Delhi High Court
United India Insurance Co. Ltd. vs Rama Swamy & Ors on 13 January, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11th January, 2012
Pronounced on: 13th January, 2012
+ MAC APP. 328/2011
UNITED INDIA INSURANCE CO. LTD. ..... Appellant
Through: Mr. D.D. Singh Advocate with
Mr. Navdeep Singh, Advocate.
versus
RAMA SWAMY & ORS ..... Respondent
Through: Mr. Nitinjya Chaudhry, Adv.
with Mr. Aatriya Singh, Adv.
for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant United India Insurance Co. Ltd. seeks reduction
of compensation of ` 4,35,779/- awarded to the first Respondent
in respect of the injuries suffered by him in a motor accident,
which took place on 11.08.2006 while the first Respondent was
crossing the road.
2. The Appellant suffered multiple grievous injuries i.e. compound
fracture BB right leg with fracture dislocation of surgical neck
right humerus, deep wound and laceration on the left side of the
forehead. The first Respondent was removed to AIIMS. He
was then shifted to Safdarjung Hospital where he remained
admitted from 12.08.2006 to 20.08.2006. He was on leave from
the date of the accident till 15.03.2007. The first Respondent
received treatment as an outdoor patient from 15.03.2007 till
23.07.2007. The treatment continued even thereafter. The first
Respondent suffered permanent disability in respect of the right
upper limb and the right lower limb to the extent of 28%. The
disability certificate Ex. PW-1/15 describes the disability as
under: -
"Old fracture surgical neck rt. humerus and
fractured of both bone rt. leg. With residual
stiffness right shoulder and right ankle
He/She is a physically handicapped and has 28%
(TWENTY EIGHT PERCENT ONLY) permanent
physical impairment in relation to his/ her RIGHT
UPPER LIMB AND RIGHT LOWER LIMB"
3. The Tribunal awarded compensation of ` 4,35,779/- with
interest @ 7.5% per annum under various heads, which are
extracted hereunder: -
Sl. No. Compensation Head Amount (`)
1. On account of 3,13,384.00
permanent disability
2. Loss of income 42,395.00
3. On account of medical 10,000.00
expenses
4. Loss of amenities 20,000.00
5. Pain & Suffering 30,000.00
6. Special diet and 20,000.00
conveyance
Total 4,35,779.00
4. Learned counsel for the Appellant contends that in case of Raj
Kumar v. Ajay Kumar & Anr., (2011) 1 SCC 343 it was brought
out that in order to get compensation for a permanent disability
it has to be established that the functional disability resulted into
loss of earning capacity. It is urged that the first Respondent
was an employee of Municipal Corporation of Delhi and apart
from the loss of leave, there was no loss of income from date of
accident till the date of his retirement. Therefore, the
compensation of ` 3,13,385/- on account of permanent disability
was not permissible.
5. There is no cross Appeal filed by the first Respondent. The
learned counsel for the first Respondent, however, submits that
he can resist the Appeal pleading enhancement of compensation
under the heads he was granted low compensation and assessing
grant of compensation under the heads where it was not
considered. He submits that the compensation awarded towards
loss of amenities, pain & suffering, special diet and conveyance
was on the lower side considering the prolonged duration of
treatment taken by the first Respondent both as an indoor and
outdoor patient. In my view without filing a Cross Appeal, the
first Respondent can justify and plead that the overall
compensation awarded by the Tribunal was just and proper. Of
course, if any Claimant seeks enhancement, he would be under
an obligation to file Cross Objections/Appeal.
6. The first Respondent filed his affidavit Ex. PW-1/X and entered
the witness box as PW-1. He testified as under: -
"3. I state that in the accident, I suffered
multiple grievous injuries. I was rushed to the
casualty of AIIMS where MLC was prepared, there
being no bed available in the hospital, I was
referred to Safdarjung Hospital, where I remained
under treatment as indoor patient from 12.08.2006
to 20.08.2006. I further state while under
treatment at Hospital, I learnt that I had suffered
compound fracture B B right leg along with
fracture dislocation of surgical neck right
humorous deep wound and laceration on the left
side of the forehead along with minor injuries all
over the body. The certified copy of the MLC is
Ex. PW1/1. I have either submitted the original
discharge summary of the Safdarjung Hospital to
my employer or same has been misplaced, the copy
of discharge summary is mark X1. At the time of
discharge, my right leg was under plaster from
below hip upto toe. I was advised to remain on
strick bed rest while on prescribed medicines, and
to attend Ortho OPD for review on Friday/
Tuesday.
4. I state that on 31.08.03 while I was confined
to bed at home, I developed severe pain on my
affected leg, I was taken to Dr. Sandeep Gupta of
Jeewan Hospital and Nursing Home, Jeewan
Nagar, New Delhi, where doctor advised operation
which would cost ` 1,00,000/- (Rupees One Lac). I
conveyed that I am a poor person and do not have
that much amount. I was referred to Govt.
Hospital. The original of the advised rendered by
Doctor Sandeep Gupta of Jeewan Hospital and
Nursing Home has been misplaced, the photocopy
of the same is Mark-X2.
5. I state that it was decided by the family, to
take me to the native place i.e. Village-
Vandipalyayam, District-Villupuram, Tamilnadu,
for further treatment at Rajah Muthiah Medical
College & Hospital, Annamalainagar, Tamilnadu.
6. I state that on 02.09.06 I along with my wife
and two sons left New Delhi for villupuram for my
treatment at Rajah Muthiah Medical College &
Hospital, Annamalainagar, Tamilnadu. The
original of the Railway Ticket for journey is
Ex.PW1/2.
7. I state that we reached our native place on
03.09.06 and I was got admitted to Rajah Muthiah
Medical College & Hospital, Annamalainagar,
Tamilnadu on 04.09.06 for further treatment.
8. I state that I remained under treatment as
indoor patient at Rajah Muthiah Medical College
Hospital, Annamalinagar from 4.09.2006 to
26.09.2006. I further state that the original
discharge summary was either submitted to the
employer or same has been misplaced, the
photocopy of discharge summary is mark-X3.
While I was under treatment, an operation was
advised. I was asked to arrange and deposit `
15,000/- for the operation. As I could not arrange
the required sum, I was discharged from the
hospital on 26.09.06 with advised to remain on
strict bed rest, while on prescribed medicines and
to undertake physiotherapy exercises and to seek
admission for operation on arrangement of the
requisite amount.
9. I state that since I could not arrange for
requisite amount for the operation, I went for
Ayurvedic Treatment at my Native Place. I
remained under Ayurvedic Treatment at my native
place, such as bandages on affected leg and hand
after application of Ayurvedic paste and oral
medicines for about five months. There was
sufficient improvement in my general condition. I
returned back to New Delhi on 01.03.2007.
10. I state that though I was not physically fit to
resume duty, to avoid loss of leave, I was permitted
to join duty w.e.f. 15.03.2007.
11. I state that during the period 15.03.2007 till
23.12.2007. I used to take medicines prescribed
and undertake physiotherapy exercises as advised.
However, despite medication and physiotherapy
exercises, pain, subsisted and I was not able to
move about freely, I therefore, left New Delhi in
third week of December 2007 for Annamalinagar,
Tamilnadu for further checkup, advise and
treatment. I was treated as OPD patient of Rjah
Muthiah Medical College Hospital,
Annamalinagar from 24.12.2007 to 18.02.2008.
The original nine OPD cards of Rajah Muthiah
Medical College Hospital, Annamalainagar are
Ex.PW1/3 to Ex.PW1/11.
12. I state that I returned to New Delhi in the
last week of February 2008 and resumed duty on
01.03.2008. I remained on leave firstly from
22.08.06 to 14.03.07 and secondly from 23.12.07
to 28.02.08.
13. I state that on returning back to New Delhi
in the last week of February 2008, since I was
feeling discomfort in movement, pain in the
affected part of the body. I of my own approached
department of Physical Medicine and
Rehabilitation Safdarjung Hospital for further
advise treatment and grant of Disability Certificate
on 01.03.2008. The doctors advised for X-rays of
the affected part of the body, the original advise is
Ex.PW1/12. The doctors on receiving the report of
X-Rays and on my physical examination on
08.03.08, carried out the assessment for grant of
Disability Certificate. The originals of advised for
X-Ray and assessment recorded by the doctors of
Safdarjung Hospital on two cards are Ex. PW1/13
and Ex.PW1/14 respectively.
14. I state that the doctors of Physical Medicine
and Rehabilitation Department of Safdarjung
Hospital, despite having taken out the X-rays on
01.03.2008 and physical Assessment on
08.03.2008 did not issue the disability certificate
and advised me to obtain orders of the court where
compensation claim was pending for directions to
be hospital for issuing disability certificate. On
my application the Hon'ble Tribunal by its order
dated 19.04.2008 directed the medical
superintendent Safdarjung Hospital to issue the
Disability Certificate. In case petition is found to
be suffering for any permanent disability. In
pursuance to the order of this Hon'ble Court, the
Doctors of Safdarjung Hospital issued the
disability certificate on 09.05.2008. I have
brought the original disability certificate along
with the photocopy of the same is Ex.PW1/15. The
disability has been assessed as permanent physical
impairment in relation to right upper limb and
right lower limb as 28% (Twenty Eight percent
only). I state that the disability suffered is much
more then what has been stated in the disability
certificate. The court may make its own
observation on seeing my physical condition."
7. In Raj Kumar v. Ajay Kumar & Anr. (supra) it was held that in
the disability certificate the extent of disability of a limb cannot
be assumed to be the extent of disability of whole body. The
relevant portion of the report in Raj Kumar v. Ajay Kumar
(supra) is 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 ability (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 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."
8. Turning to the facts of the case, it is evident that the first
Respondent was employed as a Beldar and was aged about 54
years on the date of the accident. Apart from the leave taken by
him, it has also come on record that he was not paid salary for
the period of November, 2006 to March, 2007 for which he was
entitled to be compensated and has been so done by the
Tribunal. But, he did not come out with any material to show
that there was loss of any salary till the date of his retirement.
Thus, upto the age of 60 years there was no loss of earning
capacity to the first Respondent and he was not entitled to any
compensation for the same.
9. Government employees whether retiring from a high post or a
low post, carry out their profession even after the date of
superannuation provided he/she possesses good health. The
permanent disability in the left upper and lower limb to the
extent of 28% would definitely affect his earning capacity. In
the absence of any expert evidence led by the first Respondent,
I would reduce the loss of earning capacity to 14% in respect of
whole body and award a compensation of ` 8,479/- x 12 x 9 x
14 ÷ 100 = 1,28,200/-. The compensation is reduced from `
3,13,384/- to ` 1,28,200/-.
10. The first Respondent's testimony that he was looked after by his
wife as an attendant-cum-nurse during the period of his
hospitalization and then while he was on bed rest was not
challenged in cross-examination. He estimated the monetary
value of the services rendered by his wife to him @ 5,000/- per
month. In the case of Delhi Transport Corporation and Anr. v.
Lalita, AIR 1981 Delhi 558 it was held that a Claimant has to be
compensated for the gratuitous services rendered by his family
members. Considering the nature of injuries, I would value the
services rendered by a family member @ ` 2,000/- per month
for a period of six months as ` 12,000/-. The compensation
awarded towards loss of amenities of ` 20,000/- is on the lower
side. It needs to be enhanced to ` 40,000/-. The overall
compensation is computed as under: -
Sl. Compensation Granted by Granted by
No. Head Tribunal (`) High Court (`)
1. On account of 3,13,384.00 1,28,200.00
permanent disability
2. Loss of income 42,395.00 42,395.00
3. On account of 10,000.00 10,000.00
medical expenses
4. Loss of amenities 20,000.00 40,000.00
6. Pain & Suffering 30,000.00 30,000.00
7. Special diet and 20,000.00 20,000.00
conveyance
8. For attendant 12,000.00
services rendered by
family member
Total 4,35,779.00 2,82,595.00
11. The compensation is thus reduced from ` 4,35,779/- to `
2,82,595/-.
12. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
JANUARY 13, 2012
hs
