New India Assurance Co. Ltd. v. Santosh

K. Kannan, J.:—

I. The issue for consideration:

1. This batch of cases involves the issue of whether the representatives of the deceased, who have come by a financial benefit through ex gratia payments by the government arising out of the death of the persons in the motor accident, would stand to forfeit the benefit of compensation and if not, would that be relevant to slice down the compensation? The contrary position is what is contended on behalf of the claimants that ex gratia payments are wholly irrelevant as the Tribunal has found and that they are entitled to a full compensation on the basis of the extent of dependence of the family as though no benefit has accrued and by the application of suitable multiplier commensurate with the age of the respective deceased at the time of the accident.

II. Occurrence of motor accident leading to deaths and injuries:

2. In this batch of cases, F.A.O Nos. 3432, 3433, 3434 and 3487 relate to cases of death of persons, all of whom were gov ernment servants in the State of Haryana. The accident is said to have taken place on 24.7.2005, when Financial Commissioner and Secretary to Government of Haryana, Agriculture Development and Director of Agriculture Department had called a meet ing with high level officials of the various government departments at Panchkula. Of ficials at various levels attended the meet ing and while they were returning in the government vehicle, there was a collision with a truck belonging to private individual and insured with New India Assurance Co. Ltd. Some persons died and several were seriously injured.

III. Text of government notification:

3. All the representatives have come by benefit of notification issued by the Har yana Government, General Administration Department dated 1.8.2006 The notifica tion publishes the rules called the Haryana Compassionate Assistance to the Depend ants of Deceased Government Employees Rules, 2006. Relevant rules are reproduced insofar as they have a bearing to this case:

“1. (1) These Rules may be called the Haryana Compassionate Assistance to the Dependants of Deceased Government Employees Rules, 2006.

(2) They shall come into force at once.

2. The object of the Rules is to assist the family of a deceased/missing government employee of Group C and D category, in tiding over the emergent situation, resulting from the loss of bread-earner while in regular service by giving financial assistance.

3. The eligibility to receive financial assistance under these Rules shall be as per the provisions in the Pension/Family Pension Scheme, 1964.

4. An eligible family member of the deceased/missing government employee shall make an application in Form A for compassionate financial assistance.

5. (1) On the death of any government employee, the family of the employee would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim—

(a) for a period of fifteen years from the date of death of the employee, if the employee at the time of his death had not attained the age of thirty-five years;

(b) for a period of twelve years or till the date the employee would have retired from government service on attaining the age of superannuation, whichever is less, if the employee at the time of his death had attained the age of thirty-five years but had not attained the age of forty-eight years;

(c) for a period of seven years or till the date the employee would have retired from government service on attaining the age of superannuation, whichever is less, if the employee had attained the age of forty-eight years;

(2) The family shall be eligible to receive family pension as per the normal rules only after the period during which he receives the financial assistance as above is completed.

(3) The family of a deceased government employee who was in occupation of a government residence would continue to retain the residence on payment of normal rent/licence fee for a period of one year from the date of death of the employee.

(4) Within fifteen days from the death of a government employee, an ex gratia assistance of twenty-five thousand rupees shall be provided to die family of the deceased employee to meet the immediate needs on the loss of the bread-earner.

(5) House rent allowance shall not be a part of allowance for the purposes of calculation of assistance.”

4. As per the said notification, the rep resentatives who had filed the cases were admittedly dependants of the respective deceased persons in F.A.O Nos. 3432 to 3434 and 3487 of 2009 and have been found entitled to claim the salary of the respective deceased persons at the rate last drawn and they will continue to secure the benefit till the time when the respective deceased persons would have superannuat ed or for a period of 15 years from the date of death, if the deceased had not attained the age of 35 years; it shall be for a period of 12 years or till the date when the em ployee would have retired from govern ment service, whichever is less, if at the time of death, the person had completed the age of 35 years but had not attained the age of 48 years. It shall be for a period of 7 years or till the date when the employee would have retired, whichever is less, if the person had attained the age of 48 years.

IV. Employment details of the deceased persons:

5. The relevant details of the age, in come last drawn and the terminal benefits obtained are tabulated here below:

Sr. No. Case No. Name Age Date of retirement Years due for retirement Last drawn salary Terminal benefit (1) 3432 & 2246 Ajay Kumar 41 Y 2 M 31.5.2024 17 years Rs. 13,764 Rs. 1,27,420 (2) 3433 & 2247 Shishpal Nain 52 Y 3 M 30.4.2013 6 years Rs. 15,612 Rs. 7,96,998 (3) 3434 & 2248 Amar Singh 54 Y 5 M 28.2.2011 4 years Rs. 25,429 Rs. 15,37,757 (4) 3487 & 2250 Azad Singh 41 Y 3 M 30.4.2024 17 years Rs. 18,499 Rs. 6,62,777

It could be noticed that of the above persons, Ajay Kumar and Azad Singh were both above the age of 35 years and had not attained 48 years and had more than 12 years left, which is the maximum period for which the benefit would obtain to the family. Amar Singh and Shishpal Nain, however, were both above the age of 50 years and they had lesser number of yeas left than 7 years, which would be the maximum period for which the representatives would take the benefit.

V. The respective contentions:

6. While it is contended by the learned counsel appearing for the insurer that while determining the compensation, all these benefits, which the representatives have obtained, will have to be taken into account, the contention on behalf of the claimants is that ex gratia payments cannot be deduct ed. The State Government itself is a party in all the cases and the counsel appearing on behalf of the State would contend that the insurance company ought not to cast a burden on the State by diluting its own liability and expect the State to provide the benefit. Each has a point of view and sup ported by decisions of courts.

VI. Contentions examined in the light of court decisions:

7. The most significant pronouncement on the relevance of the benefit obtained to the representatives of the deceased has come through the judgment of the Hon'ble Supreme Court in Bhakra Beas Manage ment Board v. Kanta Aggarwal, 2008 ACJ 2372 (SC). In that case the claimant lost her husband in a motor accident. She had been given compassionate appointment through which she received a monthly salary of Rs. 4,700 and was also provided accommodation. The Tribunal took this to be totally irrelevant and determined a compensation of Rs. 8,48,160 plus interest at the rate of 9 per cent. The death had taken place 14 years before the adjudication came to Hon'ble Supreme Court and at the time of admission of the S.L.P, an amount of Rs. 5,00,000 had been directed to be deposited. The contention on behalf of the Bhakra Beas Management Board, which had been directed to give the compensation, was that the compassionate appointment provided to the wife and free accommodation which had been given to her must have been taken due notice of. Reliance was made on the earlier judgment of the Hon'ble Supreme Court in United India Insurance Co. Ltd. v. Patricia Jean Mahajan, 2002 ACJ 1441 (SC) and still earlier ruling in Gobald Motor Service Ltd. v. R.M.K Veluswami, 1958-65 ACJ 179 (SC). The judgment traversed the reasoning in Gobald Motor Service Ltd.'s case (supra), which obtained the benefit of observations of House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd., (1942) 1 All ER 657, which said “the general rule, which has always prevailed in regard to assessment of damages under a Fatal Accidents Act is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts, the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately”. The basis was observed by the House of Lords as “the damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered. …The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death”. These observations had been reiterated in subsequent pronouncements of the Hon'ble Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporters' Ins. Co. Ltd., 1971 ACJ 206 (SC) and General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC). The principle of balance of loss and gain so as to arrive at a just and fair amount of compensation has thus been accepted by the Hon'ble Supreme Court and expected to be followed by all courts as well. A still later decision of the House of Lords in Hodgson v. Trapp, (1988) 3 All ER 870, gave a fuller expression to the same idea in the following observations:

“…The basic rule is that it is the net consequential loss and expense which the court must measure, if, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff's losses and expenses in arriving at the measure of his damages. All this is elementary and has been said over and over again. To this basic rule there are, of course, certain well established, though not always precisely defined and delineated, exceptions…It is the rule which is fundamental and axiomatic and exceptions to it which are only to be admitted on grounds which clearly justify their treatment as such.’’

VII. Balancing of loss of benefit that would have accrued with benefit that will accrue to representative by reason of death; with exceptions:

8. The general principle of estimating damages shall be by balancing of what is the loss to the claimants of the future pecuniary benefits that would accrue to a person if he had not died, with the pecuniary advantage from whichever source it comes. At common law, the balancing act would always be invoked while determining the compensation payable to victims of motor accident claims. This was set in Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC), as a guiding principle for determining compensation and still later dealt with in great detail by the Hon'ble Apex Court in United India Insurance Co. Ltd. v. Patricia Jean Mahajan, 2002 ACJ 1441 (SC). Having set down the law, the Apex Court, in Patricia Jean Mahajan's case, dealt with the exceptions which we have referred to above. It said only the receipts which have correlation with the accidental death would be deductible and amounts received by the dependants on account of insurance policy of the deceased or amounts received by them under social security system, which would have come to them even without reference to death, would have no such correlation with the accidental death and hence would not be deductible. The reasoning is obvious. The amount that a person obtains by way of terminal benefits or pension are all methods of deferred payment of wages. It is a consideration for the services already rendered which stand accrued to the estate of the deceased and, therefore, they cannot be permitted to be deducted on the death of the person. In matters of insurance, for instance, it is the payment for the premium periodically, which would make possible a return of lump sum on the happening of the event mentioned in the policy. In the case of payments under the social security system, the court found in Patricia Jean Mahajan (supra) that as a matter of fact, they were again returns secured to the family for periodical contributions made and some deductions made from the salary during the lifetime. Amounts that come by way of recompense or a consideration for some service were found not to be related to death and, therefore, found not deductible.

VIII. Pure gratuitous payments shall not be deducted:

9. Courts appear to have never taken into account, in the assessment of damages, moneys gratuitously conferred from private sources upon the plaintiff as a mark of sympathy and assistance. Pure ex gratia payments that have no statutory basis but coming fortuitously is never deducted [see Harjit Kaur v. Tochi Transport Company, II, (1986) ACC 70 (P&H)], where the widow of the deceased has been granted a pension at the rate of Rs. 300 per month. An ex gratia grant of Rs. 11,700 has also been sanctioned by the department in which Ajaib Singh was employed for his widow. About Rs. 3,000 was lying in the provident fund account of Ajaib Singh. The court said that these amounts paid to the widow of the deceased could not be taken into account so as to reduce the quantum of compensation payable to the appellants. [See also MLJ - Motor Vehicle Laws, Lexis Nexis, 2008, Vol. 2, pp. 1517-18, for decisions of all other High Courts]. There are also pronouncements from English courts and they make good for a complete treatment of the subject. In Perry v. Cleaver, 1969 ACJ 363 (HL, England), the House of Lords speaking through Lord Reid said, “It would be revolting to the ordinary man's sense of justice and, therefore, contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be die wrongdoer”. An amount paid from disaster relief fund to victims of a railway accident was held in a North Ireland case in Redpath v. Belfast & County Down Ry., (1947) NI 167, as not going to be reckoned for deduction, while ascertaining the compensation payable by the Railways. In an earlier English decision in Liffen v. Watson, (1940) 1 KB 556 (CA), gratuitous payment made by the master of a domestic servant as well as free board and lodging during the period when she was not able to continue in her employment due to injuries were held not deductible from compensation payable by the tortfeasor, A similar treatment was made through another judgment of the Court of Appeal for ex gratia payments made by a sympathetic employer in Cunningham v. Harrison, (1973) QB 942.

IX. Returns as deferred wages or for services rendered are instances of impermissible deductions:

10. Apart from gratuitous payments privately conferred, there exists another situation where benefits could have accrued by the services of the deceased and payments made after death that take the shape of deferred wage. They would become payable to the representatives of the deceased in consideration of and by virtue of the contribution made by the deceased during his lifetime. Terminal benefits such as earned leave salary, provident fund accumulations, gratuity, etc. are the best instances of such entitlements. Another benefit could be compassionate appointment to one of the members of the family arising out of the death of the person in harness, when he or she still has some more years of service left. Here the benefit obtained by the employee through compassionate appointment would give rise to regular source of employment. It could be noticed that though the raison d'etre of employment is the death of the person while still in service, the proximate cause for material benefit by recurrent salaries is only his or her services to the employer and hence the benefit could not be deducted. The receipts of pension [N. Sivammal v. Managing Director, Pandian Roadways Corporation, 1985 ACJ 75 (SC)], provident fund [Bhagat Singh Sohan Singh v. Om Sharma, 1983 ACJ 203 (P&H)], gratuity [National Insurance Co. Ltd. v. Indira Srivastava, 2008 ACJ 614 (SC)], compassionate appointment [Amarjit Kaur v. State of Punjab, 2001 ACJ 211 (P&H)], social security benefits [United India Insurance Co. Ltd. v. Patricia Jean Mahajan, 2002 ACJ 1441 (SC)] and life insurance [Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC)], have all been held to be irrelevant for computation of compensation for death in motor accident. There is a whole wealth of case-law that abounds on this subject and they have been digested fairly extensively in the MU - Motor Vehicle Laws, Lexis Nexis, 2008, Vol. 2, pp. 1510-21 and it is too far from doubt that the payments received that have a bearing to services rendered by the deceased employee cannot be taken into consideration as permissible deductions.

X. Gratuitous payments or benefits, though termed as such, but are specifically enforceable are a different genre and hence ought to obtain different treatment:

11. Payments or benefits on a statutory basis or under a scheme which could be legally enforced by the legal representative ought to receive a different treatment for, after all, we are trying to recreate a situation of what the deceased would have done to the family of dependants if he had continued to live. In an injury case in Tamil Nadu State Trans. Corpn. v. Natarajan, 2003 ACJ 1002 (SC), even a compassionate appointment received by a workman was held to be a relevant factor to scale down the claim for compensation against an employer to the extent to which liability was apportioned on the latter. In Bhakra Beas Management Board v. Kanta Aggarwal, 2008 ACJ 2372 (SC), the fact that the wife was given compassionate appointment and also provided with accommodation was taken into consideration to scale down the extent of entitlement, although not taken as completely wiping out the claim. In UK also, the law favours deductions which have an element of enforceability. As opposed to ‘public benevolence in the shape of various uncovenanted benefits from the welfare State’, benefits which are earned by the public through their contributions go into reckoning while assessing compensation. Even free medical treatment provided under National Health Service is taken as relevant to deny medical expenses for the injuries which an injured-claimant would never have incurred while availing the benefits under NHS [H. West & Son Ltd. v. Shephard, 1958-65 ACJ 504 (HL, England); Mitchell v. Mulholland (No. 2), (1972) 1 QB 65).

XI. Distinction between returns which are not resultant to death and benefits arising out of and as a consequence of death:

12. When we consider whether there could be any deduction made for benefits received by the legal representatives of the deceased, the following questions must be asked: Is the benefit the direct result of death? If yes, is the benefit a mode of deferred wage or a return for present services rendered? If yes again, there shall be no deduction. On the contrary, is it a legally enforceable right of monetary benefit that requires no compulsory service to be rendered by the representative to claim the benefit? If the answer is yes, appropriate deduction shall have to be made, though it may not result in total effacement of the claim.

13. In this case all the representatives have come by fairly large sums of benefit by an accelerated date of payment of the terminal benefits. The amounts which could be noticed as having accrued by way of terminal benefits as a quid pro quo for services rendered or as consideration for contributions made shall not be liable for deduction. They represent the legitimate accretions to the estate of the deceased and they have no bearing to the death of the government employee and hence, they shall not be treated as resultant to death. On the other hand, compensation packaged under a compassionate scheme is wholly on a different footing. If under the compassionate scheme, a widow or a member of the family is granted an employment, the aspect of providing employment alone is the result of death. The salary which such a person obtains on such employment is a consideration for the services rendered by such person only. Therefore, the salary earned by such a person cannot be deducted. The several decisions which have come about stating that compassionate appointment and the salary earned shall not be relevant therefor, do no conflict with the position that we are examining whether financial compensation given by the State should be considered as relevant for deduction or not.

14. The learned counsel appearing for the claimants would refer to several decisions which are to the effect that benefits obtained by compassionate employment provided shall not be deducted. Even family pension paid shall not be deducted. We have already observed that pension is a deferred wage and a return of what the deceased himself had contributed. I shall refer to those decisions but they have to be properly understood in the factual context that we are setting out for examining the benefit of government scheme that is the subject of adjudication. In National Insurance Co. Ltd. v. Renuka Sana, 2010 ACJ 1936 (Calcutta), the court held that payment of family pension shall be irrelevant while computing compensation. Gauhati High Court held in Kanika Hazarika v. Sreeam Barthakur, 2003 ACJ 159 (Gauhati), that an employment given to a widow by a bank in which the deceased was working under a scheme and the salary given shall be irrelevant consideration while ascertaining compensation payable due to motor accident. The court said that the bank was not a wrongdoer and the employment was not in any way connected with the accident. Madhya Pradesh High Court (Indore Bench) also held that ex gratia payment received by a claimant could not be deducted in Bhanwri Bai v. Union of India, 2009 ACJ 1319 (MP). These judgments must be read down to what the Hon'ble Supreme Court has now explained in Bhakra Beas Management Board's case, 2008 ACJ 2372 (SC), referred to above and the relevance of employment given to a member of the family and the benefits obtained by virtue of premature death.

XIII. Law stated in Bhakra Beas Management Board case does not wipe out the possibility of obtaining benefit under MV Act also:

15. In Bhakra Beas Management Board v. Kama Aggarwal, 2008 ACJ 2372 (SC), the Supreme Court was not completely rejecting the claim by the representatives of the deceased by the only fact that the widow had been granted an employment and had been provided also with a rent-free accommodation. Against an amount of Rs. 8,00,000 and odd, which was determined as compensation, the Hon'ble Apex Court instead of remitting the matter for fresh consideration for determination of the amount had, in its exercise of jurisdiction under Articles 136 and 142 to do a complete justice, directed that Rs. 5,00,000 already deposited should be paid. They were not actually undertaking an actual calculation of what would be payable in a case where the claimants have come by such benefit. That exercise will have to be undertaken now.

XIV. Just compensation shall duly factor benefits obtained through government scheme:

16. While evolving a formula for the homogeneous approach of all courts, the Hon'ble Supreme Court has laid down certain principles in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC). On the choice of multiplicand, the Hon'ble Supreme Court has ruled that in cases where the workman had a security of service such as government job, the prospect of future increase must be made in such a way that if the deceased was less than 40 years of age, the future increase must be provided at 50 per cent of the sal ary last drawn. If the age was in excess of 40 and less than 50, the increase must be provided at 30 per cent and if the deceased was more than 50 years of age, no future increase need be provided. As regards the choice of a multiplier also, the Hon'ble Apex Court suggested numerical less than the value assigned under Second Schedule to the Motor Vehicles Act, which is applica ble only for persons whose annual income was less than Rs. 40,000. The Hon'ble Supreme Court noted several divergent opinions on the choice of multiplier and reaffirmed the principle that the multiplier must be such as to produce a corpus, which if it was capitalised would yield a return which will approximate to the monthly contribution to the family, due regard being made to provide gradual reduction from the surplus so that the corpus is exhausted by the end of the normal life expectancy. Taking the normal expectancy of 70, the multiplier will have to be worked out.

XV. The mode of reckoning:

17. Having set the principles of law enunciated through judicial pronouncements, the next task will be to assign the appropriate multiplier, secure the multiplicand and work out the compensation. I shall explain with reference to one case only before setting out in a Table for all other death cases as well. In F.A.O No. 3432, deceased was 41 years plus. As per Sarla Verma's case, 2009 ACJ 1298 (SC), the 30 per cent increase on the salary last drawn must be provided for. The last drawn salary after deducting tax was Rs. 12,440. If we provide 30 per cent future increase, the average salary shall be Rs. 16,172. For a person between 41 and 45, the multiplier suggested in Sarla Verma's case (supra) was 14. The government scheme itself provides for a maximum number of 12 years salary for a person who had more than 12 years of service. Under the scheme, the family would earn the salary at the same rate up to 25.7.2019 If he had been alive, he would have earned his salary up to his date of retirement, which would be 31.5.2024, which means he would have been in service for another five years. I cannot, however, provide for the salary for all the remaining five years for in a case where a person has long number of years left, the multiplier is even less than the number of years of service. On the contrary as the person approaches the age of retirement, the choice of multiplier is even higher than the number of years of service left. For instance, as per the decision in Sarla Verma (supra), a person in the age group of 51 to 55, who may have less than 8 years of service, is provided with a multiplier of 11 and a person who may have even crossed the age of retirement, say, a person between the age of 66-70, the choice of multiplier of 5 is still applied. This is to take care of other uncertainties of life and the sure possibility of contribution to the family even beyond the age of superannuation and to provide for a surplus, which a person normally saves to take care beyond the age of superannuation. In the matter of multiplier, between the numerical value which is less than number of years of service left (for relatively younger age with many years of service) and a multiplier which is more than the number of years of service left (for persons who are near the age of retirement or crossed the age of superannuation), we have little to choose. I would, therefore, take the actual benefit, which obtains to the claimants through the government scheme and deduct it from the amount, which would become payable if we apply the formula in Sarla Verma (supra) that takes due notice of an estimation for future increase and an application of multiplier appropriate to the age. The difference in the amount is the amount of compensation that will become payable.

Sr. No. Case No. Name & age Amount payable as per formula adopted in Saria Verma's case, i.e, monthly salary (less tax) + future increase (if any) less deduction for personal expenses × 12 × multiplier Conventional heads i.e, loss of consortium at the rate of Rs. 10,000 to wife, love and affection at the rate of Rs. 5,000 to each minor child and Rs. 5,000 for funeral expenses and loss to estate Total Amount provided by Govt. Additional amount payable (1) 3432 & 2246 Ajay Kumar (41) 12,440 + 30 per cent of salary × ¾ × 12 × 15 = Rs. 21,83,220 Rs. 30,000 Rs. 22,13,220 Rs. 17,91,360 Rs. 4,21,860 (2) 3433 & 2247 Shishpal Nain (52) 14,280 × ⅔ × 12 × 11 = Rs. 12,56,640 Rs. 25,000 Rs. 12,81,640 Rs. 11,99,550 Rs. 82,120 (3) 3434 & 2248 Amar Singh (54) 22,988 × V3 × 12 × II = Rs. 20,22,944 Rs. 20,000 Rs. 20,42,944 Rs. 19,30,992 Rs. 1,11,952 (4) 3487 & 2250 Azad Singh (41) 16,546 + 30 percent of salary xi U × 12 × 15 = Rs. 29,03,850 Rs. 25,000 Rs. 29,28,850 Rs. 23,82,624 Rs. 5,46,226

XVI. Disposition in respect of cases arising out of deaths:

18. All the appeals are disposed of with additional amounts, namely, Rs. 4,21,860 for F.A.O Nos. 3432 & 2246; Rs. 82,120 for F.A.O Nos. 3433 & 2247; for F.A.O Nos. 3434 & 2248 Rs. 1,11,952 and Rs. 5,46,226 for F.A.O Nos. 3487 & 2250. These amounts shall also bear 6 per cent per annum interest from the date of respective petitions till the date of payments. The apportionment shall be made in the same manner as provided for in the respective awards. Since the major portion of the awards are sliced down to accommodate the State assistance and more than 4 years have elapsed since the date of accident, no part of the enhanced amount need be kept in bank deposit but paid to the claimants,except to minor claimants, whose amounts shall be kept in the bank deposits for the period of minority and at the option of the respective guardians for the minor may be kept in reinvestment plans or interest paid quarterly towards the maintenance of the minor children. This shall not be taken as constituting an additional burden on the State, as contended by the counsel for the State. This scheme has come about as a matter of welfare policy of the State. In such like matters, the court neither interferes nor dictates policy consideration. It, however, enables the beneficiary a sure method of enforcement, so long as the policy continues. A self-declared policy cannot be assumed to be a burden cast by the insurer.

XVII. Disposition for injury cases:

(a) Continuance of employment, irrelevant to ascertain loss and resultant compensation:

19. The appeal in F.A.O No. 3435 of 2009 addresses the claim for compensation for injuries suffered by Satish Kumar. The original contention on behalf of insurance company had submitted that the injured continues in service and does not suffer any loss. In cases of injury, it is not merely the financial issues that the courts look at but it also factors the loss of amenities of life, pain and suffering and several non-pecuniary damages. There is definitely a resultant loss of prospects of promotion and loss that is occasioned by the physical disability that a person carries. In a slightly different situation in Management of Sree Lalithambika Enterprises v. S. Kailasam, 1986 ACJ 1150 (Madras), coming under Workmen's Compensation Act, the contention was that for a person who continues in service and has not suffered any financial loss, there shall be no compensation since no loss of earnings is sustained by such a workman. This case and several other cases have examined this situation through several judgments. We are not dealing in cases of workmen under the Workmen's Compensation Act but I would still apply the same principle as applicable. In V. Jayaraj v. Thanthana Periyar Trans. Corpn. Ltd., 1989 (2) LLJ 38; Management of Tamil Nadu Cements Corporation Ltd. v. N. Jayapalan, 1994 ACJ 60 (Madras); Kerala Minerals and Metals Ltd. v. Raman Nair, 1998 ACJ 868 (Kerala); and Executive Engineer, Public Works Department, Udaipur v. Narain Lal, 1978 ACJ 163 (Rajasthan), the courts have dealt with the situation of continuance of employment of a workman despite the injury and award compensation including projected loss of earning capacity.

20. Madras High Court posed the question in Lalithambika's case, 1986 ACJ 1150 (Madras), whether an employer could be relieved of his liability to pay compensation by retaining a person in employment and providing for the same wages. It answered that the mere continuance of work does not disentitle a person from claiming compensation. There is also an opinion of the House of Lords that may be relevant to understand this concept. Bale v. William Hunts and Sons Limited, (1912) AC 496, was the case of a workman, who was blinded in one eye. The defect was not visible and he was to have appearance as two-eyed man. He had come to such a disability status when he had sustained an employment injury in which the defective eye had to be removed with the consequence that he could not get employment though physically he was as well as before. The House of Lords held that the incapacity of work included inability to work or, in other words, there is incapacity for work when a man has physical defect which makes his working unsaleable in any market reasonably accessible to him. Applying the same logic, a person who has suffered an injury may not come by immediate loss if he is retained in the same employment and does not lose his job, but in his own saleability elsewhere as a fresh recruit to a new employer, he may come by a serious handicap. That shall be a justification enough to provide for compensation in such types of cases. The learned counsel appearing for the insurer is fair to state that he will not make an issue out of the compensation granted by the Tribunal. The appeal in F.A.O No. 3435 filed by the insurer is, therefore, dismissed confirming the award passed by the Tribunal.

21. The appeal in F.A.O No. 2249 of 2009 is at the instance of claimant Rajbir Singh, who was aged 52 years and had suffered fracture of the shaft humerus and collar bone. He had been admitted in the hospital on 24.7.2005 and remained in the hospital up to 4.8.2005 and again readmitted on 9.9.2007 and remained in the hospital till 9.11.2007 He had been operated upon and the hospital had charged Rs. 30,000 and he had produced medical bills Exh. P3 to Exh. P86, which add in up to Rs. 70,000. For the second period of hospitalisation from 9.9.2007 to 9.11.2007, he had been charged Rs. 7,500. In all, the medical expenses alone have amounted to Rs. 1,07,500. The Tribunal has awarded Rs. 70,000 for medical expenses, which shall stand increased to Rs. 1,07,500, which was supported by documents. For pain and suffering, Claims Tribunal had awarded Rs. 20,000. He had two fractures and he underwent two operations and remained in the hospital on two different dates. For each of the fractures, I will award Rs. 7,500. For pain and suffering, hospitalisation and post-operative trauma, I would provide for another Rs. 10,000 for each episode of operation making it in all to Rs. 35,000. The Tribunal has awarded Rs. 10,000 on account of transportation, special diet and attendance charges, which 1 shall retain. It has also provided for loss of earning capacity at Rs. 10,000, which I shall retain. He is not known to have suffered any permanent disability and as a government servant he ought to have reported to duty. In all, the amount that will become payable would be Rs. 1,62,500. The enhanced amount shall, therefore, be Rs. 52,500, which shall bear interest at the rate of 6 per cent from the date of the petition till the date of payment. The appeal in F.A.O No. 2249 of 2009 is allowed to the above extent.

22. Appeal allowed.