Raj Pal vs Dharampal & Ors
2012 Latest Caselaw 34 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision:3rd January, 2012
+       FAO NO.261/1999

        RAJ PAL                               ..... Appellant
                     Through:     Mr. J.S. Kanwar, Advocate

                     versus

        DHARAMPAL & ORS             ..... Respondents
               Through: None for Respondent No.1
                        Mr. Sudhir Kathpalia, Advocate for
                        Respondent No.2/MCD

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                              JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant seeks enhancement of compensation for having suffered injuries in a motor accident which took place on 24.06.1989. The Appellant sustained injuries on his right arm, fractured his right leg resulting into its shortening by 6 cm. (as per disability certificate Ex. PW-6/H). The Appellant also suffered a head injury and he stupor arose for a period of 5 days after the accident. After the accident, the Appellant was taken to SDN Hospital. He was referred to LNJP Hospital and then to GB Pant Hospital where he remained admitted till 04.07.1989. He was discharged from the Hospital by discharge summary Ex.

PW-6/A. The Appellant then remained admitted in Anand Polyclinic, Ghaziabad upto 08.07.1989. He was referred to Sir Ganga Ram Hospital where he remained admitted from 21.07.1989 to 02.08.1989. The Appellant remained on leave upto 02.01.1990. The impugned judgment is challenged on the finding of contributory negligence (as the Appellant was held guilty of contributory negligence to the extent of 30%) on the quantum of compensation.

2. It is urged by the learned counsel for the Appellant that there was no contributory negligence on the part of the Appellant; the accident took place only on account of rash and negligent driving of Truck No.DDL-4845 sudden application of brakes by the first Respondent, which was owned by the second Respondent (MCD). On quantum of compensation, it is contended that the compensation awarded is too low and meager. The Appellant has not been awarded any compensation on account of loss of earning capacity and loss of amenities in life in spite of the fact that he suffered 40% disability in respect of his right lower limb resulting in its shortening by 6 cm. The compensation awarded for conveyance and special diet was also on the lower side.

3. On the other hand it is submitted by the counsel for the Respondent that the accident took place on account of Appellant‟s negligence as is evident from the certified copy of the judgment dated 07.06.1997 Mark „A‟ whereby the first

Respondent was acquitted in respect of the criminal case under Section 279/ 338 IPC. It is contended by learned counsel for the second Respondent that the Appellant was working as a Constable in Delhi Police; he has not led any reliable evidence to prove that his promotion was affected on account of injuries suffered in the accident resulting into any financial loss. It is submitted that the accident took place in the year 1989 and considering the value of the currency at the time of award of ` 5,000/- towards conveyance and special diet was just and reasonable.

4. The Appellant examined himself as PW-6 and deposed that the driver of the Alwyn Nissan (Registration No.DDL-4845) came from behind at a very fast speed and overtook their two wheeler scooter. He suddenly applied brakes and halted the vehicle on the right side on account of abrupt halting of the vehicle their scooter hit the MCD vehicle (DDL-4845). This part of the Appellant‟s testimony was not challenged in cross-examination. Although, first Respondent Dharampal entered the witness box as RW1 and gave a different account of the accident. He deposed that the vehicle had to be stopped because of breakage of tow chain between vehicle No.DDL-4845 and DDL-4843. He testified that two wheeler scooter was being driven at a very fast speed. The scooter driver‟s attention was diverted on account of blowing of pressure horn by a Truck driver, who was passing by the side, which resulted in diversion of Appellant‟s

attention towards the Truck and the scooter collided against Truck No.DDL-4845. In cross-examination this witness admitted that the manner of accident was not stated in the written statement filed by the first Respondent. Moreover, the manner of the accident was not put to the Appellant in cross- examination, therefore, testimony of Dharampal (RW1) has to be rejected as an after thought.

5. By the impugned judgment the Tribunal held that acquittal of first Respondent in the criminal case would not affect the finding in the claim petition as the Appellant was not examined as a prosecution witness in the criminal case; Surat Singh, who was examined in the claim petition as RW2 did not support the prosecution version in the criminal case and was declared hostile. The Tribunal took into consideration the reports of the mechanical inspections Ex. P7 & P8, the site plan Ex. P7 (prepared in the criminal case) and opined that although the accident took place on account of sudden application of brakes by the first Respondent yet the Appellant also contributed to the accident as he was not in full control of the two wheeler scooter driven by him. The Tribunal, thus, assessed the negligence on the Appellant and the first Respondent to be in the ratio of 30:70. In my view the Tribunal‟s finding is logical and well reasoned. I affirm that there was 70% negligence on the part of the first Respondent.

6. The Tribunal by impugned judgment granted a compensation of ` 99,000/- and held that the Appellant was entitled to 70%

thereof i.e. ` 70,000/-. The compensation awarded by the Tribunal is extracted hereunder in tabulated form: -

          Sl. No. Compensation Head                        Amount (`)

          1.      For pain, suffering, immobility, past        40,000.00
                  and future.

          2.      For loss of earning                          12,000.00

          3.      For loss of expectation of life              20,000.00

          4.      Medicines                                    22,000.00

          5.      Conveyance and special diet                   5,000.00

                                                               99,000.00

7. The Appellant remained admitted in four Hospitals from 24.06.1989 to 02.08.1989. He was under treatment as an outdoor patient for about 6 months. Considering that the accident took place in the year 1989 a compensation of ` 40,000/- towards pain and suffering was appropriate.

8. The Appellant‟s testimony that he remained on leave till 02.01.1990 i.e. for a period of about 6 months and that he was drawing a salary of ` 2,000/- per month, a compensation of ` 12,000/- on account of loss of leave/ loss of earning was rightly granted by the Tribunal. Bills for only ` 21,690/- were placed

on record by the Appellant, although, the Appellant claimed that he spent ` 1,00,000/- on his treatment. In the absence of production of any other bill and considering that the Appellant was in government service the Tribunal rightly granted a sum of ` 22,000/- towads purchase of medicines/ treatment.

9. PW-7 deposed that the Appellant could not pass physical test (because of the injuries sustained in the accident) and, therefore, could not get his promotion (to the rank of Head Constable in due course). By order of this Court dated 08.12.2011 DCP (East) was summoned along with the Appellant‟s service record. The DCP (East) filed the status report and was examined as CW-1. He deposed that the Appellant, who was working as a Constable (Executive) did not apply for appearing for „A‟ list test. If he did not apply there was no question of his failing in the physical training and parade (test). It is important to note that the Appellant joined Delhi Police in 1982 and was eligible to take test „A‟ list in the year 1987 but he did not take the test in the year 1987, 1988 and in the year 1989 before the accident. Therefore, it cannot be said that the Appellant was denied promotion on account of the injuries suffered in the accident. The Appellant was then promoted as Head Constable (Executive) on ad-hoc w. e. f. 01.01.2004 and was regularized w. e. f. 18.11.2004 in list „C‟ on account of his good service record and good health.

10. On the loss of earning capacity, the Supreme Court in the case of Raj Kumar v. Ajay Kumar and Anr., (2011) 1 SCC 343, held as under: -

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

xxxx xxxx xxxx xxxx

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."

11. Since, there was no loss of earning capacity or loss of promotion, the Appellant would not be entitled to any compensation under the head of loss of earning capacity in view of Raj Kumar (supra).

12. A compensation of ` 20,000/- was awarded towards loss of expectation of life. At the time of accident the Appellant was working as a Constable in Delhi Police and was promoted as Head Constable on 01.01.2004. The Appellant would always have difficulty in running, walking, cycling, climbing a bus and in carrying out his day-to-day activities. The compensation of ` 20,000/- for loss of expectation of life and loss of amenities to my mind was too low. This needs to be raised to ` 40,000/-.

13. Similarly the award of compensation of ` 5,000/- towards conveyance and special diet was also on the lower side. Considering the nature of injuries, indoor and outdoor treatment and the cost of index in the year 1989 I am of the opinion that the Appellant is entitled to a sum of ` 5,000/- towards conveyance and ` 5,000/- for taking special diet during the period of hospitalization and thereafter to recoup his health. The overall compensation is raised from ` 99,000/- to ` 1,24,000/-. On account of principle of contributory negligence

as held by the Tribunal the Appellant would be entitled to 70% of the enhanced compensation of ` 25,000/- i.e. ` 17,500/-. The enhanced compensation shall carry interest @ 7.5% per annum w. e. f. 01.01.1996 as awarded by the Tribunal for the reasons as stated in para 30 of the impugned judgment till the date of payment. The Insurance Company is directed to deposit the enhanced amount along with interest with the Registrar General of this Court within 30 days, which shall immediately be released to the Appellant.

14. The appeal is allowed in above terms.

(G.P. MITTAL) JUDGE JANUARY 03, 2012 hs