K.KANNAN, J. - (1.) THE appeal is for enhancement of compensation for the injuries suffered in a motor accident that took place on 1.4.2009. He was 25 years of age and was said to be engaged in a private business of mobile repairs in a shop that he was running called as Mahesh Trader. No document relating to the actual income was produced but he contended that he was earning Rs.30,000/ - per month. The medical bills brought on record shows that he had incurred an expenditure of Rs.3,90,000/ - and he also sought to prove that he went abroad to U.K. for treatment that cost him in Indian currency at Rs.7 lakhs and odd. The Tribunal provided for transportation that included travel expenses outside India and assessed compensation at Rs.8,26,606/ -.
(2.) WHEN there had been no compulsion to go out of India for an artificial limb, the entitlement could be only for what it should have been cost him in India. The principle of law is that a person who claims damages is bound to take steps to mitigate the same. A mitigation of damage must be in context of what he would have spent if he had taken treatment in a good hospital in India. India itself is emerging as a leading health destination for even several of the opulent middle east countries and it cannot be stated that India lacks medical expertise to provide for proper treatment. Indeed, a manner of providing artificial limb to all sections of people and quality medicare through Jaipur foot is a global phenomen of reckoning. I, therefore, discard any claim for compensation for the expenses incurred for treatment outside India. To the fairness of the counsel, who is appearing on behalf of the appellant, it must be stated that he would state that he would be satisfied if the medical expenses incurred in India are fully met. The assessment of compensation for the injuries that resulted in amputation must be examined in context of how the injuries impact the earning skills. A mere continuation in the job is not sufficient to disallow a claim for loss of earning capacity. Amputation is a serious privation that causes a serious dent in esteem social standing and skills of earning. The issue of whether continuation in job for a person who has suffered scheduled injuries under the Workman Compensation Act has come up for consideration and the entire law has been set forth, by referring decisions of Indian and foreign regimes, in New India Assurance Co. Ltd. Versus Smt. Santosh in FAO No. 3432 of 2009 decided on 29.9.2010. The proper yardstick is how the schedule injuries impact his earning capacity in an open market if he were to seek for employment afresh. The House of Lord's decision setting up a test of employability afresh in the market was approved by the Indian courts as well and a whole judicial discourse has been undertaken in the judgment of Santosh (supra). I do not re -produce the same but this is broughtforth about to quell the argument brought by the counsel for the respondent that a mobile repairer who sits in a shop and he does not require to be ambulating and hence leg or no leg, he will still earn. The argument is rejected as opposed to law brought through the decisions and I will take average income as Rs.5,000/ - and apply the same for 75% loss earning capacity and apply multiplier of 18 to take loss earning capacity at Rs.8,10,000/ -. I will also make provisions for loss of amenities. This is a distinct head of claim that will have to be provided as held in the decision of B. Kothandapani Versus Tamil Nadu State Transport Corporation Limited 2011 (6) SCC 420. I will provide for Rs. 2 lakhs as loss of amenities for a young man and make a further provisions for pain and suffering which again must be provided as a distinct head as laid down by the decision of the Supreme Court in Kavita Versus Deepak and others 2012 (8) SCC 604. In Govind Yadav Versus The New India Insurance Company Limited 2011 (5) 594, the Supreme Court has provided for a person of 24 years who suffered amputation of leg and to whom the court provided for a loss of marriage prospects at Rs.2 lakhs compensation. Non -pecuniary damages are bound to be subjective and it is difficult to infer any point of law as established by such amount. However, I take that as relevant in this case for loss of leg actually reduces a person's esteem and standing even in a marriage market. The future medical expenses for periodical replacement are also sought but unfortunately there is no proper evidence as regards the same. The counsel for the appellant would plead that it is a matter of common knowledge that the injuries as suffered by the appellant would require future replacement and as such some provision for future medical expenses ought to be made. I make an approximation at Rs.2.5 lakhs for rest of his life. The compensation under all the relevant head are tabulated as under: - JUDGEMENT_340_TLP&H0_2014.jpg JUDGEMENT_340_TLP&H0_20141.jpg
(3.) THE total compensation payable shall be Rs.19,90,000/ - and the amount in excess over what was awarded will also attract interest @7.5% from the date of the petition till the date of payment. The liability shall be on the Union.;