NEERUPAM MOHAN MATHURversusNEW INDIA ASSURANCE CO.

                   [2013] 8 S.C.R. 15


              NEERUPAM MOHAN MATHUR                          A
                            v.
              NEW INDIA ASSURANCE CO.
             (Civil Appeal No. 4814 of 2013)
                      JULY 1, 2013
                                                             8
         [G.S. SINGHVI AND SUDHANSU JYOTI
                 MUKHOPADHAYA, JJ.]

     Motor Vehicles Act, 1988 - s. 110-A - Motor accident -
Permanent disability - Claim for compensation - Tribunal C
awarded compensation of Rs.3,20,0001- - High Court
enhanced the compensation to Rs. 7, 04, 8001- after taking loss
of earning capacity to 70% in view of permanent disability -
On appeal, held: High Court has rightly assessed loss of
earning capacity to 70% as per Workmen's Compensation Act D
- Since the courts below did not allow reasonable amount for
different pecuniary and non-pecuniary damages, the amount
of compensation re-determined to Rs.11,64,3001- -
Workmen's Compensation Act, 1923.
                                                             E
    The appellant, during motor accident, lost his right
hand which was amputated near the shoulder. He filed
claim petition, seeking compensation for the loss. Claims
Tribunal awarded a compensation of Rs.3,20,000/-. High
Court enhanced the amount of compensation to
                                                             F
Rs.7,04,800/-, holding that loss of claimant's earning
capacity was 70%.

     The appellant filed the instant appeal and contended
that his permanent disability should have been assessed
as 100% and not 70%; and that lesser amounts had been        G
paid towards the cost of prosthesis and towards
pecuniary and non-pecuniary damages.

    Allowing the appeal, the Court
                            15                               H
    16     SUPREME COURT REPORTS            [2013] 8 S.C.R.


A      HELD: 1. The claimant suffered permanent disability
  of amputation of arm above elbow and as a result of
  injuries, he was not in a position in doing the specialized
  job of designing, refrigeration and air conditioning. For
  the said reason, claimant's services were terminated by
B his employer but that does not mean that the claimant
  was not capable to do any other job including the desk
  job. Having qualification of B.SC degree and Post
  Diploma in Mechanical Engineering, he can perform any
  job where application of mind is required than any
c physical work. Therefore, no grounds are made out to
  interfere with the finding of the High Court which
  determined the percentage of loss of earning capacity to
  70% adopting the percentage of loss of earning capacity
  as per the Workmen's Compensation Act. The total loss
0 of income was thus rightly calculated by the High Court
  at Rs.6,04,800/-. [Paras 13 and 14] [24-F-H; 25-A-B]

        Raj Kumar vs. Ajay Kumar and Anr. (2011) 1 SCC 343:
    2010 (13) SCR 179 - relied on.

E     2. However from the award passed by the Tribunal
  and judgment rendered by the High Court, no grounds
  are shown by the Tribunal or the High Court in providing
  pecuniary and non-pecuniary damages at a lower rate.
  Against some of the heads even no amount has been
F allowed. The claimant placed evidence to suggest that the
  cost of prosthesis was Rs.75,000/- . It was accepted at
  Bar that the cost of prosthesis was Rs.1,60,000/-. lnspite
  of the same the Tribunal did not choose to allow any
  amount towards prosthesis and the High Court allowed
G a petty amount of Rs.50,000/- for the same. No separate
  amount was allowed towards travelling to the Hospitals
  though the claimant was required to go to attend the
  Hospital every 10 days for treatment. A meager sum of
  Rs.25,000/- has been allowed by the High Court towards
H
 NEERUPAM MOHAN MATHUR v. NEW INDIAASSURANCE               17
                          CO.

pain and suffering. Therefore, with a view to do complete       A
justice to the claimant, the amount of compensation is re-
determined to Rs.11,64,300/-. [Paras 15, 17 and 18] [25-
B-C, E-G; 26-A; 27-B]
                     Case Law Reference:
                                                                B
    2010 (13) SCR 179         relied on            Para 12

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4814 of 2013.

     From the Judgment and Order dated 06.09.2010 of the        C
High Court of Punjab & Haryana at Chandigarh in FAO No. 693
of 1989.

    Mahabir Singh, Nikhil Jain, Gagan Deep Sharma for the
Appellant.                                                      D

    M.K. Dua, Kishore Rawat, Karan for the Respondent.

    The Judgment of the Court was delivered by

    SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave                    E
granted.

     2. The present appeal is filed by the claimant-appellant
against the judgment of Punjab and Haryana High Court at
Chandigarh in FAQ No.693 of 1989, whereby the High Court        F
granted a meager enhancement in the amount of compensation
awarded to him by the Motor Accident Claims Tribunal
(hereinafter referred to as 'the Tribunal').

    3. The facts involved in the present case are as follows:
                                                                G
     The claimant was employed as a 'Product Design
Engineer' in M/s. Utility Engineers (India) Ltd. Dharuhera,
District Mohindergarh, Haryana. The employer had arranged for
a Chartered Bus belonging to M/s. National Tours & Travels,
F-4, East of Kailash, New Delhi, 2nd respondent before the      H
    18       SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A   Tribunal for carrying the employees to the factory at Dharuhera
    and back; one Pritam Singh, 1st respondent before the Tribunal
    was the driver of the said bus. On 2nd September, 1987, the
    claimant along with his colleagues was coming back from
    Dharuhera in the said Chartered Bus bearing Registration
B   No.DBP-805. At about 6 p.m. when the said Bus reached near
    the turning of village Shikohpur on Gurgaon-Jaipur Highway, it
    came across a truck coming from opposite direction which was
    crossing a camel cart in front of it. Pritam Singh, who was
    driving the bus at a very high speed, carelessly, rashly and
C   negligently attempted to cross the above said truck without
    keeping the Bus to the extreme left hand side. This resulted in
    a collision of right hand side of the bus with the truck, which
    resulted in severance of right hand of the claimant who was
    sitting in the right side of the bus. The said accident and the
D   mishappenings thereto were witnessed by the occupants of the
    bus. One Anil Kumar, PW-3, who was also travelling in the said
    Chartered Bus at the time of the said accident, took the
    claimant to the Civil Hospital, Gurgaon from where he was given
     medical first-aid and he was referred to Safdarjang Hospital,
E    New Delhi. The claimant was later on transferred to 'Dr. Ram
     Manohar Lohia Hospital', New Delhi and thereafter he was also
     t~eated in different Hospitals at various stages. The matter was
     also reported to the Police by Anil Kumar, PW-3.

F      4. The cliamant filed a petition under Section 110-A of the
    Motor Vehicles Act, 1988 claiming Rs.12 lacs as the
    compensation for the loss of the right hand which was
    amputated near the shoulder, on various counts.

       5. The respondents contested the claim of the claimant.
G The Tribunal after perusing oral and documentary evidence held
  that the accident took place due to rash and negligent driving
  by Driver, Pritam Singh of Bus No.DBP-805. The Issue No.1
  was thus decided in favour of the claimant. While assessing
  the compensation under Issue No.2, the Tribunal awarded a
H
NEERUPAM MOHAN MATHUR v. NEW INDIAASSURANCE                   19
    CO. [SUDHANSU .IYOTI MUKHOPADHAYA, J.]

compensation of Rs.3,20,000/.- with interest at the rate of 12%     A
per annum.

     6. In the appeal preferred by the claimant the High Court
taken a loss of earning capacity to 70% in view of permanent
disability of right hand. Based on salary of Rs.3,000/- per month
                                                                    B
as claimed by the claimant adding 50% on the same for future
prospects of increase and applying multiplier of 16,
compensation amount was raised to Rs.4,500/- with interest at
6% from the date of petition. The High Court made the following
observation while granting compensation against different           C
heads:

           "4. In my view, the issue relating to death or injury
    would have no serious difference in the choice of
    multiplicand or the multiplier. If at all, case of injury that
    completely disables a person for life is more poignant D
    than a case of death and that is why Courts do not always
    provide for deductions for personal expenses in case
    claims for injuries. Indeed, the deduction itself will be
    meaningless for unlike a case of death, we need to make
    provision for his own Jiving as well as the living of persons, E
    who are dependent on injured person. The Joss in case
    of injury where there is an amputation and there is a high
    percentage of Joss of earning capacity, in my view, the
    principle laid down in Sar/a Verma providing for a
    prospect of future increase in salary cannot be ruled out. F
    I would, therefore, take the multiplicand to be Rs.4, 5001-
    which is the salary of Rs.3,0001- per month plus 50% of·
    the same for future prospects of increase. For a person,
    who was aged 32 years, the appropriate multiplier ought
    to have been 16 and not 15 and I would, therefore, take G
    the annual income to be Rs.54,0001- and adopting a
    multiplier of 16, I would take the income to be
    Rs.8,64,0001-. Having regard to the fact that I have taken
    the loss of earning capacity to be 70%, the amount that
                                                                   H
    20       SUPREME COURT REPORTS                   [2013] 8 S.C.R.


A        would bear to 70% of Rs. 8, 64, 0001- is the amount that
         shall become payable for loss of earning capacity. The
         loss of income will be Rs.6,04,8001-. I shall retain the
         medical expenses of Rs.10,0001-, Rs.15,0001- for
         attendant's charges and Rs.25, 0001- as provided for pain
B        and suffering by the Tribunal. If the same are retained,
         the amounts will add to Rs. 6, 54, 8001-. The learned
         counsel would contend that although there was evidence
         placed before the Tribunal that the cost of prosthesis was
         Rs. 75, 0001-, no amount had been granted towards the
c        same. The learned counsel would also state across the
         bar that the present cost is Rs.1,60,0001-. There is no
         definite evidence on the same and I would take the cost
         to be Rs.50,0001- which although the Tribunal did not
         provide for. I would provide as necessary equipment that
D        he may require for fending himself. The learned counsel
         states that if the prosthesis were to be fixed, the disability
         would even be less. In my view, it will make a minimal
         difference for a prosthesis is more for cosmetic value
         than a major functional adjunct. Sense of touch, ability
E         to pinch, ability to push, ability to pick up, are all factors
          which go into the making of disability, all of which do not
         get improved by a prosthesis. All told, the amount that
          shall become payable in the manner worked out by me
          would add to Rs. 7,04,8001-. The Tribunal has already
          awarded Rs. 3, 20, 0001- and the amount in excess of what
F
          is awarded by the Tribunal shall be paid by the insurer
          with interest at 6% from the date of the petition till the date
          of realization."

      7. The claimant has challenged the order passed by the
G High Court on three counts namely:

         (i) The permanent disability has been wrongly assessed
         at 70% which should have been 100% in the case of the
         claimant.
H
 NEERUPAM MOHAN MATHUR v. NEW INDIAASSURANCE                    21
     CO. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     (ii) The lower amount has been paid towards cost of              A
     prosthesis and

    (iii) Lesser amounts have been allowed towards pecuniary
    and non-pecuniary damages.

     8. Per contra according to the learned counsel for the           B
Insurer, the High Court allowed higher amount than the amount
of compensation to which claimant was entitled.

     9. In the case of claimant, the High Court for determining
the earning capacity adopted the percentage of loss of earning        c
capacity as per the Workmen's Compensation Act and has
taken a loss of earning capacity to 70% for amputation of arm
above elbow.

      10. Admittedly, claimant is a graduate in Science from          D
Agra University and Post Graduate Diploma holder in
Mechanical Engineering with specialization in Refrigeration
and Air-conditioning. He was a young man of 32 years at the
time of accident. Before the Tribunal, the claimant appeared
as PW-4 and stated that he had worked with many companies
like Blue Star, etc. and has extensive experience. Ultimately he
                                                                      E
joined M/s. Utility Engineers (India) Ltd. on 1st September,
1986 as Product and Development Engineer and was
promoted from Middle Management Group to Senior
Management Group on the basic pay of Rs.1400/- to Rs.1500/
- plus other incidental benefits like special increment of Rs.100.    F
At the time of accident, he was drawing basic pay of Rs.1900/
- plus other incidental benefits total amounting to about
Rs.3,000/- per month. His job was designing of air-conditioning
project.
                                                                      G
     11. According to claimant the normal expectancy of life is
70 years and he was expected to earn up to the said age as a
specialist in designing, refrigeration and air conditioning,. After
loss of the right arm due to accident he has become 100%
                                                                      H
    22        SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A disabled as his earning capacity has gone down to zero in
  doing the specialized work like designing, refrigeration and air
  conditioning. The accident has completely jeopardized his
  mastery on the subject and his chances of future promotion and
  professional engagements have been virtually vanished.
B
        12. The question regarding "Assessment of future loss of
    earnings due to permanent disability" was considered by this
    Court in Raj Kumar vs. Ajay Kumar and Another, (2011) 1
    SCC 343, wherein this Court held as follows:
c        "8. Disability refers to any restriction or lack of ability to
         perform an activity in the manner considered normal for
         a human being. Permanent disability refers to the
         residuary incapacity or loss of use of some part of the
         body, found existing at the end of the period of treatment
D        and recuperation, after achieving the maximum bodily
         improvement or recovery which is likely to remain for the
         remainder life of the injured. Temporary disability refers
         to the incapacity or loss of use of some part of the body
         on account of the injury, which will cease to exist at the
E        end of the period of treatment and recuperation.
         Permanent disability can be either partial or total. Partial
         permanent disability refers to a person's inability to
         perform all the duties and bodily functions that he could
         perform before the accident, though he is able to perform
F        some of them and is still able to engage in some gainful
         activity. Total permanent disability refers to a person's
         inability to perform any avocation or employment related
         activities as a result of the accident. The permanent
         disabilities that may arise from motor accident injuries,
G        are of a much wider range when compared to the physical
         disabilities which are enumerated in the Persons with
         Disabilities (Equal Opportunities, Protection of Rights
         and Full Participation) Act, 1995 ("the Disabilities Act",
         for short). But if any of the disabilities enumerated in
H         Section 2(i) of the Disabilities Act are the result of injuries
NEERUPAM MOHAN MATHUR v. NEW INDIAASSURANCE                23
    CO. [SUDHANSU JYOTI MUKHOPADHAYA, J.]

   sustained in a motor accident, they can be permanent         A
   disabilities for the purpose of claiming compensation.

   9. The percentage of permanent disability is expressed
   by the doctors with reference to the whole body, or more
   often than not, with reference to a particular limb. When 8
   a disability certificate states that the injured has suffered
   permanent disability to an extent of 45% of the left lower
   limb, it is not the same as 45% permanent disability with
   reference to the whole body. The extent of disability of a
   limb (or part of the body) expressed in terms of a C
   percentage of the total functions of that limb, obviously
   cannot be assumed to be the extent of disability of the
   whole body. If there is 60% permanent disability of the
   right hand and 80% permanent disability of left leg, it
   does not mean that the extent of permanent disability with
                                                                 0
   reference to the whole body is 140% (that is 80% plus .
   60%). If different parts of the body have suffered different
   percentages of disabilities, the sum total thereof
   expressed in terms of the permanent disability with
   reference to the whole body cannot obviously exceed E
    100%.                            .

   10. Where the claimant suffers a permanent disability as
   a result of injuries, the assessment of compensation
   under the head of loss of future earnings would depend
   upon the effect and impact of such permanent disability      F
   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         G
   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 Joss of earning capacity,    H
    24       SUPREME COURT REPORTS                [2013] 8 S.C.R.


A        and consequently, if the evidence produced show 45%
         as the permanent disability, will hold that there is 45%
         loss of future earning capacity. In most of the cases,
         equating the extent (percentage) of loss of earning
         capacity to the extent (percentage) of permanent disability
B        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
c        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
D
         evidence and assessment, the Tribunal may find that the
         percentage of loss of earning capacity as a result of the
         permanent disability, is approximately the same as the
         percentage of permanent disability in which case, of
         course, the Tribunal will adopt the said percentage for
E        determination of compensation. (See for example, the
         decisions of this Court in Arvind Kumar Mishra v. New
         India Assurance Co. Ltd. and Yadava Kumar v. National
         Insurance Co. Ltd.)"

F        13. In the present case, the percentage of permanent
  disability has not been expressed by the Doctors with reference
  to the full body or with reference to a particular limb. However,
  it is not in dispute that the claimant suffered such a permanent
  disability as a result of injuries that he is not in a position in
G doing the specialized job of designing, refrigeration and air
  conditioning. For the said reason, claimant's services were
  terminated by his employer but that does not mean that the
  claimant is not capable to do any other job including the desk
  job. Having qualification of B.SC degree and Post Diploma in
H Mechanical Engineering he can perform any job where
NEERUPAM MOHAN MATHUR v. NEW INDIAASSURANCE                    25
    CO. [SUDHANSU JYOTI MUKHOPADHAYA, J.]

application of mind is required than any physical work.              A

      14. In view of the forgoing discussion we find no grounds
made out to interfere with the finding of the High Court which
determined the percentage of loss of earning capacity to 70%
adopting the percentage of loss of earning capacity as per the       8
Workmen's Compensation Act. The total loss of income thus
rightly calculated by the High Court at Rs.6,04,800/-.

     15. However from the award passed by the Tribunal and
judgment rendered by the High Court, we find no ground shown
by the Tribunal or the High Court in providing pecuniary and         C
non-pecuniary damages at a lower rate. Against some of the
heads even no amount has been allowed.

     16. The Tribunal in its award has noticed that the claimant
had to go to Hospital every 10 days for treatment. He was            D
admitted in different Hospitals and was under treatment as
indoor patient for about one and a half months. Claimant's hand
was amputated and skin was grafted. lnspite of the same, no
amount has been allowed towards loss of earning during the
period of treatment nor any amount allowed towards future            E
medical expenses.

     17. From the High Court's judgment and award passed by
the Tribunal it is clear that the claimant placed evidence to
suggest that the cost of prosthesis was Rs.75,000/- It was
accepted at Bar that the cost of prosthesis was Rs.1,60,000/- F
  lnspite of the same the Tribunal did not chose to allow any
amount towards prosthesis and the High Court allowed a petty
amount of Rs.50,000/- for the same. No separate amount has
been allowed towards travelling to the Hospitals though the
claimant was required to go to attend the Hospital every 10 G
days for treatment. We further find that a meager sum of
Rs.25,000/- has been allowed by the High Court towards pain
and suffering.

     18. Having regards to the fact that the Tribunal and the High   H
    26           SUPREME COURT REPORTS               [2013] 8 S.C.R.


A   Court have not allowed reasonable amount for different
    pecuniary and the non-pecuniary damages·, we, therefore, with
    a view to do complete justice to the claimant re-determined the
    amount of compensation on the following terms:

B            Pecuniary damages (Special damages)

     (i)      Expenses relating to treatment,           Rs.1,05,000
              hospitalisation.medicines
              ,transportation, nourishing food,
              and miscellaneous expenditure.
c             (medical expenses Rs.15,000 +
              Attendant Rs.15,000 + cost of
              prosthesis Rs. 75,000)

     (ii)     Loss of earnings (and other gains)
D             which the injured would have made
              had he not been injured, comprising:

               (a) Loss of earning during the period of
               treatment;                               Rs.4,500

E    (b)       Loss of future earnings (on account of
               70% permanent disability taking
               multiplier of 16)                        Rs.6,04,800

     (iii)     Future medical expenses.                  Rs.50,000
F
             Non-pecuniary damages (General damages)

     (iv)      Damages for pain, suffering and          Rs.1,00,000
               trauma as a consequence of the injuries.

G    (v)       Loss of amenities                         Rs.2,00,000

     (vi)      Loss of expectation of life
               (shortening of normal longevity)          Rs.1,00,000

                                                  Total Rs.11,64,300
H
NEERUPAM MOHAN MATHUR v. NEW INDIAASSURANCE                27
    CO. [SUDHANSU JYOTI MUKHOPADHAYA, J.]

     19. The respondent Insurance Company is directed to pay     A
the claimant-appellant a sum of Rs.11,64,300/- minus the
amount already paid pursuant to the order passed by the
Tribunal within three months from the date of judgment with
interest @ 12%. The order passed by the High. Court and
Tribunal stands modified to the extent above. The appeal filed   B
by the claimant is allowed with the above observation and
direction. No separate order as to costs.

K.K.T.                                       Appeal allowed.