Yadava Kumar vs National Insurance Co. Ltd.

3. Assailing the Division Bench judgment of the

Karnataka High Court dated 12.8.2009, whereby

compensation of Rs.52,000/- granted by the Tribunal

was enhanced to Rs.72,000/-, this appeal claiming

higher compensation was filed by the appellant.

1

4. The Hon'ble High Court has awarded compensation

under the following heads:

1. Towards pain and suffering: Rs.20,000/-

2. Loss of income from the period of

treatment: Rs.9,000/-

3. Towards medical expenses, conveyance,

nourishing food and attendant charges:

Rs.8,000/-

4. Towards loss of amenities: Rs.35,000/-

Total: Rs.72,000/- + 8% p.a. interest from

the date of the petition till realization.

5. The material facts of the case are that, the

appellant, a painter by profession, was 30 years old

at the time of sustaining the injury in a road

accident which took place on 24th March 2003 while

the appellant was standing on the side of Nagavara

Ring Road to cross it from south to north. The

offending Tempo bearing No.KA-04-C/6030 came at a

great speed from west to east and hit the appellant

as a result of which he fell down and sustained

several injuries. The appellant was rushed to Al-

Habeeb Hospital where he was treated. The claim

petition was filed on 3rd February, 2006.

2

6. About the nature of the injury sustained by the

appellant, the evidence of PW-2 Dr. S. Ranjanna,

Orthopaedic Surgeon, Bowring & Lady Curzon Hospital,

Bangalore is very crucial. PW-2 examined the

appellant on 26.11.05. As per the wound certificate

and X-ray report of Al-Habeeb Hospital, Bangalore,

PW-2 noted that the appellant sustained the

following injuries:

"(1) Fracture of distal end of left radius with fracture of left ulnar styloid process.

(2) Fracture of distal end of right radius with mild diastases is Radioulnar joint and soft tissue swelling around wrist joint."

7. Even on examination on 26.11.05,which is after two

and a half years after the date of incident, PW-2

found the following injuries on the appellant:

(1) Deformity of right wrist (2) Limitation of right wrist movements by 40% (3) Limitation of right forearm movements by 30% (4) Wasting of right forearm muscles by 3 cms (5) Weak Right hand grip (6) Limitation of left wrist movement by 25% (7) Tenderness over left wrist

3 (8) Instability of left in favour of Radio ulnar joint (9) Weakness of left hand

8. PW-2 opined that in view of the injuries the

appellant cannot perform any hard work, cannot lift

any weight and cannot perform any work smoothly and

after referring to various guidelines in manual PW-2

opined that the appellant has disability of 33% of

right upper limb and 21% to left upper limb and 20%

total disability of the whole body. In view of such

disability, appellant cannot work as a painter and

cannot do any other manual work also. In cross-

examination also PW-2 admitted that even if the

appellant continues his old vocation as a painter,

he has to do it with difficulty.

9. Both the Tribunal and the High Court have failed to

incorporate any thing by way of compensation in the

category of `loss of future earnings' in spite of

recognizing the fact that there is disability of 33%

in the right upper limb, 21% in the left upper limb

and 20% in respect of the whole body, which does not

allow the appellant to paint as he did earlier.

4

10. The Second Schedule under Section 163A of the Motor

Vehicles Act, 1988 gives a structured formula for

the calculation of compensation in accident cases.

Section 5 of the Schedule deals with disability in

non-fatal accidents and reads as follows:

"5. Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.

PLUS either of the following:-

(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."

11. Thus, the multiplier method is to be applied in

cases of injuries also and it has been applied in a

5 number of accident cases by High Courts and this

Court.

12. This Court in Sunil Kumar Vs. Ram Singh Gaud and

others - 2008 ACJ 9, awarded compensation in case of

injury for loss of future earnings and applied the

multiplier method for calculation of the same. The

same principle was recognized by this Court in Priya

Vasant Kalgutkar Vs. Murad Shaikh & Ors. - AIR 2010

SC 40.

13. In Mukesh Kumar Sharma Vs. Ramdutt and Ors. - 2006

ACJ 1792, Madhya Pradesh High Court applied the

multiplier method keeping in mind the percentage by

which the injured person's earning capacity was

reduced. A similar calculation was made by the

Division Bench of Karnataka High Court in Syed Nisar

Ahmed Vs. The Managing Director, Bangalore

Metropolitan Transport Corporation - 2003 5 Karn.

L.J. 186.

14. In this case, the appellant has sustained a fracture

of distal end of left radius with fracture of left

ulnar styloid process and fracture distal end of

6 right radius with mild diastosis and soft tissues

swelling around wrist joint. The doctor has assessed

the disability at 33% in respect of the right upper

limb and 21% towards left upper limb and 20% in

respect of the whole body, which prevents the

appellant from painting in view of multiple injuries

sustained by him.

15. The Hon'ble High Court while granting compensation

refused to award any amount towards loss of future

earning. Though that point was specifically urged

before the Hon'ble High Court, the Hon'ble High

Court refused any compensation towards loss of

future earning by, inter alia, holding that:

"We are of the view that, the said submission has no force for the reason that, the appellant has not produced an iota of document to substantiate his stand."

16. We are unable to agree with the aforesaid view of

the High Court.

17. While assessing compensation in accident cases, the

High Court or the Tribunal must take a reasonably

compassionate view of things. It cannot be disputed

that the appellant being a painter has to earn his

7 livelihood by virtue of physical work. The nature of

injuries which he admittedly suffered, and about

which the evidence of PW-2 is quite adequate, amply

demonstrates that carrying those injuries he is

bound to suffer loss of earning capacity as a

painter and a consequential loss of income is the

natural outcome.

18. It goes without saying that in matters of

determination of compensation both the Tribunal and

the Court are statutorily charged with a

responsibility of fixing a `just compensation'. It

is obviously true that determination of a just

compensation cannot be equated to a bonanza. At the

same time the concept of `just compensation'

obviously suggests application of fair and equitable

principles and a reasonable approach on the part of

the Tribunals and Courts. This reasonableness on the

part of the Tribunal and Court must be on a large

peripheral field. Both the Courts and Tribunals in

the matter of this exercise should be guided by

principles of good conscience so that the ultimate

result become just and equitable (See Mrs. Helen C.

8 Rebello and others Vs. Maharashtra State Road

Transport Corpn. and another - AIR 1998 SC 3191).

19. This Court also held that in the determination of

the quantum of compensation, the Court must be

liberal and not niggardly in as much as in a free

country law must value life and limb on a generous

scale (See Hardeo Kaur and others Vs. Rajasthan

State Transport Corporation and another - (1992) 2

SCC 567).

20. The High Court and the Tribunal must realize that

there is a distinction between compensation and

damage. The expression compensation may include a

claim for damage but compensation is more

comprehensive. Normally damages are given for an

injury which is suffered, whereas compensation

stands on a slightly higher footing. It is given for

the atonement of injury caused and the intention

behind grant of compensation is to put back the

injured party as far as possible in the same

position, as if the injury has not taken place, by

way of grant of pecuniary relief. Thus, in the

matter of computation of compensation, the approach

9 will be slightly more broad based than what is done

in the matter of assessment of damages. At the same

time it is true that there cannot be any rigid or

mathematical precision in the matter of

determination of compensation.

21. Going by these principles, as we must, this Court is

constrained to observe that in this case the

approach of the High Court in totally refusing to

grant any compensation for loss of future earning is

not a correct one.

22. This Court could have remanded the matter to the

High Court for assessment of compensation on the

aforesaid lines but the accident took place in March

2003 and a remand to the High Court for

determination of compensation will further delay the

matter. Therefore, to shorten litigation, and having

regard to this Court's power under Article 142 of

the Constitution to do complete justice between the

parties, this Court itself assesses the compensation

as follows:

10

Therefore, in the present case, the loss of future

income may be calculated using the multiplier

method as follows:

Income of the appellant (as accepted by the High Curt) is Rs.3,000/- p.m. Therefore, the yearly income is Rs.36,000/-.

Multiplier according to age (30 years) as per Schedule is 17.

Thus,the total comes to: Rs.36,000/- x 17 = Rs.6,12,000/-.

Percentage of disablement is 20%

Therefore, loss of future earnings would come to Rs.1,22,400/-.

23. If this is added to the compensation provided by the

High Court in other categories, the total

compensation comes to Rs.1,22,400/- + Rs.72,000/-,

that is Rs.1,94,400/-.

24. This Court, therefore, grants a lump sum of Rupees

Two Lakhs by way of compensation plus 8% interest as

granted by the High Court.

25. The appeal is allowed to the extent indicated above.

There will be no order as to costs.

11 .....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

New Delhi August 31, 2010

12