Download - Assessment of Disability & Compensation
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Assessment and Quantum of Compensation
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Categories of cases
The assessment of compensation in a Motor Vehicleaccident may be for the following categories :
1. Injury cases.
2. Fatal Cases.
3. Loss of Property.
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Compensation in personal Injury cases
Compensation forpecuniary loss
Compensatio
n forNon-Pecuniary Loss
Medical ExpensesLoss ofearning orProfit
Loss of futureearning or profit
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Compensation for Non-Pecuniary Loss
Mental andPhysicalpain,shock &suffering
Loss of amenitiesof life
Loss ofexpectation oflife
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How to assess compensation in injury cases.
The following factors have to be considered whileawarding compensation:
1. Nature of injury.2. Status and age of the person injured.
3. Percentage of Disablement.
4. Occupation of Injured.
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Personal Injury Cases
For Personal Injury cases compensation can be claimedunder the Heads:
1. Pecuniary Damages.
2. Non-Pecuniary Damages.
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Pecuniary Damages
Pecuniary damages are known as special damages andare generally designed to make good the pecuniaryloss which is capacable of being calculated in terms ofmoney.
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Pecuniary Damages
1. Expenses incurred by the claimant in respect ofinjury which may include medical attendance.
2. Loss of earning or profit upto the date of trail.
3. Loss of earning capacity which may include
incapability to earn in future years and alsoincapability in the labour market, loss of earning onaccount of termination of service or discontinuance ofany trade, business or profession.
4. Other material loss which may, require a specialtreatment or aid to the injured or claimant for the riskof life.
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Non-Pecuniary Damages
Non Pecuniary damages are those which are incapableof being answered by arithmetical calculations
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Non-Pecuniary Damages
Non-Pecuniary damages or general damages include anumber of sub-heads such as :
1.Damages for mental and physical shock, pain, sufferingalready suffered by the claimant or likely to suffer infuture.
2.Damages to compensate for the loss of amenities of lifewhich may include a variety of matters such as claimant
may not be in position to walk, run, sit or loss of marriageprospects, sexual intercourse and other amenities in life;
3.Damages for loss of expectation of life i.e.,on accountof injury the normal life of the person is shortened; and
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Contd..
4.inconvenience, hardship, discomforts, disappointment,frustration and mental agony in life.
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Calculation of Percentage of disability in Injury cases.
At present only the medical aspect of disabilityi.e.,Physical impairment is evaluated by the doctor.
Social, Physiological and vocational activities/potentialsare never considered while assessing disability.
Physical impairment leads to functional limitation and
functional limitation in turn leads to disability. Henceimpairment,functional limitation anddisability haveto be examined in light of their definitions by theW.H.O.
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Impairment
Is a permanent or transitory physiological, oranatomical loss and/or abnormality. A missing ordefective part, tissue organ, or mechanism of the body,such as an amputed limb, paralysis after polio,myocardial infraction, cerebralvascular thrombosis,restricted pulmonary capacity, diabetes, myopia,disfigurement, mental retardation, hypertension andperpetual disturbances all come under this category.
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Functional Limitation
Impairment may produce functional limitation(whichmay beprogressiveorregressive) and or the total orpartial inability to perform those activities necessaryfor motor, sensory or mental functions within the
range and manner of which human being is normallycapable such as walking, lifting loads, seeing,speaking, bearing, reading, writing, counting. Afunctional limitation may last for short time, a long
time, may be permanent or reversible. It should bequantifiable whenever possible.
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Disability
Is an existing difficulty in performing one or more activities which,in accordance with the subjects age, sex and normative social role,are generally accepted as essential, basic components of dailyliving such as self-care, social relations & economic activity.Disability may be short, long or permanent depending on functional
limitations duration. It should be noted that functionallimitationorimpairment is causative/contributory factor in disability.
In legal parlance disability is a permanent injury to body for which
the person should or should not be compensated.
In medical sense of the term disability is physical impairement andinability to perform physical functions.
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Kinds of disability
Temporary total disability:The period during which the injured person is totally unable towork and received orthopedic or other medical treatment.
MAKES THE PATIENT BED RIDDEN.LONG PLASTERED LIMBS.
LARGE OPEN WOUNDS.
MAJOR FRACTURES OF LOWER LIMBS.
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Kinds of disability
Temporary partial disability:
The period when recovery has reached a stage of
improvement so that the person may begin some
gainful occupation.DISABILITY IS LIMITED .
CAN ATTEND SOME PORTION OF THE JOB,DUTY-EARNING MAY BE
STARTED.
PLASTER REMOVED AND PHYSIOTHERAPY GOING ON.
PERSON WITH TOURING DUTY CAN ATTEND OFFICE WORK BUT NOT
TRAVELLING.
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Kinds of disability
Permanent disability:
causing life long limitation on the victim.
Permanent loss or damage of use of some part of the body after the stage of
maximum improvement from treatment has been reached and the condition
stationery constitutes.
Permenant partial disability:
Amputation of a finger.
Loss of one eye.
Shortening of a limb.
Restristed or stiff joint.
Permenant Total disability :equivalent to 100%.
Permenant paralysis of all 4 limbs due to spinal injury.
Loss of both the eyes.
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GOVERNMENT BENEFITS:
RESERVATIONS IN
JOBS, SCHLORSHIPS.
CONVEYENCE & RELATED FACILITIES RAIL,ROAD.
INCOME TAX EXEMPTIONS. 80U.
OTHER :
COMPENSATION FOR: MOTOR INDUSTRIAL,ACCIDENTS, NEGLIGENCE.
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DEGREES OF DISABILITY
MILD = Below 40%
MODERATE = Above 40%
SEVERE = Above 75%
TOTAL= 100%
FOR GOVT. CONCESSIONS Above 40% IS REQUIRED.
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DISABILITY CERTIFICATE SHOULD INCLUDE:
Name, Age, Sex, Address, identification mark.
Existing disabilities, deformities -calculation
% of disability of the limb or whole body.
Issued for -------- purpose only.
Mention scale or law used for calculation.
Comments if any.
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FRACTURE: LONG BONES LIKE TIBIA FIBULA MORECOMMONLY AFFECTED
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Medical records
The hospital medical record is a complete
written record of a patients history, condition,treatment and results of hospitalization.
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Medical Records
Medico-legal register
Outpatient record
Inpatient record
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Medico-legal register
Personal particulars
Time of arrival
Identification mark
Consent
Patient accompanied
History of accident with time
and place
Conscious
Smell of alcohol
Physical examination finding
Treatment
Nature of Injury
Simple or Grievous
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Out- Patient record
Personal particulars
History of illness or accident
Past history of any disease
Clinical examination findings
Probable diagnosis
Investigations
Treatment
Doctors initials
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Inpatient record
Hospital identification sheet
History sheet
Treatment order sheet
Progress sheetNursing sheet
Anesthesia notes
Surgery notes
investigations
Additional sheets
Temperature chart
Pulse,BPchart
Input ,output chartHead injury chart
Miscellaneous.
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INPATIENT RECORDS-HISTORY SHEET
Personal dataChief complaint
History of present illness
Past history
Personal history
Family history
Physical findingsGeneral examination
Systemic examination
Local examination
Detail description of injury
Diagnosis
Initials
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INPATIENT TREATMENT SHEET
Date
Drugs, Dosage, Route of administration
Investigation required
Doctors initials
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INPATIENT PROGRESS SHEET
Every day progress of patient
Initials of doctor
Cross reference to other doctors and their opinion
From day of admission to discharge
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INPATIENT ANESTHESIA NOTES
Identification data
General condition of patient
Type of anesthesia
Duration
Recovery
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INPATIENT-OPERATION NOTES
Identification data
Preoperative diagnosis
Procedure name
Surgeons name
First and second assistants name
Details of surgery ,
Initials of doctor
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INPATIENT-NURSES NOTES
Identification data
Every day progress of patient nursing aspect
Any time SOS to doctor
Initials
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INPATIENT RECORDS-INVESTIGATION REPORTS
Blood investigations
Urine investigation
Miscellaneous investigation
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Discharge summary
Identification data
Diagnosis
Brief history of illness ,and patents progress during hospital stay
Investigations
Treatment advised
Follow-up
Condition on dischange
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Medical record
Good record
Accurate
Appropriate
Chronological
Relevant
complete
Bad record
Tampering
Alteration
No initials
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What to look for in case sheet
Identity
History
Smell of alcohol
Initials of treating doctor
in all sheets
Operating surgeons
Prescriptions initials
Investigations asked
Proof of reading report
Check the x-ray report
and date
Comment on the age of
the injury
Cross check the bills and
investigations.
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JUST THINK IT OVER?
The doctor deposing:
Not able to identify the patient
No proof in case sheets
No proof of operation
No proof of interpretation of results
No prescription issued
No counter signature
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MEDICO-LEGAL AUTOPSY
AIMS
Identification
Cause of death
Time since death
Age of injuries
Ante mortem or postmortem injuries
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MEDICO-LEGAL AUTOPSY
Cause of death
Furnish opinion
Reserved pending
No opinion
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MEDICO-LEGAL AUTOPSY
Just think about it
Age of the patient
Age of the injury
Cross check autopsy findings and case sheet findings
Can similar injury produced by other mechanisms
Is death due trauma or disease
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Orthopedics
The chief essential of any operation is that
it should not make the patient worse than
he was before submitting to it
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Diagnosis of orthopedic disorders
History
Clinical examination
Radiological examination
Special investigation
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Treatment of orthopedic disorder
No treatment
Non operative treatment
Operative treatment
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Non-operative treatment
Rest
Support
Physiotherapy
Local injection
Drugs
Manipulation
radiotherapy
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Orthopedic-operative treatment
Osteotomy-cutting a bone
Arthodesis-joint fusion
Arthoplasty-construction of a new movable joint
Bone grafting
Tendon transfer operation
Tendon grafting operation
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Fracture is break in a bone
Greenstick fracture
Closed fracture
Open fracture
Pathological fracture
Stress fracture
Birth fracture
Clinical types
Fresh fractureMalunited fracture
Un-united fracture
pathological
Anatomical typesTransverse oblique
Spiral
Comminutated
Stellate
Avulsion
Impacted
depressed
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Fractures influencing healing
Imperfect mobilization
Distraction
Surgical interventionInfection
Inadequate blood supply
Interposition of soft tissues
Type of fracture
Type of bone
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Duration of immbolisation
Children: upper limb 3-4 weeks
lower limb 6-8 weeks
Adults: upper limb 6-8 weeks
lower limb 12-14 weeks
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Complication of fractureLate complication:
Malunion
Nonunion
Cross union
Stiffness
Contracture
Post traumatic osteo arthrodesis
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Disability Questionnaires
Example of Questionnaires: -Whether you has examined victim?
Whether you are was treating Doctor?
When was the injured for the first and last examined by
you?
What is his position as on today?
Are you authorized to issue a disability certificate?
I suggest to you that only a medical board constituted byGovt. is authorized to issue a certificate?
What was the Length of the leg before surgery?
What is the Length of the Leg after surgery?
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Disability Questionnaires - Contd
You have not mentioned in your certificate or chief
examination, whether the disability is permanent or
partial?
Whether the disability is for the Particular Limb or whole
body?
What are the Guidelines as per MCBRIDES for assessing
the disability of lower limbs? Have you stated the same in
your chief examination?
Whether the fracture is external or internal? Have you
mentioned so in your medical records?
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Disability Questionnaires - Contd
Do you admit that the disability in case of lower limbs
depends on stability and mobility components? Have you
stated the same in your chief examination?
Do you agree that disability depends upon impairment and
functional Limitation?
Functional limitation can be progressive or regressive,
what is the position on the date of the certificate and what
the position today?
Do you agree that the estimation of disability must be
assessed when the physical condition is fixed and
unchangeable?
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Disability Questionnaires - Contd
Do you agree that the estimation of disability is not an
expression of personal opinion?
Whether the Petitioner requires more active treatment or
rehabilitation treatment?
Has the injury reached its maximum improvement? Have
you stated the same in your chief examination?
Whether you have taken fresh X-Rays?
How the disability was calculated?
Which Method you have followed?
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Disability Questionnaires - Contd
Any improvement is possible?
Any treatment is possible?
Will the treatment improve the disability?
Has the injury reached the stationery condition? Have you
stated the same in your chief examination?
Are you aware of the guidelines issued by the Govt. India
(Ministry of Social Justice and Empowerment) for
assessment of Physical and mental disability?
Are you aware of Persons with disabilities (equal
opportunities, Protection of rights) and full Participation
Act, 1995?
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Disability Questionnaires - Contd
Whether the patient was advised for physiotherapy?
Whether the patient has followed the advice of
physiotherapy?
Whether non performance of physiotherapy lead to higher
disability?
If physiotherapy is advice, where it has been mentioned?
When was the patient examined for assessment of
disability?
When was the certificate issued?
How many patient you examined per day?
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Disability Questionnaires - Contd
How many disability certificate you issue per day?
What is your style of noting the ROM and assessment of
disability?
Whether those noting is brought together today?
When the patient comes at your hospital, whether his
entry is recorded in OPD register?
If not, are you ready to produce these documents?
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Disability Questionnaires - Contd
Had you checked Out Patient / Inpatient Records?
Can you produce Out Patient / Inpatient Records? (if injured has
taken treatment in his hospital)
Had you checked inpatient progress sheet? (if so)
Can you produce inpatient progress sheet? (if injured has taken
treatment in his hospital)
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Disability Questionnaires - Contd
Had Checked inpatient operative notes? (if so)
Can you produce inpatient operative notes?
Had you checked Case Sheet & Discharge card?
Can you produce Case Sheet & Discharge card?
Had you checked OLD X-Ray Films & Radiological reports?
If need be, we need to stop the cross examination and
recall after the documents are being submitted by the
witness
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Guidelines for Evaluation of Permanent PhysicalImpairment in Upper Limbs:
1.The estimation of permanent impairment dependsupon the measurement of functional impairment and is
not expression of personal opinion.2.The estimation and measurement must be madewhen the clinical condition is fixed and unchangeable.
3.The upper extremity is divided into two component
parts: the arm component and the hand component.
4.Measurement of the loss of arm component consistsin measuring the loss of motion, muscle strength andco-ordinated activities.
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Contd
5.Measurement of loss of function of hand componentconsists in determining Prehension, sensation &strength. For estimation of prehension Opposition,lateral pinch, cylindrical grasp, spherical grasp and
hook grasp have to be assessed.
6.The impairment of the entire extremity depends onthe combination of the functional impairment of both
components.
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Arm Component
Total value of arm component is 90%.
A)Principles of evaluation of Range of motion of joints:
1.The value for maximum R.O.M. in the arm component is 90%.
2.Each of the three joints of the arm is weighed equally 30%.Ifmore than one joint is involved,same method is applied,and losses
in each of the affected joints are added. For example
Loss of abduction of the shoulder=60%
Loss of extension of the wrist=40%
Then,loss of range of motions for the arm=
(60x0.30) + (40x0.30)=30%
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B)Principles for Evaluation of strength of muscles:
1.Strength of muscles can be tested manually like 0-5 grading.
2.Manual muscle gradings can be given percentages like:
0-100%
1-80%2-60%
3-40%
4-20%
5-0%
3.The mean percentage of muscle strength loss is multiplied by0.30.If there has been loss of muscle of more than one joint,thevalues are added as has been described for R.O.M.
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C)Principles of Evaluation of Co-ordinated activities:
1.The total value for co-ordinated activities is 90%
2.Ten different co-ordinated activities are to be tested as given inthe proforma.
3.Each activity has a value___%.
D)Combining values for the Arm component:
The value of loss of function of arm component is obtained bycombining the values of R.O.M, Muscle strength & Co-ordinatedactivities.Using the combining formula: a+b (90-a)/90
a=higher value
b= lower value
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Hand component
The total value of Hand component is 90%.The functional
impairment of hand is expressed as loss of Prehension, loss ofsensation, loss of strength.
Principles for Evaluation of Prehension:
Total value of prehension is .30%.It includes:
a)Opposition-8%,tested again.Each finger is given 2%.
b)Lateral Pinch-5%,tested by asking the patient to hold a key.
c)Cylindrical grasp-6%,tested for large object of 4(3%),smallobject of 1(3%)
d)Spherical grasp-6%,tested for large object of 4(3%),smallobject of 1(3%)
e)Hook grasp-5%,tested by asking the patient to lift a bag.
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Principles of evaluation of sensation:Total value of sensation is
30% it includes:
1.Radial side of thumb-4.8%
2.Ulnar side of thumb-1.2%
3.Radial side of each finger-4.8%
4.Ulnar side of each finger-1.2%
Principles of Evaluation of strength;
a)Grip strength-20%
b)Pinch strength-10%
Strength will be tested with hand dynamo-meter or by clinicalmethod.
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Guidelines for Evaluation of Permanent Physical Impairment in
Lower Limbs: The lower extremity is divided into twocomponents:Mobility component and stability component.
The total value of mobility component is 90%.It includes range ofmovement and muscle strength.
The value of maximum R.O.M in the mobility component is 90%.
Each of the three joints hip,knee,foot-ankle component isweighted equally-0.30%
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Stability component:
The total value of stability component is 90%
It is tested by 2 methods:
a)Based on scale method.
b)Based on clinical method.
Three different readings in Kgs are taken measuring the totalbody weight(W), scale A reading and scale B reading. Thefinal value is obtained by formula:
Difference in body weight/Total body weight x 90In the Clinical method of evaluation nine different activitiesare to be tested as given in the proforma. Each activity is givena value of 10%
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Extra Points
Extra Points are to be given for pain,deformities, contractures, loss ofsensation and shortening, Maximum points to be added are10%(excluding shortening.Details are follows:
a)Deformity: In functional position 3%
In non-functional position 6%
b)Pain: Severe(grossly interfering with function) 9%
Moderate(moderately interfering with function) 6%
Mild(mildly interfering with function) 3%
c)Loss of sensation: complete loss 9%
Partial loss 6%
d)Shortening:First Nil
Every beyond first 4%
e)Complications:Superficial Complication 3%
Deep Complication 6%
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Similarly we have guidelines for Evaluation ofPermanent Physical Impairment of:
1.Trunk(Spine)
2.Amputees.
3.Neurological Conditions.
4.Facial Injuries.
5.Burns of Head and Neck.
6.Burns of Trunk and genitalia.
7.Cardio-Pulmonary diseases.
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Assessment of compensation in fatal cases
In fatal Accident cases (death ) cases compensationmay be claimed under the following heads:
1.Loss of Dependency.
2.Loss of estate of the deceased.
3.Loss of Gratuitous services.
4.Loss of consortium.
5.Mental agony and shock.
6.Loss of Happiness affection ,love and care.
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1.Loss of dependency: Means loss of income to theclaimant due to the death of the deceased
Meanings :
2.Loss to estate: Loss of supervision of immovableproperty,inability to continue the business,expenses for
medical treatment,transportation damages to theproperty due to accident and funeral expenses comeunder this head
3.Loss of gratuitous Services: Due to the death ofthe wife the husband may incur expenses to employservants,cooks to do the house hold jobs.Theseitems may be brought under this head.
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Contd
4.Loss of consortium: Means loss of life partner.For theloss of service,society & intercourse compensation maybe claimed under this head.
5.Mental agony and shock: Due to the death ,theclaimant might have suffered mental agony orshock.The quantum of Compensation may be grantedunder this head.
6.Loss of happiness, love, affection and care: Due to thedeath of the deceased the claimant may lose happiness,love and affection. compensation may be granted underthis head.
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Modes of assessment in fatal cases
There are three methods for assessment ofcompensation in fatal cases and they are:
1.Multiplier Method.
2.Discounting Method.3.Interest Capitalisation Method.
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Multiplier Method
Of all the methods the courts in India adopt multiplier method.In
computing the amount of compensation the reasonable expectationof pecuniary benefits reducible to money value is taken intoaccount.The circumstances which may pleaded in diminutionshould also be taken into account.In determining the quantum,theactual pecuniary loss of each claimant shall have to be balanced by
any pecuniary advantage which might come to him by reason of thedeath person viz.against the actual pecuniary loss suffered byhim.Sentimental damage,bereavement,pain& suffering have noplace in calculation.From the income of the deceased the amountrequired for his personal living expenses shall be deducted.The
balance will be turned into a lumpsum adopting a certain numberofyears purchase.Even this sum is brought down on the basis offuture uncertainties.
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Contd
This method is illustrated by following the formula
Known as Lord Wrights Formula:
(A-E) x Y=Total compensation for loss of dependency aswell as loss to the estate;
A represents the amount of net wages which thedeceased was earning;
E represents the expenditure incurred by the deceasedfor his own self and;
Y represents the number ofyears purchase.
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Discounting Method
Under discounting method,the claims are grouped
under two heads:
1.The sums,the deceased would have probably appliedout of his income to the maintenance of his wife andfamily if he had not been killed and would have lived
his full span of life;
2.The additional savings which the deceased would ormight have left but for premature death and wouldhave probably accrued to his wife and family.
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Interest capitalisation Method
According to this method the annual loss to thedependants by the death of the deceased is determinedand compensation is awarded in a sum which wouldfetch that amount of interest annually.
It may be noted that his method is rarely used by thecourts.
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THANKS