivation suffered by him throughout his life. They should not be only token damages. 34. Under the head of non pecuniary damages, the damages could be awarded for personal loss, damages of pain and sufferings, loss of amenities, personal inconvenience and discomfiture keeping in view the facts of each case. Under the head of pecuniary damages, it is only the actual money spent on the treatment, transportation etc., actual loss of income and the estimated future loss of income which has to be awarded.” - 7 - He also placed reliance on the decision of the decision of the Supreme Court in Shankarappa Kubbanna Kattimani v. Karnataka State Road Transport Corporation and others , (2005) 12 SCC 266, wherein it was held that amputation of one arm was almost total disability for earning. The Court held: “5. After hearing learned counsel for the parties, we find that the High Court committed a gross error in ignoring the fact that the claimant was a coolie doing manual labour for earning his livelihood. As a result of the accident, his one arm was amputated which was almost total disability for earning. In such a situation, to reduce the quantum of compensation by treating disability at 50% was uncalled for. The Tribunal has in fact assessed the disability at 80%.” There is no dispute that tailoring is manual work and cannot be performed with three fingers of his right hand being amputated which amounts to practically total loss of earning - 8 - capacity. In these circumstances, it is to be seen as to how best the appellant can be compensated. Learned Accident Claims Tribunal is correct in holding that the appellant is a young man of 25 years and was earning about Rs.4000/- per month and has virtually lost his right hand and is unable to do tailoring work. He is right in holding that on the basis of evidence of the medical officers PW-1 Dr. Ravinder and PW-3 Dr. G.S.Shandil, the appellant has lost his earning capacity. He rightly holds that after the accident till the date of the petition, the appellant is not able to do any work. However, he is not correct in assessing Rs.1000/- as income from tailoring work, as even a daily paid labourer earns Rs.100/- per day. Thus for the loss of income, the appellant would be entitled to more. In any event, his income, for the purpose of datum figure would not be less than Rs.3000/-, as even a daily paid labourer earns Rs.100/- a day. Surely, the appellant was doing skilled work which generates more income. On the issue of pain and suffering and loss of amenities of life, the award is on the lesser side. There is no evidence on record to - 9 - suggest that the appellant would in future be able to return to his full earning capacity. In these circumstances, it would be but appropriate to compensate the petitioner for loss of his earning. The learned Tribunal awards Rs.2,70,000/- as total loss of income and future income i.e. Rs.70,000/- as total loss of income and Rs.2 lakhs for future income based on the evidence that the appellant has not been able to earn anything after the date of the judgment in the petition and would lose in income in future also. This is not a satisfactory way of compensating the appellant for the injuries suffered on account of rash and negligent act of the respondents. The appellant would be adequately compensated in case this figure is increased to Rs.4,00,000/-. On the discomfort and inconvenience aspects also, an amount of Rs.10,000/- is hardly any solace. This amount is accordingly increased to Rs.50,000/-. For loss of amenities of life, the award is paltry and deserves to be increased to Rs.50,000/-. Thus, in all, the appellant would be entitled to Rs.1,95,000/- over and above the award made by the Motor Accident Claims Tribunal, i.e. Rs.1,30,000/- more for loss of income and future - 10 - income, Rs.40,000/- more for discomfort and Rs.25,000/- for amenities etc. This amount would also carry interest with it @ 9% per annum as awarded. This amount has been awarded keeping in view the fact that if a sum of Rs.5 lakhs is invested in fixed deposit, it would earn about Rs.45,000/- as interest per year, thus leaving the petitioner with a sum of less than Rs.4000/- per month, as income to be derived from such investment. This amount is equivalent to the wages earned by a daily wage labourer. This Court is conscious of the fact that the rates on fixed deposit are likely to come down in future. Considering the totality of circumstances, the nature of injuries sustained and the available amount for investment being approximately Rs.5 lakhs, and also taking into consideration the fact that some amount would be spent by the appellant on himself, the amount awarded will be just and reasonable. This appeal is accordingly allowed to this extent. Pending application(s) shall stand disposed of. Cross Objection 282 of 2002. - 11 - Learned counsel appearing for the Insurance Company has urged that the datum figure arrived at for loss of income, discomfort and inconvenience etc. is not justified, as the evidence on record does not justify this. Learned Accident Claims Tribunal while considering the claim, has not worked on guess work, but on the evidence of medical treatment and the fact that the appellant had to undergo prolonged medical treatment. The Tribunal was conscious of the fact and rightly so that amputation of three fingers of the right hand destroyed the entire future of the appellant, rendering him with no work. However, the Tribunal was not justified in holding Rs.1000/- as loss of income as that put his earning only at Rs.30/- to 35/- per day which was against all established norms. I have been unable to persuade myself on the evidence on record that the assessment made by the learned Motor Accident Claims Tribunal is either on the higher side or not based on sound principles. The cross objections are accordingly dismissed. There shall be no order as to costs. June 5, 2008(PC). (Dev Darshan Sud), J.