---------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO (MVA) No. 195 of 2005. Judgment reserved on: 22.4.2010. Decided on: April 27th, 2010. Kailash. …… Appellant. Versus Jayoti Ram and others …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?Yes. For the appellant : Mr. Anup Rattan, Advocate. For the respondents : Mr. Dibender Ghosh, Advocate for respondent No.2. Mr. K.D. Sood, Advocate, for respondent No.3. None for respondent No.1. Surinder Singh, J: 1. The injured petitioner felt dissatisfied by the award dated 11.3.2004, passed by the learned Motor Accident Claims Tribunal (II), Solan, in MAC Petition No.50-S/2 of 2001, thus claimed enhancement. 2. The facts which are not in dispute are that the petitioner was a cleaner in the truck HP-09-0623, owned by respondent No.1 and respondent No.2 was its driver. It was insured with respondent No.3, the New India Assurance Company Limited. The truck met with an accident on 23.6.2001 at about 6.30 a.m. on the national highway in the front of “M/s United Rice Mills”, under Police Station Butana, - 2 - District Kurukshetra (Haryana), resulting into the grievous crush injuries on his left leg with other associated injuries. Since there was an apprehension of infection in the entire body, thus, his left leg from the thigh above the knee was amputated in I.G.M.C. Shimla w.e.f. 24.6.2001. He remained hospitalized till 21.7.2001. It is alleged that by amputation of his leg, he suffered 85% permanent disability of the lower limb. Medical certificate issued by the doctor to this effect is Ex.PW4/A. 3. The learned Tribunal below vide para-17, agreed with the petitioner that he spent Rs.60,000/- on his treatment, but awarded Rs.30,000/- under the head pecuniary damages, for the reasons not known, but in all awarded the amount of Rs.3,00,000/- under the different heads as follows:- Pecuniary damages: i) Expenditure of medical treatment. 30,000.00 Non-pecuniary damages. i) Expenditure of attendant and 15,000.00 Transportation. ii) Pain and suffering 35,000.00 iii) Loss of amenities and expectation 50,000.00. iv) Loss of future earnings 1,70,000.00 Total: Rs. 3,00,000.00 The claimant did not feel satisfied from this amount, hence this appeal. 4. Shri Anup Rattan, learned counsel for the appellant, argued that there was no reason for the learned - 3 - Motor Accident Claims Tribunal to cut down the medical expenditure when it has come to the conclusion that the petitioner has spent Rs.60,000/- thereon and it also did not award an amount of Rs.15,000/- for purchasing of artificial limb and also that under the head of loss of future earning, the appropriate criteria as laid down by the apex Court in Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another [2009 (6) SCC 121], was not adopted. 5. Shri K.D. Sood, learned counsel for New India Assurance Company Limited, frankly and squarely conceded that if there is any error in calculating the award, it be calculated to the reasonable extent, but otherwise the total amount awarded, in terms of interest would fetch the interest equivalent to the future loss incurred by the petitioner, therefore, further enhancement may not be made. 6. I have gone through the evidence on record and have re-examined the evidence in light of the arguments advanced by the parties. 7. There is un-assailed testimony of the petitioner and his mother that they had spent Rs.60,000/- on the treatment and this fact has been noticed by the learned Tribunal below, but while awarding the amount, it is not understood as to why, the learned Tribunal awarded an amount of Rs.30,000/-, there is also no mention as to what was the reasons for the cut. Further, the petitioner is a young lad of 18 years of age, as stated by the doctor and he has the - 4 - entire life to lead. He is unmarried. He required an artificial limb, the cost of which was claimed Rs.15,000/- is justified should have been awarded, which fact was wrongly ignored. 8. The learned Tribunal also awarded Rs.1,70,000/- for loss of future earnings, the criteria of which is not mentioned in the award. 9. In Sarla Verma’s case supra, the apex Court has observed that to determine “just compensation”, the uniformity and consistency is required to be maintained among decisions of Tribunals/ Courts. Thus the assessment of compensation though involves certain hypothetical consideration, should nevertheless be objective. ‘Justice’ and ‘justness’ emanate from equality in treatment, consistency and thoroughness in adjudication, fairness and uniformity in the decision making process and the decisions. While it may not be possible mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/ inputs are the same and the formula/ legal principles are the same, consistency and uniformity and not divergence and freakiness, should be the result of adjudication to arrive at “justice compensation”. It also approved multiplier method even in injury cases of the like nature. 10. Percentage of disability in the instant case is 85%. He was a cleaner in the truck. The petitioner is a matriculate. His certificate is Ex.PW1/A. the disability has to - 5 - be assessed qua his future prospectus. Percentage of disability suffered by the injured does not come in terms of loss of earning capacity. A person may be doing the desk job and because of amputation of both the legs, although his disability may be 80 to 90%, but his loss of earning capacity in an organised employment may be nil, because he continued to work in the same job, but just opposite when a person who is doing a particular skilful job and if he suffers the disability qua that which substantially effected his earnings and by which unable to do the work, for which he is trained even in small disability would translate to much higher loss of his earning capacity. For example, if the finger of a Stenographer gets fractured was amputated, even the loss of injury which virtually reduced his earning capacity could affect him substantially and virtually in some cases may reduce his earning capacity to nil. Similar is a case of a Painter where if in the loss of two fingers would virtually reduce his earning capacity to nil, as observed by a coordinate bench of this Court in Swaran Singh versus Achhar Singh and others of this Court in FAO (MVA) No.178 of 2005 decided on 4.12.2009 and held that the Tribunals cannot follow a pedantic approach and just translate the percentage of disability into equivalent loss of earning capacity. The loss of earning capacity is required to be decided keeping in view the nature of injuries sustained qua his job. There can be no exact formula for assessing the - 6 - loss of earning capacity, but it should be reasonable and Tribunals are required to take pragmatic view of the matter. 11. In T.Ravanan v. P.R. Selvaraj and another [2009 ACJ 238] decided by the High Court of Judicature at Madras, the injured aged 35 years was a driver of the tanker, drawing Rs.2,500/- per month, suffered 70 per cent permanent disability. He had to discontinue his job as a driver. An amount of Rs.1,25,000/- awarded by the learned Tribunal was enhanced to Rs.2,85,000/-. 12. In Yadu Bansh Singh v. Parmod Kumar Tapariya and others [2009 ACJ 644] decided by the High Court of Jharkhand, there was amputation of right leg at middle of thigh. Injured was Assistant Sub-Inspector in Bihar Police. He was allowed to continue in service, but lost future prospectus and promotional avenues. He was awarded an amount of Rs. 6 lacs. Yet in another case titled Asraf Alli v. Naveen Hotels Ltd. and another [2009 ACJ 663], the apex Court in a similar type of case, where there was amputation of left leg below knee with 3” stump with old scar on right heel of a boy aged 15 years, running a poultry farm independently, adopted multiplier of 15 and allowed an amount of Rs. 3,24,000/- as just and reasonable compensation. 13. In the instant case, the appellant was aged about 17/18 years of age at the time of accident. He was a cleaner in the truck. His left leg from the knee was amputated, as stated by Dr. Manoj Kumar Thakur, Assistant Professor of - 7 - Department of Orthopaedic and Surgery, thereby suffered 85% permanent disability of the lower limb qua his profession. Thus, because of this disability, cannot perform the job of the cleaner, but certainly it is not as if he has become incapable to earn any amount by doing some other job. He is still capable to manage the agricultural operations, run the shop where only sitting is required, but this cannot be lost sight that his earning capacity and further prospectus has been impaired substantially. 14. While assessing the loss of earning capacity, element of conjecture and guess work also involves in absence of a particular evidence in this behalf. Doctor in this case has also not stated anything except permanent disability. It was the duty of the parties to elicit from him as to what physical work the petitioner could do and what he could not perform. But, keeping in view the above facts and on the basis of judgment of the apex Court rendered in Sarla Verma’s case supra, the age of the petitioner and also the nature of disability and the fact what work he can perform, the multiplier of 15 would be just and reasonable in the instant case. 15. I am of the considered view that the petitioner’s earning capacity must have been reduced to 50%, if not more, for the reasons that he could do other sitting jobs and manage the affairs of agricultural work and start a shop, therefore, his loss of future earning should be taken at Rs.1100/- per month, which comes to Rs.13,200/- per annum - 8 - and multiplying the multiplicand with the multiplicant, it comes to Rs.1,98,000/-, which appears to be just and reasonable in the facts and circumstances of the case. 16. Since under the head of loss of future earning, the learned Tribunal has awarded Rs.1,70,000/-, thus the petitioner is held entitled for Rs.28,000/- over and above the amount awarded by the learned Tribunal under this head. 17. In addition, the petitioner is also held entitled Rs.30,000/- over and above the amount awarded by the learned Tribunal under the expenditure of medical treatment and Rs.15,000/- for the artificial limb, which comes to Rs.73,000/- (28,000+30,000+15,000) over and above the award passed by the learned Tribunal. 18. In view of the above discussion, the appeal is allowed and the compensation is enhanced from Rs.3,00,000/- to Rs.3,73,000/-. The claimant is also held entitled to the interest to the enhanced amount @ 9% per annum from the date of filing the petition, i.e. 28th August, 2001, till deposit of the enhanced amount. 19. The New India Assurance Company is directed to deposit the enhanced amount alongwith interest accrued thereon, in the Registry of this Court, within three months from today. The appeal is disposed of in the aforesaid terms. 20. Parties are left to bear their own costs. (Surinder Singh ) Judge April 27, 2010. (Pds) - 9 -