# Brahma Nand Maurya v. United India Insurance Co. Ltd. & Ors

- **Citation:** (2023) 7 ILRA 216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-05
- **Case number:** FAFO No. 795 of 2002
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brahma-nand-maurya-v-united-india-insurance-co-ltd-ors-50409
- **Pages:** 13

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- has suffered a serious
disability in which he has suffered a loss
of his leg - The head of his left femur had
been badly fractured on account of the
injury-During
the
ensuing
surgical
operation, the femur head was removed,
which is attached to the hip joint. In
consequence, the claimant's leg was
shortened by an inch and a half-This
caused the claimant considerable difficulty
in movement-The middle finger of his
right hand was bent. The hip joint was
dislocated because its head was fracturedUpon an application of Rule 220-A(3) of
the Rules of 1998 to the facts here, the
claimant being aged 47 years i.e. in the
age bracket of 40-50 years, an addition of
30%
towards
future
prospects
and
applied
multiplier
of
13
the
total
compensation
awarded
enhanced
to
Rs.7,72,149-The impugned award passed
by the Tribunal is modified and sum of
money shall carry simple interest at the
rate of 7% per annum from the date of
institution of the claim petition, until
realization.(Para 1 to 33)

B. In making the computation in the
present case, the court must be mindful of
the fact that the appellant has suffered a
serious disability in which he has suffered
a loss of the use of both his hands. For a
person engaged in manual activities, it
requires no stretch of imagination to
understand that a loss of hands is a
complete deprivation of the ability to
earn. Nothing - at least in the facts of this
case - can restore lost hands. But the
measure of compensation must reflect a
genuine attempt of the law to restore the
dignity of the being. Our yardsticks of
compensation should not be so abysmal as
to lead one to question whether our law
values human life. If it does, as it must, it
must provide a realistic recompense for
the pain of loss and the trauma of
suffering. Awards of compensation are not
law's doles. In a discourse of rights, they
7 All. Brahma Nand Maurya Vs. United India Insurance Co. Ltd. & Ors.
217
constitute entitlements under law. Our
conversations about law must shift from a
paternalistic
subordination
of
the
individual to an assertion of enforceable
rights as intrinsic to human dignity.(Para
28)

The appeal is partly allowed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,986 of 43,706. This is a partial read: ask again with offset=39986 for what follows._

216 INDIAN LAW REPORTS ALLAHABAD SERIES
in the form of testimony of injured witness.
In comparison to it, the evidence on the
basis of which the Investigating Officer has
exonerated the revisionist accused is of a
very weak nature. There is sufficient and
cogent evidence on record which is more
than prima-facie case as exercised at the
time of framing of charge but short of
satisfaction to an extent that the evidence if
goes un-rebutted would lead to conviction
and it passes the test as laid down by the
Apex Court.

10. The learned trial court with a
detailed and reasoned order has allowed the
application. The learned trial court has
narrated the entire facts, evidence and other
material available on record and after
analyzing it, has come to the finding that
there is sufficient ground to summon the
revisionist accused U/s 319 Cr.P.C. There
is no illegality or infirmity in the impugned
summoning order.

11. Accordingly, the revision is
hereby dismissed.
----------
(2023) 7 ILRA 216
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

FAFO No. 795 of 2002

Brahma Nand Maurya ...Appellant
Versus
United India Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellant:
Sri S.N. Tripathi

Counsel for the Respondents:
Sri Amresh Sinha, Sri Anubhav Sinha

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- has suffered a serious
disability in which he has suffered a loss
of his leg - The head of his left femur had
been badly fractured on account of the
injury-During
the
ensuing
surgical
operation, the femur head was removed,
which is attached to the hip joint. In
consequence, the claimant's leg was
shortened by an inch and a half-This
caused the claimant considerable difficulty
in movement-The middle finger of his
right hand was bent. The hip joint was
dislocated because its head was fracturedUpon an application of Rule 220-A(3) of
the Rules of 1998 to the facts here, the
claimant being aged 47 years i.e. in the
age bracket of 40-50 years, an addition of
30%
towards
future
prospects
and
applied
multiplier
of
13
the
total
compensation
awarded
enhanced
to
Rs.7,72,149-The impugned award passed
by the Tribunal is modified and sum of
money shall carry simple interest at the
rate of 7% per annum from the date of
institution of the claim petition, until
realization.(Para 1 to 33)

B. In making the computation in the
present case, the court must be mindful of
the fact that the appellant has suffered a
serious disability in which he has suffered
a loss of the use of both his hands. For a
person engaged in manual activities, it
requires no stretch of imagination to
understand that a loss of hands is a
complete deprivation of the ability to
earn. Nothing - at least in the facts of this
case - can restore lost hands. But the
measure of compensation must reflect a
genuine attempt of the law to restore the
dignity of the being. Our yardsticks of
compensation should not be so abysmal as
to lead one to question whether our law
values human life. If it does, as it must, it
must provide a realistic recompense for
the pain of loss and the trauma of
suffering. Awards of compensation are not
law's doles. In a discourse of rights, they
7 All. Brahma Nand Maurya Vs. United India Insurance Co. Ltd. & Ors.
217
constitute entitlements under law. Our
conversations about law must shift from a
paternalistic
subordination
of
the
individual to an assertion of enforceable
rights as intrinsic to human dignity.(Para
28)

The appeal is partly allowed. (E-6)
List of Cases cited:

1. New India Assr. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC OnLine SC 822

2. Jagdish Vs Mohan & ors. (2018) 4 SCC 571

3. National Ins. Co. Ltd. Vs Pranay Sethi (2017)
16 SCC 680

4. Mohd. Sabeer @ Shabir Hussain Vs Reg.
Manager, UPSRTC (2022) SCC OnLine SC 1701

5. Kajal Vs Jagdish Chand & ors. (2020) 4 SCC
413

6. Sarla Verma (Smt.) & ors. Vs DTC & anr..
(2009) 6 SCC 121

7. Raj Kumar Vs Ajay Kumar & anr. (2011) 1
SCC 343
(Delivered by Hon'ble J.J. Munir, J.)

1. This appeal for enhancement of
compensation has been preferred by the injuredvictim of a motor accident, Brahma Nand
Maurya, the claimant of MACP No.418 of 1996.
He is aggrieved by the judgment and award of the
Motor Accident Claims Tribunal/ Special Judge
(Essential Commodities Act), Gorakhpur, which
he says, has granted him insufficient recompense
for the damage he sustained and the misery he
underwent on account of the motor accident, that
happened on 29th April, 1996.

2. The facts pleaded in the claim
petition are these:

Brahma Nand Maurya is a native
of Village Beladar, Post Shivpur, District
Gorakhpur. On the 28th of April, 1996, he
had gone to his sister's place at Balsadh. On
the day following i.e. 29th April, 1996, he
was returning home on board Jeep No.
UPK-8702. He was sitting by the driver's
side. When the Jeep reached near Village
Palahipar at about 11.30 a.m. and was
about the Durga Mandir, the driver, who
was negligently driving the vehicle at a
high speed, swerved out of control and hit a
tree. The accident happened on account of
negligence of the Jeep driver. Brahma
Nand Maurya (hereinafter referred to as
'the claimant') was
admitted to the
Emergency Section of the District Hospital,
Gorakhpur. Since his medical condition
deteriorated, the doctors there lost hope. He
was then admitted to the care of Dr. S.C.
Kaushik, an Orthopedic Doctor at the
Jeevan Jyoti Medical Centre, Kasya Road,
Betia Hata, Gorakhpur. The head of his left
femur had been badly fractured on account
of the injury. During the ensuing surgical
operation, the femur head was removed,
which is attached to the hip joint. In
consequence,
the
claimant's
leg
was
shortened by an inch and a half. This
caused the claimant considerable difficulty
in movement. The middle finger of his
right hand was bent. The hip joint was
dislocated because its head was fractured.

3. The claimant suffers from perpetual
pain on this account. The claimant
remained admitted to the District Hospital
from 29.04.1996 to 30.04.1996 and then
from 30.04.1996 to 26.06.1996 at Dr. S.C.
Kaushik's
Nursing
Home.
Between
26.06.1996
to
26.07.1996,
Dr.
S.C.
Kaushik visited the claimant at his home
five times during the duration. These visits
were at the claimant's cost. During each of
these visits, Dr. Kaushik would do the
claimant's dressing etc. According to the
claimant, he was entitled to a compensation
218 INDIAN LAW REPORTS ALLAHABAD SERIES
of more than Rs.9 lakhs under various
heads. It was urged that he was enrolled as
an Advocate in the year 1974 and had a
legal practice worth Rs.6000/- per month.
In addition, he would earn from agriculture
that he did, Rs.4000/- a month. After he
was handicapped on account of the
accident, all his income was effaced. He
was bed ridden for four months. His
practice had spanned across a period of 22
years, which was all ruined. His clients
moved away to different chambers. The
claimant is the lone son of his parents. The
handicap has left no one at home to carry
on farming etc. The claimant asserted that
he has suffered immense physical and
mental pain. His future had turned bleak.

4. A written statement was filed on
behalf of Ram Nakshatra Singh, who
pleaded that he is not the owner of the
offending Jeep. Long before the accident
happened, he had sold the Jeep to Adya
Prasad Pandey, which stood transferred to
his name. Ram Nakshatra Singh, therefore,
said that he had no liability in the matter.
Ram Nakshatra Singh was impleaded as
opposite party No.1 to the claim petition
and respondent No.2 to the appeal.

5.

Adya
Prasad
Pandey
was
impleaded as opposite party No.2 to the
claim petition and respondent No.3 to this
appeal. He will hereinafter be called the
owner. He filed a written statement
separately and admitted the fact that he was
the registered owner of the offending Jeep.
It is averred that the Jeep aforesaid had not
met with any accident on 29.04.1996 at
11.30 a.m. within the local limits of Police
Station Khajni nor was the injured
travelling on board the said vehicle. The
Jeep on the date of the accident was driven
by Ram Kripal son of Kishun, who had a
driving experience of many years behind
him. He held a valid and effective driving
licence on the date of the accident.
According to the owner, the claimant had
sustained injuries in some other incident.
He had set up the claim against the Jeep,
without any basis, in order to recover
compensation. No FIR was lodged against
the offending Jeep on the date of the
accident. It was lodged months afterwards,
following consultation and premeditation.
The claimant did not sustain any injury.
The kind of injuries that have been
described are utterly wrong and concocted.
The ill-fated Jeep, on the date of the
accident, was insured with the United India
Insurance Company Ltd., opposite party
No.3 to the claim petition and respondent
No.1
to
the
appeal.
The
Insurance
Company aforesaid shall hereinafter be
referred to as 'the Insurers'. The Jeep was
insured with the Insurers under a Cover
Note bearing No. 206178, valid from
10.10.1995 to 10.10.1996. The driver was a
necessary party and not being impleaded,
the claim petition was bad for mis-joinder
(incorrectly described as such in the written
statement, which should be non-joinder).
The owner asserted that the claimant never
did travel on board his Jeep, but in case the
Tribunal was of opinion that his Jeep was
involved in the accident, the burden has to
be borne by the Insurers.

6. The Insurers filed their written
statement dated 06.01.1998. The factum of
the accident was denied, as was the
involvement of the offending Jeep. It was
pleaded in the alternative that without
prejudice to the last mentioned plea, in case
it were proved that the accident happened,
involving the ill-fated Jeep, it was then the
Insurers' case that the Jeep was not being
rashly and negligently driven. The owner
had not maintained the ill-fated Jeep. It was
not roadworthy on the date of accident. It
7 All. Brahma Nand Maurya Vs. United India Insurance Co. Ltd. & Ors.
219
was being plied against the terms and
conditions of the insurance policy. The
insurance of the vehicle too was denied.
The Insurers said that neither the owner had
filed the insurance policy in original in
Court nor furnished it to the Insurers. It was
also said on behalf of the Insurers that if the
owner proved that the premium had been
paid and Section 64-VB of the Insurance
Act, 1938 was complied with, in that case
alone the insurance policy would oblige
them; else not. The injuries, if any,
sustained by the claimant were simple and
cured after routine medical aid. The
compensation claimed is excessive and
exorbitant. The driver of the ill-fated Jeep
did not hold a valid and effective driving
licence as envisaged under the Motor
Vehicles Act, 1988 (for short, 'the Act').
Accordingly, the Insurers were not liable to
indemnify the assured for the said reason. It
was pleaded that the claimant bears the
burden to prove by cogent evidence that he
was travelling on board the ill-fated Jeep.
In the submission of the Insurers, the claim
petition deserved to be dismissed.

7. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

"1. Whether on 29.04.1996 at
about 11:30 a.m. within the limits of
Village Palahipar near the Durga Mandir,
falling
under
Police
Station
Khajni,
District Gorakhpur, Jeep No. UPK-8702
collided with a tree, on account of the
driver's speed and negligence, resulting in
life threatening and grievous injury to
Brahma Nand Maurya and that these
injuries caused him to be handicapped?

2. Whether at the time of the
accident in question, the driver held a valid
driving licence?

3. Whether at the time of the
accident in question, the vehicle in question
was insured with opposite party No.3?

4. Whether at the time of the
accident in question, the vehicle was being
used contrary to the terms of the insurance
policy?

5. To what compensation is the
claimant entitled and from which opposite
party?

6. Any relief, to which the
claimant might be entitled?"

8. In support of the claim petition, the
claimant examined himself as PW-1, Ram
Bachan as PW-2 and Dr. S.C. Kaushik as
PW-3. Radha Mohan Dhar Dwivedi,
Investigator for the Insurers was examined
on their behalf as DW-1 and Sanjay Kumar
Sinha, Junior Clerk in the office of the
R.T.O., Gorakhpur was examined as DW2.

9. The claimant in his documentary
evidence through a list, bearing paper
No.59-Ga placed on record 28 documents.
These include a copy of the FIR, the site
plan, the charge-sheet and GD. Also
included amongst the document are the
medical papers of the claimant and cashmemos showing purchase of medicines.
Vide another list, 124-Ga, the claimant's
birth certificate was filed. Another list, 68Ga, carried with it paper No.69-Ga, which
is a certified copy of the claimant's
registration
certificate
showing
his
enrollment as an Advocate. Besides,
through another list, bearing paper No.70Ga was filed the claimant's handicap
certificate. A list of documents, bearing
paper No.95-Ga was filed to bring on
record a report from the R.T.O.'s office
relating to the driving licences of Ram
Kripal and Balram Mishra. By a list of
document No.16-Ga, paper No.17-Ga,
220 INDIAN LAW REPORTS ALLAHABAD SERIES
another list of document No.90-Ga, paper
Nos.91-Ga to 92-Ga, list of document
No.100-Ga, paper No.101-Ga and a list of
document No.86-Ga, paper No.87-Ga to
88-Ga/2 were filed. All these documents
relate to registration and insurance.

10. The Tribunal decided Issue No.1 in
the affirmative and in favour of the claimant,
holding that the driver of the ill-fated Jeep
caused the accident due to his gross
negligence, high speed and rash driving,
dashing it against the tree near Village
Palahipar, in consequence whereof the
claimant sustained life threatening and
grievous injuries, which led him to be
handicapped. Issue Nos.2, 3 and 4 were
decided against the Insurers, holding that on
the date of the accident, the driver held a
valid and effective driving licence, the illfated Jeep was insured with the Insurers and
the vehicle was being used in accordance
with the terms of the insurance policy.

11. It is the findings on Issue Nos.5
and 6 alone that are impugned in this
appeal. These relate to the quantum of
compensation that the claimant has been
held entitled to by the Tribunal. The
Tribunal
awarded
a
total
sum
of
Rs.35,149/- towards medical expenses,
that includes the hospital bills and
purchase of medicines. The Tribunal held
the claimant's income to be Rs.5000/- per
month from his legal practice, but
negatived his income from agriculture
saying that there is no document to prove
it. The total period of deprivation of his
practice was held to be four months,
awarding him Rs.20,000/- for the loss of
income.
Towards
expenses
on
conveyance and special diet, a sum of
Rs.10,000/- has been granted. A sum of
Rs.10,000/- has been awarded under the
head of pain and suffering. About the
80% permanent handicap certificate, it
was observed by the Tribunal that the
claimant
moves
with
a
limp.
The
contention that the claimant has suffered
a loss of income to the extent of 80% was
negatived. The Tribunal opined that the
claimant while testifying as PW-1 had
admitted that his practice had suffered a
setback of 50% on account of his
handicap. Therefore, the loss of earning
capacity due to the functional disability
was assessed at Rs.2500/- per month,
making for an annual loss of Rs.30,000/-.
The loss of earning capacity has been
awarded for a period of ten years. Thus,
reckoned the total compensation was
determined by the Tribunal at a figure of
Rs.3,75,149/-.
The
aforesaid
compensation has been ordered to be paid
with 9% annual interest with effect from
the date of institution of the claim
petition, until realization.

12. Heard Mr. S.N. Tripathi, learned
Counsel for the claimant and Mr.
Anubhav Sinha, Advocate holding brief
of Mr. Amresh Sinha, learned Counsel
for the Insurers. No one has appeared on
behalf of the owner.

13. In order to ascertain damages
payable in an injury case, resulting in a
disability claimed to be permanent, the
principles governing the approach to the
issue have been adumbrated by the
Supreme Court in Raj Kumar v. Ajay
Kumar and another, (2011) 1 SCC 343,
where it has been held:

"12. Therefore, the Tribunal has
to first decide whether there is any
permanent disability and, if so, the extent of
such permanent disability. This means that
the Tribunal should consider and decide
with reference to the evidence:
7 All. Brahma Nand Maurya Vs. United India Insurance Co. Ltd. & Ors.
221

(i) whether the disablement is
permanent or temporary;

(ii)
if
the
disablement
is
permanent, whether it is permanent total
disablement
or
permanent
partial
disablement;

(iii) if the disablement percentage
is expressed with reference to any specific
limb, then the effect of such disablement of
the limb on the functioning of the entire
body, that is, the permanent disability
suffered by the person.

If the Tribunal concludes that
there is no permanent disability then there
is no question of proceeding further and
determining the loss of future earning
capacity. But if the Tribunal concludes that
there is permanent disability then it will
proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of
permanent disability of the claimant based
on the medical evidence, it has to
determine
whether
such
permanent
disability has affected or will affect his
earning capacity.

13. Ascertainment of the effect of
the permanent disability on the actual
earning capacity involves three steps. The
Tribunal has to first ascertain what
activities the claimant could carry on in
spite of the permanent disability and what
he could not do as a result of the
permanent disability (this is also relevant
for awarding compensation under the head
of loss of amenities of life). The second step
is to ascertain his avocation, profession
and nature of work before the accident, as
also his age. The third step is to find out
whether (i) the claimant is totally disabled
from earning any kind of livelihood, or (ii)
whether
in
spite
of
the
permanent
disability,
the
claimant
could
still
effectively carry on the activities and
functions, which he was earlier carrying
on, or (iii) whether he was prevented or
restricted from discharging his previous
activities and functions, but could carry on
some other or lesser scale of activities and
functions so that he continues to earn or
can continue to earn his livelihood.

14. For example, if the left hand
of a claimant is amputated, the permanent
physical or functional disablement may be
assessed around 60%. If the claimant was a
driver or a carpenter, the actual loss of
earning capacity may virtually be hundred
per cent, if he is neither able to drive or do
carpentry. On the other hand, if the
claimant was a clerk in government
service, the loss of his left hand may not
result in loss of employment and he may
still be continued as a clerk as he could
perform his clerical functions; and in that
event the loss of earning capacity will not
be 100% as in the case of a driver or
carpenter, nor 60% which is the actual
physical disability, but far less. In fact,
there may not be any need to award any
compensation under the head of "loss of
future earnings", if the claimant continues
in government service, though he may be
awarded compensation under the head of
loss of amenities as a consequence of
losing his hand. Sometimes the injured
claimant may be continued in service, but
may not be found suitable for discharging
the duties attached to the post or job
which he was earlier holding, on account
of his disability, and may therefore be
shifted to some other suitable but lesser
post with lesser emoluments, in which
case there should be a limited award
under the head of loss of future earning
capacity, taking note of the reduced
earning capacity."

14. Again, in Raj Kumar (supra), the
heads under which damages are to be
awarded in case of personal injury of a
permanent character, it has been laid down:
222 INDIAN LAW REPORTS ALLAHABAD SERIES

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

Pecuniary
damages
(Special
damages)

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

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

(a) Loss of earning during the
period of treatment;

(b) Loss of future earnings on
account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General
damages)

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

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

(vi) Loss of expectation of life
(shortening of normal longevity).

In routine personal injury cases,
compensation will be awarded only under
heads (i), (ii)(a) and (iv). It is 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."

15. Now, in this case, the claimant is
an Advocate, who was practicing in the
District Court for the past 22 years, when
he met with the accident. Apparently, he
was commanding a good practice and
claimed that he would earn Rs.6000/- a
month. The Tribunal has assessed it at a
sum of Rs.5000/- per month. Looking to
the length of his practice, there is no reason
to disturb the said finding by the Tribunal,
particularly, when the income assessed is a
reasonable figure, given the profession and
circumstances of the claimant and not very
different from what the claimant asserts.
The Tribunal has found under the head of
loss of earning during the period of
treatment, a total loss of income for the
period of four months. The claimant has
stated in his testimony that he was out of
practice on account of the injuries sustained
for a period of one year. The Tribunal has
not believed the said assertion with the
remark that the details of treatment in the
claim petition do not go beyond a period of
three months and that, therefore, the period
of total loss of income, considering the
treatment involved and the nature of
injuries, would be four months. This Court
does
not
agree
with
the
aforesaid
assessment
by
the
Tribunal.
In his
testimony, the claimant has stated thus:

"दुर्घटना में आयी चोटो के कारण में
7-8 माह तक चलने फिरने में असमर्घ र्ा। दो
माह वैशाखी पर चले उसके बाद अब भी छडी
से चलता ह ूं साल भर बाद मैं धीरे-2 कचहरी
आने लगा।"

16. There is nothing in the crossexamination of PW-1 that may discredit
any of his assertions, as above indicated,
made in his examination-in-chief. The
injury sustained by the claimant was
grievous, where the head of his left femur
had been badly fractured, and a part of it
had to be surgically removed, leading to
shortening of the leg by one and a half
inches. The nature of the injury, the impact
7 All. Brahma Nand Maurya Vs. United India Insurance Co. Ltd. & Ors.
223
whereof has been described by the
claimant, need not be doubted. The
claimant has said that he was nonambulatory for 7-8 months in the first
stretch. This followed locomotion with the
aid of crutches for two months. The
claimant then took aid of a walking stick
and resumed going to Court after a year.

17. An Advocate is an asset to the
society and the training of an Advocate
comes after long and toilsome years in the
profession. It is a behaviour commonplace
amongst members of the Bar that once
trained, disciplined and assimilated into the
profession, they find it hard to stay away
from their professional duties in Court. The
period of the claimant's absence described
in a graded normalcy back to work inspires
confidence and appears to be the correct
version about the period of time, during
which the claimant had to stay away from
work
per
compulsion.
This
Court,
therefore, has no hesitation to hold that the
claimant sustained a total loss of practice
and consequent total loss of income for a
period of one year. Given the fact that the
claimant's income, at the time he suffered
the accident, has been adjudged to be
Rs.5000/- a month, the total loss of income
calculated over a period of one year would
be Rs.60,000/-.

18. The next head of determination is
about the loss of future earnings caused by
the permanent disability. The Tribunal
while assessing the loss of future earnings
has looked into the handicap certificate,
where the permanent disability shown is
80%. This Court also looked into the
handicap
certificate
dated
16.09.1996
issued by a Board of Doctors in the office
of the Chief Medical Officer, Gorakhpur,
where the disability described is "FUC
head of F left with limping due to shorting
80%". A perusal of the certificate shows
that the claimant has suffered a permanent
disability, apparently to the extent of 80%
in one of his lower limbs and developed a
permanent limp.

19. The profession of an Advocate
requires not only mental alacrity and
faculties, but physical fitness to move
around, speak to clients, go out on
commissions and inspections, all of which
would be badly affected by a disability of
the kind sustained by the claimant. The
Tribunal has, however, readily accepted the
claimant's assertion in his testimony that he
has lost his practice on account of the
disability by 50%. Now, this being an
admission by the claimant about a fact that
may work to the diminishing of his claim,
can safely be accepted. The Tribunal has
precisely done that and this Court does not
see any reason to disagree. Therefore, the
permanent loss of future earnings on
account of permanent disability, would be a
figure of Rs.2500/- per month.

20. For some inexplicable reason, the
Tribunal has chosen to limit this loss to a
period of 10 years, virtually applying a
multiplier of '10'. The claimant has asserted
himself to be 47 years old, a fact that has
not been denied or disputed. This Court,
therefore, proceeds to find that the claimant
was 47 years old at the time of the accident.
Unfortunately,
the
Tribunal
has
not
recorded any finding about the claimant's
age. There was a date of birth certificate
filed on record and shortlisted in the
Tribunal's judgment as a document filed
along with a list of documents, bearing
paper No.124-Ga. Surprisingly, the list of
documents, bearing paper No.124-Ga is on
record,
but
there
is
no
document
accompanying it. This Court, therefore,
proceeds to accept the undisputed assertion
224 INDIAN LAW REPORTS ALLAHABAD SERIES
in the claim petition that the claimant was
47 years old, as already indicated above.

21. According to the principles laid
down by the Supreme Court in Sarla
Verma (Smt.) and others v. Delhi
Transport Corporation and another,
(2009) 6 SCC 121 for a person in the age
group of 46-50 years, the applicable
multiplier is '13'. Therefore, the claimant's
loss of future earnings on account of
permanent disability have to be multiplied
adopting the multiplier of '13'; not '10' as
done by the Tribunal. This would conclude
the terms on which the loss of future
earnings on account of permanent disability
are to be calculated.

22. The next issue to be considered is
compensation under the head of pecuniary
damages or special damages, or expenses
relating
to
treatment,
hospitalization,
medicines, transportation, nourishing food
and
miscellaneous
expenditure.
The
Tribunal has awarded towards expenditure
in the hospital a sum of Rs.25,660/-. The
aforesaid sum has been proved on the basis
of
voucher-cum-receipts
of
expenses,
incurred in the Jeevan Jyoti Centre dated
26.08.1996, bearing paper No.63-Ga/15.
The document is signed by Dr. S.C.
Kaushik, Orthopedic Surgeon. He appeared
in the witness-box to prove the document
and the Tribunal held it proved. The
Tribunal has, therefore, accepted the
aforesaid
expenditure
towards
hospitalization. Likewise, on a perusal of
the
cash-memos
of
the
medicines
purchased, the Tribunal has awarded a sum
of Rs.9489/- under the head of expenditure
relating to medicines. A sum of Rs.10,000/-
in all has been awarded towards expenses
incurred on nourishing food and payments
made for the services of an attendant during
the time that the claimant was recuperating.

23. So far as award towards expenses
relating to treatment, hospitalization and
medicines is concerned, this Court does not
find any reason to disagree with the
Tribunal. However, so far as the money
spent on nourishing food and the services
of attendant is concerned, all that has
figured in the claimant's testimony is that
he could not even move about on his own
or put on his clothes without assistance. In
the claim petition, the claimant has put
forward a claim of Rs.20,000/- towards
nourishing food and the services of an
attendant. This Court is inclined to think
that given the nature of the injuries
sustained by the claimant, the claim is
reasonable. The claim under the head of
expenses for nourishing food and the
services of an attendant ought to be
enhanced from Rs.10,000/- to Rs.20,000/-.

24. So far as the non-pecuniary
damages
or
general
damages
are
concerned, a total sum of Rs.10,000/- has
been awarded by the Tribunal towards
damage for pain, suffering and trauma. The
claimant
has
demanded
a
sum
of
Rs.5,35,000/- under the non-pecuniary
heads. In addition, for the loss of
expectation of life, a sum of Rs.20,000/-
has been claimed. The Tribunal has not
awarded
anything
towards
loss
of
expectation of life or shortening of the life
span in consequence of the injury. Learned
Counsel for the claimant has placed
reliance upon the decision of the Supreme
Court in Kajal v. Jagdish Chand and
others, (2020) 4 SCC 413 to submit that
compensation for pain and suffering ought
to be increased manifold, inasmuch as in
Kajal (supra), the compensation awarded
was enhanced from Rs.3,00,000/- to
Rs.15,00,000/-. A perusal of decision in
Kajal shows the following observations of
their Lordships:
7 All. Brahma Nand Maurya Vs. United India Insurance Co. Ltd. & Ors.
225

"26.
Coming
to
the
nonpecuniary damages under the head of pain,
suffering, loss of amenities, the High Court
has awarded this girl only Rs 3,00,000. In
Mallikarjun v. National Insurance Co. Ltd.,
(2014) 14 SCC 396 : (2015) 1 SCC (Civ)
335 : (2015) 1 SCC (Cri) 372 : (2013) 10
Scale 668], this Court while dealing with
the issue of award under this head held that
it should be at least Rs 6,00,000, if the
disability is more than 90%. As far as the
present case is concerned, in addition to
the 100% physical disability, the young girl
is suffering from severe incontinence, she is
suffering from severe hysteria and above
all she is left with a brain of a nine-monthold child. This is a case where departure
has to be made from the normal rule and
the pain and suffering suffered by this child
is such that no amount of compensation can
compensate.

27. One factor which must be
kept
in
mind
while
assessing
the
compensation in a case like the present one
is that the claim can be awarded only once.
The claimant cannot come back to court for
enhancement of award at a later stage
praying that something extra has been
spent.
Therefore,
the
courts
or
the
Tribunals assessing the compensation in a
case of 100% disability, especially where
there is mental disability also, should take
a liberal view of the matter when awarding
the compensation. While awarding this
amount, we are not only taking the physical
disability but also the mental disability and
various other factors. This child will
remain bedridden for life. Her mental age
will be that of a nine-month-old child.
Effectively, while her body grows, she will
remain a small baby. We are dealing with a
girl who will physically become a woman
but will mentally remain a 9-month-old
child. This girl will miss out playing with
her friends. She cannot communicate; she
cannot enjoy the pleasures of life; she
cannot even be amused by watching
cartoons or films; she will miss out the fun
of childhood, the excitement of youth; the
pleasures of a marital life; she cannot have
children who she can love, let alone
grandchildren. She will have no pleasure.
Her's is a vegetable existence. Therefore,
we
feel
in
the
peculiar
facts
and
circumstances of the case even after taking
a very conservative view of the matter an
amount payable for the pain and suffering
of this child should be at least Rs
15,00,000."

25. In the opinion of this Court, the
assessment of compensation for pain and
suffering in Kajal proceed on very extreme
facts of a 100% disability, where the young
girl was reduced to a bedridden life for all
times to come and the growth of her mental
faculty perpetually impaired to hold her
back at a mental age of nine months. In the
opinion of this Court, the principle, that
was laid down by their Lordships of the
Supreme Court, will not at all be of
assistance to the claimant here.

26. In Mohd. Sabeer alias Shabir
Hussain v. Regional Manager, U.P. State
Road Transport Corporation, 2022 SCC
OnLine SC 1701, the claimant was a scrap
dealer, travelling on board a bus to Delhi
from his native place Noor Pur, Gajrola.
The bus collided with a stationary tempo.
In consequence the claimant sustained
injuries. The disability certificate showed
the claimant to have suffered 70%
permanent disability in his right lower
limb, besides other injuries. The claimant's
permanent disability in that case arose from
the amputation of his right lower limb. It
was in that context held by their Lordships
of the Supreme Court that the functional
disability for the claimant, who was not a
226 INDIAN LAW REPORTS ALLAHABAD SERIES
salaried
man,
but
a
self-employed
businessman, ought to be assessed at 60%.
The compensation for pain and suffering in
the above background was determined at a
sum of Rs.2,00,000/-. The assessment
under various heads of compensation was
made by the Supreme Court, bearing in
mind the socio-economic background of
the claimant, who was held to be a man
from an economically weaker section of the
society. The following observations of the
Supreme Court in Mohd. Sabeer alias
Shabir Hussain (supra) are relevant:

"27. We are of the opinion that
while awarding compensation in cases of
permanent disability caused to claimants,
the courts must look at the case in totality,
and must consider the socioeconomic
background of the claimants. The Appellant
herein comes from an economically weaker
section of the society.

28. It is almost universally seen
that
persons
from
marginalized
backgrounds often face an additional layer
of discrimination due to bodily disabilities.
This is because persons from marginalized
sections of the society already face severe
discrimination due to a lack of social
capital, and a new disability more often
than not compounds to such discrimination.
In such circumstances, to preserve the
essence of justice, it becomes the duty of
the Court to at the very least restore the
claimant as best as possible to the position
he was in before the occurrence of the
disability, and to do so must award
compensation in a liberal manner."

27. In this case, the claimant has
suffered a 50% permanent disability, where
he has developed a permanent limp,
impairing not only his capability to work as
an Advocate the way he did earlier, but also
affected the quality of his life. With every
step that he takes now, being different from
what it was before the accident, his quality
of life, as a whole, would be perpetually
impaired. Therefore, while the claimant's
case may be a little less harsher for the
worth of pain and suffering than that before
their Lordships in Mohd. Sabeer alias
Shabir Hussain, it is still telltale of
enormous pain and suffering for the
claimant. The other factor, which has been
taken into account in Mohd. Sabeer alias
Shabir Hussain, is the economically
weaker section of the society which the
claimant hailed from in that case. The
claimant here is an Advocate, who cannot
be regarded a man from an economically
weaker section of the society. Yet, one
cannot lose sight of the fact that Advocates
in contemporary society function under
tremendous strain with no social support.
The social security provided by the State
Bar Council is marginal. Lesser is the
social security of a different kind offered
by the society, who would have no
sympathy for a Member of the Bar in
distress, a man whom they otherwise look
up to for help at every downturn of life.
Therefore, given the permanent handicap
and the pain and suffering involved, the
claimant is entitled to a compensation of
Rs.1,50,000/- under this head.

28. Now, it is turn to consider the
award of future prospects, the claimant
must be held entitled to on account of lost
income.
The
question
of
award
of
compensation for the loss of future
prospects in the case of a self-employed
man suffering a permanent disability on
account of an accident, engaged the
attention of the Supreme Court in Jagdish
v. Mohan and Others (2018) 4 SCC 571.
In Jagdish (supra), the claimant was a
carpenter, aged 24 years when the accident
happened. In the background of the said
7 All. Brahma Nand Maurya Vs. United India Insurance Co. Ltd. & Ors.
227
facts, the Supreme Court, relying on the
decision of the Constitution Bench in
National Insurance Co. Ltd. Vs. Pranay
Sethi, (2017) 16 SCC 680, held in
Jagdish:

"13. In the judgment of the
Constitution
Bench
in
Pranay
Sethi
(supra), this Court has held that the benefit
of future prospects should not be confined
only to those who have a permanent job
and
would
extend
to
self-employed
individuals. In the case of a self-employed
person, an addition of 40 per cent of the
established income should be made where
the age of the victim at the time of the
accident was below 40 years. Hence, in the
present case, the appellant would be
entitled to an enhancement of Rs. 2400/-
towards loss of future prospects.

14. In making the computation in
the present case, the court must be mindful
of the fact that the appellant has suffered a
serious disability in which he has suffered a
loss of the use of both his hands. For a
person engaged in manual activities, it
requires no stretch of imagination to
understand that a loss of hands is a
complete deprivation of the ability to
earn. Nothing - at least in the facts of this
case - can restore lost hands. But the
measure of compensation must reflect a
genuine attempt of the law to restore the
dignity of the being. Our yardsticks of
compensation should not be so abysmal
as to lead one to question whether our
law values human life. If it does, as it
must,
it
must
provide
a
realistic
recompense for the pain of loss and the
trauma
of
suffering.
Awards
of
compensation are not law's doles. In a
discourse
of
rights,
they
constitute
entitlements
under
law.
Our
conversations about law must shift from a
paternalistic
subordination
of
the
individual to an assertion of enforceable
rights as intrinsic to human dignity."

29. In the State of Uttar Pradesh, the
issue of addition towards future prospects
is not governed by the scale envisaged
under the law in Pranay Sethi (supra),
but by the Uttar Pradesh Motor Vehicles
Rules, 1998 (for short 'the Rules of
1998').

30.