IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2807 of 2000 (O&M) Date of decision:18.04.2011 Haryana State through its Collector, Faridabad and another ...Appellants versus Anil Kumar and another ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Kunal Garg, AAG, Haryana, for the appellants. Mr. D.S. Adlakha, Advocate, for respondent No.1. None for respondent No.2. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 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 appeal is on the issue of quantum by the State. The accident was said to have been caused while the claimant was getting down from the bus. The driver and the conductor denied that there was such an accident and stated that he had been run over by the back tyre of the bus and it could have happened only by the negligence of the claimant himself. This plea was rejected by the Tribunal and it was found that the accident had been caused by the only negligent act of the driver and not properly ensuring that the claimant had completely disembarked FAO No.2807 of 2000 (O&M) - 2 - the bus before starting the bus. I do not want to make a reappraisal on the issue of negligence and I will retain the same finding. I will take up the case for consideration only as regards the quantum of compensation. 2. The State is aggrieved against the quantum awarded by the Tribunal at Rs.5,59,000/-. The claimant was 20 years of age and on account of the accident, he was proved to have had a compound fracture and dislocation of left knee and loss of soft tissue of his left thigh. He had been hospitalized on 28.02.1998 immediately after the accident and remained under treatment till 09.05.1998. Effectively he had been under treatment for 70 days. 3. The doctors, who had treated him, had been examined as PW5 and PW7. PW5-Dr.J.S.Bhatia had stated that he had examined him to assess the disability which was assessed at 50%. The disability certificate filed before the Court showed that the claimant had stiffness of knee and restriction in the range of movements. The disability was assessed for the knee at 30% and for the loss of soft tissue at 20%. The doctor in his evidence has stated that the disability pertained to the particular limb of the body and he was not in a position to confirm if the disability would decrease with operation or not. PW7-Dr. Ashok Arora, who had been giving treatment to the claimant, had given evidence regarding the nature of treatment administered to him. He would state that the fracture had been fixed with the external fixatur and the wound debridement of the left knee had been done. He was required to rest regularly. Skin grafting was also done for his left thigh. The fixatur appears to have been removed after a month and the plaster had been FAO No.2807 of 2000 (O&M) - 3 - administered and later discharged on 09.05.1998. The medical bills and the OPD slips had been filed and proved through the doctor. 4. Speaking about the disability suffered by the claimant, PW7 would state that the patient was still suffering from stiffness of the knee and one more surgery shall be necessary for mobilization of the knee. He would also state that physiotherapy for a year or two for making possible bending of the knee would have to be done. 5. The Tribunal had assessed the compensation principally on five heads: for medical expenses at Rs.80,000/-, Rs.4,000/- for transportation, Rs.75,000/- for pain and suffering, loss of future income at Rs.3,84,000/- and for future treatment at Rs.20,000/-. 6. The assessment of Rs.80,000/- was in a case where the claimant had filed medical bills to the tune of about Rs.52,327/-. I will retain the same. The assessment of compensation for pain and suffering is invariably a subjective phenomenon and I would try to take some lesson from the manner of determination of compensation from Schedule-II where the pain and suffering itself has been provided only to the tune of Rs.2,500/-. Section 140 of the Motor Vehicles Act is again a guideline in some way, where a person suffers from permanent disability, the amount that would become payable for any disability would be in the range upto a maximum of Rs.25,000/-. I have attempted to standardize the approach in Madan Lal Papneja Versus State of Haryana and others in FAO No.422 of 1993, decided on 12.11.2010. The Hon'ble Supreme Court has laid down lucid guidelines for subordinate Courts to follow with reference to the manner of assessment of compensation for FAO No.2807 of 2000 (O&M) - 4 - injuries in Raj Kumar Versus Ajay Kumar and another-2010 12 SCALE 265. 7. In the manner of assessment of compensation, the attempt must be, in the first place, to see how the injury could impact the earning skills of a person. The attempt must again be to secure through the evidence of the doctor as to how the injury could impact his quality of life. While PW5' evidence is merely for a reference to the fact that the doctor had made an assessment of disability. PW7, who had treated him, would refer to the fact that the stiffness of the knee could be relieved by a further operation in future. Whether this disability would ever have to remain for the rest of his life and to the extent to which this could get cured over a period of time is not elicited through the evidence. I am prepared to assume that there had been a stiffness in one knee and any activity in future that may require an active use for his knee of one leg will suffer some impairment. But whether this could have a bearing on his earning skills is not definitely brought out through any evidence. I would normally take a hospitalization for a period of 70 days would require some attendants on him and consequently, there ought to have been a provision for attendant charges. Hospitalization would have meant special diet. Ideally appropriate evidence must have been brought through witnesses about the actual expenses incurred. If we are taking the issue of pain and suffering for a prolonged hospitalization for more than 2 months, I would provide for Rs.25,000/- and also make appropriate provision for the nutrition and special diet at Rs.10,000/- and for transportation, I would provide for Rs.5,000/-. The Tribunal has FAO No.2807 of 2000 (O&M) - 5 - while awarding Rs.80,000/- towards medical expenses has included in this head also a provision for special diet and transportation. It has made also a further provision for Rs.20,000/- for future treatment. I cannot still see how there was a scope for ascertainment of Rs.3,84,000/- as compensation for disability. The learned counsel states that there was sure loss of prospect of income in future. The loss of income must be seen in the context of how there is a loss of earning capacity by a functional disability attached to the particular limb. The scientific method of arriving at loss of earning capacity is to ascertain his qualification, the type of work he was doing and how the injury had reduced his earning skills. After determining the possible employment that a person could have had, in relation to the percentage of loss of such earning and a suitable multiplier must be applied to obtain a corpus that would yield a return equivalent to the loss of earning capacity. The assessment of Rs.3,84,000/- cannot be a magical figure and it is arbitrary in the manner in which it has been assessed by the Tribunal. I cannot find any reason of assessment beyond Rs.75,000/- towards the disability which I will take as going for the loss of amenities in life. The overall determination cannot total up to a sum as was done by the Tribunal at Rs.5,59,000/- and if at all adds up to only Rs.1,67,327/-. 8. However, I do not propose to reduce it any less than 50% of the amount which was already permitted by this Court to be withdrawn when an interim order was passed by a Bench of this Court on 30.11.2000. The learned counsel refers to a judgment in R.D. Hattangadi Versus M/s Pest Control (India) Pvt. Limited-1995(2) FAO No.2807 of 2000 (O&M) - 6 - Punjab Law Reporter 298. The Hon'ble Supreme Court was referring to some guess work that has to be done and some hypothetical consideration on account of sympathy linked with the nature of disability caused. In that case, the Tribunal was considering the case of a claim for compensation for injury suffered where an assessment was made at Rs.3 lakhs which comprised Rs.1,50,000/- towards pain and suffering and Rs.1,50,000/- for loss of amenities of life for a person, who was a lawyer and who had a large practice. While I would certainly say that general damages like pain and suffering or disability would admit of certain variations, I cannot accept that a variation could even be substituted for an arbitrary sum like the manner that has been chosen by the Tribunal. If the compensation arrived at by the Tribunal was at Rs.5,59,000/-, I will reduce it to Rs.2,79,500/- being 50% of the amount which itself is in excess of what I have arrived at under various heads, since this Court has already permitted the petitioner to have the benefit of 50% of the amount through its interim order. 9. The appeal by the State is allowed and the award of compensation stands modified as referred to above. This will also carry interest at the rate which was already determined by the Tribunal. (K.KANNAN) JUDGE 18.04.2011 sanjeev