Delhi High Court
Daya Kishan vs Rakesh Kumar & Ors. on 19 November, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19th November, 2012
+ MAC. APP. 366/2009
DAYA KISHAN ..... Appellant
Through Mr.S.N.Parashar, Advocate
versus
RAKESH KUMAR & ORS. ..... Respondents
Through Mr.D.K.Sharma, Advocate for R-3
Insurance Company
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
C.M. APPL No.10511/2009
There is a delay of 70 days in filing the Appeal.
For the reasons as stated in the application, the delay in filing the Appeal
is condoned.
The Application stands disposed of.
MAC. APP. 366/2009
1. The Appeal is for enhancement of compensation of ` 3,25,000/- awarded
by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour
of the Appellant Daya Kishan, who suffered injuries in a motor vehicle
accident, which occurred on 28.11.2003.
2. During the course of hearing two contentions are raised on behalf of the
learned counsel for the Appellant:-
(i) It is stated that the Appellant suffered disability to the extent of
54% in respect of his right lower limb as per the disability
certificate dated 04.03.2005 issued by the Rao Tula Ram
Memorial Hospital. The disability was re-assessed and as per
certificate dated 26.02.2010, he was declared to have suffered
more than 40% disability in relation to his right lower limb. It is
urged by the learned counsel for the Appellant that the Claims
Tribunal erred in not granting any compensation towards loss of
earning capacity.
(ii) It is contended that the Appellant had to take leave for two
years, however, he had been awarded the compensation on
account of loss of salary for only 11 months.
3. On the other hand, the learned counsel for the Respondent Insurance
Company states that the compensation awarded is just and reasonable.
4. It is admitted by the learned counsel for the parties that during the
pendency of the Appeal, the matter was taken up in Lok Adalat and as per
certificate dated 26.02.2010, the Appellant was declared to have suffered
more than 40% disability in relation to his right lower limb.
5. The Claims Tribunal dealt with the issue of loss of earning capacity in
Para 38 of the impugned judgment. The Claims Tribunal observed that
the disability was temporary, and therefore, preferred not to award any
compensation on account of the disability.
6. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme
Court brought out the difference 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 a 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
terns 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."
7. Thus, to award compensation on account of permanent disability, the
disability must impact the earning capacity. In the instant case, the
Appellant joined the same job with the same Company after taking leave
for 11 months. Thus, no loss of earning capacity was suffered by the
Appellant.
8. The disability suffered by the Appellant is on account of stiffness of his
right knee while having suffered fracture of shaft femur right side and
comminuted fracture of right patella. The Claims Tribunal dealt with the
aspect of the Appellant having undergone prolonged treatment and
awarded a sum of ` 40,000/- towards pain and suffering.
9. Since the Appellant has stiffness in his right knee and was initially
declared to have got temporary disability to the extent of 54% which was
later on reduced to more than 40%, the Appellant would have difficulty in
walking, running, sitting, squatting and carrying out his normal activities
on day to day basis. No compensation was awarded on account of loss of
amenities and expectations in life to the Appellant. In the circumstances
of the case, I would award a sum of ` 50,000/- towards loss of amenities
in life.
10. As far as the grant of compensation on account of loss of income is
concerned, the leave certificate issued by the Appellant's employer was
proved as Ex. P-170. The certificate reveals that the Appellant had to take
leave from the date of accident, that is, 28.11.2003 to 15.07.2004 and
then from 01.08.2005 to 27.10.2007. The certificate clearly shows that
the Appellant was not on leave for the period of 16.07.2004 to
31.07.2005. In effect, the Appellant availed leave for a period of 10 and a
half months for which he had been awarded compensation as loss of pay
for 11 months. The Claims Tribunal's order on this aspect cannot be
faulted.
11. For the above reasons, the amount of compensation is enhanced by
` 50,000/- which shall carry interest @ 7.5% per annum from the date of
filing of the Petition till its payment.
12. The Respondent Insurance Company is directed to deposit the enhanced
compensation amount along with interest with the Claims Tribunal within
six weeks.
13. Fifty percent of the enhanced compensation shall be held in fixed deposit
for a period of two years. Rest shall be released on deposit.
14. The Appeal is allowed in above terms.
15. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 19, 2012
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