IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.28 of 1990 (O&M) Date of decision:14.01.2011 Vipan Kumar Awasthi ....Appellant versus State of Haryana and others ..Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Chetan Mittal, Senior Advocate, with Mr. Alok Jain, Advocate, for the appellant. Mr. Kunal Garg, AAG, Haryana, for respondents 1 and 2. None for respondent No.3. ---- 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 appeal is for enhancement of a claim for compensation for injuries suffered in an accident where there was an amputation above knee. The Tribunal had assessed a compensation of Rs.1,47,345/-. While determining compensation among other heads, the Tribunal had provided for future medical expenses at Rs.5,000/- and had awarded towards loss of earning capacity an amount of Rs.28,000/-. There are other heads of claim as well but I have only referred to certain heads of claim where I think the assessment has not been done properly. FAO No.28 of 1990 (O&M) - 2 - 2. At the time of trial, a doctor had been examined, who had observed that he has assessed the disability at 45%, but he had stated that the prosthesis which has been fixed to him would require to be changed periodically. The evidence with reference to the prospect of future expenditure for him has been brought through his evidence which was to the effect that he would require visits to the hospital initially for every three months and subsequently for every six months for the rest of his natural life. The doctor opined that he has to incur at least an expenditure of about Rs.500/- to Rs.700/- excluding transportation charges for each one of his visits and a routine visit would also cause to Rs.40/- to Rs.60/-. The total visit upto the age of 65 years in the ordinary course of his life would cause him at least Rs.45,000/-. After the appeal, the contention is that he has suffered further privation and the prosthesis has been fixed above knee and that further the disability that has been assessed by a team of doctor was 80%. He has, over a period of time difficulty over the prosthesis already fixed and on medical advice at AIIMS, he has had a modular assembly prosthesis fitted in the year 1996 above knee with pneumatic swing phase control. It has cost Rs.1,29,930/-. There are private communications which have been filed along with the appeal that show that he still has some difficulties with the prosthesis that would require a further change. The communications entered into between parties could under normal circumstances be not substantive evidence. In this case, however, I would find the amputation of his leg was an admitted fact and the treatment has come through a renowned institution like AIIMS where the document filed shows that FAO No.28 of 1990 (O&M) - 3 - the patient's stump was too long for fitment and that a AK prosthesis was required to be fixed. Linkage unit with modular assembly, it was reported, was available from foreign country and it could approximately cost him to Rs.60,000/-. The Department of Rehabilitation and Artificial Limb has itself noted the fact that a modular assembly was fitted to the patient subsequently and medical bills had been filed to show the payment to an amount of about Rs.1,19,150/-. The Court can make a reasonable projection of what the future expenses could be in a situation like this and I would provide for Rs.5 lakhs towards future expenses of medical equipment against Rs.5,000/- awarded by the Tribunal. I would also provide for an additional amount of Rs.45,000/- as spoken to by the doctor himself as the likely consultant expenses over the length of his life. I will also make a further provision for Rs.25,000/- towards transportation for various visits he may have to undertake for the rest of his life. The Tribunal has assessed a compensation of Rs.60,000/- for pain and suffering which I will reduce to Rs.25,000/-. There is no assessment of compensation for loss of amenities which I will assess at Rs.1 lakh. 3. Even the assessment of loss of earning capacity for loss of a limb must be on the basis of how a person that suffers a privation of a limb may be treated in the open market and how the loss of prospect of earning could be impacted by an amputation. The provisions of the Workmen's Compensation Act and the Schedule provided under the Act are themselves the best guide to determine the loss of earning capacity in case of privation of organs and for amputation of a leg above knee, the FAO No.28 of 1990 (O&M) - 4 - loss of earning capacity is 80% which incidentally is also the same as the percentage of disability arising from the injury. His salary at the time of the accident was Rs.1,752.57 paise and I would provide for a 50% increase on the same and take the average income at Rs.2,628/-. 80% of the same would constitute a loss of earning capacity and I would take the loss to be Rs.2,102.40 per month and I will provide for a multiplier of 17 and take the loss of earning capacity at Rs.4,29,000/-. The learned counsel files in the Appellate Court salary certificates of persons, who are working with him that show more than a 10-fold increase. It is difficult for me to entertain such evidence for it is anybody's knowledge that the salary for a person, who was working as a skilled employee, cannot be around Rs.2,500/- or Rs.3,000/- now but I am providing for a compensation as though it was determined in the year when the petition was filed and the provision for interest as is normally granted will take care of the inflationary trends and the prospect of further increase. The overall compensation if all the heads of compensation are added shall be Rs.11,24,000/- and the amount in excess over what has been already awarded will carry interest @ 6% from the date of petition till date of payment. 4. The appeal is allowed to the above extent. (K.KANNAN) JUDGE 14.01.2011 sanjeev