Delhi High Court
Ajay Kumar Singh vs Harjeet Singh Bhatia & Ors on 12 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th March, 2012
+ MAC.APP. 999/2011
AJAY KUMAR SINGH ..... Appellant
Through: Mr.Navneet Goyal and
Ms.Suman N.Rawat,
Advocates.
versus
HARJEET SINGH BHATIA & ORS ..... Respondents
Through: Mr.J.P.N.Shahi, Advocate for
R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant seeks enhancement of compensation of
` 6,51,406/- awarded for having suffered injuries in an accident which
took place on14.02.2006. The compensation was awarded under the
following Heads:-
a) Loss of future income ` 3,08,372/-
b) Medical expenses ` 1,99,817/-
c) Pain and suffering etc. ` 1,00,000/-
d) Special diet & conveyance charges ` 15,000/-
e) Loss of income ` 28,217/-
2. The Appellant suffered fracture of right femur bone, fracture of
both bones of left leg, fracture of nasal bone and injuries on other parts
MAC APP.999/2011
of the body. The Appellant filed his affidavit Ex.PW-2/A by way of
evidence and in para 3 and 4 testified as under:-
"I say that I was immediately taken to B.J.R.M. Hospital,
where the doctors prepared my M.L.C. No. E-9580/06. I
was shifted to St.Stephen's Hospital and remained
admitted there from 14.02.2006 to 10.03.2006. I was
given the medical treatment i.e. (i)BUTTRESS PLATING
OF LT. TIBIA USING 8 HOLE PLATE DONE BY DR.
V.T. AND MS. UNDER GA ON 21.02.06 (ii) ARCH BAR
FIXATION WITH ORIF OF NASAL BONE # AND
FOREHEAD LACERATION REPAIR DONE BY DR.
BHARAT RATAN UNDER GA ON 21.02.06 (iii) IM
NAILING RT. FEMUR USING (11x 36 mm) NAIL
UNDER SA BY DR. RKG AND TR ON 24.02.06 (iv)
ILIZAROV FIXATOR APPLICATION FOR FRACTOR
BB RT. LEG DONE BY DR. M.M. AND MS UNDER SA
ON 29.02.06 and remained admitted in the same
Hospital from 16.05.06 to 19.05.06 where I was given the
treatment i.e. BONE GRAFTING ON 17.05.06 BY DR.
TR/PB. The Discharge Slips are Exh. PW-1/1-2.
I say that I got sustained 50% permanent disability due
to the injuries as per the Disability Certificate, issued by
Medical Board of B.J.R.M. Hospital. My 50% disability
renderes me 100% disable for various jobs, which I
cannot do normally due to the said accident. The Copy
of disability certificate is alreadyExh. PW-1/A (O.S.R.)"
3. It is urged by the learned counsel for the Appellant that
although Appellant suffered 50% disability in respect of his lower
limbs as deposed by PW-3, yet for calculating loss of earning capacity
the disability was taken to be 25% in respect of the whole body. It is
urged that the compensation awarded for loss of earning is inadequate.
It is stated that compensation under the head of pain and suffering is
MAC APP.999/2011
also on the lower side.
4. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court brought out the difference between the permanent
physical disability suffered in an accident and the functional disability
affecting the earning capacity. The relevant portion of the report is
extracted hereunder :-
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.
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 terns of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of dependency).
MAC APP.999/2011
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.
12. Therefore, the Tribunal has to first decide whether
there is any permanent disability and if so the extent of
such permanent disability. This means that the tribunal
should consider and decide with reference to the
evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement,
(iii) if the disablement percentage is expressed
with reference to any specific limb, then the effect
of such disablement of the limb on the functioning
of the entire body, that is the permanent disability
suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding further
and determining the loss of future earning capacity. But
if the Tribunal concludes that there is permanent
disability then it will proceed to ascertain its extent. After
the Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence,
it has to determine whether such permanent disability
has affected or will affect his earning capacity.
MAC APP.999/2011
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
MAC APP.999/2011
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."
5. In this case the Appellant claimed that he was in private
employment and was earning ` 15,000/- per month. No evidence of
employment or the nature of job carried by the Appellant was given.
In the circumstances, the Claims Tribunal took the minimum wages of
a graduate to compute Appellant's income.
6. The nature of injuries suffered by the Appellant was very
serious, he had to undergo various surgeries and he remained admitted
in the hospital from 14.02.2006 to 10.03.2006 and from 16.05.2006 to
19.05.2006. At the same time, in the absence of any medical evidence
to prove that his earning capacity was affected on account of the
injuries sustained by him, the Appellant was not entitled to any
compensation under the head of Loss of Future Earning Capacity. The
Appellant might have difficulty throughout his life in carrying out his
day to day activities, in pursuing his employment and he might have
difficulty in walking, running and squatting. Thus, in the
circumstances, the sum of ` 3,08,372 awarded by the Claims Tribunal
was really towards loss of amenities in life.
7. It is difficult to measure in terms of money the pain and
suffering which is suffered by the victim on account of serious injuries
caused to him in a motor accident. Since compensation is required to
MAC APP.999/2011
be paid in terms of money, an attempt must be made to award
compensation which may have some objective relation with the pain
and suffering underwent by the victim in the accident. For this
purpose, the Claims Tribunal and the Courts normally consider the
nature of injury; the parts of the body where the injuries were
sustained; surgeries (if any) underwent by the victim; confinement in
the hospital and duration of the treatment.
8. The Appellant underwent several surgeries as stated in Para 2 of
the judgment. The injuries were very serious, yet the compensation of
` 1,00,000/- awarded by the Claims Tribunal cannot be said to be
meager or low. I hold that the compensation awarded under the head
of pain and suffering was just and reasonable.
9. Thus, no interference is called for in the impugned award.
10. The Appeal is devoid of any merit. The same is accordingly
dismissed.
11. No costs.
(G.P. MITTAL)
JUDGE
MARCH 12, 2012
mr
MAC APP.999/2011
