NATIONAL INSURANCE COMPANY LTD vs MANMOHAN SHARMA AND OTHERS
- Court
- High Court of Himachal Pradesh
1 2026:HHC:20655
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
High Court of H.P.
FAO (MV) No. 99 of 2018
Reserved on : 19.5.2026
Decided on : 30.5.2026
National Insurance Company Ltd.
.......Appellant
Versus
Manmohan Sharma & others ...Respondents
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
1
Whether approved for reporting? yes
__________________________________________________________________
For the appellant: Ms. Shilpa Sood, Advocate.
For the respondents: Mr. Sunny Moudgill, Advocate
(through Video Conferencing) and
Ms. Ananya Verma, Advocate, for
respondent No. 1.
Ms. Shrutika Chauhan, Advocate
vice Mr. Dheeraj K. Vashishta,
Advocate, for respondents No. 2
and 3.
Virender Singh, Judge
The National Insurance Company Limited has filed
the present appeal, under Section 173 of the Motor Vehicles
Act (hereinafter referred to as ‘the M.V.Act’) against the award
1
Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
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dated 24.11.2017, passed by the learned Motor Accident
High Court of H.P.
Claims Tribunal (III) Una, District Una, H.P. (hereinafter
referred to as ‘the Tribunal’), in MAC Claim Petition No. 140
of 2014, titled as, ‘Manmohan Sharma versus Tarun Garg &
others’.
2. By way of award dated 24.11.2017, the learned
Tribunal has allowed the claim petition filed by respondent
No. 1 by awarding a sum of Rs. 9,20,900/-, as compensation,
along with interest @ 9% per annum, from the date of filing of
the petition, till deposit. The ultimate liability to pay the
compensation has been fastened upon the Insurance
Company (appellant).
3. For the sake of convenience, the parties to the
present lis are, hereinafter, referred to, in the same manner,
as were, referred to, by the learned Tribunal.
4. Brief facts, leading to filing of present appeal,
before this Court, may be summed up, as under:-
Petitioner Manmohan Sharma has filed the
petition, under Section 166 of M.V. Act, seeking
compensation on account of injuries/disability sustained/
suffered by him, in a Motor vehicle accident, which according
to him, had taken place on 19.4.2014 at about 5:00 p.m. at
village Sidh Chalehar, near Kailash Hotel, Tehsil Amb,
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District Una, H.P., involving vehicle No. UA-07Q-0063
High Court of H.P.
(hereinafter referred to as ‘the offending vehicle’), being driven
by respondent No. 1, owned by respondent No. 2 and insured
with respondent No.3.
4.1 Elaborating his stand, it has been pleaded that on
19.4.2014, petitioner, alongwith his friend, was on the way to
attend a marriage in village Kinnu, on his motor cycle No.
PB02V-8727. When, they reached near Kailash Hotel in
village Sidh Chalehar, then, the offending vehicle came there
from Chintpurni side, being driven by respondent No.1 in a
rash and negligent manner and hit his motorcyle.
Consequently, the petitioner sustained multiple injuries,
particularly on his right leg and shoulder.
4.2 After the accident, he was taken to PHC Amb, where
he was examined by Doctor and first aid was given to him. In view
of his serious condition, the Doctor advised that he should be
shifted to a better hospital, as such, he was shifted to Purewal
Hospital, Hoshiarpur (Pb). He remained admit in the said hospital
w.e.f. 19.4.2014 to 27.4.2014.
4.3 The matter regarding the accident was reported to the
Police of Police Station, Amb and FIR No. 59 of 2014, dated
19.4.2014, under Sections 279, 337, 201 of IPC and Section 187
of M.V. Act, was registered, against respondent No. 1.
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4.4 It is the further case of the petitioner that due to
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injuries, sustained by him, he has become disabled and he
was forced to spend a sum of Rs. 5,00,000/-, on his
treatment.
4.5 Asserting his bright past and bleak future, the
petitioner has sought compensation of Rs. 20,00,000/-
alongwith interest @ 12% per annum, from the respondents.
5. When put to notice, the claim petition has been
contested by the respondents, by filing reply(ies).
6. Respondent Nos. 1 and 2 have filed joint reply, in
which, they have admitted the factum of accident, however,
according to them, the accident in question had taken place,
due to negligence of the petitioner himself in driving the
motorcycle. Rest of the contents of the claim petition have
been denied.
7. Insurance Company of the vehicle, i.e. respondent
No. 3 has filed separate reply by taking preliminary
objections that the claim petition is not maintainable.
According to the Insurance Company, the driver of the
offending vehicle was not having valid and effective driving
license, at the time of accident. As such, the offending vehicle
is being permitted to ply, in violation of the terms and
conditions of the Insurance Policy.
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9. On merits, the contents of the claim petition have
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mainly been denied for want of knowledge.
10. On the basis of above facts, a prayer has been
made by the respondents to dismiss the claim petition.
11. The petitioner filed rejoinder to the replies, filed
by the respondents, denying preliminary objections, as well
as, the contents of the replies, by virtue of which, the claim
petition has been contested, by re-asserting that of the claim
petition.
12. From the pleadings of the parties, the following
issues were framed, by the learned Tribunal, vide order dated
15.6.2016:-
1. Whether petitioner suffered injuries on account
of rash or negligent driving of respondent
No.1(driver), as alleged? OPP
2. Whether petitioner is entitled for compensation,
to what extent and from whom? OPP.
3. Whether petitioner himself was rash or negligent
as alleged, if so its effect? OPR-1&2.
4. Whether respondent No.1 was not having a valid
and effective driving licence to drive the vehicle in
question at the time of event? OPR-3.
5. Whether the vehicle in question was being plied
by respondent No.1 in violation of the terms and
conditions of the insurance policy, if so its effect?
OPR-3.
6. Relief
13. Thereafter, the parties to the lis were directed to
adduce evidence and after hearing learned counsel for the
parties, the claim petition was allowed, as referred to above.
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14. Feeling aggrieved from the said award, the
High Court of H.P.
Insurance Company has filed the present appeal on the
ground that the learned Tribunal has awarded an exorbitant
amount, as compensation, whereas, petitioner could not lead
any evidence to demonstrate that he was earning a sum of
Rs. 500/- per day.
15. The award has been assailed further on the
ground that the learned Tribunal has wrongly discarded the
evidence, adduced by the Insurance Company. It has further
been pleaded that the learned Tribunal has wrongly
calculated the monthly income of the petitioner as Rs.
15,000/-, without there being any proof on the record.
16. On the basis of above facts, Ms. Shilpa Sood,
Advocate, appearing on behalf of appellant-Insurance
Company has prayed that the appeal may kindly be allowed
and the amount of compensation may kindly be reduced.
17. The prayer, so made, has been opposed by Mr.
Sunny Moudgill, Advocate, appearing for respondent No. 1-
claimant on the ground that learned Tribunal has wrongly
taken the income of the petitioner as Rs. 15,000/-, per
month and prayed that the amount of compensation may
kindly be enhanced, so that the same may fall within the
purview of ‘just compensation’.
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18. Ms. Shrutika Chauhan, learned vice counsel
High Court of H.P.
appearing for respondents No. 2 and 3 (driver and owner) has
supported the award passed by the learned Tribunal and
prayed that the appeal may kindly be dismissed.
19. It is worthwhile to mention here that the
Insurance Company has assailed the award only on account
of quantum, not on account of liability. In such situation, the
only question, which arises for determination, before this
Court, is with regard to the fact as to whether amount of
compensation, which has been awarded to the claimant, by
the learned Tribunal, falls within the definition of ‘just
compensation’ or not?
20. The Hon’ble Apex Court in Oriental Insurance
Company Limited vs. Mohd. Nasir and another, (2009) 2 SCC
(Cri.) 987 has held that the provisions of M.V. Act are
beneficial piece of legislation and the endeavour of the
Court/Tribunal should be to provide “just compensation”.
The relevant paras 23 and 24 of the judgment are reproduced
as under:-
“23. Both, the 1923 Act and 1988 Act are
beneficent legislation insofar as they provide for pay-
ment of compensation to the workmen
employed by the employers and/or by use of
motor vehicle by the owner thereof and/or the
insurer to the petitioners suffering permanent
disability. The amount of compensation is to be deter-
mined in terms of the provisions of the
respective Acts. Whereas in terms of the 1923 Act, the
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Commissioner who is a quasi judicial
authority, is bound to apply the principles and the fac-
tors laid down in the Act for the purpose of determin-
ing the compensation, Section 168 of the 1988 Act en-
joins the Tribunal to make an award determining the
amount of compensation which appears to be just.
High Court of H.P.
24. Both the Acts aim at providing for
expeditious relief to the victims of accident. In these
cases, the accidents took place by
reason of use of motor vehicles. Both the statutes are
beneficial ones for the workmen as also the third par-
ties. The benefits thereof are available only to the per-
sons specified
under the Act besides under the Contract of
Insurance. The statutes, therefore, deserve
liberal construction. The legislative intent
contained therein is required to be interpreted with a
view to give effect thereto.”
(self emphasis supplied)
21. This view has again been reiterated by Hon’ble
Apex Court in Govind Yadav versus The New India Assurance
Co. Ltd., reported in 2012 ACJ 28 (SC). Relevant paragraphs
12 to 15 of the judgment are reproduced as under:
12. In Reshma Kumari v. Madan Mohan (2009) 13 SCC
422, this Court reiterated that the compensation awarded
under the Act should be just and also identified the factors
which should be kept in mind while determining the
amount of compensation. The relevant portions of the
judgment are extracted below:
"The compensation which is required to be determined
must be just. While the claimants are required to be
compensated for the loss of their dependency, the same
should not be considered to be a windfall. Unjust
enrichment should be discouraged. This Court cannot
also lose sight of the fact that in given cases, as for
example death of the only son to a mother, she can
never be compensated in monetary terms. The question
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as to the methodology required to be applied for
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determination of compensation as regards prospective
loss of future earnings, however, as far as possible
should be based on certain principles. A person may
have a bright future prospect; he might have become
eligible to promotion immediately; there might have
been chances of an immediate pay revision, whereas in
another (sic situation) the nature of employment was
such that he might not have continued in service; his
chance of promotion, having regard to the nature of
employment may be distant or remote. It is, therefore,
difficult for any court to lay down rigid tests which
should be applied in all situations. There are divergent
views. In some cases it has been suggested that some
sort of hypotheses or guess work may be inevitable.
That may be so.
In the Indian context several other factors should be
taken into consideration including education of the
dependants and the nature of job. In the wake of
changed societal conditions and global scenario, future
prospects may have to be taken into consideration not
only having regard to the status of the employee, his
educational qualification; his past performance but also
other relevant factors, namely, the higher salaries and
perks which are being offered by the private companies
these days. In fact while determining the m ultiplicand
this Court in O riental Insurance Co. Ltd. v. Jas huben
held that even dearness allowance and perks with
regard thereto from which the family would have
derived monthly benefit, must be taken into
consideration.
One of the incidental issues which has also to be taken
into consideration is inflation. Is the practice of taking
inflation into consideration wholly incorrect?
Unfortunately, unlike other developed countries in
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India there has been no scientific study. It is expected
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that with the rising inflation the rate of interest would
go up. In India it does not happen. It, therefore, may be
a relevant factor which may be taken into consideration
for determining the actual ground reality. No hard-and-
fast rule, however, can be laid down therefor."
(emphasis supplied)
13. In Arvind Kumar Mishra v. New India Assurance
Company Limited (2010) 10 SCC 254, the Court considered
the plea for enhancement of compensation made by the
appellant, who was a student of final year of engineering
and had suffered 70% disablement in a motor accident.
After noticing factual matrix of the case, the Court
observed:
"We do not intend to review in detail state of authorities
in relation to assessment of all damages for personal
injury. Suffice it to say that the basis of assessment of
all damages for personal injury is compensation. The
whole idea is to put the claimant in the same position
as he was insofar as money can. Perfect compensation
is hardly possible but one has to keep in mind that the
victim has done no wrong; he has suffered at the hands
of the wrongdoer and the court must take care to give
him full and fair compensation for that he had
suffered."
(emphasis supplied)
14. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, the
Court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988 ("the
Act", for short) makes it clear that the award must be
just, which means that compensation should, to the
extent possible, fully and adequately restore the
claimant to the position prior to the accident. The
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object of awarding damages is to make good the loss
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suffered as a result of wrong done as far as money can
do so, in a fair, reasonable and equitable manner. The
court or the Tribunal shall have to assess the damages
objectively and exclude from consideration any
speculation or fancy, though some conjecture with
reference to the nature of disability and its
consequences, is inevitable. A person is not only to be
compensated for the physical injury, but also for the
loss which he suffered as a result of such injury. This
means that he is to be compensated for his inability to
lead a full life, his inability to enjoy those normal
amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used
to earn or could have earned.
The heads under which compensation is awarded in
personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(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 permanent
disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
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(v) Loss of amenities (and/or loss of prospects of
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marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be
awarded only under heads (i), (ii)(a) and (iv). It is only in
serious cases of injury, where there is specific medical
evidence corroborating the evidence of the claimant,
that compensation will be granted under any of the
heads (ii)(b), (iii), (v) and (vi) relating to loss of future
earnings on account of permanent disability, future
medical expenses, loss of amenities (and/or loss of
prospects of marriage) and loss of expectation of life."
(emphasis supplied)
15. In our view, the principles laid down in Arvind Kumar
Mishra v. New India Assurance Company Ltd. (supra) and
Raj Kumar v. Ajay Kumar (supra) must be followed by all the
Tribunals and the High Courts in determining the quantum
of compensation payable to the victims of accident, who are
disabled either permanently or temporarily. If the victim of
the accident suffers permanent disability, then efforts should
always be made to award adequate compensation not only
for the physical injury and treatment, but also for the loss of
earning and his inability to lead a normal life and enjoy
amenities, which he would have enjoyed but for the disability
caused due to the accident.
22. Similar view has again been taken by the Hon’ble
Supreme Court in the case titled as, Sidram versus
Divisional Manager, United India Insurance Company
Limited & anr., reported in (2023) 3 Supreme Court Cases
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439. Relevant paragraphs 29 to 40 of the judgment are
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reproduced as under:
29. The process of determining the compensation by the
court is essentially a very difficult task and can never be an
exact science. Perfect compensation is hardly possible,
more so in claims of injury and disability. As rightly pointed
out in H. West & Son Ltd. v. Shephard, 1958-65 ACJ 504
(HL, England):
“…money cannot renew a physical frame that has been
battered.”
30. The principle consistently followed by this court in
assessing motor vehicle compensation claims, is to place
the victim in as near a position as she or he was in before
the accident, with other compensatory directions for loss of
amenities and other payments. These general principles
have been stated and reiterated in several decisions.
[ Govind Yadav v. New India Insurance Co. Ltd. , (2011) 10
SCC 683.]
31. It is now a well settled position of law that even in cases
of permanent disablement incurred as a result of a motor-
accident, the claimant can seek, apart from compensation
for future loss of income, amounts for future prospects as
well. We have come across many orders of different
tribunals and unfortunately affirmed by different High
Courts, taking the view that the claimant is not entitled to
compensation for future prospects in accident cases
involving serious injuries resulting in permanent
disablement. That is not a correct position of law. There is
no justification to exclude the possibility of compensation
for future prospects in accident cases involving serious
injuries resulting in permanent disablement. Such a narrow
reading is illogical because it denies altogether the
possibility of the living victim progressing further in life in
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accident cases – and admits such possibility of future
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prospects, in case of the victim’s death.
32. This Court has emphasised time and again that “just
compensation” should include all elements that would go to
place the victim in as near a position as she or he was in,
before the occurrence of the accident. Whilst no amount of
money or other material compensation can erase the
trauma, pain and suffering that a victim undergoes after a
serious accident, (or replace the loss of a loved one),
monetary compensation is the manner known to law,
whereby society assures some measure of restitution to
those who survive, and the victims who have to face their
lives.
33. In Santosh Devi v. National Insurance Company Limited
and Others , (2012) 6 SCC 421, this Court held that:
“14. We find it extremely difficult to fathom any
rationale for the observation made in paragraph 24 of
the judgment in Sarla Verma case [Sarla Verma v.
DTC, (2009) 6 SCC 121] that where the deceased was
self-employed or was on a fixed salary without
provision for annual increment, etc., the Courts will
usually take only the actual income at the time of
death and a departure from this rule should be made
only in rare and exceptional cases involving special
circumstances. In our view, it will be nave to say that
the wages or total emoluments/income of a person who
is self-employed or who is employed on a fixed salary
without provision for annual increment, etc., would
remain the same throughout his life.
15. The rise in the cost of living affects everyone across
the board. It does not make any distinction between
rich and poor.
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As a matter of fact, the effect of rise in prices which
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directly impacts the cost of living is minimal on the
rich and maximum on those who are self-employed or
who get fixed income/emoluments. They are the worst
affected people. Therefore, they put in extra efforts to
generate additional income necessary for sustaining
their families.
16. The salaries of those employed under the Central
and State Governments and their
agencies/instrumentalities have been revised from
time to time to provide a cushion against the rising
prices and provisions have been made for providing
security to the families of the deceased employees. The
salaries of those employed in private sectors have also
increased manifold. Till about two decades ago, nobody
could have imagined that salary of Class IV employee
of the Government would be in five figures and total
emoluments of those in higher echelons of service will
cross the figure of rupees one lakh.
17. Although the wages/income of those employed in
unorganised sectors has not registered a corresponding
increase and has not kept pace with the increase in the
salaries of the government employees and those
employed in private sectors, but it cannot be denied
that there has been incremental enhancement in the
income of those who are self- employed and even those
engaged on daily basis, monthly basis or even seasonal
basis. We can take judicial notice of the fact that with
a view to meet the challenges posed by high cost of
living, the persons falling in the latter category
periodically increase the cost of their labour. In this
context, it may be useful to give an example of a tailor
who earns his livelihood by stitching cloths. If the cost
of living increases and the prices of essentials go up, it
is but natural for him to increase the cost of his
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labour. So will be the cases of ordinary skilled and
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unskilled labour, like, barber, blacksmith, cobbler,
mason etc.
18. Therefore, we do not think that while making the
observations in the last three lines of para 24 of Sarla
Verma [Sarla Verma v. DTC, (2009) 6 SCC 121]
judgment, the Court had intended to lay down an
absolute rule that there will be no addition in the
income of a person who is self-employed or who is paid
fixed wages. Rather, it would be reasonable to say that
a person who is self-employed or is engaged on fixed
wages will also get 30% increase in his total income
over a period of time and if he/she becomes the victim
of an accident then the same formula deserves to be
applied for calculating the amount of compensation.”
34. In Jagdish v. Mohan and Others , (2018) 4 SCC
571, the victim, a carpenter, suffered permanent
disablement, and his claim for compensation including
for loss of future prospects was considered by a three-
Judge Bench which included, incidentally, the judges
who had decided National Insurance Company (supra).
This Court held that:
“13. In the judgment of the Constitution Bench
in Pranay Sethi [National Insurance Co. Ltd. v. Pranay
Sethi , (2017) 16 SCC 680], this Court has held that the
benefit of future prospects should not be confined only
to those who have a permanent job and would extend
to self-employed individuals. In the case of a self-
employed person, an addition of 40% of the established
income should be made where the age of the victim at
the time of the accident was below 40 years. Hence, in
the present case, the appellant would be entitled to an
enhancement of Rs. 2400 towards loss of future
prospects.
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14. In making the computation in the present case, the
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court must be mindful of the fact that the appellant
has suffered a serious disability in which he has
suffered a loss of the use of both his hands. For a
person engaged in manual activities, it requires no
stretch of imagination to understand that a loss of
hands is a complete deprivation of the ability to earn.
Nothing —at least in the facts of this case—can restore
lost hands. But the measure of compensation must
reflect a genuine attempt of the law to restore the
dignity of the being. Our yardsticks of compensation
should not be so abysmal as to lead one to question
whether our law values human life. If it does, as it
must, it must provide a realistic recompense for the
pain of loss and the trauma of suffering. Awards of
compensation are not law's doles. In a discourse of
rights, they constitute entitlements under law. Our
conversations about law must shift from a paternalistic
subordination of the individual to an assertion of
enforceable rights as intrinsic to human dignity.
15. The Tribunal has noted that the appellant is
unable to even eat or to attend to a visit to the toilet
without the assistance of an attendant. In this
background, it would be a denial of justice to compute
the disability at 90%. The disability is indeed total.
Having regard to the age of the appellant, the Tribunal
applied a multiplier of 18. In the circumstances, the
compensation payable to the appellant on account of
the loss of income, including future prospects, would
be Rs 18,14,400. In addition to this amount, the
appellant should be granted an amount of Rs 2 lakhs
on account of pain, suffering and loss of amenities. The
amount awarded by the Tribunal towards medical
expenses (Rs 98,908); for extra nourishment (Rs
25,000) and for attendant's expenses (Rs 1 lakh) is
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maintained. The Tribunal has declined to award any
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amount towards future treatment. The appellant
should be allowed an amount of Rs 3 lakhs towards
future medical expenses. The appellant is thus
awarded a total sum of Rs 25,38,308 by way of
compensation. The appellant would be entitled to
interest at the rate of 9% p.a. on the compensation
from the date of the filing of the claim petition. The
liability to pay compensation has been fastened by the
Tribunal and by the High Court on the insurer, owner
and driver jointly and severally which is affirmed. The
amount shall be deposited before the Tribunal within a
period of 6 weeks from today and shall be paid over to
the appellant upon proper identification.”
35. The case of Parminder Singh v. New India Assurance
Company Limited and Others , (2019) 7 SCC 217, involved
an accident victim, who underwent surgery for hemiplegia
(weakness of one half of the body on the left side; in this
case, caused by an accident). According to the treating
medic, the victim could not work as a labourer or
perform any agricultural work, or work as a driver (as he
was wont to); the assessment of his disability was at 75%,
and of a permanent nature. The Court held that:
“5.1. The appellant has however, produced an affidavit
by his employer in this Court. As per the said affidavit,
the appellant was earning Rs 10,000 p.m. at the time
of the accident. 5.2. On the basis of the affidavit filed
by the employer of the appellant, we accept that the
income of the appellant was Rs 10,000 p.m. at the time
of the accident, for the purpose of computing the
compensation payable to him.
5.3. Taking the income of the appellant as Rs 10,000
p.m., with future prospects @ 50% as awarded by the
High Court, the total income of the appellant would
come to Rs 15,000 p.m. 5.4. The appellant was 23
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years old at the time when the accident occurred.
High Court of H.P.
Applying the multiplier of 18, the loss of future
earnings suffered by the appellant would work out to
Rs 15,000 × 12 × 18 = Rs 32,40,000.
*
5.7. In K. Suresh v. New India Assurance Co.
Ltd. (2012) 12 SCC 274, this Court held that: (SCC p.
279, para 10) “10. It is noteworthy to state that an
adjudicating authority, while determining the
quantum of compensation, has to keep in view the
sufferings of the injured person which would include
his inability to lead a full life, his incapacity to enjoy
the normal amenities which he would have enjoyed
but for the injuries and his ability to earn as much as
he used to earn or could have earned. Hence, while
computing compensation the approach of the Tribunal
or a court has to be broad-based. Needless to say, it
would involve some guesswork as there cannot be any
mathematical exactitude or a precise formula to
determine the quantum of compensation. In
determination of compensation the fundamental
criterion of “just compensation” should be inhered.”
* 5.9. In the present case, it is
an admitted position that it is not possible for the
appellant to get employed as a driver, or do any kind
of manual labour, or engage in any agricultural
operations whatsoever, for his sustenance. In such
circumstances, the High Court has rightly assessed
the appellant's functional disability at 100% insofar as
his loss of earning capacity is concerned. The
appellant is, therefore, awarded Rs 32,40,000 towards
loss of earning capacity.”
36. Yet later and in near past, in an accident case, which
tragically left in its wake a young girl in a life-long state of
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paraplegia, this Court, in Kajal v. Jagdish Chand and
High Court of H.P.
Others , (2020) 4 SCC 413, reiterated that in addition to
loss of earnings, compensation for future prospects too
could be factored in, and observed that:
“14. In Concord of India Insurance Co. Ltd. v. Nirmala
Devi [ (1979) 4 SCC 365 : 1979 SCC (Cri) 996 : 1980
ACJ 55], this Court held : (SCC p. 366, para 2) “2. …
the determination of the quantum must be liberal, not
niggardly since the law values life and limb in a free
country in generous scales.”
15. In R.D. Hattangadi v. Pest Control (India) (P)
Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250], dealing
with the different heads of compensation in injury
cases this Court held thus:
“9. Broadly speaking while fixing the amount of
compensation payable to a victim of an accident, the
damages have to be assessed separately as pecuniary
damages and special damages. Pecuniary damages are
those which the victim has actually incurred and
which are capable of being calculated in terms of
money; whereas non-pecuniary damages are those
which are incapable of being assessed by arithmetical
calculations. In order to appreciate two concepts
pecuniary damages may include expenses incurred by
the claimant: (i) medical attendance; (ii) loss of earning
of profit up to the date of trial; (iii) other material loss.
So far as non- pecuniary damages are concerned, they
may include: (i) damages for mental and physical
shock, pain and suffering, already suffered or likely to
be suffered in the future; (ii) damages to compensate
for the loss of amenities of life which may include a
variety of matters i.e. on account of injury the
claimant may not be able to walk, run or sit; (iii)
damages for loss of expectation of life i.e. on account
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of injury the normal longevity of the person concerned
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is shortened; (iv) inconvenience, hardship, discomfort,
disappointment, frustration and mental stress in life.”
16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343 :
(2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161], this
Court laid down the heads under which compensation
is to be awarded for personal injuries: (SCC p. 348,
para 6) “6. The heads under which compensation is
awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(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 permanent
disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
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In routine personal injury cases, compensation will be
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awarded only under heads (i), (ii)(a) and (iv). It is only
in serious cases of injury, where there is specific
medical evidence corroborating the evidence of the
claimant, that compensation will be granted under any
of the heads (ii)
(b), (iii), (v) and (vi) relating to loss of future earnings
on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects
of marriage) and loss of expectation of life.”
17. In K. Suresh v. New India Assurance Co. Ltd. ,
(2012) 12 SCC 274 : (2013) 2 SCC (Civ) 279 : (2013) 4
SCC (Cri) 638, this Court held as follows: (SCC p. 276,
para 2) “2. … There cannot be actual compensation for
anguish of the heart or for mental tribulations. The
quintessentiality lies in the pragmatic computation of
the loss sustained which has to be in the realm of
realistic approximation. Therefore, Section 168 of the
Motor Vehicles Act, 1988 (for brevity “the Act”)
stipulates that there should be grant of “just
compensation”. Thus, it becomes a challenge for a
court of law to determine “just compensation” which is
neither a bonanza nor a windfall, and simultaneously,
should not be a pittance.
20. Both the courts below have held that since the girl
was a young child of 12 years only notional income of
Rs 15,000 p.a. can be taken into consideration. We do
not think this is a proper way of assessing the future
loss of income. This young girl after studying could
have worked and would have earned much more than
Rs 15,000 p.a. Each case has to be decided on its own
evidence but taking notional income to be Rs 15,000
p.a. is not at all justified. The appellant has placed
before us material to show that the minimum wages
payable to a skilled workman is Rs 4846 per month. In
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our opinion, this would be the minimum amount
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which she would have earned on becoming a major.
Adding 40% for the future prospects, it works to be Rs
6784.40 per month i.e. 81,412.80 p.a. Applying the
multiplier of 18, it works out to Rs 14,65,430.40,
which is rounded off to Rs 14,66,000.”
37. In Neerupam Mohan Mathur v. New India Assurance
Company , (2013) 14 SCC 15, this Court considered the case
of a victim, whose injury was assessed to 70% as loss of
earning capacity for amputation of the arm; he was a
postgraduate diploma holder in mechanical engineering, 32
years of age and earning about Rs. 3000/- per month. This
Court held, approving the High Court's order (which had
adopted the formula from the Workmen's Compensation Act,
1923 to determine 70% for the purpose of deciding loss of
earning capacity) as follows:
“12. In the present case, the percentage of permanent
disability has not been expressed by the doctors with
reference to the full body or with reference to a
particular limb. However, it is not in dispute that the
claimant suffered such a permanent disability as a
result of injuries that he is not in a position of doing
the specialised job of designing, refrigeration and air
conditioning. For the said reason, the claimant's
services were terminated by his employer but that
does not mean that the claimant is not capable to do
any other job including the desk job. Having
qualification of BSc degree and postgraduate diploma
in Mechanical Engineering, he can perform any job
where application of mind is required than any
physical work.
13. In 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
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loss of earning capacity as per the Workmen's
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Compensation Act . The total loss of income was thus
rightly calculated by the High Court at Rs 6,04,800.”
38. However, making a monetary assessment of the injury
suffered is the only process devised to compensate the
victim. The process of making such an assessment,
whether in case of death or injury, is provided in Section
168 of the Act which requires that the tribunals
constituted under the Act determine compensation, which
appears to be ‘just’. Thus, the Act vests a wide discretion
upon the tribunals. The decision of this Court in Divisional
Controller, KSRTC v. Mahadeva Shetty and Another , (2003)
7 SCC 197, needs mention here (para 15):
“15. ……It has to be borne in mind that compensation
for loss of limbs or life can hardly be weighed in
golden scales. Bodily injury is nothing but a
deprivation which entitles the claimant to damages.
The quantum of damages fixed should be in
accordance with the injury. An injury may bring
about many consequences like loss of earning
capacity, loss of mental pleasure and many such
consequential losses. A person becomes entitled to
damages for mental and physical loss, his or her life
may have been shortened or that he or she cannot
enjoy life, which has been curtailed because of
physical handicap. The normal expectation of life is
impaired. But at the same time it has to be borne in
mind that the compensation is not expected to be a
windfall for the victim. Statutory provisions clearly
indicate that the compensation must be “just” and it
cannot be a bonanza; not a source of profit but the
same should not be a pittance. The courts and
tribunals have a duty to weigh the various factors and
quantify the amount of compensation, which should
be just. What would be “just” compensation is a vexed
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question. There can be no golden rule applicable to all
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cases for measuring the value of human life or a limb.
Measure of damages cannot be arrived at by precise
mathematical calculations. It would depend upon the
particular facts and circumstances, and attending
peculiar or special features, if any. Every method or
mode adopted for assessing compensation has to be
considered in the background of “just” compensation
which is the pivotal consideration. Though by use of
the expression “which appears to it to be just”, a wide
discretion is vested in the Tribunal, the determination
has to be rational, to be done by a judicious approach
and not the outcome of whims, wild guesses and
arbitrariness.. …”
39. This Court in R.D. Hattangadi (supra), posited certain
principles to be followed:
“9.……while fixing an amount of compensation
payable to a victim of an accident, the damages have
to be assessed separately as pecuniary damages and
special damages. Pecuniary damages are those which
the victim has actually incurred and which are
capable of being calculated in terms of money;
whereas non-pecuniary damages are those which are
incapable of being assessed by arithmetical
calculations. In order to appreciate two concepts
pecuniary damages may include expenses incurred by
the claimant: (i) medical attendance; (ii) loss of
earning of profit up to the date of trial;
(iii) other material loss. So far non-pecuniary damages
are concerned, they may include (i) damages for
mental and physical shock, pain and suffering,
already suffered or likely to be suffered in future; (ii)
damages to compensate for the loss of amenities of life
which may include a variety of matters, i.e., on
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account of injury the claimant may not be able to
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walk, run or sit; (iii) damages for the loss of
expectation of life, i.e., on account of injury the
normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship, discomfort,
disappointment, frustration and mental stress in life.”
40. In the case of Raj Kumar (supra) this Court has
explained in the following terms the general principles
relating to compensation in injury cases and assessment of
future loss of earnings due to permanent disability:
“General principles relating to compensation in injury
cases
5. The provision of the Motor Vehicles Act, 1988 (“the
Act”, for short) makes it clear that the award must be
just, which means that compensation should, to the
extent possible, fully and adequately restore the
claimant to the position prior to the accident. The
object of awarding damages is to make good the loss
suffered as a result of wrong done as far as money
can do so, in a fair, reasonable and equitable
manner. The court or the Tribunal shall have to
assess the damages objectively and exclude from
consideration any speculation or fancy, though some
conjecture with reference to the nature of disability
and its consequences, is inevitable. A person is not
only to be compensated for the physical injury, but
also for the loss which he suffered as a result of such
injury. This means that he is to be compensated for
his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed
but for the injuries, and his inability to earn as much
as he used to earn or could have earned. [See C.K.
Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3
SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest
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Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC
High Court of H.P.
(Cri) 250] and Baker v. Willoughby [1970 AC 467 :
(1970) 2 WLR 50 :
(1969) 3 All ER 1528 (HL)] .]
6. The heads under which compensation is awarded
in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(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 permanent
disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will
be awarded only under heads (i), (ii)(a) and (iv). It is
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only in serious cases of injury, where there is specific
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medical evidence corroborating the evidence of the
claimant, that compensation will be granted under
any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on
account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects
of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i)
and under Item (ii)(a) do not pose much difficulty as
they involve reimbursement of actuals and are easily
ascertainable from the evidence. Award under the
head of future medical expenses—Item (iii)—depends
upon specific medical evidence regarding need for
further treatment and cost thereof. Assessment of
non-pecuniary damages—Items (iv),
(v) and (vi)—involves determination of lump sum
amounts with reference to circumstances such as
age, nature of injury/deprivation/disability suffered
by the claimant and the effect thereof on the future
life of the claimant. Decisions of this Court and the
High Courts contain necessary guidelines for award
under these heads, if necessary. What usually poses
some difficulty is the assessment of the loss of future
earnings on account of permanent disability—Item (ii)
(a). We are concerned with that assessment in this
case.
Assessment of future loss of earnings due to
permanent disability
8. Disability refers to any restriction or lack of ability
to perform an activity in the manner considered
normal for a human being. Permanent disability
refers to the residuary incapacity or loss of use of
some part of the body, found existing at the end of
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the period of treatment and recuperation, after
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achieving the maximum bodily improvement or
recovery which is likely to remain for the remainder
life of the injured. Temporary disability refers to the
incapacity or loss of use of some part of the body on
account of the injury, which will cease to exist at the
end of the period of treatment and recuperation.
Permanent disability can be either partial or total.
Partial permanent disability refers to a person's
inability to perform all the duties and bodily
functions that he could perform before the accident,
though he is able to perform some of them and is still
able to engage in some gainful activity. Total
permanent disability refers to a person's inability to
perform any avocation or employment related
activities as a result of the accident. The permanent
disabilities that may arise from motor accident
injuries, are of a much wider range when compared
to the physical disabilities which are enumerated in
the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act,
1995 (“the Disabilities Act”, for short). But if any of
the disabilities enumerated in Section 2(i) of the
Disabilities Act are the result of injuries sustained in
a motor accident, they can be permanent disabilities
for the purpose of claiming compensation.
9. The percentage of permanent disability is
expressed by the doctors with reference to the whole
body, or more often than not, with reference to a
particular limb. When a disability certificate states
that the injured has suffered permanent disability to
an extent of 45% of the left lower limb, it is not the
same as 45% permanent disability with reference to
the whole body. The extent of disability of a limb (or
part of the body) expressed in terms of a percentage
of the total functions of that limb, obviously cannot
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be assumed to be the extent of disability of the whole
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body. If there is 60% permanent disability of the right
hand and 80% permanent disability of left leg, it does
not mean that the extent of permanent disability with
reference to the whole body is 140% (that is 80% plus
60%). If different parts of the body have suffered
different percentages of disabilities, the sum total
thereof expressed in terms of the permanent
disability with reference to the whole body cannot
obviously exceed 100%.
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
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earning capacity in terms of a percentage of the
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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 :
(2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and
Yadava Kumar v. National Insurance Co. Ltd. [(2010)
10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide
whether there is any permanent disability and, if so,
the extent of such permanent disability. This means
that the Tribunal should consider and decide with
reference to the evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of such
disablement of the limb on the functioning of the
entire body, that is, the permanent disability suffered
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by the person. If the Tribunal concludes that there is
High Court of H.P.
no permanent disability then there is no question of
proceeding further and determining the loss of future
earning capacity. But if the Tribunal concludes that
there is permanent disability then it will proceed to
ascertain its extent. After the Tribunal ascertains the
actual extent of permanent disability of the claimant
based on the medical evidence, it has to determine
whether such permanent disability has affected or
will affect his earning capacity.
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.
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss
of earning capacity may virtually be hundred per
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cent, if he is neither able to drive or do carpentry. On
High Court of H.P.
the other hand, if the claimant was a clerk in
government service, the loss of his left hand may not
result in loss of employment and he may still be
continued as a clerk as he could perform his clerical
functions; and in that event the loss of earning
capacity will not be 100% as in the case of a driver or
carpenter, nor 60% which is the actual physical
disability, but far less. In fact, there may not be any
need to award any compensation under the head of
“loss of future earnings”, if the claimant continues in
government service, though he may be awarded
compensation under the head of loss of amenities as
a consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not be found suitable for discharging the duties
attached to the post or job which he was earlier
holding, on account of his disability, and may
therefore be shifted to some other suitable but lesser
post with lesser emoluments, in which case there
should be a limited award under the head of loss of
future earning capacity, taking note of the reduced
earning capacity.
15. It may be noted that when compensation is
awarded by treating the loss of future earning
capacity as 100% (or even anything more than 50%),
the need to award compensation separately under the
head of loss of amenities or loss of expectation of life
may disappear and as a result, only a token or
nominal amount may have to be awarded under the
head of loss of amenities or loss of expectation of life,
as otherwise there may be a duplication in the award
of compensation. Be that as it may.
16. The Tribunal should not be a silent spectator
when medical evidence is tendered in regard to the
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injuries and their effect, in particular, the extent of
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permanent disability. Sections 168 and 169 of the
Act make it evident that the Tribunal does not
function as a neutral umpire as in a civil suit, but as
an active explorer and seeker of truth who is
required to “hold an enquiry into the claim” for
determining the “just compensation”. The Tribunal
should therefore take an active role to ascertain the
true and correct position so that it can assess the
“just compensation”. While dealing with personal
injury cases, the Tribunal should preferably equip
itself with a medical dictionary and a handbook for
evaluation of permanent physical impairment (for
example, Manual for Evaluation of Permanent
Physical Impairment for Orthopaedic Surgeons,
prepared by American Academy of Orthopaedic
Surgeons or its Indian equivalent or other authorised
texts) for understanding the medical evidence and
assessing the physical and functional disability. The
Tribunal may also keep in view the First Schedule to
the Workmen's Compensation Act, 1923 which gives
some indication about the extent of permanent
disability in different types of injuries, in the case of
workmen.
17. If a doctor giving evidence uses technical medical
terms, the Tribunal should instruct him to state in
addition, in simple non-medical terms, the nature
and the effect of the injury. If a doctor gives evidence
about the percentage of permanent disability, the
Tribunal has to seek clarification as to whether such
percentage of disability is the functional disability
with reference to the whole body or whether it is only
with reference to a limb. If the percentage of
permanent disability is stated with reference to a
limb, the Tribunal will have to seek the doctor's
opinion as to
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whether it is possible to deduce the corresponding
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functional permanent disability with reference to the
whole body and, if so, the percentage.
18. The Tribunal should also act with caution, if it
proposed to accept the expert evidence of doctors
who did not treat the injured but who give “ready to
use” disability certificates, without proper medical
assessment. There are several instances of
unscrupulous doctors who without treating the
injured, readily give liberal disability certificates to
help the claimants. But where the disability
certificates are given by duly constituted Medical
Boards, they may be accepted subject to evidence
regarding the genuineness of such certificates. The
Tribunal may invariably make it a point to require
the evidence of the doctor who treated the injured or
who assessed the permanent disability. Mere
production of a disability certificate or discharge
certificate will not be proof of the extent of disability
stated therein unless the doctor who treated the
claimant or who medically examined and assessed
the extent of disability of the claimant, is tendered
for cross- examination with reference to the
certificate. If the Tribunal is not satisfied with the
medical evidence produced by the claimant, it can
constitute a Medical Board (from a panel maintained
by it in consultation with reputed local
hospitals/medical colleges) and refer the claimant to
such Medical Board for assessment of the disability.
19. We may now summarise the principles discussed
above:
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with
reference to the whole body of a person, cannot be
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assumed to be the percentage of loss of earning
High Court of H.P.
capacity. To put it differently, the percentage of loss
of earning capacity is not the same as the percentage
of permanent disability (except in a few cases, where
the Tribunal on the basis of evidence, concludes that
the percentage of loss of earning capacity is the same
as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or
who examined him subsequently to assess the extent
of his permanent disability can give evidence only in
regard to the extent of permanent disability. The loss
of earning capacity is something that will have to be
assessed by the Tribunal with reference to the
evidence in entirety.
(iv) The same permanent disability may result in
different percentages of loss of earning capacity in
different persons, depending upon the nature of
profession, occupation or job, age, education and
other factors.”
23. Similar view has also been taken by the Hon’ble
Supreme Court in Sushila & Others versus Sudhakar &
Another, 2026 Live Law (SC) 343. Relevant paragraphs 19
and 20 of the judgment, are reproduced, as under:-
“19. In our considered opinion, although the High
Court had enhanced the compensation, it was on the
lower side. The cardinal principle of awarding
compensation in the cases of motor accidents is to
provide a “just compensation” to the victim and/or the
distressed dependents of the deceased. The term “just”
implies that the compensation must be fair, reasonable,
and equitable as per the applicable legal standards. The
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compensation should not be too meagre, nor should it
High Court of H.P.
be excessive. The sole foundation of providing monetary
compensation is to make efforts to put the dependents
of the deceased at the same financial position that they
were in, had the accident not occurred. [See also:
Reshma Kumari and others vs. Madan Mohan and
another, reported in (2013) 9 SCC 65; National
Insurance Co. Ltd. vs. Indira Srivastava & Ors, reported
in (2008) 2 SCC 763; and Divisional Controller, KSRTC
vs. Mahadeva Shetty and another, reported in (2003) 7
SCC 197]
20) Thus, in the light of the settled principle that the
Motor Vehicles Act, 1988 (hereinafter referred to as
“M.V. Act”) is a beneficial legislation and the
compensation should be just and equitable, let us deal
with the issues for determination in the present
appeal.”
24. Being guided by the above decisions of the
Hon’ble Supreme Court, this Court would proceed further to
determine as to whether the amount of compensation
awarded by the learned MACT to the claimants falls within
the definition of ‘just compensation’ or not?
25. Perusal of the record shows that the learned
Tribunal has awarded the amount under the various heads.
However, for awarding the compensation, under various
heads, evidence is required to be discussed.
26. After framing of issues, the petitioner has
examined PW-2 Dr. Usha Daroch, SMO Amb, who has proved
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the MLC of the petitioner. She has declared injuries No. 2, 3
High Court of H.P.
and 4 as grievous in nature and has referred the petitioner to
Regional Hospital, Una, for further treatment.
27. The petitioner has examined PW-5 Dr. J.S.
Purewal, Orthopedic Surgeon, who has deposed that on
19.4.2014, Manmohan Sharma (petitioner) was admitted in
his hospital with the fracture of right thigh and double
fracture of right tibia. He was operated on 23.4.2014 for
fracture of thigh and on 25.4.2014, for fracture of right tibia.
He was discharged from the hospital on 27.4.2014. He has
proved the discharge slip Ext. P-47 and bills Exts. P1 to P-41
and P-44.
28. PW-6 Dr. Vivek, M.O. Regional Hospital,
Hamirpur has issued the disability certificate Ext. PW6/A, in
which, it has been mentioned that the petitioner is 40%
permanently disabled.
29. Petitioner Manmohan Sharma, while appearing in
the witness box as PW-4, deposed about the fact that after
the accident, he was firstly taken to PHC Amb, where first aid
was given to him and thereafter, he was advised to go for
better treatment in some better hospital. Consequently, he
was shifted to Purewal Hospital, where he remained admit
w.e.f. 19.4.2014 to 25.4.2014. During that period, he was
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operated upon twice and according to him, he is still visiting
High Court of H.P.
the said hospital for follow ups. Apart from this, he has
deposed that his treatment is still going on and he is still bed
ridden. The statement of the petitioner is totally silent about
his income, at the relevant time.
30. In view of the evidence, this Court would proceed
further to determine the amount of compensation, for which,
the petitioner is entitled for, under the various heads.
NON PECUNIARY DAMAGES
Pain and Sufferings
31. The period of hospitalization of the petitioner, as
per the statement of Dr. J.S. Purewal is nine days, i.e. w.e.f.
19.4.2024 to 27.4.2024. During the period of hospitalization,
he was also operated upon twice. The learned Tribunal has
awarded a sum of Rs. 50,000/- under the head ‘Pain and
Sufferings’. The said amount is liable to be reduced and
according to the considered opinion of this Court, the
claimant is held entitled for a sum of Rs. 18,000/- (9 x 2000).
The said amount is reduced keeping in view the fact that
while assessing the amount of Rs. 50,000/- under the
aforesaid head, no reasons have been assigned by the
learned Tribunal. Reasons should be the hallmark of any
decision by the Court, determining the rights of the parties.
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Loss of Enjoyment of Life
High Court of H.P.
32. The learned Tribunal has not awarded any
amount under the head ‘Loss of Enjoyment of Life’. The
period of hospitalization is held to be 9 days. Keeping in view
the nature of injuries, i.e. fracture, he might have taken at
least four months for convalescence. Although, the Doctor
has assessed 40% permanent disability, however, the said
disability is liable to be considered under the head ‘Loss of
earnings and earning capacity’. As such, the same is not
liable to be taken into consideration, at this stage, as double
enrichment is prohibited under the law.
33. Considering the period of hospitalization and
convalescence, this Court is of the view that interest of
justice would be met, if a sum of Rs. 50,000/- is awarded to
the petitioner, under the head ‘Loss of Enjoyment of Life’, as
he could not enjoy the life of a normal human being, during
the convalescence.
Shorten Expectancy of Life:
34. There is no evidence on the record to prove or to
suggest that due to disability, suffered and injuries
sustained, the life span of the petitioner has been shortened.
As such, no amount of compensation is being awarded,
under this head.
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PECUNIARY DAMAGES
High Court of H.P.
35. Loss of Earnings and Earning Capacity
The claimant/petitioner in the claim petition, has
pleaded that at the relevant time, he was earning a sum of
Rs. 30,000/- In column-5 of the claim petition, he has
pleaded that he was running a business of Handicraft
furniture and also doing the work of agriculture.
Interestingly, the learned Tribunal has taken the income of
petitioner as Rs. 15,000/- per month. The age of the
petitioner, at the relevant time, has been proved to be 38
years.
36. Highlighting this point, it has been argued by
learned counsel for the petitioner that the conclusion that the
income of the petitioner, at the relevant time, was Rs.
15,000/- per month, is not based upon any evidence, as the
petitioner, while appearing in the witness box, remained
silent, qua his earnings, as well as, his business.
37. Although, it has been pleaded in the petition,
that the monthly income of the petitioner is Rs. 30,000/-,
but, without any evidence, it cannot be concluded that he
was earning a sum of Rs. 15,000/- per month. It is a case
where this Court can say that there is no evidence with
regard to the income of the petitioner.
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38. When, there is no evidence with regard to the
High Court of H.P.
income of the petitioner, then, the safest course for this
Court is to adopt the minimum wages, prevalent at that time.
The accident in question had taken place on 19.4.2014.
Accepting the plea of the petitioner that he was running a
carpenter shop, as the daily wages can be said to be Rs.
214.17/-, or to say a sum of Rs. 6425/- per month, as per
notification No. Shram(A) 4-8/2006 Part File, dated
28.5.2014, as required under Article 348 of the Constitution
of India, issued by the Department of Labour and
Employment, Government of Himachal Pradesh, which has
come into effect from 1.4.2014. The period of hospitalization
and convalescence is held to be 4 months and 9 days.
Meaning thereby, the petitioner could not contribute
anything towards his family, for a period of 5 months, for
which he is entitled for a sum of Rs. 6425 x 5 = Rs. 32,125/-.
39. So far as loss of earning capacity is concerned, as
per disability certificate, petitioner is found 40% permanently
disabled, as he is held to be skilled carpenter, and the injury
has been assessed, in view of fracture of right thigh and
double fracture of right tibia.
40. Considering the nature of job of the petitioner,
this Court is of the view that now it is not possible for him to
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work as Carpenter and due to the disability, assessed by the
High Court of H.P.
Doctor, he has to take some other profession. Thus, his
functional disability can be said to be 50%. Thus, the learned
Tribunal has fallen into error while concluding that disability
of 40% is functional disability. The same has to be assessed,
keeping in view the profession/occupation of the injured.
41. The monthly income of petitioner, at the time of
accident, is held to be Rs. 6425/- per month. The permanent
disability is 40% and functional disability is also held to be
50%, on account of the fact that petitioner was carpenter and
with 40% disability, now he cannot work as carpenter and he
has to choose some other work to earn his livelihood.
42. In view of the law, laid down by Hon’ble Apex
Court in Pranay Sethi’s case, 40% amount is liable to be
added in the monthly income of petitioner. Thus, his monthly
income for the purpose of assessing the compensation, under
the head ‘Loss of Earning Capacity’ comes to Rs. 6425+40%
(Rs. 2570/-)= Rs. 8995/-. His functional disability has been
held to be 50%. Thus, loss on account of earning capacity per
month comes to Rs. 4497/- (50% of 8995/-).
44. Considering the age of the petitioner, which is
held to be 38 years, multiplier of 15 is to be applied, in the
present case. Thus, the entitlement of the petitioner on
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account of loss of earning capacity comes to Rs. 4497 x 12x
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15 = Rs. 8,09,460/-.
Medical Expenses
45. The learned Tribunal has awarded a sum of
Rs.1,10,900/- under the head ‘Medical Expenses and
Transportation Charges’. The said findings do not require
any interference by this Court.
Special Diet and Attendant Charges
46. Considering the period of hospitalization and
convalescence, this Court is of the view that the applicant is
entitled for a sum of Rs. 129 x 200 = Rs. 25,800/-, under the
head ‘Special Diet and Attendant Charges’, whereas, the
learned Tribunal has only awarded a sum of Rs. 7500/-. The
petitioner has specifically deposed in his examination-in-chief
that during that period, he had hired services of attendant,
as such, the amount, which has been given, under the head
of ‘Special Diet and Attendant Charges’ is liable to be
enhanced from Rs. 7500/- to Rs. 25,800/-.
47. Considering all these facts, the petitioner is held
entitled to a sum of Rs. Rs. 18,000 + Rs. 50,000/- + Rs.
32,125/- + Rs. 8,09,460/- + Rs. 1,10,900/- + Rs. 25,800/- =
Rs. 10,46,285/-.
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48. However, rate of interest, which has been awarded
High Court of H.P.
by the learned Tribunal, as 9% per annum, is liable to be
reduced, keeping in view the prevailing rate of interest of the
nationalized banks and the same is assessed @ 7.5% per
annum, from the date of filing of the petition, till the
realization of the whole amount.
49. In view of the above discussions, the appeal is
partly allowed. However, the award passed by the learned
Tribunal is modified and the amount of compensation is
enhanced from Rs. 9,20,900/- to Rs. 10,46,285/-.
50. Keeping in view the facts and circumstances,
there shall be no order so as to costs.
51. Memo of costs be prepared.
52. Pending application(s), if any, are also disposed
of.
53. Record be sent back.
(Virender Singh)
30.5.2026 Judge
(kalpana)
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