Delhi High Court
Surender vs Surender Pal Singh & Ors. on 2 December, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18th November, 2011
Pronounced on: 2nd December, 2011
+ MAC APP. 168/2011
SURENDER ..... Appellant
Through: Mr. Amit Kumar Pandey Advocate.
Versus
SURENDER PAL SINGH & ORS. ..... Respondents
Through: Mr. Sameer Nandwani, Advocate for
R-3/Insurance Company.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appeal is for enhancement of compensation for the injury
suffered by the Appellant in motor accident which took place on
16.03.2007. On the said date at about 11:45 AM the Appellant
along with Mahesh, Satish and Sanjay was proceeding to
Bahalgarh from Kumaspur Chowk, G.T.Road in a TSR No.HR-
69-5768. It is alleged that on account of the rash and negligent
driving of the TSR by Respondent No.1 Surender Pal Singh, it
overturned resulting in serious injuries on Appellant's person.
The Appellant remained admitted in Govt. Hospital in Sonepat
from 16.03.2007 to 23.03.2007 and then Safdarjang Hospital
from 31.03.2007 to 11.04.2007. The left hand had to be
amputated below the elbow resulting in 75% disability in
respect of the left hand.
2. In the absence of any evidence as to the Appellant's income, the
Tribunal assumed the minimum wages of an unskilled worker
i.e. ` 3470/- per month; took 75% permanent disability in
respect of the left upper limb; to be 40% in respect of the whole
body; applied the multiplier of 16 and granted ` 2,66,496/-
towards the loss of earning capacity. Since the Appellant could
not work for six months, a sum of ` 20,820/- was awarded
towards loss of income; ` 15,000/- towards special diet, `
15,000/- towards conveyance in addition to a sum of `
1,50,000/- towards mental pain and agony, physical
disfigurement and loss of amenities in life. The total
compensation was computed as ` 4,67,316/-.
3. In the Claim Petition, the Appellant gave the description of his
job as 'self employed'. In his testimony in the Court by way of
Affidavit he testified that he was working as a labourer and was
earning ` 5,000/- per month.
4. The Appellant's grievance is that the Tribunal erred in reducing
the functional disability to 40% as against 75% given in the
disability certificate. The loss of future prospects was not
considered and the sum of ` 1.5 lacs awarded as non pecuniary
damages towards pain and agony, disfigurement and loss of
amenities of life was on the lower side.
5. It is submitted by the learned counsel for the Appellant that the
Appellant was working as a construction worker and thus
amputation of left hand at elbow would result in 100%
functional disability. I would not agree. In the Claim petition
or even during evidence it was not the Appellant's case that he
was working as a construction worker.
6. On the other hand, it was stated that he was a 'self employed'
person. Moreover, even if, it is assumed that the Appellant was
working as a construction worker, he was to show as to what
alternative work he could carry and how much earning capacity
was affected.
7. In Raj Kumar v. Ajay Kumar & Anr. (2011) 1 SCC 343, the
Supreme Court held as under:-
"13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain
what activities the claimant could carry on in spite
of the permanent disability and what he could not
do as a result of the permanent disability (this is
also relevant for awarding compensation under the
head of loss of amenities of life). The second step
is to ascertain his avocation, profession and nature
of work before the accident, as also his age. The
third step is to find out whether (i) the claimant is
totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry
on the activities and functions, which he was
earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his
previous activities and functions, but could carry
on some other or lesser scale of activities and
functions so that he continues to earn or can
continue to earn his livelihood."
8. The Appellant's case set up during the arguments that he was
working as a construction worker appears to be an afterthought
in view of the earlier vague stand that he was a self-employed
person. Even if he was employed as a construction worker, he
could definitely work as a Salesman at any shop or do any other
work which would primarily involve use of just his right hand.
9. In the circumstances, the Tribunal rightly considered 40% as the
loss of earning capacity. Thus, the compensation towards loss
of earning capacity to the extent of ` 2,66,496/- was rightly
granted by the Tribunal.
10. Coming to the award of ` 1.5 lacs towards pain and suffering,
physical disfigurement and loss of amenities of life, I may say
that the Appellant would always have difficulty in carrying out
his day to day activities including driving a bicycle or using a
public transport.
11. In Oriental Insurance Company Limited v. Vijay Kumar Mittal
& Ors. 2008 ACJ 1300 after referring to a number of decision,
this Court awarded a sum of ` 2.5 lacs towards non pecuniary
damages.
12. In my view, the compensation of ` 1.5 lacs awarded under this
head needs to be raised. I award a sum of ` 50,000/- towards
pain and suffering, ` 1,00,000/- towards disfigurement and
another ` 1,00,000/- towards loss of amenities in life.
13. Respondents are jointly and severely liable to pay the enhanced
compensation of ` 1 lac with interest @ 7.5 % per annum from
the date of filing of the petition till realization of the amount.
Respondent No.3 United India Insurance Company Limited is
directed to deposit the enhanced compensation with Registrar
General of this Court within six weeks from today.
14. 25% of the enhanced amount shall be released to the Appellant
forthwith. Rest 75% along with proportionate interest shall be
held in FDR for a period of five years in any Nationalized Bank
preferred by the Appellant.
15. Appellant shall be entitled to interest on monthly /quarterly
basis. The Appellant shall not be permitted to obtain any loan
or premature encashment of the FDR.
16. Appeal is allowed and the impugned award is modified in above
terms.
17. Copy of the order be sent to the Trial Court for information.
(G.P. MITTAL)
JUDGE
DECEMBER 02, 2011/vk
