F.A.O.NO. 514 OF 1993 and F.A.O.NO. 56 OF 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 514 OF 1993 Date of decision:7th February, 2011 Smt. Naresh Kumari Lakhanpal .......Appellant Versus Suraj Mal and another ........Respondents F.A.O.NO. 56 of 1993 Smt. Savita Agnihotri .......Appellant Versus Suraj Mal ......Respondent BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Vikram Bali, Advocate, for the appellant in FAO No. 514 of 1993. Mr. Amit Shivrain, Advocate, for Mr. Kulvir Narwal, Advocate, for the appellant in FAO No. 56 of 1993. Mr. Ajay Kaushik, Advocate for UOI in FAO NO. 514 of 1993 Mr. Ashok Kumar, Advocate, for Mr. S.K.Sharma, Advocate, for UOI in FAO No. 56 of 1993. 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporters or not?No 3. Whether the judgment should be reported in the Digest? No K.Kannan, J.(Oral) F.A.O.NO. 514 OF 1993 and F.A.O.NO. 56 OF 1993 2 1. Both the appeals raise the issue regarding the quantum of compensation assessed by the Tribunal and the liability apportioned amongst the respondents for negligence. 2. The claimant was M.A. B.Ed., said to be qualified to be employed as a teacher and also making income through private tuition. On account of the injury suffered and continuation of her ailment in arms and legs besides dislocation of the hip and head injury, she had to discontinue her work. The dislocation in the right hip required hospitalisation and surgical open reductions and internal fixation. She was said to have incurred about `7,500/- as medical expenses, but since her husband was said to have obtained reimbursement of the expenses, the Tribunal did not allow the same. It also rejected the evidence relating to her employment as a teacher as not established and provided `10,000/- as pecuniary damages and `40,000/- as general damages. 3. The mode of assessment of compensation for injuries as indicated by the Tribunal is grossly inadequate and inappropriate. The Tribunal is bound to assess compensation under every admissible head of claim as provided in the form of application for motor accident claim. If the amount were to be re-assessed, after excluding the provision for medical expenses which were fully reimbursed, I provide for `15,000/- towards pain and suffering for dislocation of a hip and the surgical pain. She had been assessed to be disabled to the extent of 20 % for the right lower limb and 40% for impairment of eye sight F.A.O.NO. 514 OF 1993 and F.A.O.NO. 56 OF 1993 3 in both the eyes. The appellant has produced document in appeal under order 41 Rule 27 to contend that she had been called for an interview for a teachers post in Himachal Pardesh Government and though she had been provisionally selected, she was ultimately disqualified for the impairment in her vision and stated to be unfit to hold the post. The provisional selection and the ultimate rejection had been filed as proof of her loss of earning capacity. 4. The contention of the learned counsel is that the Tribunal ought to have seen that the impairment truly resulted in loss of earning capacity and an assessment of general damage for `40,000/- was therefore, not appropriate. For an impairment of vision to an extent of 40% and to a permanent disability for the right lower limb resulting from a fracture, I will take the loss of earning capacity as 30% and taking the income of the deceased and average income of the claimant to be `3,500/-, considering the fact that she was having a M.A.B.Ed., qualification, I will assess the amount of loss of earning capacity, at `2,14,200/-(3,500 x 30% x 12 x 17). This shall replace the assessed amount of `50,000/- as general damages and also provide to her an additional amount of `25,000/- for inconvenience suffered by her which should continued right through her life with restriction of movement of right lower limb and the impairment in the eye sight. This over all compensation shall be at `2,39,200/-. The amount in excess over what has already been determined by the Tribunal shall F.A.O.NO. 514 OF 1993 and F.A.O.NO. 56 OF 1993 4 attract interest at 6% from the date of the petition till the date of payment. The appeal is allowed to the above extent and the right of enforcement will fall against the Union of India-respondent No. 2. 5. As regards the claim for compensation which is the subject matter in FAO No. 56 of 1993, the deceased was 38 years of age and said to be press reporter for group of newspapers at Patiala on a consolidated pay of `1,500/- p.m. He was also said to be a partner in a business of M/s. Agnihotri Works, Ambala Cantonment. Roshal Lal an employee from Income Tax department was examined to say that the entire records relating to the assessment had been burnt. The evidence let in by the wife was that her husband was also earning through his partnership and assessed to income tax but the relevant records had been destroyed. This was rejected on the ground that if the income tax records had been destroyed, the claimant should have adduced evidence through one of the partners about the nature of work and the income that he was earning. The Tribunal therefore, took the dependency for family at `1,000/- adopted a multiplier of 18 and determined compensation at `2,16,000/-. For relatively a younger person has sufficient credentials having his own business and who also acting as a reporter in a news journal, to provide for merely `1500/- will be inadequate. I would adopt average income at `3,000/- and make a deduction of 1/4th towards personal expenses, having regard to the fact that he had widow, two children and mother to be F.A.O.NO. 514 OF 1993 and F.A.O.NO. 56 OF 1993 5 supported. The monthly contribution would be adopted as `2,250/- and taking a multiplier of 15 instead of 18 as taken by the Tribunal, the total compensation that would become payable at `4,05,000/- I will provide `25,000/- for loss of consortium, loss of love and affection for the children, loss to estate and funeral expenses and the total at `4,30,000/-. 6. The Tribunal had awarded `2,16,000/- and amount shall stand increased as above. The amount in excess over what has already been awarded by the Tribunal shall attract interest at 6% from the date of the petition till the date of payment. The liability shall be in the same manner as determined by the Tribunal below. The appeal is allowed to the above extent. [K.KANNAN] JUDGE 7th February, 2011 Shivani Kaushik