Civil Writ Petition No. 17007 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 17007 of 2009 Date of decision: 03.03.2011 Ishwar Singh ...Petitioner Versus The Workman Compensation Commissioner, Panipat and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Anil Kumar Malik, Advocate, for the petitioner. Mr. Amit Shivrain, Advocate for Mr. Kulvir Narwal, Advocate for respondent No. 2. Ms. Sonal Dutta, Advocate for Mr. Vikas Mohan Gupta, Advocate for respondent No. 3. **** RANJIT SINGH J. The petitioner is employed in Sugar Mill, Panipat. On 09.03.2004, while course of duty he sustained injuries i.e. breakage of hip joint. The petitioner filed a claim under Workman Compensation Act before the Workman Commissioner, Panipat on 01.06.2007. The counsel for the respondent-Insurance Company as well as of the Sugar Mill appeared and compromised the matter by agreeing to pay sum of ` 1,95,880/-. Soon thereafter, however, the respondents made an application before the Commissioner on 19.01.2009 pleading that they had wrongly calculated the amount of compensation as was payable to the petitioner. The Commissioner, Civil Writ Petition No. 17007 of 2009 2 thereafter, has reviewed the earlier order and has calculated the amount payable as ` 56,587/-. It is noticed that the earlier calculation was done by the mistake and by applying the relevant factors the amount, which was payable as compensation has now been reassessed as ` 56,587/-. The counsel representing the petitioner did not object to this correction and, accordingly, the impugned order, Annexure P-3, was passed. The petitioner now has challenged this order through the present writ petition to plead that once the matter had been compromised between the parties by allowing the compensation of sum of ` 1,95,880/-, the same was wrongly changed on the ground that the amount of compensation was assessed wrongly by mistake. As per the petitioner, his counsel had agreed for this correction without any instructions from him and he, accordingly, would pray for grant of same amount of compensation to him as was agreed to between the parties initially i.e. ` 1,95,880/-. In response to notice of motion, written statement has been filed by respondent No. 3. It is not disputed that the respondents had agreed to payment of ` 1,95,880/- by way of compromise. It is pointed out that this amount was calculated by taking into account the disability of the petitioner to be 100%. Infact the petitioner had suffered the disability of 20% and the calculation was, accordingly, required to be made on percentage of disability suffered. On this basis, the amount of compensation works out to be ` 56,587/- and so it is stated that the Commissioner was justified in carrying out the correction. As per the respondents, it is only a Civil Writ Petition No. 17007 of 2009 3 correction of mistake and as such no cause is made out calling for interference in exercise of writ petition. No doubt, the method of calculating compensation provided under the Act may have to be adopted while agreeing to pay a sum of Rs. 1,95,880/-. This was a sum agreed for payment upon which the petitioner did not press his claim. If the matter had not been compromised, the petitioner could have certainly disputed the amount payable which is to be calculated on the basis of his income. There is no indication in the order that the amount was calculated as per any formula. The petitioner would not have agreed to compromise the matter if the offer was only payment of ` 56,587/-. The compensation agreed before the Commissioner was ` 1,95,880/- and so the petitioner had accepted this amount on the basis of compromise. The respondents are now backing out from this compromise. Once they agreed to pay some amount by way of a compromise then the provisions of the Workman Compensation Act would lose significance. Order, Annexure P-1 passed by the Commissioner under the Workman Compensation Act on 20.12.2008, clearly shows that respondent-Insurance Company was ready to pay sum of ` 1,95,880/- under the Workman Compensation Act and so the petitioner withdrew his claim petition. It would, thus, be seen that it was not a case where the amount of compensation was worked out on the basis of some formula, which could be corrected. One would have accepted submission that it is a case of correction of the amount assessed if some formula had been noticed in the order while arriving at the amount of compromise. It was an agreed amount which respondents had agreed to pay. If two parties Civil Writ Petition No. 17007 of 2009 4 while fully being conscious have agreed on something, they can be expected to respect the same. I am, thus, not inclined to go into the submission made on the basis of provisions contained in the Workman Compensation Act to hold what amount was payable or to calculate the amount that actually was payable on the basis of percentage of the injuries suffered by the petitioner. The method of calculating the income of the petitioner on the basis of his disability and working out the amount would have been adopted if the original order, Annexure P-1 had contained any indication that the amount of compensation was calculated on that basis. What all is recorded in Annexure P-1 is as under:- “ Both the parties have settled the dispute. The worker wants to give the statement in this regard. Statement be recorded. Statement of Sh. Ishwar Singh S/O Lachchman Singh Applicant. On SA Stated that I was met with accident in Sugar Mill Panipat, in which I was disabled 20%. Coop-Sugar Mill has got insured his worker and ready to give the amount of Rs. 1,95,880/- under the WC Act. Therefore, I withdrew my case.” There is no indication, thus, in the order that the amount of compensation payable was worked out on the basis of any formula contained under the Workman Compensation Act. Even otherwise, to me it appears that the manner of determining compensation under the Workman Compensation Act Civil Writ Petition No. 17007 of 2009 5 have to work out on the basis of income which is not available on record. The method perhaps may not be taking into consideration the loss of income, which the petitioner would suffer because of his permanent disability. The petitioner is going to suffer this handicap and his capacity to work will stand reduced. Apparently, only the aspect of damage suffered on account of injury is taken into consideration. The formula as has been shown and pressed before me gives an indication of calculating the amount on the basis of percentage of injury suffered and income of the workman concerned. Obviously this is only to calculate the damage, which one would suffer. Thus, no consideration apparently is being paid to the loss suffered by the individual on account of loss of his earning capacity forever. In this context, the observation made by the Yadava Kumar versus The Divisional Manager, National Insurance Co. Ltd. and another 2010 (4) Civil Court Cases 222 (S.C.) may need a notice. As observed by the Hon'ble Supreme Court, there is a distinction between the compensation and the damages. The expression compensation may include a claim for damages but compensation is observed to be more comprehensive. It is further stated that normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. As noticed, compensation is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. It is in this background observed that in the matter of computation of compensation, the approach has to be slightly more broad based Civil Writ Petition No. 17007 of 2009 6 than what is done in the matter of assessment of damages. As observed, there cannot be any rigid or mathematical precision in the matter of determination of compensation. Thus, some guess work rule to assess the compensation may be permissible to work out the loss of the earning capacity. It is a recognized mode and can be adopted. In cases of injuries which result in permanent disability, a position can be said to be worse than that of fatal cases. Hon'ble Supreme Court in the case of R.D. Hattangadi versus M/s. Pest Control (India) Pvt. Ltd., (1995-2) P.L.R. 298 has observed as under:- “Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money, whereas non- pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciated two concepts pecuniary damages may include expenses incurred by the claimant : (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include; (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may Civil Writ Petition No. 17007 of 2009 7 include a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; disappointment, frustration and mental stress in life.” Ordinarily no amount of compensation can restore physical frame of the injured. That is why it has been said by Courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury “so far as money can compensate” because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. Thus, a case of fair compensation is certainly made out. The parties had compromised the matter when the Insurance Company had agreed to pay sum of ` 1,95,880/-, which was inclusive of damage and compensation. The petitioner is a daily wager. He has suffered 20% permanent disability. With this disability, he certainly has lost his earning capacity forever. This aspect obviously has been ignored by the compensation Commissioner. I would, thus, uphold the compensation initially agreed to between the parties to do the substantial justice. Accordingly, the writ petition is allowed. The impugned order, Annexure P-2, is set aside. The petitioner is held entitled to sum of ` 1,95,880/-, which the insurance company had initially agreed to pay as a compromise. Let the balance amount be paid to Civil Writ Petition No. 17007 of 2009 8 the petitioner within one month from the date of receipt of the copy of the order, if modified amount awarded has been paid. March 03, 2011 (RANJIT SINGH ) rts JUDGE