# Virendra Kumar v. Vijay Kumar & Ors

- **Citation:** (2021) 3 ILRA 272
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-08
- **Case number:** FAFO No. 78 of 2011
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-v-vijay-kumar-ors-46164
- **Pages:** 17

## Headnote

Sri S.C. Srivastava

Claimant suffers a permanent disability
from injuries-assesment of compensation
under head of loss of future earningsdepend upon his earning capacity-in terms
of percentage of income-then to be
quantified in money-adoption of multiplier
method -Appeal allowed. (E-7)

Cases cited:

## Text

_Characters 0–39,972 of 56,753. This is a partial read: ask again with offset=39972 for what follows._

272 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court, to the Registrars of all High
Courts, who would in turn circulate it to all
the District Courts in the States. It shall be
displayed on the website of all District
Courts/Family Courts/Courts of Judicial
Magistrates
for
awareness
and
implementation."

28. In the aforesaid facts and
circumstances of the case, the Court does
not find any infirmity or illegality in the
order impugned so as to make interference
by this Court under Section 19 of the
Family Courts Act, 19849. The court below
has passed just and reasoned order and no
interference is required in the matter.

29. Consequently, first appeal fails
and is accordingly dismissed.

30. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by the appellant
alongwith a self attested identity proof of
the said person (preferably Aadhar Card)
mentioning the mobile number to which the
said Aadhar Card is linked.

31.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)03ILR A272
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2020

BEFORE
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.

FAFO No. 78 of 2011
Virendra Kumar ...Appellant
Versus
Vijay Kumar & Ors. ...Respondents

Counsel for the Appellant:
Sri B.P. Verma, Sri Mayank

Counsel for the Respondents:
Sri S.C. Srivastava

Claimant suffers a permanent disability
from injuries-assesment of compensation
under head of loss of future earningsdepend upon his earning capacity-in terms
of percentage of income-then to be
quantified in money-adoption of multiplier
method -Appeal allowed. (E-7)

Cases cited:

1. Rajesh Kumar @ Raju Vs Yudhvir Singh &
anr., 2008 (3) T.A.C. 17 (SC)

2. Smt. Sarita Verma & ors. Vs Delhi
Transport Corporation & anr., 2009 ACJ
1298

3. Syed Sadiq & ors. Vs Divisional Manager,
United India Ins. Company, 2014 (2) SCC
735

4. National Insurance Company Limited Vs
Pranay Sethi & ors, (2017) 16 SCC 680

5. The New India Assurance Company Ltd.
Through Divisional Manager Vs Mohammad
Navi, 2008 (72) ALR 620

6. The New India Assurance Co. Ltd Vs Amzad
Khan & ors, MANU/UP/0310/2016

7. R.D. Hattangadi Vs Pest Control (India) Pvt.
Ltd, (1995) 1 SCC 551

8. Common Cause, A Registered Society Vs
U.O.I., (1999) 6 SCC 667

9. Nagappa Vs Gurudayal Singh, (2003) 2 SCC
274

10. Divisional Controller, KSRTC Vs Mahadeva
Shetty, (2003) 7 SCC 197
3 All. Virendra Kumar Vs. Vijay Kumar & Ors.
273
11.Nizam's Institute of Medical Sciences Vs
Prasanth S. Dhananka, (2009) 6 SCC 1

12. Arvind Kumar Mishra Vs New India
Assurance Co. Ltd.(2010) 10 SCC 254

13. Arun Sondhi Vs DTC I (2001) ACC 615

14. New India Assurance Co. Ltd. Vs Senthil
Kumar, (2009) 2 LW 767

15. Raj Kumar Vs Ajay Kumar, (2011) 1 SCC 343

16. Govind Yadav Vs New India Insurance
Company Ltd, 2012 (1) TAC-1 (S.C.)

17. Dr. Dattatraya Laxman Shinde Vs Nana
Raghunath Hire, (2011) 5 Mah LJ 854

18. Ritu Vs Regional Manager Uttranchal State
Road Transport Corporation, 2014 ACJ 1133

19. Pt. Parmanand Katara Vs 20 U.O.I. & ors.,
1989 (III) SLVR-137

20.Civil Appeal No.242/243 of 2020 (National
Insurance Company Ltd. vs Birender & ors.)
decided on 13 January, 2020

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri B.P. Verma, learned
counsel for the claimant-appellant and Shri
S.C. Srivastava, learned counsel for the
insurance company.

2. The present appeal under Section
173 of the Motor Vehicles Act, 1988 has
been filed by the appellant, being aggrieved
by the judgment and order dated 21.9.2010
passed by the Motor Accident Claims
Tribunal/Additional District Judge, Court
no.7, Mathura in Motor Accident Claim
Petition No.239 of 2008 (Virendra Kumar
vs. Vijay Kumar and others) awarding a
sum of Rs.62,866/- for the expenses
incurred towards medicines and treatment
of the injuries sustained by the appellant in
a motor accident, alongwith 6% interest
from the date of filing of the claim petition
till the date of payment of compensation.

3. The claimant aged 45 years filed
MAC No.239 of 2008 against the driver &
owner of the vehicle and the insurance
company before the Motor Accident
Claims Tribunal/Additional District Judge,
Court
No.7,
Mathura
claiming
a
compensation of Rs.10,00,000/- along with
12% interest in respect of the injuries
suffered by him in the motor accident
alleged to have occurred on 17.2.2008
around 12.30 p.m.

4. The claim petition was filed stating
therein that on 17.2.2008 at about 12.30
PM the claimant was going alongwith his
friend Goverdhan Singh on a motorcycle
No.UP-85-R-5810 from Mathura to Farah
when the driver of the Qualis Vehicle
No.HR-70-7263 while driving the the
vehicle rashly and negligently hit the said
motorcycle from behind on N.H.2 near
village Mahuvan, damaging the motorcycle
and causing serious injuries to the driver
Goverdhan Singh as well as the pillion
rider- claimant. Regarding the said accident
the first information report was lodged at
the concerned police station. The claimantappellant was treated for injuries first at
Lifeline Hospital, Mathura where he was
under
treatment
from
17.2.2008
to
18.2.2008.
Subsequently,
when
his
condition
was
deteriorating,
he
was
admitted to Loknayak Hospital, Delhi and
he was admitted there from 19.4.2008 to
6.5.2008. During the treatment many
operations were performed on his body and
he was given 6 bottles blood. Due to the
accident the claimant-appellant suffered
serious physical and mental agony. On
account of the injuries caused in the said
accident the appellant suffered permanent
274 INDIAN LAW REPORTS ALLAHABAD SERIES
physical disability. Before the accident the
appellant was working as Guard at Toll
Plaza near Mathura Mahuvan/Barari and
getting salary of Rs.4,000/- per month. He
also
used
to
earn
Rs.4000/-
from
agricultural activities at his village. In this
manner, Rs.10,00,000/- was claimed along
with 12% interest.

5. The opposite party no. 3-insurance
company filed its written statement and
contested the claim of the claimant on
various grounds. Despite service of notices,
neither the opposite party nos.1 and 2
(driver and owner of the offending vehicle)
appear in the proceedings nor file any
written statement. In such situation, the
proceedings
was
conducted
ex-parte
against them vide order dated 28.7.2009.
The driver of the motorcycle also held to be
guilty of contributory negligence and as
such, he also contributed to the accident to
the extent of 20%. Finally, the Claims
Tribunal
awarded
Rs.46,866
towards
medical expenses; Rs.5000/- towards pain
and
suffering;
Rs.3000/-
towards
conveyance; Rs.3000/- towards attendant
charges and Rs.5000/- towards special diet.
In this manner, the claimant-appellant was
made entitled to receive a compensation of
Rs.46,866 + 5000+ 3000 + 3000 + 5000,
total compensation Rs.62,866/- alongwith
6% interest from the date of filing the claim
petition till the date of payment.

6. Learned counsel for the appellant
urged at the time of the hearing that the
claimant-appellant claimed compensation
of Rs.10,00,000/- for the injuries caused in
the accident but the Claims Tribunal had
awarded the compensation of Rs.62,866/-
only towards medical expenses/pain &
suffering/conveyance/attendant
charges/
special diet. It did not award any amount
towards loss of earning capacity. The
Claims Tribunal has not decided the issue
no.4, whether the appellant-claimant is
entitled for any compensation and if yes,
then how much and from whom. There was
no negligence on the part of the appellant.
The Claims Tribunal has committed an
error in holding that the appellant was also
held 20% negligent and this is also against
the evidence available on record. The
Claims Tribunal further erred in law in
deducting 20% compensation from the total
compensation of Rs.58,583/-. The appellant
filed medical bills of Rs.2,50,000/- but the
same were not granted by the Tribunal on
the ground that they vary in dates. The
disablement of 50% as in the certificate
was disbelieved by the Tribunal and the
same is against the provisions of Motor
Vehicle Act and Rules framed therein. It is
submitted that the compensation awarded
under the heads of pain and suffering, loss
of amenities, conveyance, special diet and
attendant charges is on a lower side and be
enhanced. In support of his submission he
has placed reliance on the judgements of
Apex Court in Rajesh Kumar alias Raju
vs. Yudhvir Singh and another1 ; Smt.
Sarita
Verma
and
ors
vs.
Delhi
Transport Corporation and another2;
Syed Sadiq and ors vs. Divisional
Manager, United India Ins. Company3;
National Insurance Company Limited
vs. Pranay Sethi and ors4. He has also
placed reliance on the judgement of this
Court in The New India Assurance
Company
Ltd.
Through
Divisional
Manager vs. Mohammad Navi5 and The
New India Assurance Co. Ltd vs. Amzad
Khan and ors6.

7. Learned counsel for the respondent,
on the other hand, made an endeavour to
justify the award of the MACT. In the
written statement it had taken a plea that in
the claim petition policy number of the
3 All. Virendra Kumar Vs. Vijay Kumar & Ors.
275
insurance of the vehicle and the validity of
the insurance company have not been
proved. It was the responsibility of the
applicant and registered owner of the
offending vehicle to prove that the said
accident took place from Qualis No.HR-707263 and at the time of the accident the
said vehicle was insured with the New
India Insurance Co. Ltd. Neither the
claimant made a party to the registered
owner of the motorcycle nor the insurance
company of the motorcycle. At the time of
accident the offending vehicle/Qualis was
not being driven by the driver having valid
licence. It had also taken a stand that the
vehicle
was
deliberately
planted
in
collusion with the owner of the offending
vehicle and the appellant just to shift the
liability to pay the compensation as the
vehicle was insured by the Insurance
Company.

8. The Court has proceeded to
examine the record in question as well as
the evidence adduced by the appellantclaimant on the issue of injury sustained by
him and finds that at the time of the
accident, the appellant was working as a
Guard
at
Toll
Tax
near
Mathura
Mahuvan/Barari.
The
appellant
had
produced evidence to the effect that he had
worked as a Guard and he was paying
salary of Rs.4000/-. He also earned
Rs.4000/- from agriculture and thus his
monthly income was Rs.8000/-. Insofar as
injuries suffered by the appellant in the said
accident are concerned, he had stated that
his health had impaired drastically because
of which he was firstly admitted in the
Lifeline Hospital, Mathura and thereafter
he was admitted to Loknayak Hospital,
Delhi. Because of all this he has suffered
50% permanent disability, apart from
mental and physical agony and the said
disability is going to give him frustration
and disappointment towards life. He
pleaded that this disability has affected his
efficiency in work as well resulting in loss
of future income as well. The appellant
contended that the Tribunal has not decided
the issue no.4, whether the appellantclaimant is entitled for any compensation
and if yes, then how much and from whom.
The appellant sustained injuries and the
injuries sustained by him and the treatment
taken by him are evident from the medical
documents and disability certificate and
was further supported by oral evidence of
the
appellant/claimant.
However,
the
Tribunal did not believe that the disability
of the appellant/claimant to the extent of
50% caused due to the said accident. As
already noticed above, the Tribunal granted
him compensation of Rs.62,866/- only by
reimbursing expenses incurred towards
treatment;
transportation,
mental
and
physical agony.

9. The law with respect to the grant of
compensation in injury cases is wellsettled. The injured is entitled to pecuniary
as
well
as
non-pecuniary
damages.
Pecuniary damages also known as special
damages are generally designed to make
good the pecuniary loss which is capable of
being calculated in terms of money
whereas
non-pecuniary
damages
are
incapable of being assessed by arithmetical
calculations. The pecuniary or special
damages, generally include the expenses
incurred by the claimants on his treatment,
special
diet,
conveyance,
cost
of
nursing/attending, loss of income, loss of
earning capacity and other material loss,
which may require any special treatment or
aid to the insured for the rest of his life.
The general damages or the non-pecuniary
loss include the compensation for mental or
physical shock, pain, suffering, loss of
amenities of life, disfiguration, loss of
276 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage prospects, loss of expected or
earning of life, inconvenience, hardship,
disappointment, frustration, mental stress,
dejectment and unhappiness in future life,
etc.

10. In R.D. Hattangadi v. Pest
Control (India) Pvt. Ltd.7, a road accident
resulted
in
100%
disability
due
to
paraplegia below waist to a lawyer (retired
Judge). The Supreme Court observed that
no amount of compensation can restore the
physical frame of the appellant. That is
why it has been said by Courts that
whenever any amount is determined as the
compensation payable for any injury
suffered during an accident, the object is to
compensate such injury "so far as money
can compensate" because it is impossible to
equate
the
money
with
the
human
sufferings or personal deprivations. Money
cannot renew a broken and shattered
physical frame. In its very nature whenever
a Tribunal or a Court is required to fix the
amount of compensation in cases of
accident, it involves some guess work,
some hypothetical consideration, some
amount of sympathy linked with the nature
of the disability caused. But all the
aforesaid elements have to be viewed with
objective standards. When compensation is
to be awarded for pain and suffering and
loss of amenity of life, the special
circumstances of the claimant have to be
taken into account including his age, the
unusual deprivation he has suffered, the
effect thereof on his future life.

11.

In
Common
Cause,
A
Registered Society v. Union of India8,
Hon'ble Supreme Court held that the object
of an award of damages is to give the
plaintiff compensation for damage, loss or
injury he has suffered. The Court further
held
that
the
elements
of
damage
recognized by law are divisible into two
main groups: pecuniary and non-pecuniary
loss. While the pecuniary loss is capable of
being arithmetically worked out, the non-
pecuniary loss is not so calculable. Nonpecuniary loss is compensated in terms of
money, not as a substitute or replacement
for other money, but as a substitute, what
McGregor
says,
is
generally
more
important than money: it is the best that a
court can do.

12. In Nagappa v. Gurudayal
Singh9, the Supreme Court held that if a
collection of cases on the quantum of
damages is to be useful, it must necessarily
be classified in such a way that comparable
cases can be grouped together. No doubt,
no two cases are alike but still, it is possible
to make a broad classification which
enables one to bring comparable awards
together. Inflation should be taken into
account while calculating damages.

13.

In
Divisional
Controller,
KSRTC v. Mahadeva Shetty10, the road
accident resulted in paraplegia due to
serious injury to the spinal cord. The
Supreme Court held that the object of
providing compensation is to mitigate the
hardship and place the claimant as far as
possible in the same position financially as
he was before the accident. The quantum of
damages fixed should be in accordance
with the injury. An injury may bring about
many consequences like loss of earning
capacity, loss of mental pleasure and many
such
consequential
losses.
A
person
becomes entitled to damages for mental
and physical loss, his or her life may have
been shortened or that he or she cannot
enjoy life, which has been curtailed
because
of
physical
handicap.
The
compensation awarded has to be "just" and
not a bonanza. Every method or mode
3 All. Virendra Kumar Vs. Vijay Kumar & Ors.
277
adopted for assessing compensation has to
be considered in the background of "just"
compensation
which
is
the
pivotal
consideration. Though by use of the
expression "which appears to it to be just",
a wide discretion is vested in the Tribunal,
the determination has to be rational, to be
done by a judicious approach and not the
outcome of whims, wild guesses and
arbitrariness. The expression "just" denotes
equitability, fairness and reasonableness,
and non-arbitrariness. A person not only
suffers injuries on account of accident but
also suffers in mind and body on account of
the accident throughout his life and a
feeling is developed that he is no more a
normal man and cannot enjoy the amenities
of life as another normal person can. The
Supreme Court further held that while
fixing compensation, suffering of the mind,
shortening of life expectancy, loss of
earning capacity, permanence of the
disability, loss of amenities of life etc. are
to be considered against the backdrop of
age, marital status, unusual deprivation one
has undertaken in one's life etc.

14. In Nizam's Institute of Medical
Sciences v. Prasanth S. Dhananka11, the
Supreme
Court
held
that
adequate
compensation
must
strike
a
balance
between the inflated and unreasonable
demands of a victim and the equally
untenable claim of the opposite party
saying that nothing is payable. The
Supreme Court further held that the case of
an injured and disabled person is, however,
more pitiable and the feeling of hurt,
helplessness, despair and often destitution
enures every day. The support that is
needed by a severely handicapped person
comes at an enormous price not only on the
victim but even more so on the injured's
family and attendants and the stress saps
their energy and destroys their equanimity.
The
Apex
Court
further
held
that
compensation has been computed keeping
in mind that the brilliant career of the
claimant has been cut short and there is, as
of now, no possibility of improvement in
the claimant's condition, the compensation
will ensure a steady and reasonable income
to the claimant for a time when the
claimant is unable to earn for himself.

15. In Arvind Kumar Mishra v.
New India Assurance Co. Ltd.12, the
road accident resulted in 100% permanent
disability to a final year engineering
student. The Supreme Court held the
functional disability to be 70% to compute
the loss of earning capacity according to
the multiplier method. The Supreme Court
further held that the whole idea of
compensation is to put the claimant in the
same position as he was insofar as money
can.
Perfect
compensation
is
hardly
possible but one has to keep in mind that
the victim has done no wrong; he has
suffered at the hands of the wrongdoer and
the court must take care to give him full
and fair compensation for what he had
suffered.

16. In Arun Sondhi v. DTC13, a
final year student aged 21 years pursuing
B.A. course from St. Stephen's College,
Delhi suffered leg amputation and paralysis
in a road accident which resulted in 100%
permanent disability. This Court enhanced
compensation
from
Rs.8,68,781/-
to
Rs.19,16,781/-. The relevant portion of the
judgment is reproduced hereunder:-

"4. It goes without saying that
Appellant
had
become
crippled
and
permanently
disabled
forever.
His
permanent disability was 100% and he was
living his life, whatever its worth, in a
wheelchair. It is also the admitted position
278 INDIAN LAW REPORTS ALLAHABAD SERIES
that he had become paraplegic and had lost
control even over his urine and stool. He
required assistance of an attendant and
medical treatment all the time which
involved a recurring expenditure. His plight
would not be described in words, nor could
his pain and suffering, frustration and
disappointments be gathered or gauged. An
athlete of yester-year must be ruing his
survival which had plunged him in a
veritable hell.

5. No money could obviously
compensate
him
for
all
this
and
consequently no reasonable compensation
could be determined for what he had and
must be going through. But all the same the
Courts had to undertake the exercise in the
discharge of their duty
if only to
compensate him to the extent payment of
money could. As was aptly observed in
Ward V James 1965 (1) APPER 56:-

"Although you cannot give a man
so gravely injured much for his lost year,
loss during his shortened span, that is,
during his expected "years of survival".
You can compensate him for loss of
earnings during that time and for the cost of
nursing treatment and attendance. But how
can you compensate him for being rendered
a helpless invalid. He has lost everything
that makes life worthwhile. Money is no
good to him. Yet Judges and Jurisdiction
have to do the best they can and give him
what they think is fair. No wonder they find
it well neigh insoluble. They are being
asked to calculate the incalculable. The
figure is bound to be for the most part of
converted sum."

6. Given regard to all this, it
becomes difficult to assess the non-
pecuniary damages in the present case
because whatever amount was awarded to
the incapacitated and crippled Appellant, it
would not restore his broken body and
shattered life. But all the same an effort
was required to be made to grant him a
reasonable compensation that could at least
mitigate his suffering and hardship had
reduce the intensity of his pain, if not
provide him bare minimum amenities and
enjoyment of life.

* * *

9. At this stage, we noticed
Supreme Court judgment in A.K.Mishra Vs.
Muniam Babu : [1999]2SCR518 awarding
Rs. 5 lacs to a 23 year old youngman whose
special cord was damaged in the road
accident,
by
and
large
in
similar
circumstances. But this judgment, in over
view, does not lay down any generalised
principle or guideline for award of nonpecuniary damages in serious accident injury
case. The determination of compensation in
such cases would depend on the facts and
circumstances
of
each
case
and
notwithstanding the element of sympathy
involved with the accident victim. We are
also conscious of the fact that assessment of
compensation in such cases had to be on
objective standards and not based on any
fanciful or whimsical calculations. But since
a bit of conjecture was permissible, it
presented no difficulty to make provision for
the recurring medical expenditure and
attendance for the Appellant and we feel that
estimated compensation for this was based on
a conservative estimate."(Emphasis Supplied)

17. In New India Assurance Co.
Ltd. v. Senthil Kumar14, the victim of a
road
accident
suffered
fracture,
compression of spinal cord and paraplegia
resulting in 100% disability. The Madras
High Court enhanced the compensation
from Rs.8,53,000/- to Rs.9,60,000/-. The
relevant portion of the judgment is as
under:-

"11. In this case, the injured
claimant suffered fracture and compression
3 All. Virendra Kumar Vs. Vijay Kumar & Ors.
279
of the spinal cord and has been diagnosed
as a paraplegic injury. According to
Webster
Dictionary
paraplegic
means
"complete paralysis of the lower half of the
body usually resulting from damage to the
spinal cord". The disability assessed in this
case under Ex.A-12 is 100% and that is not
in dispute. Therefore, adopting multiplier
method will be appropriate. In view of the
Full Bench decision in Cholan Roadways
Corporation,
compensation
under
two
heads, viz., loss of earning power and for
disability cannot be granted.

* * *

16. The Division Bench of this
Court in United India Insurance Co. Ltd.
v. Veluchamy. 2005 (1) CTC 38 sets out
the parameters as to when the multiplier
method can be adopted in the case of
injury. In Paragraph 11 of the decision
reads thus:

11. The following principles
emerge from the above discussion:

(a) In all cases of injury or
permanent disablement 'multiplier method'
cannot be mechanically applied to ascertain
the future loss of income or earning power.

(b) It depends upon various
factors such as nature and extent of
disablement, avocation of the injured and
whether it would affect his employment or
earning power, etc. and if so, to what
extent?

(c) (1) If there is categorical
evidence that because of injury and
consequential disability, the injured lost his
employment or avocation completely and
has to be idle for the rest of his life, in that
event loss of income or earnings may be
ascertained by applying the 'multiplier
method' as provided under the Second
Schedule to Motor Vehicles Act, 1988. (2)
Even so there is no need to adopt the same
period as that of fatal cases as provided
under the Schedule. If there is no
amputation and if there is evidence to show
that there is likelihood of reduction or
improvement in future years, lesser period
may be adopted for ascertainment of loss of
income.

(d) Mainly it depends upon the
avocation or profession or nature of
employment being attended by the injured
at
the
time
of
accident."(Emphasis
Supplied)

18. In Raj Kumar v. Ajay
Kumar15, the Supreme Court considered
in great detail the correlation between the
physical disability suffered in an accident
and the loss of earning capacity resulting
from it. In paragraphs 10, 11 and 13 of the
judgment in Raj Kumar, this Court made
the following observations:

10. Where the claimant suffers a
permanentdisabilityas 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
disabilityon
his
earning
capacity.The
Tribunal
should
not
mechanically apply the percentage of
permanentdisabilityas 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
permanentdisabilitywill be different from
the
percentage
of
permanentdisability.Some
Tribunals
wrongly assume that in all cases, a
particular extent (percentage) of permanent
disabilitywould result in a corresponding
loss of earning capacity, and consequently,
if the evidence produced show 45% as the
permanentdisability, 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
280 INDIAN LAW REPORTS ALLAHABAD SERIES
the
extent
(percentage)
of
permanentdisabilitywill 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
permanentdisabilityon 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 permanentdisability is
approximately the same as the percentage
of permanentdisabilityin which case, of
course, the Tribunal will adopt the said
percentage
for
determination
of
compensation. (See for example, the
decisions of this Court in Arvind Kumar
Mishra v. New India Assurance Company
Ltd. (2010) 10 SCC 254 and Yadava
Kumar v. National Insurance Company
Ltd. (2010) 10 SCC 341).

13. Ascertainment of the effect of
the
permanentdisabilityon
the
actual
earning capacity involves three steps. The
Tribunal has to first ascertain what
activities the claimant could carry on in
spite of the permanentdisabilityand what he
could
not
do
as
a
result
of
the
permanentdisability(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 permanentdisability,
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."

19. The aforesaid observation made by
Hon'ble Apex Court in the case of Raj Kumar
(supra), was reiterated in the case of Govind
Yadav Vs. New India Insurance Company
Ltd.16, by observing as under :-

"14. The provision of the Motor
Vehicles Act, 1988 ("the Act", for short)
makes it clear that the award must be just,
which means that compensation should, to
the extent possible, fully and adequately
restore the claimant to the position prior to
the accident. The object of awarding damages
is to make good the loss suffered as a result
of wrong done as far as money can do so, in a
fair, reasonable and equitable manner. The
court or the Tribunal shall have to assess the
damages objectively and exclude from
consideration any speculation or fancy,
though some conjecture with reference to the
nature of disability and its consequences, is
inevitable. A person is not only to be
compensated for the physical injury, but also
for the loss which he suffered as a result of
such injury. This means that he is to be
compensated for his inability to lead a full
life, his inability to enjoy those normal
amenities which he would have enjoyed but
for the injuries, and his inability to earn as
much as he used to earn or could have
earned. 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,
3 All. Virendra Kumar Vs. Vijay Kumar & Ors.
281
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. In our view, the principles of
law laid down in Arvind Kumar Mishra V.
New India Assurance Company Ltd.
(supra) and Raj Kumar V. Ajay Kumar
(supra) must be followed by all the
Tribunals
and
the
High
Courts
in
determining the quantum of compensation
payable to the victims of accident, who are
disabled either permanently or temporarily.
If the victim of the accident suffers
permanent disability, then efforts should
always be made to award adequate
compensation not only for the physical
injury and treatment, but also for the loss of
earning 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."

20. In Dr. Dattatraya Laxman
Shinde v. Nana Raghunath Hire17, a
young doctor suffered paraplegia in a
motor accident. The paraplegia affected
both motor and sensory below thoracic 12
with
complete
bladder
and
bowel
involvement. Following R.D. Hattangadi
(supra) and Raj Kumar (supra), the
Bombay
High
Court
enhanced
the
compensation
from
Rs.8,85,000/-
to
Rs.34,50,000/-. The relevant portion of the
judgment is as under:-

"23. In the present case, the
Appellant will never be able to practice
medicine. He will not be able to continue as
a lecturer due to physical disability.
Moreover,
witness
examined
by
the
Appellant admitted that the Appellant is not
qualified for the post of a lecturer as he is
not holding a post graduate degree. He is
incapable of earning any income. No
argument is necessary to come to the
conclusion that this is a case of 100% loss
of earning capacity. In the year 1993, the
income of the Appellant as a lecturer was
around Rs. 4,200/-. The Appellant had an
excellent academic record. It is obvious
that the income of the Appellant would
have been much higher than Rs. 4,200/-. In
a matter like this, exercise of determining
the compensation always involves an
element of guess work. Looking to the
academic record of the Appellant, the
income can be reasonably taken at Rs.
6,000/- per month. Multiplier of 18 will
have to be applied as on the date of the
accident the age of the Appellant was about
25 years. Applying multiplier of 18, the
loss of income can be quantified at Rs.
282 INDIAN LAW REPORTS ALLAHABAD SERIES
12,96,000/-(Rs. 6000 × 12 × 18). As
pointed out earlier, the entire body of the
Appellant
below
waist
has
become
paralytic and he has no control over bladder
and
bowel
movement.
He
regularly
requires catheterisation. As stated by Dr.
Joshi, he requires an attendant for 24 hours.
Even if the conservative estimate of cost of
one attendant is taken at Rs. 200/- per day,
the amount will be Rs. 6,000/- per month.
Adopting multiplier method, the total
amount will come to Rs. 12,96,000/-.

24. As far as claim of expenditure
on medical treatment is concerned, it is
brought on record that the Appellant was
admitted in three different hospitals in Pune
and in hospitals at Karad and Satara. The
Appellant was also admitted to the
institution at Coimbatore for a period of
more than two months. Lot of expenditure
must have been incurred on travelling and
residence of the relatives and friends of the
Appellant. The bills evidencing expenditure
on medicines, medical treatment, special
diet, travelling expenses and residence of
the relatives and friends of the Appellant
have been produced on record. There are
four lists of documents marked as 85/1 to
85/4. Along with the said four lists,
voluminous original documents such as
bills, vouchers etc. have been produced on
record. As expected, none of the documents
were admitted by the Respondent No. 3.
Perhaps the Respondent No. 3 wanted that
large number of witnesses should be
examined to prove the documents. In the
examination-in-chief, the Appellant has
made a reference to all the bills and
vouchers. The Tribunal constituted under
the said Act is not bound by strict rules of
evidence. Therefore, the said bills and
vouchers ought to have been taken into
consideration by the Tribunal in absence of
the specific case made out that the
documents were fabricated. The total
amount reflected from the said bills and
vouchers is Rs. 1,54,526/-, which can be
rounded off to Rs. 1,55,000/-. Therefore, no
separate amount can be awarded by the
Tribunal for purchasing equipment such as
chair, water bed etc.

25.
Evidence
of
Dr.
Joshi
indicates that the Appellant will have to
continuously remain under medication. Dr.
Joshi has stated that such patients who are
suffering from paraplegia can suffer many
ailments. In paragraph 5 above, the detailed
version of Dr. Joshi on the treatment
required in future has been reproduced. Dr.
Joshi has said "The parapleagic patients are
known to go into severe depressions and
sometimes result is suicide. Parapleagic are
known to have severe rediating pain in both
legs and back which is neurological in
origin. In addition to this, they suffer from
multiple bladder infections which may led
to superadded kidney infection and also
injuries to both legs due to loss of
sensation. Besides which a previously
walking about patient sees a futile future
and this leads him to suicidal tendency. The
neuronal irritation gives rise to severe
burning pains in both the legs. All these
symptoms stated above were found in the
said patient Dr. Shide. For subsiding this
pains, tablets like Mazetol are given i.e.
antiepileptic drug. The side effect of this
medicine is mainly drowziness, grastic
irritation, with reflex depression. It also
affects appetite with the loss of appetite
with decrease in multi-vitamins in the
body. Such type of patient is required
supplementation of multi-vitamins along
with high protein diet. These patients
require self catheterisation to remove the
urine from the bladder from time to time.
This could lead to multiple episodes of
infections which have to be treated by
higher antibiotics. Also these patients are
required to sleep on a water bed or aid-bed
3 All. Virendra Kumar Vs. Vijay Kumar & Ors.
283
to avoid pressure sores over the legs and
buttocks. In addition to that the patient
requires high protein diet along with multivitamin
supplementation
and
enema
frequently
to
regularise
the
bowel
movements.
They
require
passive
physiotherapy for both the lower limbs.
Usually at night time, tranquillizers are
given to help the patient sleep. At times,
there is a reflex spasm of the lower limbs in
certain patients which usually develops
between 4 to 6 years and for which
tranquillizers is given. The supplementary
food contains high fiber and protein
contain." The Tribunal has granted only a
sum of Rs. 1,00,000/- for future expenses
on treatment. The Appellant will require
large amount in future on medicines and
equipment like wheelchairs, water bed,
catheters etc. Even by a conservative
estimate, the said amount cannot be less
than Rs. 2,50,000/-.

26. The real problem is in
determining non-pecuniary loss because
there are no fix standards for assessing the
non-pecuniary loss. In a case like this
where the victims suffer from paraplegia,
the non- pecuniary loss will be basically
under the following headings.

i. pain and suffering;

ii. loss of amenities of the life;
and

iii.
loss
or
destruction
for
prospects of marriage. As far as first two
items are concerned, in cases of a child or
young person, who suffers paraplegia, the
amount will be much higher than the
entitlement of a person who suffers
paraplegia at a comparatively late age.
Therefore, there is variance in the amounts
fixed by this Court as well as the Apex
Court in such cases. The Apex Court and
this Court in its various decisions has
granted
amounts
ranging
from
Rs.
1,00,000/- together under the first two
headings to a very high amount. In the case
of Nizam's Institute of Medical Sciences
(supra), where the Apex Court was dealing
with a case arising out of an order passed
by the Consumer Redressal Forum, a very
high amount of Rs. 10,00,000/- has been
granted on account of the pain and
suffering. That was a case of engineering
student aged 20 years, who was a victim of
medical negligence. The case before the
Apex Court was of a young student who
being the victim of paraplegia was confined
to wheelchair, and who pursued career in
education and ultimately got employed as
I.T. engineer at a handsome salary.
Reliance was placed on the judgment of the
Division Bench in the case of The New
India Assurance Co. Ltd. v. Shweta Dilip
Mehta (supra).