VIRENDRA SINGH Vs. HARYANA STATE

JUDGEMENT

(1.) The appeal is against the assessment of compensation for amputation suffered by the claimant when the Tribunal had assessed Rs. 67,000/- as payable. He was a passenger in a bus and by a collision with a truck, his hand that was jutting out, was crushed and later amputated surgically. The Tribunal found that the claimant had been guilty of contributory negligence and caused an abatement of a claim to the extent of 1/3rd.

(2.) The learned Counsel states that the assessment of contributory negligence was erroneous and the bus driver ought to have been careful to leave sufficient distance between his vehicle and the oncoming vehicle in order that even an unwary passenger, who may keep his hands out, may not come by any harm. This Court has also held earlier that a Court shall not infer contributory negligence in such like situations and there must be specific evidence from a driver or a conductor to say that in spite of specific instructions of safety and caution, the passengers had still kept his hand out and suffered such injuries. In this case, I do not have any such evidence. I would hold that there ought not to have been any finding of contributory negligence and the abatement of claim made was not justified.

(3.) A privation of arm causes enormous inconvenience. He was a draftsman in a government service and the use of a hand for such a person can hardly be underestimated. Retention in service by such a person is not a consolation and this Court itself has had occasion to deal with the issue in the decision in FAO No. 3432 of 2009, decided on 29.09.2010 titled 'New India Assurance Company Limited v. Smt. Santosh and Ors., 2010 160 PunLR 780 that held that loss of earning capacity must be tested in the light of how the prospect of earning could be reduced for a person if he were to seek for fresh employment in open market. I would take 75% disability as resulting in 75% loss of earning capacity as well. He was earning Rs. 1,480/- and I will provide also for a prospect of 50% increase and adopt a multiplier suitable to his age as 17. Various heads of claim including pain and suffering and loss of amenities of life besides the other relevant heads are tabulated as below: <FRM>JUDGEMENT_2031_ACJ_2012_1.html</FRM>