Bharti Axa General Insurance Company Limited v. Dharminder Singh And ORS

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH (i) FAO-16232-2018 (O&M) Bharti AXA General Insurance Company Limited ...Appellant

VERSUS

Dharminder Singh and another

...Respondents

(ii) XOBJC-9-2019 Bharti AXA General Insurance Company Limited ...Appellant

VERSUS

Dharminder Singh and another ...Cross-objector-Respondent No.1 Date of Decision: July 24, 2024

CORAM:

HON'BLE MRS. JUSTICE ARCHANA PURI

Present:

Mr.Sachin Ohri and Mr.Sachin Gupta, Advocates for the appellant.

Mr.Ashwani Arora, Advocate for respondent No.1/cross-objector.

**** ARCHANA PURI, J.

The present appeal has been filed by the appellant-Bharti AXA General Insurance Company Limited, thereby, assailing the Award dated 16.07.2018 passed by learned Motor Accident Claims Tribunal, qua extent of the compensation awarded to claimant-Dharminder Singh, on account of

-2injuries sustained by him, in a motor vehicular accident, which took place on 20.02.2016. In the aforesaid appeal, cross-objection i.e. XOBJC-9-2019 has been filed by the claimant, thereby, seeking enhancement of the compensation awarded.

For the convenience of discussion, the parties are referred to, as making appearance before learned Tribunal.

So far as, the factum and manner of taking place of the accident, as well as the liability, fastened upon the driver-cum-owner and insurer of the offending vehicle, is concerned, suffice to consider that the same has not been challenged either by driver-cum-owner or by the insurance company. In these circumstances, there is no necessity to further dwell upon these aspects.

In the accident in question, the claimant had sustained multiple injuries, as a result whereof, his left leg was amputated. Undisputedly, on the date of accident, the claimant, who was falling in the age group of 24-25 years. He was enrolled 7 Sikh Light Infantry as Soldier/Sepoy on 27.09.2011. As evident from the documents Ex.P19 (service certificate) and Ex.P21 (Bio-data), the date of birth of the claimant is 31.10.1991. Hence, his age, at the time of accident, which took place on 20.02.2016, was 24 months 3 months and 20 days. The monthly salary drawn by the claimant, as per salary certificate Ex.P20 was Rs.36,657/- per month. Considering the aforesaid facts and also taking into consideration the amputation of left leg of the claimant, as a result of accident in question, his permanent disability was assessed as 60%, as per disability certificate Ex.P9. It was held by learned Tribunal that the

-3claimant, after the accident continued to be in the job and was receiving the salary, as received by him earlier and considering it to be so and also considering the chances of his, not being able to perform active combat duty as well as his chances of promotion and service duration of Sepoy, being 15 years and not getting extension thereafter, the compensation was worked upon by learned Tribunal, while taking his annual income as Rs.6,31,344/- and thereupon, considering the fact of claimant to be in the job, upto the age of 40 years, multiplier of '15' was applied and considering the disability to be 60%, it was worked upon as herein given:- 6,31,344 x 60/100 x 15 = Rs.28,41,048/- Even, the medical expenses, with regard to the artificial limb taken by the claimant for an amount of Rs.34,760/-, as spelt out from Ex.

P16, was also taken into consideration while computing the compensation. Besides the same, another amount of Rs.2,00,000/- for the cost of future expenditure on artificial limb was also granted. So far as, availing of sick leave of 42 days, the claimant was granted compensation to the extent of Rs.40,000/-.

Rs.28,41,048/- of permanent disability Medical bill :

Rs.34,760/- Future expenditure on prosthetic :

Rs.2,00,000/- Compensation for loss of leave :

Rs.40,000/- Pain & suffering and loss of :

Rs.50,000/- amenities of life

-4Transportation charges :

Rs.5,000/- Special diet :

Rs.5,000/- Attendant charges :

Rs.10,000/- Total :

Rs.31,85,808/- Definitely, as pointed out by learned counsel for parties, the work upon of the compensation aforesaid, do call re-determination. Before proceeding further, it shall be appropriate to make beneficial reference to decision rendered in Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77, wherein, the Hon'ble Supreme Court held that the 'just' compensation is adequate compensation and the Award must be just that-'no less and no more'. The plea of the victim suffering from a cruel twist of fate, when asking for some more, is not extravagant, but it is for seeking appropriate recompense, to negotiate with the unforeseeable and the fortuitous twists, in his impaired life. Therefore, while the money awarded by Courts can hardly redress the actual sufferings of the injured victim (who is deprived of the normal amenities of life and suffers the unease of being a burden on others), the Courts can make a genuine attempt to help restore the self-dignity of such claimant, by awarding 'just compensation'.

In a three Judges' Bench in Jagdish Vs. Mohan and others, 2018 (4) SCC 571, while considering the enhancement of compensation awarded, vis-a-vis, injuries suffered by the victim, a reference has been made to the decision rendered in Laxman vs. Divisional Manager, Oriental Insurance Co. Ltd., 2012 ACJ 191 (SC), wherein, the Hon'ble Apex Court, has held as follows on next page:-

-5- "(12) The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim's inability to lead normal life and enjoy amenities, which he would have enjoyed but for disability caused due to the accident."

Furthermore, while making reference to various case law, it held that the compensation can be granted for disability as well as for loss of future earnings and the first head relates to the impairment of a person's capacity, while the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself.

Thus, considering the same, if the victim of the accident suffers permanent disability, then efforts should be made to award compensation, not only for the physical frame and treatment, but also for the loss of earnings 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. In Jagdish's case (supra), the Hon'ble Supreme Court was considering the case of a carpenter, who had sustained injuries and lost both his hands. Therein, considering the serious disability, suffered by him, on account of loss of use of both of his hands, it was observed by the Court, as herein given:- "........For a person engaged in manual activities, it requires no stretch of imagination to understand that 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 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.

-6conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity."

Considering the facts of the case, the disability, which was worked upon as '90%', was taken to be total disability by the Hon'ble Supreme Court and thereupon, enhancement was made. In this backdrop, now reverting to the case in hand. It is specific claim of claimant Dharminder Singh, that he had sustained injuries in the accident in question, on account of rashness and negligence, on the part of respondent-Shaminder Singh, while driving car being registration No.PB-07AM-0082. It is also his claim that he had sustained multiple injuries, as a result of which, his left leg was amputated. Besides the same, it is his claim that he had remained admitted in various hospitals. He had undergone operation in Command Hospital on 22.02.2016, where his left leg was amputated. After being discharged from Command Hospital on 03.04.

2016, he was referred to Artificial Limb Centre, Pune, where he was admitted from 05.04.2016 upto 08.06.2016, after fitment of artificial limb. Thereupon, he remained on sick leave for 42 days and again got admitted in Artificial Limb Centre, Pune from 20.07.2016 till 01.09.2016. Then he remained admitted in Base Hospital from 04.09.2016 upto 12.09.2016. Again, he was admitted in Artificial Limb Centre, Pune, on 19.01.2017 for replacement of artificial limb and was discharged on 04.03.2017. He also deposed that the artificial limb provided by the Army was hurting him and therefore, he had undergone training in Deep Artificial Limb Centre, Chandigarh and cost of said limb was Rs.35,000/-.

-7being only of 25 years, he has to wear artificial limb for rest of his life. Also, he further deposed about assessment of his permanent disability to the extent of 60% and he was put under category A-3 permanent. Besides the same, he also deposed about the manner, how his chances of promotion in the Army has been affected. Had he not met with an accident, he would have reached the rank of Subedar Major and after amputation of leg, he can work only for maximum 15 years. He can even be removed prior to that. Furthermore, he also deposed about himself to be still working in Army and getting full salary, during his treatment.

Besides the aforesaid, PW-2 Joginder Kumar, Technician, Deep Artificial Limb Centre, was examined, who had proved the bill relating to the artificial limb, availed by the claimant, which was to the extent of Rs.34,707/-. He also deposed about annual maintenance of the same to be costing Rs.10,000/- to Rs.15,000/-.

Further, Major Amandeep Singh Randhawa, Orthopaedician, Command Hospital, Chandimandir has been examined as PW-3, who on the basis of the treatment record, deposed about the claimant to have suffered crush injury with multiple fractures of distal tibia and tarsal bones. He had given the history of claimant's treatment and further deposed about him to have been downgraded A-3 permanent category and, therefore, he will not get promotion. Besides the same, he proved admission and discharge slips Ex.P2 to Ex.P8, disability certificate Ex.P9, restricted movement orders Ex.P10 and Ex.P11, PAN card Ex.P12 and specialist medical opinion Ex.P18. He also deposed that the claimant could now not perform any active combat duty and it will affect his employability.

-8It is also important to make reference to the testimony of PW-4 Brijesh Kumar, Clerk, 7 Sikh Light Infantry, who had proved the various record, relating to the employment of the claimant as well as his salary certificate Ex.P20 and further, his family details etc. Besides the same, he categorically deposed that the person, who was in category A-3 permanent, cannot get any promotion and service duration of a Sepoy is 15 years and there is no extension thereupon. Further, he deposed that had the claimant not been put under category A-3, he would have become Honorary Captain and he further deposed that the basic salary of Sepoy is Rs.21,700/- per month, which rises upto Rs.69,100/- per month, if he completes his entire service with extension. He also deposed that the basic salary of Honorary Captain is Rs.61,300/- which goes upto Rs.

1,93,900/- per month. Keeping in view the nature of the injuries, sustained and the disability, so suffered, in view of the age of the claimant, to be 24 years, at the relevant time and looking at his secured job in defence forces, definitely, now reflects travails which the claimant, will have to face in life. The 24 year old's youthful dreams, pertaining to his growth in defence forces and future hopes were snuffed to a great extent by the serious accident. Youngman's impaired condition would have serious consequences, affecting him as well as immediate family members.

Considering the aforesaid circumstances, as spelt out from the evidence adduced, which the claimant had to face, on account of injuries sustained in the accident, an attempt should always be made to provide a realistic recompense, having regard to the realities of life, both in terms of assessment of the extent of disability and its impact, including the income

-9generating capacity and not only that, even the impact of the accident on his life, on account of his physical disability. The Courts should be mindful of the fact that though, the physical disability may be on the lesser count but the functional disability, on account of injury sustained, can always be on higher side.

The extent of economic loss, arising from a disability, may not be measured in proportions, to the extent of permanent disability. In this regard, suffice to make reference to the apt observations made by the Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar and Anr., 2011 (1) SCC 343, which are herein reproduced:- "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 shows 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the

-10Tribunal will adopt the said percentage for determination of compensation."

The test for determining the effect of permanent disability, on future earning capacity involves the following 3 steps, as was laid down in Raj Kumar's case (supra) and reiterated in Chanappa Nagappa Muchalagoda vs. Divisional Manager, New India Insurance Company Limited, 2020 (1) SCC 796, as herein given:- "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."

At this juncture, also it is apt to make reference to the observations made in Pappu Deo Yadav vs. Naresh Kumar and others, (2020) SCC Online 752, which are herein given:- "13. The factual narrative discloses that the appellant, a 20year-old data entry operator (who had studied up to 12th standard) incurred permanent disability, i.e. loss of his right hand (which was amputated). The disability was assessed to be 89%. However, the tribunal and the High Court reassessed the disability to be only 45%, on the assumption that the assessment for compensation was to be on a different basis, as the injury entailed loss of only one arm. This approach, in the opinion of this court, is completely mechanical and entirely ignores realities. Whilst it is true that assessment of injury of

-11one limb or to one part may not entail permanent injury to the whole body, the inquiry which the court has to conduct is the resultant loss which the injury entails to the earning or income generating capacity of the claimant. Thus, loss of one leg to someone carrying on a vocation such as driving or something that entails walking or constant mobility, results in severe income generating impairment or its extinguishment altogether. Likewise, for one involved in a job like a carpenter or hairdresser, or machinist, and an experienced one at that, loss of an arm, (more so a functional arm) leads to near extinction of income generation. If the age of the victim is beyond 40, the scope of rehabilitation too diminishes.

These individual factors are of crucial importance which are to be borne in mind while determining the extent of permanent disablement, for the purpose of assessment of loss of earning capacity." "20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood.

The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some 'proportionate' principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected.

Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case." In the light of the aforesaid case law, it is pertinent to mention that as evident from the testimony of the claimant himself and other evidence, coming on record, even after the accident, the claimant continued to get same salary.

-12stands established that the claimant, could not now perform any active combat duty and that he has been downgraded to A-3 permanent category and also, he shall not get any promotion.

Also, from the evidence, it stands established that the service duration of Sepoy is 15 years and there is no extension thereafter. Considering the same, the promotion chances of the claimant have been capped, as a result of amputation of his left leg.

In the light of the same, there is bound to be no growth in his career, in the defence services. Considering the same, learned Tribunal had very appropriately considered the claimant to continue to received same extent of salary, as he was receiving, prior to the accident in question. However, while continuing on the passive duty or administrative work, upto the age of 40 years, he will continue to receive pay hike, in shape of increments, revision of pay scale etc. However, the pay hike or the revision of pay scale, was not a definite ascertained amount. In the light of the same and also considering the fact of pay being received by the claimant, upto the age of 40 yeas, learned Tribunal, to make addition, on the count of 'future prospects', as per National Insurance Company Limited vs. Pranay Sethi and others, 2017(4) RCR (Civil) 1009, had considered addition to be made upto to the extent of 50%.

At this juncture, it shall appropriate to make reference to Erudhaya Priya vs. State Express Transport Corporation, 2020 ACJ 2159, wherein, reference was made to the settled principles, set out in Jagdish's case (supra) and it was observed as herein given:- "8.

In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a

-13permanent 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; (ii) 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]"

Also, it was observed that the aforesaid principle was emphasized in an earlier judgment, i.e. Sandeep Khanuja v. Atul Dande & Another, 2017 ACT 979, 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 the accident. Further, it was observed that while applying the multiplier method, future prospects on advancement in life and career, ought to be taken into consideration. Observing on the same principle, reference is made to Kartik Subramanian vs. B. Sarath Bahu and another, 2021 (2) RCR (Civil) 303, wherein, again it was observed that multiplier method has to be applied for future prospects and advancement in life and career. While working on the same principle, loss of earnings part was worked and towards the same, addition of future prospects was also made, while making the assessment of the compensation, which stood enhanced. In view of the aforesaid case law, as per Pranay Sethi's case (supra), the addition, on the count of 'future prospects' was made to the

-14extent of 50%. Taking it to be so and considering the salary received by the claimant, upto to the age of 40 years, learned Tribunal has worked upon the compensation, after the deduction of the income tax liable to be paid. While considering the salary as Rs.36,657/- per month, the annual whereof, comes to be Rs.4,39,884/-, learned Tribunal had correctly calculated the income tax, as per income tax slab, prevalent at that time and deducted an amount of Rs.18,988/- and the residue income came to be Rs.4,20,896/-. To the aforesaid amount, addition of 50%, on the count of 'future prospects' was made and thus, the total earnings came to be Rs.420896+210448=Rs.6,31,344/-.

After his retirement from army, on attaining age of 40, the pension received by claimant -Dharminder Singh, ought to be to the extent of 50%, of his last drawn salary. Thus, on this count also, the deduction ought to be made. Considering the same, the multiplier process followed by learned Tribunal, taking the disability to be 60%, the loss of earnings is appropriate and the compensation has been rightly worked upon by learned Tribunal, as Annual salary x %age of loss of earning power x multiplier divided by 2 (50% of annual salary), as already stated aforesaid. Considering the same, the total compensation, while considering the various other counts, has been granted, which is to the extent of Rs.31,85,808/-, the bifurcation whereof, has been reproduced, in the earlier portion of the judgment. However, regarding other counts, except the loss of earnings power and medical bill, the compensation, as granted by learned Tribunal do call for enhancement.

So far as, loss of future earnings, on account of permanent

-15disability is concerned, that has been appropriately considered by learned Tribunal. Even, addition on the count of medical bill, with regard to the availing of the artificial limb from Deep Artificial Limb Centre, Chandigarh, the bill whereof is Rs.34,760/-, has also been appropriately made. Even though, in the case of defence services, the medical expenses are taken care of by the Army authorities, but however, in the case in hand, as observed in the earlier portion of the judgment, the prosthetic limb was availed by the claimant from the private unit and there is no reimbursement of the private treatment and relating to the same, medical bill Ex.P16 of the amount of Rs.34,760/- has been taken into consideration.

Once, the claimant has availed the facility of the artificial limb, from the private unit, in all probabilities, he shall not be availing the medical facility, with regard to the prosthetic from his defence unit. Considering the claimant to be a youngman of 24 years, at the time of accident, it is quite obvious that in the minimum, he is required to change his prosthetic limb, minimum for four times.

Thus, making arrangement for the future expenditure on the prosthetic limbs and maintenance thereof, the amount of compensation granted as Rs.2,00,000/- stands enhanced to Rs.4,00,000/-. Even, an amount of Rs.40,000/- has been granted as compensation for the loss of sick leave of 42 days, availed by the claimant. Had the claimant not met with the accident, he would have used his leave for some good purpose and with passage of time, it would have become more valuable and considering the same, the value of sick leave, would have to be enhanced. Considering the same, on the count of 'loss of leave period', the

-16compensation stands enhanced to Rs.80,000/-. Taking into consideration the kind of injuries sustained by the claimant, though, he must have been taken care of by his defence family, but it is quite obvious, he must have been looked after, by his family also, who would have taken care of him by diverting their time from the gainful employment for some period of time and thus, on the count of 'attendant charges', the compensation stands enhanced from Rs.10,000/- to Rs.30,000/-. Likewise, on the count of 'transportation charges', the compensation stands enhanced to Rs.20,000/-.

Looking at the injuries sustained, even the compensation granted on the count of 'pain and suffering' is meagre. Soon after the accident, on account of injuries sustained, apart from having become physically invalid, on account of amputation of left leg, the claimant must have passed through a very traumatic state of mind, considering his career having jeopardised, apart from the physical ailment. Thus, considering the same, the compensation awarded on the count of 'pain and suffering' stands enhanced to Rs.2,00,000/-.

However, besides the same, qua the special diet, no amount, as such, has to be given, as the basic necessities, with regard to the intake of the diet, are taken care of free of cost by the Army authorities. Considering the same, the compensation payable to claimantDharminder Singh, on account of injuries sustained by him, is re-computed, as herein given:- Loss of future earnings on account :

Rs.28,41,048/- of permanent disability Medical bills :

Rs.34,760/-

-17Future expenditure on prosthetic :

Rs.4,00,000/- Compensation for loss of leave :

Rs.80,000/- Attendant charges :

Rs.30,000/- Transportation charges :

Rs.20,000/- Pain and suffering and loss of :

Rs.2,00,000/- amenities of life Total :

Rs.36,05,808/- As such, the enhanced compensation, after the deduction of compensation awarded by the Tribunal comes to be Rs.36,05,80831,85,808=Rs.4,20,000/-. On the enhanced amount of the compensation i.e. Rs.4,20,000/-, claimant-Dharminder Singh shall be entitled to the interest, at the rate of 6% per annum, from the date of filing of the cross-objections, till realization of the enhanced amount of compensation. Accordingly, the impugned Award dated 16.07.2018 stands modified, to the extent, as indicated aforesaid. The residue terms of the Award, as ordered by learned Tribunal, shall remain the same. In view of the aforesaid observations, the appeal filed by the insurance company i.e. FAO-16232-2018 stands dismissed, whereas, crossobjections filed by the claimant i.e. XOBJC-9-2019, stands allowed. July 24, 2024 (ARCHANA PURI) Vgulati JUDGE Whether speaking/reasoned Yes Whether reportable Yes/No