Shashi Bhushan vs Dhani Ram & Ors
2013 Latest Caselaw 5113 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%             Judgment delivered on: 7th November, 2013


+      MAC.APP. 718/2011

SHASHI BHUSHAN                                               ..... Appellant
                                 Represented by:    Mr.M.K. Sharma, Adv.


                          Versus

DHANI RAM & ORS                                            ..... Respondents
                                 Represented by:    Mr.D.K. Sharma, Adv.
                                 for R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal is directed against the impugned award dated 22.03.2011, whereby learned Tribunal has granted compensation as under:-

"1. Compensation towards pain and suffering Rs.1,00,000/-

        2.    Loss of amenities, enjoyment
              & compensation for disfiguration             Rs.5,000/-
       3.     Loss of earning capacity due to injuries     Rs.4,42,680/-

4. Loss of earning of petitioner for 4 months Rs.28,000/-

5. Expenses towards medical bills Rs.1,54,731/-

       6.     Compensation towards conveyance and
              special diet (without bills)                 Rs.10,000/-
       7.     Cost of artificial limb                      Rs.75,000/-

Therefore, in my opinion the petitioner is entitled to Rs.8,60,411/-(rounded off to Rs.8,60,450/-) which shall be the just compensation to petitioner."

2. While granting compensation as noted above, learned Tribunal has awarded interest @ 7.5 % per annum from the date of filing the petition till realisation of the amount.

3. Ld. Counsel appearing on behalf of the appellant has argued the sole ground that as per disability certificate Ex.PW2/6, the appellant received 65 per cent disability in relation to right lower limb. However, learned Tribunal without any reason has assessed 31 % disability qua the whole body.

4. Counsel appearing on behalf of respondent-Insurance Company submits that as per Raj Kumar v. Ajay Kumar, (2011) 1 (SCC) 343 if the functional disability has not been assessed by the doctor, then in view of judgment noted above, the learned Tribunal has rightly assessed 31 % functional disability while granting compensation.

5. The appellant was working with M/s.Vishwakarma Fabrications and getting a salary of Rs.7,000/- per month. This fact has been proved by PW1 Raghubir Singh who has proved his experience certificate Ex.PW1/A. The said PW has specifically stated that the services of the appellant were terminated because his leg was amputated and he was not fit to work in his factory.

6. PW4 Dr. Lalit Kumar, Senior Resident, GTB Hospital, Delhi has proved the disability certificate as Ex.PW2/6.

7. PW5 Pyara Singh, Medical Records Provider, Sir Ganga Ram Hospital, stated that the appellant was admitted in their hospital on 23.10.2004 and was discharged on 01.11.2004. Copies of the medical report are Ex.PW5/1.

8. PW6 Dr. Manish Dewan, Consultant, Orthopaedic Surgeon, Sir Ganga Ram Hospital deposed that the appellant was treated for Segmental Communited Compound fracture in right tibia. The surgery was performed in Meerut and external fixator was applied. It was noted that the appellant had extensive fracture and compound wound with infection setting in and hence on 28.10.2004 his leg below knee was amputated.

9. PW1 Raghubir Singh has deposed that he was working in his factory as Mechanical Supervisor. Keeping in view his avocation and the fact that his leg below knee was amputated, it certainly affects the said avocation as he was not able to work on one leg and fulfil the expectation required by his employer. Accordingly, he was removed from the service as found not fit for the said assignment.

10. While granting the compensation on disability, learned Tribunal or the Court has to see what would be the affect on the avocation and thereafter the disability can be assessed.

11. In the present case, the appellant being a Mechanical Supervisor, had to move here and there and from one place to another place and one section to another section, ups and down, therefore, keeping in view the injury received and amputation of leg, it is not possible for the appellant to work as he could work if he had not met with the accident.

12. Therefore, keeping in view the disability certificate Ex.PW2/6, wherein the disability qua the whole body was assessed as 65 %, I am of the considered opinion that the appellant has received the functional disability of 65 %.

13. Consequently, the compensation on account of loss of earning capacity due to injuries is enhanced for Rs.4,85,520/- (Rs.9,28,200 - Rs.4,42,680).

14. In view of above, the appeal is allowed.

15. Respondent/Insurance Company is directed to deposit the enhanced compensation amount of Rs.4,85,520/- with interest at the rate of 7.5 % per annum from the date of filing of the petition till the date of realisation with Registrar General of this Court within five weeks from today.

16. I here make it clear that if the respondent-Insurance Company fails to deposit the compensation amount within five weeks, the appellant shall be entitled for 12 % interest on delayed payment.

17. On deposit, Registrar General shall release the amount in favour of the appellant.

SURESH KAIT, J.

NOVEMBER 07, 2013 neelam