Mohammed Yunus vs Delhi Transport Corporation
1983 Latest Caselaw 395 Del

JUDGMENT

Charanjit Talwar, J.

1. The question arising for consideration in this appeal under Section 10 of the Letters Patent is whether the loss of earning capacity of the appellant Shri Mohd. Yunus aged 15 years at the time of accident resulting in his permanent disablement, has been correctly determined in the impugned judgment. The case of the appellant was that he was working as a tailor. The facts found by the Motor Accidents Claims Tribunal and affirmed by the learned Single Judge are that Mohd. Yunus suffered an injury to his left hand and the wrist in an accident on 19th February, 1965. The accident was due to rash and negligent driving of Shri Laxmi Chand driver of bus No. DLP 586 owned by the Delhi Transport Undertaking of the Municipal Corporation of Delhi.

2. The Tribunal accepted the testimony of Dr. R.K. Busaj (PW 7) who stated "the injured had a big lacerated wound from left elbow torsel aspect to knuckles" when brought to the casualty department of hospital. The doctor found "complete degloving of skin, over distal third of forearm and hand. All tendons over wrist and hand and distal third of forearm were exposed". It appears that in spite of six operations and plastic surgery carried out Mohd. Yunus hand could not be cured; the injury resulted in permanent disability of the wrist joint and fingers. Dr. Busaj (PW 7) was corroborated by Dr. M Section Rawat (PW 5) and Dr. Amir Chand Narula (PW 8) who categorically affirmed that Mohd. Yunus suffered permanent disability of his left hand because of the injury. Dr. Narula further opined that the injured has been permanently incapacitated to work as a tailor.

3. The learned Tribunal, however, found that the evidence produced by the petitioner that he was being paid Rs. 80/- per month as a tailor, was not satisfactory as no documents had been produced by his employer Shri Rattan Lal in support of the contention that he was being paid that amount. The fact that the appellant was a tailor was not challenged in his or his father's cross-examination. In the appellant's cross-examination the attempt was to show that he contributed to the accident. In his father's cross-examination it was brought out that the medical treatment given to the appellant was free.

4. The Tribunal awarded Rs. 1500/- for physical pain, agony suffering and Rs. 2500/- as compensation for permanent disability. The appellant had claimed Rs. 25,000/-.

5. The Tribunal while holding that it was a very difficult task to assess damages, referred to general principles for awarding compensation enunciated in various authorities cited before it. According to the Tribunal the factors to be kept in view are "(1) pain and suffering endured past, present, future, (2) inconvenience and loss of enjoyment of life sustained, past, present and future and injury to health and shortened expectation of life".

6. The learned Single Judge did not find any legal infirmity in the award. He was of the view that the Tribunal had awarded compensation in accordance with the correct principle of law. Dismissing the first appeal filed by Mohd. Yunus the learned Single Judge observed that on the record it Was to be held that injured party had failed to prove any special damages.

7. The principles noticed by the Tribunal and affirmed by the lesned Single Judge are unexceptionable. However, those principles are mainly to be applied for grant of compensation for physical pain, suffering, inconvenience and loss of enjoyment of life and further for shortened expectation of life. In a case where the injured who is employed suffers a permanent disability, his loss of earning capacity in the chosen avocation, profession or employment is necessarily to be found out. We final that this aspect has not been considered in the impugned judgment. The injured has deposed that he was working as a tailor. His father and his employer support him. It can safely be held that the appellant at the relevant time was working as a tailor probably as an apprentice without getting any wages. The Tribunal's finding that Mohd. Yunus was not able to prove that he was receiving Rs. 80/- per month cannot be construed to mean that he was not working at all. We find that no question was put to the appellant or his father of Shri Rattan Lal on this aspect. In this state of evidence it was incumbent on the Tribunal to find out the percentage of loss of earning capacity due to the injury resulting in permanent disability of Mohd. Yunus. Schedule I of the Workmen's Compensation Act, 1923 provides a guideline for this purpose. As per serial No. 4 of that Schedule for an injury like the one in the instant case, i.e., "loss of a hand or of the thumb and four fingers of one hand or amputation from 4--1/2 "below tip of olecranon", the percentage of loss of earning capacity has been assessed at 60 per cent. We note that this item has been detailed in amputation cases but the note below the Schedule makes it clear that complete and permanent loss of the use of any limb or member referred to in this Schedule is deemed to be the equivalent of the loss of that limb or member. The computation laid down can safely be kept in view while working out the percentage of loss of earning capacity in the present case. Even if it be assumed that the petitioner was not getting any emoluments when he met with the accident, the evidence produced on his behalf does show that he wanted to follow the avocation of tailoring. Obviously, because of his permanent disability the injured (the appellant herein) will not be able to carry on that avocation. He was just 15 years old and was expected in normal course to work up to about 60 years which is the normal life expectancy. Therefore, the loss of earning capacity is to be worked out for atleast 45 years. In our view a tailor in Delhi even if he is employed with another tailor would, on the average during his working life, earn Rs. 500/- a month. The loss of earning capacity at the rate of 60 per cent would thus roughly work out to Rs. 300/- per month, i.e., Rs. 3600/- for an year. On that basis the actuarial value calculated for the loss sustained for about 45 years would come to over one and a half lakhs. As the appellant filed the claim for Rs. 25,000/- only it is not necessary to calculate the lump sum compensation which could be awarded to him on the above basis. The learned Counsel for the appellant rightly confined the claim to that amount, i.e., Rs. 25,000/-.

8. Mr. Dhanda, learned Counsel for the respondents, however, urged that there was no material on the record for enhancing the amount of the award of Rs. 4,000/-. There is no force in this contention. On the record it is apparent that the correct principle for finding out the compensation was neither considered nor applied. Accordingly the impugned judgment is set aside.

9. Another contention which has been raised is that on the incorporation of Section 110-CC of the Motor Vehicles Act from 2nd March, 1970, the Tribunal ought to have awarded interest on the amount of the award from the date of institution of the claim under Section 110-A of the Act by the appellant. The claim was filed on 27th April, 1965, and the case was decided on 16th January, 1971.

10. Mr. Dhanda, learned Counsel for the respondents, was unable to urge any ground for not allowing interest.

11. For the reasons stated above, the appeal is allowed. The award of the Tribunal is increased from Rs. 4,000/- to Rs. 25,000/- with simple interest at 6 per cent per annum from 27th April, 1965, till the date of payment. If the appellant has received the amount of Rs. 4,000/- the same will be deducted from the amount of the award. Interest will be calculated accordingly. No order as to costs.