IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No.178 of 2005 Decided on: 4.12.2009 Swaran Singh. …..Appellant. VERSUS Achhar Singh and others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1Yes For the Appellant: Mr.Ajay Sharma, Advocate. For the Respondents: Mr.H.S.Rawat, Advocate, for respondent No.4. Mr.G.C.Gupta, Sr.Advocate with Ms.Madhvi Singh, counsel for respondent No.5. Deepak Gupta,Judge (Oral) This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the award dated 27.1.2005 passed by the learned Motor Accident Claims Tribunal (II), Una (hereinafter referred to as ‘the Tribunal’), in MAC Petition (RBT) No. 129/01/2K claiming enhancement of compensation. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… The undisputed facts of the case are that the claimant was traveling in a bus belonging to HRTC. One truck No.HP-24-2565 which was coming from the other side hit the right side of the bus and also hit the right arm of the claimant resulting in amputation of his arm. The claimant filed a petition for grant of compensation which has been allowed and the learned Tribunal has awarded a total sum of Rs.1,59,360/ as compensation alongwith interest @ 9% per annum from the date of filing of the petition till deposit of the amount. The claimant being not satisfied by the amount of compensation granted is in appeal before this Court. The claimant was working as a labourer in the grain market at Chandigarh. According to the claimant and his witness Surinder Singh, they were both earning about Rs.200 to Rs.250/- per day. The learned Tribunal has however, assessed the income of the claimant at Rs.120/- per day and has also come to the conclusion that this work was not regular. Hence the monthly income has been assessed at Rs.3000/-. The age of the petitioner is proved to be between 45- 50 years. He was working as a Paledar (labourer) in …3… the grain market, Chandigarh. Taking all these factors into account, I think that the assessment of income by the learned Tribunal is reasonable and is not required to be interfered with. The facts proved on record show that the petitioner was admitted in PGI, Chandigarh on 15.6.1999 and was discharged from there on 18.6.1999, i.e. after four days. The injury may be serious but in view of the amputation of arm, the petitioner was not hospitalized for a long time. Therefore, the compensation of Rs.7,000/- awarded for medical expenses, Rs.3,000/- for taxi charges and Rs.3,000/- for special diet and attendant charges appears to be reasonable and calls for no interference. The main dispute is with regard to the non- pecuniary damages as well as actual loss of earnings and the future loss of earnings. The learned Tribunal has granted Rs.6,000/- for actual loss of earnings on the assumption that for two months, the claimant would not have been able to work. This also appears to be reasonable. I shall now deal with the claim for future loss of earnings. From the evidence on record, it is more …4… than apparent that the right arm of the claimant has been amputated from the shoulder joint. PW/1 Dr.Satinder Chauhan has issued dis-ability certificate and according to him, disability to the right arm is 85% but in relation to the entire body, it is 21.25%. The learned Tribunal has assessed the future damages by assessing the disability at 22%. It is urged on behalf of the claimant that keeping in view the nature of injuries suffered by the claimant and the nature of the job of labourer being performed by him, the Tribunal erred in assessing the disability at 22% only. Percentage of disability suffered by an injured does not necessarily translate to the same amount of percentage in terms of loss of earning capacity. A person may be doing a desk job. Both his legs may be amputated. His physical disability may be assessed at 80-90% but his loss of earning capacity if he is in organized employment may be nil because he continues to work in the same job. However, when a person who is trained to do a particular type of work suffers an injury whereby he cannot perform the work which he is trained to do, even a small disability may translate to a much higher loss in earning capacity. …5… One can give the example of a painter where even the loss of two fingers may virtually reduce his earning capacity to nil. The Tribunals cannot follow a pedantic and just translate the percentage of disability into equivalent loss of earning capacity. What is the loss in earning capacity must be decided keeping in view the nature of injuries as well as the nature of the job which the claimant was performing. There can be no exact formula for assessing the loss of earning capacity but the Tribunal must while awarding just compensation take a reasonable and pragmatic view of the matter. Coming to the facts of the case, it is obvious that the claimant cannot work any longer as a labourer. A man without an arm cannot be expected to carry heavy loads. Having said so, it is not as if the claimant has become totally incapable of earning any amount. He can still manage his fields even if with the help of others and do other work. His earning capacity has definitely been impaired substantially. While assessing the loss of earning capacity some element of conjecture and guess work is also involved especially when there is no precise …6… evidence led on this issue by the parties. Even though the doctor was examined in the present case he only proved the disability certificate but did not state as to what physical work the petitioner can do and what he cannot do. Keeping in view all these factors, I am of the considered view that the petitioner’s earning capacity must have been reduced by 50% if not more. Therefore, I am of the view that his loss of earning should be taken at Rs.1500/- per month or Rs.18,000/- per year. The learned Tribunal has applied multiplier of 13 which is in consonance with the law laid down by the Apex Court in Sarla Verma (Smt.) and others Versus Delhi Transport Corporation and another, 2009 (6) SCC 121 . Therefore, the loss of earning capacity works out to Rs.18,000/- x 13, i.e., Rs.2,34,000/-. Coming to the question of non-pecuniary damages, the claimant has been awarded Rs.18,000/- for pain and suffering and Rs.17,000/- for loss of enjoyment of life. Keeping in view the injury suffered by the claimant and the fact that the treatment only lasted for four days, the amount awarded for pain and …7… suffering is found to be reasonable. However, the amount awarded for the loss of enjoyment of life is very low. Here we are considering the case of a person who for the rest of his life will have to live without one limb. He cannot work like a normal human being. He is deprived of many activities. Therefore, the compensation under the head of loss of enjoyment of life coupled with the head of future discomfort and disability which the claimant shall face is enhanced to Rs.50,000/-. In view of the above discussion, the appeal is allowed and the compensation is enhanced from Rs.1,59,360/- to Rs.3,21,000/-. The claimant is also held entitled to interest on the enhanced amount @ 9% from the date of filing of the claim petition, i.e., 28.12.1999 till the deposit of the amount. The Insurance Company is directed to deposit the enhanced amount in the Registry of this Court within twelve weeks from today. The appeal is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ) December 4, 2009(m) Judge. …8…