Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8981 OF 2010 (Arising out of SLP (C) No. 10383 of 2007)

Raj Kumar ….Appellant

Vs.

Ajay Kumar & Anr. .… Respondents  

O R D E R

R.V.RAVEENDRAN, J.

Leave granted. Heard.  

2. The  appellant  was  injured  in  a  motor  accident  on  1.10.1991  and  

sustained fracture of both bones of left leg and fracture of left radius. He was  

under treatment from 1.10.1991 to 16.6.1992. The Motor Accident Claims  

Tribunal, by award dated 20.7.2002, awarded compensation of   Rs.94,700/-,  

with  interest  at  9%  per  annum  from  the  date  of  petition  till  date  of  

realization.  The  amount  awarded  was  made  up  of  Rs.11,000/-  towards  

medical expenses, conveyance and special diet; Rs.3600/- towards loss of  

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earning during period of treatment; Rs.25,000/- for pain and suffering; and  

Rs.55,080 towards loss of future earnings. For calculating the loss of future  

earnings, the Tribunal took the minimum wage as the monthly income of the  

appellant, that is Rs.891/- rounded off to Rs.900/- and deducted one-third  

therefrom towards the personal and living expenses; and by assuming the  

percentage  of  disability  (45%)  shown  in  disability  certificate  to  be  the  

economic disability, the Tribunal arrived at loss of future earnings as 45% of  

Rs.600/-, that is Rs.270/- per month or Rs.3,240/- per annum. By applying a  

multiplier of 17, it arrived at Rs.55,080/- as the loss of future earnings. The  

appellant filed an appeal seeking increase in compensation. The High Court  

rejected the said appeal by the impugned judgment dated 31.1.2007 on the  

ground  that  the  disability  certificate  produced  by  the  appellant  was  not  

reliable. The said judgment of the High Court is challenged in this appeal by  

special leave.  

3. The appellant puts forth two grievances: (i) the assessment of monthly  

income at  Rs.900/-  was  very low; and (ii)  deduction of  one third  of  the  

income (towards personal and living expenses) while assessing the future  

loss of earning was not warranted. The questions that therefore arise for our  

consideration  are  whether  the  principles  adopted  for  assessing  the  

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compensation were erroneous and whether compensation awarded requires  

to be increased.

General principles relating to compensation in injury cases

4. The  provision  of  the  Motor  Vehicles  Act,  1988  (‘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 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. (See C. K. Subramonia Iyer  

vs. T. Kunhikuttan Nair  –  AIR 1970 SC 376,  R. D. Hattangadi vs. Pest   

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Control (India) Ltd. -  1995 (1) SCC 551 and Baker vs. Willoughby  – 1970  

AC 467).

5. The heads under which compensation is awarded in personal injury  

cases are the following :

Pecuniary damages (Special Damages)

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

(ii) Loss of earnings (and other gains) which the injured would have made had  he not been injured, comprising :  (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General Damages)

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

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

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

In routine personal injury cases, compensation will be awarded only under  

heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is  

specific medical evidence corroborating the evidence of the claimant, that  

compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi)  

relating to loss of future earnings on account of permanent disability, future  

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medical expenses, loss of amenities (and/or loss of prospects of marriage)  

and loss of expectation of life. Assessment of pecuniary damages under item  

(i)  and  under  item  (ii)(a)  do  not  pose  much  difficulty  as  they  involve  

reimbursement  of  actuals  and are  easily  ascertainable  from the evidence.  

Award under the head of future medical  expenses – item (iii)  -- depends  

upon specific medical evidence regarding need for further treatment and cost  

thereof. Assessment of non-pecuniary damages – items (iv), (v) and (vi) --  

involves  determination  of  lump  sum  amounts  with  reference  to  

circumstances such as age, nature of injury/deprivation/disability suffered by  

the  claimant  and  the  effect  thereof  on  the  future  life  of  the  claimant.  

Decision  of  this  Court  and High Courts  contain  necessary guidelines  for  

award under these heads, if necessary. What usually poses some difficulty is  

the  assessment  of  the  loss  of  future  earnings  on  account  of  permanent  

disability - item (ii)(a). We are concerned with that assessment in this case.

Assessment of future loss of earnings due to permanent disability

6. Disability  refers  to  any restriction  or  lack of  ability  to  perform an  

activity  in  the  manner  considered  normal  for  a  human-being.  Permanent  

disability refers to the residuary incapacity or loss of use of some part of the  

body, found existing at the end of the period of treatment and recuperation,  

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after  achieving  the  maximum  bodily  improvement  or  recovery  which  is  

likely to remain for the remainder life of the injured. Temporary disability  

refers to the incapacity or loss of use of some part of the body on account of  

the injury, which will cease to exist at the end of the period of treatment and  

recuperation.  Permanent  disability  can  be  either  partial  or  total.  Partial  

permanent disability refers to a person’s inability to perform all the duties  

and bodily functions that he could perform before the accident, though he is  

able to perform some of them and is still  able to engage in some gainful  

activity. Total permanent disability refers to a person’s inability to perform  

any avocation or employment related activities as a result of the accident.  

The permanent disabilities that may arise from motor accidents injuries, are  

of a much wider range when compared to the physical disabilities which are  

enumerated  in  the  Persons  with  Disabilities  (Equal  Opportunities,   

Protection of Rights and Full Participation) Act, 1995 (‘Disabilities Act’ for  

short).  But  if  any  of  the  disabilities  enumerated  in  section  2(i)  of  the  

Disabilities Act are the result of injuries sustained in a motor accident, they  

can be permanent disabilities for the purpose of claiming compensation.  

7. The percentage of permanent disability is expressed by the Doctors  

with reference to the whole body, or more often than not, with reference to a  

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particular  limb.  When  a  disability  certificate  states  that  the  injured  has  

suffered permanent disability to an extent of 45% of the left lower limb, it is  

not the same as 45% permanent disability with reference to the whole body.  

The extent of disability of a limb (or part of the body) expressed in terms of  

a percentage of the total functions of that limb, obviously cannot be assumed  

to be the extent of disability of the whole body. If there is 60% permanent  

disability of the right hand and 80% permanent disability of left leg, it does  

not mean that the extent of permanent disability with reference to the whole  

body is 140% (that is 80% plus 60%). If different parts of the body have  

suffered different percentages of disabilities, the sum total thereof expressed  

in terms of the permanent disability with reference to the whole body, cannot  

obviously exceed 100%.    

8. Where  the  claimant  suffers  a  permanent  disability  as  a  result  of  

injuries,  the assessment of compensation under the head of loss of future  

earnings,  would  depend  upon  the  effect  and  impact  of  such  permanent  

disability  on his  earning capacity.  The Tribunal  should  not  mechanically  

apply the percentage of permanent disability as the percentage of economic  

loss  or  loss  of  earning capacity.  In  most  of  the  cases,  the  percentage of  

economic loss, that is, percentage of loss of earning capacity, arising from a  

permanent  disability  will  be  different  from the  percentage  of  permanent  

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disability.  Some Tribunals  wrongly  assume that  in  all  cases,  a  particular  

extent (percentage) of permanent disability would result in a corresponding  

loss of earning capacity, and consequently, if the evidence produced show  

45% as the permanent disability, will hold that there is 45% loss of future  

earning capacity. In most of the cases, equating the extent (percentage) of  

loss of earning capacity to the extent (percentage) of permanent disability  

will  result  in award of  either  too low or too high a compensation.  What  

requires  to  be  assessed  by  the  Tribunal  is  the  effect  of  the  permanently  

disability on the earning capacity of the injured; and after assessing the loss  

of  earning capacity  in  terms of  a percentage of  the income,  it  has to be  

quantified in terns 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 percentage of loss of  

earning capacity as a result of the permanent disability, is approximately the  

same as the percentage of permanent disability in which case, of course, the  

Tribunal will adopt the said percentage for determination of compensation  

(see for example, the decisions of this court in Arvind Kumar Mishra v. New  

India  Assurance  Co.Ltd.  –  2010(10)  SCALE 298  and  Yadava Kumar  v.   

D.M., National Insurance Co. Ltd. – 2010 (8) SCALE 567).

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9. Therefore,  the  Tribunal  has  to  first  decide  whether  there  is  any  

permanent disability and if so the extent of such permanent disability. This  

means that  the tribunal  should consider and decide with reference to the  

evidence: (i) whether the disablement is permanent or temporary; (ii) if the  

disablement  is  permanent,  whether  it  is  permanent  total  disablement  or  

permanent  partial  disablement,  (iii)  if  the  disablement  percentage  is  

expressed  with  reference  to  any  specific  limb,  then  the  effect  of  such  

disablement of the limb on the functioning of the entire body, that is the  

permanent disability suffered by the person. If the Tribunal concludes that  

there  is  no  permanent  disability  then  there  is  no  question  of  proceeding  

further  and  determining  the  loss  of  future  earning  capacity.  But  if  the  

Tribunal concludes that there is permanent disability then it will proceed to  

ascertain  its  extent.  After  the  Tribunal  ascertains  the  actual  extent  of  

permanent disability of the claimant based on the medical evidence, it has to  

determine whether such permanent disability has affected or will affect his  

earning capacity.  

10. Ascertainment of the effect of the permanent disability on the actual  

earning  capacity  involves  three  steps.  The  Tribunal  has  to  first  ascertain  

what  activities  the  claimant  could  carry  on  in  spite  of  the  permanent  

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disability and what he could not do as a result of the permanent ability (this  

is  also  relevant  for  awarding  compensation  under  the  head  of  loss  of  

amenities of life). The second step is to ascertain his avocation, profession  

and nature of work before the accident, as also his age. The third step is to  

find out whether (i) the claimant is totally disabled from earning any kind of  

livelihood, or (ii) whether in spite of the permanent disability, the claimant  

could still  effectively carry on the activities and functions,  which he was  

earlier  carrying  on,  or  (iii)  whether  he  was  prevented  or  restricted  from  

discharging his previous activities and functions, but could carry on some  

other or lesser scale of activities and functions so that he continues to earn or  

can  continue  to  earn  his  livelihood.  For  example,  if  the  left  hand  of  a  

claimant  is  amputated,  the  permanent  physical  or  functional  disablement  

may be assessed around 60%. If the claimant was a driver or a carpenter, the  

actual loss of earning capacity may virtually be hundred percent, if he is  

neither able to drive or do carpentry. On the other hand, if the claimant was a  

clerk in government service, the loss of his left hand may not result in loss of  

employment and he may still be continued as a clerk as he could perform his  

clerical functions; and in that event the loss of earning capacity will not be  

100% as in the case of a driver or carpenter, nor 60% which is the actual  

physical disability, but far less. In fact, there may not be any need to award  

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any compensation under the head of ‘loss of future earnings’, if the claimant  

continues in government service, though he may be awarded compensation  

under the head of loss of amenities as a consequence of losing his hand.  

Sometimes the injured claimant may be continued in service, but may not  

found suitable for discharging the duties attached to the post or job which he  

was  earlier  holding,  on  account  of  his  disability,  and  may  therefore  be  

shifted to  some other  suitable  but  lesser  post  with  lesser  emoluments,  in  

which case there should be a limited award under the head of loss of future  

earning capacity,  taking note  of  the  reduced earning capacity.  It  may be  

noted  that  when  compensation  is  awarded  by  treating  the  loss  of  future  

earning capacity as 100% (or even anything more than 50%), the need to  

award compensation separately under the head of loss of amenities or loss of  

expectation of life may disappear and as a result, only a token or nominal  

amount may have to be awarded under the head of loss of amenities or loss  

of expectation of life, as otherwise there may be a duplication in the award  

of compensation. Be that as it may.

11. The Tribunal should not be a silent spectator when medical evidence  

is tendered in regard to the injuries and their effect, in particular the extent of  

permanent disability. Sections 168 and 169 of the Act make it evident that  

the Tribunal does not function as a neutral umpire as in a civil suit, but as an  

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active explorer and seeker of truth who is required to ‘hold an enquiry into  

the  claim’  for  determining  the  ‘just  compensation’.  The  Tribunal  should  

therefore take an active role to ascertain the true and correct position so that  

it  can assess  the ‘just  compensation’.  While dealing with personal  injury  

cases, the Tribunal should preferably equip itself with a Medical Dictionary  

and  a  Handbook  for  evaluation  of  permanent  physical  impairment  (for  

example the Manual for Evaluation of Permanent Physical Impairment for   

Orthopedic  Surgeons,  prepared  by  American  Academy of  Orthopedic  

Surgeons or  its  Indian  equivalent  or  other  authorized  texts)  for  

understanding  the  medical  evidence  and  assessing  the  physical  and  

functional disability. The Tribunal may also keep in view the first schedule  

to  the  Workmen’s  Compensation  Act,  1923 which gives  some indication  

about the extent of permanent disability in different types of injuries, in the  

case of workmen. If a Doctor giving evidence uses technical medical terms,  

the Tribunal should instruct him to state in addition, in simple non-medical  

terms,  the nature and the effect  of  the injury.  If  a  doctor  gives evidence  

about  the  percentage  of  permanent  disability,  the  Tribunal  has  to  seek  

clarification  as  to  whether  such percentage of  disability  is  the  functional  

disability  with  reference  to  the  whole  body  or  whether  it  is  only  with  

reference to a limb. If the percentage of permanent disability is stated with  

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reference to a limb, the Tribunal will have to seek the doctor’s opinion as to  

whether  it  is  possible  to  deduce  the  corresponding  functional  permanent  

disability with reference to the whole body and if so the percentage.   

12. The Tribunal should also act with caution, if it proposed to accept the  

expert evidence of doctors who did not treat the injured but who give ‘ready  

to use’ disability certificates, without proper medical assessment. There are  

several instances of unscrupulous doctors who without treating the injured,  

readily giving liberal disability certificates to help the claimants. But where  

the disability certificates are given by duly constituted Medical Boards, they  

may  be  accepted  subject  to  evidence  regarding  the  genuineness  of  such  

certificates.  The  Tribunal  may  invariably  make  it  a  point  to  require  the  

evidence  of  the  Doctor  who  treated  the  injured  or  who  assessed  the  

permanent disability. Mere production of a disability certificate or Discharge  

Certificate will not be proof of the extent of disability stated therein unless  

the  Doctor  who  treated  the  claimant  or  who  medically  examined  and  

assessed  the  extent  of  disability  of  claimant,  is  tendered  for  cross-

examination with reference to the certificate. If the Tribunal is not satisfied  

with  the  medical  evidence  produced  by  the  claimant,  it  can  constitute  a  

Medical Board (from a panel maintained by it in consultation with reputed  

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local  Hospitals/Medical  Colleges) and refer  the claimant to such Medical  

Board for assessment of the disability.  

13. We may now summarise the principles discussed above :  

(i) All  injuries (or permanent disabilities  arising from injuries),  do not  

result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body  

of  a  person,  cannot  be  assumed to  be  the  percentage  of  loss  of  earning  

capacity. To put it differently, the percentage of loss of earning capacity is  

not  the  same as the  percentage  of  permanent  disability  (except  in  a  few  

cases,  where  the  Tribunal  on  the  basis  of  evidence,  concludes  that  

percentage  of  loss  of  earning  capacity  is  the  same  as  percentage  of  

permanent disability).

(iii) The  doctor  who treated  an  injured-claimant  or  who examined  him  

subsequently  to  assess  the  extent  of  his  permanent  disability  can  give  

evidence  only  in  regard  the  extent  of  permanent  disability.  The  loss  of  

earning capacity is something that will have to be assessed by the Tribunal  

with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of  

loss of earning capacity in different persons, depending upon the nature of  

profession, occupation or job, age, education and other factors.

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14. The assessment  of  loss  of  future  earnings  is  explained  below with  

reference to the following illustrations:

Illustration ‘A’: The injured, a workman, was aged 30 years and earning  

Rs.3000/- per month at the time of accident. As per Doctor’s evidence, the  

permanent disability of the limb as a consequence of the injury was 60% and  

the consequential permanent disability to the person was quantified at 30%.  

The loss of earning capacity is however assessed by the Tribunal as 15% on  

the basis of evidence, because the claimant is continued in employment, but  

in a lower grade. Calculation of compensation will be as follows:

a) Annual income before the accident :  Rs.36,000/-.

b) Loss of future earning per annum (15%       of the prior annual income) :  Rs. 5400/-.

c) Multiplier applicable with reference       to age :  17

 d) Loss of future earnings : (5400 x 17) :  Rs. 91,800/-

Illustration ‘B’: The injured was a driver aged 30 years, earning Rs.3000/-  

per month. His hand is amputated and his permanent disability is assessed at  

60%.  He  was  terminated  from his  job  as  he  could  no  longer  drive.  His  

chances of getting any other employment was bleak and even if he got any  

job, the salary was likely to be a pittance. The Tribunal therefore assessed  

his loss of future earning capacity as 75%. Calculation of compensation will  

be as follows:

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a) Annual income prior to the accident :  Rs.36,000/-.

b)      Loss of future earning per annum (75%       of the prior annual income) :  Rs.27000/-.       

c)      Multiplier applicable with reference      to age :  17

d)       Loss of future earnings : (27000 x 17)  :   Rs. 4,59,000/-

Illustration  ‘C’:  The  injured  was  25  years  and  a  final  year  Engineering  

student. As a result of the accident, he was in coma for two months, his right  

hand was amputated and vision was affected. The permanent disablement  

was assessed as 70%. As the injured was incapacitated to pursue his chosen  

career and as he required the assistance of a servant throughout his life, the  

loss of future earning capacity was also assessed as 70%. The calculation of  

compensation will be as follows:  

a)      Minimum annual income he would have       got if had been employed as an Engineer :  Rs.60,000/-

b)      Loss of future earning per annum (70% :  Rs.42000/-    

    of the expected annual income)       

c)      Multiplier applicable (25 years) :  18

d)       Loss of future earnings : (42000 x 18) :  Rs. 7,56,000/-

[Note :  The figures adopted in illustrations (A) and (B) are hypothetical.  The figures in Illustration (C) however are based on actuals taken from the  decision in Arvind Kumar Mishra (supra)].

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15. After  the  insertion  of  section  163A  in  the  Act  (with  effect  from  

14.11.1994), if a claim for compensation is made under that section by an  

injured  alleging  disability,  and  if  the  quantum of  loss  of  future  earning  

claimed, falls under the second schedule to the Act, the Tribunal may have  

to  apply  the  following  principles  laid  down  in  Note  (5)  of  the  Second  

Schedule to the Act to determine compensation :  

“5. Disability in non-fatal accidents :  

The following compensation shall be payable in case of disability to the  victim arising out of non-fatal accidents : -  

Loss of income,  if  any, for actual  period of disablement  not exceeding  fifty two weeks.  

PLUS either of the following :-  

(a) In case of permanent total disablement the amount payable shall be  arrived  at  by  multiplying  the  annual  loss  of  income  by  the  Multiplier   applicable to the age on the date of determining the compensation, or

(b) In  case  of  permanent  partial  disablement  such  percentage  of  compensation which would have been payable in the case of permanent  total disablement as specified under item (a) above.  

Injuries  deemed  to  result  in  Permanent  Total  Disablement/Permanent  Partial Disablement and percentage of loss of earning capacity shall be as  per Schedule I under Workmen’s Compensation Act, 1923.”

16. We may in this context refer to the difficulties faced by claimants in  

securing  the  presence  of  busy  Surgeons  or  treating  Doctors  who  treated  

them,  for  giving  evidence.  Most  of  them are  reluctant  to  appear  before  

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Tribunals for obvious reasons either because their entire day is likely to be  

wasted in attending the Tribunal to give evidence in a single case or because  

they are not shown any priority in recording evidence or because the claim  

petition is filed at a place far away from the place where the treatment was  

given. Many a time, the claimants are reluctant to take coercive steps for  

summoning  the  Doctors  who  treated  them,  out  of  respect  and  gratitude  

towards them or for fear that if forced to come against their wishes, they  

may give evidence which may not be very favorable. This forces the injured  

claimants to approach ‘professional’ certificate givers whose evidence most  

of the time is found to be not satisfactory. Tribunals should realize that a  

busy Surgeon may be able to save ten lives or perform twenty surgeries in  

the time he spends to attend the Tribunal to give evidence in one accident  

case.  Many  busy  Surgeons  refuse  to  treat  medico-legal  cases  out  of  

apprehension that their practice and their current patients will suffer, if they  

have to spend their days in Tribunals giving evidence about past patients.  

The solution does not lie in coercing the Doctors to attend the Tribunal to  

give evidence. The solution lies in recognizing the valuable time of Doctors  

and  accommodating  them.  Firstly,  efforts  should  be  made  to  record  the  

evidence  of  the  treating  Doctors  on  commission,  after  ascertaining  their  

convenient timings. Secondly, if the Doctors attend the Tribunal for giving  

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evidence, their evidence may be recorded without delay, ensuring that they  

are not required to wait. Thirdly, the Doctors may be given specific time for  

attending the Tribunal for giving evidence instead of requiring them to come  

at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases  

where  the  certificates  are  not  contested  by the  respondents,  they may be  

marked by consent, thereby dispensing with the oral evidence. These small  

measures as also any other suitable steps taken to ensure the availability of  

expert evidence, will ensure assessment of just compensation and will go a  

long way in demonstrating that Courts/Tribunals show concern for litigants  

and witnesses.  

Assessment of compensation  

17. In this case,  the Tribunal acted on the disability certificate,  but the  

High  Court  had  reservations  about  its  acceptability  as  it  found  that  the  

injured had been treated in the Government Hospital in Delhi whereas the  

disability certificate was issued by a District Hospital in the State of Uttar  

Pradesh. The reason given by the High Court for rejection may not be sound  

for two reasons. Firstly though the accident occurred in Delhi and the injured  

claimant was treated in a Delhi Hospital after the accident, as he hailed from  

Chirori Mandi in the neighbouring District of Ghaziabad in Uttar Pradesh,  

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situated on the outskirts of Delhi, he might have continued the treatment in  

the place where he resided. Secondly the certificate has been issued by the  

Chief Medical Officer, Ghaziabad, on the assessment made by the Medical  

Board which also consisted of an Orthopaedic Surgeon. We are therefore of  

the view that the High Court ought not to have rejected the said disability  

certificate.  

18. The Tribunal has proceeded on the basis that the permanent disability  

of the injured-claimant was 45% and the loss of his future earning capacity  

was also 45%. The Tribunal overlooked the fact that the disability certificate  

referred to 45% disability with reference to left lower limb and not in regard  

to the entire body. The said extent of permanent disability of the limb could  

not be considered to be the functional disability of the body nor could it be  

assumed to result in a corresponding extent of loss of earning capacity, as  

the disability would not have prevented him from carrying on his avocation  

as  a  cheese  vendor,  though  it  might  impede  in  his  smooth  functioning.  

Normally,  the  absence  of  clear  and  sufficient  evidence  would  have  

necessitated  remand  of  the  case  for  further  evidence  on  this  aspect.  

However, instead of remanding the matter for a finding on this issue, at this  

distance of time after nearly two decades, on the facts and circumstances, to  

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do complete justice, we propose to assess the permanent functional disability  

of the body as 25% and the loss of future earning capacity as 20%.

19. The evidence showed that at the time of the accident, the appellant  

was aged around 25 years and was eking his livelihood as a cheese vendor.  

He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal  

held that as there was no acceptable evidence of income of the appellant, it  

should be assessed at Rs.900/- per month as the minimum wage was Rs.891  

per month. It would be very difficult to expect a roadside vendor to have  

accounts or other documents regarding income. As the accident occurred in  

the year 1991, the Tribunal ought to have assumed the income as at least  

Rs.1500/-  per  month  (at  the  rate  of  Rs.50/-  per  day)  or  Rs.18,000/-  per  

annum,  even  in  the  absence  of  specific  documentary  evidence  regarding  

income.  

20. In the case of an injured claimant with a disability, what is calculated  

is  the  future  loss  of  earning  of  the  claimant,  payable  to  claimant,  (as  

contrasted from loss of dependency calculated in a fatal accident, where the  

dependent  family  members  of  the  deceased are  the  claimants).  Therefore  

there is no need to deduct one-third or any other percentage from out of the  

income, towards the personal and living expenses.  

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21. As the income of the appellant is assessed at Rs.18000/- per annum,  

the loss of earning due to functional disability would be 20% of Rs.18000/-  

which  is  Rs.3600/-  per  annum.  As  the  age  of  appellant  at  the  time  of  

accident was 25, the multiplier applicable would be 18. Therefore, the loss  

of future earnings would be 3600 x 18 = Rs.64,800/- (as against  Rs.55,080/-  

determined by the Tribunal). We are also of the view that the loss of earning  

during  the  period  of  treatment  (1.10.1991  to  16.6.1992)  should  be  

Rs.12750/-  at  the  rate  of  Rs.1500/-  for  eight  and half  months  instead of  

Rs.3600/- determined by the Tribunal. The increase under the two heads is  

rounded of to Rs.20,000/-.

22. In view of the above, we allow this appeal in part and increase the  

compensation by Rs.20,000/- which shall carry interest at the rate awarded  

by the Tribunal, from the date of petition to the date of payment.  

………………………….J. (R. V. Raveendran)

   ………………………….J (H. L. Gokhale)

New Delhi;  October 18, 2010.

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