Delhi High Court
The Oriental Insurance Company ... vs Dev Subha And Anr on 8 December, 2014
$~A-36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 08.12.2014
+ MAC.APP. 1104/2014 and CM No. 20052/2014(stay)
THE ORIENTAL INSURANCE COMPANY LIMITED..... Appellant
Through Mr.R.C.Mohan, Advocate.
versus
DEV SUBHA AND ANR ..... Respondents
Through None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. The present appeal is filed seeking to impugn the Award dated
8.09.2014.
2. A perusal of the Award shows that on 17.12.2012 the
claimant/respondent No.1 reached at East Metro Station, Janak Puri, Delhi
on a two-wheeler scooty. The offending vehicle hit the scooty and the
petitioner and his friend who were travelling on the scooty fell down and
sustained injuries.
3. Based on the evidence on record, the Tribunal granted a total
compensation of Rs.12,64,040/- as follows:-
Treatment expenses: Rs.5,000/-
Pain and sufferings: Rs.75,000/-
Conveyance, attendant charges & special Rs.50,000/-
diet:
Loss of future earnings capacity due to Rs.9,97,110/-
disability
Loss of enjoyment of life: Rs.50,000/-
Loss of income during treatment: Rs.36,930/-
Loss of marriage prospects Rs.50,000/-
Total Rs.12,64,040/-
4. The Tribunal noted that respondent No.1 was working as a Waiter in a
restaurant. He was said to be earning Rs. 6,155/- per month. As under the
Minimum Wages Act the wages for an unskilled person were Rs.7,254/-
p.m., accordingly, the income of the petitioner was accepted as Rs.6,155/-
p.m. along with 50% enhancement on account of future prospects. Keeping
in view that respondent No.1 suffered 30% permanent disability in relation
to his left lower limb, the Tribunal assessed the functional disability at 50%
and accordingly awarded a sum of Rs.9,97,110/- for loss of future earnings
capacity due to disability.
5. Learned counsel appearing for the appellant submits that functional
disability has been wrongly assessed at 50% which is very much on the
higher side. He submits that as per the affidavit by way of evidence filed by
respondent No.1, he suffered no loss of income inasmuch as he has
continued to work as a Waiter. Learned counsel relies upon the judgment of
this High Court in MAC. APP.602/2011 titled as Oriental Insurance Co.
Ltd. vs. A Mohan & Ors. dated 14.03.2012. That was a case of a Room
Attendant working in Hotel Maurya. In that case this court on the basis of
evidence on record had concluded that as the salary of the claimant was not
affected, there was no loss of future earnings.
6. As far as functional disability is concerned, 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 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. In the present case in the evidence by way of affidavit respondent
No.1 said as follows:-
"4. That inured is waiter in a restaurant and used to earn
Rs.6,155/- per month. But due to this unfortunate accident the
injured could not join the said job for over 7 months. That the
injured was also attended by the family members at the time of
treatment as well as recuperation.
5.That due to this accident, the injured has suffered great
mental pain and agony, loss of enjoyment of life, impairment
of body, pain and suffering nervous shock, loss of pleasure of
amenities of life, shortening of life, disfigurement, discomfort,
inconvenience etc. therefore, the deponent is entitled to claim
compensation.
6. That all the respondents are jointly and severally liable to
pay the compensation to the deponent."
8. The permanent disability certificate states the disability as follows:-
".. is a case of Post traumatic stiffness of left hip joint. He is
physically disabled and has 30% (thirty percent) permanent
physical disability in relation to his left lower limb."
9. A waiter working in a restaurant has to be physically active. It is
implicit that if he has 30% permanent physical disability of left lower limb
and stiffness of hip joint as described by the disability certificate, he will
have difficulty in performing his functional duties as a waiter. It would
severally affect his overall capacity of working. Given the competition in
this unorganised sector, there would certainly be loss of earnings.
10. In the light of the above I see no reason to differ with the view
expressed by the Tribunal assessing the functional disability at 50%.
11. As far as the judgment of this court in the case of Oriental Insurance
Co. Ltd. vs. A Mohan & Ors.(supra) is concerned, the facts show that the
claimant in that case was working as a Room attendant. He had admitted
that he had suffered no loss of income. It was in those facts that this court
reached a conclusion there was no loss of income. Further, that was a case
where the certificate only showed that there was limited knee stiffness. It
does not appear from the facts of that case that any disability certificate was
placed on record to show the extent of disability suffered by the claimant.
The said judgment would have no application to the facts of this case.
12. There is no merit in the submissions of the learned counsel appearing
for the appellant.
13. The present appeal is dismissed.
14. The appellant may comply with the award within four weeks from
today.
15. Statutory amount, if any, be refunded to the appellant.
16. Interim orders, if any, stand vacated.
JAYANT NATH, J
DECEMBER 08, 2014
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