Delhi High Court
Jaffar Abbas vs Mohan & Ors. on 19 December, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:7th December, 2011
Pronounced on:19th December, 2011
+ FAO 274/1999
JAFFAR ABBAS ..... Appellant
Through: Mr. H. R. Khan Suhel, Adv. with Mr.
Ankit Mishra & Mr. Anchit
Upadhayay, Neeraj Singh, Advocates.
Versus
MOHAN & ORS. ..... Respondents
Through: Mr. Kanwal Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Jaffar Abbas, who was working as a Constable in
Delhi Police seeks enhancement of compensation in respect of
the injuries suffered by him in a motor accident, which took
place on 11.06.1981. The Appellant was getting a salary of `
489.56 paise per month. His left leg was amputated and he
suffered 40% disability in relation to his left lower limb. He
claimed a compensation of ` 5,00,000/-. The Motor Accident
Claims Tribunal (the Tribunal) awarded a compensation of `
80,000/-, which is tabulated hereunder: -
Sl. Head of Compensation Compensation
No. granted by the
Tribunal
1. Pain & suffering ` 20,000/-
2. For purchase of medicines, ` 7,000/-
conveyance and special diet
3. Loss of leave (187 days) ` 3,000/-
4. Loss of future earning capacity ` 40,000/-
5. Loss of career prospects ` 10,000/-
Total ` 80,000/-
2. There is no challenge to the finding on the negligence, thus I
have to assess whether the compensation awarded is just and
fair.
3. The Tribunal in detail dealt with the injuries suffered by the
Appellant while discussing issue No.2, I would extract relevant
portion of the impugned award hereunder: -
"In support of this claim, petitioner examined
himself as PW7 and also examined Doctor from
Safdarjung Hospital PW6 and a witness of service
record from his office as PW2. Petitioner in his
evidence has reported that he remained in hospital
for about two months in which period he was
operated two times. Thereafter, another operation
was performed on 31.5.85. He remained on leave
for a period of one year. Due to injuries received
by him, he was given light duties. He deposed that
he spent ` 60,000/- to ` 70,000/- on medicines,
conveyance, special diet etc. It is further deposed
that due to this accident, his promotion has been
affected. As he suffered disability to the extent of
40% as his left foot has been amputated in the
hospital. In cross-examination, he further deposed
that in the hospital he was admitted on 14.6.81 and
after the first operation, a skin grafting operation
was performed and this treatment existed second
time. Thereafter, he remained on special leaves
without pay. He admitted that he has not filed the
bills of treatment in Court or any bills of
conveyance or special diet.
5. PW6 Dr. Sardar Singh who was a
Orthopedic Surgeon in Safdarjung hospital
deposed that he attended on the petitioner as it
was a case of crush injury of left foot. He was
operated on 22.6.81 and a gangrene affected fore-
foot was amputated. He was again operated by
him on 10.6.85 for a persistent wound infection.
He deposed that now the patient was without
forefoot on the left side. He proved the discharge
slip in the hands of Dr. Vinod Sakhija as PW6/A
and various statement papers running in 17 pages
as Ex. PW4/1 and Ex. PW6/B. He deposed that the
wound is still persists as a skin is very weak and
gave way three or four months and needs
permanent dressing. According to him this was a
case of permanent disability vide certificate issued
from LNJP hospital. Permanent disability is
assessed 40%. He recommended special diet to
the patient after each operation. In cross-
examination he stated that 40% disability was in
relation to the whole body."
4. The Appellant was working as a Constable in Delhi Police. He
is working as an Assistant Sub-Inspector now. In the case of
Ward v. James, (1965) 1 All ER 563 (CA) the Queen's Bench
held as under: -
"(iii) Loss during his shortened span. - Although
you cannot give a man so gravely injured much for
his „lost years‟, you can, however, compensate him
for his loss during his shortened span, that is,
during his expected „years of survival‟. You can
compensate him for his loss of earnings during
that time, and for the cost of treatment, nursing
and attendance. But how can you compensate him
for being rendered a helpless invalid? He may,
owing to brain injury, be rendered unconscious for
the rest of his days, or, owing to a back injury, be
unable to rise from his bed. He has lost everything
that makes life worthwhile. Money is no good to
him. Yet Judges and juries have to do the best they
can and give him what they think is fair. No
wonder they find it well nigh insoluble. They are
being asked to calculate the incalculable. The
figure is bound to be for the most part a
conventional sum. The Judges have worked out a
pattern, and they keep it in line with the changes in
the value of money."
5. In a latest judgment of Supreme Court in Yadava Kumar v.
National Insurance Co. Ltd., (2010) 10 SCC 341 it was
observed that while assessing compensation in accident cases
the High Court or the Tribunal must take a reasonable and
compassionate view of things. The Court must be liberal in
determination of quantum of compensation and not niggardly as
in a free country law must value life and limb on a generous
scale. Para 17 of the report is extracted hereunder: -
"The High Court and the Tribunal must realise
that there is a distinction between compensation
and damages. The expression compensation may
include a claim for damages but compensation is
more comprehensive. Normally damages are
given for an injury which is suffered, whereas
compensation stands on a slightly higher footing.
It is given for the atonement of injury caused and
the intention behind grant of compensation is to
put back the injured party as far as possible in the
same position, as if the injury has not taken place,
by way of grant of pecuniary relief. Thus, in the
matter of computation of compensation, the
approach will be slightly more broad based than
what is done in the matter of assessment of
damages. At the same time it is true that there
cannot be any rigid or mathematical precision in
the matter of determination of compensation."
6. In the case of Raj Kumar v. Ajay Kumar & Anr., (2011) 1 SCC
343, it was held that where a Claimant suffers a permanent
disability as a result of injuries the assessment of compensation
under the head of loss of future earning would depend upon the
effect and impact of his permanent disability on his earning
capacity. Para 13 & 14 of the report are extracted hereunder: -
"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.
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual
loss of earning capacity may virtually be hundred
percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a
clerk in government service, the loss of his left
hand may not result in loss of employment and he
may still be continued as a clerk as he could
perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in
the case of a driver or carpenter, nor 60% which is
the actual physical disability, but far less. In fact,
there may not be any need to award any
compensation under the head of 'loss of future
earnings', if the claimant continues in government
service, though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not be found suitable for discharging the
duties attached to the post or job which he was
earlier holding, on account of his disability, and
may therefore be shifted to some other suitable but
lesser post with lesser emoluments, in which case
there should be a limited award under the head of
loss of future earning capacity, taking note of the
reduced earning capacity."
7. The Appellant as PW-1 deposed that he remained in the hospital
for about 2 months during which he was operated upon. Second
operation was performed on 31.05.1985. His treatment is still
continuing and he had to take leave for about a year. It is also
deposed that he spent ` 60,000/- to ` 70,000/- on medicines,
conveyance and special diet. Due to this accident, his
promotion was affected. PW-2 SI Shiv Dhan Sharma apart
from proving the leave record of the period 1981 to 1986
deposed that after the accident 3 - 4 promotional tests held by
the department could not be taken by the Appellant on account
of the injuries in his left leg. This is an old case where the
accident took place in the year 1981. No positive evidence was
brought on record during inquiry before the Tribunal as to how
his promotion was affected and how much it was delayed.
Though, it was stated during the course of arguments that the
Appellant's batchmate had long back been promoted as Sub-
Inspector but there is no evidence on record in this regard. It is
borne out from the record that the Appellant's treatment
continued for quite a long time and PW-2's testimony that he
could not take 3 - 4 promotional tests held by the department
cannot be easily brushed aside. So, I have to make a guess work
that his promotion was delayed say by at least about 5 years and
he suffered financial loss also on account of the same.
8. As stated earlier the Appellant was working as a Constable in
Delhi Police. He cannot drive a motorcycle; he cannot even
drive a bicycle. He cannot run. He will always have difficulty
even in walking.
9. The Appellant who was working as a Constable in Delhi Police
and was entitled to reimbursement of medical expenses /
medicines obtained from an authorized hospital. He has not led
any evidence nor any bill placed on record in respect of the
treatment which was not paid by his employer. Still a person
cannot preserve all the bills and I would assume that he spent
something on the treatment.
10. In view of the injuries suffered and the treatment/operations
underwent by the Appellant, I would attempt to award the
compensation as tabulated hereunder: -
Sl. Head of Compensation Compensatio Compensatio
No. n granted by n granted by
the Tribunal this Court
1. Pain and suffering ` 20,000/- ` 20,000/-
2. Medicines, conveyance ` 7,000/- ` 5,000/-
& special diet (medicines)
` 2,000/-
(conveyance)
` 5,000/-
(special diet)
3. Loss of earning capacity ` 40,000/- ` 40,000/-
because of delayed
promotion
4. Loss of leave (187 days) ` 3,000/- ` 3,000/-
5. Career prospects ` 10,000/- ` 10,000/-
6. Disfigurement ` 25,000/-
7. Loss of amenities and ` 50,000/-
expectation in life
Total ` 80,000/- ` 1,60,000/-
11. The enhanced amount of compensation i.e. ` 80,000/- shall
carry interest @ 7.5% per annum from the date of filing of the
petition till the realization of the amount. Respondent No.3
New India Assurance Co. Ltd. is directed to deposit the
enhanced compensation within six weeks. 25% of the enhanced
compensation along with proportionate interest shall be released
forthwith. Rest of the amount shall be held in a Fixed Deposit
in UCO Bank, Delhi High Court Branch, New Delhi for a
period of 3 years.
12. The appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
DECEMBER 19, 2011/hs
