Delhi High Court
Lakhmi Chand vs Laxmi Chand & Ors. on 17 July, 2012
Author: G.P. Mittal
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:17th July, 2012
+ MAC APP. No.876/2011
LAKHMI CHAND ..... Appellant
Through: Mr.Vikas Sharma, Advocate
Versus
LAXMI CHAND & ORS. ..... Respondents
Through: Jyotinder Kumar. Advocate for
the Respondents No.1 & 2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `2,80,000/-
awarded in favour of the Appellant Lakhmi Chand for having
suffered injuries in a motor vehicle accident which occurred on
17.10.2008.
2. The finding on negligence reached by the Motor Accident
Claims Tribunal (the Claims Tribunal) has not been challenged
by any of the Respondents and has thus attained finality.
3. On account of the accident, the Appellant suffered fracture of
3rd, 4th 5th Metatarsal and lacerated wound of 8x5cm on the left
foot. Initially the Appellant received treatment in Guru Tegh
Bahadur Hospital and was then under treatment of Dr. Dipti
Gupta. He was issued a disability certificate showing disability
of 45% in respect of his left lower limb. The Claims Tribunal
awarded a compensation of `2,80,000/-, which is tabulated
hereunder:-
Sl. Compensation under various heads Awarded by
the Claims
No. Tribunal
1. Expenses relating to Treatment, `1,64,000/-
Hospitalization, Medicines,
Transportation, Nourishing Food, and
Miscellaneous Expenditure
2. Future Medical Expenses Nil
3. Loss of Wages(11,000 x 6) ` 66,000/-
4. Funeral Expenses ` 5,000/-
5. Non-pecuniary Damages: Damages ` 50,000/-
for Pain, Suffering and Trauma as a
consequence of the injuries
Total ` 2,80,000/-
4. The following contentions are raised on behalf of the Appellant:
(i) Although the Appellant suffered permanent disability,
but no compensation was awarded towards loss of
earning capacity;
(ii) The Appellant proved that because of the permanent
disability, the Appellant would have difficulty in
walking, running, etc. etc., but no compensation was
awarded towards loss of amenities in life;
(iii) The Appellant suffered serious fractures and remained
under treatment for a period of six months, but no
compensation was awarded towards special diet and
conveyance.
5. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court brought the distinction between permanent
disability and functional disability resulting in the loss of
earning capacity. It was laid down that the compensation on
account of loss of earning capacity has to be granted in
accordance with the nature of job undertaken by the victim of
motor accident. Paras 11 and 14 of the report are extracted
hereunder:
"11. What requires to be assessed by the Tribunal is
the effect of the permanently disability on the earning
capacity of the injured; and after assessing the loss of
earning capacity in terms of a percentage of the income,
it has to be quantified in terms of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of dependency).
We may however note that in some cases, on
appreciation of evidence and assessment, the Tribunal
may find that percentage of loss of earning capacity as a
result of the permanent disability, is approximately the
same as the percentage of permanent disability in which
case, of course, the Tribunal will adopt the said
percentage for determination of compensation (see for
example, the decisions of this Court in Arvind Kumar
Mishra v. New India Assurance Co. Ltd. 2010 (10) SCC
254 and Yadava Kumar v. D.M., National Insurance Co.
Ltd. 2010 (10) SCC 341.
x x x x x x x
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."
6. In the instant case, the Appellant was employed as a Conductor
in DTC. Even after the accident, his employment and future
prospects were not affected on account of the permanent
disablement as he continued in the same job. Thus, the
Appellant was not entitled to any compensation towards loss of
future earning capacity.
7. As per the disability certificate Ex.PW1/F, the Appellant
suffered 45% permanent disability on account of locomotion
impairment in relation to left lower limb. PW2 Dr. Lalit Kumar
from Department of Orthopedics, GTB Hospital proved the
disability certificate and testified that the disability will affect
the Appellant's working as a Conductor when he would move
in the bus but not when he would sit. It is, therefore, apparent
that the Appellant would have difficulty in walking, running
squatting, etc. etc. Considering the nature of injuries and the
fact that the accident took place in the year 2008, I award a
compensation of `50,000/- towards loss of amenities.
8. The Appellant remained admitted in Safdarjang Hospital from
17.10.2008 to 21.10.2008. He was then an outdoor patient till
May, 2009. The Appellant deposed that he spent `20,000/- on
special diet and `15,000/- on conveyance charges. The details
of this expenditure, however, were not given yet the Court can
take judicial notice that for such a long duration of treatment he
must have spent some amount on special diet and conveyance.
In the circumstances of the case, I award him a sum of `10,000/-
each towards special diet and conveyance charges.
9. The overall compensation is thus enhanced by `70,000/- which
shall carry interest @ 7.5% per annum from the date of the
filing of the Petition till its payment. The enhanced amount
shall be deposited by the Respondent No.3 United India
Insurance Co. Ltd. with the Claims Tribunal within six weeks
shall be released to the Appellant immediately on deposit.
10. The Appeal is allowed in above terms.
11. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 17, 2012
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