Saleem Khan vs Sri Suresh & Ors.
2011 Latest Caselaw 5289 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                          MAC APPEAL No.54 OF 2009


                                        Reserved on: 23.09.2011
                                      Pronounced on: 01.11.2011

SALEEM KHAN                                         ...... Appellant

                           Through:   Mr. S.N. Parashar, Advocate

                                Versus

SRI SURESH & ORS.                               ...... Respondents

                           Through:   Mr. K.L. Nandwani with Mr.
                                      Sanjay Relan, Advocates for
                                      R-3



CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                    No
2.     To be referred to the Reporter or not ?         No
3.     Whether the judgment should be reported
       in the Digest ?                                 No

M.L. MEHTA, J.

1. This is an appeal directed against the impugned award

dated 29.9.2008 passed by learned Motor Accident Claims

Tribunal ("the Tribunal" for short) whereby a sum of `2,01,070/-

was awarded by the Tribunal to the appellant/ claimant as

compensation in a Claim Petition No.505/06 which he had filed for

seeking compensation on account of injuries sustained by him in

a road accident which took place on 13.02.2006 when he was on

a bicycle and he was struck by a truck bearing registration

number DL-IG-2695 being driven by respondent Suresh allegedly

in a rash and negligent manner. The said compensation of

`2,01,070/- is made up of `1,29,532/- on account of permanent

disability; `11,538/- towards medical treatment; `10,000/-

towards conveyance and special diet and `50,000/- on account of

pain and suffering and loss of amenities of life. The present

appeal has been filed by the claimant/ appellant seeking

enhancement of compensation. The main grievance of the

appellant/ claimant is that the learned Tribunal has failed to

appreciate that he has suffered amputation of his right leg and so

was not able to perform his job of salesmanship and further that

he has suffered disability to the extent of 50%, but the Tribunal

has reduced the same to 30%. It was also his grievance that the

Tribunal has erred in not considering his income to be `8,000/-

per month from salesmanship and deducted 1/3rd thereof towards

his personal living expenses, compensation of `50,000/- towards

loss of amenities of life and pain and suffering is also alleged to

be on lower side. The next grievance of the appellant is that the

Tribunal has not considered that he would be required to use

artificial limb which will cost more than ` 1 lac and it will have to

be changed the same from time to time. The awarding of

compensation of `10,000/- towards conveyance and special diet is

also alleged to be on much lower side.

2. With regard to the treatment, the appellant has placed on

record medical bills showing the expenses incurred in the sum of

`11,538/-. This being the entire amount incurred on account of

medical treatment, the same was granted by the Tribunal. I

consider that the same does not suffer from any infirmity.

3. The Tribunal has awarded `1,29,532/- as compensation for

permanent disability taking the same to be 30% as loss of earning

capacity against the disability of 50% below knee as per the

disability certificate proved by the doctor. The doctor who

appeared in the witness box was cross examined and deposed

that the disability on the earning capacity of the injured was to

depend on the kind of work which he was doing. The Tribunal has

recorded the finding that since the appellant has failed to prove

on record the kind of work he was doing, he could still carry on

the same work which he was doing though not with the same

efficiency and strength. Based on these observations, he

assessed the loss of earning capacity to the extent of 30%.

Though the appellant stated to be working as salesman and

earning `8,000/- per month, but he failed to prove the same

before the Tribunal and also did not assert the same before this

Court. In such circumstances, there was no illegality

committed by the Tribunal in assessing the loss of earning

capacity to be 30%.

4. It is settled law that in all injury cases, assessment of

disability does not impact the earning capacity and that the

disability has to be seen in the context of the particular

occupation or the nature of avocation of injured. It is not that in

every case when a disability certificate states that the injured has

suffered permanent disability to the extent of 50% below knee,

the same would be with reference to the whole body. The

disability of a limb or any part of the body has to be seen as total

percentage of the limb and obviously cannot be assumed to the

extent of disability of full body. The extent of permanent disability

of the limb cannot be considered to be the functional disability of

the body nor it could be assumed to result in corresponding

incident of loss of earning capacity, as disability would not have

prevented him from carrying on his avocation of salesmanship,

though it may impede his smooth functioning. In the absence of

there being any cogent evidence on record with regard to his

avocation and assuming the same to be salesmanship, the

permanent disability of 50% of below knee was rightly taken as

30% functional disability and also loss of future earning capacity.

5. In the absence of there being any evidence with regard to

the income of the appellant, the Tribunal has rightly taken

prescribed minimum wages and has also given due consideration

to the increase in minimum wages by taking the average of the

same. He has rightly concluded the loss of monthly income by

adding actual income at the time of disability of the appellant/

claimant and double the amount of minimum wages and by

dividing the same by 2. In this manner, he arrived at monthly

average income of the appellant to be `4,906.50 paise.

6. The Tribunal has made a deduction of 1/3rd from his income

as towards miscellaneous expenses. Learned counsel submitted,

and rightly so, that in case of permanent disability, the

beneficiary was the victim who was surviving all the deprivation

and the Tribunal was not required to made deduction on this

account. In that view of the matter, the Tribunal seems to have

erred in making deduction of 1/3rd on account of miscellaneous

expenses. The age of the appellant being 45 years, the multiplier

to be applied was 13 in view of the decision of the Supreme Court

in the case of Sarla Verma and others v Delhi Transport

Corporation and another [2009 INDLAW SC 488] and not 11 as

applied by the learned Tribunal. Thus, the Tribunal seems to have

erred in assessing the compensation on account of permanent

disability. The same is assessed at `7,65,336/- [4906x12x13].

7. The Tribunal has awarded `10,000/- only as towards

conveyance and special diet. Keeping in view the injuries

sustained by the appellant which comprised of amputation and

long hospitalization, awarding of sum of `10,000/- on both the

counts seems to be on lower side. A sum of `15,000/- each is

assessed as compensation towards conveyance and special diet.

The compensation of `15,000/- for pain and suffering and loss of

amenities of life also appears to be on lower side. The same is

assessed at `1 lac.

8. In view of above discussion, the appellant/ claimant is

entitled to total enhanced compensation of `7,30,804/- which the

respondent nos.3 being the Insurer is to pay to the claimant/

appellant within a period of 30 days from today and thereafter

with interest @ 7.5% per annum till the payment.

9. The appeal stands disposed of.

M.L. MEHTA (JUDGE) November 01, 2011 rd