SRI ANTHONY ALIAS ANTHONY SWAMY versus THE MANAGING DIRECTOR, K.S.R.T.C. on 10 June 2020

1. Leave granted.

2. The appellant is in appeal aggrieved by the order of the HighCourt, claiming inadequacy of compensation granted to him in a motoraccident case.

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3. The appellant was travelling in a bus of the respondentCorporation and met with an accident on 19.02.2010, due to rash andnegligent driving of the bus driver who hit a lorry from behind. As aconsequence of the injuries suffered, the left leg of the appellant had tobe amputated. The Tribunal awarded a compensation of Rs.4,08,850/-.

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AThe High Court in appeal enhanced the same to Rs.5,10,350/-. The appealpreferred by the respondent Corporation was dismissed.

4. Shri Ashwin Kotemath, learned counsel for the appellantsubmitted that the compensation enhanced by the High Court is niggardlyand grossly inadequate considering the nature of injuries suffered. TheBappellant was a painter by vocation. He had a daily income of Rs.300/-cumulated at Rs.9,000/- per month, supported by the evidence of hisemployer PW.2, which has been wrongly rejected. The permanentdisability of the appellant contrary to the evidence of PW.3, Dr. S.Ramachandra the treating Doctor, has been wrongly fixed at 25% of thewhole body without any reasoning to support the same, in the nature ofCthe injury, suffering, future medical treatment and loss of future incomecaused to the appellant.

5. Shri S.N. Bhat, learned counsel for the respondent, submittedthat the High Court has reasonably enhanced the compensation and itcalls for no interference. The appellant had failed to substantiate theDclaimed income with substantive evidence. The extent of disabilitysuffered has been adequately assessed. The evidence of the employerand the treating doctor have all been considered adequately.

6. We have considered the submissions on behalf of the parties.The appellant was initially taken to the government hospital on the dateEof the accident but was shifted to a private hospital on 25.02.2010 wherehe remained as an inpatient till 16.09.2010 and also underwent surgeryrequiring amputation of his left leg from above the knee. PW.3, thetreating doctor, deposed that the appellant had suffered Type III ‘B’commuted fracture of Tibia and Fibula of the left leg with an activeFinfection of Chronic Osteomyelitis emanating foul smell which preventedhim from mixing and socialising in public. There was no alternative toamputation and fixation of an artificial leg. The physical disability sufferedby the appellant of the left lower limb was assessed at 75% which wasabout 37.5% of the whole body. PW.3 further opined that the appellanthad suffered shortening of the left lower limb by 3 cms. He could notGstand independently or walk without aid of a walker or attendant. Theappellant cannot sit cross legged, squat or use an Indian toilet. He couldnot climb up and down a staircase. The appellant was incapable of anymanual work including painting. The appellant who was 45 years of age,considering average life expectancy of 65 years would require at least H

three further replacements of the artificial limb in his lifetime, the cost ofwhich was assessed at approximately between Rs.75,000 toRs.1,50,000/-.

7. The High Court enhanced the monthly income of the appellantto Rs.5,500/-. He has been awarded a sum of Rs.1,00,000/- towardspain and suffering and Rs.7,350/- towards medical expenses along withRs.21,000/- for attendant charges. The loss of earnings during the periodof treatment has been enhanced by the High Court to Rs.66,000/-.Conveyance charges have been paid at Rs.10,000/-. We find no reasonto interfere to the aforesaid extent.

8. The physical disability of the appellant without any reasoninghas been assessed at 25% of the whole body with which we are unableto concur. The compensation granted towards loss of future earning onaccount of disability at Rs.2,31,000/- is considered grossly inadequate inthe facts and circumstances of the case, as also the compensation ofRs.50,000/- towards future medical expenses and only Rs.25,000/-towards loss of amenities.

9. PW.3 had assessed the physical functional disability of the leftleg of the appellant at 75% and total body disability at 37.5%. The HighCourt has considered it proper to assess the physical disability at 25% ofthe whole body only. There is no discussion for this reduction inpercentage, much less any consideration of the nature of permanentfunctional disability suffered by the appellant. The extent of physicalfunctional disability, in the facts of the case has to be considered in amanner so as to grant just and proper compensation to the appellanttowards loss of future earning. The earning capacity of the appellant ason the date of the accident stands completely negated and not reduced.He has been rendered permanently incapable of working as a painter ordo any manual work. Compensation for loss of future earning thereforehas to be proper and just to enable him to live a life of dignity and notcompensation which is elusive. If the 75% physical disability has renderedthe appellant permanently disabled from pursuing his normal vocation orany similar work, it is difficult to comprehend the grant of compensationto him in ratio to the disability to the whole body. The appellant is thereforeheld entitled to compensation for loss of future earning based on his75% permanent physical functional disability recalculated with the salaryof Rs.5,500/-with multiplier of 14 at Rs. 6,93,000/-.

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A10. Raj Kumar vs. Ajay Kumar and another, 2011 (1) SCC 343lucidly sets out the principles for grant of compensation in cases ofpermanent physical functional disability as follows:

“10. Where the claimant suffers a permanent disability as a resultof injuries, the assessment of compensation under the head ofBloss of future earnings would depend upon the effect and impactof such permanent disability on his earning capacity. The Tribunalshould not mechanically apply the percentage of permanentdisability as the percentage of economic loss or loss of earningcapacity. In most of the cases, the percentage of economic loss,that is, the percentage of loss of earning capacity, arising from aCpermanent disability will be different from the percentage ofpermanent disability. Some Tribunals wrongly assume that in allcases, a particular extent (percentage) of permanent disabilitywould result in a corresponding loss of earning capacity, andconsequently, if the evidence produced show 45% as the permanentDdisability, will hold that there is 45% loss of future earning capacity.In most of the cases, equating the extent (percentage) of loss ofearning capacity to the extent (percentage) of permanent disabilitywill result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect ofEthe permanent disability on the earning capacity of the injured;and after assessing the loss of earning capacity in terms of apercentage of the income, it has to be quantified in terms of money,to arrive at the future loss of earnings (by applying the standardmultiplier method used to determine loss of dependency). We mayhowever note that in some cases, on appreciation of evidenceFand assessment, the Tribunal may find that the percentage of lossof earning capacity as a result of the permanent disability, isapproximately the same as the percentage of permanent disabilityin which case, of course, the Tribunal will adopt the said percentagefor determination of compensation. (See for example, the decisionsGof this Court in Arvind Kumar Mishra v. New India AssuranceCo. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.)

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13. Ascertainment of the effect of the permanent disability on theactual earning capacity involves three steps. The Tribunal has tofirst ascertain what activities the claimant could carry on in spiteof the permanent disability and what he could not do as a result ofthe permanent disability (this is also relevant for awardingcompensation under the head of loss of amenities of life). Thesecond step is to ascertain his avocation, profession and nature ofwork before the accident, as also his age. The third step is to findout whether (i) the claimant is totally disabled from earning anykind of livelihood, or (ii) whether in spite of the permanent disability,the claimant could still effectively carry on the activities andfunctions, which he was earlier carrying on, or (iii) whether hewas prevented or restricted from discharging his previous activitiesand functions, but could carry on some other or lesser scale ofactivities and functions so that he continues to earn or can continueto earn his livelihood.

14. For example, if the left hand of a claimant is amputated, thepermanent physical or functional disablement may be assessedaround 60%. If the claimant was a driver or a carpenter, the actualloss of earning capacity may virtually be hundred per cent, if he isneither able to drive or do carpentry. On the other hand, if theclaimant was a clerk in government service, the loss of his lefthand may not result in loss of employment and he may still becontinued as a clerk as he could perform his clerical functions;and in that event the loss of earning capacity will not be 100% asin the case of a driver or carpenter, nor 60% which is the actualphysical disability, but far less. In fact, there may not be any needto award any compensation under the head of “loss of futureearnings”, if the claimant continues in government service, thoughhe may be awarded compensation under the head of loss ofamenities as a consequence of losing his hand. Sometimes theinjured claimant may be continued in service, but may not be foundsuitable for discharging the duties attached to the post or job whichhe was earlier holding, on account of his disability, and maytherefore be shifted to some other suitable but lesser post withlesser emoluments, in which case there should be a limited awardunder the head of loss of future earning capacity, taking note ofthe reduced earning capacity.

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A11. In Nagarajappa vs. Divisional Manager, OrientalInsurance Company Limited, 2011 (13) SCC 323, the physical disabilityof the upper limb was determined as 68% in proportion to 22-23% of thewhole-body. This court opined as follows:

“9. On perusal of the doctor’s evidence with respect to the natureBof injuries suffered by the appellant, the appellant was found, interalia, to be suffering from the following disabilities as a result ofthe accident—”gross deformity of the left forearm, wrist and hand,wasting and weakness of the muscles of the left upper limb andshortening of the left upper limb by 1 cm”. As a result, the doctorstated that the appellant could not work as a coolie and could notCalso do any other manual work. The doctor assessed permanentresidual physical disability of the upper limb at 68% and 22-23%of the whole body.

10. The appellant is working as a manual labourer, for which herequires the use of both his hands. The fact that the accident hasDleft him with one useless hand will severely affect his ability toperform his work as a coolie or any other manual work, and thishas also been certified by the doctor. Thus, while awardingcompensation it has to be kept in mind that the appellant is to domanual work for the rest of his life without full use of his leftEhand, and this is bound to affect the quality of his work and alsohis ability to find work considering his disability. Hence, whilecomputing loss of future income, disability should be taken to be68% and not 20%, as was done by the Tribunal and the HighCourt. Our view is supported by the ratio in Raj Kumar and fromthe fact that the appellant is severely hampered and perhaps foreverFhandicapped from performing his occupation as a coolie.”

12. The High Court also erred in granting a sum of Rs.50,000/-only towards future medical expenses. PW.3 deposed that the appellantwould require three more replacements of the artificial left leg during hislifetime. We consider it proper to enhance the same by Rs.2,50,000/- inGaddition to that granted by the High Court. The compensation grantedtowards loss of amenities is also enhanced to Rs.50,000/- consideringthat the appellant was deprived of social mixing as deposed by PW.3.

13. Thus, the compensation awarded by the High Court is modifiedand recalculated as under:H

SRI ANTHONY ALIAS ANTHONY SWAMY v.THE MANAGING DIRECTOR, K.S.R.T.C. [NAVIN SINHA, J.]

Sr. ParticularsAmount ANo.(in Rs.)1.Pain and sufferings1,00,0002.Medical expenses7,3503.Attendant charges21,0004.Loss of earnings during the period of treatment66,0005.Conveyance charges10,0006.Loss of future earnings on account of disability6,93,0007.Future medical expenses2,50,000B8.Loss of amenities50,000TOTAL11,97,35014. We modify the award of the High Court accordingly to bepaid along with interest @ 6 per cent from the date of petition till therealization.

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15. The appeal is allowed.

Divya Pandey

Appeal allowed.

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