Mohan Soni vs Ram Avtar Tomar & Ors

RAM AVTAR TOMAR AND ORS. ... RESPONDENTS

J U D G M E N T

Aftab Alam, J.

1. Leave granted.

2. The appellant, victim of a motor vehicle accident has come to

this Court making grievance about the low amount of compensation

awarded to him by the Tribunal and the High Court.

3. The appellant used to earn his livelihood as a cart puller. On

December 17, 2003, at about 3.00 P.M. he was carrying some goods

on a four-wheel cart when he was hit by a tanker which was being

driven in a rash and negligent manner. In the accident, the left leg of

the appellant was crushed. The X-Ray report showed multiple

fractures in the left leg. He was admitted to a hospital where he had

to undergo two surgeries between December 17, 2003 and January

3, 2004 and in the end his left leg was amputated below the knee.

He filed an application (Claim Case No.16/2004) before the Second

Additional Motor Accident Claims Tribunal, Gwalior, (M.P.), claiming

compensation for the injuries suffered by him under section 166 of

the Motor Vehicles Act, 1988. It was stated by him before the

Tribunal that at the time of accident his age was 50 years and his

monthly income, as a cart puller, was Rs.3,300/-. As a result of the

amputation of his leg, he was no longer in a position to walk without

support and he was, therefore, rendered incapable of doing any work

and to earn his livelihood.

4. The Tribunal found and held that the accident took place as a

result of the negligent and rash driving by the tanker driver. It further

held that at the time of the accident the age of the appellant was 55

years and his monthly income was Rs.2,400/- and not Rs.3,300/- as

claimed by him. Coming to the extent of disability, the Tribunal

referred to the disabled-person identity card given to the appellant

(Exhibit P.27) in which his disability was shown as 60%. The Tribunal

also observed that when the claimant appeared in court, it was

evident that his left leg was amputated below the knee. Though the

appellant's disabled-person card showed his disability as 60%, the

Tribunal, with reference to Schedule 1 of the Workmen's

Compensation Act, 1923, held that the appellant's disability could not

be reckoned above 50%.

5. Having held that that the appellant's age at the time of the

accident was 55 years, the Tribunal applied the multiplier of 11 and

on the basis of the findings that the appellant's monthly income was

Rs.2,400/- and the extent of his disability was 50%, fixed the amount

of Rs.1,58,400/- as compensation for loss of future earnings. In

addition to this, the Tribunal gave to the appellant Rs.30,000/- for

mental and physical agony due to permanent disability and a further

sum of Rs.15,000/- for medical expenses and special diet.

Accordingly, the Tribunal, by its award dated July 31, 2004 held the

appellant entitled to receive a total sum of Rs.2,03,400/- as

compensation along with interest at the rate of 9% per annum from

the date of filing of the claim petition on January 9, 2004 till the date

of payment.

6. Against the award of the Tribunal, the appellant preferred an

appeal (Miscellaneous Appeal No.844 of 2004) before the Madhya

Pradesh High Court, Gwalior Bench. In the High Court, the case was

referred to Lok Adalat where the Insurance Company agreed for

enhancement of the amount of compensation by Rs.50,000/-. It,

however, appears that the matter could not be settled in the Lok

Adalat and the appeal came to be finally heard and disposed of by

the High Court on merits. The High Court by its judgment and order

dated April 1, 2009 simply raised the amount of the monthly income

of the appellant from Rs.2,400/- to Rs.3,000/- and, thereby, arrived at

a sum of Rs.1,98,000/- as compensation for the loss of future

earnings. The total compensation amount was, thus, raised from

Rs.2,03,400/- to Rs.2,58,000/- (practically what was offered by the

Insurance Company before the Lok Adalat on which no settlement

was arrived at between the parties!)

7. On hearing counsel for the parties and on going through the

materials on record, we are of the view that both the Tribunal and the

High Court were in error in pegging down the disability of the

appellant to 50% with reference to Schedule 1 of the Workmen's

Compensation Act, 1923. In the context of loss of future earning, any

physical disability resulting from an accident has to be judged with

reference to the nature of work being performed by the person

suffering the disability. This is the basic premise and once that is

grasped, it clearly follows that the same injury or loss may affect two

different persons in different ways. Take the case of a marginal

farmer who does his cultivation work himself and ploughs his land

with his own two hands; or the puller of a cycle-rickshaw, one of the

main means of transport in hundreds of small towns all over the

country. The loss of one of the legs either to the marginal farmer or

the cycle-rickshaw-puller would be the end of the road insofar as their

earning capacity is concerned. But in case of a person engaged in

some kind of desk work in an office, the loss of a leg may not have

the same effect. The loss of a leg (or for that matter the loss of any

limb) to anyone is bound to have very traumatic effects on one's

personal, family or social life but the loss of one of the legs to a

person working in the office would not interfere with his work/earning

capacity in the same degree as in the case of a marginal farmer or a

cycle-rickshaw-puller.

8. The question of loss of earning capacity resulting from

amputation of one the legs in the case of a tanker driver was

considered by this Court in K. Janardhan v. United India Insurance

Company Limited and another, (2008) 8 SCC 518. In that case, a

tanker driver suffered serious injuries in a motor accident and as a

result, his right leg was amputated upto the knee joint. He made a

claim under the Workmen's Compensation Act, 1923. The

Commissioner for Workmen's Compensation held that disability

suffered by him as a result of the loss of the leg was 100% and

awarded compensation to him on that basis. In appeal, the High

Court, like in the present case, referred to the Schedule to the

Workmen's Compensation Act, 1923 and held that the loss of a leg

on amputation amounted to reduction in the earning capacity by 60%

and, accordingly, reduced the compensation awarded to the tanker

driver. This Court set aside the High Court judgment and held that the

tanker driver had suffered 100% disability and incapacity in earning

his keep as a tanker driver as his right leg was amputated from the

knee and, accordingly, restored the order passed by the

Commissioner of Workmen's Compensation. In K. Janardhan this

Court also referred to and relied upon an earlier decision of the Court

in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289, in

which a carpenter who suffered an amputation of his left arm from the

elbow was held to have suffered complete loss of his earning

capacity.

9. In a more recent decision in Raj Kumar v. Ajay Kumar and

another, (2011) 1 SCC 343, this Court considered in great detail the

correlation between the physical disability suffered in an accident and

the loss of earning capacity resulting from it. In paragraphs 10, 11

and 13 of the judgment in Raj Kumar, this Court made the following

observations:

"10. Where the claimant suffers a permanent disability

as a result of injuries, the assessment of compensation

under the head of loss of future earnings would depend

upon the effect and impact of such permanent disability

on his earning capacity. The Tribunal should not

mechanically apply the percentage of permanent

disability as the percentage of economic loss or loss

of earning capacity. In most of the cases, the

percentage of economic loss, that is, the percentage

of loss of earning capacity, arising from a permanent

disability will be different from the percentage of

permanent disability. Some Tribunals wrongly assume

that in all cases, a particular extent (percentage) of

permanent disability would result in a corresponding loss

of earning capacity, and consequently, if the evidence

produced show 45% as the permanent disability, will hold

that there is 45% loss of future earning capacity. In most

of the cases, equating the extent (percentage) of loss

of earning capacity to the extent (percentage) of

permanent disability will result in award of either too

low or too high a compensation.

11. What requires to be assessed by the Tribunal is the

effect of the permanent disability on the earning capacity

of the injured; and after assessing the loss of earning

capacity in terms of a percentage of the income, it has to

be quantified in terms of money, to arrive at the future

loss of earnings (by applying the standard multiplier

method used to determine loss of dependency). We may

however note that in some cases, on appreciation of

evidence and assessment, the Tribunal may find that the

percentage of loss of earning capacity as a result of the

permanent disability is approximately the same as the

percentage of permanent disability in which case, of

course, the Tribunal will adopt the said percentage for

determination of compensation. (See for example, the

decisions of this Court in Arvind Kumar Mishra v. New

India Assurance Co. Ltd. (2010) 10 SCC 254 and Yadava

Kumar v. National Insurance Co. Ltd. (2010) 10 SCC

341).

13. Ascertainment of the effect of the permanent

disability on the actual earning capacity involves three

steps. The Tribunal has to first ascertain what activities

the claimant could carry on in spite of the permanent

disability and what he could not do as a result of the

permanent disability (this is also relevant for awarding

compensation under the head of loss of amenities of life).

The second step is to ascertain his avocation, profession

and nature of work before the accident, as also his age.

The third step is to find out whether (i) the claimant is

totally disabled from earning any kind of livelihood, or (ii)

whether in spite of the permanent disability, the claimant

could still effectively carry on the activities and functions,

which he was earlier carrying on, or (iii) whether he was

prevented or restricted from discharging his previous

activities and functions, but could carry on some other or

lesser scale of activities and functions so that he

continues to earn or can continue to earn his livelihood."

10. In light of the aforesaid decisions, we find it extremely difficult to

uphold the decision of the High Court and the Tribunal based on the

finding that the loss of the appellant's earning capacity as a result of

the amputation of his left leg was only 50%. It is noted above that the

appellant used to earn his livelihood as a cart puller. The Tribunal has

found that at the time of the accident his age was 55 years. At that

age it would be impossible for the appellant to find any job. From the

trend of cross-examination it appears that an attempt was made to

suggest that notwithstanding the loss of one leg the appellant could

still do some work sitting down such as selling vegetables. It is all

very well to theoretically talk about a cart puller changing his work

and becoming a vegetable vendor. But the computation of

compensation payable to a victim of motor accident who suffered

some serious permanent disability resulting from the loss of a limb

etc. should not take into account such indeterminate factors. Any

scaling down of the compensation should require something more

tangible than a hypothetical conjecture that notwithstanding the

disability, the victim could make up for the loss of income by changing

his vocation or by adopting another means of livelihood. The party

advocating for a lower amount of compensation for that reason must

plead and show before the Tribunal that the victim enjoyed some

legal protection (as in the case of persons covered by The Persons

with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995) or in case of the vast multitude who earn

their livelihood in the unorganized sector by leading cogent evidence

that the victim had in fact changed his vocation or the means of his

livelihood and by virtue of such change he was deriving a certain

income. The loss of earning capacity of the appellant, according to

us, may be as high as 100% but in no case it would be less than

90%. We, accordingly, find and hold that the compensation for the

loss of appellant's future earnings must be computed on that basis.

On calculation on that basis, the amount of compensation would

come to Rs.3,56,400/- and after addition of a sum of Rs.30,000/- and

Rs.15,000/- the total amount would be Rs.4,01,400/-. The additional

compensation amount would carry interest at the rate of 9% per

annum from the date of filing of the claim petition till the date of

payment. The additional amount of compensation along with interest

should be paid to the appellant without delay and not later than three

months from today.

11. In the result, the appeal is allowed to the extent indicated

above.

....................................

.......J.

(Aftab Alam)

....................................

.......J.

(R.M. Lodha)

New Delhi;

January 10, 2012.