How to decide a claim petition wherein claimant has sustained Injuries under motor vehicles Act:
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. Nonpecuniary 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)".
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.
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...”
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'.”
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.
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).
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.
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.
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.
A What should be the reasonable amount of compensation in the cases where minor has sustained serious injuries in vehicular accident:
5.3A.1 Hon'ble Apex Court in the case of Mallikarjun v/s Divisional Manager, reported in 2013 ACJ 2445. Wherein in para No.12 it is held has under:
“12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for
treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents.”
5.3A.2. A minor sustained vehicular injuries which rendered her in vegetative state and her disability is assessed as 100%. Based on minimum wages, her monthly income is assessed as Rs.4846/. 40% future prospect added and multiplier of 18 is adopted. Over and above the lost of income SC applied multiplier of 18 for assessment of attendant charges. Cost of two attendants works out as Rs.10,000/. Compensation under he head of the attendant charges assessed as Rs.21,60,000/. Rs. 3,00,000/ has been awarded for loss of marriage prospects. Total compensation of Rs.62,27,000/ awarded.
Kajal v/s. Jagdish Chand, AIR 2020 SC 776.
Jithendran v/s. New India Ass, Com. 2021 ACJ 2736 (SC) 5.3A.3. After considering the ratios laid down in the case of Mallikarjun (supra) and Kajal (supra), Hon'ble Supreme
Court in the case of HDFC Ergo General Insurance Com. V/s. Mukesh Kumar, AIR 2021 SC 4010 has held in para 27 that in the cases where the factual scenario requires multiplier method can be applied as it was done in the case of Kajal (supra).
5.3B. Hon'ble Supreme Court in the case of NIA Com. v/s. Satish Chandra Sharama, 2022 ACJ 1211 has granted compensation to injured government servant Even Hon'ble Keral High Court in the case of Raju Sebastian v/s. UII Com., 2022 ACJ 1128 has taken the similar view.
Determination of permanent Partial Disablement of the claimant:
In the cases where injured had sustained more than one fracture injuries, it may appear to Tribunal that disability certificate issued by the Doctor depicts the higher value of disability than the injured claimant has actually sustained. In such situation, Ld. Judge of the Tribunal finds it difficult to arrive at the exact amount of disability sustained by the injured claimant. Normally, Doctors issue disability certificate on the basis of formula invented by Dr. Henry H. Kessler in his book titled as 'Disability – Determination & Evaluation'. For determination of disability in such cases, Doctors apply formula evolved by Dr. Henry H. Kessler. Said Formula reads as under:
A+{ [B (100A)] / 100}
In the said formula, 'A' stands for higher value of partial disablement, whereas 'B' stands for lower value of partial disablement. Doctors normally, take disadvantage of the comments given on page No.49 of the above referred book. Careful reading of the said comments, leads to the conclusion that when injured victim/claimant has sustained injuries, which resulted into two or more fractures on two different limbs of the body, then in such situation disablement in relation to whole body may be assessed as per the above referred formula. But above referred formula does not apply in the cases where claimant has sustained two or more fractures on the same limb
i.e one fracture on right hand and second on left hand or one
fracture on right lag and second on the left leg. It is also mentioned in the said book that lower part of the body i.e. legs or upper part of body i.e. two hands are considered as one limb of the body (lower limb or upper limb) and when victim/claimant has sustained fractures on the one particular limb then in such case, disablement in relation to whole may be assessed as one half of the permanent partial disablement assessed by the doctor. Say for an example, claimant has sustained one fracture injury on right leg and doctor has assessed disability in relation to right lower limb as 27% and second fracture injury on left leg and doctor has assessed disability in relation to left lower limb as 7% and if, we apply simple principle in the facts of the above referred example, the disablement in relation to whole body, comes to 17%. (27% in relation to right lower limb plus permanent partial impairment of 7% in relation to left lower limb, divided by two [27% + 7%]
/ 2). But, if we apply the above referred formula, disablement
in relation to whole body comes to 32.11%. {27 + [7 (100 – 27) / 100]}. From the above referred discussion, it becomes clear that when victim/claimant has sustained more than one fractures on one limb and when victim/claimant has sustained more than one fractures on two limbs, assessment of disablement in relation to whole body is required to be assessed by applying different formulas. Book written by Dr. Henry H. Kessler, namely, 'Disability – Determination & Evaluation' is considered to be the authority as far as calculation of permanent partial disablement is concerned. However, it is to be noted that Dr. Henry H. Kessler has also mentioned in his book that there is always variation of plus/minus 5%, in the permanent partial disablement assessed by the doctor. Therefore, while deciding permanent partial impairment of the injured claimant, above referred facts are required to be remembered.
5.3.3 Reference may also be made to 'Manual For Doctors To Evaluate Permanent Physical Impairment', which is based on expert group meeting on disability evaluation and national seminar on disability evaluation and dissemination, G.G.H.S. W.H.O. A.I.I.M.S., New Delhi 1981. Reference may also be made to 'Disability Guidelines issued by Office of Chief Commissioner for Persons with Disabilities, dated 1st June 2001. Guidelines issued in the above referred reports are as under:
Guidelines for Evaluation of Permanent Physical Impairment in Upper Limbs:
1. The estimation of permanent impairment depends upon the measurement of functional impairment, and is not expression of a personal opinion.
2. The estimation and measurement must be made when the clinical condition is fixed and unchangeable.
3. The upper extremity is divided into two component parts the arm component and the hand component.
4. Measurement of the loss of function of arm component consists in measuring the loss of motion, muscle strength an co ordinated activities.
5. Measurement of the loss of function of hand component consists in determining the Prehension, Sensation & Strength. For estimation of Prehension: Opposition, lateral pinch, Cylindrical grasp, spherical grasp and hook grasp have to be assessed as shown in the column of “prehension” component in the proforma.
6. The impairment of the entire extremity depends on the combination of the functional impairment of both components.
ARM COMPONENT:
Total value of arm component is 90%.
Principles of Evaluation of range of motion of joints
1. The value for maximum R.O.M. in the arm component is 90%.
2. Each of the three joints of the arm is weighted equally (30%).
Example
Fracture of the right shoulder joint may affect range of motion so that active adduction is 90degree. The left shoulder exhibits a range of active abduction of 180degree. Hence there is loss of
50% of abduction movement of the right shoulder. The percentage loss of arm component in the shoulder is 50 x 0.03 or 15% loss of motion for the arm component.
If more than one joint is involved, same method is applied, and the losses in each of the affected joints are added.
Say for example:
Loss of abduction of the shoulder = 60% Loss of extension of the wrist = 40%
Then, loss of range of motion for the
arm = (60 x 0.30) + (40 x 0.30) = 30%
Principles of Evaluation of strength of muscles:
1. Strength of muscles can be tested by manual testing like 05 grading.
2. Manual muscle gradings can be given percentages like 3. – 100%
4. – 80%
5. – 60%
6. – 40%
7. – 20%
8. – 0%
9. The mean percentage of muscle strength loss is multiplied by 0.30.
If there has been a loss of muscle strength of more than one joint, the values are added as has been described for loss of range of motion.
Principles of Evaluation of coordinated activities:
1. The total value for coordinated activities is 90%.
2. Ten different coordinated activities are to be tested as given in the Proforma.
3. Each activity has a value of 9%.
Combining values for the Arm Component:
1. The value of loss of function of arm component is obtained by combining the values of range of movement, muscle strength & coordinated activities, using the combining formula
A+ B (90A)/90
Where 'A' = higher value & 'B' = lower value
Example
Let us assume that an individual with a fracture of the right shoulder joint has in addition to 16.5% loss of motion of his arm, 8.3% loss of strength of muscles, and 5% loss of co ordination. We combine these values as :
Range of motion : 16.5% Strength of Muscles : 8.3%
Result A 16.5 +8.3(9016.5)/90 =23.3 %
Coordination : 5%
Result B 23.3 + 5(9023.3)/90 =27.0%
So total value of arm component = 27.0%
HAND COMPONENT:
Total value of hand component is 90%.
The functional impairment of hand is expressed as loss of prehension, loss of sensation, loss of strength.
Principles of Evaluation of Prehension :
Total value of Prehension is 30%. It includes :
(A) Opposition (8%). Tested against
Index finger (2%). Middle finger (2%) Ring finger (2%) & Little finger (2%)
(B) Lateral Pinch (5%). Tested by asking the patient to hold a key.
(C) Cylindrical Grasp (6%). Tested for
(D) Large object of 4 inch size (3%)
(E) Small object of 1 inch size (3%)
(F) Spherical Grasp (6%). Tested for
(G) Large object 4 inch size (3%)
(H) Small object 1 inch size (3%)
(I) Hook Grasp (5%). Tested by asking the patient to lift a bag.
Principles of Evaluation of Sensations:
Total value of sensation is 30%. It includes :
1. Grip Strength (20%)
2. Pinch Strength (10%)
3. Strength will be tested with hand dynamometer or by clinical method (Grip Method).
10% additional weightage to be given to the following factors :
1. Infection
2. Deformity
3. Malaignment
4. Contractures
5. Cosmetic appearance
6. Abnormal Mobility
7. Dominant Extremity (4%)
Combining values of the hand component:
The final value of loss of function of hand component is
obtained by summing up values of loss of prehension, sensation and strength.
Combining Values for the Extremity:-
Values of impairment of arm component and impairment of hand component are combined by using the combining formula. Example
Impairment of the arm = 27% 64 +27(90 64)/90=71.8%
Impairment of the hand = 64%
Guidelines for Evaluation of Permanent Physical Impairment in Lower Limbs:-
The lower extremity is divided into two components: Mobility component and Stability component.
MOBILITY COMPONENT:-
Total value of mobility component is 90%. It includes range of movement and muscle strength.
Principles of Evaluation of Range of Movement:-
1. The value of maximum range of movement in the mobility component is 90%.
2. Each of the three joints i.e. hip, knee, footankle component, is weighted equally – 0.30.
Example
A Fracture of the right hip joint may affect range of motion so that active abduction is 27degree. The lift hip exhibits a range of active abduction of 54degree. Hence, there is loss of 50% of
abduction movement of the right hip. The percentage loss of mobility component in the hip is 50, 0.30 or 15% loss of motion for the mobility component.
If more than one joint is involved, same method is applied and the losses in each of the affected joints are added.
Example
Loss of abduction of the hip = 60% Loss of extension of the knee = 40%
Loss of range of motion for the mobility component
= (60 x 0.30) + (40 x 0.30) = 30%.
Principles of Evaluation of Muscle Strength:-
1. The value for maximum muscle strength in the leg is 90%.
2. Strength of muscles can be tested by manual testing like 05 grading.
3. Manual muscle gradings can be given percentages like Grade 0 = 100%
Grade 1= 80%
Grade 2= 60%
Grade 3= 40%
Grade 4= 20%
Grade 5= 0%
4. Mean percentage of muscle strength loss is multiplied by 0.30.
5. If there has been a loss of muscle strength of more than one joint, the values are added as has been described for loss of range of motion.
Combining Values for the Mobility Component:-
Let us assume that the individual with a fracture of the right hip joint has in addition to 16% loss of motion 8% loss of strength of muscles.
Combing Values:
Motion 16%, Strength 8%
= 16 +8(9016)/90 =22.6%
Where 'a' = higher value, 'b' = lower value.
STABILITY COMPONENT:-
1. Total value of stability component is 90%
2. It is tested by 2 methods
3. Based on scale method.
4. Based on clinical method
Three different readings (in kilograms) are taken measuring the total body weight (W), scale ‘A’ reading and scale ‘B’ reading. The final value is obtained by the formula :
Difference in body weight divided by Total body weight, multiplied by 90.
In the clinical method of evaluation nine different activities are to be tested as given in the proforma. Each activity has a value of ten percent (10%).
Guidelines for Evaluation of Permanent Physical Impairment of Trunk (Spine):-
The local effects of lesions of spine can be divided into traumatic and nontraumatic lesions.
TRAUMATIC LESIONS
Cervical Spine Fracture
Percent Whole body Permanent Physical Impairment and Loss of Physical Function to Whole Body.
A. Vertebral compression 25%, one or two vertebral adjacent bodies, no fragmentation, no involvement of posterior elements, no nerve root involvement, moderate neck rigidity and persistent soreness.
B. Posterior elements with Xray evidence of moderate partial dislocation.
(a) No nerve root involvement, healed 15
(b) With persistent pain, with mild motor and sensory Manifestations 25
(c) With fusion, healed no permanent motor or sensory changes 25
C. Severe dislocation, fair to good reduction with surgical fusion
(a) No residual motor or sensory changes 25
(b) Poor reduction with fusion, persistent radicular pain, motor involvement, only slight weakness and numbness 35
(c) Same as (b) with partial paralysis, determine additional rating for loss of use of extremities and sphincters.
Cervical Intervertebral Disc:-
1. Operative, successful removal of disc, with relief of acute pain, no fusion, no neurological residual 10
2. Same as (1) with neurological manifestations, persistent pain, numbness, weakness in fingers 20
Thoracic and Dorsolumbar Spine Fracture:-
Percent Whole body Permanent Physical Impairment and Loss of Physical Function to Whole Body
A. Compression 25%, involving one or two vertebral bodies, mild, no fragmentation, healed no neurological manifestations. 10
B. Compression 50%, with involvement posterior elements, healed, no neurological manifestations, persistent pain, fusion indicated. 20
C. Same as (B) with fusion, pain only on heavy use of back. 20
D. Total paraplegia. 100
E. Posterior elements, partial paralysis with or without fusion, should be rated for loss of use of extremities and sphincters.
Low Lumbar:-
1. Fracture
2. Vertebral compression 25%, one or two adjacent vertebral bodies, little or fragmentation, no definite pattern or neurological changes.15
3. Compression with fragmentation posterior elements, persistent pain, weakness and stiffness, healed, no fusion, no lifting over 25 pounds 40
4. Same as (B), healed with fusion, mild pain 20
5. Same as (B), nerve root involvement to lower extermities, determine additional rating for loss of industrial function to extremities
6. Same as (c), with fragmentation of posterior elements, with persistent pain after fusion, no neurologic findings 30
7. Same as (c), with nerve root involvement to lower extremities, rate with functional loss to extremities
8. Total paraplegia 100
9. Posterior elements, partial paralysis with or without fusion, should be rated for loss of use of extremities and sphincters.
@. Neurogenic Low Back Pain – Disc Injury
A. Periodic acute episodes with acute pain and persistent body list, tests for sciatic pain positive, temporary recovery 5 to 8 weeks 50
B. Surgical excision of disc, no fusion, good results, no persistent sciatic pain 10
C. Surgical excision of disc, no fusion, moderate persistent pain and stiffness aggravated by heavy lifting with necessary modification of activities 20
D. Surgical excision of disc with fusion, activities of lifting moderately modified 15
E. Surgical excision of disc with fusion, persistent pain and stiffness aggravated by heavy lifting, necessitating modification of all activities requiring heavy lifting – 25
NON-TRAUMATIC LESIONS:-
Scoliosis
The whole Spine has been given rating of 100% and region wise the following percentages are given:
Dorsal Spine 50% Lumbar Spine – 30% Cervical Spine – 20%
Kobb’s method for measurement of angle of curve in standing position is to be used. The curves have been divided into three sub groups :
|
Particulars |
Cervical Spine |
Thoracic spine |
Lumber Spine |
|
30degree (Mild) |
2.00% |
5.00% |
6.00% |
|
3060degree (Moderate) |
3.00% |
15.00% |
12.00% |
|
Above 60degree (Severe) |
5.00% |
25.00% |
33.00% |
In the curves ranging above 60 0, cardiopulmonary complications are to be graded separately. The junctional curves are to be given that rating depending upon level of apex of curve. For example, if apex of dorsolumbar curve falls in the dorsal spine the curve can be taken as a dorsal curve. When the scoliosis is adequately compensated, 5% reduction is to be given from final rating (for all assessment primary curves are considered for rating).
Kyphosis
The same total rating (100%) as that suggested for scoliosis is to be given for kyphosis. Regionwise percentages of physical impairment are:
Dorsal Spine – 50% Cervical Spine – 30% Lumbar Spine – 20%
For dorsal spine the following further gradings are : Less than 20degree – 10%
21degree – 40degree – 15% 41degree – 60degree – 20% Above 60degree – 25%
For kyphosis of lumbar and cervical spine 5% and 7% respectively have been allocated.
Paralysis of Flexors & Extensors of Dorsal and Lumbar Spine:- The motor power of these muscles to be grouped as follows : Normal
Weak 5%
Paralysed 10%
Paralysis of Muscles of Cervical Spine:-
|
Particulars |
Normal |
Weak |
Paralysed |
|
Flexors |
0 |
5.00% |
10.00% |
|
Extensors |
0 |
5.00% |
10.00% |
|
Rotation |
0 |
5.00% |
10.00% |
|
Side Bending |
0 |
5.00% |
10.00% |
Miscellaneous:-
Those conditions of the spine which cause stiffness and part etc., are rated as follows :
A. Subjective symptoms of pain, No involuntary muscle spasm, Not substantiated by demonstrable structural pathology.0
B. Pain, Persistent muscle spasm and stiffness of spine, substantiated by demonstrable and radiological changes.10%
C. Same as B, with moderate radiological changes.15%
D. Same as B, with severe radiological changes involving any one of the region of spine (cervical, dorsal or lumbar)20%
E. Same as D, involving whole spine30%
In Kyphoscoliosis, both curves to be assessed separately and then percentage of disability to be summed.
Guidelines for Evaluation of Permanent Physical Impairment in Amputees:-
Basic Guidelines:-
1. In case of multiple amputees, if the total sum of percentage permanent physical impairment is above 100%, it should be
taken as 100%.
2. Amputation at any level with uncorrectable inability to wear and use prosthesis, should be given 100% permanent physical impairment.
3. In case of amputation in more than one limb percentage of each limb is counted and another 10% will be added, but when only toes or fingers are involved only another 5% will be added.
4. Any complication in form of stiffness, neuroma, infection etc. has to be given a total of 10% additional weightage.
5. Dominant upper limb has been given 4% extra percentage.
Upper Limb Amputation:-
|
Sr. No |
Particulars of Amputation |
Permanent Partial Impairment, in% |
|
1 |
Forequarter |
100 |
|
2 |
Shoulder Disarticulation |
90 |
|
3 |
Above Elbow upto upper 1/3 of arm |
85 |
|
4 |
Above Elbow upto lower 1/3 of arm |
80 |
|
5 |
Elbow Disarticulation |
75 |
|
6 |
Below Elbow upto upper 1/3 of forearm |
70 |
|
7 |
Below Elbow upto lower 1/3 of forearm |
65 |
|
8 |
Wrist Disarticulation |
60 |
|
9 |
Hand through carpal bones |
55 |
|
10 |
Thumb through C.M. or through 1st M.C. Joint |
30 |
|
11 |
Thumb Disarticulation through metacarpophalangeal joint or through proximal phalanx |
25 |
|
12 |
Thumb Disarticulation through inter phalangeal joint or through distal phalanx |
15 |
Amputation of Finger:-
|
Particulars |
|
IIndex Finger |
Middl e Finger |
Ring Finger |
Little Finger |
|
|
Amputation through proximal phalanx or disarticulation through MP joint |
|
115.00% |
5.00% |
3.00% |
2.00% |
|
|
Amputation through middle phalanx or disarticulation through PIP joint |
|
110.00% |
4.00% |
2.00% |
1.00% |
|
|
Amputation through distal phalanx or disarticulation through DIP joint |
|
55.00% |
2.00% |
1.00% |
1.00% |
|
Lower Limb Amputations:-
|
1. Hind quarter |
100% |
|
2. Hip disarticulation |
90% |
|
3. Above knee upto upper 1/3 of thigh |
85% |
|
4. Above knee upto lower 1/3 of thigh |
80% |
|
5. Through keen |
75% |
|
6. B.K. upto 8 cm |
70% |
|
7. B.K. upto lower 1/3 of leg |
60% |
|
8. Through ankle |
55% |
|
9. Syme's |
50% |
|
10. Upto midfoot |
40% |
|
11. Upto forefoot |
30% |
|
12. All toes |
20% |
|
13. Loss of first toe |
10% |
|
14. Loss of second toe |
5% |
|
15. Loss of third toe |
4% |
|
16. Loss of fourth toe |
3% |
|
17. Loss of fifth toe |
2% |
What should be the amount of compassion in the cases where injured lost one of the limbs (amputation) or Permanent Disablement:-
5.4.1- Injury Case – Where injured has suffered 100% disability or
amputation.
In the case of Rajan v/s Soly Sebastian, reported in 2015 (10) SCC 506, Hon'ble Apex Court has held that when a professional like Driver suffers Permanent Partial Disability (100% functional disability), 50% enhancement for future prospect is required to be made.
In the case of Govind Yadav v/s National Insurance Com. Ltd., reported in 2012 (1) TAC 1 (SC) = 2012 ACJ 28 (SC) an active practicing lawyer has become paraplegic on account of the injuries sustained by him, in the case of M.D. Jacob v/s United India Insurance Com. Ltd. 2014 ACJ 648 (SC) (FB) injured had experience of working as an Electrician and was employed as such and on account of several serious injuries sustained by him in the vehicular accident, including amputation of complete left hand, severe injuries in head, dislocation of bones in hip and both knees and severe injuries in foot and Doctor has assessed his disability at 100%, in the case of Sanjay Kumar v/s Ashok Kumar 2014 ACJ 653 (SC) =AIR 2014 SC (Supp) 1584 injured claimant who was employed as a skilled embroiderer received injuries in a roadside accident and due to injuries sustained, his right leg above the knee had to be amputated, and in the case of V. Mekala v/s. M. Malathi, reported in AIR 2014 SCW 2973 a minor girl studying in the 11th Standard holding first rank in her school sustained grievous injuries and has become a permanently disabled. Whereas in the case of Sanjay Verma v. Haryana Roadways, reported in AIR 2014 SC 995 (FB) injured who was a selfemployed person sustained vehicular injuries and has become cent percent paralyzed. In the case of Jagdish v/s. Mohan, AIR 2018 SC 1347 (FB) = 2018 ACJ 1011 (SC) = 2018 (4) SCC 571 Hon’ble
Full Bench of Supreme Court, in the case of Carpenter who lost one had
in the accident has been awarded compensation calculated after taking into consideration future prospect. In all the above referred judgments,
Hon'ble Apex Court has assessed the amount of compensation after taking into consideration future prospects of increase of income of the injured.
Also refer to AIR 2017 SC 2943 – Dixit Kumar vs. Om Prakash.
Injured a Security Officer – amputation of left leg SC granted future prospect – N. I. Ass. Com. V/s Gajendra Yadav 2017 ACJ 2834.
Injure a Labourer – amputation of Right hand SC granted future prospect – Ankush v/s Hanmanta, 2017 ACJ 2878.
Claimant, a Carpenter (skilled) lost both the hands – future prospects plus Rs.2 lacs for PSS and loss of aminities and Rs.3 lacs for future medical expenses granted – Jagdish v/s. Mohan, AIR 2018 SC 1347 (FB). Claimant, a Load Man – lost complete sensation below abdomen – 100% functional disability – 9% interest granted.
S. Thangaraj v/s NII Com, AIR 2018 SC 1439 (FB) = 2018 ACJ 1009 (SC),
Claimant a professional Driver – amputation of right leg – SC granted future prospects – Mangla Ram v/s. OI Com, AIR 2018 SC 1900.
Hon'ble Apex Court in the cases of Govind Yadav v/s National Insurance Com. Ltd., reported in 2012 (1) TAC 1 (SC) = 2012 ACJ 28 (SC), M.D. Jacob v/s United India Insurance Com. Ltd. 2014 ACJ 648 (SC) (FB) and Sanjay Kumar v/s Ashok Kumar 2014 ACJ 653 (SC) has held that as the cost of living and cost of artificial limb (prosthetic) has substantially increased and, therefore, Rs.2,00,000/ to be awarded under the said head. Rs.1,50,000/each to be awarded under the heads of pain, shock & sufferings and special diet, attendance & transportation and loss of amenities and enjoyment of life, respectively. And if injured is unmarried and his/her prospects for marriage have considerably reduced, Rs.1,00,000/ may be awarded.
Relying on the ratio laid down in the case of Sanjay Verma
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