S.N. Kaushik vs Pal Vij & Ors
2012 Latest Caselaw 1740 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Decided on: 14th March, 2012
+       FAO 399/1998

        S.N. KAUSHIK                      ..... Appellant
                               Through:   Appellant in person.

                      versus

        PAL VIJ & ORS                     ..... Respondent
                               Through:   Ms. Neerja Sachdeva, Adv. for
                                          R-2
        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                               JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant seeks enhancement of compensation of ` 19,000/- awarded to him for having suffered fracture of calcanium right ankle in an accident which occurred on 14.08.1990.

2. At the time of the accident, the Appellant was working as an Account Officer in Indian Airlines and was getting a salary of ` 4662/- per month as per the salary certificate Ex.PW-2/1.

3. The Appellant, who has argued his Appeal in person, has taken pains to point out that the injuries suffered by him were very serious, a disability for whole life which was not appreciated by the Claims Tribunal. It is thus argued that the Claims Tribunal

awarded a meager compensation of ` 16,000/- towards pain and suffering, ` 2,000/- towards special diet and ` 1,000/- towards conveyance.

4. It is not disputed that the Appellant was re-designated as Assistant Finance Officer, was promoted as Deputy Manager (Finance), then as Manager (Finance) and went on to be promoted as Senior Manager (Finance) before he retired in the year 2005 on attaining the age of superannuation. The contentions raised by the Appellant are:-

(i) Fracture of calcanium resulted in permanent disability which was amply proved by Dr. G.C. Dey's testimony as PW-3, therefore, he ought to have been awarded some compensation towards the loss on his earning capacity as with his qualification he could have worked as a Lecturer, a Lawyer or as a Consultant after his superannuation from Indian Airlines.

(ii) He lost an opportunity of his being posted at Bangkok as he could not apply for the same as when he received the letter dated 01.10.1990 he was confined to bed on account of the injuries.

(iii) Completion of the construction of his house in Gagan Vihar which he started building in the year 1990 got delayed and could only be completed in the year 1992.

He had to engage a Chowkidar for an extra period of five months.

(iv) He has not been awarded any compensation on account of loss of amenities in life, loss of leave. The compensation awarded towards pain and suffering is meager.

5. The Appellant took me through PW-3 Dr.G.C. Dey's testimony, who deposed as under:-

"I am a medical graduate from a Calcutta University in 1960 and Master of Surgery in 1966 from Delhi University. I am a general surgeon with special interest in orthopedics. I was working in Indian Airlines as the Chief Medical Officer. I had treated Mr. S.N. Kaushik/Petitioner who reported to me on 17th Aug. 1990 for the treatment of injury of his right ankle. He gave history of a road accident on 14/8/90 after which he attended G.T.B. Hospital, Shahdara, where his right leg was plastered. There X-ray was done which showed the fracture of the calcanium (Heel-bone). He was complaining of severe pain in the heel and also burning sensation in the foot. The plaster was removed and then a new plaster was applied by me. He was advised not to put any weight on the affected leg.

Subsequently, he kept on consulting me during the month of September and October of 1990. His plaster was removed on 17.10.1990. Weight bearings were allowed with the help of ..../Crutches from 29th October, 1990 and was allowed to resume his duty. He was consulting me subsequently also. Inspite of various conservative treatment which included physiotherapic or physiotherapy exercises. He continued to have limping and pain in his ankle. X-ray examination on 18.12.91 which showed disturbed bone pattern in the right

calcanium which explained reason for the continued pain in the ankle.

A fracture of the calcanium often leads to such disturbance in bone pattern which are of a permanent nature. Inspite of complete bone healing such a person usually has some residual disability in the form of pain in the ankle and slight difficulty in running and jogging throughout his life......"

6. The accident occurred on 14.08.1990. X-ray report dated 18.12.1991 revealed that there was "disturbed bone pattern in the right calcanium." PW-3's testimony that the Appellant would have residual disability in the form of pain in the ankle and slight difficulty in running and jogging throughout his life was not challenged in cross-examination.

7. The question for consideration is whether this disability affected his earning capacity. It is not the Appellant's case that his promotions were affected on account of the injuries. Rather, it was admitted during the course of arguments that the Appellant was promoted/re-designated as Assistant Finance Manager, Deputy Manager (Finance), Manager (Finance) and ultimately superannuated in the year 2005 as Senior Manager Finance. At the time of the accident, his salary was ` 4662/- whereas in August, 1997 he was earning `59,223/- (Ex.PW-4/10). Although, it would not be correct to say that the Appellant was taking undue advantage of his having suffered a fracture in the right leg, as observed by the Claims Tribunal in "Para 19 of the impugned judgment" because it was established on record by

expert evidence that he would have some pain in his leg throughout his life and a slight difficulty in running and jogging.

8. In the case of Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme Court brought out the distinction between permanent disability and functional disability resulting into loss of earning capacity. It was amply proved on record that there was no loss of earning capacity on account of the injuries suffered by him.

9. The Appellant contended that he held six degrees including an MBA from Delhi University, LLB and ICWA. He could have worked as a lawyer, a consultant or a lecturer after the date of his superannuation. But, his earning capacity was affected. No evidence was led by the Appellant that he had applied for any job in any institution after his superannuation. If he could work in the Indian Airlines for 15 years, he could undertake the job of a lawyer, a lecturer or a consultant if he was interested. The Appellant was not, therefore, entitled to any compensation under the head of loss of future earning capacity. It is a different matter that he ought to have been awarded appropriate compensation for loss of amenities in life.

10. The contention that the Appellant lost an opportunity to apply for a posting to Bangkok is only in the realm of speculation. No evidence was led as to whether after joining his duties, he

applied to his employer. The Appellant cannot claim any compensation merely on the ground that he could not apply for his posting abroad as he was on leave. Unless, he proved that his application on resuming his duties was not entertained. It is also not shown as to what material advantage the Appellant would have gained with his posting at Bangkok. Thus, he is not entitled to any compensation on this count.

11. The Appellant testified that since he had suffered injuries, he could not look after the construction of his house and had to engage a Security Guard for five months. There was no direct nexus between the construction of the house and the injuries suffered. The details of the Security Guard and the salary paid to him were not given. The Appellant was not entitled to compensation for alleged payment of salary to the Security Guard.

12. It is established from the testimony of PW-3 that the Appellant had to take about two months leave on account of the injuries he had suffered in the accident. He is entitled to the compensation equivalent to two months' salary on account of loss of life @ ` 4662/- x 2 = 9,324/- rounded off ` 9,500/-.

13. He was unable to move on account of plaster and re-plaster. He is entitled to two months wages of an Attendant @ ` 1500/- per month amounting to ` 3,000/-.

14. I have already discussed earlier the extent of injuries and the factum that he would have difficulty in jogging and running. The Appellant's testimony that he was unable to use public transport was not challenged in cross-examination. Considering that the accident occurred in the year 1990, I would award him a sum of ` 25,000/- towards loss of amenities.

15. It is difficult to measure in terms of money the pain and suffering which has been suffered by the claimant on account of serious injuries caused to him in a motor accident. Since compensation is required to be paid for pain and suffering an attempt must be made to award a 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. Taking all these factors into consideration, the compensation of ` 16,000/- awarded by the Claims Tribunal under this head is

increased to ` 25,000/-.

16. Overall there is an increase of ` 46,500/- in the compensation awarded by the Claims Tribunal which shall carry interest @12% per annum from the date of filing of the petition till 31.12.2000, as awarded by the Claims Tribunal. The Appellant is entitled to interest @ 7.5% per annum from 01.01.2001 to

31.12.2009 and @ 9% per annum from 01.01.2010 upto the date of deposit.

17. The Respondent New India Assurance Company Limited is directed to deposit the enhanced amount alongwith interest within 60 days. Since this case relates to the year 1990, on deposit of the enhanced amount it shall be released to the Appellant forthwith.

18. The Appeal is allowed in above terms.

19. No costs.

(G.P. MITTAL) JUDGE MARCH 14, 2012 vk