PAPPU DEO YADAV versus NARESH KUMAR AND ORS.

[2020] 7 S.C.R. 968

[2020] 7 S.C.R.

PAPPU DEO YADAV

NARESH KUMAR AND ORS.

(Civil Appeal No. 2567 of 2020)

BSEPTEMBER 17, 2020

[L. NAGESWARA RAO, KRISHNA MURARI ANDS. RAVINDRA BHAT, JJ.]

Motor Vehicles Act, 1988

CMotor accident – Of 20 year old man who was working as adata entry operator/ typist – Disability (amputation of right upperlimb) of the victim was ascertained as 89% – Claim for compensation– Claims Tribunal assessing physical disability of the victim to be45% and taking his income to be Rs. 8000/- PM added 50% towardsfuture prospects and awarded compensation of Rs. 14,25,400/- –DHigh Court, in appeal doing away with addition to 50% towardsfuture prospects reassessed the compensation for loss of earningcapacity at Rs. 7,77,600/- – However, compensation amount wasenhanced to Rs. 14,36,600 by enhancing the compensation underother heads – Appeal to Supreme Court – Held: The disability wasEwrongly assessed as 45% – The severity of loss of limb should bejudged in relation to profession, vocation or business of the victim– There cannot be blind arithmetic formula for ready application –The claimant being data entry operator/ typist, loss of an armresulted in severe income earning impairment – However, since hestill had another arm and since is young, the extent of his disabilityFis assessed at 65% – High Court also erred in holding thatcompensation for future prospects in cases involving serious injuriesresulting in permanent disablement could not be awarded – Theclaimant is entitled to compensation for loss of future prospects @40% – Claimants assertion about earning Rs. 12,000/- PM shouldGnot have been discarded by Courts below – His income per monthis taken as Rs. 10,000/- – Considering the enhancement towardsloss of earning capacity and future prospects, compensation ismodified to Rs. 19,65,600/- in place of Rs. 7,77,600/- awarded byHigh Court – Assessment of amounts payable under other heads isupheld.H

Partly allowing the appeal, the Court

Held: 1.1 Courts should be mindful that serious injury notonly permanently imposes physical limitations and disabilities buttoo often inflicts deep mental and emotional scars upon the victim.The attendant trauma of the victim’s having to live in worldentirely different from the one she or he is born into, as an invalid,and with degrees of dependence on others, robbed of completepersonal choice or autonomy, should forever be in the judge’smind, whenever tasked to adjudge compensation claims. Severelimitations inflicted due to such injuries undermine the dignity(which is now recognized as an intrinsic component of the rightto life under Article 21) of the individual, thus depriving the personof the essence of the right to wholesome life which she or hehad lived, hitherto. From the world of the able bodied, the victimis thrust into the world of the disabled, itself most discomfitingand unsettling. If courts nit-pick and award niggardly amountsoblivious of these circumstances, there is resultant affront to theinjured victim. [Para 22][996-B-D]

1.2 This court has emphasized time and again that “justcompensation” should include all elements that would go to placethe victim in as near position as she or he was in, before theoccurrence of the accident. Whilst no amount of money or othermaterial compensation can erase the trauma, pain and sufferingthat victim undergoes after serious accident, (or replace theloss of loved one), monetary compensation is the manner knownto law, whereby society assures some measure of restitution tothose who survive, and the victims who have to face theirlives.[Para 8][977-C-D]

Santosh Devi v. National Insurance Company Limited(2012) 6 SCC 421 : [2012] 3 SCR 1178 – relied on.

2.1 The factual narrative discloses that the appellant, 20-year-old data entry operator (who had studied up to 12[th] standard)incurred permanent disability, i.e. loss of his right hand (whichwas amputated). The disability was assessed to be 89%. However,the Tribunal and the High Court re-assessed the disability to beonly 45%, on the assumption that the assessment forcompensation was to be on different basis, as the injury entailed

ABC

DEF

Aloss of only one arm. This approach is completely mechanical andentirely ignores realities. Whilst it is true that assessment of injuryof one limb or to one part may not entail permanent injury to thewhole body, the inquiry which the court has to conduct is theresultant loss which the injury entails to the earning or incomegenerating capacity of the claimant. Thus, loss of one leg toBsomeone carrying on vocation such as driving or somethingthat entails walking or constant mobility, results in severe incomegenerating impairment or its extinguishment altogether. Likewise,for one involved in job like carpenter or hairdresser, ormachinist, and an experienced one at that, loss of an arm, (moreCso functional arm) leads to near extinction of income generation.If the age of the victim is beyond 40, the scope of rehabilitationtoo diminishes. These individual factors are of crucial importancewhich are to be borne in mind while determining the extent ofpermanent disablement, for the purpose of assessment of loss ofearning capacity. [Para 13][985-C-F]D

2.2 Courts should not adopt stereotypical or myopicapproach, but instead, view the matter taking into account therealities of life, both in the assessment of the extent of disabilities,and compensation under various heads. In the present case, theloss of an arm, resulted in severe income earning impairmentEupon the appellant. As typist/data entry operator, full functioningof his hands was essential to his livelihood. The extent of hispermanent disablement was assessed at 89%; however, the HighCourt halved it to 45% on an entirely wrong application of some‘proportionate’ principle, which was illogical and is unsupportableFin law. What is to be seen, is the impact of the injury upon theincome generating capacity of the victim. The loss of limb (aleg or arm) and its severity on that account is to be judged inrelation to the profession, vocation or business of the victim;there cannot be blind arithmetic formula for ready application.

The income generating capacity of the appellant was undoubtedlyGseverely affected. Maybe, it is not to the extent of 89%, giventhat he still has the use of one arm, is young and as yet, hopefullytraining (and rehabilitating) himself adequately for some othercalling. Nevertheless, the assessment of disability cannot be 45%;it is assessed at 65% in the circumstances of this case.H[Para 20][995-A-D]

Neerupam Mohan Mathur v. New India AssuranceCompany (2013) 14 SCC 15 : [2013] 8 SCR 15; JakirHussein v. Sabir (2015) 7 SCC 252 : [2015] 2 SCR460; Anthony Alias Anthony Swamy v. ManagingDirector, K.S.R.T.C (2020) SCC OnLine SC 493; RajKumar v. Ajay Kumar (2011) 1 SCC 343 : [2010] 13SCR 179; Nagarajappa v. Divisional Manager,Oriental Insurance Company Limited (2011) 13 SCC323 : [2011] 6 SCR 70; Syed Sadiq & Ors. v. DivisionalManager, United Insurance Company Limited (2014) 2SCC 735; Arvind Kumar Mishra v. New India AssuranceCo. Ltd. (2010) 10 SCC 254 : [2010] 11 SCR 857;Mohan Soni v. Ram Avtar Tomar (2012) 2 SCC 267 :[2012] 2 SCR 921; Sandeep Khanduja v. Atul Dande(2017) 3 SCC 351 – relied on.3. The High Court clearly erred in holding thatcompensation for loss of future prospects could not be awarded.In addition to loss of future earnings (based on determinationof the income at the time of accident), the appellant is also entitledto compensation for loss of future prospects, @ 40% . Therewas no justification for the High Court to have read the previousrulings of this court, to exclude the possibility of compensationfor future prospects in accident cases involving serious injuriesresulting in permanent disablement. Such narrow reading ofPranay Sethi (2017) 16 SCC 860 is illogical, because it deniesaltogether the possibility of the living victim progressing furtherin life in accident cases - and admits such possibility of futureprospects, in case of the victim’s death. [Paras 12 and 7]

Jagdish v. Mohan & Ors. (2018) 4 SCC 571 : [2018] 3SCR 20; Parminder Singh v. New India Assurance Co.Ltd. (2019) 7 SCC 217 : [2019] 8 SCR 986; K. Suresh v.New IndiaAssurance Co. Ltd. (2012) 12 SCC 274 : [2012]11 SCR 414; Kajal v. Jagdish Chand (2020) 4 SCC413 – relied on.

*National Insurance Company Ltd. v. Pranay Sethi &Ors. (2017) 16 SCC 860; Anant s/o of Sidheshwar Dukre

972SUPREME COURT REPORTS

[2020] 7 S.C.R.

Av. Pratap s/o Zhamnnappa Lamzane & Anr. (2018) 9SCC 450 : [2018] 10 SCR 11 – referred to.

4. The courts below needlessly discounted the evidencepresented by the appellant in respect of the income earned by

him. Working in the informal sector as he did, i.e. as typist/Bdata entry operator in court premises in Delhi, his assertion aboutearning ` 12,000/- could not be discarded substantially, to the extentof bringing it down to ` 8,000/- per month. Such self employedprofessionals, it is noticeable, were not obliged to file income taxreturns for AY 2011-2012, when no levy existed for anyone earningless than ` 1,60,000/- per annum. If one takes into accountCcontemporary minimum wages for skilled workers (which wasin the range of ` 8,500/-) the realistic figure would be` 10,000/- per month. Adding future prospects at 40%, the incomeshould be taken as ` 14,000 for the purpose of calculation ofcompensation. Accordingly, this court finds that the compensationDpayable for the disability of loss of an arm (assessed at 65%) wouldbe ` 19,65,600/- (i.e., ` 14,000/- × 12 × 65% × 18) or RupeesNineteen lakhs sixty five thousand six hundred only. [Para 21][996-A]

5. The High Court’s assessment of amounts payable underEother heads (such as compensation for medical expenses,compensation for pain and suffering, compensation for specialdiet and attendant, conveyance charges, loss of amenities andenjoyment of life, disfigurement and loss of income duringtreatment), do not call for interference. In view of the aboveconclusions, the impugned judgment is hereby modified; the sumFof ` 19,65,600/- shall be substituted in place of the amount of` 7,77,600/-, considering the enhancement towards loss ofearning capacity and future prospects. [Para 23][996-D-F]

CaseLawReference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2567of 2020.

From the Judgment and Order dated 13.09.2018 of the High Courtof Delhi at New Delhi in MAC. APP. 117/2018.

Mrs. Mona K. Rajvanshi, Ms. G. Indira, Jatinder Kamra, A. K.De, Pramit Saxena, Zahid Ali and Ms. Ananya De, Advs. for the appearingparties.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The appellant questions decision of the High Court of Delhi[1].On 18.05.2012, the appellant was injured in motor accident whiletravelling to Hapur as passenger in bus, having paid the requisitefare. At about 1.30 pm when the bus reached village Sadikpur, PS-Hafizpur, Hapur, Uttar Pradesh, the driver of the offending bus (the firstrespondent) sought to overtake the bus in which the appellant wastravelling, from the wrong side, and zipped the appellant’s bus, scratchingit. This rash and negligent act caused dent in the bus where the appellantwas seated, as result of which he suffered injuries. The appellant wasremoved to Dr. Khan’s Rehan hospital and thereafter, AIIMS TraumaCenter. The appellant claimed compensation, impleading the owner, the

1 dated 13.09.2018, in M.A.C. APP. 520/ 2016

Adriver of the vehicle, and the insurer. During the course of proceedingsbefore the Motor Accident Claims Tribunal, he applied for ascertainmentof his disability. The disability report (Ex. PW-l/9 dated 01.04.2014 issuedby Pandit Madan Mohan Malviya Hospital, during the motor vehiclescompensation claim proceedings) showed that he suffered 89% disabilityin relation to his right upper limb, which had to be amputated. The reportBalso went on to say that the condition was “non progressive, not likelyto improve. Reassessment is not recommended”. first informationreport (FIR) regarding the accident was registered (FIR No. 57/12), ascase Crime No. 255/12, Hazifpur Police Station, Hapur, Uttar Pradesh,under Sections 279 and 338 of the Indian Penal Code, 1860.

C2. The appellant, at that time unmarried, was working as dataentry operator/typist at Tis Hazari Courts. Prior to the injury, he earnedan amount of 12,000 per month. He had applied for grant of compensationunder Sections 166 and 140 of the Motor Vehicles Act, 1988, (hereafter“the Act”) claiming sum of 50 lakhs with interest at the rate of 12%Dper annum against the first respondent, (the driver of the bus at the timeof the accident), the second respondent (owner of the vehicle), and thirdrespondent (the insurer). The Motor Accident Claims Tribunal (hereafterthe “Tribunal”) rejected the insurer’s objection regarding its jurisdictionand further held that the appellant had suffered serious injuries due torash and negligent driving of the respondent. It awarded compensationEin the following terms:

3. While assessing loss of earning capacity, the Tribunal took theappellant’s income to be 8000 per month, and added 50% towards futureprospects. At the time of the accident, the appellant was only 20 yearsof age. Therefore, multiplier of 18 was applied. The physical disabilitywas assessed to be 45%, by the Tribunal. The High Court, to which theHclaimant appealed (and the insurer cross appealed), revised this head of

compensation by doing away with the addition of 50% towards futureprospects, and reassessed the compensation for loss of earning capacityas 7,77,600 (8000 x 12 x 45% x 18). The total compensation wasreassessed by the High Court to be 14,36,600, after enhancing thecompensation for disfigurement, diet, attendant and conveyance, loss ofamenities and enjoyment of life, and pain and suffering. Further, an interestof 9% per annum was imposed. In reducing the amount awarded forloss of future prospects, the High Court noticed this court’s judgments inNational Insurance Company Ltd. v. Pranay Sethi & Ors.[2] andJagdish v. Mohan & Ors[3]both by three-judge benches of this court.4. The appellant argues that the impugned judgment is in materialerror, in misreading this court’s judgments in Pranay Sethi & Ors[4]whichwas later followed in Jagdish[5]by three judge Bench, which had ruledthat the benefit of future prospects should not be confined only to thosewho have permanent job and would extend to self-employed individuals,and in case of self- employed persons an addition of 40% of establishedincome should be made where the age of the victim at the time of theaccident was below 40 years. It was urged that the decision in Anant s/o of Sidheshwar Dukre v. Pratap s/o Zhamnnappa- Lamzane & Anr.[6]relied on by the High Court, did not assess future prospects. However,that per se did not preclude claims by persons incurring permanentdisablement as consequence of motor accidents, from seeking suchheads of compensation. It is urged that the High Court misread andcreated distinct category of cases where addition in income towards“future prospects” can only be given in case of death, and not for injury,which cannot be the intention of this court as no such observation ismade. It was argued that the High Court should have reassessed andnot reduced ‘the loss of future earning capacity’ of the appellant from11,66,400/- (determined by the tribunal) to 7,77,600/- on the wronglydepressed income of 8000/-. Learned counsel submitted that theassessment of monthly income should have been Rs.12,000/- and notRs.8,000/. It was submitted that the courts below ignored the fact that in2012, persons earning Rs.12, 000/- per month did not have to file income

2 (2017) 16 SCC 860.

3 (2018) 4 SCC 571

4 Supra n.2

5 Supra n.3

6 2018 (9) SCC 450

Atax returns or pay tax. The High Court further erred in assessment ofphysical permanent disability of injured as 45%, even though it was 100%.

5. Counsel for the insurer, who contested the appeal, urged thiscourt not to interfere with the impugned judgment, and stated that theassessment of compensation was made by the High Court in conformityBwith this Court’s decisions. It was highlighted that permanent disabilityof loss of one arm, cannot lead to loss of earning capacity of up to 90%and consequently, the assessment of compensation on the head of lossof earning capacity was correctly fixed at 45%. He also argued that asfar as income is concerned, although the appellant relied on theindependent testimony of lawyer (who stated that he used to pay himCabout 300/- per day), there was no proof of payment of income tax tosupport the claim that the appellant earned 12,000/- per month. Theproduction of the PAN card ipso facto did not establish income at thelevel claimed. Further, the counsel urged that the impugned judgmentcorrectly appreciated the law, and loss of alleged future earning capacityDwas turned down.

6. The principle consistently followed by this court in assessingmotor vehicle compensation claims, is to place the victim in as near aposition as she or he was in before the accident, with other compensatorydirections for loss of amenities and other payments. These generalEprinciples have been stated and reiterated in several decisions.[7]

7. Two questions arise for consideration: one, whether in cases ofpermanent disablement incurred as result of motor accident, theclaimant can seek, apart from compensation for future loss of income,

7 Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India InsuranceFCo. Ltd., (2011) 10 SCC 683. This court referred to the pronouncements in R.D.Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551; Nizam’s Institute ofMedical Sciences v. Prasanth S. Dhananka (2009) 6 SCC 1; Reshma Kumari v. MadanMohan (2009) 13 SCC 422; Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. GovindYadav spelt out these principles by stating that the courts should,“in determining the quantum of compensation payable to the victims of accident,Gwho are disabled either permanently or temporarily. If the victim of the accident sufferspermanent disability, then efforts should always be made to award adequatecompensation not only for the physical injury and treatment, but also for the loss ofearning and his inability to lead normal life and enjoy amenities, which he would haveenjoyed but for the disability caused due to the accident.”

These decisions were also followed in ICICI Lombard General Insurance Co. Ltd. v.HAjay Kumar Mohanty, (2018) 3 SCC 686.

amounts for future prospects too; and two, the extent of disability. Onthe first question, the High Court no doubt, is technically correct in holdingthat Pranay Sethi[8] involved assessment of compensation in case wherethe victim died. However, it went wrong in saying that later, the three-judge bench decision in Jagdish[9]was not binding, but rather that thesubsequent decision in Anant[10]to the extent that it did not awardcompensation for future prospects, was binding. This court is of theopinion that there was no justification for the High Court to have readthe previous rulings of this court, to exclude the possibility of compensationfor future prospects in accident cases involving serious injuries resultingin permanent disablement. Such narrow reading of Pranay Sethi[11] isillogical, because it denies altogether the possibility of the living victimprogressing further in life in accident cases - and admits such possibilityof future prospects, in case of the victim’s death.

8. This court has emphasized time and again that “justcompensation” should include all elements that would go to place thevictim in as near position as she or he was in, before the occurrence ofthe accident. Whilst no amount of money or other material compensationcan erase the trauma, pain and suffering that victim undergoes after aserious accident, (or replace the loss of loved one), monetarycompensation is the manner known to law, whereby society assuressome measure of restitution to those who survive, and the victims whohave to face their lives. In Santosh Devi v. National InsuranceCompany Limited[12], this Court held that:

“14. We find it extremely difficult to fathom any rationale forthe observation made in paragraph 24 of the judgment inSarla Verma’s case that where the deceased was self-employedor was on fixed salary without provision for annualincrement, etc., the Courts will usually take only the actualincome at the time of death and departure from this ruleshould be made only in rare and exceptional cases involvingspecial circumstances. In our view, it will be nave to say thatthe wages or total emoluments/income of person who is self-employed or who is employed on fixed salary without

8 Supra n.29Supra n.3

10 Supra n.6

11 Supra n.2

12 (2012) 6 SCC 421

[2020] 7 S.C.R.

provision for annual increment, etc., would remain the samethroughout his life.

15. The rise in the cost of living affects everyone across theboard. It does not make any distinction between rich and poor.As matter of fact, the effect of rise in prices which directlyimpacts the cost of living is minimal on the rich and maximumon those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore,they put extra efforts to generate additional income necessaryfor sustaining their families.

16. The salaries of those employed under the Central andState Governments and their agencies/instrumentalities havebeen revised from time to time to provide cushion againstthe rising prices and provisions have been made for providingsecurity to the families of the deceased employees. The salariesof those employed in private sectors have also increasedmanifold. Till about two decades ago, nobody could haveimagined that salary of Class IV employee of the Governmentwould be in five figures and total emoluments of those in higherechelons of service will cross the figure of rupees one lac.

17. Although, the wages/income of those employed inEunorganized sectors has not registered correspondingincrease and has not kept pace with the increase in the salariesof the Government employees and those employed in privatesectors but it cannot be denied that there has been incrementalenhancement in the income of those who are self-employedFand even those engaged on daily basis, monthly basis or evenseasonal basis. We can take judicial notice of the fact thatwith view to meet the challenges posed by high cost of living,the persons falling in the latter category periodically increasethe cost of their labour. In this context, it may be useful togive an example of tailor who earns his livelihood byGstitching cloths. If the cost of living increases and the pricesof essentials go up, it is but natural for him to increase thecost of his labour. So will be the cases of ordinary skilled andunskilled labour, like, barber, blacksmith, cobbler, mason etc.

18. Therefore, we do not think that while making theobservations in the last three lines of paragraph 24 of Sarla

Verma’s judgment, the Court had intended to lay down anabsolute rule that there will be no addition in the income of aperson who is self-employed or who is paid fixed wages.Rather, it would be reasonable to say that person who isself-employed or is engaged on fixed wages will also get 30per cent increase in his total income over period of timeand if he / she becomes victim of accident then the sameformula deserves to be applied for calculating the amount ofcompensation.”

9. In Jagdish[13] the victim, carpenter, suffered permanentdisablement, and his claim for compensation including for loss of futureprospects was considered by three-judge bench (which included,incidentally, the judges who had decided Pranay Sethi[14]). This courtheld that:

“13. In the judgment of the Constitution Bench in PranaySethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017)16 SCC 680], this Court has held that the benefit of futureprospects should not be confined only to those who have apermanent job and would extend to self-employed individuals.In the case of self-employed person, an addition of 40% ofthe established income should be made where the age of thevictim at the time of the accident was below 40 years. Hence,in the present case, the appellant would be entitled to anenhancement of Rs 2400 towards loss of future prospects.14. In making the computation in the present case, the courtmust be mindful of the fact that the appellant has suffered aserious disability in which he has suffered loss of the use ofboth his hands. For person engaged in manual activities, itrequires no stretch of imagination to understand that lossof hands is complete deprivation of the ability to earn.Nothing—at least in the facts of this case—can restore losthands. But the measure of compensation must reflect genuineattempt of the law to restore the dignity of the being. Ouryardsticks of compensation should not be so abysmal as tolead one to question whether our law values human life. If itdoes, as it must, it must provide realistic recompense for the

13 Supra.n.3

14 Supra n.2

pain of loss and the trauma of suffering. Awards ofcompensation are not law’s doles. In discourse of rights,they constitute entitlements under law. Our conversationsabout law must shift from paternalistic subordination of theindividual to an assertion of enforceable rights as intrinsicto human dignity.

15. The Tribunal has noted that the appellant is unable toeven eat or to attend to visit to the toilet without the assistanceof an attendant. In this background, it would be denial ofjustice to compute the disability at 90%. The disability isindeed total. Having regard to the age of the appellant, theCTribunal applied multiplier of 18. In the circumstances, thecompensation payable to the appellant on account of the lossof income, including future prospects, would be Rs 18,14,400.In addition to this amount, the appellant should be grantedan amount of Rs 2 lakhs on account of pain, suffering andDloss of amenities. The amount awarded by the Tribunal towardsmedical expenses (Rs 98,908); for extra nourishment (Rs25,000) and for attendant’s expenses (Rs 1 lakh) ismaintained. The Tribunal has declined to award any amounttowards future treatment. The appellant should be allowedan amount of Rs 3 lakhs towards future medical expenses.EThe appellant is thus awarded total sum of Rs 25,38,308 byway of compensation. The appellant would be entitled tointerest at the rate of 9% p.a. on the compensation from thedate of the filing of the claim petition. The liability to paycompensation has been fastened by the Tribunal and by the

High Court on the insurer, owner and driver jointly andseverally which is affirmed. The amount shall be depositedbefore the Tribunal within period of 6 weeks from todayand shall be paid over to the appellant upon properidentification.”

G10. The recent decision in Parminder Singh v. New IndiaAssurance Co. Ltd[15], involved an accident victim who underwent surgeryfor hemiplegia[16]. According to the treating medic, he could not work asa labourer or perform any agricultural work, or work as driver (as he

15 (2019) 7 SCC 217H16 Weakness of one half of the body on the left side; in this case, caused by an accident.

was wont to); the assessment of his disability was at 75%, and of apermanent nature. The court held that:

“5.2. On the basis of the affidavit filed by the employer of theappellant, we accept that the income of the appellant was Rs10,000 p.m. at the time of the accident, for the purpose ofcomputing the compensation payable to him.

5.1. The appellant has however, produced an affidavit by hisemployer in this Court. As per the said affidavit, the appellantwas earning Rs 10,000 p.m. at the time of the accident.

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 15,000p.m.

5.4. The appellant was 23 years old at the time when theaccident occurred. Applying the multiplier of 18, the loss offuture earnings suffered by the appellant would work out toRs 15,000 × 12 × 18 = Rs 32,40,000.

****************************

5.7. In K. Suresh v. New India Assurance Co. Ltd (2012) 12SCC 274, this Court held that[17]:

“10. It is noteworthy to state that an adjudicating authority,while determining the quantum of compensation, has tokeep in view the sufferings of the injured person whichwould include his inability to lead full life, his incapacityto enjoy the normal amenities which he would have enjoyedbut for the injuries and his ability to earn as much as heused to earn or could have earned. Hence, whilecomputing compensation the approach of the Tribunal ora court has to be broad-based. Needless to say, it wouldinvolve some guesswork as there cannot be anymathematical exactitude or precise formula to determinethe quantum of compensation. In determination of

compensation the fundamental criterion of “justcompensation” should be inhered.”******** *****************

5.9. In the present case, it is an admitted position that it is notpossible for the appellant to get employed as driver, or doany kind of manual labour, or engage in any agriculturaloperations whatsoever, for his sustenance. In suchcircumstances, the High Court has rightly assessed theappellant’s functional disability at 100% insofar as his lossof earning capacity is concerned. The appellant is, therefore,awarded Rs 32,40,000 towards loss of earning capacity.”

11. Yet later and more recently in an accident case, which tragicallyleft in its wake young girl in life-long state of paraplegia, this court, inKajal v. Jagdish Chand,[18] reiterated that in addition to loss of earnings,compensation for future prospects too could be factored in, and observedthat:

“14. In Concord of India Insurance Co. Ltd. v. Nirmala Devi[Concord of India Insurance Co. Ltd. v. Nirmala Devi, (1979)4 SCC 365 : 1979 SCC (Cri) 996 : 1980 ACJ 55] , this Courtheld : (SCC p. 366, para 2)

“2. … the determination of the quantum must be liberal,not niggardly since the law values life and limb in freecountry in generous scales.”

15. In R.D. Hattangadi v. Pest Control (India) (P) Ltd. [R.D.Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCCF551 : 1995 SCC (Cri) 250], dealing with the different headsof compensation in injury cases this Court held thus : (SCCp. 556, para 9)

“9. Broadly speaking while fixing the amount of compensationpayable to victim of an accident, the damages have to beGassessed separately as pecuniary damages and specialdamages. Pecuniary damages are those which the victim hasactually incurred and which are capable of being calculatedin terms of money; whereas non-pecuniary damages are thosewhich are incapable of being assessed by arithmetical

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

16. In Raj Kumar v. Ajay Kumar [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 whichcompensation is to be awarded for personal injuries : (SCCp. 348, para 6)

“6. The heads under which compensation is awarded inpersonal injury cases are the following:

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation,medicines, transportation, nourishing food, andmiscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injuredwould 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 permanentdisability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as aconsequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

ABC

[2020] 7 S.C.R.

(vi) Loss of expectation of life (shortening of normallongevity).

In routine personal injury cases, compensation will beawarded only under heads (i), (ii)(a) and (iv). It is only inserious cases of injury, where there is specific medicalevidence corroborating the evidence of the claimant, thatcompensation will be granted under any of the heads (ii)(b),(iii), (v) and (vi) relating to loss of future earnings on accountof permanent disability, future medical expenses, loss ofamenities (and/or loss of prospects of marriage) and loss ofexpectation of life.”

17. In K. Suresh v. New India Assurance Co. Ltd. [K. Sureshv. New India Assurance Co. Ltd., (2012) 12 SCC 274 : (2013)2 SCC (Civ) 279 : (2013) 4 SCC (Cri) 638] , this Court heldas follows : (SCC p. 276, para 2)

“2. … There cannot be actual compensation for anguishof the heart or for mental tribulations. The quintessentialitylies in the pragmatic computation of the loss sustainedwhich 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 grantof “just compensation”. Thus, it becomes challenge fora court of law to determine “just compensation” which isneither bonanza nor windfall, and simultaneously,should not be pittance.”

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Loss of earnings

20. Both the courts below have held that since the girl wasa young child of 12 years only notional income of Rs15,000 p.a. can be taken into consideration. We do notthink this is proper way of assessing the future loss ofincome. This young girl after studying could have workedand would have earned much more than Rs 15,000 p.a.Each case has to be decided on its own evidence but takingnotional 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 skilled workman isRs 4846 per month. In our opinion, this would be theminimum amount which she would have earned onbecoming major. Adding 40% for the future prospects, itworks to be Rs 6784.40 per month i.e. 81,412.80 p.a.Applying the multiplier of 18, it works out to Rs14,65,430.40, which is rounded off to Rs 14,66,000.”

12. In view of the above decisive rulings of this court, the HighCourt clearly erred in holding that compensation for loss of futureprospects could not be awarded. In addition to loss of future earnings(based on determination of the income at the time of accident), theappellant is also entitled to compensation for loss of future prospects, @40% (following the Pranay Sethi principle).

13. The factual narrative discloses that the appellant, 20-year-old data entry operator (who had studied up to 12[th] standard) incurredpermanent disability, i.e. loss of his right hand (which was amputated).The disability was assessed to be 89%. However, the tribunal and theHigh Court re-assessed the disability to be only 45%, on the assumptionthat the assessment for compensation was to be on different basis, asthe injury entailed loss of only one arm. This approach, in the opinion ofthis court, is completely mechanical and entirely ignores realities. Whilstit is true that assessment of injury of one limb or to one part may notentail permanent injury to the whole body, the inquiry which the courthas to conduct is the resultant loss which the injury entails to the earningor income generating capacity of the claimant. Thus, loss of one leg tosomeone carrying on vocation such as driving or something that entailswalking or constant mobility, results in severe income generatingimpairment or its extinguishment altogether. Likewise, for one involvedin job like carpenter or hairdresser, or machinist, and an experiencedone at that, loss of an arm, (more so functional arm) leads to nearextinction of income generation. If the age of the victim is beyond 40,the scope of rehabilitation too diminishes. These individual factors are ofcrucial importance which are to be borne in mind while determining theextent of permanent disablement, for the purpose of assessment of lossof earning capacity.

14. In Neerupam Mohan Mathur v. New India AssuranceCompany[19], this court considered the case of victim, whose injury19 (2013) 14 SCC 15

Awas assessed to 70% as loss of earning capacity for amputation of thearm; he was postgraduate diploma holder in mechanical engineering,32 years of age and earning about 3000/- per month. This court held,approving the High Court’s order (which had adopted the formula fromthe Workmen’s Compensation Act, to determine 70% for the purpose ofdeciding loss of earning capacity) as follows:B

“12. In the present case, the percentage of permanent disabilityhas not been expressed by the doctors with reference to thefull body or with reference to particular limb. However, it isnot in dispute that the claimant suffered such permanentdisability as result of injuries that he is not in position ofCdoing the specialised job of designing, refrigeration and airconditioning. For the said reason, the claimant’s services wereterminated by his employer but that does not mean that theclaimant is not capable to do any other job including thedesk job. Having qualification of BSc degree andDpostgraduate diploma in Mechanical Engineering, he canperform any job where application of mind is required thanany physical work.

13. In view of the forgoing discussion we find no groundsmade out to interfere with the finding of the High Court whichEdetermined the percentage of loss of earning capacity to 70%adopting the percentage of loss of earning capacity as perthe Workmen’s Compensation Act. The total loss of incomewas thus rightly calculated by the High Court at Rs 6, 04,800.”

15. Later, in another judgment, i.e. Jakir Hussein v. Sabir[20]thisFcourt had to consider the correctness of compensation assessmentbased on the High Court’s analysis of the injury to the victim (a driverwho suffered permanent injury to his arm, impairing movement as wellas the wrist, which rendered him incapable of driving any vehicle). TheHigh Court had assessed permanent disablement at 30% though thedoctor had certified it to be 55%. This court, reversing the High CourtGorder, observed inter alia that:“… Due to this injury, the doctor has stated that the appellanthad great difficulty to move his shoulder, wrist and elbowand pus was coming out of the injury even two years after

H20 (2015) 7 SCC 252

the accident and the treatment was taken by him. The doctorfurther stated in his evidence that the appellant got delayedjoined fracture in the humerus bone of his right hand withwiring and nailing and that he had suffered 55% disabilityand cannot drive any motor vehicle in future due to the same.He was once again operated upon during the pendency ofthe appeal before the High Court and he was hospitalisedfor 10 days. The appellant was present in person in the HighCourt and it was observed and noticed by the High Courtthat the right hand of the appellant was completely crushedand deformed. In view of the doctor’s evidence in this case,the Tribunal and the High Court have erroneously taken theextent of permanent disability at 30% and 55%, respectivelyfor the calculation of amount towards the loss of futureearning capacity. No doubt, the doctor has assessed thepermanent disability of the appellant at 55%. However, it isimportant to consider the relevant fact, namely, that theappellant is driver and driving the motor vehicle is the onlymeans of livelihood for himself as well as the members of hisfamily. Further, it is very crucial to note that the High Courthas clearly observed that his right hand was completelycrushed and deformed.

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16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343, thisCourt specifically gave the illustration of driver who haspermanent disablement of hand and stated that the loss offuture earnings capacity would be virtually 100%. Therefore,clearly when it comes to loss of earning due to permanentdisability, the same may be treated as 100% loss caused tothe appellant since he will never be able to work as driveragain. The contention of the respondent Insurance Companythat the appellant could take up any other alternativeemployment is no justification to avoid their vicarious liability.Hence, the loss of earning is determined by us at Rs 54,000per annum. Thus, by applying the appropriate multiplier asper the principles laid down by this Court in Sarla Verma v.DTC [(2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2

ASCC (Cri) 1002], the total loss of future earnings of theappellant will be at Rs 54,000 × 16 = Rs 8,64,000.”

16. Recently, in Anthony Alias Anthony Swamy v. ManagingDirector, K.S.R.T.C[21]where the victim was painter by profession, athree-judge bench had followed Raj Kumar v. Ajay Kumar[22] andNagarajappa v. Divisional Manager, Oriental Insurance CompanyBLimited[23]. The High Court had assessed the injury to be 25% permanentdisability, although the treating doctor had said that the injury incurred bythe bus passenger (who was earning 9000/- per month) was 75% of theleft leg and 37.5% for the whole body. In Raj Kumar[24], the physicaldisability of the upper limb was determined as 68% in proportion to 22-C23% of the whole-body. The High Court had assessed the injury as 25%and granted compensation. However, this court assessed the injury onthe basis that the disability was 75%, stating as follows:“9. PW.3 had assessed the physical functional disability ofthe left leg of the appellant at 75% and total body disabilityDat 37.5%. The High Court has considered it proper to assessthe physical disability at 25% of the whole body only. Thereis no discussion for this reduction in percentage, much lessany consideration of the nature of permanent functionaldisability suffered by the appellant. The extent of physicalfunctional disability, in the facts of the case has to beEconsidered in manner so as to grant just and propercompensation to the appellant towards loss of future earning.The earning capacity of the appellant as on the date of theaccident stands completely negated and not reduced. He hasbeen rendered permanently incapable of working as painteror do any manual work. Compensation for loss of futureFearning, therefore has to be proper and just to enable him tolive life of dignity and not compensation which is elusive. Ifthe 75% physical disability has rendered the appellantpermanently disabled from pursuing his normal vocation orany similar work, it is difficult to comprehend the grant ofGcompensation to him in ratio to the disability to the wholebody. The appellant is therefore held entitled to compensationfor loss of future earning based on his 75% permanent physical

21 (2020) SCC OnLine SC 493.

22 (2011) 1 SCC 343

23 (2011) 13 SCC 323.

H24 Supra n.22

functional disability recalculated with the salary ofRs. 5,500/- with multiplier of 14 at Rs. 6,93,000/-.”

17. The question of amount of compensation payable to onesuffering injury as result of motor vehicle accident was considered inSyed Sadiq & Ors. v. Divisional Manager, United InsuranceCompany Limited [25], when this Court had to apply the correct standardfor awarding compensation for loss of future prospects for vegetablevendor, whose right leg had to be amputated, as result of motoraccident. The High Court had considered the disability to be 65%. Thiscourt held as follows:

“7. Further, the appellant claims that he was working as avegetable vendor. It is true that vegetable vendor might notrequire mobility to the extent that he sells vegetables at oneplace. However, the occupation of vegetable vending is notconfined to selling vegetables from particular location. Itrather involves procuring vegetables from the whole-salemarket or the farmers and then selling it off in the retail market.This often involves selling vegetables in the cart which requires100% mobility. But even by conservative approach, if wepresume that the vegetable vending by the appellant/claimantinvolved selling vegetables from one place, the claimant wouldrequire assistance with his mobility in bringing vegetables tothe market place which otherwise would be extremely difficultfor him with an amputated leg. We are required to be sensitivewhile dealing with manual labour cases where loss of limb isoften equivalent to loss of livelihood. Yet, considering thatthe appellant/claimant is still capable to fend for his livelihoodonce he is brought in the market place, we determine thedisability at 85% to determine the loss of income.

8. The appellant/claimant in his appeal further claimed thathe had been earning [pic]10,000/- p.m. by doing vegetablevending work. The High Court however, considered the lossof income at [pic]3500/- p.m. considering that the claimantdid not produce any document to establish his loss of income.It is difficult for us to convince ourselves as to how labour

EFG

Ainvolved in an unorganized sector doing his own business isexpected to produce documents to prove his monthly income.”

18. In Arvind Kumar Mishra v. New India Assurance Co. Ltd[26],the appellant at the time of accident was final year engineering(Mechanical) degree student in reputed college. He was brilliantBstudent and had passed all his semester examinations with distinction.He suffered grievous injuries and remained in coma for about twomonths; his studies were disrupted as he was moved to different hospitalsfor surgeries. For many months, his condition remained serious; his righthand was amputated and vision seriously affected. This court acceptedhis claim and held that he was permanently disabled to the extent ofC70%. In Mohan Soni v. Ram Avtar Tomar[27]again case of injuryentailing loss of leg, the court held that medical evidence of the extentof disability should not be mechanically scaled down:

“8. On hearing the counsel for the parties and on goingthrough the materials on record, we are of the view that bothDthe Tribunal and the High Court were in error in peggingdown the disability of the appellant to 50% with reference toSchedule I of the Workmen’s Compensation Act, 1923. In thecontext of loss of future earning, any physical disabilityresulting from an accident has to be judged with reference tothe nature of work being performed by the person sufferingEthe disability. This is the basic premise and once that is grasped,it clearly follows that the same injury or loss may affect twodifferent persons in different ways. Take the case of marginalfarmer who does his cultivation work himself and ploughshis land with his own two hands; or the puller of cycle-Frickshaw, one of the main means of transport in hundreds ofsmall towns all over the country. The loss of one of the legseither to the marginal farmer or the cycle-rickshaw-pullerwould be the end of the road insofar as their earning capacityis concerned. But in case of person engaged in some kindof desk work in an office, the loss of leg may not have theGsame effect. The loss of leg (or for that matter the loss ofany limb) to anyone is bound to have very traumatic effectson one’s personal, family or social life but the loss of one ofthe legs to person working in the office would not interfere

26 (2010) 10 SCC 254H27 (2012) 2 SCC 267 at page 272

with his work/earning capacity in the same degree as in thecase of marginal farmer or cycle-rickshaw-puller.

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10. This Court in K. Janardhan case [(2008) 8 SCC 518 :(2008) 2 SCC (L&S) 733] , set aside the High Court judgmentand held that the tanker driver had suffered 100% disabilityand incapacity in earning his keep as tanker driver as hisright leg was amputated from the knee and, accordingly,restored the order passed by the Commissioner of Workmen’sCompensation. In K. Janardhan [(2008) 8 SCC 518 : (2008)2 SCC (L&S) 733] this Court also referred to and relied uponan earlier decision of the Court in Pratap Narain Singh Deov. Srinivas Sabata [(1976) 1 SCC 289 : 1976 SCC (L&S) 52]in which carpenter who suffered an amputation of his leftarm from the elbow was held to have suffered complete lossof his earning capacity.

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13. Any scaling down of the compensation should requiresomething more tangible than hypothetical conjecture thatnotwithstanding the disability, the victim could make up forthe loss of income by changing his vocation or by adoptinganother means of livelihood. The party advocating for loweramount of compensation for that reason must plead and showbefore the Tribunal that the victim enjoyed some legalprotection (as in the case of persons covered by the Personswith Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Act, 1995) or in case of the vastmultitude who earn their livelihood in the unorganised sectorby leading cogent evidence that the victim had in fact changedhis vocation or the means of his livelihood and by virtue ofsuch change he was deriving certain income.

14. The loss of earning capacity of the appellant, accordingto us, may be as high as 100% but in no case it would be lessthan 90%. We, accordingly, find and hold that thecompensation for the loss of the appellant’s future earningsmust be computed on that basis. On calculation on that basis,the amount of compensation would come to Rs 3,56,400 andafter addition of sum of Rs 30,000 and Rs 15,000 the total

Aamount would be Rs 4,01,400. The additional compensationamount would carry interest at the rate of 9% per annumfrom the date of filing of the claim petition till the date ofpayment. The additional amount of compensation along withinterest should be paid to the appellant without delay and notlater than three months from today.”B

19. One more decision, Sandeep Khanduja v. Atul Dande[28] toohad dealt with the precise aspect of assessing the quantum of permanentdisablement. The victim was aged about 30 years, working as charteredaccountant for various institutions for which he was paid professionalfees. The injuries suffered by him resulted in severe impairment ofCmovement; he had problems in climbing stairs, back trouble while sleeping,etc. rod was implanted in his leg. He suffered 70% permanent disability,and mental and physical agony. This court enhanced the compensation,observing the proper manner to calculate the extent of disability:

“9. The percentage of permanent disability is expressed byDthe doctors with reference to the whole body, or more oftenthan not, with reference to particular limb. When disabilitycertificate states that the injured has suffered permanentdisability to an extent of 45% of the left lower limb, it is notthe same as 45% permanent disability with reference to theEwhole body. The extent of disability of limb (or part of thebody) expressed in terms of percentage of the total functionsof that limb, obviously cannot be assumed to be the extent ofdisability of the whole body. If there is 60% permanentdisability of the right hand and 80% permanent disability ofleft leg, it does not mean that the extent of permanent disabilityFwith reference to the whole body is 140% (that is 80% plus60%). If different parts of the body have suffered differentpercentages of disabilities, the sum total thereof expressed interms of the permanent disability with reference to the wholebody cannot obviously exceed 100%.

G10. Where the claimant suffers permanent disability as aresult of injuries, the assessment of compensation under thehead of loss of future earnings would depend upon the effectand impact of such permanent disability on his earningcapacity. The Tribunal should not mechanically apply theH28 2017 (3) SCC 351

percentage of permanent disability as the percentage ofeconomic loss or loss of earning capacity. In most of the cases,the percentage of economic loss, that is, the percentage ofloss of earning capacity, arising from permanent disabilitywill be different from the percentage of permanent disability.Some Tribunals wrongly assume that in all cases, particularextent (percentage) of permanent disability would result in acorresponding loss of earning capacity, and consequently, ifthe evidence produced show 45% as the permanent disability,will hold that there is 45% loss of future earning capacity. Inmost of the cases, equating the extent (percentage) of loss ofearning capacity to the extent (percentage) of permanentdisability will result in award of either too low or too high acompensation.

11. What requires to be assessed by the Tribunal is the effectof the permanent disability on the earning capacity of theinjured; and after assessing the loss of earning capacity interms of percentage of the income, it has to be quantified interms of money, to arrive at the future loss of earnings (byapplying the standard multiplier method used to determineloss of dependency). We may however note that in some cases,on appreciation of evidence and assessment, the Tribunal mayfind that the percentage of loss of earning capacity as resultof the permanent disability, is approximately the same as thepercentage of permanent disability in which case, of course,the Tribunal will adopt the said percentage for determinationof compensation.” The crucial factor which has to be takeninto consideration, thus, is to assess as to whether thepermanent disability has any adverse effect on the earningcapacity of the injured. In this sense, the MACT approachedthe issue in right direction by taking into consideration theaforesaid test. However, we feel that the conclusion of theMACT, on the application of the aforesaid test, is erroneous.A very myopic view is taken by the MACT in taking the viewthat 70% permanent disability suffered by the appellant wouldnot impact the earning capacity of the appellant.… personwho is engaged and cannot freely move to attend to his dutiesmay not be able to match the earning in comparison with theone who is healthy and bodily abled. Movements of the

ABC

appellant have been restricted to large extent and that tooat young age. Though the High Court recognised this, itdid not go forward to apply the principle of multiplier. We areof the opinion that in case like this and having regard tothe injuries suffered by the appellant, there is definite lossof earning capacity and it calls for grant of compensationwith the adoption of multiplier method, as held by this Courtin Yadava Kumar v Divisional Manager, National InsuranceCo. Ltd [2010 (10) SCC 341]:

“9. We do not intend to review in detail state ofauthorities in relation to assessment of all damages forCpersonal injury. Suffice it to say that the basis of assessmentof all damages for personal injury is compensation. The wholeidea is to put the claimant in the same position as he wasinsofar as money can. Perfect compensation is hardly possiblebut one has to keep in mind that the victim has done no wrong;Dhe has suffered at the hands of the wrongdoer and the courtmust take care to give him full and fair compensation for thathe had suffered.

10. In some cases for personal injury, the claim could be inrespect of lifetime’s earnings lost because, though he will live,he cannot earn his living. In others, the claim may be made

for partial loss of earnings. Each case has to be consideredin the light of its own facts and at the end, one must askwhether the sum awarded is fair and reasonable sum. Theconventional basis of assessing compensation in personalinjury cases—and that is now recognised mode as to the

proper measure of compensation—is taking an appropriatemultiplier of an appropriate multiplicand.” In that case, afterfollowing the judgment in Kerala SRTC v. Susamma Thomas(1994) 2 SCC 176, the Court chose to apply multiplier of 18keeping in view the age of the victim, who as 25 years at theGtime of the accident.

In the instant case, the MACT had quantified the income of theappellant at 10,000, i.e. 1,20,000 per annum. Going by the ageof the appellant at the time of the accident, multiplier of 17 wouldbe admissible. Keeping in view that the permanent disability isH70%, the compensation under this head would be worked out at

14,28,000. The MACT had awarded compensation of 70,000 forpermanent disability, which stands enhanced to 14,28,000. Formental and physical agony and frustration and disappointmenttowards life, the MACT has awarded sum of 30,000, which weenhance to 1,30,000.”

20. Courts should not adopt stereotypical or myopic approach,but instead, view the matter taking into account the realities of life, bothin the assessment of the extent of disabilities, and compensation undervarious heads. In the present case, the loss of an arm, in the opinion ofthe court, resulted in severe income earning impairment upon theappellant. As typist/data entry operator, full functioning of his handswas essential to his livelihood. The extent of his permanent disablementwas assessed at 89%; however, the High Court halved it to 45% on anentirely wrong application of some ‘proportionate’ principle, which wasillogical and is unsupportable in law. What is to be seen, as emphasizedby decision after decision, is the impact of the injury upon the incomegenerating capacity of the victim. The loss of limb (a leg or arm) andits severity on that account is to be judged in relation to the profession,vocation or business of the victim; there cannot be blind arithmeticformula for ready application. On an overview of the principles outlinedin the previous decisions, it is apparent that the income generating capacityof the appellant was undoubtedly severely affected. Maybe, it is not tothe extent of 89%, given that he still has the use of one arm, is young andas yet, hopefully training (and rehabilitating) himself adequately for someother calling. Nevertheless, the assessment of disability cannot be 45%;it is assessed at 65% in the circumstances of this case.

21. This court is also of the opinion that the courts below needlesslydiscounted the evidence presented by the appellant in respect of theincome earned by him. Working in the informal sector as he did, i.e. as atypist/data entry operator in court premises in Delhi, his assertion aboutearning 12,000/- could not be discarded substantially, to the extent ofbringing it down to 8,000/- per month. Such self employed professionals,it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than 1,60,000/- perannum.[29] The advocate who deposed about the earnings of the appellantwas believed to the extent that the tribunal fixed the appellant’s monthly

29 First Schedule, Finance Act, 2011.

30 By applying the ratio in Pranay Sethi.

Aearnings at 8,000/-. If one takes into account contemporary minimumwages for skilled workers (which was in the range of 8,500/-) the realisticfigure would be 10,000/- per month. Adding future prospects at 40%[30],the income should be taken as 14,000 for the purpose of calculation ofcompensation. Accordingly, this court finds that the compensation payablefor the disability of loss of an arm (assessed at 65%) would beB 19,65,600/- (i.e., 14,000/- x 12 x 65% x 18) or Rupees Nineteenlakhs sixty five thousand six hundred only.

22. In parting, it needs to be underlined that Courts should bemindful that serious injury not only permanently imposes physicallimitations and disabilities but too often inflicts deep mental and emotionalCscars upon the victim. The attendant trauma of the victim’s having tolive in world entirely different from the one she or he is born into, as aninvalid, and with degrees of dependence on others, robbed of completepersonal choice or autonomy, should forever be in the judge’s mind,whenever tasked to adjudge compensation claims. Severe limitationsDinflicted due to such injuries undermine the dignity (which is nowrecognized as an intrinsic component of the right to life under Article 21)of the individual, thus depriving the person of the essence of the right toa wholesome life which she or he had lived, hitherto. From the world ofthe able bodied, the victim is thrust into the world of the disabled, itselfmost discomfiting and unsettling. If courts nit-pick and award niggardlyEamounts oblivious of these circumstances, there is resultant affront tothe injured victim.

23. The High Court’s assessment of amounts payable under otherheads (such as compensation for medical expenses, compensation forpain and suffering, compensation for special diet and attendant,Fconveyance charges, loss of amenities and enjoyment of life,disfigurement and loss of income during treatment), do not call forinterference. In view of the above conclusions, the impugned judgmentis hereby modified; the sum of 19,65,600/- shall be substituted in placeof the amount of 7,77,600/-, considering the enhancement towards lossGof earning capacity and future prospects.

24. The appeal is partly allowed; the impugned judgment standsmodified in the above terms. There shall be no order on costs.

Kalpana K. TripathyH