RAJ KUMARversusAJAY KUMAR & ANR.

               [2010] 13 (ADDL.) S.C.R. 179


                        RAJ KUMAR                                 A
                              v.
                    AJAY KUMAR & ANR.
              (Civil Appeal No. 8981 of 2010)
                    OCTOBER 18, 2010
                                                                  B
     [R.V. RAVEENDRAN AND H. L. GOKHALE, JJ.]

    Motor Vehicles Act, 1988:

     ss. 163-A, 166, 168 and 169 - Non-fatal motor accident       c
- Partial permanent disability - Compensation towards loss
of future earnings - Principles enumerated - Illustrations
given - Securing of expert medical evidence - Guidelines
laid down - HELD: Instead of remanding the case after two
decades, on facts and circumstances of the case, in order to      D
do complete justice, permanent functional disability of the
claimant and loss of future earning capacity assessed -
Monthly income of claimant re-assessed - In calculating
compensation towards loss of future earnings due to disability,
there is no need to deduct one-third or any other percentage
                                                                  E
from the assessed income towards the personal and living
expenses - Age of claimant being 25 years, multiplier of 18
applied - Compensation towards loss of future earning and
loss of earnings during the period of treatment enhanced
accordingly - Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 - s.2(1)   F
- Workmen's Compensation Act, 1923 - Evidence - Expert
medical evidence - Securing of - Constitution of India, 1950
- Articles 136 and 142.

    A roadside cheese vendor, aged about 25 years,                G
sustained fracture of both bones of left leg as also of left
radius, in a motor accident. The Motor Accident Claims
Tribunal, awarded compensation on various heads. As
regards com'pensation towards loss of future earnings,
                             179                                  H
    180   SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A   the .Tribunal relying on the medical certificate indicating
    45% disability held the loss of future earnings as 45%.
    Though the claimant asserted that his monthly income
    was Rs. 3000/-, the Tribunal, in the absence of any
    documentary evidence in this regard, took the minimum
B   wage, viz. R.891/- as the monthly income of the claimant,
    rounded it off to Rs. 900/-and deducted one-third
    therefrom towards personal and living expenses. Taking
    the loss of future earnings as 45% of Rs. 600/- to be Rs.
    270/- or Rs. 3,240/- per annum, and applying a multiplier
C   of 17, the Tribunal awarded Rs. 55,080/- towards the loss
    of future earnings. The appeal filed by the claimant for
    enhancement of compensation was dismissed by the
    High Court.

        In the instant appeal, it was contended for the
D   appellant that (i) the assessment of monthly income at Rs.
    900/- was very low and (ii) deduction of one-third of the
    income towards personal and living expenses while
    assessing the future loss of earning was not warranted.

E         Partly allowing the appeal, the Court

          HELD:
         1. The provision of the Motor Vehicles Act, 1988
    makes it clear that the award must be just, which means
F   that compensation should, to the extent possible, fully
    and adequately restore the claimant to the position prior
    to the accident. The object of awarding damages is to
    make good the loss suffered as a result of wrong done
    as far as money can do so, in a fair, reasonable and
G   equitable manner. The court or tribunal shall have to
    assess the damages objectively and exclude from
    consideration any speculation or fancy, though some
    conjecture with reference to the nature of disability and
    its consequences, is inevitable. A person is not only to
    be compensated for the physical injury, but also for the
H
         RAJ KUMAR v. AJAY KUMAR & ANR.                    181


loss which he suffered as a result of such injury. This           A
means that he is to be compensated for his inability to
lead a full life, his inability to enjoy those normal amenities
which he would have enjoyed but for the injuries, and his
inability to earn as much as he used to earn or could have
earned. [para 4] [188-F-H; 189-A]                                 B
     C. K. Subramonia Iyer vs. T. Kunhikuttan Nair 1970 (2)
SCR 688 =AIR 1970 SC 376, R. D. Hattangadi vs. Pest
Control (India) Ltd. - 1995 (1) SCR 75 =1995 (1) SCC 551 -
relied on.
                                                                  c
     Baker vs. Willoughby - 1970 AC 467 - referred to.
Assessment of future loss of earnings due to permanent
disability:
    2.1 Permanent disability can be either partial or total.      0
Partial permanent disability refers to a person's inability
to perform all the duties and bodily functions that he
could perform before the accident, though he is able to
perform some of them and is still able to engage in some
gainful activity. Total permanent disability refers to a          E
person's inability to perform any avocation or
employment related activities as a result of the accident.
[para 6] [191-A-B]
     2.2 The permanent disabilities that may arise from
motor accidents injuries, are of a much wider range when          F
compared to the physical disabilities which are
enumerated in the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995. But if any of the disabilities enumerated in
section 2(i) of the Disabilities Act are the result of injuries   G
sustained in a motor accident, they can be permanent
disabilities for the purpose of claiming compensation.
[para 6) [191-B-D]
    2.3 Where the claimant suffers a permanent disability
as a result of injuries, the assessment of compensation           H
    182   SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A   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
s   earning capacity. 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
c   at the future loss of earnings (by applying the standard
    multiplier method used to determine loss of dependency).
    [para 8] [191-H; 192-A-B, 0-E]
      Arvind Kumar Mishra v. New India Assurance Co.Ltd. -
  2010 (11) SCR 857 = 2010 (10) SCALE 298 and Yadava
D Kumar v. D.M., National Insurance Co. Ltd. - 2010 (10)
  SCR 746 = 2010 (8) SCALE 567 - relied on.
         2.4 The Tribunal should not be a silent spectator
    when medical evidence is tendered in regard to the
    injuries and their effect, in particular, the extent of
E   permanent disability. Sections 168 and 169 of the Act
    make it evident that the Tribunal does not function as a
    neutral umpire as in a civil suit, but as an active explorer
    and seeker of truth wh9 is required to 'hold an enquiry
    into the claim' for determining the 'just compensation'.
F   The Tribunal should, therefore, take an active role to
    ascertain the true and correct position so that it can
    assess the 'just compensation'. While dealing with
    personal injury cases, the Tribunal should preferably
    equip itself with a Medical Dictionary and a Handbook for
G   evaluation of permanent physical impairment. The
    Tribunal may also keep in view the' ~irst Schedule to the
    Workmen's Compensation Act, 1923 which gives some
    indication about the extent of permanent disability in
    different types of injuries, in the case of workmen. [para
H   11] [194-F-H; 195-A·C]
        RAJ KUMAR v. AJAY KUMAR & ANR.                   183


    Manual for Evaluation of Permanent Physical Impairment      A
for Orthopedic Surgeons, by American Academy of
Orthopedic Surgeons - referred to.

- '- 2.5 The Tribunal should also act with caution, if it
 proposed to accept the expert evidence of doctors who          B
 did not treat the injured but who give 'ready to use'
 disability certificates, without proper medical
 assessment. The Tribunal may invariably make it a point
 to require the evidence of the Doctor who treated the
 injured or who assessed the permanent disability. If the       C
 Tribunal is not satisfied with the medical evidence
 produced by the claimant, it can constitute a Medical
 Board (from a panel maintained by it in consultation with
 reputed local Hospitals/Medical Colleges) and refer the
 claimant to such Medical Board for assessment of the
 disability. [para 12) [195-F-G-H; 196-A-B]                     D

    2.6 The principles to be kept in view while making an
assessment of loss of future earnings are summarised as
below:
                                                                E
     (i) All injuries (or permanent disabilities arising from
     injuries), do not result in loss of earning capacity. ·

    (ii) The percentage of permanent disability with
    reference to the whole body of a person, cannot be
    assumed to be the percentage of loss of earning F
    capacity. The percentage of loss of earning capacity
    is not the same as the percentage of permanent·
    disability (except in a few cases, where the Tribunal
    on the basis of evidence, concludes that percentage
    of loss of earning capacity is the same as percentage G
    of permanent disability).

    (iii) The doctor who treated an injured-claimant or
    who examined him subsequently to assess the
    extent of his permane·nt disability can give evidence
                                                                H
    184    SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A         only in regard the extent of permanent disability. The
          loss of earning capacity is something that will have
          to be assessed by the Tribunal with reference to the
          evidence in entirety.

          (iv) The same permanent disability may result in
B
          different percentages of loss of earning capacity in
          different persons, depending upon the nature of
          profession, occupation or job, age, education and
          other factors. [para 13) [196-C-G]
c        2. 7 The assessment of loss of future earnings may
    be made keeping in view the illustrations A to C as given
    in the judgment. [para 14) [196-H]

       2.8 It may be noted that when compensation is
0 awarded by treating the loss of future earning capacity
  as 100% (or even anything more than 50%), the need to
  award compensation separately under the head of loss
  of amenities or loss of expectation of life may disappear
  and as a result, only a token or nominal amount may have
E to be awarded under the head of loss of amenities or loss
  of expectation of life, as otherwise there may be a
  duplication in the award of compensation. [para 10) [194-
  D-F]

       2.9 After the insertion of s. 163A in the Act (with effect
F from 14.11.1994), if a claim for compensation is made
  under that section by an injured alleging disability, and
  if the quantum of loss of future earning claimed, falls
  under the Second Schedule to the Act, the Tribunal may
  have to apply the principles laid down in Note (5) of the
G Second Schedule to the Act to delermine compensation.
  [para 15] [198-G-H]
       2.10 In the case of an injured claimant with a
  disability, what is calculated is the future loss of earning
H of the claimant, payable to claimant, (as contrasted from
        RAJ KUMAR v. AJAY KUMAR & ANR.                   185


loss of dependency calculated in a fatal accident, where        A
the dependent family members of the deceased are the
claimants). Therefore, there is no need to deduct one-
third or any other percentage from the assessed income,
towards the personal and living expenses. [para 20] [202-
C]                                                              B
    2.11 The difficulties faced by claimants in securing
the presence of busy Surgeons or treating Doctors, who
treated them, for giving evidence are also to be
considered. The solution does not lie in coercing the
Doctors to attend the Tribunal to give evidence, but it lies    C
in recognizing the valuable time of Doctors and
accommodating them. Efforts should be made to record
the evidence of the treating Doctors on Commission, after
ascertaining their convenient timings. If the Doctors
attend the Tribunal for giving evidence, their evidence         D
may be recorded without delay, ensuring that they are not
required to wait. In cases where the certificates are not
contested by the respondents, they may be marked by
consent, thereby dispensing with the oral evidence. [para
16] [199-F; 200-B-F]                                            E

     2.12 In the instant case, the Tribunal acted on the
disability certificate, and the High Court erred in rejecting
the same. Though the accident occurred in Delhi and the
injured claimant was tteated in a Delhi Hospital after the      F
accident, as he hailed from the neighbouring District of
Ghaziabad in Uttar Pradesh, he might have continued the
treatment in the place where he resided. Besides, the
certificate has been issued by the Chief Medical Officer,
Ghaziabad, on the assessment made by the Medical                G
Board which also consisted of an Orthopaedic Surgeon.
[para 17] [200-G-H; 201-B]

Assessment of Compensation:

     3.1 The Tribunal has proceeded on the basis that the       H
    186   SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A permanent disability of the injured-claimant was 45% and
  the loss of his future earning capacity was also 45%. The
  Tribunal overlooked the fact that the disability certificate
  referred to 45% disability with reference to left lower limb
  and not in regard to the entire body. The said extent of
B permanent disability of the limb could not be considered
  to be the functional disability of the body nor could it be
  assumed to result in a corresponding extent of loss of
  earning capacity, as the disability would not have
  prevented the claimant from carrying on his avocation as
c a cheese vendor, though it might impede in his smooth
  functioning. Normally, the absence of clear and sufficient
  evidence would have necessitated remand of the case for
  further evidence on this aspect. However, instead of
  remanding the matter for a finding on this issue, at this
  distance of time after nearly two decades, on the facts
0
  and circumstances, to do complete justice, the permanent
  functional disability of the body is assessed as 25% and
  the loss of future earning capacity as 20%. [para 18] [201-
  C-F]
E      3.2 It would be very difficult to expect a roadside
  vendor to have accounts or other documents regarding
  income. As the accident occurred in the year 1991, the
  Tribunal ought to have assumed the income as at least
  Rs.1500/- per month (at the rate of Rs.50/- per day) or
F Rs.18,000/- per annum, even in the absence of specific
  documentary evidence regarding income. Accordingly,
  the loss of earning due to functional disability would be
  20% of Rs.18000/ which is Rs.3600/- per annum. As the
  age of appellant at the time of accident was 25, the
G multiplier applicable would be 18. Compensation towards
  the loss of future earnings and the loss of earning during
  the period of treatment enhanced accordingly. [para 19
  and 21] [202-A-B-D-F]

    -~ecuring of expert medical evidence:
H
        RAJ KUMAR v. AJAY KUMAR & ANR.                      187


                     Case Law Reference:                           A

    1970 (2) SCR 688          ·relied on             para 4
    1995 (1) SCR 75            relied on             para 4
    1970 AC 467                referred to           para 4        B
    2010 (11) SCR 857          relied on            . para 8
    2010 (10)SCR 746           relied on             para 8
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8981 of 2010.                                                      c
    From the Judgment & Order dated 31.01.2007 of the High
Court of Delhi at New Delhi in FAO No. 601 of 2002.

     Manu Shahlia, Manjeet Chawla for the Appellant.
                                                                   D
    Anurag Pandey for the Respondents.

     The Order of the Court was delivered by
                           ORDER
                                                                   E
     R.V. RAVEENDRAN, J. 1. Leave granted. Heard.

      2. The appellant was injured in a motor accident on
1.10.1991 and sustained fracture of both bones of left leg and
fracture of left radius. He was under treatment from 1.10.1991
                                                                   F
to 16.6.1992. The Motor Accident Claims Tribunal, by award
dated 20.7.2002, awarded compensation of Rs.94,7007-, with
interest at 9% per annum from the date of petition till date of
realization. The amount awarded was made up of Rs.11,000/
- towards medical expenses, conveyance and special diet;
 Rs.3600/- towards loss of earning during period of treatment;     G
Rs.25,000/- for pain and suffering; and Rs.55,080 towards loss
of future earnings. For calculating the loss of future earnings,
the Tribunal took the minimum wage as the monthly income of
the appellant, that is Rs.891/- rounded off to Rs.900/- and
deducted one-third therefrom towards the personal and living       H
    188   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A expenses; and by assuming the percentage of disability (45%)
  shown in disability certificate to be the economic disability, the
  Tribunal arrived at loss of future earnings as 45% of Rs.600/-,
  that is Rs.270/- per month or Rs.3,240/- per annum. By applying
  a multiplier of 17, it arrived at Rs.55,080/- as the loss of future
B earnings. The appellant filed an appeal seeking increase in
  compensation. The High Court rejected the said appeal by the
  impugned judgment dated 31.1.2007 on the ground that the
  disability certificate produced by the appellant was not reliable.
  The said judgment of the High Court is challenged in this appeal
c by special leave.
           3. The appellant puts forth two grievances: (i) the
  assessment of monthly income at Rs.900/- was very low; and
  (ii) deduction of one third of the income (towards personal and
  livifl,.g expenses) while assessing the future loss of earning was
D not warranted. The questions that therefore arise for our
  consideration are whether the principles adopted for assessing
  the compensation were erroneous and whether compensation
  awarded requires to be increased.

E General principles relating to compensation in injury
  cases
        4. The provision of the Motor Vehicles Act, 1988 ('Act' for
  short) makes it clear that the award must be just, which means
  that compensation should, to the extent possible, fully and
F adequately restore the claimant to the position prior to the
  accident. The object of awarding damages is to make good
  the loss suffered as a result of wrong done as far as money
  can do so, in a fair, reasonable and equitable manner. The court
  or tribunal shall have to assess the damages objectively and
G exclude from consideration any speculation or fancy, though
  some conjecture with reference to the nature of disability and
  its consequences, is inevitable. A person is not only to be
  compensated for the physical injury, but also for the loss which
  he suffered as a result of such injury. This means that he is to
H be compensated for his inability to lead a full life, his inability
             RAJ KUMAR v. AJAY KUMAR & ANR.                    189
                  [RV. RAVEENDRAN, J.]
to enjoy those normal amenities which he would have enjoyed           A
but for the injuries, and his inability to earn as much as he used
to earn or could have earned. (See C. K. Subramonia Iyer vs.
 T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs.
Pest Control (India) Ltd. - 1995 (1) $CC 551 and Baker vs.
Willoughby - 1970 AC 467).                                            B

     5. The heads under which compensation is awarded in
personal injury cases are the following :

Pecuniary damages (Special Damages)
                                                                      c
      (i)      Expenses relating to treatment, hospitalization,
               medicines, transportation, nourishing food, and
               miscellaneous expenditure.

      (ii)     Lpss of earnings (and other gains) which the injured
               v.lould have made had he not been injured,             D
               cbmprising :

               (a)   Loss of earning during the period of
                     treatment;
                                                                      E
               (b)   Loss of future earnings on account of
                     permanent disability.

      (iii)    Future medical expenses.

Non-pecuniary damages (General Damages)                               F
      (iv)     Damages for pain, suffering and trauma as a
               consequence of the injuries.

      {v)     Loss of amenities (and/or loss of prospects of
              marriage).                                              G

      (vi)    Loss of !=!Xpectation of life (shortening of normal
              longevity).

In routine personal injury cases, compensation will be awarded
                                                                      H
    190   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A only under heads (i), (ii)(a) and (iv). It is only in serious cases
  of injury, where there is specific medical evidence
  corr~borating the evidence of the claimant, that compensation
  will be granted under any of the heads (ii)(b), (iii), (v) and (vi)
  relating to loss of future earnings on account of permanent
B disability, future medical expenses, loss of amenities (and/or
  loss of prospects of marriage) and loss of expectation of life.
  Assessment of pecuniary damages under item (i) and under
  item (ii)( a) do not pose much difficulty ·as they involve
  reimbursement of actuals and are easily ascertainable from
c the evidence. Award under the head of future medical expenses
  - item (iii) - depends upon specific medical evidence
  regarding need for further treatment and cost thereof.
  Assessment of non-pecuniary damages - items (iv), (v) and
  (vi) - involves determination of lump sum amounts with
0 reference to circumstances such as age, nature of injury/
  deprivation/disability suffered by the claimant and the effect
  thereof on the future life of the claimant. Decision of this Court
  and High Courts contain necessary guidelines for awa1rd under
  these heads, if necessary. What usually poses some difficulty
E is the assessment of the loss of future earnings on account of
  permanent disability - item (ii)(a). We are concerned with that
  assessment in this case.

    Assessment of future loss of earnings due to permanent
    disability
F
       6. Disability refers to any restriction or lack of ability to
  perform an activity in the manner considered normal for a
  human-being. Permanent disability refers to the residuary
  incapacity or loss of use of some part of the body, found existing
G at the end of the period of treatment and recuperation, after
  achieving the maximum bodily improvement or recovery which
  is likely to remain for the remainder life of the injured.
  Temporary disability refers to the incapacity or loss of use of
  some part of the body on account of the injury, which will cease
H to exist at the end of the period of treatment and recuperation.
         RAJ KUMAR v. AJAY KUMAR & ANR.                         191
              [R.V. RAVEENDRAN, J.]

Permanent disability can be either partial or total. Partial           A
permanent disability refers to a person's inability to perform all
the duties and bodily functions that he could perform before the
accident, though he is able to perform s,ome of them and is still
able to engage in some gainful activity. Total permanent
disability refers to a person's inability to perform any avocation     B
or employment related activities as a result of the accident. The
permanent disabilities that may arise from motor accidents
injuries, are of a much wider range when compared to the
physical disabilities which are enumerated in the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full       c
Participation) Act, 1995 ('Disabilities Act' for short): But if any
of the disabilities enumerated in section 2(i) of the Disabilities
Act are the result of injuries sustained in a motor accident, they
can be permanent disabilities for the purpose of claiming
compensation.                                            ·             D
     7. The percentage of permanent disability is expressed by
the Doctors with reference to the whole body, or more often than
not, with reference to a particular limb. When a disability
certificate states that the injured has suffered permanent
disability to an extent of 45% of the left lower limb, it is not the   E
same as 45% permanent disability with reference to the whole
body. The extent of disability of a limb (or part of the body)
expressed in terms of a percentage of the total functions of that
limb, obviously cannot be assumed to be the extent of disability
of the whole body. If there is 60% perrnanent disability of the        F
right hand and 80% permanent disability of left leg, it does not
mean that the extent of permanent disability with reference to
the whole body is 140% (that is 80% plus 60%). If different parts
of the body have suffered different.percentages of disabilities,
the sum total thereof expressed in terms of the permanent              G
disability with reference to the whole body, cannot obviously
exceed 100%.

     8. Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under the
                                                                       H
    192   SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A   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
B   economic loss, that is, percentage of loss of earning capacity,
    arising from a permanent disability will be different from the
    percentage of permanent disability. Some Tribunals wrongly
    assume that in all cases, a particular extent (percentage) of
    permanent disability would result in a corresponding loss of
c   earning capacity, and consequently, if the evidence produced
    show 45% as the permanent disability, will hold that there is
    45% loss of future earning capacity. In most of the cases,
    equating the extent (percentage) of loss of earning capacity to
    the extent (percentage) of permanent disability will result in
    award of either too low or too high a compensation. What
0
    requires to be assessed by the Tribunal is the effect of the
    permanently 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 terns of
E   money, to arrive at the future loss of earnings (by applying the
    standard multiplier method used to determine loss of
    dependency). We may however note that in some cases, on
    appreciation of evidence and assessment, the Tribunal may find
    that percentage of loss of earning capacity as a result of the
    permanent disability, is approximately .the same as the
F   percentage of permanent disability in which case, of course,
    the Tribunal will adopt the said percentage for determination
    of compensation (see for example, the decisions of this court
    in Arvind Kumar Mishra v. New India Assurance Co.Ltd. -
    2010(10) SCALE 298 and Yadava Kumar v. D.M., National
G   Insurance Co. Ltd. - 2010 (8) SCALE 567).

      9. Therefore, the Tribunal has to first decide whether there
  is any permanent disability and if so the extent of such
  permanent disability. This means that the tribunal should
H consider and decide with reference to the evidence: (i) whether
         RAJ KUMAR v. AJAY KUMAR & ANR.                          193
              [R.V. RAVEENDRAN, J.]
the disablement is permanent or temporary; (ii) if the                   A
disablement is permanent, whether it is permanent total
disablement or permanent partial disablement, (iii) if the
disablement percentage is expressed with reference to any
specific limb, then the effect of such disablement of the limb
on the functioning of the entire body, that is the permanent             B
disability suffered by the person. If the Tribunal concludes that
there is no permanent disability then there is no question of
proceeding further and determining the loss of future earning
capacity. But if the Tribunal concludes that there is permanent
disability then it will proceed to ascertain its extent. After the       c
Tribunal ascertains the actual extent of permanent disability of
the claimant based on the medical evidence, it has to determine
whether such permanent disability has affected or will affect his
earning capacity.

      10. Ascertainment of the effect of the permanent disability        D
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 ability (this is also relevant for
awarding compensation under the head of loss of amenities                E
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 could still              F
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 could carry on some other or lesser scale of activities and
functions so that he continues to earn or can continue to earn           G
his livelihood. For example, if the left hand of a claimant is
amputated, the permanent physical or functional disablement
may be assessed around 60%. If the claimant was a driver or
a carpenter, the actual loss of earning capacity may virtually be
hundred percent, if he is neither able to drive or do carpentry.         H
    194   SUPREME COURT REPORTS (201 OJ 13 (ADDL.) S.C.R.


A 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
B 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
c a consequence of losing his hand. Sometimes the injured
  claimant may be continued in service, but may not found
  suitable for discharging the duties attached to the post or job
  which he was earlier holding, on account of his disability, and
  may therefore be shifted to some other suitable but lesser post
  with lesser emoluments, in which case there should be a limited
0
  award under the head of loss of future earning capacity, taking
  note of the reduced earning capacity. It may be noted that when
  compensation is awarded by treating the loss of future earning
  capacity as 100% (or even anything more than 50%), the need
  to award compensation separately under the head of loss of
E amenities or loss of expectation of life may disappear and as
  a result, only a token or nominal amount may have to be
  awarded under the head of loss of amenities or loss of
  expectation of life, as otherwise there may be a duplication in
  the award of compensation. Be that as it may.
F
       11. The Tribunal should not be a silent spectator when
  medical evidence is tendered in regard to the injuries and their
  effect, in particular the extent of permanent disability. Sections
  168 and 169 of the Act make it evident that the Tribunal does
G not function as a neutral umpire as in a civil suit, but as an
  active explorer and seeker of truth who is required to 'hold an
  enquiry into the claim' for determining the 'just compensation'.
  The Tribunal should therefore take an active role to ascertain
  the true and correct position so that it can assess the 'just
H compensation'. While dealing with personal injury cases, the
         RAJ KUMAR v. AJAY KUMAR & ANR.                         195
              [R.V. RAVEENDRAN, J.]
Tribunal should preferably equip itself with a Medical Dictionary      A
and a Handbook for evaluation of permanent physical
impairment (for example the Manual for Evaluation of
Permanent Physical Impairment for Orthopedic Surgeons,
prepared by American Academy of Orthopedic Surgeons or
its Indian equivalent or other authorized texts) for understanding     B
the medical evidence and assessing the physical and functional
disability. The Tribunal may also keep in view the first schedule
to the Workmen's Compensation Act, 1923 which gives some
indication about the extent of permanent disability in different
types of injuries, in the case of workmen. If a Doctor giving          c
evidence uses technical medical terms, the Tribunal should
instruct him to state in addition, in simple non-medical terms,
the nature and the effect of the injury. If a doctor gives evidence
about the percentage of permanent disability, the Tribunal has
to seek clarification as to whether such percentage of disability      D
is the functional disability with reference to the whole body or
whether it is only with reference to a limb. If the percentage of
permanent disability is stated with reference to a limb, the
Tribunal will have to seek the doctor's opinion as to whether it
is possible to deduce the corresponding functional permanent
                                                                       E
disability with reference to the whole body and if so the
percentage.

     12. The Tribunal should also act with caution, if it proposed
to accept the expert evidence of doctors who did not treat the
injured but who give 'ready to use' disability certificates, without   F
proper medical assessment. There are several instances of
unscrupulous doctors who without treating the injured, readily
giving liberal disability certificates to help the claimants. But
where the disability certificates are given by duly constituted
Medical Boards, they may be accepted subject to evidence               G
regarding the genuineness of such certificates. The Tribunal
may invariably make it a point to require the evidence of the
Doctor who treated the injured or who assessed the permanent
disability. Mere production of a disability certificate or
Discharge Certificate will not be proof of the extent of disability    H
    196 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A stated therein unless the Doctor who treated the claimant or
  who medically examined and assessed the extent of disability
  of claimant, is tendered for cross-examination with reference
  to the certificate. If the Tribunal is not satisfied with the medical
  evidence produced by the claimant, it can constitute a Medical
B Board (from a panel maintained by it in consultation with
  reputed local Hospitals/Medical Colleges) and refer the
  claimant to such Medical Board for assessment of the disability.

        13. We may now summarise the principles discussed
    above:
c                                                                         ,
          (i) All injuries (or permanent disabilities arisil)f from
    injuries), do not result in loss of earning capacity.   ·· ·

       (ii) The percentage of permanent disability with reference
D to the whole body of a person, cannot be assumed to be the
  percentage of loss of earning capacity. To put it differently, the
  percentage of loss of earning capacity is not the same as the
  percentage of permanent disability (except in a few cases,
  where the Tribunal on the basis of evidence, concludes that
  percentage of loss of earning capacity is the same as
E
  percentage of permanent disability).

         (iii) The doctor who treated an injured-claimant or who
    examined him subsequently to assess the extent of his
    permanent disability can give evidence only in regard the extent
F   of permanent disability. The loss of earning capacity is
    something that will have to be assessed by the Tribunal with
    reference to the evidence in entirety.

       (iv) The same permanent disability may result in different
  percentages of loss of earning capacity in different persons,
G
  depending upon the nature of profession, occupation or job,
  age, education and other factors.

        14. The assessment of loss of future earnings is explained
    below with reference to the following illustrations:
H
          RAJ KUMAR v. AJAY KUMAR & ANR.                     197
               [R.V. RAVEENDRAN, J.]
     Illustration 'A': The injured, a workman, was aged 30 years   A
and earning Rs.3000/- per month at the time of accident. As
per Doctor's evidence, the permanent disability of the limb as
a consequence of the injury was 60% and the consequential
permanent disability to the person was quantified at 30%. The
loss of earning capacity is however assessed by the Tribunal       B
as 15% on the basis of evidence, because the claimant is
continued in employment, but in a lower grade. Calculation of
compensation will be as follows:
    (a)   Annual income before the accident         Rs.36,000/-.
                                                                   c
    (b)   Loss of future earning per
          annum (15% of the prior annual
          income)                                   Rs. 5400/-.

    (c)   Multiplier applicable with reference                     D
          to age                                    17

    (d)   Loss of future earnings :
          (5400 x 17)                               Rs. 91,800/-
     Illustration 'B': The injured was a driver aged 30 years,     E
earning Rs.3000/- per month. His hand is amputated and his
permanent disability is assessed at 60%. He was terminated
from his job as he could no longer drive. His chances of getting
any other employment was bleak and even if he got any job,
the salary was likely to be a pittance. The Tribunal therefore     F
assessed his loss of future earning capacity as 75%.
Calculation of compensation will be as follows:
    (a)   Annual income prior to the accident : Rs.36,000/-.

    (b)   Loss of future earning per annum                         G
          (75% of the prior annual income)       : Rs.27000/-.

   (c)    Multiplier applicable with
          reference to age                       : 17
                                                                   H
    198         SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A         (d)     Loss of future earnings :
                  (27000 x 17)                       : Rs. 4,59,000/-

        Illustration 'C': The injured was 25 years and a final year
  Engineering student. As a result of the accident, he was in
8 coma for two months, his right hand was amputated and vision
  was affected. The permanent disablement was assessed as
  70%. As the injured was incapacitated to pursue his chosen
  career and as he required the assistance of a servant
  throughout his life, the loss of future earning capacity was also
C assessed as 70%. The calculation of compensation will be as
  follows:
          (a)     Minimum annual income he would
                  have got if had been employed
                  as an Engineer                     Rs.60,000/-
D
          (b)     Loss of future earning per annum
                  (70% of the expected annual
                  income)                            Rs.42000/-

          (c)     Multiplier applicable (25 years)   18
E
          (d)     Loss of future earnings :
                  (42000 x 18)                       Rs. 7,56,000/-

          [Note : The figures adopted in illustrations (A) and (B) are
F         hypothetical. The figures in Illustration (C) however are
          based on actuals taken from the decision in Arvind Kumar
          Mishra (supra)].

       15. After the insertion of section 163A in the Act (with effect
G from 14.11.1994), if a claim for compensation is made under
  that section by an injured alleging disability, and if the quantum
  of loss of future earning claimed, falls under the second
  schedule to the Act, the Tribunal may have to apply the following
  principfes laid down in Note (5) of the Second Schedule to the
H Act to determine compensation :
         RAJ KUMAR v. AJAY KUMAR & ANR.                         199
              [R.V. RAVEENDRAN, J.]
     "5. Disability in non-fatal accidents :                           A

     The following compensation shall be payable in case of
     disability to the victim arising out of non-fatal accidents : -

     Loss of income, if any, for actual period of disablement not
     exceeding fifty two weeks.                                        B

     PLUS either of the following :-

     (a) In case of permanent total disablement the amount
     payable shall be arrived at by multiplying the annual Joss        C
     of income by the Multiplier applicable to the age on the
     date of determining the compensation, or

     (b) In case of permanent partial disablement such
     percentage of compensation which would have been
     payable in the case of permanent total disablement as             D
     specified under item (a) above.

     Injuries deemed to result in Permanent Total Disablement/
     Permanent Partial Disablement and percentage of loss of
     earning capacity shall be as per Schedule I under                 E
     Workmen's Compensation Act, 1923."

       16. We may in this context refer to the difficulties faced by
 claimants in securing the presence of busy Surgeons or
 treating Doctors who treated them, for giving evidence. Most
 of them are reluctant to appear before Tribunals for obvious          F
reasons either because their entire day is likely to be wasted
in attending the Tribunal to give evidence in a single case or
because they are not shown any priority in recording evidence
or because the claim petition is filed at a place far away from
the place where the treatment was given. Many a time, the              G
claimants are reluctant to take coercive steps for summoning
the Doctors who treated them, out of respect and gratitude
towards them or for fear that if forced to come against their
wishes, they may give evidence which may not be very
                                                                       H
    200   SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R


A favorable. This forces the injured claimants to approach
  'professional' certificate givers whose evidence most of the time
  is found to be not satisfactory. Tribunals should realize that a
  busy Surgeon may be able to save ten lives or perform twenty
  surgeries in the time he spends to attend the Tribunal to give
B evidence in one accident case. Many busy Surgeons refuse to
  treat medico-legal cases out of apprehension that their practice
  and their current patients will suffer, if they have to spend their
  days in Tribunals giving evidence about past patients. The
  solution does not lie in coercing the Doctors to attend the
c Tribunal to give evidence. The solution lies in recognizing the
  valuable time of Doctors and accommodating them. Firstly,
  efforts should be made to record the evidence of the treating
  Doctors on commission, after ascertaining their convenient
  timings. Secondly, if the Doctors attend the Tribunal for giving
D evidence, their evidence may be recorded without delay,
  ensuring that they are not required to wait. Thirdly, the Doctors
  may be given specific time for attending the Tribunal for giving
  evidence instead of requiring them to come at 10.30 A.M. or
  11.00 A.M. and wait in the Court Hall. Fourthly, in cases where
E the certificates are not contested by the respondents, they may
  be marked by consent, thereby dispensing with the oral
  evidence. These small measures as also any other suitable
  steps taken to ensure the availability of expert evidence, will
  ensure assessment of just compensation and will go a long
  way in demonstrating that Courts/Tribunals show concern for
F litigants and witnesses.

    Assessment of compensation
       17. In this case, the Tribunal acted on the disability
  certificate, but the High Court had reservations about its
G acceptability as it found that the injured had been treated in the
  Goverriment Hospital in Delhi whereas the disability certificate
  was issued by a District Hospital in the State of Uttar Pradesh.
  The reason given by the High Court for rejection may not be
  sound for two reasons. Firstly though the accident occurred in
H
         RAJ KUMAR v. AJAY KUMAR & ANR.                       201
              [R.V. RAVEENDRAN, J.]
Delhi and the injured claimant was treated in a Delhi Hospital        A
after the accident, as he hailed from Chirori Mandi in the
neighbouring District -Of Ghaziabad in Uttar Pradesh, situated
on the outskirts-of Delhi, he might have continued the treatment
in the place where he resided. Secondly the certificate has
been issued by the Chief Medical Officer, Ghaziabad, on the           B
assessment made by the Medical Board which also consisted
of an Orthopaedic Surgeon. We are therefore of the view that
the High Court ought not to have rejected the said disability
certificate.

    · 18. The Tribunal has proceeded on the basis that the            C
permanent disability of the injured-claimant was 45% and the
loss of his future earning capacity was also 45%. The Tribunal
overlooked the fact that the disability certificate referred to 45%
disability with reference to left lower limb and not in regard to
the entire body. The said extent of permanent disability of the       D
limb could not be considered to be the functional disability of
the body nor could it be assumed to result in a corresponding
extent of loss of earning capacity, as the disability would not
have prevented him from carrying on his avocation as a cheese
vendor, though it might impede in his smooth functioning.             E
Normally, the absence of clear and sufficient evidence would
have necessitated remand of the case for further evidence on
this aspect. However, instead of remanding the matter for a
finding on this issue, at this distance of time after nearly two
decades, on the facts and circumstances, to do complete               F
justice, we propose to assess the permanent functional
disability of the body as 25% and the loss of future earning
capacity as 20%.

      19. The evidence showed that at the time of the accident,       G
the appellant was aged around 25 years and was eking his
livelihood as a cheese vendor. He claimed that he was earning
a sum of Rs.3000/- per month. The Tribunal held that as there
was no acceptable evidence of income of the appellant, it
should be assessed at Rs.900/- per month as the minimum
                                                                      H
    202    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   wage was Rs.891 per month. It would be very difficult to expect
    a roadside vendor to have accounts or other documents
    regarding income. As the accident occurred in the year 1991,
    the Tribunal ought to have assumed the income as at least
    Rs.1500/- per month (at the rate of Rs.50/- per day) or
s   Rs.18,000/- per annum, even in the absence of specific
    documentary evidence regarding income.

       20. In the case of an injured claimant with a disability, what
  is calculated is the future loss of earning of the claimant,
C payable to claimant, (as contrasted from loss of dependency
  calculated in a fatal accident, where the dependent family
  members of the deceased are the claimants). Therefore there
  is no need to deduct one-third or any other percentage from
  out of the income, towards the personal and living expenses.

D      21. As the income of the appellant is assessed at
  Rs.18000/- per annum, the loss of earning due to functional
  disability would be 20% of Rs.18000/- which is Rs.3600/- per
  annum. As the age of appellant at the time of accident was 25,
  the multiplier applicable would be 18. Therefore, the loss of
                                          =
E future earnings would be 3600 x 18 Rs.64,800/- (as against
  Rs.55,080/- determined by the Tribunal). We are also of the
  view that the loss of earning during the period of treatment
  (1.10.1991 to 16.6.1992) should be Rs.12750/- at the rate of
  Rs.1500/- for eight and half months instead of Rs.3600/-
F determined by the Tribunal. The increase under the two heads
  is rounded of to Rs.20,000/-.

        22. In view of the above, we allow this appeal in part and
  increase the compensation by Rs.20,000/- which shall carry
  interest at the rate awarded by the Tribunal, from the date of
G petition to the date of payment.

    R.P.                                      Appeal partly allowed.