Case: Neerupam Mohan Mathur Vs. New India Assurance Co

The claimant was employed as a Product Design Engineer in M/s. Utility Engineers (India) Ltd. Dharuhera, District Mohindergarh, Haryana. The employer had arranged for a Chartered Bus belonging to M/s. National Tours & Travels, F-4, East of Kailash, New Delhi, 2nd respondent before the Tribunal for carrying the employees to the factory at Dharuhera and back; one Pritam Singh, 1st respondent before the Tribunal was the driver of the said bus. On 2nd September, 1987, the claimant along with his colleagues was coming back from Dharuhera in the said Chartered Bus bearing Registration No.DBP-805. At about 6 p.m. when the said Bus reached near the turning of village Shikohpur on Gurgaon-Jaipur Highway, it came across a truck coming from opposite direction which was crossing a camel cart in front of it. Pritam Singh, who was driving the bus at a very high speed, carelessly, rashly and negligently attempted to cross the above said truck without keeping the Bus to the extreme left hand side. This resulted in a collision of right hand side of the bus with the truck, which resulted in severance of right hand of the claimant who was sitting in the right side of the bus. The said accident and the mishappenings thereto were witnessed by the occupants of the bus. One Anil Kumar, PW-3, who was also travelling in the said Chartered Bus at the time of the said accident, took the claimant to the Civil Hospital, Gurgaon from where he was given medical first-aid and he was referred to Safdarjang Hospital, New Delhi. The claimant was later on transferred to ‘Dr. Ram Manohar LohiaNew Delhi and thereafter he was also treated in different Hospitals at various stages. The matter was also reported to the Police by Anil Kumar, PW-3.4. The claimant filed a petition under Section 110-A of the Motor Vehicles Act, 1988 claiming Rs.12 lacs as the compensation for the loss of the right hand which was amputated near the shoulder, on various counts.5. The respondents contested the claim of the claimant. The Tribunal after perusing oral and documentary evidence held that the accident took place due to rash and negligent driving by Driver, Pritam Singh of Bus No.DBP-805. The Issue No.1 was thus decided in favour of the claimant. While assessing the compensation under Issue No.2, the Tribunal awarded a compensation of Rs.3,20,000/- with interest at the rate of 12% per annum.6. In the appeal preferred by the claimant the High Court taken a loss of earning capacity to 70% in view of permanent disability of right hand. Based on salary of Rs.3,000/- per month as claimed by the claimant adding 50% on the same for future prospects of increase and applying multiplier of 16, compensation amount was raised to Rs.4,500/- with interest at 6% from the date of petition. The High Court made the following observation while granting compensation against differentIn 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 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 attendants 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 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.The claimant has challenged the order passed by the High Court on three countsThe permanent disability has been wrongly assessed at 70% which should have been 100% in the case of the claimant.(ii) The lower amount has been paid towards cost of prosthesis and(iii) Lesser amounts have been allowed towards pecuniary and non- pecuniary damages.

Reasoning:
n view of the forgoing discussion we find no grounds made out to interfere with the finding of the High Court which determined the percentage of loss of earning capacity to 70% adopting the percentage of loss of earning capacity as per the Workmens Compensation Act. The total loss of income thus rightly calculated by the High Court at Rs.6,04,800/-.15. However from the award passed by the Tribunal and judgment rendered by the High Court, we find no ground shown by the Tribunal or the High Court in providing pecuniary and non-pecuniary damages at a lower rate. Against some of the heads even no amount has been allowed.16. The Tribunal in its award has noticed that the claimant had to go to Hospital every 10 days for treatment. He was admitted in different Hospitals and was under treatment as indoor patient for about one and a half months. Claimants hand was amputated and skin was grafted. Inspite of the same, no amount has been allowed towards loss of earning during the period of treatment nor any amount allowed towards future medicalregards to the fact that the Tribunal and the High Court have not allowed reasonable amount for different pecuniary and the non-pecuniary damages, we, therefore, with a view to do complete justice to the claimant re-determined the amount of compensation on the following terms:Pecuniary damages (Specialrelating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (medical expenses Rs.15,000 + Attendant Rs.15,000 + cost of prosthesis Rs.75,000)Rs.1,05,000(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 70% permanent disability taking multiplier of 16)Rs.4,500Rs.6,04,800(iii)Future medicalThe respondent Insurance Company is directed to pay the claimant- appellant a sum of Rs.11,64,300/- minus the amount already paid pursuant to the order passed by the Tribunal within three months from the date of judgment with interest @ 12%. The order passed by the High Court and Tribunal stands modified to the extent above.