Shahid Ali vs Tota Ram & Ors.
2010 Latest Caselaw 3042 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of Reserve: May 20, 2010
                                              Date of Order: July 2, 2010
FAO No. 398 of 1996
%
                                                              02.07.2010

SHAHID ALI                                            .... Appellant
                          Through: Mr. Y.R. Sharma, Adv.

             Versus

TOTA RAM AND ORS.                                        ... Respondents
                          Through: None.


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. This appeal has been preferred by the claimant against Award

dated 19th July, 1996 whereby the learned Tribunal awarded a sum of Rs.

50,000/- as compensation to the claimant.

2. The brief facts relevant for the purpose of deciding this appeal are

that on 17th August, 1987, the claimant was going towards JPN Hospital

on foot, when he reached near Turkman Gate and J.L.N.Marg crossing, a

three wheeler scooter bearing No. DHR 1475, driven by respondent No.

1, in a rash and negligent manner, hit him and caused the accident. The

impact was quite forceful and the appellant received serious grievous

injuries on his person. He was removed to JPN Hospital. The injury

received by him was „compound fracture of both legs. From JPN

Hospital, he was removed to St. Stephens‟ Hospital. He was operated

upon twice. Bone-grafting and k-nailing had to be done. Steel rod was

inserted in the leg of the appellant to fix it. However, despite all efforts,

the appellant‟s lower limb did not recover fully and he was examined by

Medical Officer of Safdarjung Hopital who assessed disability of the

appellant to the tune of 65%. At the time of accident, the appellant was

working with M/s G.K. Enterprises as a Helper on a monthly salary of Rs.

900/-. The fact of his being employed with M/s. G.K. Enterprises was

proved by examining an official of M/s. G.K. Enterprises and his salary

was also proved before the Tribunal. It was also proved that after the

accident, his service was terminated as he had become unfit to do the job

of Helper because both of his legs had become dis-functional. He was

not able to perform the duties of a Helper. The Tribunal awarded a sum

of Rs. 5,000/- to the appellant under the head of expenses on medicines,

conveyance and special diet, a sum of Rs. 35,000/- as compensation for

his financial loss and a sum of Rs. 10,000/- as compensation for mental

shock, pain and sufferings. Thus, the Tribunal awarded a sum of Rs.

50,000/- as the total compensation making respondents No 1,3 and 4

jointly and severally liable to pay this compensation amount. The

insurance company‟s liability was considered to be limited to Rs.

50,000/-. The appellant was allowed 12% interest on this amount from

the date of filing of the petition till the date of award and for future

period, if the payment of awarded amount was not made within 30 days.

3. It is submitted by counsel for the appellant that the Tribunal had

not given basis for awarding Rs. 35,000/- only as compensation for

financial loss. It was the case of the appellant that he lost 100% of his

capacity to earn and in view thereof award of Rs. 35,000/- was too

meager. There was no rationale for awarding Rs. 35,000/-.

4. A perusal of the award would show that the Tribunal considered

the disability certificate issued by Dr. Dharmender Kumar, Medical

Officer of Safdarjung Hospital and found that in the disability certificate,

it was mentioned that in the right lower limb, there was Post Polio

Residual Paralysis and there was fracture on both bones of the left leg

resulting into total permanent disability of 65%. Considering this the

Tribunal observed that it was not a case where the injured had suffered

permanent disability due to accident, but, he was already disable to some

extent due to Post Polio Residual Paralysis on right lower limb. The

Tribunal thus awarded a lumpsum of Rs. 35,000/- towards financial loss.

5. I consider that the Tribunal was supposed to see the impact of the

accident on the injured. Even if one leg of the injured was already

suffering from Post Polio Residual Paralysis, the other leg of the injured

was quite healthy and functional with the result that the injured was able

to earn his livelihood by working as a Helper using healthy leg fully &

polio affected leg partially. The accident crippled him totally and

fractured his right leg, already partially dysfunctional. The left leg, which

was healthy, was also made dysfunctional by the accident with the result

that the injured lost capacity to work even as a Helper. He was

terminated from the job because of his inability to perform the duties of a

Helper. Under these circumstances, I consider that the Tribunal should

have granted compensation taking into account the loss of income &

livelihood suffered by the injured.

6. In K. Janardhan Vs. United India Insurance Co. Ltd & Anr., V

(2008) SLT 409, the Supreme Court had considered the case of an injured

who suffered serious injury and his right leg was amputated up to knee

joint. The High Court in appeal had accepted the plea that the loss of leg

due to amputation resulted into 60% reduction in the earning capacity and

compensation was reduced accordingly. The Supreme Court restored the

order of the Commissioner under Workmen Compensation Act observing

as under:

"3. The learned Counsel for the appellant has raised only one argument during the course of the hearing. He has submitted that the claimant - appellant being a tanker driver, the loss of his right leg ipto facto meant a total disablement as understood in terms of Section 2(1)(e) of the Workmen's Compensation Act and as such the appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo V. Srinivas Sabata & Anr., (1976) 1 SCC 289. The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under:

"The expression "total disablement" has been defined in Section 2(1)(e) of the Act as follows: "(1)' total disablement' means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement."

It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the

accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workman in this case is carpenter by profession.... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only."

This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less that 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.

4. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act, 1988 would show that the appellant would now be disqualified from even getting a driving licence."

7. In the present case the injured, who before accident was working

as a Helper, because of accident and injuries, was rendered unfit for the

work of Helper. I, therefore, consider that it was a case where the injured

had suffered total disability and the compensation should have been

granted accordingly, irrespective of the fact that his one leg was partially

dysfunctional due to Polio, even prior to the accident. The age of the

injured was 20 years at the time of accident. The compensation was

required to be awarded to the injured on the basis of structured formula.

His income was Rs. 900/- per month. The annual income would be

10,800/-. In terms of Supreme Court judgment in Sunil Kumar vs. Ram

Singh Gaud, IV (2007) ACC 416 SC, 1/3rd was required to be deducted

towards miscellaneous expenses. Thus, the loss of annual income would

be Rs. 7,200/-. The multiplier in this case would be 18. Thus, total

compensation awardable to the appellant for loss of income would be Rs.

7,200/- x 18 = Rs. 1,29,600/-. He was entitled to Rs. 15,000/- for pains

and sufferings and Rs. 5,000/- towards medicines. The award of the

Tribunal is modified accordingly. The injured would be entitled to a

compensation of Rs. 1,29,600/- + Rs. 5,000/- + Rs. 15,000/- = Rs.

1,49,600/-, say Rs. 1,50,000/-.

8. The insurance company in this case h ad pleaded limited liability of

Rs. 50,000/-. A perusal of the policy Ex. RX would show that the

insurance company in this case had charged premium of Rs. 40/- from the

insured i.e. owner. The premium of Rs. 40/- was applicable in case of

"Act Only Liability". The "Act Only Liability" was not Rs. 50,000/-

even in 1987 when accident took place. Motor Vehicle Act, 1939 had

been amended in August 1982 by amending Act No. 47 of 1982 and the

minimum liability of insurance company was increased from Rs. 50,000/-

to Rs. 1,50,000/- w.e.f. 1st September, 1982. I, therefore, consider that

the insurance company would be liable to make payment of enhanced

compensation to the claimant as per this order.

9. The claimant would be entitled to interest over this enhanced

amount @ 7 per cent from the date of award till the date of realization.

July 2, 2010                           SHIV NARAYAN DHINGRA, J.
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