When family members are taking care of permanently disabled person in Motor accident claim petition, Supreme Court has granted Rs one lakh towards attendant charges

 In this regard, we have perused the statement of the Appellant's mother (PW-3). As per her statement, initially they had engaged an attendant at ` 6,000 per month. However, he had left his services about a month before the mother was cross-examined on 23rd September, 2016. Further, the Appellant's father works as a priest and have a meagre monthly income. Thus, it is the Appellant's mother and other family members who are taking care of him. Considering the aforesaid facts, in our opinion, a lump sum amount of ` 1,00,000/- is reasonable and deserves to be awarded to the Appellant on account of future attendant charges. {Para 17}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11100 of 2024.

Decided On: 15.10.2024

Chandramani Nanda Vs. Sarat Chandra Swain and Ors.

Hon'ble Judges/Coram:

J.K. Maheshwari and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation: 2024 INSC 777, MANU/SC/1109/2024.

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Supreme Court: Burden of proof in motor accident claim petition is on respondent to show that after accident victim is earning money by doing another work

 In light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the Appellant's earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the Appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the Appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the Appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income. {Para 10}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 237 of 2012.

Decided On: 10.01.2012

Mohan Soni Vs. Ram Avtar Tomar and Ors.

Hon'ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

Author: Aftab Alam, J.

Citation: AIR 2012 SUPREME COURT 782, 2012 (2) SCC 267,MANU/SC/0011/2012.

Read full Judgment here: Click here.

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Supreme Court: Three steps inquiry necessary for ascertaining functional disability due to 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. {Para 13}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 237 of 2012.

Decided On: 10.01.2012

Mohan Soni Vs. Ram Avtar Tomar and Ors.

Hon'ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

Author: Aftab Alam, J.

Citation: AIR 2012 SUPREME COURT 782, 2012 (2) SCC 267,MANU/SC/0011/2012.

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Supreme court judgment for determining compensation for disability in case of fatal or non-fatal accidents

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.

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:

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:

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:

[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)].

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.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8981 of 2010.

Decided On: 18.10.2010

Raj Kumar Vs. Ajay Kumar and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and H.L. Gokhale, JJ.

Author: R.V. Raveendran, J.

Citation: MANU/SC/1018/2010 : (2011) 1 SCC 343.

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Supreme court: In cases of permanent disablement caused by a motor accident, the claimant is entitled to future prospects

FUTURE PROSPECTS

17. The High Court has not applied the quantum for future prospect in the compensation granted. In its reasoning, the High Court has stated that the Income tax returns relied upon by the Appellant show that despite the injury the Appellant's income had subsequently increased and hence it cannot be said that there is a loss of future earnings.

18. It is a well settled position of law that in cases of permanent disablement caused by a motor accident, the claimant is entitled to not just future loss of income, but also future prospects. It has been reiterated by this Court in multiple instances that "just compensation" must be interpreted in such a manner as to place the claimant in the same position as he was before the accident took place.

19. The accident that caused the injury took place on 12.06.2009. The acknowledgement of both the Income Tax Returns produced by the Appellant show that Tax Returns were till 31.03.2008 and 31.03.2009. Both the Income Tax Returns produced as proof of income were from before the accident took place, and hence the High Court's finding that the income of the Appellant has increased after the disability is incorrect.

20. It is also to be noted that even if the income of the Appellant had increased after the accident, it would not be enough grounds to disable the Appellant from claiming compensation for future prospect as the rise in income may be attributed to multiple other factors.

21. In light of National Insurance Co. Limited v. Pranay Sethi and Ors. MANU/SC/1366/2017 : (2017) 16 SCC 680, the applicable 40% addition of future prospects will be given as compensation to the Appellant herein.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 9070-9071 of 2022.

Decided On: 09.12.2022

Mohd. Sabeer Vs. Regional Manager, U.P. State Road Transport Corporation

Hon'ble Judges/Coram:

Krishna Murari and S. Ravindra Bhat, JJ.

Author: Krishna Murari, J.

Citation:  MANU/SC/1597/2022, 2022 SCCONLINE 1701.

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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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Bombay HC: 9% is the appropriate rate of interest to be awarded in motor accident compensation cases

  The Tribunal awarded an interest @ 6% p.a. from the date of application till its realization and I find substance in the submission of the learned counsel to the effect that the interest ought to have awarded @ 9% p.a., which is the appropriate rate of interest to be awarded in case of compensation to be payable for motor accidents and the Apex Court in case of Kaushnuma Begum & Ors. Vs. New India Assurance Co., MANU/SC/0002/2001 : 2001 (1) SCR 8, has observed that 9% is the appropriate rate of interest to be awarded in motor accident compensation cases. Perusal of the latest decision of the Apex Court in case of Parvinder Singh (supra), the compensation is awarded with interest @ 9%.

{Para 21}

IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022.

Read full Judgment here: Click here

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Whether claimant must prove percentage of loss of earning capacity, arising from a permanent disability in motor accident case?

 When a claimant suffers a disability as a result of such injuries and on ascertaining that the disability is of permanent nature, 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. It is expected that the mechanical formulae of calculating the loss of earning capacity depending upon the percentage of permanent disability, is not to be applied as in most of the cases, the percentage of economic loss i.e. the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.

Accepting the aforesaid principle, it can be seen that as far as the respondent claimant is concerned, the disability certificate has certified his disability to be 83% and the Tribunal has accepted his functional disability to be 83% and therefore, the loss of earning capacity to be 83%. However, if the claim of the claimant is that on 83% disability, he has incurred 100% functional disability, then it was imperative for the claimant to bring on record some evidence to that effect. Since the claimant suffer 83% physical disability in the present case, in order to establish that this amounted to 100% functional disability, none of the witnesses are examined by the claimant to prove the said aspect. The claimant has not projected his case before the Tribunal to the effect that on account of the permanent disability incurred by him, his functional disability is also 100%, which has resulted in loss of 100% earning capacity. In absence of any such specific evidence being brought on record, the submission of learned Advocate Ms. Nandini Chittal to that effect, do not deserve any consideration. {Para 20}

IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022.

Read full Judgment here: Click here

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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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Guidelines of Delhi high court for assessment of functional disability in case of motor accident

 Directions for assessment of functional disability by the Claims Tribunal
6.1. All injuries or permanent disability arising from injuries do not result
in loss of earning capacity.
6.2. The percentage of permanent disability with reference to the whole
body of a person should not be mechanically 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).
6.3. The doctor who treated an injured-claimant or who examined him
subsequently to assess the extent of his permanent disability can give
evidence of his medical opinion with regard to the extent of permanent
disability. However, the loss of earning capacity is something to be assessed
by the Claims Tribunal with reference to the evidence in its entirety.
6.4. 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.
6.5. Ascertainment of the effect of the permanent disability on the actual
earning capacity involves three steps:
(i) 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).
(ii) The second step is to ascertain his avocation, profession and nature
of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled from earning any kind of 
livelihood, or
b) 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
c) 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.
6.6. The Claims Tribunal may consider co-opting a medical expert from
any Government Hospital for taking assistance in assessing the functional
disability. However, cases in which medical expert is co-opted, should be
taken up by a Claims Tribunal at a designated time so that the doctor is not
made to wait. The proceedings for assessment of the functional disability of
the claimant with the assistance of a medical expert should preferably be
conducted in camera and counsel for insurance company and authorised
representative of the insurance company be permitted to remain present.
6.7. The photographs of the injured portion should be taken on record in
every injury case and a reasoned finding should be recorded in respect of the
functional disability in terms of the principles laid down by the Supreme
Court in Raj Kumar v. Ajay Kumar (supra).
6.8. The photographs of the injured portion of the claimant should be
annexed to the award to enable the Appellate Court to peruse the same in the
event of the award being challenged. However, the photographs should not
be uploaded on the website of the Court.

 IN THE HIGH COURT OF DELHI AT NEW DELHI
 FAO 842/2003 & CM Applns.32859/2017, 41125-41127/2017

RAJESH TYAGI & ORS. Vs JAIBIR SINGH & ORS. ..... 

CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA

Dated: 09.03.2018

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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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