Delhi High Court
Deepak Gautam vs Jai Prakash & Ors on 4 December, 2014
$~A-9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 04.12.2014
+ MAC.APP. 280/2011
DEEPAK GAUTAM ..... Appellant
Through Mr.Navneet Goyal, Advocate.
versus
JAI PRAKASH & ORS ..... Respondents
Through Ms.Jagrati Singh, Advocate for R-1 and
3.
Ms.Shubhanda Khosla, Advocate for R-
2.
+ MAC.APP. 330/2012
JAI PRAKASH & ANR ..... Appellants
Through Ms.Jagrati Singh, Advocate.
versus
NATIONAL INSURANCE CO LTD & ORS ..... Respondents
Through Ms.Shubhanda Khosla, Advocate for R-
1.
Mr.Navneet Goyal, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. These two appeals impugn the award dated 20.11.2010. MAC APP. No.
330/2012 is filed by the owner of the offending vehicle whearas MAC. APP.
280/2011 is filed by the claimant seeking enhancement of compensation.
MAC. APP.280/2011 & 330/2012
2. The brief facts which led to filing of the claim petition are that on
15.09.2006 the appellant Sh. Deepak Gautam was going on his motorcycle and
when he reached the main road, Qutub Road near village Jatkhore, he was hit
by another motorcycle said to be driven in a rash and negligent manner. The
claimant fell down and suffered injuries.
3. First I will deal with MAC. APP. 280/2011. The issue in this appeal
pertains to compensation amount awarded. The total compensation of Rs.
5,36,493/- was awarded by the Tribunal as follows:-
1. Loss of salary income Rs. 23,940/-
2. Medical expenses Rs.1,72,553/-
3. Future treatment etc. Rs. 2,00,000/-
4. Special diet & Conveyance charges Rs. 30,000/-
5. Compensation for disfigurement Rs. 10,000/-
6. Pain and sufferings etc. Rs.1,00,000/-
Total Rs.5,36,493/-
4. Learned counsel appearing for the appellant/claimant in the present
appeal submits that the compensation is inadequate. He submits that no
payment has been made for functional disability suffered by the appellant
though it is on record that the appellant suffered 42% permanent disability in
relation to right upper and right lower limb. He further submits that future
prospects should also be awarded.
5. The Tribunal noted that the appellant was working as a Lab Assistant in
MLC Saraswati Bal Vidya Mandir at the time of the accident and he is still
working there. The Tribunal has noted that as per the appellant his salary has
been increased from Rs.11,970/- per month, which was the relevant salary on
the date of the accident, to Rs. 12,100/- per month. The Tribunal hence was of
MAC. APP.280/2011 & 330/2012
the opinion that the deceased has suffered no functional disability. Though it
computed the disability towards whole body at 25%, it did not award any
compensation on this count for functional disability.
6. The Supreme Court in the case of Raj Kumar vs. Ajay Kumar, (2011) 1
SCC 343 on the issue regarding computation of functional disability held as
follows:-
"14. 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
MAC. APP.280/2011 & 330/2012
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. Be that as it may."
7. Reference may also be had to the judgment of the Supreme Court in the
case of Dinesh Singh vs. Bajaj Allianz General Insurance Co. Ltd., 2014 ACJ
1412. That was a case in which the claimant suffered amputation of his left leg.
He had to resign from a job as an engineer and had to take up a job with
Industrial Centre Development Bank of India. The Supreme Court in those
facts held as follows:-
"10. ....Therefore, the reasoning of the High Court that the
appellant has not suffered any financial loss because of permanent
disability having regard to the fact that subsequently he took up
employment in Industrial Development Bank of India as a Grade -
B officer, cannot be sustained. Once the permanent disability is
fixed, taking into consideration its impact on the
employment/profession of the claimant, the compensation has to
be awarded."
8. In the present appeal, it is obvious as per the affidavit of PW-3 by way of
MAC. APP.280/2011 & 330/2012
evidence that he does not mention any monetary losses suffered by him.
9. However, we may look at the nature of the injuries suffered by the
appellant. In para 4 of his affidavit by way of evidence he states as follows:-
"4. ...... My right leg has shorted with 2-1/2 inch and there is non-
union of bone with infection on the right ankle. Two fingers of my
right leg have been amputated and two fingers (Index and little
finger) of my right hand have bent and deformed. I cannot walk
properly, cannot run, squat, lift any weight, cannot grip firmly with
my right hand and cannot even do my daily routine work in proper
manner due to the injuries sustained in the said accident."
10. Relevant portion of the disability certificate Ex.PW3/7 which shows
permanent disability of 42% of the right upper and right lower limb reads as
follows:-
"This is to certify that Sh.Deepak Gautam aged 42 years s/o
B.D.Gautam resident of Village Mungeshpur, P.O. Qutubgarh
Delhi whose specimen signature is given below is suffering
from a post traumatic case of amputation of distal phalanx of
Rt. Index finger with loss of lateral two toes of Rt. foot with
stiffness at Rt. ankle joint with 1-1/2" shortening of Rt. Lower
limb with permanent physical disability of 42% in relation to
Rt.Upper & Rt. Lower limb.
His disability is 42% (Fourty Two percent only).
This disability is permanent in nature."
11. In his affidavit by way of evidence he also states that he is working as a
Lab Assistant in MLC Saraswati Bal Mandir and getting a salary of Rs.
12,100/- per month. His certificate from school is exhibited as Ex.PW3/6 which
shows that he was getting a salary of Rs.11,970/-. The appellant is 41 years old.
12. In my opinion there is bound to a loss of growth prospects in the facts
MAC. APP.280/2011 & 330/2012
and circumstances of the case. In his job as a Lab Assistant he is bound to
experience some difficulty on account of the nature of the disability suffered by
him in performing his professional duties. He is also not working in a State
Organisation. Meaning thereby, being in the private sector a possibility of
being discharged or being moved to some other job with lesser amenities of
service cannot be ruled out.
13. I therefore assess the loss of his functional disability at 20%. His salary
was assessed at Rs.11,970/-. In view of the judgments of the Supreme Court in
the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54,
Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505 and V.Mekala vs.
M.Malathi & Anr., 2014 ACJ 1441, the appellant is entitled to 30% increase
on the assessed income on account of future prospects.
14. Hence the compensation for loss of income due to permanent disability
would come to Rs.5,22,850/-[(Rs.11,970 + 30%) x 12 x14 x 20/100].
15. In addition taking into account the nature of injuries suffered by the
appellant, the compensation for disfigurement is enhanced from Rs.10,000/- to
Rs.50,000/-. Similarly, for loss of amenities of life no compensation has been
awarded. Accordingly, I award Rs. 50,000/- for the same.
16. Total compensation now will be as follows:-
1. Loss of salary income Rs.5,33,850/-
2. Medical expenses Rs.1,72,553/-
3. Future treatment etc. Rs. 2,00,000/-
4. Special diet & Conveyance charges Rs. 30,000/-
5. Compensation for disfigurement Rs. 50,000/-
6. Pain and sufferings etc. Rs.1,00,000/-
7. Loss of amenities of life Rs.50,000/-
Total Rs.11,25,403/-
MAC. APP.280/2011 & 330/2012
17. The Insurance Company/respondent No.2 may deposit the enhanced
compensation amount along with accumulated interest @ 7.5% p.a. from the
date of filing of the claim petition till deposit in court before the Registrar
General of this High Court within six weeks from today. On deposit of the
amount, 50% of the same be released to the claimant/appellant as per the
directions of the Tribunal and the balance 50% be kept in a fixed deposit for a
period of five years with UCO Bank Delhi High Court Branch. The claimant
may take the interest at quarterly rests.
18. The appeal stands disposed of.
19. Now I will dispose of MAC. APP. 330/2012.
20. The Tribunal based on the evidence on record held that at the time of the
accident Sh. Bhupender Mathur/appellant No.2 was not holding a valid driving
license for the motorcycle. Accordingly the Tribunal held that though the
Insurance Company will pay the entire amount but the same shall be recovered
from the owner of the offending vehicle, namely, Sh. Jai Prakash/appellant
No.1 and the driver, namely, Sh.Bhupender Mathur/ appellant No.2. The
present appeal is filed seeking to impugn the said directions of the Award.
21. Along with the appeal the appellant has filed a photocopy of the driving
license of the second appellant Sh. Bhupender Mathur valid for the period of
the accident. This court on 30.11.2012 noted that the verification report from
the concerned licensing authority, Rohini pertaining to the licence of
Sh.Bhupender Mathur has been placed on record. Liberty was granted to the
Insurance Company to re-verify the genuineness of the driving license.
Learned counsel appearing for the Insurance Company submits that they found
the license to be genuine.
MAC. APP.280/2011 & 330/2012
22. In the light of the above facts, it is clear that the driver of the offending
vehicle had a valid driving license on the date of the accident. The Award of
the Tribunal to that extent stands modified. The liability to pay the award
amount shall be of the respondent Insurance Company only and not of the
appellants.
23. In case any statutory amount was deposited, the same may be released to
the appellants.
24. The appeal stands disposed of.
JAYANT NATH, J
DECEMBER 04, 2014
rb
MAC. APP.280/2011 & 330/2012
