FAO No.357 of 1999 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.357 of 1999 Date of Decision. 08.10.2010 Darshan Lal son of Shri Ramji Lal, caste Kamboj, resident of village and post of Khera, Sub Tehsil Indri, District Karnal ......Appellant Versus Tirath Singh son of Shri Piara Singh and others ......Respondents Present: Mr. Jagdish Manchanda, Advocate for the appellant. Mr. Gautam Bhardwaj, Advocate for Mr. N.K. Khosla, Advocate for respondent No.1. Mr. Vinod Gupta, Advocate for the insurance company. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The compensation awarded to injury suffered in a motor accident is the subject of appeal at the instance of the claimant. The claimant was himself a driver of the bus and he had extensive injuries in his leg and he had been taking treatment on various dates spread over a period of 8 months. It was elicited through the claimant that he had undergone three surgeries at two different hospitals. In the first phase of treatment between 18.07.1994 to 02.09.1994, the reduction of fracture in his leg was sought to be done through K-nailing and he had to go back for fresh treatment FAO No.357 of 1999 -2- again on 02.09.1994 when the wound had been infected and the surgery had to be performed for cleaning the wound and fixing the nail through screws and external fixature. He was again admitted on 27.09.1995 and operation had to be performed for removal of the dead bone. In that phase of treatment, the claimant was hospitalized from 27.09.1995 to 16.10.1995. On the whole, the actual period of hospitalization itself was 98 days. 2. The claimant had been on leave for 7 ½ months and his evidence was that he was on loss of pay. The monthly income of the claimant was Rs.3970/- and the Tribunal provided for the loss of earning for the entire period when he was on leave and determined Rs.29,775/- as damages for loss of salary. The doctor, who had treated him found that he had ultimately suffered a shortening of the limb by about 1 ½” and the extent of disability was permanent and that it was 12%. The evidence suggests that he continued after obtaining a long period of leave of 7 ½ months. In real terms, therefore, subsequent to the employment he had not suffered any loss of earning. 3. The Tribunal has considered the several heads of claim such as medical expenses, permanent disability, compensation for pain and suffering, special diet, transportation. Of the several heads of claims, the contention of the learned counsel for the appellant would be that he had incurred expenses to the tune of Rs.1,50,000/- but the Tribunal had awarded only Rs.60,000/- as compensation. The claimant has produced the bills Ex.P1 to Ex.223 and PW4/1 to Ex.PW4/4. The Tribunal had taken the entire amount FAO No.357 of 1999 -3- as mentioned in the bills and provided for a compensation of Rs.60,000/-. The learned counsel would contend that he had spent more and the Tribunal ought to have provided for Rs.1,50,000/- in the manner in which it was claimed. I cannot accommodate such a plea, for all the pecuniary damages to the extent to which evidence was available shall be provided and they have been provided. It is not anybody's case that he had taken treatment without securing bills and therefore, the claim has to be escalated on that score. As regards the claim for permanent disability, the Tribunal has awarded to Rs.10,000/-. A permanent disability if it does not take into account the extent of loss of earning capacity or future loss of earning must be understood as answering a situation for loss of amenities of life and a provision to be made also for reduction of life expectancy. I have not the benefit of medical evidence that there was any reduction in life expectancy and there has been a practice in various Courts to provide for compensation for disability @Rs.2000/- per percentage of disability after the year 2000 and Rs.1000/- upto the year 2000. The accident and the claim petition relates to the year 2000 and I would, therefore, take 12% disability to yield to a compensation of Rs.12,000/-. This would mean an additional sum of Rs.2,000/-. As regards the compensation for pain and suffering, the Tribunal has awarded Rs.25,000/-. I would try to put it on some scale, which could be taken as a guidance for an application of the principle of pain and suffering. Pain and suffering is subjective and the acuteness of pain that one may express, may vary from person to person. I would take in situation where a person FAO No.357 of 1999 -4- has undergone a surgery and is put on fixatures, screws and nails, as entitling a claim for Rs.10,000/- each of fracture requiring surgery. He has undergone three operations and I would take the compensation for pain and suffering at Rs.30,000/-. This would mean an additional amount of Rs.5,000/- to what has already been awarded by the Tribunal. It must also be seen that he has undergone treatment for fairly a large spell of nearly 7 ½ months and even apart from the surgical pain, he would have carried through with the pain for the entire period of his rest. I will again quantify some amount as the component of pain and suffering for each month @Rs.2,000/- per month of convalesce for 7 ½ months, I would take that to be Rs.15,000/- and add that to a component of pain and suffering, which I have determined for surgeries. That would mean Rs.45,000/- for pain and suffering. For special diet, the Tribunal has awarded Rs.5,000/- and the learned counsel would state that he would have required protein diet. All pecuniary benefits must be properly established through bills as I have expressed while addressing the claim for medical expenses. It is appropriate and ideal that the claimants gave evidence with reference to all the pecuniary claims and I shall not leave it to realm of conjectures or a lawyer's own ingenuity to argue to what he thinks as appropriate. The appropriateness must conform to what is legally admissible. I would still venture to make a proximation for a special diet for 7 ½ months to Rs.7500/-. For transportation again, the Tribunal has already awarded Rs.5,000/-, which the learned counsel would contend as grossly inadequate. This also ought to have been FAO No.357 of 1999 -5- established through appropriate evidence and I will increase it from Rs.5,000/- to Rs.7,500/- even without any additional evidence but making a proximation for each month of his prolonged treatment. He has suffered a shortening of limb, though he has not lost his job and he has continued in his employment, I would still take that to constitute loss of earning capacity to the tune of at least 10%. He was earning at that time Rs.3970/- and he was aged 41 years. I would apply a multiplier of 14. For 10% loss of earning capacity, the amount of compensation would be Rs.66700/-. The amount of compensation for all heads shall, therefore, be an additional amount of Rs.98,425/-. The additional determined now over what has been awarded by the Tribunal shall carry interest @6% from the date of the petition till the date of payment. 4. The appeal is allowed to the above extent. (K. KANNAN) JUDGE October 08, 2010 Pankaj*