In the Judgment of the case- Sri Anthony alias Anthony Swamy v. The Managing Director, K.S.R.T.C. a 3-judge bench of the Supreme Court, consisting of Justice R.F. Nariman, Justice Navin Sinha and Justice Bhushan Gavai, delivered on June 10, 2020,have modified the award given by the Kerala High Court.
Analysing the HC's judgment, the S.C.'s criticism has been by way of its comment that the physical disability of the appellant has been assessed at 25 pc of the whole body without any reasoning, with which The Supreme Court has said that it cannot agree. The compensation granted towards loss of future earning on account of disability at Rs 2,31,000/- is considered grossly inadequate in the facts and circumstances of the case, as also the compensation of Rs 50,000/-towards future medical expenses and only Rs 25,000/- for the loss of amenities.
The Doctor had assessed the physical functional disability of the left leg of the appellant at 75 pc and total body disability at 37.5 pc. The HC considered it proper to assess the physical disability at 25 pc of the whole body only. There is no discussion for this reduction in percentage, much less any consideration of the nature of permanent functional disability suffered by the appellant.
The extent of physical functional disability, in the facts of the case has to be considered in the manner so as to grant just and proper compensation to the appellant towards the loss of future earning. The earning capacity of appellant as on the date of the accident stand completely negated and not reduced. He has been rendered permanently incapable of working as a painter or do any manual work.
Compensation for loss of future earning therefore, has to be proper and just to enable him to live a life of dignity and not a compensation which is elusive. If the75 pc physical disability has rendered the appellant permanently disabled from pursuing his normal vocation or any similar work.
It is difficult to comprehend the grant of compensation to him in ratio to the disability to the whole body. There, the Court has held the appellant entitled to compensation for the loss of future earning based on his 75% permanent , physical functional disability recalculated with salary of Rs 5,500/- with multiplier of 14 at Rs 6,93,0000/-
In the Supreme Court's judgment of the case - Raj Kumar v. Ajay Kumar & Another- (2011) 1 SCC 343, principles for grant of compensation in cases of permanent, physical functional disability have been very lucidly explained as under: ' 10. Where the claimant suffered a permanent disability as a result of injuries, 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.
"The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.
'In most of the cases , equating the percentage of loss of earning capacity to the percentage of permanent disability will result in award of too low or too high a compensation.
'11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at a future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).”
However, the Court has noted 'that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as result of the permanent disability, is approximately the same as the percentage of permanent disability and in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.”
'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 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 can 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 cold carry on some other or lesser scale of activities and functions that he could earn or can continue to earn his livelihood.
'14. Sometimes, the injured claimant may be continued in service ,but may not be found suitable for the duties attached to the post which he was earlier holding, on account of this disability, but can be shifted to some other suitable and lesser post with lesser emoluments in that case there should be limited award under the head of loss of future earnings, taking note of the reduced earning capacity.”
The appellant was travelling in a bus of the respondent - Corporation and met with an accident on February 19, 2010 due to rash and negligent driving by the driver, who hit a lorry from behind. As a consequence of the injuries left leg of the appellant had to be amputated.
The Tribunal awarded Rs 4,08,850/- In appeal the HC enhanced the same to Rs 5.10,350The appeal preferred by the respondent-Corporation was dismissed.
According to the SC, the HC also erred in granting a sum of Rs 50,000/- only towards future medical expenses. The SC has pointed out that the appellant would require 3 more replacement of the artificial left leg during his life time. The SC considered it proper has and enhanced the future medical expenses by Rs 2,50,000/-,in addition to whatever has been granted by the HC for loss of amenities has been enhanced further To Rs 50,000/- The Supreme Court has recalculated the total amount of Compensation as Rs. 11,97,350/-.The apex-Court has also granted interest at Six pc per annum from the date of the petition till the realization.
