Delhi High Court
Naresh Kumar vs Gurinder Jeet Singh & Ors. on 9 July, 2013
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.A. 418/2006
% Judgment reserved on: 14th May, 2013
Judgment delivered on: 09 July, 2013
NARESH KUMAR ..... Appellant
Through: Mr. S.N. Parashar, Adv.
versus
GURINDER JEET SINGH & ORS. ..... Respondents
Through: Mr. Pradeep Gaur and
Mr. Amit Gaur, Advs. for R2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
CM No.7040/2006(delay)
For the reasons enumerated in the application, the delay in filing
the appeal is condoned.
Application stands disposed of.
MAC.A. 418/2006
1. Instant appeal has been preferred against the impugned award
dated 11.11.2005 passed by the ld. Tribunal whereby an amount of
Rs.7,45,615/- was awarded by the ld. Tribunal with interest @ 7.5%
per annum from the date of filing of the petition till the date of
payment.
2. Counsel for the appellant has argued that vide the aforesaid
impugned award, the ld. Tribunal has awarded only Rs.20,000/- for
loss of amenities; and Rs.10,000/- for pain and sufferings. He submits
that the appellant was having 65% disability on right leg due to which,
the said leg was amputed.
3. Ld. Counsel further submitted that though he was working as a
labourer, ld. Tribunal considered the functional disability of 100%,
however not granted sufficient amount for loss of amenities, pain and
sufferings.
4. Ld. Counsel further submitted that the accident took place in
2001 and the award was passed in 2005. He further submitted that at
the time of accident, appellant was 22 years old and no amount was
granted for disfigurement and loss of marriage prospects.
5. On the other hand, ld. Counsel appearing on behalf of the
respondent insurance company submitted that the Disability Board
assessed the disability of the appellant as 65% whereas ld. Tribunal has
considered 100% functional disability, thus, the compensation
granted to the appellant are on the higher side.
6. Ld. Counsel further submitted that monthly income of the
appellant was considered as per the minimum wages applicable at the
time of accident and keeping in view the age of the appellant 50%
compensation towards future prospects was also granted.
7. He further submitted that ld. Tribunal has considered all aspects
on higher side, therefore appellant is not entitled to get any
compensation towards loss of amenities, pain and sufferings.
8. As regards the compensation for disfigurement and loss of
marriage prospects, ld. Counsel has argued that ld. Tribunal has
considered 100% disability, therefore, in these heads also, he is not
entitled to get any compensation.
9. I have heard ld counsel for both the parties.
10. The appellant met with an accident at the age of 22 and
sustained grievous injury which resulted into amputation of right leg
above knee. Medical Board has examined and assessed the disability
of the appellant. As per the certificate issued by the Medical Board the
permanent disability has been ascertained as 65% in relation to right
lower limb.
11. Importantly, the assessment of compensation in respect of
permanent disability is based on the avocation or profession that had
been carried out by the injured, prior to the accident. The aforesaid
aspect is an important factor for assessing the functional disability. It
is pertinent to note that the appellant was working as Hand Cart Puller.
Rightly, in order to assess the functional disability, the ld Tribunal has
considered the impact and effect of the disability on the earning
capacity of the injured. Thus, the ld Tribunal has assessed the
functional disability of the appellant as 100%. Accordingly, the ld
Tribunal has passed an award on account of following heads:-
1. Loss of future earnings - Rs. 7,0,200/-
2. Medical bills - Rs 815/-
3. Conveyance and special diet - Rs. 5000/-
4. Loss of amenities of life - Rs. 20000/-
5. Pain and sufferings - Rs 10,000/
Total compensation - Rs. 7 45 615/-
12. Appellant is seeking enhancement of compensation on account
of loss of amenities of life, pain and suffering which falls under the
head of non -pecuniary damages. Therefore, the sole point to be
considered whether the appellant/injured is entitled to enhancement of
compensation on account of non -pecuniary damages. The assessment
of compensation on account of loss of amenities of life, pain and
suffering is directly related to the assessment of compensation on
account of loss in future earnings. In this context, it is significant to
note the observations of the Apex Court in Raj Kumar Vs. Ajay
Kumar ( 2011) 1 SCC 343:-
"10. 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. 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. It may be noted that
when compensation is awarded by treating the loss
of future earning capacity as 100% (or even
anything more than 50%), the need to award
compensation separately under the head of loss of
amenities or loss of expectation of life may disappear
and as a result, only a token or nominal amount may
have to be awarded under the head of loss of
amenities or loss of expectation of life, as otherwise
there may be a duplication in the award of
compensation......"
13. I note, the functional disability has been assessed as 100%.
Assessment of functional disability is a fundamental unit for
computing the compensation on account of loss in future earnings.
Therefore, the enhancement of compensation on account of non-
pecuniary heads would lead to duplication in award amount; and it
does not support the concept of 'just' compensation.
14. In view of above, I do not find any reason for enhancement of
compensation on account of non- pecuniary heads.
15. Resultantly, the appeal is dismissed
16. No order as to costs.
CM NO.3166/2009( u/O 5 R-20)
Dismissed as infructuous.
SURESH KAIT, J
JULY 09, 2013
Jg/RS
