Pappu Deo Yadav v. Naresh Kumar and Ors.
S. RAVINDRA BHAT, J.
1. The appellant questions a decision of the High Court of Delhi1.
On 18.05.2012, the appellant was injured in a motor accident while
travelling to Hapur as a passenger in a bus, having pai d the requisite
fare. At about 1.30 pm when the bus reached village Sadikpur , PS-
Hafizpur, Hapur, Uttar Pradesh, the driver of the offending bus (the first
respondent) sought to overtake the bus in which the appella nt was
travelling, from the wrong side, and zipped the appellant’s bus, scratching
it. This rash and negligent act caused a dent in the bus where the appellant
was seated, as a result of which he suffered injuries. The appellant was
removed to Dr. Khan’s Rehan hospital and thereafter, AIIMS Tra uma
Center. The appellant claimed compensation, impleading the owner, the
PAPPU DEO YADA V v. NARESH KUMAR AND ORS.
1 dated 13.09.2018, in M.A.C. APP. 520/ 2016
driver of the vehicle, and the insurer. During the course of proceedings
before the Motor Accident Claims Tribunal, he applied for ascertainment
of his disability. The disability report (Ex. PW-l/9 dated 01.04.2014 issued
by Pandit Madan Mohan Malviya Hospital, during the motor vehicles
compensation claim proceedings) showed that he suffered 89% disability
in relation to his right upper limb, which had to be amputated. The report
also went on to say that the condition was “non progressive, not likely
to improve. Reassessment is not recommended”. A first information
report (FIR) regarding the accident was registered (FIR No. 57/12), a s
case Crime No. 255/12, Hazifpur Police Station, Hapur, Uttar Pradesh,
under Sections 279 and 338 of the Indian Penal Code, 1860.
2. The appellant, at that time unmarried, was working as a data
entry operator/typist at Tis Hazari Courts. Prior to the injury, he earned
an amount of 12,000 per month. He had applied for grant of compensation
under Sections 166 and 140 of the Motor Vehicles Act, 1988, (hereafter
“the Act”) claiming a sum of 50 lakhs with interest at the rate of 1 2%
per annum against the first respondent, (the driver of the bus at the time
of the accident), the second respondent (owner of the vehicle), and third
respondent (the insurer). The Motor Accident Claims Tribunal (hereafter
the “Tribunal”) rejected the insurer’s objection regarding its jurisdiction
and further held that the appellant had suffered serious injuri es due to
rash and negligent driving of the respondent. It awarded compensation
in the following terms:
1. Compensation for medical expenses 11,000
2. Compensation for pain and suffering 30,000
3. Compensation for special diet, attendant and
conveyance charges
30,000
4. Loss of future earning capacity/ income 11,66,400
5. Loss of amenities and enjoyment of life 15,000
6. Compensation for disfigurement 25,000
7. Loss of income during treatment 48,000
8. Future medical expenses 1,00,000
9. TOTAL 14,25,400
3. While assessing loss of earning capacity, the Tribunal took the
appellant’s income to be 8000 per month, and added 50% towards future
prospects. At the time of the accident, the appellant was only 20 years
of age. Therefore, a multiplier of 18 was applied. The physical disability
was assessed to be 45%, by the Tribunal. The High Court, to which the
claimant appealed (and the insurer cross appealed), revised this head of
975
compensation by doing away with the addition of 50% towards futur e
prospects, and reassessed the compensation for loss of earning capacity
as 7,77,600 (8000 x 12 x 45% x 18). The total compensat ion was
reassessed by the High Court to be 14,36,600, after enh ancing the
compensation for disfigurement, diet, attendant and conveyance, loss of
amenities and enjoyment of life, and pain and suffering. Further, an interest
of 9% per annum was imposed. In reducing the amount awarded for
loss of future prospects, the High Court noticed this court’s judgments in
National Insurance Company Ltd. v. Pranay Sethi & O rs.2 and
Jagdish v. Mohan & Ors 3 both by three-judge benches of this court.
4. The appellant argues that the impugned judgment is in material
error, in misreading this court’s judgments in Pranay Sethi & Ors 4 which
was later followed in Jagdish 5 by a three judge Bench, which had ruled
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,
and in case of self- employed persons an addition of 40% of established
income should be made where the age of the victim at the ti me of the
accident was below 40 years. It was urged that the decision in Anant s/
o of Sidheshwar Dukre v. Pratap s/o Zhamnnappa- Lamzane & Anr.6
relied on by the High Court, did not assess future prospects. Howev er,
that per se did not preclude claims by persons incurring permanent
disablement as a consequence of motor accidents, from seeking s uch
heads of compensation. It is urged that the High Court misread and
created a distinct category of cases where addition in income tow ards
“future prospects” can only be given in case of death, and not for injury,
which cannot be the intention of this court as no such observation i s
made. It was argued that the High Court should have reasses sed and
not reduced ‘the loss of future earning capacity’ of the appellan t from
11,66,400/- (determined by the tribunal) to 7,77,600/- on the wrongly
depressed income of 8000/-. Learned counsel submit ted that the
assessment of monthly income should have been Rs.12,000/- and not
Rs.8,000/. It was submitted that the courts below ignored the fact that in
2012, persons earning Rs.12, 000/- per month did not have to file income
PAPPU DEO YADA V v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
2 (2017) 16 SCC 860.
3 (2018) 4 SCC 571
4 Supra n.2
5 Supra n.3
6 2018 (9) SCC 450
tax returns or pay tax. The High Court further erred in assess ment of
physical permanent disability of injured as 45%, even though it was 100%.
5. Counsel for the insurer, who contested the appeal, urged this
court not to interfere with the impugned judgment, and stated tha t the
assessment of compensation was made by the High Court in conformity
with this Court’s decisions. It was highlighted that permanent disability
of loss of one arm, cannot lead to loss of earning capacity of up to 90%
and consequently, the assessment of compensation on the head of loss
of earning capacity was correctly fixed at 45%. He also argued that as
far as income is concerned, although the appellant relied on the
independent testimony of a lawyer (who stated that he used to pay him
about 300/- per day), there was no proof of payment of income t ax to
support the claim that the appellant earned 12,000/- per month. The
production of the PAN card ipso facto did not establish income at the
level claimed. Further, the counsel urged that the impugned judgm ent
correctly appreciated the law, and loss of alleged future earning capacity
was turned down.
6. The principle consistently followed by this court in assessi ng
motor vehicle compensation claims, is to place the victim i n as near a
position as she or he was in before the accident, with other compensatory
directions for loss of amenities and other payments. These general
principles have been stated and reiterated in several decisions. 7
7. Two questions arise for consideration: one, whether in cases of
permanent disablement incurred as a result of a motor acci dent, the
claimant can seek, apart from compensation for future loss of income,
7 Govind Yadav v. New India Insurance Co. Ltd. [ Govind Yadav v. New India Insurance
Co. Ltd. , (2011) 10 SCC 683. This court referred to the pro nouncements in R.D.
Hattangadi v. Pest Control (India) (P) Ltd. , (1995) 1 SCC 551; Nizam’s Institute of
Medical Sciences v. Prasanth S. Dhananka (2009) 6 SCC 1; Reshma Kumari v. Madan
Mohan (2009) 13 SCC 422; Raj Kumar v. Ajay Kumar , (2011) 1 SCC 343. Govind
Yadav spelt out these principles by stating that the cour ts should,
“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 t reatment, 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.”
These decisions were also followed in ICICI Lombard General Insurance Co. Ltd. v.
Ajay Kumar Mohanty , (2018) 3 SCC 686.
977
amounts for future prospects too; and two, the extent of disabil ity. On
the first question, the High Court no doubt, is technically correct in holding
that Pranay Sethi 8 involved assessment of compensation in a case where
the victim died. However, it went wrong in saying that later, the three-
judge bench decision in Jagdish 9 was not binding, but rather that the
subsequent decision in Anant 10 to the extent that it did not award
compensation for future prospects, was binding. This court is of the
opinion that there was no justification for the High Court to have rea d
the previous rulings of this court, to exclude the possibility of compensation
for future prospects in accident cases involving serious injuries resulting
in permanent disablement. Such a narrow reading of Pranay Sethi 11 is
illogical, because it denies altogether the possibility of the living victim
progressing further in life in accident cases - and admits such possibility
of future prospects, in case of the victim’s death.
8. This court has emphasized time and again that “j ust
compensation” should include all elements that would go to place the
victim in as near a position as she or he was in, before the occurrence of
the accident. Whilst no amount of money or other material compensation
can erase the trauma, pain and suffering that a victim undergoes after a
serious accident, (or replace the loss of a loved o ne), monetary
compensation is the manner known to law, whereby society ass ures
some measure of restitution to those who survive, and the victims who
have to face their lives. In Santosh Devi v. National Insurance
Company Limited 12 , this Court held that:
“14. We find it extremely difficult to fathom any rationale for
the observation made in paragraph 24 of the judgmen t in
Sarla Verma’s case that where the deceased was self-empl oyed
or was on a fixed salary without provision for annu al
increment, etc., the Courts will usually take only t he actual
income at the time of death and a departure from thi s rule
should be made only in rare and exceptional cases involving
special circumstances. In our view, it will be nave to say that
the wages or total emoluments/income of a person who is s elf-
employed or who is employed on a fixed salary witho ut
PAPPU DEO YADA V v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
8 Supra n.2
9 Supra n.3
10 Supra n.6
11 Supra n.2
12 (2012) 6 SCC 421
provision for annual increment, etc., would remain the sa me
throughout his life.
15. The rise in the cost of living affects everyone a cross the
board. It does not make any distinction between rich and poor.
As a matter of fact, the effect of rise in prices which di rectly
impacts the cost of living is minimal on the rich and maxim um
on those who are self-employed or who get fixed inc ome/
emoluments. They are the worst affected people. The refore,
they put extra efforts to generate additional income necessary
for sustaining their families.
16. The salaries of those employed under the Centra l and
State Governments and their agencies/instrumentalities have
been revised from time to time to provide a cushion ag ainst
the rising prices and provisions have been made for providing
security to the families of the deceased employees. The sal aries
of those employed in private sectors have also incr eased
manifold. Till about two decades ago, nobody could have
imagined that salary of Class IV employee of the Government
would be in five figures and total emoluments of those in higher
echelons of service will cross the figure of rupees one lac.
17. Although, the wages/income of those employed in
unorganized sectors has not registered a correspond ing
increase and has not kept pace with the increase in the salar ies
of the Government employees and those employed in pr ivate
sectors but it cannot be denied that there has been incremental
enhancement in the income of those who are self-emplo yed
and even those engaged on daily basis, monthly basis or even
seasonal basis. We can take judicial notice of the fact that
with a view to meet the challenges posed by high cost of l iving,
the persons falling in the latter category periodically in crease
the cost of their labour. In this context, it may b e useful to
give an example of a tailor who earns his livelihoo d by
stitching cloths. If the cost of living increases and the prices
of essentials go up, it is but natural for him to incre ase the
cost of his labour. So will be the cases of ordinary skilled and
unskilled labour, like, barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making th e
observations in the last three lines of paragraph 24 of Sarla
979
Verma’s judgment, the Court had intended to lay dow n an
absolute rule that there will be no addition in the income of a
person who is self-employed or who is paid fixed wa ges.
Rather, it would be reasonable to say that a person who is
self-employed or is engaged on fixed wages will also get 30
per cent increase in his total income over a period of time
and if he / she becomes victim of accident then the same
formula deserves to be applied for calculating the amount of
compensation.”
9. In Jagdish 13 the victim, a carpenter, suffered permanent
disablement, and his claim for compensation including for loss of future
prospects was considered by a three-judge bench (which included,
incidentally, the judges who had decided Pranay Sethi 14 ). This court
held that:
“13. In the judgment of the Constitution Bench in P ranay
Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017)
16 SCC 680], this Court has held that the benefit of future
prospects should not be confined only to those who h ave a
permanent job and would extend to self-employed individuals.
In the case of a self-employed person, an addition of 40% o f
the established income should be made where the age of t he
victim at the time of the accident was below 40 years. Hence ,
in the present case, the appellant would be entitle d to an
enhancement of Rs 2400 towards loss of future prospe cts.
14. In making the computation in the present case, the cour t
must be mindful of the fact that the appellant has suffe red a
serious disability in which he has suffered a loss of th e 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 t o earn.
Nothing—at least in the facts of this case—can rest ore lost
hands. But the measure of compensation must reflect a genuine
attempt of the law to restore the dignity of the be ing. 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 recompe nse for the
PAPPU DEO YADA V v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
13 Supra .n.3
14 Supra n.2
pain of loss and the trauma of suffering. Awards of
compensation are not law’s doles. In a discourse of r ights,
they constitute entitlements under law. Our convers ations
about law must shift from a paternalistic subordination of the
individual to an assertion of enforceable rights as intrinsic
to human dignity.
15. The Tribunal has noted that the appellant is un able to
even eat or to attend to a visit to the toilet without the assistance
of an attendant. In this background, it would be a den ial of
justice to compute the disability at 90%. The disab ility is
indeed total. Having regard to the age of the appel lant, the
Tribunal applied a multiplier of 18. In the circumstances, t he
compensation payable to the appellant on account of the loss
of income, including future prospects, would be Rs 18, 14,400.
In addition to this amount, the appellant should be g ranted
an amount of Rs 2 lakhs on account of pain, sufferin g and
loss of amenities. The amount awarded by the Tribunal towards
medical expenses (Rs 98,908); for extra nourishment (Rs
25,000) and for attendant’s expenses (Rs 1 lakh) is
maintained. The Tribunal has declined to award any amount
towards future treatment. The appellant should be a llowed
an amount of Rs 3 lakhs towards future medical expe nses.
The appellant is thus awarded a total sum of Rs 25,38,308 by
way of compensation. The appellant would be entitle d to
interest at the rate of 9% p.a. on the compensation fr om the
date of the filing of the claim petition. The liabil ity to pay
compensation has been fastened by the Tribunal and by the
High Court on the insurer, owner and driver jointly and
severally which is affirmed. The amount shall be de posited
before the Tribunal within a period of 6 weeks from today
and shall be paid over to the appellant upon proper
identification.”
10. The recent decision in Parminder Singh v. New India
Assurance Co. Ltd 15 , involved an accident victim who underwent surgery
for hemiplegia 16 . According to the treating medic, he could not work as
a labourer or perform any agricultural work, or work as a driver (as he
15 (2019) 7 SCC 217
16 Weakness of one half of the body on the left side; in this case, caused by an accident.
981
was wont to); the assessment of his disability was at 75%, a nd of a
permanent nature. The court held that:
“5.2. On the basis of the affidavit filed by the employer of the
appellant, we accept that the income of the appellant was R s
10,000 p.m. at the time of the accident, for the pu rpose of
computing the compensation payable to him.
5.1. The appellant has however, produced an affidavit by his
employer in this Court. As per the said affidavit, the appell ant
was earning Rs 10,000 p.m. at the time of the accident.
5.3. Taking the income of the appellant as Rs 10,000 p. m.,
with future prospects @ 50% as awarded by the High Court,
the total income of the appellant would come to Rs 1 5,000
p.m.
5.4. The appellant was 23 years old at the time when th e
accident occurred. Applying the multiplier of 18, the lo ss of
future earnings suffered by the appellant would work out to
Rs 15,000 × 12 × 18 = Rs 32,40,000.
********* ********* **********
5.7. In K. Suresh v. New India Assurance Co. Ltd (2012) 12
SCC 274, this Court held that 17 :
“10. It is noteworthy to state that an adjudicating authority,
while determining the quantum of compensation, has to
keep in view the sufferings of the injured person w hich
would include his inability to lead a full life, his incapacity
to enjoy the normal amenities which he would have enjoyed
but for the injuries and his ability to earn as much as he
used to earn or could have earned. Hence, while
computing compensation the approach of the Tribunal o r
a court has to be broad-based. Needless to say, it wou ld
involve some guesswork as there cannot be any
mathematical exactitude or a precise formula to determine
the quantum of compensation. In determination of
PAPPU DEO YADA V v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
17 at page 279, para 10
compensation the fundamental criterion of “just
compensation” should be inhered.”
******** ********* ********
5.9. In the present case, it is an admitted position that it is not
possible for the appellant to get employed as a driver, or do
any kind of manual labour, or engage in any agricul tural
operations whatsoever, for his sustenance. In such
circumstances, the High Court has rightly assessed the
appellant’s functional disability at 100% insofar as his loss
of earning capacity is concerned. The appellant is, therefore ,
awarded Rs 32,40,000 towards loss of earning capacity.”
11. Yet later and more recently in an accident case, which tragically
left in its wake a young girl in a life-long state of paraplegia, this court, in
Kajal v. Jagdish Chand ,18 reiterated that in addition to loss of earnings,
compensation for future prospects too could be factored in, and observed
that:
“14. In Concord of India Insurance Co. Ltd. v. Nirmala Devi
[Concord of India Insurance Co. Ltd. v. Nirmala Devi, (197 9)
4 SCC 365 : 1979 SCC (Cri) 996 : 1980 ACJ 55] , this Court
held : (SCC p. 366, para 2)
“2. … the determination of the quantum must be libera l,
not niggardly since the law values life and limb in a free
country in generous scales.”
15. In R.D. Hattangadi v. Pest Control (India) (P) Ltd. [R.D .
Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC
551 : 1995 SCC (Cri) 250], dealing with the different heads
of compensation in injury cases this Court held thus : (SCC
p. 556, para 9)
“9. Broadly speaking while fixing the amount of compensation
payable to a victim of an accident, the damages hav e to be
assessed separately as pecuniary damages and specia l
damages. Pecuniary damages are those which the victim ha s
actually incurred and which are capable of being calcula ted
in terms of money; whereas non-pecuniary damages are those
which are incapable of being assessed by arithmetic al
18 (2020) 4 SCC 413.
983
calculations. In order to appreciate two concepts pecu niary
damages may include expenses incurred by the claimant: (i)
medical attendance; (ii) loss of earning of profit up to the
date of trial; (iii) other material loss. So far as non-pecuni ary
damages are concerned, they may include : (i) damages for
mental and physical shock, pain and suffering, alre ady
suffered or likely to be suffered in the future; (ii) dam ages to
compensate for the loss of amenities of life which may include
a variety of matters i.e. on account of injury the claimant
may not be able to walk, run or sit; (iii) damages for loss of
expectation of life i.e. on account of injury the n ormal
longevity of the person concerned is shortened; (iv )
inconvenience, hardship, discomfort, disappointment ,
frustration and mental stress in life.”
16. In Raj Kumar v. Ajay Kumar [Raj Kumar v. Ajay Kumar,
(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC
(Cri) 1161] , this Court laid down the heads under which
compensation is to be awarded for personal injuries : (SCC
p. 348, para 6)
“6. The heads under which compensation is awarded i n
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 in jured
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).
PAPPU DEO YADA V v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
(vi) Loss of expectation of life (shortening of nor mal
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 me dical
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 earning s on account
of permanent disability, future medical expenses, l oss of
amenities (and/or loss of prospects of marriage) and loss of
expectation of life.”
17. In K. Suresh v. New India Assurance Co. Ltd. [K. Suresh
v. New India Assurance Co. Ltd., (2012) 12 SCC 274 : (2013)
2 SCC (Civ) 279 : (2013) 4 SCC (Cri) 638] , this Court held
as follows : (SCC p. 276, para 2)
“2. … There cannot be actual compensation for anguish
of the heart or for mental tribulations. The quintessentiality
lies in the pragmatic computation of the loss susta ined
which has to be in the realm of realistic approximat ion.
Therefore, Section 168 of the Motor Vehicles Act, 1 988
(for brevity “the Act”) stipulates that there should be g rant
of “just compensation”. Thus, it becomes a challenge for
a court of law to determine “just compensation” which is
neither a bonanza nor a windfall, and simultaneousl y,
should not be a pittance.”
******* ******** *********
Loss of earnings
20. Both the courts below have held that since the girl was
a young child of 12 years only notional income of R s
15,000 p.a. can be taken into consideration. We do not
think this is a proper way of assessing the future l oss of
income. This young girl after studying could have worked
and would have earned much more than Rs 15,000 p.a.
Each case has to be decided on its own evidence but taking
notional income to be Rs 15,000 p.a. is not at all justified.
The appellant has placed before us material to show that
985
the minimum wages payable to a skilled workman is
Rs 4846 per month. In our opinion, this would be th e
minimum amount which she would have earned on
becoming a major. Adding 40% for the future prospects, it
works to be Rs 6784.40 per month i.e. 81,412.80 p.a .
Applying the multiplier of 18, it works out to Rs
14,65,430.40, which is rounded off to Rs 14,66,000.”
12. In view of the above decisive rulings of this court, the High
Court clearly erred in holding that compensation for los s of future
prospects could not be awarded. In addition to loss of fut ure earnings
(based on a determination of the income at the time of a ccident), the
appellant is also entitled to compensation for loss of future prospects, @
40% (following the Pranay Sethi principle).
13. The factual narrative discloses that the appellant, a 20-yea r-
old data entry operator (who had studied up to 12 th standard) incurred
permanent disability, i.e. loss of his right hand (which was amputated).
The disability was assessed to be 89%. However, the tribun al and the
High Court re-assessed the disability to be only 45%, on the assumption
that the assessment for compensation was to be on a different basis, as
the injury entailed loss of only one arm. This approach, in the opinion of
this court, is completely mechanical and entirely ignores realities. Whilst
it is true that assessment of injury of one limb or to one part may not
entail permanent injury to the whole body, the inquiry which the court
has to conduct is the resultant loss which the injury entails to the earning
or income generating capacity of the claimant. Thus, loss of one leg to
someone carrying on a vocation such as driving or something that entails
walking or constant mobility, results in severe inco me generating
impairment or its extinguishment altogether. Likewise, for one involved
in a job like a carpenter or hairdresser, or machinist, and an experienced
one at that, loss of an arm, (more so a functional arm) leads to near
extinction of income generation. If the age of the victim is beyond 40,
the scope of rehabilitation too diminishes. These individual factors are of
crucial importance which are to be borne in mind while determining the
extent of permanent disablement, for the purpose of assessment of loss
of earning capacity.
14. In Neerupam Mohan Mathur v. New India Assurance
Company 19 , this court considered the case of a victim, whose injury
PAPPU DEO YADAV v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
19 (2013) 14 SCC 15
was assessed to 70% as loss of earning capacity for amputa tion of the
arm; he was a postgraduate diploma holder in mechanical engineering,
32 years of age and earning about 3000/- per month. This court he ld,
approving the High Court’s order (which had adopted the formula from
the Workmen’s Compensation Act, to determine 70% for the purpose of
deciding loss of earning capacity) as follows:
“12. In the present case, the percentage of permanent disability
has not been expressed by the doctors with reference to t he
full body or with reference to a particular limb. However, it is
not in dispute that the claimant suffered such a pe rmanent
disability as a result of injuries that he is not in a posit ion of
doing the specialised job of designing, refrigeration a nd air
conditioning. For the said reason, the claimant’s services were
terminated by his employer but that does not mean that the
claimant is not capable to do any other job includi ng the
desk job. Having qualification of BSc degree and
postgraduate diploma in Mechanical Engineering, he can
perform any job where application of mind is require d than
any physical work.
13. In view of the forgoing discussion we find no grou nds
made out to interfere with the finding of the High Court wh ich
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 of i ncome
was thus rightly calculated by the High Court at Rs 6, 04,800.”
15. Later, in another judgment, i.e. Jakir Hussein v. Sabir 20 this
court had to consider the correctness of a compensation asses sment
based on the High Court’s analysis of the injury to the victim (a driver
who suffered permanent injury to his arm, impairing movement as well
as the wrist, which rendered him incapable of driving any vehicle). The
High Court had assessed permanent disablement at 30% though the
doctor had certified it to be 55%. This court, reversing the High Court
order, observed inter alia that:
“… Due to this injury, the doctor has stated that the appellant
had great difficulty to move his shoulder, wrist an d elbow
and pus was coming out of the injury even two years after
20 (2015) 7 SCC 252
987
the accident and the treatment was taken by him. The doctor
further stated in his evidence that the appellant got delayed
joined fracture in the humerus bone of his right ha nd with
wiring and nailing and that he had suffered 55% disab ility
and cannot drive any motor vehicle in future due to the same.
He was once again operated upon during the pendency of
the appeal before the High Court and he was hospita lised
for 10 days. The appellant was present in person in the Hi gh
Court and it was observed and noticed by the High C ourt
that the right hand of the appellant was completely cru shed
and deformed. In view of the doctor’s evidence in this case,
the Tribunal and the High Court have erroneously tak en the
extent of permanent disability at 30% and 55%, respecti vely
for the calculation of amount towards the loss of f uture
earning capacity. No doubt, the doctor has assessed the
permanent disability of the appellant at 55%. However, it is
important to consider the relevant fact, namely, th at the
appellant is a driver and driving the motor vehicle is the only
means of livelihood for himself as well as the members of his
family. Further, it is very crucial to note that the High Court
has clearly observed that his right hand was comple tely
crushed and deformed.
********* ********* **********
16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343, this
Court specifically gave the illustration of a drive r who has
permanent disablement of hand and stated that the l oss of
future earnings capacity would be virtually 100%. Therefore,
clearly when it comes to loss of earning due to per manent
disability, the same may be treated as 100% loss cau sed to
the appellant since he will never be able to work as a driver
again. The contention of the respondent Insurance Company
that the appellant could take up any other alternat ive
employment is no justification to avoid their vicarious li ability.
Hence, the loss of earning is determined by us at Rs 54 ,000
per annum. Thus, by applying the appropriate multipl ier as
per the principles laid down by this Court in Sarla Ve rma v.
DTC [(2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2
PAPPU DEO YADAV v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
SCC (Cri) 1002], the total loss of future earnings of the
appellant will be at Rs 54,000 × 16 = Rs 8,64,000.”
16. Recently, in Anthony Alias Anthony Swamy v. Managing
Director, K.S.R.T.C 21 where the victim was a painter by profession, a
three-judge bench had followed Raj Kumar v. Ajay Kumar 22 and
Nagarajappa v. Divisional Manager, Oriental Insurance C ompany
Limited 23 . The High Court had assessed the injury to be 25% permanent
disability, although the treating doctor had said that the injury incurred by
the bus passenger (who was earning 9000/- per month) was 75% of the
left leg and 37.5% for the whole body. In Raj Kumar 24 , the physical
disability of the upper limb was determined as 68% in proportion to 22-
23% of the whole-body. The High Court had assessed the injury as 25%
and granted compensation. However, this court assessed the inju ry on
the basis that the disability was 75%, stating as follows:
“9. PW.3 had assessed the physical functional disabilit y of
the left leg of the appellant at 75% and total body disabil ity
at 37.5%. The High Court has considered it proper to ass ess
the physical disability at 25% of the whole body only. There
is no discussion for this reduction in percentage, muc h less
any consideration of the nature of permanent functi onal
disability suffered by the appellant. The extent of physical
functional disability, in the facts of the case has to be
considered in a manner so as to grant just and prop er
compensation to the appellant towards loss of future earni ng.
The earning capacity of the appellant as on the dat e of the
accident stands completely negated and not reduced. He has
been rendered permanently incapable of working as a painter
or do any manual work. Compensation for loss of fut ure
earning, therefore has to be proper and just to enable him to
live a life of dignity and not compensation which is elusiv e. If
the 75% physical disability has rendered the appell ant
permanently disabled from pursuing his normal vocatio n or
any similar work, it is difficult to comprehend the grant of
compensation to him in ratio to the disability to t he whole
body. The appellant is therefore held entitled to compensation
for loss of future earning based on his 75% permanent physical
21 (2020) SCC OnLine SC 493.
22 (2011) 1 SCC 343
23 (2011) 13 SCC 323.
24 Supra n.22
989
functional disability recalculated with the salary of
Rs. 5,500/- with multiplier of 14 at Rs. 6,93,000/-.”
17. The question of amount of compensation payable to one
suffering injury as a result of motor vehicle accident was considered in
Syed Sadiq & Ors. v. Divisional Manager, United Ins urance
Company Limited 25 , when this Court had to apply the correct standard
for awarding compensation for loss of future prospects for a vegetable
vendor, whose right leg had to be amputated, as a result of a m otor
accident. The High Court had considered the disability to be 65%. This
court held as follows:
“7. Further, the appellant claims that he was workin g as a
vegetable vendor. It is true that a vegetable vendor might not
require mobility to the extent that he sells vegetables at one
place. However, the occupation of vegetable vending is not
confined to selling vegetables from a particular loc ation. It
rather involves procuring vegetables from the whole -sale
market or the farmers and then selling it off in the retail market.
This often involves selling vegetables in the cart which requires
100% mobility. But even by conservative approach, i f we
presume that the vegetable vending by the appellant/claimant
involved selling vegetables from one place, the claimant would
require assistance with his mobility in bringing vegetables to
the market place which otherwise would be extremely difficult
for him with an amputated leg. We are required to be sensitive
while dealing with manual labour cases where loss of limb is
often equivalent to loss of livelihood. Yet, consid ering that
the appellant/claimant is still capable to fend for his liv elihood
once he is brought in the market place, we determin e the
disability at 85% to determine the loss of income.
8. The appellant/claimant in his appeal further claime d that
he had been earning [pic]10,000/- p.m. by doing vege table
vending work. The High Court however, considered the loss
of income at [pic]3500/- p.m. considering that the c laimant
did not produce any document to establish his loss of income.
It is difficult for us to convince ourselves as to how a l abour
PAPPU DEO YADAV v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
25 (2014) 2 SCC 735
involved in an unorganized sector doing his own business is
expected to produce documents to prove his monthly income.”
18. In Arvind Kumar Mishra v. New India Assurance Co. Ltd 26 ,
the appellant at the time of accident was a final ye ar engineering
(Mechanical) degree student in a reputed college. He was a b rilliant
student and had passed all his semester examinations with distinction.
He suffered grievous injuries and remained in a coma for about two
months; his studies were disrupted as he was moved to different hospitals
for surgeries. For many months, his condition remained serious; his right
hand was amputated and vision seriously affected. This court accepted
his claim and held that he was permanently disabled to the extent of
70%. In Mohan Soni v. Ram Avtar Tomar 27 again a case of injury
entailing loss of a leg, the court held that medical evidence of the extent
of disability should not be mechanically scaled down:
“8. On hearing the counsel for the parties and on going
through the materials on record, we are of the view that bot h
the Tribunal and the High Court were in error in pe gging
down the disability of the appellant to 50% with reference to
Schedule I of the Workmen’s Compensation Act, 1923. In the
context of loss of future earning, any physical dis ability
resulting from an accident has to be judged with reference to
the nature of work being performed by the person suf fering
the disability. This is the basic premise and once that is grasped,
it clearly follows that the same injury or loss may affec t two
different persons in different ways. Take the case of a marginal
farmer who does his cultivation work himself and pl oughs
his land with his own two hands; or the puller of a cycle-
rickshaw, one of the main means of transport in hundreds of
small towns all over the country. The loss of one of the legs
either to the marginal farmer or the cycle-rickshaw -puller
would be the end of the road insofar as their earning capaci ty
is concerned. But in case of a person engaged in some k ind
of desk work in an office, the loss of a leg may not hav e the
same effect. The loss of a leg (or for that matter the loss of
any limb) to anyone is bound to have very traumatic eff ects
on one’s personal, family or social life but the loss of one of
the legs to a person working in the office would not inter fere
26 (2010) 10 SCC 254
27 (2012) 2 SCC 267 at page 272
991
with his work/earning capacity in the same degree as in the
case of a marginal farmer or a cycle-rickshaw-puller.
********* ********* *********
10. This Court in K. Janardhan case [(2008) 8 SCC 5 18 :
(2008) 2 SCC (L&S) 733] , set aside the High Court judgment
and held that the tanker driver had suffered 100% disability
and incapacity in earning his keep as a tanker driver as his
right leg was amputated from the knee and, accordin gly,
restored the order passed by the Commissioner of Workmen’s
Compensation. In K. Janardhan [(2008) 8 SCC 518 : (2008)
2 SCC (L&S) 733] this Court also referred to and relied upon
an earlier decision of the Court in Pratap Narain Singh Deo
v. Srinivas Sabata [(1976) 1 SCC 289 : 1976 SCC (L&S) 52]
in which a carpenter who suffered an amputation of hi s left
arm from the elbow was held to have suffered complete loss
of his earning capacity.
******** ********* ********
13. Any scaling down of the compensation should requir e
something more tangible than a hypothetical conjectu re that
notwithstanding the disability, the victim could make up for
the loss of income by changing his vocation or by ado pting
another means of livelihood. The party advocating for a low er
amount of compensation for that reason must plead and show
before the Tribunal that the victim enjoyed some le gal
protection (as in the case of persons covered by the Pe rsons
with Disabilities (Equal Opportunities, Protection o f Rights
and Full Participation) Act, 1995) or in case of th e vast
multitude who earn their livelihood in the unorganised sector
by leading cogent evidence that the victim had in fact chang ed
his vocation or the means of his livelihood and by virt ue of
such change he was deriving a certain income.
14. The loss of earning capacity of the appellant, accordi ng
to us, may be as high as 100% but in no case it would be less
than 90%. We, accordingly, find and hold that the
compensation for the loss of the appellant’s future earnings
must be computed on that basis. On calculation on that basis,
the amount of compensation would come to Rs 3,56,400 and
after addition of a sum of Rs 30,000 and Rs 15,000 the total
PAPPU DEO YADAV v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
amount would be Rs 4,01,400. The additional compensatio n
amount would carry interest at the rate of 9% per a nnum
from the date of filing of the claim petition till the date of
payment. The additional amount of compensation along with
interest should be paid to the appellant without delay and not
later than three months from today.”
19. One more decision, Sandeep Khanduja v. Atul Dande 28 too
had dealt with the precise aspect of assessing the quantum of permanent
disablement. The victim was aged about 30 years, working as a chartered
accountant for various institutions for which he was paid profe ssional
fees. The injuries suffered by him resulted in severe im pairment of
movement; he had problems in climbing stairs, back trouble while sleeping,
etc. A rod was implanted in his leg. He suffered 70% permanent disability,
and mental and physical agony. This court enhanced the compensation,
observing the proper manner to calculate the extent of disability:
“9. The percentage of permanent disability is expres sed by
the doctors with reference to the whole body, or mor e often
than not, with reference to a particular limb. When a disability
certificate states that the injured has suffered pe rmanent
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 percentage of the total func tions
of that limb, obviously cannot be assumed to be the extent of
disability of the whole body. If there is 60% perma nent
disability of the right hand and 80% permanent disability of
left leg, it does not mean that the extent of permanent disabili ty
with 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 expr essed in
terms of the permanent disability with reference to the who le
body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disabilit y as a
result of injuries, the assessment of compensation u nder the
head of loss of future earnings would depend upon the effect
and impact of such permanent disability on his earn ing
capacity. The Tribunal should not mechanically appl y the
28 2017 (3) SCC 351
993
percentage of permanent disability as the percentag e of
economic loss or loss of earning capacity. In most of the cas es,
the percentage of economic loss, that is, the perce ntage of
loss of earning capacity, arising from a permanent disab ility
will be different from the percentage of permanent dis ability.
Some Tribunals wrongly assume that in all cases, a partic ular
extent (percentage) of permanent disability would result in a
corresponding loss of earning capacity, and consequently , if
the evidence produced show 45% as the permanent disability,
will hold that there is 45% loss of future earning capacity. I n
most of the cases, equating the extent (percentage) of l oss of
earning capacity to the extent (percentage) of perm anent
disability will result in award of either too low or too high a
compensation.
11. What requires to be assessed by the Tribunal is the effec t
of the permanent disability on the earning capacity of the
injured; and after assessing the loss of earning cap acity in
terms of a percentage of the income, it has to be quanti fied in
terms of money, to arrive at the future loss of ear nings (by
applying the standard multiplier method used to det ermine
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 r esult
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 determination
of compensation.” The crucial factor which has to be taken
into consideration, thus, is to assess as to whethe r the
permanent disability has any adverse effect on the earning
capacity of the injured. In this sense, the MACT approa ched
the issue in right direction by taking into consider ation the
aforesaid test. However, we feel that the conclusio n of the
MACT, on the application of the aforesaid test, is erroneou s.
A very myopic view is taken by the MACT in taking th e view
that 70% permanent disability suffered by the appellant would
not impact the earning capacity of the appellant.… A pe rson
who is engaged and cannot freely move to attend to his duties
may not be able to match the earning in comparison with the
one who is healthy and bodily abled. Movements of t he
PAPPU DEO YADAV v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
appellant have been restricted to a large extent and that too
at a young age. Though the High Court recognised th is, it
did not go forward to apply the principle of multiplier. We are
of the opinion that in a case like this and having reg ard to
the injuries suffered by the appellant, there is a defin ite loss
of earning capacity and it calls for grant of compe nsation
with the adoption of multiplier method, as held by this Cour t
in Yadava Kumar v Divisional Manager, National Insurance
Co. Ltd [2010 (10) SCC 341]:
“9. We do not intend to review in detail state of
authorities in relation to assessment of all damage s for
personal injury. Suffice it to say that the basis of a ssessment
of all damages for personal injury is compensation. The whole
idea is to put the claimant in the same position as he was
insofar as money can. Perfect compensation is hardly possi ble
but one has to keep in mind that the victim has done no wr ong;
he has suffered at the hands of the wrongdoer and the cour t
must take care to give him full and fair compensation for that
he had suffered.
10. In some cases for personal injury, the claim could be in
respect of lifetime’s earnings lost because, though he wi ll live,
he cannot earn his living. In others, the claim may be ma de
for partial loss of earnings. Each case has to be consi dered
in the light of its own facts and at the end, one m ust ask
whether the sum awarded is a fair and reasonable sum. Th e
conventional basis of assessing compensation in per sonal
injury cases—and that is now recognised mode as to the
proper measure of compensation—is taking an appropr iate
multiplier of an appropriate multiplicand.” In that case, after
following the judgment in Kerala SRTC v. Susamma Thomas
(1994) 2 SCC 176, the Court chose to apply multiplier of 18
keeping in view the age of the victim, who as 25 years at the
time of the accident.
In the instant case, the MACT had quantified the income of the
appellant at 10,000, i.e. 1,20,000 per annum. Going by the age
of the appellant at the time of the accident, multiplier of 17 would
be admissible. Keeping in view that the permanent dis ability is
70%, the compensation under this head would be worked out at
995
14,28,000. The MACT had awarded compensation of 70,000 for
permanent disability, which stands enhanced to 14,2 8,000. For
mental and physical agony and frustration and disappo intment
towards life, the MACT has awarded a sum of 30,000, which we
enhance to 1,30,000.”
20. Courts should not adopt a stereotypical or myopic approach,
but instead, view the matter taking into account the realities of life, both
in the assessment of the extent of disabilities, and compensation under
various heads. In the present case, the loss of an arm, in the opinion of
the court, resulted in severe income earning impairme nt upon the
appellant. As a typist/data entry operator, full functioning of his hands
was essential to his livelihood. The extent of his permanent disablement
was assessed at 89%; however, the High Court halved it to 45% on an
entirely wrong application of some ‘ proportionate ’ principle, which was
illogical and is unsupportable in law. What is to be seen, as emphasized
by decision after decision, is the impact of the injury upon the income
generating capacity of the victim. The loss of a limb (a leg or arm) and
its severity on that account is to be judged in relation to the profession,
vocation or business of the victim; there cannot be a blind arithmetic
formula for ready application. On an overview of the principles outlined
in the previous decisions, it is apparent that the income generating capacity
of the appellant was undoubtedly severely affected. Maybe, it is not to
the extent of 89%, given that he still has the use of one arm, is young and
as yet, hopefully training (and rehabilitating) himself adequately for some
other calling. Nevertheless, the assessment of disability cannot be 45%;
it is assessed at 65% in the circumstances of this case.
21. This court is also of the opinion that the courts below needlessly
discounted the evidence presented by the appellant in respec t of the
income earned by him. Working in the informal sector as he did, i.e. as a
typist/data entry operator in court premises in Delhi, his assertion about
earning 12,000/- could not be discarded substantially, to the extent of
bringing it down to 8,000/- per month. Such self employed professionals,
it is noticeable, were not obliged to file income tax returns for AY 2011-
2012, when no levy existed for anyone earning less than 1,60,000/- per
annum. 29 The advocate who deposed about the earnings of the appellant
was believed to the extent that the tribunal fixed the appellant’s monthly
PAPPU DEO YADAV v. NARESH KUMAR AND ORS.
[S. RAVINDRA BHAT, J.]
29 First Schedule, Finance Act, 2011.
30 By applying the ratio in Pranay Sethi.
earnings at 8,000/-. If one takes into account contemporary minimum
wages for skilled workers (which was in the range of 8,500/-) the realistic
figure would be 10,000/- per month. Adding future prospects at 40% 30 ,
the income should be taken as 14,000 for the purpose of calculation of
compensation. Accordingly, this court finds that the compensation payable
for the disability of loss of an arm (assessed at 6 5%) would be
19,65,600/- (i.e., 14,000/- x 12 x 65% x 18) or Rupees Nineteen
lakhs sixty five thousand six hundred only.
22. In parting, it needs to be underlined that Courts should be
mindful that a serious injury not only permanently imposes phys ical
limitations and disabilities but too often inflicts deep mental and emotional
scars upon the victim. The attendant trauma of the victi m’s having to
live in a world entirely different from the one she or he is born into, as an
invalid, and with degrees of dependence on others, robbed of complete
personal choice or autonomy, should forever be in the judge’s mind,
whenever tasked to adjudge compensation claims. Severe limit ations
inflicted due to such injuries undermine the dignity (which i s now
recognized as an intrinsic component of the right to life under Article 21)
of the individual, thus depriving the person of the essence of the right to
a wholesome life which she or he had lived, hitherto. From the world of
the able bodied, the victim is thrust into the world of the disabled, itself
most discomfiting and unsettling. If courts nit-pick and award niggardly
amounts oblivious of these circumstances, there is resultant a ffront to
the injured victim.
23. The High Court’s assessment of amounts payable under other
heads (such as compensation for medical expenses, compensat ion for
pain and suffering, compensation for special diet a nd attendant,
conveyance charges, loss of amenities and enjoyment of life,
disfigurement and loss of income during treatment), do not c all for
interference. In view of the above conclusions, the impugned judgment
is hereby modified; the sum of 19,65,600/- shall be substituted in place
of the amount of 7,77,600/-, considering the enhancement towards loss
of earning capacity and future prospects.
24. The appeal is partly allowed; the impugned judgment stands
modified in the above terms. There shall be no order on costs.
Kalpana K. Tripathy Appeal partly allowed.