IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.758 of 1989 Date of decision:06.09.2010 The New India Assurance Company Limited ....Appellant versus Pritam Singh and others ...Respondents II. FAO No.693 of 1989 Neerupam Mohan Mathur ....Appellant versus Shri Pritam Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. L.M. Suri, Senior Advocate, with Mr.Neeraj Khanna, Advocate, for the appellant in FAO No.758 of 1989 and for respondent No.3 in FAO No.693 of 1989 Dr. Surya Parkash, Advocate, for the appellant in FAO No.693 of 1989 and for respondent No.4 in FAO No.758 of 1989. ---- 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 two appeals arise out of the same accident, one filed by the Insurance Company in FAO No.758 of 1989 and the other by the claimant in FAO No.693 of 1989. The Insurance Company's appeal contains a challenge on the ground that the liability was restricted by the terms of the policy. During the pendency of the appeal, a document was FAO No.758 of 1989 - 2 - produced which showed that there was an endorsement in the policy providing for enhancement of liability to an unlimited extent. Having regard to the said fact, there is nothing in favour of the Insurance Company for consideration for limitation of liability. The appeal by the Insurance Company is, therefore, dismissed. 2. As regards the claim for compensation for enhancement at the instance of the claimant, the claimant had suffered an amputation of his arm above elbow. The claimant was a design engineer and his use of the hand was definitely most crucial. According to him, he had a Post Diploma, a four years' course, with Haryana State Board of Technical Education and he had been employed with Utility Engineers (India) Limited, a private company, drawing a salary of Rs.2,925/- that included the basic salary plus house rent allowance and maintenance allowance. He also claimed that he was being given Rs.400 to 450/- towards transport allowance. It was brought on record through the evidence of a representative of the employer that subsequent to the accident, his services were also terminated. The salary certificate was produced that showed that he had Rs.2,925/- as his monthly income. The Tribunal took the loss, arising due to the accident, at the rate of Rs.1,500/- per month and applied a multiplier of 15. It granted to him Rs.10,000/- for medical expenses, Rs.15,000/- for attendant charges and Rs.25,000/- for pain and suffering. 3. The learned counsel would contend that the Tribunal was not correct in merely taking the income loss as Rs.1,500/- per month. It is also contended that the loss of earning capacity has not been properly FAO No.758 of 1989 - 3 - assessed. It ought to have made also a provision for future increase. By the fact that he had been completely disabled from securing employment, I would adopt the percentage of loss of earning capacity in the manner stipulated under the Workmen's Compensation Act and take the loss of earning capacity to be 70% for amputation of arm above elbow. As regards even the income, I would discard any provision for transport allowance and take the salary to be Rs.3,000/- and provide for an increase by another 50% in the manner done by the Hon'ble Supreme Court in Sarla Verma and others Versus Delhi Transport Corporation and another-2009 ACJ 1298. The learned senior counsel for the Insurance Company would contend that the decision in the above case of the Hon'ble Supreme Court dealt with the situation of an employment in government Company or in a place where he had definite prospect of increase in salary. It is again his contention that the Hon'ble Supreme Court was dealing with the situation of a death case and the principle ought not to be followed. 4. In my view, the issue relating to death or injury would have no serious difference in the choice of multiplicand or the multiplier. If at all, case of injury that completely disables a person for life is more poignant than a case of death and that is why Courts do not always provide for deductions for personal expenses in case claims for injuries. Indeed, the deduction itself will be meaningless for unlike a case of death, we need to make provision for his own living as well as the living of persons, who are dependent on injured person. The loss in case of injury where there is an amputation and there is a high percentage of loss FAO No.758 of 1989 - 4 - of earning capacity, in my view, the principle laid down in Sarla Verma providing for a prospect of future increase in salary cannot be ruled out. I would, therefore, take the multiplicand to be Rs.4,500/- which is the salary of Rs.3,000/- per month plus 50% of the same for future prospects of increase. For a person, who was aged 32 years, the appropriate multiplier ought to have been 16 and not 15 and I would, therefore, take the annual income to be Rs.54,000/- and adopting a multiplier of 16, I would take the income to be Rs.8,64,000/-. Having regard to the fact that I have taken the loss of earning capacity to be 70%, the amount that would bear to 70% of Rs.8,64,000/- is the amount that shall become payable for loss of earning capacity. The loss of income will be Rs.6,04,800/-. I shall retain the medical expenses of Rs.10,000/-, Rs.15,000/- for attendant's charges and Rs.25,000/- as provided for pain and suffering by the Tribunal. If the same are retained, the amounts will add to Rs.6,54,800/-. The learned counsel would contend that although there was evidence placed before the Tribunal that the cost of prosthesis was Rs.75,000/-, no amount had been granted towards the same. The learned counsel would also state across the bar that the present cost is Rs.1,60,000/-. There is no definite evidence on the same and I would take the cost to be Rs.50,000/- which although the Tribunal did not provide for. I would provide as necessary equipment that he may require for fending himself. The learned counsel states that if the prosthesis were to be fixed, the disability would even be less. In my view, it will make a minimal difference for a prosthesis is more for cosmetic value than a major functional adjunct. Sense of touch, ability to pinch, ability FAO No.758 of 1989 - 5 - to push, ability to pick up, are all factors which go into the making of disability, all of which do not get improved by a prosthesis. All told, the amount that shall become payable in the manner worked out by me would add to Rs.7,04,800/-. The Tribunal has already awarded Rs.3,20,000/- and the amount in excess of what is awarded by the Tribunal shall be paid by the insurer with interest at 6% from the date of the petition till the date of realization. 5. The appeal by the claimant shall stand allowed to the above extent. (K.KANNAN) JUDGE 06.09.2010 sanjeev