HOW TO DECIDE A CLAIM PETITION WHEREIN THE CLAIMANT HAD SUSTAINED INJURIES

HOW TO DECIDE A CLAIM PETITION WHEREIN THE CLAIMANT HAD SUSTAINED INJURIES

 

If the claim petition is preferred u/s 166 of the Act, in injury cases, choice of multiplier remains the same, as in the case of fatal injuries cases. Deductions towards personal and living expenditures are not made in injuries case. To determine the future loss of income, ratio laid down in the case of Raj Kumar v/s Ajay Kumar, reported in 2012 ACJ 1 = 2011 (1) SCC 343 is required to be followed. In paragraph 6 of the said decision, the various elements of compensation are enumerated as under:"

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)".

5.2 Compensation in the case, where an injured victim is

Government Servant/Salaried person, whose salary has

increased after the accident and has not sustained any financial loss:

The concept of awarding compensation is :that no amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury" so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. 5.2.2 Hon'ble Apex Court in the case of Raj Kumar v/s Ajay Kumar, reported in 2011 ACJ 1 = 2011 (1) SCC 343, has held in para No.10 as under:“…

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...”

5.2.3 Reference is also required to be made to ratio laid down by

Hon'ble Gujarat High Court in the case of Gurdipsinh s/o Bisensingh Sadhu vs. Chauhan Bhupendrakumar Udesing,

reported in 1980 GLR 221. In the said judgment, it is held that the Court can make rough estimate about loss of earning capacity in the light of the facts and circumstances and the available data of medical evidence on record. In the said case, Hon'ble High Court had estimated the loss of earning capacity at 25% of actual income and claimant was awarded Rs.45,000, though there was no immediate reduction in his salary as a Technical Assistant in O.N.G.C. Relying upon the said decision, Hon'ble Division bench of Gujarat High Court has held in the case of Mohanbhai Gemabhai vs. Balubhai Savjibhai, reported in 1993(1) GLR 249 (para 20) that:“

No doubt, it is imperative for the Tribunal to consider the

facts and circumstances, and the medical evidence, showing

the extent of physical impairment. If no precise and direct

evidence showing the percentage or extent of the disablement is spelt out, the Tribunal can make rough and reasonable estimate of loss of earning capacity so as to determine the just amount of compensation under the head of 'prospective economic loss'.”

5.2.4 Even the observations of House of Lords, reported in 1912 AC 496 are very relevant and same can be taken into consideration. Reference required to be made to the ratio laid

down in 2013 ACJ 79 – para 20.

5.2.5 One may also make reference to the ratio laid down in the

case of Vijay Kumar Rastogi v/s. UPSRTC, 2018 ACJ 1029

(SC) (FB).

5.2.6 Reference is also required to be made to the ratio laid down

in the case of O.I. Com. V/s. Kahlon, 2021 ACJ 2576.

5.2.7 From the above referred ratios of Hon'ble Apex Court and

Hon'ble Gujarat High Court, it becomes clear that Tribunal

can grant compensation to those injured persons who have

not suffered any financial loss or whose salary income have

actually increased after the date of accident and such

compensation should not be under the head of 'loss of

Future Earnings' but under the head of 'Loss off Amenities'

Such claimants are entitled for such amount of compensation,

calculated on the basis of 1/4th of the net salary income,

which they were getting at the time of accident.

5.2.8 Please refer NIA Com. v/s. Satish Chandra Sharama,

2022 ACJ 1211 for the entitlement of compensation wherein

the government servant has sustained disablement. Also refer

Raju

v/s. Manager, UII Com, 2022 ACJ 1174.