Delhi High Court
Oriental Insurance Co Ltd vs A Mohan & Ors on 14 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 14th March, 2012
+ MAC.APP.602/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr. R.C. Mahajan, Adv.
versus
A MOHAN & ORS ..... Respondent
Through Mr. Anwesh Madhukar, Adv.
for R-1
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `4,61,967/-
awarded to the Appellant for having suffered grievous injuries
in an accident which occurred on 07.07.2007. By the impugned
judgment the Claims Tribunal awarded a compensation of
`4,61,967/- under various heads as mentioned in para 11 of the
judgment which is extracted hereunder:
"Following is the just compensation:-
1. Loss of income due to leave : `1,06,995/-
2. Loss of income : `3,09,972/-
3. Pain and suffering : `25,000/-
4. Special Diet : `15,000/-
5. Conveyance Expenses : `5,000/-
`4,61,967/-
Total :
2. The only ground of challenge during the course of the
arguments is that the First Respondent has been awarded a
compensation of `3,09,972/- on account of loss of earning
capacity, although there is no evidence that the Appellant
suffered any loss of earning capacity. It is stated that the
Appellant was employed as a room attendant in Hotel Maurya.
He continued his employment with the said hotel. No evidence
was led that his salary/income was affected and thus a sum of
`3,09,972/- is required to be deducted from the compensation
awarded.
3. On the other hand, it is submitted by the learned counsel for the
Appellant that a certificate Ex.PW1/11 issued by Shakuntala
Nursing Home clearly showed that his left knee was stiff (full
extension to 80 decree flexion). This certificate was not
challenged by the Appellant. The first Respondent suffered a
loss on account of the fact that at the time of the accident, he
was working as a room attendant and was getting tips. Although
his salary was not affected, but, he lost on tips given by the
customers, as after the accident he was posted in the accounts
department.
4. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court considered in great detail the co-relation
between the physical disability suffered in an accident and the
loss of earning capacity resulting from it. The relevant portion
of the report is 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.
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.
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.
5. The First Respondent did not lead any evidence, rather it is
admitted that his salary was not affected. It is also not proved
on record whether the First Respondent was posted in Accounts
Department on account of the injury suffered by him in the
accident or for some other reason and whether he suffered any
financial loss on account of non receipt of the tips from the
customers. In this view of matter, future loss of earning
capacity could not have been granted by the Claims Tribunal.
6. At the same time, it has to be noticed that the Appellant suffered
fracture of left knee. He was operated upon in Kolmet Hospital
where a rod was inserted and bone grafting was done. He
remained hospitalised from 07.07.2007 to 18.07.2007. He also
remained on bed rest for seven months. The expenses for his
treatment were reimbursed to him by his employer and the
Claims Tribunal adequately compensated him for loss of leave /
loss of income by awarding him a sum of `1,06,995/-. The
certificate Ex.PW1/11 which was issued in the year 2011 shows
that there was still stiffness in the left knee and full extension
was only upto 80 degree. The First Respondent would have
difficulty in discharging his duties, in walking, running and
squatting. He is, therefore, entitled to be compensated under the
head of loss of amenities.
7. It is difficult to measure the pain and suffering in terms of
money which has been suffered by the claimant on account of
serious injuries caused to him in a motor accident. Since the
compensation is required to be paid for pain and suffering an
attempt must be made to award compensation which may have
some objective relation with the pain and suffering underwent
by the victim of a motor 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 the duration of the treatment. Considering the
nature of injury, body part affected and the period of
confinement, the compensation of `25,000/- awarded towards
pain and suffering was also low. The compensation is
recomputed as under:
Compensation Compensation
awarded by awarded by
Claims this court
Tribunal
1. Loss of income due to leave `1,06,995/- `1,06,995/-
2. Loss of income (earning `3,09,972/- Nil
capacity)
3. Pain and suffering `25,000/- `50,000/-
4. Special Diet `15,000/- `15,000/-
5. Conveyance Expenses `5,000/- `5,000/-
6. Loss of amenities in life Nil `75,000/-
Total `4,61,967/- `2,51,995/-
8. In view of the above discussion, the compensation is reduced
from `4,61,967/- to `2,51,995/-. The compensation of
`2,51,995/- alongwith interest as awarded by the Tribunal shall
be payable to the First Respondent and shall be released
forthwith. The excess amount alongwith proportionate interest
and interest accrued during the pendency of the Appeal shall be
refunded to the Appellant.
9. Statutory amount of `25,000/- shall also be refunded.
10. The Appeal is allowed in above terms.
11. No costs.
(G.P. MITTAL)
JUDGE
MARCH 14, 2012/NS
