Showing posts with label earning capacity. Show all posts
Showing posts with label earning capacity. Show all posts

Sunday, 19 February 2023

How to ascertain effect of permanent disability on the actual earning capacity?

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. 

{Para 12}

13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent 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.


14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred 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 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.


19. There is no dispute that the Appellant suffered from disablement of permanent nature. The disablement has incapacitated her from doing the work which she was capable of doing. The said work was of that of a laborer. Therefore, the Commissioner for Workmen's Compensation was wrong in holding that the disability of the Appellant will have to be treated as 20% disability as the work of an Appellant involves lifting heavy weights and the Appellant has been rendered incapable from doing such work due to her disability. Hence, the case of the Appellant will be covered by the definition of 'total disablement', therefore, being 100% disabled.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9069 of 2022 

Decided On: 09.12.2022

Chandramma  Vs.  Manager, Regional Office, NCC Limited and Ors.

Hon'ble Judges/Coram:

Krishna Murari and S. Ravindra Bhat, JJ.

Author: Krishna Murari, J.

Citation: MANU/SC/1596/2022,(2023)2 SCC 144

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Friday, 12 June 2020

Supreme Court: Three steps inquiry for ascertaining the effect of permanent disability on earning capacity of the victim of a motor accident

Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the permanent
disability and what he could not do as a result of the
permanent disability (this is also relevant for awarding
compensation under the head of loss of amenities of
life). The second step is to ascertain his avocation,
profession and nature of work before the accident, as
also his age. The third step is to find out whether (i) the
claimant is totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry on
the activities and functions, which he was earlier
carrying on, or (iii) whether he was prevented or
restricted from discharging his previous activities and
functions, but could carry on some other or lesser scale
of activities and functions so that he continues to earn
or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss of
earning capacity may virtually be hundred per cent, if
he is neither able to drive or do carpentry. On the other
hand, if the claimant was a clerk in government service,
the loss of his left hand may not result in loss of
employment and he may still be continued as a clerk as
he could perform his clerical functions; and in that
event the loss of earning capacity will not be 100% as in
the case of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact, there
may not be any need to award any compensation under
the head of “loss of future earnings”, if the claimant
continues in government service, though he may be
awarded compensation under the head of loss of
amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in
service, but may not be found suitable for discharging
the duties attached to the post or job which he was
earlier holding, on account of his disability, and may
therefore be shifted to some other suitable but lesser
post with lesser emoluments, in which case there
should be a limited award under the head of loss of
future earning capacity, taking note of the reduced
earning capacity.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 2551 OF 2020

SRI ANTHONY alias ANTHONY SWAMY  Vs  THE MANAGING DIRECTOR, K.S.R.T.C.

NAVIN SINHA, J.
Dated: June 10, 2020
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Monday, 12 June 2017

How to ascertain effect of permanent disability on actual earning capacity of claimant in case of motor accident?

 Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent 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 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.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 8981 of 2010.
Decided On: 18.10.2010
 Raj Kumar Vs. Ajay Kumar and Anr.
Hon'ble Judges/Coram:
R.V. Raveendran and H.L. Gokhale, JJ.
Citation:(2011) 1 SCC 343
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