Rahul Gupta vs Oriental Insurance Company Ltd. & ...
2012 Latest Caselaw 5386 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 10th September, 2012
+       MAC APP. 498/2004

        RAHUL GUPTA                                               ..... Appellant
                              Through:   Mr. S.P. Gupta, Adv.

                     versus

        ORIENTAL INSURANCE COMPANY LTD. & ORS....... Respondents
                     Through: Ms. Manjusha Wadhwa, Adv. for R-1.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for enhancement of compensation of `6,52,580/- awarded in favour of the Appellant for having suffered injuries in a motor vehicle accident which occurred on 22.06.1997. While awarding the aforesaid compensation, the Motor Accident Claims Tribunal (the Claims Tribunal) held that the Respondent Insurance Company is liable to pay the compensation in the first instance and granted it right to recover the compensation from the Respondents No.2 and 3.

2. The finding on negligence or with regard to recovery rights is not challenged by any of the parties. Thus, the same has attained finality.

3. The Appellant suffered fracture shaft humerus and intracondylar, humerus (left) with radian nerve palsy (left) along with compound comminuted fracture shaft femur (left) along with lacerations on face, left leg and left forearm.

4. The Appellant remained admitted in Apollo Hospital from 22.06.1997 to 05.07.1997 and then in Shubham Medical Centre, Kalkaji from 20.09.1997 to 29.09.1997. The Appellant was a Mechanical Engineer and an MBA and was working as a Commercial Officer with Usha International. From the salary slip Ex.PW-1/31, the Appellant's salary @ `92,000/- per annum was established. The compensation of `6,52,580/- awarded by the Claims Tribunal is tabulated hereunder:-

Sl. Compensation under various heads Awarded by the Claims Tribunal No.

1. Medical Treatment and Expenses `1,70,000/-

         2.        Loss of Income                                             ` 34,500/-

         3.        Permanent Disability / Loss of Earning                 ` 2,98,080/-
                   Capacity

         4.        Pain and Suffering                                        ` 75,000/-

         5.        Loss of Enjoyment of Amenities of Life                    ` 50,000/-

         6.        Conveyance, Special Diet & Attendant                      ` 25,000/-

                                                            Total         ` 6,52,580/-

5. The following contentions are raised on behalf of the Appellant:-

(i) The compensation of `2,98,080/- awarded towards loss of future earning capacity is on the lower side.

(ii) The Claims Tribunal awarded a compensation of `34,500/- towards loss of income for five months. Although, it was established on

record that the Appellant was unable to attend to his work from the date of accident till 04.10.1998.

6. On the other hand, Ms. Manjusha Wadhwa, learned counsel for the Respondent Insurance Company argues that :-

(i) The Appellant did not suffer any loss of earning capacity rather he earned promotions after the accident and his salary on the date of recording of Appellant's testimony was ` 20,000/- as against about `7,600- per month at the time of the accident. Thus, the Appellant did not suffer any loss of earning capacity.

(ii) The Claims Tribunal did not believe the Certificate regarding the Appellant's absence. Thus, the Claims Tribunal's finding regarding loss of income does not call for any interference.

7. It is true that the Appellant got promotion even after his accident that would however not mean that there was no loss of earning capacity. In this connection, it would be fruitful to refer to the Appellant's Affidavit Ex.PW-1/X produced by him by way of his examination-in-chief. The Appellant testified that he missed some promotions due to long period of leave. His promotions after re-joining slowed down because of the permanent disability sustained by him. He deposed that but for the permanent disability, he would have been promoted as Senior Manager.

8. It has to be kept in mind that the Appellant was in private service. As per the Disability Certificate Ex.PW-1/R-1, the Appellant is suffering from post traumatic stiffness of left elbow and left knee resulting into permanent physical impairment in relation to the left upper limb and left lower limb to the extent of 40%. On account of the disability suffered by

him, the Appellant would take more time in completing the assignment. The Claims Tribunal, in the circumstances, took the loss of earning capacity as 20% vis-à-vis the whole body which seems to be just and reasonable. Since the Appellant's salary was `92,000/- per annum, on deduction of `6,000/- towards payment of income tax, the loss of earning capacity comes to `3,09,600/- (92,000/- - 6,000/- (income tax) x 18 x 20%).

9. The Appellant produced PW-3 Mr. K.P.Shekhar, Assistant Manager (Legal) to prove that there was loss of leave from 23.06.1997 to 04.10.1998. The Claims Tribunal held that there was no record in the Attendance Register that the employee was on leave without any pay. The Claims Tribunal further found that there appeared to be some interpolation in the Attendance from 1st June to 8th June and then from 01.09.1998 to 11.09.1998. The copy of the Attendance Register is not available on the Trail Court Record.

10. The learned counsel for the Appellant has produced a photocopy of the Attendance Register. There is no interpolation in the column of Appellant Rahul Gupta. Rather interpolation is in the column of another employee Rajbir Singh Panag. The Appellant's testimony that he had to take leave from 23.06.1997 to 04.10.1998 was not challenged in cross- examination. The Appellant had suffered multiple fractures of left hand and left leg. He had to undergo multiple surgeries. The fracture resulted in permanent disability as stated earlier. In the circumstances, the Claims Tribunal should not have doubted the Attendance Register produced by the Appellant to prove the loss of leave. It was immaterial if Appellant

took leave with pay or without pay; he was entitled to be compensated for loss of leave.

11. In the circumstances, the Appellant was entitled to a sum of `1,07,500/-

(92,000/- - 6,000/- (income tax) x 15/12) towards loss of pay/loss of leave for a period of 15 months as against award of `34,500/- made by the Claims Tribunal.

12. Thus, there is enhancement of `84,500/- which shall carry interest @ 7.5% per annum from the date of filing of the Petition till its payment.

13. Respondent No.1 Oriental Insurance Company Limited it directed to deposit the enhanced compensation along with interest in UCO Bank, Delhi High Court Branch, New Delhi within six weeks which shall be released on deposit.

14. The Appeal is allowed in above terms.

15. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 10, 2012 vk