MOHD. SABEER @ SHABIR HUSSAIN versus REGIONAL MANAGER, U. P. STATE ROAD TRANSPORT CORPORATION on 9 December 2022

MOHD. SABEER @ SHABIR HUSSAIN

v.

REGIONAL MANAGER, U. P. STATE ROAD TRANSPORTCORPORATION

(Civil Appeal Nos. 9070-9071 of 2022)

DECEMBER 09, 2022

[KRISHNA MURARI AND S. RAVINDRA BHAT, JJ.]

Motor Vehicle – Accident – Claim – Assessment ofcompensation – Permanent Disability Percentage – Appellant wastravelling in a bus which was driven in a rash and negligent mannerby the respondent – Bus met with an accident and the appellantreceived grave injuries – The MACT (Tribunal) by holding that itwas the rash and negligent driving that caused the accident,awarded a compensation of 15,76,465/- – High Court modified andenhanced the compensation to 16,70,932/- – High Court assessedthe appellant’s functional disability as 35% – On appeal, held: Asper the disability certificate, the appellant suffered 70% disability– The functional disability of the appellant will severely impact hisearning capacity – The 35% functional disability calculated by theHigh Court is incorrect in the facts and circumstances of the caseand the loss of future earning capacity of appellant must becalculated at 60% – It is a well settled position of law that in casesof permanent disablement caused by a motor accident, the claimantis entitled to not just future loss of income, but also future prospects– Considering the nature of the permanent disability caused by theaccident and the effect it will have on the appellant’s life, thecompensation provided by the High Court for non- pecuniary headsis inadequate – In case of permanent disability, the courts mustlook case in totality, and must consider the socio-economicbackground of the claimants.

Allowing the appeals, the Court

HELD: 1. The Appellant herein has suffered permanentdisability of 70% and has an amputated right lower limb amongstother injuries. The High Court has wrongly taken the view thatthe Appellant has only suffered 35% functional disability. TheAppellant is not a salaried person but is self-employed who

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Amanages his business. For the Appellant to be able to augmenthis income, he is most definitely required to move around. TheAppellant can also not drive on his own, which hinders his mobilityfurther. This proves that the functional disability of the Appellantwill severely impact his earning capacity, and the 35% functionaldisability calculated by the High Court is incorrect in the factsBand circumstances of the case and in this Courts’ view the loss offuture earning capacity must be calculated at 60%. [Para 16][436-E-F]

FUTURE PROSPECTS

C2. It is a well settled position of law that in cases ofpermanent disablement caused by a motor accident, the claimantis entitled to not just future loss of income, but also futureprospects. It has been reiterated by this Court in multipleinstances that “just compensation” must be interpreted in sucha manner as to place the claimant in the same position as he wasDbefore the accident took place. The accident that caused the injurytook place on 12.06.2009. The acknowledgement of both theIncome Tax Returns produced by the Appellant show that TaxReturns were till 31.03.2008 and 31.03.2009. Both the IncomeTax Returns produced as proof of income were from before theEaccident took place, and hence the High Court’s finding that theincome of the Appellant has increased after the disability isincorrect. It is also to be noted that even if the income of theAppellant had increased after the accident, it would not be enoughgrounds to disable the Appellant from claiming compensation forfuture prospect as the rise in income may be attributed to multipleFother factors. [Paras 18-20][437-A-D]COMPENSATION FOR THE PURCHASE ANDMAINTENANCE OF THE PROSTHETIC LEG

3. As per the current compensation given for the prostheticGlimb and its maintenance, it would last the Appellant for only 15years, even if we were to assume that the limb would not need tobe replaced after a few years. TheAppellant was only 37 years atthe time of the accident, and it would be reasonable to assumethat he would live till he is 70 years old if not more. We are of the H

opinion that the Appellant must be compensated so that he isable to purchase three prosthetic limbs in his lifetime and is ableto maintain the same at least till he has reached 70 years of age.For the Prosthetic limbs alone, the Appellant is to be awardedcompensation of Rs. 7,80,000 and for maintenance of the samehe is to be awarded an additional Rs. 5,00,000/-. [Para 23][438-C-E]

NON-PECUNIARY COMPENSATION

3. The High Court has upheld the compensation awardedby the Ld. Tribunal for non-pecuniary damages, which comes toRs. 3,00,000/- in total. Considering the nature of the permanentdisability caused by the accident and the effect it will have on theAppellant’s life, this Court is of the opinion that the compensationprovided by the High Court for non- pecuniary heads isinadequate. [Para 24][438-E-F]

CONCLUSION

4. While awarding compensation in cases of permanentdisability caused to claimants, the courts must look at the case intotality, and must consider the socio-economic background of theclaimants. The Appellant herein comes from an economicallyweaker section of the society. It is almost universally seen thatpersons from marginalized backgrounds often face an additionallayer of discrimination due to bodily disabilities. This is becausepersons from marginalized sections of the society already facesevere discrimination due to a lack of social capital, and a newdisability more often than not compounds to such discrimination.In such circumstances, to preserve the essence of justice, itbecomes the duty of the Court to at the very least restore theclaimant as best as possible to the position he was in before theoccurrence of the disability, and to do so must award compensationin a liberal manner. While no material compensation cancompletely negate the trauma and suffering that the injured andhis family faces, the law only knows the language of monetarycompensation in such cases. It then becomes to duty of the courtto translate the provisions of monetary compensation into afabrication that helps the injured and his family in coping withtheir loss. [Paras 27-29][439-F-H; 440-A-B]

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ASandeep Khanuja v. Atul Dande and Anr. (2017) 3 SCC351 : 2017 (2) JT 68; Raj Kumar v. Ajay Kumar andAnr. (2011) 1 SCC 343 : [2010] 13 SCR 179; Anantson of Sidheshwar Dukre Vs. Pratap son ofZhamnnappa Lamzane & Anr. Civil Appeal No. 8420 of2018 – relied on.BNational Insurance Company Limited v. Pranay Sethi& Others (2017) 16 SCC 680 : [2017] 13 SCR 100;R.D. Hattangadi v. Pest Control (India) (P) Ltd (1995)1 SCC 551 : [1995] 1 SCR 75 – referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9070-D9071 of 2022.

From the Judgment and Order dated 12.10.2018 of the High Courtof Delhi at New Delhi in Review Petition No.391 of 2018 and dated11.09.2018 in MAC. APP. No. 444 of 2013.

Manish Maini, Ms. Manjeet Chawla, Advs. for the Appellant.E

Ms. Garima Prashad, Sr. Adv., Nishit Agrawal, Shadeb Khan,Ms. Kanishka Mittal, Ms. Divya, Advs. for the Respondent.

The Judgment of the Court was delivered by KRISHNA MURARI, J.FLeave granted.

2. The present appeals are directed against the final order dated12.10.2018 passed by the High Court of Delhi, (hereinafter referred toas “High Court”) in Review Petition No. 391 of 2018 and against theimpugned final judgment dated 11.09.2018 passed by the High Court ofGNew Delhi.

3. Briefly, the facts relevant for the purpose of this appeal are asfollows:

I.The Appellant, who is a scrap dealer, was travelling in abus bearing No. UP-25T-9664 towards his residence inHDelhi from his native place at Noor Pur, Gajrola.

II.The driver of the bus, who is the Respondent No.1 hereinAwas driving in a rash and negligent manner. At around 12:30am, near the Jindal Pipe Factory in Ghaziabad, theRespondent no.1 driver hit a standing tempo which wasparked on the left side of the road.

III.As a result of this accident, the Appellant and the otherpassengers in the bus received grave injuries all over theirbodies. The Appellant was aged 37 years at the time of theaccident and was earning Rs.10,000/- per month. As perthe Disability Certificate, the Appellant suffered permanentdisability of 70%, his right lower limb amongst other injuries.

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4. The Appellant after the accident filed a claim petition beforethe Motor Accident Claims Tribunal Delhi-II, Dwarka Court, New Delhiclaiming a compensation of Rs.20,00,000/- (Twenty Lakhs).

5. The Ld. Motor Accident Claim Tribunal (hereinafter referredto as ‘MACT’) after examining the evidence and issues at hand, heldthat the Respondent No.1 was the driver of the vehicle, and it was hisrash and negligent driving that caused the accident. The Ld. MACTawarded a compensation of Rs.15,76,465/- to the Appellant along with7.5% interest per annum, the breakup of the same is as follows:

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6. The Appellant then filed MAC App. No. 444/2013 before theHigh Court of Delhi on grounds that the Ld. MACT did not calculate theloss of earning capacity, future prospects and wrong computation of theAppellant’s disability.

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7. The High Court of Delhi vide judgment dated 11.09.2018Bmodified the award passed by the Ld. MACT and disposed of the Appealby enhancing the compensation to Rs.16,70,932/- with 9% interest perannum. The relevant part of the judgment reads as follows:- “…Upon hearing and on perusal of impugned Award andthe evidence on record, I find that on the aspect of discrepancyCin timing of the accident, there is no cross- examination ofInjured and so, Insurer cannot be absolved from paying thecompensation awarded. It is not the case of Conductor (R2W1)that the Injured was not travelling in the bus in question.Therefore, the Tribunal has rightly relied upon the evidenceof Injured (PW-4) to hold that the negligence was of the busDdriver in causing of the accident in question. The Tribunalhas assessed the functional disability of Injured to be 30%.The permanent disability is 70% in relation to right lowerlimb. It is a case of amputation of right leg below the kneeand so, the functional disability is assessed at 35%. On theEquantum aspect, I find that though there is “loss of futureearning”, but the “earning capacity” of the Injured has beencertainly compromised. Income of the deceased has beenassessed by the Tribunal on the basis of ITRS, which werefiled after this accident, but there is no basis to conclude thatthe income of Injured was less than the one reflected in theFITRS for the year 2008-09. On this aspect also, there is nocross-examination of Injured. Therefore, in the facts of instantcase, the Tribunal has rightly assessed the “loss of earningcapacity” while taking the income of the Injured as reflectedin the ITRs. The Tribunal has erred in applying the multiplierof 16. The applicable multiplier is of 15. As regards the ageGof Injured, there is no cross-examination of the Injured onthis aspect. Therefore, the age of the Injured is taken to be 37years, which would attract the multiplier of 15. ITRS reliedupon by Injured reveals that his income had increased despitethe disability caused and so, it cannot be said that there isH“loss of future earning.…”

8. Subsequently, the Appellant filed a Review Petition No. 391 of2018 before the High Court of New Delhi seeking for enhancement ofcompensation to Rs.20,00,000/-, and the same was dismissed videjudgment dated 12.10.2018 whilst upholding the judgment passed in theappeal. Being aggrieved by the same, the Appellant herein has filed thepresent Civil Appeal.

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ARGUMENTS ON BEHALF OF THE APPELLANT

9. The Ld. Counsel for the Appellant contended that : -

I.The High Court wrongly assessed the appellant’s loss ofincome due to the disability to be only 35%, when the medicalboard has assessed the petitioner’s permanent disability tobe 70%. The appellant as a result of the injuries cannotdrive his vehicle and cannot lift heavy weights.

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II.Since the Appellant’s income was assessed on the basis ofdocumentary evidence, the Appellant ought to have beenawarded future prospects to the extent of 50%.D

III.The compensation granted for the repair, purchase andmaintenance of the Artificial leg is inadequate. It wassubmitted that the cost of the artificial limb is Rs.2,60,000/-, and the life of the limb is 5-6 years. The limb furtherrequires repair after every 6 months, and the cost of repairEis between Rs.15,000/- to Rs.20,000/-. The Appellant isaged only 37 years and will require the limb for the rest ofhis life, which would mean that the current compensationof Rs.5,20,000/- is inadequate.

IV.The compensation awarded to the Appellant under the headF“Pain and Agony” and “loss due to disability anddisfigurement” being Rs.1,00,000/- each is inadequate. Thecounsel relied on Anant son of Sidheshwar Dukre Vs.Pratap son of Zhamnnappa Lamzane & Anr.[1].

ARGUMENTS ON BEHALF OF THE RESPONDENTS

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10. Per contra, The Ld. Counsel for the respondents contendedthat:

1 Civil Appeal No. 8420 of 2018 (Dated : August 21, 2022)

AI.The High Court has rightly taken functional disability as35% towards amputation of lower limb. The High Courthas already increased the future loss of Income fromRs.6,09,345/- to Rs.6,66,480/- and further increased theamount towards conveyance from Rs.10,000/- toRs.50,000/-.

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II.The High Court has rightly not granted future prospects asthe Income Tax Returns of the Appellant has increaseddespite disability caused from Rs. 1,26,947/- from01.04.2007 to 31.03.2008 to Rs.1,67,147/- from 01.04.2008to 31.03.2009.

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III.The Appellant is a scrap dealer and works out of his shop.He does not require a lot of movement to carry out hiswork and therefore his disability does not affect his earningcapacity.

IV.The Appellant had already filed a review petition in the HighCourt and the same was dismissed rightfully.

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ANALYSIS

11. We have heard the counsels appearing on behalf of theAppellant and the Respondents in great detail.

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12. The High Court has rightly held that the accident in questiondid take place, the Appellant did suffer damages due to the negligenceof Respondent No.1 driver and that the Insurer cannot be absolved frompaying the compensation Awarded. The only question that remains forus to decide is on the aspect of the quantum of damages awarded.

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LOSS OF INCOME DUE TO FUNCTIONAL DISABILITY

13. The Appellant has suffered an amputation of the lower rightlimb, a fracture in the medial wall of the bilateral orbit, crush injury rightleg, fracture tibia right leg, exposed vessels and other injuries. As per thedisability certificate, the Appellant has suffered 70% disability, howeverGthe High Court has held that the Appellant has only suffered 35% loss infuture earnings due to the disability.

14. To assess the quantum of compensation to be awarded, thisCourt has to assess whether the permanent disability caused has anyadverse effect on the earning capacity of the Appellant, as held by this H

Court in the case of Sandeep Khanuja Vs. Atul Dande and Anr.[2]. Therelevant paragraph of the judgment is quoted hereunder :-

“The crucial factor which has to be taken into considerationthus is to assess whether the permanent disability has anyadverse effect on the earning capacity of the injured. We feelthat the conclusion of the MACT on the application ofaforesaid test is erroneous. A very myopic view is taken bythe MACT in taking the view that 70% permanent disabilitysuffered by the appellant would not impact the earningcapacity of the appellant. The MACT thought that since theappellant is a chartered accountant he is supposed to do sittingwork and therefore his working capacity is not impaired…..

A person who is engaged and cannot freely move to attend tohis duties may not be able to match the earning incomparisonwith the one who is healthy and bodily able. Movements ofthe appellant have been restricted to a large extent and thattoo at a young age.”

15. This Court has also laid out in the case of Raj Kumar VsAjay Kumar and Anr.[3]that where the claimant suffers a permanentdisability as a result of injuries, the assessment of compensation for lossof future earnings would depend upon the impact and effect of thePermanent Disability on his earning capacity. This Court observed asunder :- “Where the claimant suffers a permanent disability as a resultof injuries, the assessment of compensation under the headof loss of future earnings, would depend upon the effect andimpact of such permanent disability on his earning capacity.The Tribunal should not mechanically apply the percentageof permanent disability as the percentage of economic lossor loss of earning capacity. In most of the cases, the percentageof economic loss, that is, percentage of loss of earningcapacity, arising from a permanent disability will be differentfrom the percentage of permanent disability. Some Tribunalswrongly assume that in all cases, a particular extent(percentage) of permanent disability would result in a 2 (2017) 3 SCC 351

3 (2011) 1 SCC 343

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Acorresponding loss of earning capacity, and consequently, ifthe evidence produced show 45% as the permanent disability,will hold that there is 45% loss of future earning capacity. Inmost of the cases, equating the extent (percentage) of loss ofearning capacity to the extent (percentage) of permanentdisability will result in award of either too low or too high aBcompensation. What requires to be assessed by the Tribunalis the effect of the permanently disability on the earningcapacity of the injured; and after assessing the loss of earningcapacity in terms of a percentage of the income, it has to bequantified in terms of money, to arrive at the future loss ofCearnings (by applying the standard multiplier method used todetermine loss of dependency). We may however note that insome cases, on appreciation of evidence and assessment, theTribunal may find that percentage of loss of earning capacityas a result of the permanent disability, is approximately theDsame as the percentage of permanent disability in which case,of course, the Tribunal will adopt the said percentage fordetermination of compensation.”

16. The Appellant herein has suffered permanent disability of 70%and has an amputated right lower limb amongst other injuries. The HighECourt has wrongly taken the view that the Appellant has only suffered35% functional disability. The Appellant is not a salaried person but isself-employed who manages his business. For the Appellant to be ableto augment his income, he is most definitely required to move around.The Appellant can also not drive on his own, which hinders his mobilityfurther. This proves that the functional disability of the Appellant willFseverely impact his earning capacity, and the 35% functional disabilitycalculated by the High Court is incorrect in the facts and circumstancesof the case and in our view the loss of future earning capacity must becalculated at 60%.

FUTURE PROSPECTS

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17. The High Court has not applied the quantum for future prospectin the compensation granted. In its reasoning, the High Court has statedthat the Income tax returns relied upon by the Appellant show that despitethe injury the Appellant’s income had subsequently increased and henceit cannot be said that there is a loss of future earnings.H

18. It is a well settled position of law that in cases of permanentdisablement caused by a motor accident, the claimant is entitled to notjust future loss of income, but also future prospects. It has been reiteratedby this Court in multiple instances that “just compensation” must beinterpreted in such a manner as to place the claimant in the same positionas he was before the accident took place.

19. The accident that caused the injury took place on 12.06.2009.The acknowledgement of both the Income Tax Returns produced by theAppellant show that Tax Returns were till 31.03.2008 and 31.03.2009.Both the Income Tax Returns produced as proof of income were frombefore the accident took place, and hence the High Court’s finding thatthe income of the Appellant has increased after the disability is incorrect.

20. It is also to be noted that even if the income of the Appellanthad increased after the accident, it would not be enough grounds todisable the Appellant from claiming compensation for future prospect asthe rise in income may be attributed to multiple other factors.

21. In light of National Insurance Company Limited v. PranaySethi & Others[4], the applicable 40% addition of future prospects will begiven as compensation to the Appellant herein.

COMPENSATION FOR THE PURCHASE ANDMAINTENANCE OF THE PROSTHETIC LEG

22. The High Court has awarded a compensation of Rs.5,20,000/- for the prosthetic limb and Rs.50,000/- towards repair and maintenanceof the same. The Appellant submits that the cost of the prosthetic limbitself is Rs. 2,60,000/- and the life of the prosthetic limb is only 5-6years. The prosthetic limb also requires repair and maintenance afterevery 6 months to 1 year, and each repair costs between Rs.15,000 toRs.20,000/-. This would mean that the prosthetic limb would last theAppellant for only 15 years under the current compensation. TheAppellant at the time of the accident was aged 37 years and has a fulllife ahead. It has been clearly stated by this Court in the case of AnantSon of Sidheshwar Dukre (Supra) that the purpose of faircompensation is to restore the injured to the position he was in prior tothe accident as best as possible. The relevant paragraph of the judgmentis being extracted herein:

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A“In cases of motor accidents leading to injuries anddisablements, it is a well settled principle that a person mustnot only be compensated for his physical injury, but also forthe non--pecuniary losses which he has suffered due to theinjury. The Claimant is entitled to be compensated for hisinability to lead a full life and enjoy those things and amenitiesBwhich he would have enjoyed, but for the injuries.”

“The purpose of compensation under the Motor Vehicles Actis to fully and adequately restore the aggrieved to the positionprior to the accident.”

C23. As per the current compensation given for the prosthetic limband its maintenance, it would last the Appellant for only 15 years, even ifwe were to assume that the limb would not need to be replaced after afew years. The Appellant was only 37 years at the time of the accident,and it would be reasonable to assume that he would live till he is 70years old if not more. We are of the opinion that the Appellant must beDcompensated so that he is able to purchase three prosthetic limbs in hislifetime and is able to maintain the same at least till he has reached 70years of age. For the Prosthetic limbs alone, the Appellant is to be awardedcompensation of Rs. 7,80,000 and for maintenance of the same he is tobe awarded an additional Rs. 5,00,000/-.

ENON-PECUNIARY COMPENSATION

24. The High Court has upheld the compensation awarded by theLd. Tribunal for non-pecuniary damages, which comes to Rs. 3,00,000/- in total. Considering the nature of the permanent disability caused bythe accident and the effect it will have on the Appellant’s life, this CourtFis of the opinion that the compensation provided by the High Court fornon-pecuniary heads is inadequate.

25. In R.D. Hattangadi v. Pest Control (India) (P) Ltd.[5]dealingwith the different heads of compensation in injury cases this Court heldthat:G

“Broadly speaking while fixing the amount of compensationpayable to a victim of an accident, the damages have to beassessed separately as pecuniary damages and special

damages. Pecuniary damages are those which the victim hasactually incurred and which are capable of being calculatedin terms of money; whereas non-pecuniary damages are thosewhich are incapable of being assessed by arithmeticalcalculations. In order to appreciate two concepts pecuniarydamages may include expenses incurred by the claimant: (i)medical attendance; (ii) loss of earning of profit up to thedate of trial; (iii) other material loss. So far as non-pecuniarydamages are concerned, they may include: (i) damages formental and physical shock, pain and suffering, alreadysuffered or likely to be suffered in the future; (ii) damages tocompensate for the loss of amenities of life which may includea variety of matters i.e. on account of injury the claimantmay not be able to walk, run or sit; (iii) damages for loss ofexpectation of life i.e. on account of injury the normallongevity of the person concerned is shortened; (iv)inconvenience, hardship, discomfort, disappointment,frustration and mental stress in life.”

26. In light of the above decision of this Court and the facts andcircumstances of the case at hand, the compensation to be awarded isas follows:

I.Compensation for pain and suffering – Rs. 2,00,000/-

II.Compensation for Loss of Amenities of Life – Rs. 2,00,000/-

III. Compensation for disability and disfigurement – Rs. 2,00,000/-

CONCLUSION

27. We are of the opinion that while awarding compensation incases of permanent disability caused to claimants, the courts must lookat the case in totality, and must consider the socio-economic backgroundof the claimants. The Appellant herein comes from an economicallyweaker section of the society.

28. It is almost universally seen that persons from marginalizedbackgrounds often face an additional layer of discrimination due to bodilydisabilities. This is because persons from marginalized sections of thesociety already face severe discrimination due to a lack of social capital,and a new disability more often than not compounds to such discrimination.In such circumstances, to preserve the essence of justice, it becomesthe duty of the Court to at the very least restore the claimant as best as A

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Apossible to the position he was in before the occurrence of the disability,and to do so must award compensation in a liberal manner.

29. While no material compensation can completely negate thetrauma and suffering that the injured and his family faces, the law onlyknows the language of monetary compensation in such cases. It thenBbecomes to duty of the court to translate the provisions of monetarycompensation into a fabrication that helps the injured and his family in coping with their loss.

30. On the basis of the abovementioned facts and analysis, thisCourt is of the opinion that the just compensation to be awarded to theCclaimant/appellant under different heads ought to be as under :- D

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31. In view of the aforesaid facts and circumstances, the impugnedjudgment is liable to be modified as above and the claimant/appellant isheld entitled to be awarded compensation to the tune of Rs. 38,70,120/-Galong with 9% interest per annum from the date of making the application.

32. Accordingly, the appeals stand allowed.

Ankit Gyan(Assisted by : Rahul Rathi, LCRA)H

Appeals allowed.