Nirmal Kishore Khanna vs Kalu Ram @ Kalu Singh & Ors.
2011 Latest Caselaw 3745 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 04th August, 2011

+            MAC Appeal No. 84/2009 and CM No. 1704/2009


NIRMAL KISHORE KHANNA                           ...........Appellant
                 Through:            Mr.Sanjeev Mehta, Advocate.

                   Versus

KALU RAM @ KALU SINGH & ORS.          ..........Respondents
                  Through: Mr.    Kanwal      Choudhary,
                           Advocate for Insurance Co.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the Award dated 20.09.2010 vide

which the compensation has been awarded in favour of the

claimant who is the injured in this case. The petitioner/injured

had suffered an accident on 26.08.2004; initially 38% temporary

disability had been recorded qua the claimant. Thereafter, in

appeal the matter had been referred to the Medical Board of the

All India Medical Sciences (hereinafter referred to as „AIIMS‟); the

report of the AIIMS Hospital has since been received which has

reported a permanent disability of the petitioner at 35%; the

report states that the petitioner‟s case is of Post Truamatic

Osteoarthritis both hips; he is physically handicapped and there

is 35% permanent physical impairment in relation to his both

lower limbs; further, there is a note that this condition is not likely

to change.

2. Learned counsel for the petitioner is aggrieved by the

amount awarded under the head of "loss of earning capacity". His

contention is that amount awarded at ` 75,000/- has been

miscalculated; multiplier of 5 has also wrongly been applied. It

should have been 9 in view of the judgment of the Apex Court

reported in 2009 INDLAW Sarla Verma Vs. DTC' SC 488,

Supreme Court. This has been fairly conceded by the learned

counsel for the respondent. Keeping in view the medical

certificate which has reported the medical condition of the

petitioner and in view of the submissions made by the learned

counsel for the petitioner, the disability assessed at 10% by the

Tribunal calls for an interference; the permanent disability has

been assessed by the AIIMS Medical Board at 35% but keeping in

view the nature of the job that the petitioner was doing, he being

an LIC Agent, this court is of the view that the functional disability

of the victim should be categorized at 20%. In view of the

aforenoted contentions, the enhanced amount under the head of

"loss of earning capacity" will now read as:-

`12,500/- (salary) x 12 x 9 x 20/100 = ` 2,70,000/-

The sum of ` 75,000/- under this head is enhanced to

`2,70,000/-.

3 Learned counsel for the petitioner is also aggrieved by the

amount awarded under head of "Attendant charges". Attendant

Charges have been awarded at the rate of Rs. 100 per day for a

period of four months i.e. totaling `12,000/-. Keeping in view the

status of the petitioner whose salary had been assessed at `

12,500 per month and also the fact that the admission of the

patient in the hospital was for a period of two months, the

attendant charges calculated at the rate of Rs. 100/- per day for

four months is fair and calls for no interference.

4. The petitioner is also aggrieved by the amount awarded

under the head of "loss of income". His contention is that the loss

of income calculated for a period of eight month is counter to the

evidence produced by the petitioner; his contention being that he

had stayed away from work for about 23 months. Admittedly,

there is no such document to this effect. This amount awarded

under this head thus calls for no interference.

5. Petitioner is also aggrieved by the fact that no amount had

been awarded under the "loss of amenities to life"; his contention

being that he has suffered a permanent disability, he cannot enjoy

the amenities of life; he can never be a normal man. Admittedly,

no amount has been awarded under the head of "loss of amenities

to life" which the patient has suffered; the victim has become

permanently disabled and cannot make use of his lower limbs

because of the suffering of the hip joints; his permanent disability

at 35 % has been assessed; this court has noted that the

functional disability of the victim is assessed at 20 %; the victim

has been deprived of the benefits of a normal happy life; this court

is thus of the view that the award calls for an interference on this

count and a sum of Rs. 50,000/- is accordingly granted to the

petitioner under the head of "loss of amenities to life".

6. Award is modified accordingly.

7. No other modification is called for.

8. Appeal is disposed of in the above terms.

INDERMEET KAUR, J.

AUGUST 04, 2011 rb