Delhi High Court
National Insurance Co. Ltd. vs Shri Kaushal Yadav & Ors. on 20 January, 2012
Author: G.P. Mittal
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20th January, 2012
+ MAC. APP. No.119/2011
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Ms. Shantha Devi Raman,
Advocate
versus
SHRI KAUSHAL YADAV & ORS. ..... Respondents
Through: Mr. Manish Maini, Advocate
for Respondent No.1
Mr. Vivek Singh, Advocate for
Respondents No.2 & 3.
WITH
MAC. APP. No.94/2012
SHRI KAUSHAL YADAV & ORS. ..... Appellant
Through: Mr. Manish Maini, Advocate
for Appellant No.1
Mr. Vivek Singh, Advocate for
Appellants No.2 & 3.
Versus
NATIONAL INSURANCE CO. LTD. ..... Respondent
Through: Ms. Shantha Devi Raman,
Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. Arguments heard.
2. The Appellant National Insurance Co. Ltd. seeks reduction in
the amount of compensation of `9,58,070/- awarded by the
Tribunal for the injuries suffered by the Respondent Ramesh
Chand in an accident which took place on 06.07.2009. The
ground for challenge is the loss of earning capacity computed
by the Tribunal to the extent of 80%, though permanent
disability assessed by the Doctor was 40% in relation to the
right lower limb.
3. After the accident, the Respondent No.1 was removed to Shri
Balaji Action Medical Institute where he remained admitted till
08.07.2009 and a wire was fixed in his leg. On 30.07.2009, he
was again admitted in Ortho Care Hospital, Najafgarh and was
discharged on 27.08.2009. 3rd, 4th and 5th toe of the first
Respondent's right foot was amputated. Still his injuries did not
heal. He suffered permanent disability to the extent of 40% in
relation to right lower limb.
4. It is urged by the learned counsel for the Appellant that the
Tribunal erred in taking permanent disability as 80%, whereas it
was just 40% in respect of the right lower limb. The learned
counsel for the Appellant referred to Item 24 of the First
Schedule of the Workmen's Compensation Act, 1923 where in
case of amputation of alba of one foot, the percentage of loss of
earning capacity is given as 20% only. It is urged that the
Respondent was entitled to 30% increase of minimum wages as
he was 44 years of age.
5. It is submitted by the learned counsel for the Respondent No.1
in the Cross-Appeal that the Tribunal rightly took the functional
disability to the extent of 80% as the Respondent No.1's right
foot was almost totally damaged. The learned counsel for the
first Respondent relied on Para 19 of the impugned judgment,
which is extracted hereunder:
"In the present case the petitioner has suffered crushed
injury on his right lower leg and I had seen him
personally in the court wherein his right leg was found
almost totally damaged and he was not able to move the
same easily because of the crushed (sic crush ) injury
on the same. If one leg of a labourer is not functioning,
in that case he would suffer at least 80% disability in
his earning capacity. The case of S.K. Kattimani
referred (Supra) perfectly covers the facts of the present
case and the ratio is squarely applicable in the case of
the petitioner also."
It is contended that prior to computing the loss of earning
capacity, the benefit of 50% interim wages should have been given on
the basis of the judgments of this Court in Luxmi V. Mohinder
Prasad, IV (2010) ACC 685 and Vinod Kumar Bansal V. Ranbir
Singh and Others, 2011 ACJ 1672.
6. It is well settled that in Raj Kumar V. Ajay Kumar & Anr,
(2011) 1 SCC 343, while computing the earning capacity, the
Court is required to consider the effect of permanent disability
suffered by the injured on his functional capacity to earn. There
may be cases where the disability may be high, but it may not
affect the loss of earning capacity because of the nature of
employment/vocation of the injured.
7. In Raj Kumar (supra), it has also been held that the possibility
of the injured being employed in an alternative employment has
also to be seen to assess the loss of earning capacity.
8. The Respondent No.1 in his affidavit Ex.PW1/A testified as
under:
"3. That in the accident, I sustained the following injuries:-
- Amputation of 3rd, 4th and 5th Toe (Right),
- Crush injury Right Ankle and foot with Toes deformity,
- Complete Degloving injury on dorsum of foot, Dorsal
tendons Visible,
- Flap rotation, Skin Grafting, External Fixator applied,
- Treated with K- wire fixation,
- Two units of whole blood transfused."
9. The Respondent was present in person before the Tribunal when
observation extracted earlier were made. The Tribunal
observed that the right leg(foot) of the Respondent was totally
damaged and he was unable to move the same easily on account
of the crush injury. This led the Tribunal to assess the loss of
earning capacity to the extent of 80%.
10. The Respondent as per his own case was working as a labourer.
He could seek some alternative employment elsewhere. The
Tribunal, therefore, fell into error in assessing the loss of
earning capacity to the extent of 80%. At the same time, the
Respondent was entitled to be given the benefit of 50% increase
in the minimum wages in view of the Luxmi V. Mohinder
Prasad(supra) and Vinod Kumar Bansal V. Ranbir Singh and
Others,(supra). The loss of earning capacity should have been
restricted to 40% of permanent disability which was due to the
accident. The loss of earning capacity on account of permanent
disability under Item 7 in Para 25 of the impugned judgment
comes to `3,96,547/- instead of `5,28,730/-.
11. The overall compensation stands reduced from ` 9,58,070/- to
8,25,887/-.
12. 75% of the awarded compensation has already been released to
the Respondent No.1. The rest of the compensation payable to
the Respondent No.1 shall be held in Fixed Deposit for a period
of three years. Excess amount along with interest earned, if
any, during the pendency of the Appeal shall be returned to the
Appellant Insurance Company.
13. The statutory amount of ` 25,000/- shall also be returned.
14. The Appeal and the Cross-Appeal are disposed of in above
terms.
(G.P. MITTAL)
JUDGE
JANUARY 20, 2011
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