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Judgment
Anand Byrareddy, J.—This appeal was heard along with several other appeals on a common issue namely, the quantum of compensation towards the loss of future earning or loss of future earning capacity, on account of the permanent disability occasioned as a result of personal injuries suffered by a victim in a motor accident.
As the computation of compensation under this particular head of claim continues to be strongly disputed in most cases it was fell necessary to seek the assistance of several counsel at the Bar. This Court had the valuable assistance of the following Shri S.P. Shankar, Senior Advocate appearing for Shri Shripad V. Shastri for the appellant, herein, Shri R. Rajagopalan, Shri A.N. Krishna Swamy, Shri O. Mahesh, Shri R. Ravishankar, Shri K.K. Vasanth, Smt. Harini Shivanand, Shri R.S.Umesh, Shri K. Suryanarayana Rao, Shri A.Ravishankar, Shri A.M. Venkalesh, Shri R. Jayaprakash, Shri Arun Ponnappa and Shri Shrishaila, representing either the appellant or the respondents in the several appeals where the issue has arisen for consideration. However, in order to avoid prolixity, separate judgments are rendered in each of their cases.
The brief facts in the above appeal are as follows:
The appellant was the claimant before the Motor Accidents Claims Tribunal. He was working as a driver and was aged about 45, at the time of accident and claimed to be earning about Rs. 10,000/- per month. On 6.11.2000, while he was riding a two wheeler, it was hit by a car as a result of which, the appellant had sustained a fracture of the right humerus and the right ulna, apart from other injuries. He was admitted to a Hospital and even after treatment, the Medical Practitioner had assessed that there was a permanent impairment to the right upper limb of the appellant, at 60% which according to the medical practitioner''s opinion translated to a permanent impairment to the whole-body at 20%. It was on this basis that the appellant had filed the claim petition briber the Tribunal. The Tribunal has awarded compensation under the following heads:
a) Rs. 25,000/- towards pain and suffering
b) Rs. 27,000/- towards medical expenses
c) Rs. 2,800/- towards other expenses
d) Rs. 55,640/- towards loss of earning during (he period of treatment
e) Rs. 20,000/- towards his disability.
It is further held that the claimant is not entitled for any compensation towards any future loss of income.
The appellant, however, is before the Court seeking enhancement of compensation. The several grounds urged to seek enhancement of compensation under the conventional heads of claim include the ground that even though the appellant continues to work as a driver even after the accident, the appellant would still be entitled to compensation towards future loss of earning capacity.
As this is a common question that arises lime and again as in the present appeal and others that were heard, the case-law and the principles evolved are reviewed.
In CJ. Paul v. Syed Peer AIR 1982 Kar. 281, a Division Bench of this Court, while dealing with a claim for compensation of a victim of a motor accident, who had sustained a compound fracture of the right patella and a compound fracture of the right femur, whereby his right leg had become shortened by 3 inches and he had a stiffened knee joint, even alter treatment, and in addressing the claim for loss of earning has held as follows:
We would take up for consideration the loss of earning. The petitioner as well as the doctor have deposed that he is not likely to go back and serve in the job. He was getting Rs. 687.20 Rs. as salary at the time of accident. He was also getting bonus of 20per cent annually and he was likely to be promoted as ''A'' grade attendee. Having regard to all these, for the purpose of loss of salary, we take the multiplicand at Rs. 700/- and having regard to the rate of interest prevailing in the society, we take the multiplier at 10 Rs. 700 x 12 will be Rs. 8,400 x 10 would be Rs. 84.000/-. That would be the loss of earning of Syed Peer.
It is no doubt true that the principle is that both the interest and part of the capital must be utilized and the entire amount awarded should be exhausted at the end of the tether. (Vide Halsbury�s Laws of England, Fourth Edition Vol. 12 para 1156). K.S.R.T.C. v. H. Sarojama 1981 (1) KLCP 69). Besides there is a duty east on the victim to mitigate the damages by doing some work which he can do. In that view Rs. 84,000/-, is on the higher side. Because throughout his life he would get by way of interest. Rs. 700/- per month and towards the end Rs. 84,000/- would be still in the bank. What we are awarding is on the higher side but, we award the same for the simple reason that even after retirement he had chances of earning and he had chances of saving and we have added only Rs. 10/- per month towards prospects of promotion. Heme, we do not propose to reduce Rupees 84.000/- arrived at by using the multiplier at 10. To this lias to be added general damages which is mainly for pain and suffering for loss of amenities and for the injuries suffered. Tiles Cart has been awarding between Rs. 20,000/- to Rs. 30,000/- in the case of injuries like the present ones which resulted in stiffness of the knee and restriction of the movement of the hip joint reducing the earning capacity where no separate awards are made for loss of earning. On the facts of this case a separate award is made for loss of earning at Rs. 84,000/-. Therefore, we deem it just arid proper to award Rs. 20.000/- as general damages mainly for pain and suffering and loss of amenities as also the disability left over. To this has to be added Rs. 15,824/- special damages awarded by the Tribunal towards medical expenses etc. Timelier there fore, the claimant is entitled to global compensation of Rs. 1,19,824/- instead of Rs. 5,05,824/-. No separate damages are call for for the temporary loss of sexual pleasure in view of the total compensation granted. (Vide Fletcher v. Autocar and Transporter Ltd. 1969Acc CJ99)(AC)
In Subashchand Jain Vs. Ganapathi and Another, , a Division Bench of this Court in an appeal by the injured claimant in a motor accident, who had suffered serious injuries, namely a fracture of the right femur, a fracture of the right zygomatic complex, a fracture of the nasal bridge, a fracture of noses eluamoidal a fracture of (he mandible and other injuries, was denied a claim towards loss of future income in the claimant''s business and it was held that the income from business should have been proved in the first instance and further, to what extent it stands reduced on account of the injury and in the absence of any evidence in this regard, the court has held that the principles for determining loss of future earning in respect of a person who earns income by physical labour and whose bodily injury directly affects the work and earning capacity of such person cannot be pressed into service. Further, that the loss attributable due to the physical disability resulting in loss of earning is different from the loss which can be attributed to earning capacity from a business It was observed that any physical disability need not necessarily result in loss of earning from business and there was no occasion to apply the same principles.
In Bhaskar Rao and Others Vs. Arunkumar, , the claimant was a sales officer. Since he continued in the same job, even after the injuries suffered in an accident, a Division Bench of this Court had set aside the award of compensation towards future loss of income in the following words:
....the very fact that the respondent is continuing in the same job and the very fact that he is drawing the same salary, on par with other sales officers of Zandu Pharmaceuticals, question of awarding future loss of income calculating on the basis of percentage of disability and applying the multiplier based on the age of the claimant is unknown to law. Therefore, we are of the opinion that the compensation awarded by the tribunal has to be reassessed based on the evidence adduced by the parties.
In Ramesh Lal alias Ramesh Vs. National Insurance Company Limited and Another,
In respect of a claimant who had suffered 100% permanent disability, a Division Bench of this Court has awarded Rs. 2,70,000/- towards the claim of loss of future income on (he basis that the age of the claimant was ''37'' at the dale of the accident and his monthly income having been taken at Rs. 1,500/-and applying a multiplier of 15.
In K. Narasimha Murthy v. Oriental Insurance Co. Limited Bangalore and Anr. ILR 2004 KAR. 2477 - A division bench of this Court has held that while estimating future loss of income, the court can take into account the future prospects of the injured or the deceased of earning more income by way of promotions or otherwise and has taken into account the age of the injured claimant and his monthly income in making an assessment of (he future loss of income and has awarded a sum of Rs. 10,80,000/- under that head of claim.
In State of Haryana and Another Vs. Jasbir Kaur and Others, , the Supreme Court has observed as follows:
It has to be kept in view that the Tribunal constituted wider the Act as provided in Section 168 is required to make an award determining (lie amount of compensation which is to be in the real sense "damages " which in turn appears to it to he ''just and reasonable''. It has to be borne in mind that compensation for loss of limbs or life can hardly be wiggled in golden scales, But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot lye a bonanza; nor a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. W) at would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the back ground of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, farms and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, .
In New India Assurance Co. v. Papamma ILR 2006 KAR. 3316, a Division Bench of has Court has observed as follows:
All that emerges from the above observations is that there cannot be any rigid rule of application in the matter of determining the future loss of earning capacity. For clarity, it would be proper to give two illustrations. One would be, take a case of a professional Singer. If he were to suffer damages to his Vocal Chord resulting in loss of speech, there is a direct loss of earning capacity in totality. But, in terms of medical science, his physical disability in relation to whole body would be only 10 to 15%. Similar will be the case of a Vascular Surgeon who lost thumb of the right palm. In medical parlance, the physical incapacity would be valued only between 5 to 10% of the wile body. But, when it comes to his earning capacity, he looses the entire practice as a Vascular Surgeon and there is, therefore, loss of total fixture earning capacity as Vascular Surgeon. In such case, it cannot be said that even if the cannot work as such, can earn by any other avocation. The answer is, we have to consider the source and the income which the victim had at the time of accident keeping in mind the contingencies as referred to in the quotations extracted above and his capacity to do any other work.
We may also mention that the decision the Learned Counsel relied upon was rendered by this Court while dealing with the issue pertaining to Workmen''s Compensation and not under the motor vehicles claim lows. Tile issue that came up for consideration before the Court was what would be the established mode of determination of compensation under the Workmen''s Compensation Act to a person who still can continue to carry on his manual job. But, in the accident claims, as in this case, determination has to be done as provided under the provisions of Section 166 of M.V. Act arid such determination must be just compensation as required u/s 168 of the Act. For determination of what would be the just compensation there is not fanciful mathematical calculations but it should reasonable, fair and justified considering the circumstances established by acceptable evidence. Tile circumstances are, tile nature of injury, the resultant physical incapacity and the impact which is has on the victims earning capacity. Therefore, though it is a general principle that physical disability will have bearing on earning capacity, this cannot be a hard and fast rule. Faming capacity has to be adjudged considering the evidence about loss of the real earning capacity, which again be dependant upon the nature of job or avocation,
While the above are a sample of eases either granting or refusing to grant compensation under the head of future loss of earning or earning capacity - the following are observations found in a few commentaries which may be usefully referred to, for purposes of appreciating the process involved in making an assessment of the compensation, if payable, and the other factors that ought to weigh in arriving at a decision.
As estimate of prospective loss must be based, in the first instance, on a foundation of solid facts of there wise it is not an estimate, but a guess. It is therefore important that evidence should be given to the Court of as many solid facts as possible. When it is shown that the plaintiff was earning money at a specified rate at the time of the injury, the ordinary presumption of law is that lie would have continued to earn at the same rate. If the plaintiff claims that he would have earned more, he must prove relevant facts, for example by slowing that lie was on a regular ladder of promotion, or in a trade where individual rates of pay are increased by stages, or that he had special merits or qualifications or opportunities which would have lead to an improvement. Evidence may be given of a probable increase of productivity in his particular industry or trade, and therefore of real earnings, but evidence of a probable increase in national productivity - and therefore of ''real'' earnings all round ~ is too speculative to carry any weight: Mitchell v. Mulholland (No 2) [1972] 1 QB 65 : [1971] 2 All ER 1205. Conversely the defendant may call evidence that the plaintiff was in poor health, or in an occupation where employment is casual or irregular, or tempt for some other reason his future earnings were precarious. Loss of earnings is the rimiest common firm of prospective loss, but relevant facts should also be proved in other cases of continuing loss, such as the expense of nursing and household assistance where the plaintiff is a permanent invalid.
The ordinary chances and uncertainties of life should also be taken into account, but this includes good luck as well as bad luck, improvement in earnings or better opportunities, and there is certainly no rule of law that on balance a deduction should be made. Damages for Personal Injuries and Death John Munkman (Tenth Edition) Pages 46- 47)
There are many permutations. There may be a total loss of earnings for life; or a permanent partial loss of earnings, either at a fixed rate or a rate slowly tapering off as the plaintiff becomes readjusted; or a loss, total or partial or tapering, for a limited period. If there is a tapering loss, it is convenient to estimate an average over the period. Since the earlier loss has a greater present value than the later, the average of a varying loss shouted be weighted somewhat towards the earlier figures (Page 62 supra).
There are many cases where, after recovering from the immediate effects of an injury, the plaintiff returns to his former work at the same rate, or takes up other work with similar or better pay, so that there is no visible continuing loss. Nevertheless, there are innumerable ways in which he may be worse off in future - whether he loses his present employment, which is the possibility usually envisaged, or not. He may be handicapped in getting new work at all: even his may tell against him, for instance if Pie has visible eye or had injuries though fie has adapted with complete success. He may be a skilled man in a supervisory position, but handicapped for skilful fondling or privy work if reduced by redundancy to a lower position. He may have lad plans to change to another career, for instance to take an apprenticeship or join the Navy, which is no longer open to him. Where pay depends on piecework or overtime, he may not be able to do so much. He may have to take time off for a painful back or a future operation.
These cases are sometimes described as ''loss of earning capacity'', but this is inaccurate as all claims for future earnings are based on loss of capacity. What distinguishes these from other cases is that there is no immediate toss and future loss is uncertain. This does not prevent an award of damages. The Court has to assess and value the chance that there will be actual toss sooner or later....
What has to he quantified is the present value of the risk of future financial loss. If there is no significant risk of actual toss of earning sooner or later there should he no award. If there is a significant risk, its value depends on how great the risk is and how far in the future. Where the risk lies in finding a new Job if the present one is lost - the most common case - the plaintiff''s skills and adaptability (or lack of them) should be taken into account,, and the opportunities likely to be open in his area. The Court has to apply its judgment to the relevant facts and assess a round figure." (Pages 70-71 supra)
X X X 22-29 (d) Loss of earning capacity or "handicap in the labour market": In cases of continuing disability the claimant may be able to remain in his employment hut with the risk that, if he loses that employment at mm time in the future, he may then, as a result of his injury, he at a disadvantage in getting another job or an equally well-paid job. This "toss of earning capacity" has always been a compensable head of damage but has cone into more prominence in recent years, probably as a result of the growth of the practice of "itemising " awards. Assessment of damages under this head may be highly speculative and clearly no mathematical approach is possible but the court should be satisfied that there is a "substantial" or "real" risk that the claimant will be subject to the disadvantage before the end of his working life. If so satisfied, the judge must then do his best to value the "chance, taking into account all the facts of the case.
Winfusld & Jotowkz - Tort - Seventeenth Edition
Para 22-29 Page 975. x x x 890. Loss of earning capacity. Where the injured plaintiff has not at the date of trial sustained a loss of or reduction in his earnings, he may still claim an award of damages if his injuries make it more likely that he will lose his job and that any job he may subsequently find will be less well mud. Such an award is to compensate him for the weakening of his competitive position in the open labour market, These awards are not generally calculated according to the usual multiplier and multiplicand formula, although it may appear appropriate, in the circumstances of a given case, to use it. Instead, the Court will look at the weakness ''in the round'', take note of the various contingencies and do its best to reach an assessment which will do justice to the plaintiff. The courts will taken into account:
(1) whether there is a real risk that the plaintiff mil he forced onto the labour market before retirement age;
(2) the extent of his injury or disability;
(3) how long it would take him to find alternative employment if forced onto the labour market;
(4) the reduction in salary which he would suffer thereby.
There is no limit on the amount that may be awarded on this basis. In some instances, loss of future earnings may overlap with an award for loss of earning capacity, but it is generally desirable to assess reduction in earning capacity separately from loss of earnings.
While it is generally advisable specifically to plead such damages, it will not he fatal to the plaintiffs claim if they are not so pleaded, provided it is apparent from the claim that the plaintiff has sustained a handicap in the labour market which should be compensated.
(3) A ''broad brush'' approach may be adopted in estimating the loss offitture earnings and the plaintiffs vulnerability in the labour market: Goldborough v. Thompson and Crowther [1996] PIQR Q86, CA. See also Page v. Enfield and Haringey Area Health Authority (1986) Times 7 November, CA; Davies v. Mersey Regional Ambulance Service NHS Trust (11 March 1998, unreported), CA.
Halsbury''s Laws of England Fourth Edition Vol. 12(1) Para 890 & Note 3 Pages 353 and 354
The next aspect that requires to be addressed is the actual physical impairment resulting from the injuries suffered in the accident. The assessment of disability made by medical practitioners is invariably attacked, rather virulently, especially by counsel for the insurance Companies who are mulcted with the liability to pay compensation and on occasion justifiably so There is a need for authentic, accurate and consistent assessment as to the physical impairment.
The Ministry of Social Justice and Empowerment, Government of India, has issued a Notification dated 1.6.2001 providing guidelines for evaluation of various disabilities and procedure for certification. This was in modification of the guidelines issued earlier in the year 1986 and in view of the provisions of Persons with Disabilities (Equal opportunities, Protection of Rights and full Participation) Act, 1995, the Government of India had set up four Committees, in terms of its order dated 28.8.1998, under the chairmanship of the Director General of Health Services, one each in die area of Mental Retardation, Locomotor and Orthopaedic Disability, Visual Disability and Speech and Hearing disability. Further, in the year 1999, a fifth Committee was constituted for evaluation of assessment of Multiple Disabilities. The Government has under the said notification approved the recommendations of the Committees and has issued guidelines The of lice of the State Commissioner for Persons with Disabilities, Bangalore has published the same as a booklet. The guidelines provide for evaluation of disability and the procedure for certification.
The disabilities are classified as follows:
a) Visual impairment
b) Locomotor/Orthopaedic disability
c) Speech and hearing disability
d) Mental Retardation
e) Multiple Disabilities
The above are defined and categorised according to the degree or percentage of disability. Minute details as to the manner in which the particular disabilities are to be assessed are provided. These include ready-reckoner tables and formulae for computing the percentage of disability. The authority lo issue a Disability Certificate is a Medical Board duly constituted by the Central and State Governments. Every such Board must consist of alleast three members, of which, alleast one member is a Specialist from either the field of Physical Medicine and Rehabilitation or Orthopaedics.
There is no reason why a Disability Certificate issued in accordance with the above guidelines by a Medical Board duly constituted, as above, ought not lo be accepted for purposes of determining compensation payable under the Motor Vehicles Act. This would ensure a reasonably safe, accurate and consistent assessment of disability that can be acted upon by all concerned. A minimum disability of 40% is to be prevalent in a person, to claim benefits under the Disabilities Act, 1995, This, of course, would not be relevant for purposes of claims under the Motor Vehicles Act.
It is however lo be kept in view that the Medical Board or the Medical Practitioners address the impairment in relation to the human body and not in relation to a person with a particular avocation. The guidelines prescribed do not envisage a procedure to assess the disability suffered by an individual with reference to his particular avocation, geographical location, educational background, family conditions and such other factors. The evidence of a Medical Practitioners as regards the physical impairment is thus limited in scope, its consequence on the avocation or activity of a claimant are matters which are to be established at the trial and it is for the Court or Tribunal to assess the loss of earning capacity with reference to the same.
It is important to keep in view that the assessment of disability, as per the guidelines, is to be made when the clinical condition has reached the maximum improvement, after medical treatment. Cases where medical treatment would continue in future are, of course, exceptions. This observation is made as on occasion, it is found that the assessment made by a Medical Practitioner is negated on the ground that such an assessment has been made long after the date of accident. On the other hand, if physical impairment has persisted even long alert the dale of accident, it is better evidence to support the case that there is in fact a physical impairment which is to be compensated for causing loss of earning.
The following conclusions would follow:
Loss of earning or loss of earning capacity is a well established head of claim. It cannot be restricted only to persons engaged in physical labour.
In estimating the financial or pecuniary loss there must be evidence of the nature and extent of the loss on which the Court can form an opinion.
On proof of the amount of earnings lost and expenses incurred upto the dale of trial, the claimant is entitled to a full indemnity which are awarded as special damages.
In a claim of loss of earnings, the following steps are involved in deciding the same:
(a) It is lo be firstly decided as lo what the claimant would have been earning if the accident had not occurred, while allowing for future increase or decrease in the rate of earnings.
(b) Then it is necessary to decide how long the loss is likely to continue, whether there is an incapacity for life or for a shorter period.
(c) Finally an estimate must be made of the amount (if any) which the claimant can still earn in future notwithstanding his disability.
The assessment of a claim for future financial loss either, future loss of earning or expenses lo be incurred in the future, pose several difficulties. For the prospective loss cannot be claimed as precisely calculated special damages, as it has not been sustained at the dale of trial. It is therefore awarded as part of General damages.
(a) future loss cannot usually be proved only a broad estimate can be made by the Court, on the proved facts and probabilities of each particular case.
(b) It would be a matter of evidence in each case, whether there is a total loss of earning or a permanent partial loss of earning or whether the loss is at a rate slowly tapering-off, as the claimant may become readjusted; or it could even be a loss total, partial or tapering, for a limited period. It would in the discretion of the court to arrive at an average of the varying loss.
(c) Only because, a claimant returns to his former work at the same rate or takes up other work with a similar or bolter pay indicating that there is no visible continuing loss, the Court ought not to lose sight of the innumerable ways that a claimant may be worse-off in future. Whether the loss of the present employment which is a possibility usually envisaged or that he may be handicapped in getting a new job, even his appearance may tell against him, as for instance, if he has a visible eye or hand injury, though he would have adapted with complete success. In other words, in cases where there is no immediate loss and future loss, if uncertain, it ought not to prevent an award of damages. The Court ought to assess and value the chance that there will be actual loss sooner or later.
(d) The award of compensation ought not to be excessively generous, under the head of loss of future earnings, as would far exceed the claimant''s earnings if he had not sustained the impairment.
Coming to the facts of the present appeal, the Counsel for the respondent - Insurer would strongly resist the claim and would assert that a sum of Rs. 20,000/- has been awarded by the tribunal towards the claim lor compensation on account of disability. This is in the face of a finding by the tribunal itself that the claimant was re-employed as a driver and continued to work as a driver at the time of the trial. Hence, the award under that head itself was not justified.
The question of addressing a claim for additional compensation on the specious plea of loss of earning capacity cannot be sustained. The principles laid down in decided cases or as expounded by learned authors by itself would not suffice to sustain such a claim. There is authority to hold that unless an actual loss or a probable loss can be discerned from proved facts and probabilities, the question of granting any compensation towards the speculative claim for loss of earning capacity would cause hardship to the respondents. He would draw reference to a judgment of the Supreme Court in Jasbir Kaur''s case supra, that compensation is not expected to be a wind-fall for the victim. The compensation awarded is more than just and fair and therefore, the appeal be rejected.
Keeping in view the several authorities and the principles enunciated, the claim towards medical expenses was held to be established to (he extent of Rs. 26,026/- and the tribunal has awarded a sum of Rs. 27,000/- though the claim was for Rs.75000/- under that head. It is lo be noticed that the tribunal has also found that the appellant had undergone treatment for over a hundred days, which would indicate that the appellant has incurred much expenses, all of which may not be evidenced by bills and prescriptions which have been produced. The claim, therefore, even if said lo be exaggerated, ought to have been awarded in a slightly higher amount. The appellant is, therefore, held entitled to an additional compensation of Rs. 8,000/- towards medical expenses.
The Tribunal has awarded Rs. 1,800/- awards hospital expenses as an in-patient and Rs. 1000/- towards transportation and other expenses. The accident was of (he year 2000 and this paltry amount of compensation cannot be justified as being sufficient lo meet the possible expenditure. The same requires lo be enhanced at least by a further sum of Rs. 7,000/-.
The appellant''s disability has been assessed by the medical practitioner at 60% to the upper limb and at 20% in relation lo the whole body. The award of Rs. 20,000/- towards disability is only a partial compensation. The consequence of the disability is twofold. There is certainly loss of amenities which the appellant would have enjoyed if he had not suffered injury to his limb. This requires to be separately compensated. And further, the second consequence is that it would result in a disability in his avocation. Therefore, insofar as loss of amenities are concerned, the appellant was aged about 45 years at the lime of accident and hence, the appellant is held entitled to an additional sum of Rs. 20,000/- towards loss of amenities.
Though it is found as a {act that the appellant is reemployed as a driver, this does not presuppose that he was continuing to drive with the same ease and efficiency that he was capable of before the accident. The appellant has tendered evidence as regards the circumstance that he is no longer able to drive properly and that he is not in a position to drive heavy vehicles, which he was capable of driving earlier and the disability being a permanent disability, he would be burdened with the same through out his the. He is disqualified from being engaged by an employer who may readily note his less efficient driving. It cannot, there are, be said that there is no loss of earning capacity. It is this looming misfortune of loss of employment on account of the permanent disability which has made him less efficient, certainly requires to be compensated in the presence of positive evidence. Therefore, in my opinion, the appellant has made out a case for compensation towards loss of earning capacity on the basis adopted by this court. Though the basis that has been consistently adopted in calculating the compensation by applying the multiplier method may not be relevant here as there is no be of a total loss of earning or a reduction in the earning, it is the chance of that reduction or loss which is compensated and therefore, the appellant is entitled to a nominal compensation of Rs. 30,000/- towards loss of earning capacity.
The appeal is partly allowed The appellant is held entitled to a total additional compensation of Rs. 65,000/- with interest at 6% per annum from the dale of claim till the date of payment.