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TMI Blog2009 (2) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... na Rao, Shri A.Ravishankar, Shri A.M. Venkalesh, Shri R. Jayaprakash, Shri Arun Ponnappa and Shri Shrishaila, representing either the appellant or the respondents in the several appeals where the issue has arisen for consideration. However, in order to avoid prolixity, separate judgments are rendered in each of their cases. 2. The brief facts in the above appeal are as follows: The appellant was the claimant before the Motor Accidents Claims Tribunal. He was working as a driver and was aged about 45, at the time of accident and claimed to be earning about Rs. 10,000/- per month. On 6.11.2000, while he was riding a two wheeler, it was hit by a car as a result of which, the appellant had sustained a fracture of the right humerus and the right ulna, apart from other injuries. He was admitted to a Hospital and even after treatment, the Medical Practitioner had assessed that there was a permanent impairment to the right upper limb of the appellant, at 60% which according to the medical practitioner's opinion translated to a permanent impairment to the whole-body at 20%. It was on this basis that the appellant had filed the claim petition briber the Tribunal. The Tribunal has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to mitigate the damages by doing some work which he can do. In that view Rs. 84,000/-, is on the higher side. Because throughout his life he would get by way of interest. Rs. 700/- per month and towards the end Rs. 84,000/- would be still in the bank. What we are awarding is on the higher side but, we award the same for the simple reason that even after retirement he had chances of earning and he had chances of saving and we have added only Rs. 10/- per month towards prospects of promotion. Heme, we do not propose to reduce Rupees 84.000/- arrived at by using the multiplier at 10. To this has to be added general damages which is mainly for pain and suffering for loss of amenities and for the injuries suffered. Tiles Cart has been awarding between Rs. 20,000/- to Rs. 30,000/- in the case of injuries like the present ones which resulted in stiffness of the knee and restriction of the movement of the hip joint reducing the earning capacity where no separate awards are made for loss of earning. On the facts of this case a separate award is made for loss of earning at Rs. 84,000/-. Therefore, we deem it just arid proper to award Rs. 20.000/- as general damages mainly for pain and suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, we are of the opinion that the compensation awarded by the tribunal has to be reassessed based on the evidence adduced by the parties. In Ramesh lal v. National Insurance Co. ILR2002KAR5119 In respect of a claimant who had suffered 100% permanent disability, a Division Bench of this Court has awarded Rs. 2,70,000/- towards the claim of loss of future income on the basis that the age of the claimant was '37' at the date of the accident and his monthly income having been taken at Rs. 1,500/-and applying a multiplier of 15. In K. Narasimha Murthy v. Oriental Insurance Co. Limited Bangalore and Anr. ILR 2004 KAR. 2477 - A division bench of this Court has held that while estimating future loss of income, the court can take into account the future prospects of the injured or the deceased of earning more income by way of promotions or otherwise and has taken into account the age of the injured claimant and his monthly income in making an assessment of the future loss of income and has awarded a sum of Rs. 10,80,000/- under that head of claim. In State of Haryana v. Jasbir kaur AIR2003SC3696 , the Supreme Court has observed as follows: 7. It has to be kept in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Vascular Surgeon who lost thumb of the right palm. In medical parlance, the physical incapacity would be valued only between 5 to 10% of the wile body. But, when it comes to his earning capacity, he looses the entire practice as a Vascular Surgeon and there is, therefore, loss of total fixture earning capacity as Vascular Surgeon. In such case, it cannot be said that even if the cannot work as such, can earn by any other avocation. The answer is, we have to consider the source and the income which the victim had at the time of accident keeping in mind the contingencies as referred to in the quotations extracted above and his capacity to do any other work. 13. We may also mention that the decision the Learned Counsel relied upon was rendered by this Court while dealing with the issue pertaining to Workmen's Compensation and not under the motor vehicles claim lows. The issue that came up for consideration before the Court was what would be the established mode of determination of compensation under the Workmen's Compensation Act to a person who still can continue to carry on his manual job. But, in the accident claims, as in this case, determination has to be done as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may call evidence that the plaintiff was in poor health, or in an occupation where employment is casual or irregular, or tempt for some other reason his future earnings were precarious. Loss of earnings is the rimiest common firm of prospective loss, but relevant facts should also be proved in other cases of continuing loss, such as the expense of nursing and household assistance where the plaintiff is a permanent invalid. The ordinary chances and uncertainties of life should also be taken into account, but this includes good luck as well as bad luck, improvement in earnings or better opportunities, and there is certainly no rule of law that on balance a deduction should be made. Damages for Personal Injuries and Death John Munkman (Tenth Edition) Pages 46- 47) There are many permutations. There may be a total loss of earnings for life; or a permanent partial loss of earnings, either at a fixed rate or a rate slowly tapering off as the plaintiff becomes readjusted; or a loss, total or partial or tapering, for a limited period. If there is a tapering loss, it is convenient to estimate an average over the period. Since the earlier loss has a greater present value than the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that employment at mm time in the future, he may then, as a result of his injury, he at a disadvantage in getting another job or an equally well-paid job. This toss of earning capacity has always been a compensable head of damage but has cone into more prominence in recent years, probably as a result of the growth of the practice of itemising awards. Assessment of damages under this head may be highly speculative and clearly no mathematical approach is possible but the court should be satisfied that there is a substantial or real risk that the claimant will be subject to the disadvantage before the end of his working life. If so satisfied, the judge must then do his best to value the chance, taking into account all the facts of the case. Winfusld Jotowkz Tort Seventeenth Edition Para 22-29 page 975 *** 890. Loss of earning capacity. Where the injured plaintiff has not at the date of trial sustained a loss of or reduction in his earnings, he may still claim an award of damages if his injuries make it more likely that he will lose his job and that any job he may subsequently find will be less well mud. Such an award is to compensate him for the weaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification dated 1.6.2001 providing guidelines for evaluation of various disabilities and procedure for certification. This was in modification of the guidelines issued earlier in the year 1986 and in view of the provisions of Persons with Disabilities (Equal opportunities, Protection of Rights and full Participation) Act, 1995, the Government of India had set up four Committees, in terms of its order dated 28.8.1998, under the chairmanship of the Director General of Health Services, one each in die area of Mental Retardation, Locomotor and Orthopaedic Disability, Visual Disability and Speech and Hearing disability. Further, in the year 1999, a fifth Committee was constituted for evaluation of assessment of Multiple Disabilities. The Government has under the said notification approved the recommendations of the Committees and has issued guidelines The of lice of the State Commissioner for Persons with Disabilities, Bangalore has published the same as a booklet. The guidelines provide for evaluation of disability and the procedure for certification. The disabilities are classified as follows: a) Visual impairment b) Locomotor/Orthopaedic disability c) Speech and hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that such an assessment has been made long after the date of accident. On the other hand, if physical impairment has persisted even long alert the date of accident, it is better evidence to support the case that there is in fact a physical impairment which is to be compensated for causing loss of earning. The following conclusions would follow: 1. Loss of earning or loss of earning capacity is a well established head of claim. It cannot be restricted only to persons engaged in physical labour. 2. In estimating the financial or pecuniary loss there must be evidence of the nature and extent of the loss on which the Court can form an opinion. 3. On proof of the amount of earnings lost and expenses incurred upto the date of trial, the claimant is entitled to a full indemnity which are awarded as special damages. 4. In a claim of loss of earnings, the following steps are involved in deciding the same: (a) It is lo be firstly decided as lo what the claimant would have been earning if the accident had not occurred, while allowing for future increase or decrease in the rate of earnings. (b) Then it is necessary to decide how long the loss is likely to continue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal itself that the claimant was re-employed as a driver and continued to work as a driver at the time of the trial. Hence, the award under that head itself was not justified. The question of addressing a claim for additional compensation on the specious plea of loss of earning capacity cannot be sustained. The principles laid down in decided cases or as expounded by learned authors by itself would not suffice to sustain such a claim. There is authority to hold that unless an actual loss or a probable loss can be discerned from proved facts and probabilities, the question of granting any compensation towards the speculative claim for loss of earning capacity would cause hardship to the respondents. He would draw reference to a judgment of the Supreme Court in Jasbir Kaur's case supra, that compensation is not expected to be a wind-fall for the victim. The compensation awarded is more than just and fair and therefore, the appeal be rejected. 9. Keeping in view the several authorities and the principles enunciated, the claim towards medical expenses was held to be established to the extent of Rs. 26,026/- and the tribunal has awarded a sum of Rs. 27,000/- though the claim w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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