TORT 085 Injury Claims Permanent Disability and Loss of Consortium — Law of Torts Notes for Judiciary

Injury Claims, Permanent Disability, and Loss of Consortium: Magma General and Satinder Kaur

A death claim compensates the dependants for what they have lost. An injury claim compensates the victim for what has happened to him, and must provide for a lifetime of consequences: continuing treatment, attendants, equipment, lost earning capacity, and the loss of the ordinary enjoyment of life. The heads are therefore more numerous and the computation less mechanical. Alongside them runs the law of consortium, which Magma General Insurance Co. Ltd. v. Nanu Ram divided into spousal, parental and filial forms, and which United India Insurance Co. Ltd. v. Satinder Kaur settled as payable to each claimant entitled to it.

The pecuniary and non pecuniary heads, the disability question, and the two consortium decisions

1. The Pecuniary Heads

The head	What it covers
Past medical expenses	Proved by the bills and vouchers, from the date of the accident to the date of the award
Future medical expenses	The cost of continuing treatment, further surgery, therapy and medication, capitalised and with an allowance for inflation
Loss of earnings, past	Earnings actually lost between the accident and the award, including the period of hospitalisation and convalescence
Loss of future earning capacity	Computed on the multiplier method, applied to the extent to which the disability has reduced the claimant's capacity to earn
Attendant care	The cost of an attendant where the disability requires one, computed over the expected period
Equipment and modifications	A wheelchair, a prosthesis, a hearing aid, and the cost of modifying a house or a vehicle
Incidental expenses	Transport to and from hospital, special diet, the cost of an attendant's travel, and the expense to which the family has been put

2. The Non Pecuniary Heads

Pain, suffering and trauma, for the injury itself, for the treatment undergone, and for the mental distress that follows.
Loss of amenities of life: the inability to do what the claimant could do before, to walk, to play, to work at his craft, to enjoy his senses, to take part in family and social life.
Disfigurement, which is a distinct head where the injury has left a visible deformity or scarring.
Loss of marriage prospects, where the disability or disfigurement has that effect.
Loss of expectation of life, where the injury has shortened it.
These are conventional sums. They are not computed but assessed, and the courts aim at consistency between comparable cases rather than at a formula, since no formula can value the loss of a leg.

3. Permanent and Temporary Disability

	Temporary disability	Permanent disability
What is compensated	The actual loss of earnings for the period of incapacity, together with the medical expenses of that period	The lasting reduction in the capacity to earn, computed on the multiplier method
The measure	Proved loss, and no multiplier	The percentage of loss of earning capacity applied to the income, then multiplied
Non pecuniary heads	Pain and suffering for the period	Pain and suffering, loss of amenities, disfigurement, and loss of marriage prospects
Future care	Usually none	Frequently the largest head: attendants, equipment, and continuing treatment

4. The Disability Question

The certified percentage of physical disability is the starting point and not the answer. A disability certificate states the impairment of the body; it does not state the effect on the claimant's ability to earn.
The question is the effect of the disability on this claimant's earning capacity in his occupation. The loss of a finger may be a ten per cent physical disability and may be trivial for a clerk and total for a violinist or a surgeon.
Where the disability prevents the claimant from continuing in his occupation at all, the loss of earning capacity may be assessed at a figure far higher than the certified physical disability.
Conversely, where the claimant has returned to the same work at the same pay, the loss of earning capacity may be lower, though the courts recognise that his position in the labour market has been weakened and make an allowance for that.
The multiplier in an injury case is taken from the age of the claimant, and the same table applies.
Future prospects are added in an injury case as in a death case, on the Pranay Sethi percentages, since the claimant has lost the prospect of the rise as well as the present income.

5. Loss of Consortium

📖 Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram, decided 18 September 2018

Facts An unmarried young man of about twenty four was killed in a motor accident caused by negligent driving. The claimants were his aged father, about sixty five, and his unmarried sister, who were dependent on him. The insurer challenged the heads under which the High Court had awarded compensation.

Held The Court awarded loss of consortium to the father and the sister, and clarified the content of the head.

Ratio Consortium is a compendious term covering the companionship, love, affection, comfort, mutual services and society of the deceased, and it takes three forms. Spousal consortium is the right of a husband or wife to the company, society, cooperation, affection and aid of the other. Parental consortium is granted to children who lose a parent in an accident, for the loss of parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of parents to compensation on the accidental death of a child, and it was recognised in India in this decision. The loss of a child is a permanent emotional loss, and compensation under this head reflects it.

📖 United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur, decided 30 June 2020

Facts The deceased had been employed abroad since 1984 and was killed in an accident in India while visiting in 1998. His widow and three minor children claimed compensation. Questions arose as to the assessment of his income, the deduction for personal expenses, and the heads under which compensation was payable, there being a conflict among earlier decisions on loss of consortium.

Held The Court settled the position on consortium and on the related heads.

Ratio Loss of consortium is payable at the conventional figure to each claimant entitled to it, so a widow and three children receive four awards under that head and not a single one. Loss of love and affection is not a separate head: it is comprehended within loss of consortium, and to award both is to compensate the same loss twice. The deduction for personal and living expenses is not to be applied mechanically, and a deduction of fifty per cent was upheld where the deceased lived and worked abroad at a high cost of living notwithstanding the number of his dependants. Future prospects were applied at thirty per cent, the deceased being over forty.

The form	Who claims it	For what
Spousal consortium	A husband or wife	The company, society, cooperation, affection and aid of the other
Parental consortium	A child who has lost a parent	Parental aid, protection, affection, society, discipline, guidance and training
Filial consortium	Parents who have lost a child	The permanent emotional loss occasioned by the death of a child. Recognised in Magma General

⚠ Why the certified disability percentage is not the answer

Tribunals are frequently invited to take the figure on a disability certificate and apply it directly to the claimant's income, and the invitation should be resisted, because it answers a different question from the one the law asks. A medical board certifies the extent of functional impairment of the body, measured against an anatomical schedule and without reference to what the person does for a living. What compensation is directed at is the loss of earning capacity, which depends entirely on the occupation: the same forty per cent lower limb disability ends the career of a construction labourer and barely affects an accountant, and a twenty per cent impairment of the hand may be total for a tailor. The correct approach is to take the certificate as evidence of the physical condition, and then to assess, on the evidence of what the claimant did and can now do, how much of his capacity to earn has gone. Applied faithfully, that method produces awards both higher and lower than the certificate would suggest, which is the sign that it is asking the right question.

6. The Position Stated Shortly

1. An injury claim compensates the victim and must provide for continuing treatment, attendants, equipment and lost earning capacity over a lifetime.

2. The pecuniary heads are past and future medical expenses, past loss of earnings, loss of future earning capacity, attendant care, equipment and incidental expenses.

3. The non pecuniary heads are pain and suffering, loss of amenities, disfigurement, loss of marriage prospects and loss of expectation of life, and they are assessed and not computed.

4. Temporary disability is compensated by the actual loss of earnings for the period; permanent disability by the multiplier method applied to the loss of earning capacity.

5. The certified percentage of physical disability is the starting point and not the answer; the question is the effect on this claimant's capacity to earn in his occupation.

6. The multiplier in an injury case is taken from the age of the claimant, and future prospects are added as in a death case.

7. Magma General Insurance v. Nanu Ram divides consortium into spousal, parental and filial forms.

8. Filial consortium, the right of parents to compensation on the death of a child, was recognised in India in that decision.

9. United India Insurance v. Satinder Kaur holds that loss of consortium is payable to each claimant entitled to it, so a widow and three children receive four awards.

10. Loss of love and affection is not a separate head, being comprehended within loss of consortium.