High Court of Punjab and HaryanaFAO/5635/2016allowed

Jagdeep Singh v. Rafia Mohammed & ORS

2026-04-24Mrs. Justice Sudeepti Sharma22 pages

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Whether only the operative part of the judgment is pronounced? No Whether full judgment is pronounced?

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General principles relating to compensation in injury cases

5. The provision of the Motor Vehicles Act, 1988 ('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 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. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467). 6.

The heads under which compensation is awarded in personal injury cases are the following :

Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, 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 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.

xxx xxx xxx xxx

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 assumed to be the percentage of loss of earning 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 percentage of loss of earning capacity is the same as 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 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.

20. The assessment of loss of future earnings is explained below with reference to the following Illustration 'A' : The injured, a workman, was aged 30 years and earning Rs. 3000/> per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:

a) Annual income before the accident : Rs. 36,000/>. b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/>. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (5400 x 17) :

Rs. 91,800/> Illustration 'B' : The injured was a driver aged 30 years, earning Rs. 3000/> per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows : a) Annual income prior to the accident : Rs. 36,000/> . b) Loss of future earning per annum (75% of the prior annual income) : Rs. 27000/>.

c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/> Illustration 'C' : The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows :

a) Minimum annual income he would have got if had been employed as an Engineer : Rs. 60,000/> b) Loss of future earning per annum (70% of the expected annual income) : Rs. 42000/>

c) Multiplier applicable (25 years) : 18 d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/> [Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)]. ;

National Insurance Company Ltd. Vs. Pranay Sethi & Ors. ; <

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(A) Deduction of personal and living expenses to determine multiplicand;

(B) Selection of multiplier depending on age of deceased; (C) Age of deceased on basis for applying multiplier; (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation; (E) Future prospects for all categories of persons and for different ages: with permanent job; self>employed or fixed salary. #

< Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact>centric or quantum>centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."

Erudhaya Priya Vs. State Express Tran. Corpn. Ltd. 2020 ACJ 2159,

" 7. There are three aspects which are required to be examined by us: (a) the application of multiplier of '17' instead of '18'; The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ 2700 (SC). In para 46 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age group of 15>25 years, the multiplier has to be '18' along with factoring in the extent of disability.

The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be '18' and not '17'.

(b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract below the principle set out in the Jagdish (supra) in para 8: "8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects: (i) Pain, suffering and trauma resulting from the accident; Loss of income including future income;

(iii) The inability of the victim to lead a normal life together with its amenities;

(iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life."

[emphasis supplied] The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident.

In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 11⁄2 years from August

2011 to January 2013. The nature of injuries had been set out as under:

"Nature of injury:

(i) compound fracture shaft left humerus (ii) fracture both bones left forearm (iii) compound fracture both bones right forearm (iv) fracture 3rd, 4th & 5th metacarpals right hand (v) subtrochanteric fracture right femur (vi) fracture shaft femur (vii) fracture both bones left leg We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 13 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration.

We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 61(iii), considering the age of the appellant, would be 50% of the actual salary in the present case. (c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish's case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court.

CONCLUSION

8. The result of the aforesaid is that relying on the settled principles, the calculation of compensation by the appellant, as set out in para 5 of the synopsis, would have to be adopted as follows:

Heads Awarded Loss of earning power (Rs.14,648 x 12 x 31.1/100 Rs. 9,81,978/>

Future prospects (50 per cent addition) Rs.4,90,989/> Medical expenses including transport charges, nourishment, etc.

Rs.18,46,864/> Loss of matrimonial prospects Rs.5,00,000/> Loss of comfort, loss of amenities and mental agony Rs.1,50,000/> Pain and suffering Rs.2,00,000/> Total Rs.41,69,831/> The appellant would, thus, be entitled to the compensation of Rs. 41,69,831/> as claimed along with simple interest at the rate of 9% per annum from the date of application till the date of payment. )

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"18. For the compensation of prosthetic limb(s), no amount has been awarded by the Tribunal or the High Court. It is undisputed among all parties that the appellant is entitled to be compensated towards the cost of purchase of prosthetic limb(s)

and its maintenance. The only question is, what should be the compensation which is payable.

19. Under Section 168 of the Motor Vehicles Act, 1988, the mandate is to determine a 'just compensation'. Pasayat J., speaking for this Court in State of Haryana and Another v. Jasbir Kaur and Others, (2003) 7 SCC 484 held as under:> "7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. 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 question. There can be no golden rule applicable to all 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.

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. The expression "just" denotes equitability, fairness and reasonableness, and nonE arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC [(1999) 1 SCC 90]." (Emphasis supplied)

20. As rightly held in Jasbir Kaur (supra) compensation for loss of limbs can hardly be weighed in golden scales and one cannot expect a mathematical exactitude in arriving at a just and reasonable recompense.

21. This Court in Hardeo Kaur v. Rajasthan State Transport Corpn., (1992) 2 SCC 5676 regarding assumed life span of a claimant held as under:> "6. This Court in Jyotsna Dey v. State of Assam, 1987 ACJ 172 has observed that the span of life should be taken to be 70 years in view of the high rise in life expectancy. It is specially so in the case of Army officers who are disciplined to live an active and energetic life. The courts below were not justified in taking the normal span of life to be 60 years and that of an Army officer 56 years."

(Emphasis supplied)

22. Further, this Court in Md. Shabir (supra) dealing with compensation for purchase and maintenance of prosthetic limb held as under: > "23. As per the current compensation given for the prosthetic limb and its maintenance, it would last the Appellant for only 15 years, even if we were to assume that the limb would not need to be replaced after a few years. The Appellant was only 37 years at the time of

the accident, and it would be reasonable to assume that he would live till he is 70 years old if not more. We are of the opinion that the Appellant must be compensated so that he is able to purchase three prosthetic limbs in his lifetime and is able to maintain the same at least till he has reached 70 years of age. For the Prosthetic limbs alone, the Appellant is to be awarded compensation of Rs. 7,80,000 and for maintenance of the same he is to be awarded an additional Rs. 5,00,000/>."

(Emphasis supplied)

23. What is crucial to note is, this Court fixed the assumed life span of claimant as seventy years and also awarded maintenance cost. This Court also held that average life of a prosthetic limb would be a few years.

24. Our research led us to a web hosted PowerPoint presentation titled "Prosthetic Claims > restitutio in integrum?" by Mr. Steve Love, KC. We have found the presentation, especially the case law referred to therein which we have examined, very useful for the adjudication of the present case. Are Courts Bound By The Governmental Rates Under The Notification? :E

25. In David Pinnington (supra), recognizing the entitlement of the disabled individual to opt for a prosthetic limb from a Private Centre and recognizing the legitimacy of computing that amount as a reasonable compensation, it was held: > "49. Again it seems to me to be very much a matter for the judge to assess. There was not the evidence, as there just might have been in Woodrup, to entitle the judge to indulge in the kind of speculation that Mr. Cotter urged on us. This was a case in which, bearing in mind what he is entitled to do under the 1948 Act, the judge was entitled to find that it was reasonable for Mr.

Pinnington to acquire this range of devices and renew them once every five years. He would be acting reasonably in acquiring them from a private centre which would provide him properly for his needs in what is very much a very personal affair....." (Emphasis supplied)

26. In similar vein, Lloyd Jones J. A (suing by her litigation friend Mrs H) v. Powys Local Health Board, [2007] EWHC 2996 (QB) held that if the treatment claimed by the claimant is reasonable, it is no answer for the defendant to point to cheaper options. This principle was extended to assessment of damages in respect of aids and equipment, as is clear from the following extracts from Powys (supra).

"94. The basis of assessment is the test of reasonableness as stated in Rialis v. Mitchell, (Court of Appeal, 6 July 1984) and Sowden v. Lodge [2004] EWCA Civ 1370, [2005] 1 All ER 581, [2005] 1 WLR 2129. The Claimant is entitled to damages to meet her reasonable requirements and reasonable needs arising from her injuries. In deciding what is reasonable it is necessary to consider first whether the provision chosen and claimed is reasonable and not whether, objectively, it is reasonable or whether other provision would be reasonable. Accordingly, if the treatment claimed by the Claimant is reasonable it is no answer for the Defendant to point to cheaper treatment which is also reasonable. Rialis and Sowden were concerned with the appropriate care regime. However, the principles stated in those cases apply equally to the assessment of damages in respect of aids and equipment. In determining what is required to meet the Claimant's reasonable needs it is necessary to make findings as to

the nature and extent of the Claimant's needs and then to consider whether what is proposed by the Claimant is reasonable having regard to those needs. (Massey v. Tameside and Glossop Acute Services NHS Trust [2007] EWHC 317 (QB), Teare J at para 59; Taylor v. Chesworth and MIB [2007] EWHC 1001 (QB) Ramsay J at para 84."

(Emphasis supplied)

27. Hence, we have no hesitation in rejecting the rates prescribed in the Government Notification relied upon by the Insurance Company which, in any event, are abysmally low.

28. P. Ramanatha Aiyar in his "Advanced Law Lexicon" (3rd Edition 2005) defines restitutio in integrum as follows:> "To restore parties to their original position restitution to the original condition".

Extending the principle of restitutio in integrum to cases of provision for prosthetic limbs after holding that claimants are entitled to their own choice of procuring a prosthetic limb without relying on the National Health Service, and recognizing the right of periodic replacement, it was held in Kerry Donnelly v. Fas Products Ltd 2004 S.CLR 678 UK, as under: > "41. .....She is not obliged to use the National Health Service in order to acquire a prosthesis: Law Reform (Personal Injuries) Act 1948, section 2(4). While I cannot be certain that the pursuer will in fact choose to replace her prosthesis every year, I consider that she is entitled to be put into such a position that she is able to do so. A prosthesis is a poor substitute for lost fingers but it is the only substitute that is available. The principle of restitutio in integrum applies. If it is necessary for the pursuer to succeed in recovering the

whole life cost of replacement that I find that she probably will replace the prosthesis each year by private purchase (assuming that she is placed in such a financial position as to allow her to do so), then I make that finding......"

(Emphasis supplied) The only caveat is that the claim should be reasonable. What is also significant to note is the entitlement of the claimant to replacement cost has been recognized.

29. Nearer home, in the case of Chandra Mogera (supra), Sanjay Karol J. speaking for this Court said: > "10. The appellant, on account of the amputation above knee would require a prosthetic limb. It is a fact that a prosthetic limb, which is an aid for mobility, is not permanent in nature. It generally has a limited span of usability and usually requires replacement once every 5 years in order to function effectively. The appellant was aged 29 years at the time of filing of the present appeal, and it would be reasonable to assume that he would live at least till the age of 70 years, as a conservative estimate, if not more. Therefore, he would require prosthetic replacement at an interval of every 5 years until he attains the age of 70 years..........."

11. We find that in recent cases the claim for compensation against the head of prosthetic limb has often come up for consideration before this Court. Almost in every case, no estimate for cost is provided, either as the basic cost of procurement or for periodic maintenance thereof. It is, as such we direct that henceforth whenever a claim for grant of compensation under the head of Prosthetic Limb/Artificial Limb is filed, then the same shall be

accompanied with requisite quotations from at least two or three service providers, enabling the Tribunal to make an informed assessment of the actual cost which may be incurred in the future."

(Emphasis Supplied) This Court in Chandra Mogera (supra), held that the life span as five years for an artificial limb and the age up to which compensation for artificial limb is to be computed as seventy years. Most importantly, this Court also laid down that henceforth whenever a claim for grant of compensation under the head of prosthetic limb/artificial limb is filed the same shall be accompanied with requisite quotations from at least two or three service providers enabling the Tribunal to make an informed assessment. We concur with the said view and reiterate the said holding.

30. As would be clear from the discussion hereinabove, our Court has recognized a block of five years as the reasonable replacement period for a prosthetic limb, and we have followed the same.

31. The appellant was thirty>two years in 2007. Applying an assumed life span of seventy years as the maximum for which as a standard formula compensation for prosthetic limb is awarded and calculating the life of one prosthetic limb as five years, the appellant will need seven prosthetic limbs. Insofar as the price is concerned, the appellant has claimed the 2007 price for the first block with interest @ 9 per cent. Though he has claimed for eight limbs the correct proportion to award would be seven limbs, since the amputation happened on 17.07.2009.

32. We are inclined to award, like in Md. Shabir (supra), a consolidated amount towards the price. We are inclined to grant Rs. 3,00,000/> per limb on a standard basis for seven

limbs. In view of the fact that a consolidated amount is being paid, no interest from the date of the accident is awarded. Considering that the price has been arrived at by broadly applying the case Md. Shabir (supra), which we find reasonable, we are not inclined to proceed on the basis of the notification relied upon by the Insurance Company.

33. We are also inclined to award cost of maintenance of prosthetic limb at Rs.15,000/> annually. For a block of five years, it would work out to approximately Rs. 75,000/>. We award a consolidated sum of Rs. 5,00,000/> till the assumed life span of seventy years."

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