IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.39 of 2009 (O&M) Date of decision:05.12.2012 Binu Sidhu ....Appellant versus Shri Soran Dass and others ....Respondents CORAM: HON’BLE Mr.JUSTICE K.
KANNAN ---- Present: Mr.Ashit Malik, Advocate, for the appellant.
Mr.Inderjit Sharma, Advocate, for Mr.D.K.Dogra, Advocate, for respondent No.4.
---- 1.
Whether reporters of local papers may be allowed to see the judgment ?.
No.2.
To be referred to the reporters or No.?.
No.3.
Whether the judgment should be reported in the digest ?.
No.---- K.Kannan, J.(Oral) 1.
The appeal is for enhancement of compensation determined for a male aged 25 yeaRs.who suffered a privation of the right arm by amputation.
The assessment of disability was 82%.
He was technically trained as a catering Manager and was working in foreign country, drawing a salary of 15,000 krones.
Less deduction of tax, his take home salary was 12,750 krones.
The Tribunal, while assessing compensation, provided for ` 70,000/- towards medicines FAO No.39 of 2009 (O&M) -2- and special diet and ` 2,50,000/- towards non-pecuniary damages without specifying the individual heads and took the loss of earning capacity per month as 3,000 krones.
It adopted a multiplier of 16 and provided for an overall compensation of ` 35 lakhs.”
2. The learned counsel states in appeal that when the disability was assessed at 82%, the same should have been also taken as the percentage of loss of earning capacity, for, in this case, there was evidence to the effect that after the accident, he was discharged from service and he had returned to India never to go back again.
His evidence also was that he was young in age at 26 years and he had lost the prospect of marriage.
The compensation would require to be therefore enhanced providing for a computation of the actual loss which was even 100% of what he was earning on the basis of evidence that he had lost his job.”
3. The cases of amputation where an assessment of disability is made, have reasonably good guidance through the provisions of the Workmen's Compensation Act itself that sets out in Schedule-I corresponding the loss of percentage of earning capacity.
The disability is normally understood as a functional disability of a particular organ and the loss of earning capacity is to be seen in the context of how the disability impacts the earning skills.
A privation of an organ shall secure an assessment of percentage of earning capacity and the provisions of the WC Act are themselves a sure FAO No.39 of 2009 (O&M) -3- guide since they had been drafted on the recommendations of the ILO at a global level.
A retention in job of a person that suffers amputation would still require an assessment of the loss of earning capacity in the manner provided in Schedule-I by taking note of the fact that in such situations, the earning capacity must be assessed from the point of view of his own saleability in open market for his service after such disablement.
If a person were to seek a fresh employment and he would come by an impediment by the physical handicap that he has suffered, that shall be the guide for assessing the loss of earning capacity.
This is not always inviolable, Courts have even provided for loss of earning capacity higher than the actual percentage of earning capacity shown in the WC Act.
In S.Suresh Versus Oriental Insurance Company Limited and another-(2010) 13 SCC 77.where a lorry driver has lost his leg and the assessment of loss of earning capacity was 50% as per the WC Act, the Supreme Court provided the loss to be 100%.
Here, the Court was considering how a particular avocation of an individual could dictate special terms for even a higher percentage of loss of earning capacity.
An arm-less chef or a person in hospitality industry loses essentially his power to wangle a good employment bargain in the market.
If the privation of an organ must be taken to have resulted in 82% disability, I would take the assessment of earning capacity must be taken as 75%.
I cannot still take a view FAO No.39 of 2009 (O&M) -4- that since he was discharged from job, the loss of earning capacity must be taken as 100%.
A driver's job, which is semi-skilled, is not the same as the Chef who works in kitchen or a Hospital Manager who works in a hospital.
There is fair amount of mental component for bringing out his abilities as such Manager which faculty could still be intact.
I will take the loss of earning capacity to be 75% since it should still be possible for him to market his own abilities with the privation that he has gone through.”
4. In assessment to compensation for persons who earn in foreign exchange, normally values of multiplier provided under the Motor Vehicles Act or the factors provided under the WC Act need not be strictly applied.
They provide sufficient guide to hover around that value which can be applied to Indian conditions.
The learned counsel for the appellant would contend that there should be no justification for reducing the same since there was always a prospect of increase in income and he had suffered the fate of amputation much too early in his life before he could scale the peak of his employment graph.
What would require to be reduced as a value in the multiplier since he has secured higher compensation for the income that he had in a foreign country, it should be offset for the prospect of increase in salary which he would get.
Though there is sufficient authority for the fact that for moneys earned in foreign exchange, the value of multiplier could be less, as argued by the FAO No.39 of 2009 (O&M) -5- counsel for the Insurance Company, I will still retain the multiplier of 17 which would be appropriate for a person aged between 25 to 30 by the only fact that I am not factoring any increase in salary which was a sure prospect, I will therefore take the income, after the tax deducted at 15%, to secure 1,250 krones.
However, he could move into a higher tax bracket in Indian conditions and a mere tax deducted at source shall not be the proper guide for deductions.
I will take 30% deduction on the salary which he was earning and would take the salary after deduction at 10,500/- krones.
To this must be worked at 75% for that constitutes the loss of percentage of income earning capacity and that shall be 7,875/-.
This will result in an assessment of 16,06,500/- krones.
Converting it in terms of rupee at the exchange value on the date of filing of the petition, it should be multiplied by 5.52, which will yield to ` 88,67,880/-, rounded off to ` 88,68,000/-.
To this amount shall be added the provision for medical expenses and diet as already assessed by the Tribunal at ` 70,000/- and ` 2,50,000/- which had been assessed as non-pecuniary damages which I will identify as going towards pain and suffering and loss of amenities in life and loss of prospect of marriage.
The total amount shall be ` 91,87,800/-, which I will round off to ` 92 lakhs.
In Raj Kmar Versus Ajay Kumar-(2011) 1 SCC 343.the Supreme Court has held that when loss of earning capacity is assessed at more than 75%, the other heads of FAO No.39 of 2009 (O&M) -6- compensation for loss of amenities could be minimal.
The amount in excess of what has been assessed by the Tribunal shall attract interest at 6% from the date of petition till date of payment.
The liability shall be in the same manner as provided by the Tribunal.
The award stands modified and the appeal is allowed to the above extent.
(K.KANNAN) JUDGE 05 12.2012 sanjeev