Case: Sanjay Kumar Vs. Ashok Kumar

loss of earning capacity along with future prospects in income will come to [pic]10,20,600/-[[pic]6,750 x 70/100 x 12 x 18]. 10. Further, in the case of Raj Kumar v. Ajay Kumar & Anr. [(2011) 1 SCC 343] , this Court has succinctly explained the guidelines and heads for awarding compensation in cases of disability due to a motor accident. The relevant paragraphs are extracted below: “6. The heads under which compensation is awarded in personal injury cases are the following:Pecuniary damages (Special damages)(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:(a) Loss of earning during the period of treatment;(b) Loss of future earnings on account of permanent disability.(iii) Future medical expenses.Non-pecuniary damages (General damages)(iv) Damages for pain, suffering and trauma as a consequence of the injuries.(v) Loss of amenities (and/or loss of prospects of marriage).(vi) Loss of expectation of life (shortening of normal longevity).In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses—Item (iii)—depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages—Items (iv), (v) and (vi)—involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant.Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability—Item (ii)(a).” 11. The appellant has further contended that he should be awarded compensation for loss of income suffered during the period of treatment i.e. 26.10.2005 to 10.12.2005. As the accident took place on 28.09.2005, this comes to a period of around 3 months. Keeping in view the principles espoused in the aforesaid judgment, we hereby award an amount of [pic]13,500/- for this period ([pic]4,500 x 3) taking the monthly income of [pic]4,500/-, thus, bringing the total compensation under the broad head of loss of income to [pic]10,34,100/-. 12. Now, we will assess the compensation awarded under the other heads. With respect to medical expenses, attendant charges and conveyance charges, as well as possible future medical costs, we will award a total sum of [pic]75,000/- as he has suffered permanent disability due to amputation of his right leg. The appellant will need assistance in order to travel and move around, and regular check-ups and will most likely use a crutch to walk, all of which will incur expenses. On the point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead clubbed it under ‘loss of future enjoyment of life’ and ‘pain and suffering’. We thereby award [pic]75,000/- towards loss of marriage prospects. Further, as per the case of Govind Yadav v. New India Insurance Co. Ltd. [(2011) 10 SCC 683] , wherein the appellant suffered amputation of the leg, this Court awarded a sum of [pic]1,50,000/- towards ‘pain and suffering’ caused due to amputation of the leg. Therefore, towards ‘mental agony and pain and suffering’, we award a sum of [pic]1,50,000/- as the appellant has suffered tremendously due to the accident in terms of the pain and suffering involved in the amputation. Loss of a limb causes a profusion of distress and the appellant has to deal with the same for the rest of his life. We feel it is justified to award the aforesaid amount under this head as he might have to deal with discrimination and stigma in society due to the fact that he is an amputee.13. Further, it is necessary to award an amount under the head of ‘loss of amenities’ also as the appellant will definitely deal with loss of future amenities as he has lost a leg due to the accident. The injury has permanently disabled the appellant, thereby reducing his enjoyment of life and the full pursuit of all the activities he engaged in prior to the accident. We thereby award a sum of [pic]1,00,000/- towards ‘loss of amenities’. Along with the compensation under conventional heads, the appellant is also entitled to costs of litigation as per the legal principle laid down in the case of Dr. Balram Prasad v. Dr. Kunal Saha & Ors. [(2013) 13 SCALE 1] Therefore, under this head, we find it just and proper to award [pic]25,000/- towards costs of litigation.14. Thus, the total compensation, the appellant is entitled to is given hereunder:Head of compensationAmountLoss of income:Loss of earning capacity and future prospects of income +Loss of earnings during period of treatmentRs.10,20,600/- +Rs.13,500/- =Rs.10,34,100/- Medical expenses, attendant and conveyance costs and future medical costsRs.75,000/- Loss of marriage prospectsRs.75,000/- Mental agony, pain and sufferingRs.1,50,000/- Loss of amenitiesRs.1,00,000/- Cost of litigationRs.25,000/- Total compensation:Rs.14,59,100/- 15. Further, as per the case of Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] , we find it just and proper to increase the interest awarded from 7% to 9% per annum. Hence, the total compensation the appellant is entitled to is [pic]14,59,100/- along with 9% interest per annum from the date of the accident till the date of realization.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our considered view, the appellant is entitled to be awarded compensation based on the wages for a skilled worker, as he is an embroiderer and the same cannot be considered as an unskilled work. The minimum wages in Delhi for a skilled worker as on 01.08.2005 was [pic]3589.90/per month. The appellant has claimed that he was earning [pic]4,500/per month from his work as an embroiderer. We will accept his claim as it is not practical to expect a worker in the unorganized sector to provide documentary evidence of his monthly income as per decision of this Court in the case of Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] , wherein it was held asIn the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs. 4500/per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs. 3000/only on the assumption that the wages of a labourer during the relevant period viz. in the year 2004, was Rs. 100/per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs 3000/per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.15. In the present case, the appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs. 100/to Rs 150/per day or Rs. 4500/per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs. 4500/to Rs. 3000/per month. We, therefore, accept his statement that his monthly earning was Rs.in the present case, a monthly income of [pic]4,500/as claimed by the appellant for his work as an embroiderer is reflective of ground realities and is not exorbitant by any standard and in the interest of justice, we should accept his claim. Further, he was also noton the aspect of the nature of his work as an embroiderer and both the Tribunal and the High Court have erred in holding that thework was of an unskilledthe point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead clubbed it under ‘loss of future enjoyment ofand ‘pain andWe thereby award [pic]75,000/towards loss of marriage prospects. Further, as per the case of Govind Yadav v. New India Insurance Co. Ltd. [(2011) 10 SCC 683] , wherein the appellant suffered amputation of the leg, this Court awarded a sum of [pic]1,50,000/towards ‘pain andcaused due to amputation of the leg. Therefore, towards ‘mental agony and pain andwe award a sum of [pic]1,50,000/as the appellant has suffered tremendously due to the accident in terms of the pain and suffering involved in the amputation. Loss of a limb causes a profusion of distress and the appellant has to deal with the same for the rest of his life. We feel it is justified to award the aforesaid amount under this head as he might have to deal with discrimination and stigma in society due to the fact that he is an amputee.13. Further, it is necessary to award an amount under the head of ‘loss ofalso as the appellant will definitely deal with loss of future amenities as he has lost a leg due to the accident. The injury has permanently disabled the appellant, thereby reducing his enjoyment of life and the full pursuit of all the activities he engaged in prior to the accident. We thereby award a sum of [pic]1,00,000/towards ‘loss ofAlong with the compensation under conventional heads, the appellant is also entitled to costs of litigation as per the legal principle laid down in the case of Dr. Balram Prasad v. Dr. Kunal Saha & Ors. [(2013) 13 SCALE 1] Therefore, under this head, we find it just and proper to award [pic]25,000/towards costs of litigation.14. Thus, the total compensation, the appellant is entitled to is given hereunder:Head of compensationAmountLoss of income:Loss of earning capacity and future prospects of income +Loss of earnings during period of treatmentRs.10,20,600/l expenses, attendant and conveyance costs and future medicaltal agony, pain andst of. Further, as per the case of Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] , we find it just and proper to increase the interest awarded from 7% to 9% per annum. Hence, the total compensation the appellant is entitled to is [pic]14,59,100/along with 9% interest per annum from the date of the accident till the date of realization.