Delhi High Court
Satish Kumar vs Praful Kumar & Ors on 23 November, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18th November, 2011
Pronounced on: 23rd November, 2011
+ MAC APP. 847/2010
SATISH KUMAR ..... Appellant
Through: Mr. G.D. Mishra Advocate.
Versus
PRAFUL KUMAR & ORS. ..... Respondents
Through: Mr. Manoj R. Sinha, Advocate with
Mr. Mohan Babu Agarwal, Advocate
MR. Harkesh Chand Aggarwald
Advocate for R-3/NIC.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order?
2. To be referred to the Reporter or not?
3. Whether the Order should be reported
in the Digest?
JUDGMENT
G. P. MITTAL, J.
1. This Appeal is for enhancement of compensation for the injury
suffered by the Appellant Satish Kumar in an accident which
took place on 11.03.2007 at about 11:25 AM with the
motorcycle bearing No.DL-9SP-2987 on which the Appellant
was travelling as a pillion rider. The motorcycle was struck by
a Maruti car bearing No.HR-26-AH-8047 which was driven by
Respondent No.1 and owned by Respondent No.2 and insured
with Respondent No.3 Insurance Company. The Appellant was
taken to Safdarjung Hospital where he was medically examined
vide MLC bearing No.44671/2007. He suffered supracondylar
fracture femur right with condyle fracture tibia right. He was
operated initially in Safdarjang Hospital on 12.03.2007 after
which he was discharged from the Safdarjang Hospital on
20.03.2007 and was then admitted in Sinha Fracture and
Surgical Hospital for 18 days where plates inserted in his right
leg.
2. The Tribunal found that the accident took place on account of
rash and negligent driving by Respondent No.1. By impugned
award, the Tribunal granted the following compensation:-
1. Medicines & Treatment ` 80,000/-
2. Loss of Income ` 29,000/-
3. Pain & suffering ` 25,000/-
4. Conveyance & special diet ` 16,000/-
TOTAL ` 1,50,000/-
3. The Appellant's grievance is that he was not granted any
compensation towards the permanent disability, future treatment
and expenditure for the services of the attendant. It was urged
that the deduction was made in the monthly salary while
awarding loss of income as the Appellant's monthly salary as
per the salary certificate was ` 7437/- per month but he was
granted the compensation taking the salary at ` 4720/- per
month.
4. On the other hand, it is urged by the learned counsel for
Respondent No.3 that the compensation awarded is just and
reasonable which does not call for any enhancement.
5. Photocopy of a disability certificate issued by the Rao Tula
Ram Memorial Hospital, Jaffarpur, New Delhi on 06.10.2009
i.e. after the decision of the Tribunal, was placed on record. It
is important to note that the Appellant was employed as a
Safaikaramchari in Municipal Corporation of Delhi (MCD) and
he continued to work as such till date. It was conceded by the
learned counsel for the Appellant that his job was not affected
but he is disabled for all times to come. In my view, the
Appellant cannot be granted any compensation for loss of
earning capacity as he continued to get the same salary, even his
future prospects in the form of increment etc. is not affected. It
is a different matter that he would be entitled to the
compensation for loss of amenities in life which, I would deal a
little later. At this moment, it would be relevant to refer to the
latest judgment of the Supreme Court in Raj Kumar v. Ajay
Kumar & Anr. (2011) 1 SCC 343, where it was laid down that,
for awarding compensation in case of permanent disability, the
Court has to find out the functional disability which reduces the
earning capacity. It would be fruitful to extract Paras 13, 14
and 15 of the report 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."
15. It may be noted that when compensation is
awarded by treating the loss of future earning
capacity as 100% (or even anything more than
50%), the need to award compensation separately
under the head of loss of amenities or loss of
expectation of life may disappear and as a result,
only a token or nominal amount may have to be
awarded under the head of loss of amenities or
loss of expectation of life, as otherwise there may
be a duplication in the award of compensation. Be
that as it may."
6. Thus, there is no manner of doubt that the Appellant is not
entitled to any compensation for the permanent disability under
the head of loss of earning capacity.
LOSS OF INCOME
7. I have perused the last salary certificate Ex.PW-1/27 placed on
the Tribunal record. The Appellant's gross salary was ` 7437/-
for the month of February, 2007. There was deduction of `
592/- towards GPF, ` 2125/- towards advance obtained by the
Appellant and ` 10/- towards house rent paid by him to his
employer. This amount of ` 2717/- was part of the Appellant's
salary and could not have been deducted from the monthly
salary while awarding loss of income. Thus, instead of `
29,0000/-, the Appellant is entitled to a sum of ` 7437/- x 6 = `
44,622/- round off ` 45,000/-.
MEDICINES AND TREATMENT
8. The Appellant was awarded a compensation of ` 80,000/- on the
basis of bills of ` 75,711/- proved on record. The Appellant had
to undergo two surgeries, one in Safdarjang Hospital and the
other in Sinha Fracture and Surgical Hospital. The Appellant in
his Affidavit Ex.PW-1/A testified that he spent about `
1,00,000/- on his treatment, medicines and special diet. A sum
of ` 80,000/- towards medicines and treatment and ` 16,000/-
towards conveyance and special diet were awarded by the
Tribunal. The Appellant deposed that he was getting the regular
dressing through the nearby doctors. No medical evidence of
any future surgery was placed on record by the Appellant. The
Court, however, cannot lose sight of the fact that there is 44%
physical impairment in relation to his right lower limb as per the
Disability Certificate dated 06.10.2009 issued by the Medical
Board of Rao Tula Ram Memorial Hospital of Delhi
Government. The Appellant testified in his Affidavit that the
Permanent Disability Certificate was yet to be issued to him.
Since the Appellant's treatment was still going on, perhaps the
Disability Certificate could not be issued. The same is not
relevant for the purpose of assessment of the loss of his earning
capacity for the reasons stated earlier in this judgment, yet the
same is relevant for the purpose of considering whether the
Appellant would need some future treatment. There is
shortening of Appellant's leg. Even if, he was not to undergo
any further surgery, he would definitely require some
physiotherapy from time to time.
9. In Nagappa v. Gurudayal Singh (2003) 2 SCC 274 it was held
that it was not improper to take into account expenditure
genuinely and reasonably required to be incurred for future
medical treatment. Future medical expenses required to be
incurred can be determined only on the basis of fair guesswork
after taking into account increase in the cost of medical
treatment. In the absence of any evidence of future surgery, in
my view, the Appellant is entitled to a sum of ` 5,000/- towards
future medical treatment i.e. physiotherapy.
PAIN AND SUFFERING
10. A sum of ` 25,000/- awarded by the Tribunal seems to be just
and reasonable.
LOSS OF AMENITIES IN LIFE
11. As stated earlier, the Appellant suffered 44% physical
impairment in relation to his right lower limb. He cannot run,
squat, he cannot even walk without the help of the crutches. He
is therefore, entitled to another sum of ` 1,50,000/- (Rupees one
lac fifty thousand only) towards loss of expectancy and loss of
amenities in life.
ATTENDANT CHARGES
12. In his affidavit Ex.PW-1/A, the Appellant stated that he
engaged the services of an attendant for 50 days during his
critical condition and paid him @ ` 200/- per day. In his cross-
examination, the Appellant admitted that he had not placed on
record any proof regarding spending a sum of ` 10,000/- on
attendant. In the absence of any documentary evidence, the
Tribunal perhaps did not award any amount for the services of
an attendant. In the absence of any documentary evidence one
cannot be sure whether the Appellant engaged an attendant on
payment of any charge. At the same time, it is established on
record that the Appellant remained admitted for 09 days in
Safdarjang Hospital and then for 18 days in Sinha Fracture and
Surgical Hospital. The Appellant then had to visit doctor for
dressing. Considering the nature of injury in the left leg
resulting in 44% physical impairment and the fact that even
now he can only walk with crutches, it has to be believed that
he was accompanied by some attendant whether a paid one or a
family member.
13. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981
Delhi 558, this Court held that there cannot be deduction if
domestic help is obtained from a family member. The High
Court observed as under:-
".......A wrong doer cannot take advantage of this
„domestic element‟. If the mother renders service
to her, instead of a nurse, it is right and just that
she should recover compensation for the value of
the services that the mother has rendered to her.
Mother‟s services were necessitated by the wrong
doing and the injured should be compensated for
it. (Cunnigharn v. Harrison 3 All E.R. 463) The
services of a wife and mother are worth more than
those of a house-keeper because she is in constant
attendance and does many more things than a
house-keeper. (Regan v. Williamson (1976) 2 All
E.R. 241)."
14. The Appellant claimed attendant charges @ ` 200/- per day.
The minimum wages on an unskilled worker on the date of the
accident were ` 133/- per day. I award a compensation at this
rate i.e. ` 133/- x 50 = ` 6650/- round off ` 7,000/-.
15. As discussed above, the total enhanced compensation awarded
by this Court works out as under:-
Head Awarded Awarded Increase
by the by
Tribunal This Court
in (` ) in (` )
Medicines & 80,000/- 80,000/- NIL
Treatment
Loss of Income 29,000/- 45,000/- 16,000/-
Pain & suffering 25,000/- 25,000/- NIL
Conveyance & 16,000/- 16,000/- NIL
special diet
Loss of amenities in NIL 1,50,000/- 1,50,000/-
life
Future Physiotherapy NIL 5,000/- 5,000/-
Attendant charges NIL 7,000/- 7,000/-
1,50,000/- 3,28,000/- 1,78,000/-
16. The Tribunal awarded interest @ 9% per annum which seems to
be reasonable considering that the inflation is in double digit
and the Nationalized Banks are offering interest at this rate on
FDRs for a period of one year and above. The enhanced
amount of compensation i.e. ` 1,78,000/- (Rupees One lac
seventy eight thousand only) shall also carry interest @ 9% per
annum from the date of filing of the petition till realization of
the amount. Respondent No.3 M/s. National Insurance
Company Limited is directed to pay the enhanced amount
within a period of 30 days. 50% of the enhanced amount shall
be deposited in the Appellant's saving accounts in UCO Bank,
Delhi High Court Branch which the Appellant shall be entitled
to withdraw. Rest 50% shall be deposited in the form of FDR
in the said Bank for a period of five years. The Appellant shall
be entitled to interest on the amount which shall be credited in
his saving account on quarterly basis.
17. The Appeal is allowed and the impugned award is modified in
the above terms. No costs.
CM APPL.22372/2010 (for additional evidence)
18. This application has become infructuous and the same is
accordingly dismissed.
19. Copy of the order be sent to the Trial Court for information and
compliance.
(G.P. MITTAL)
JUDGE
NOVEMBER 23, 2011
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