Alam Khan vs Baldev Singh & Ors
2014 Latest Caselaw 2489 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+       MAC.APP.231/2012

                   Judgment reserved on: 6th May, 2014

%                  Judgment pronounced on: 16th May, 2014

        ALAM KHAN                                 ..... Appellant
                         Through :    Mr.S.N.Parashar and
                                      Ms.Monika, Adv.

                         versus

        BALDEV SINGH & ORS.                      ..... Respondents
                     Through :        Mr.J.P.N.Shahi, Adv. for
                                      R-3

        CORAM:
        HON'BLE MS. JUSTICE DEEPA SHARMA

        JUDGMENT

1. The petitioner has assailed the award dated 22.07.2011 in

petition No.621/2010, under Section 166 and 140 of Motor Vehicle

Act, 1988, claiming a compensation of Rs.10 lakhs for the injuries

suffered by him in the accident which had taken place on 28 th July,

2006.

2. On 28th July, 2006 at about 2.30 a.m. the appellant Alam

Khan along with his son Salman Khan was sitting at the bus stand

Malviya Nagar waiting for the rain to stop. One Tata Qualis no.DL

Q vb 1585 came at a very high speed in a rash and negligent

manner violating the traffic rules and norms, without blowing any

horn, from Badarpur side and hit the appellant and his son. The

appellant had received grievous injuries, multiple injuries and

fracture on his legs in this accident. He was taken to AIIMS and

thereafter due to RTA shifted to Safdarjang Hospital. His

treatement continued till 4th April, 2008. The contention of the

appellant is that he was the President of Education and Economic

Development Society and was earning Rs.8,000/- per month. His

age at the time of accident was 47 years and till his accident he had

enjoyed good health. He lost his job due to this accident and also

suffered permanent disability of 69% on both his limbs. He has

also alleged that he had suffered great mental pain, agony, shock

and trauma and his health has also got deteriorated. He has

claimed the compensation of Rs. 10 lacs.

3. The learned tribunal, after conclusion of the trial returned the

findings that the injuries had been received by the appellant due to

rash and negligent driving of the vehicle no. DL Q vb 1585. The

liability to pay compensation was fixed on Insurance Company

being the insurer. There is no challenge to the findings of the

tribunal on this count. The findings of the tribunal that the accident

is the result of rash and negligent driving of vehicle No.DL Q vb

1585 has become final.

4. Vide order dated 22nd July, 2011, the Tribunal had awarded

a compensation of Rs.4,72,400/- to the appellant which included

medical expenses of Rs. 95,000/-, pain and suffering and

enjoyment of life of Rs. 35,000/-, special diet of Rs. 25,000/-,

attendant of Rs. 15,000/-, conveyance charges of Rs. 25,000/-, loss

of income of Rs. 20,000/-, loss of future income of Rs. 2,57,400/-.

5. The main contention of the appellant is that the Tribunal had

wrongly resorted to adopting the minimum wages of a skilled

worker for calculation of the future loss of earning and that it has

also wrongly reduced its disability from 69% to 50%. It is further

submitted that appellant was working as a President of the

Education and Economic Society and was drawing a salary of

Rs.8000/- per month and that there was no rebuttal of this fact. It is

further submitted that the minimum wages of skilled worker were

Rs. 3695/- while the computation of the future loss of income has

been done on wages of Rs.3271/-. The computation therefore is

done wrongly.

6. The service of the respondent no.1, the owner and

respondent no.2, the driver of the offending vehicle had been

dispensed with vide order 2nd March, 2012 of this court as there

was no breach of policy condition. The liability to pay the

compensation has been fixed by the insurance company.

7. The insurance company has not disputed its liability to pay

the compensation, it is however contended by the learned counsel

for the insurance company that the learned trial court has rightly

adopted the course of minimum wages of skilled worker while

calculating the loss of future income since the appellant had failed

to prove his income. It is, however, conceded that at the relevant

time the minimum wages of the skilled worker were Rs.3695/-. It

is also contended by the insurance company that the learned

tribunal has rightly assessed the functional disability by 50% for

calculating the loss of future income.

8. I have gone through the lower court record. The record

shows that the injured/appellant had failed to produce any evidence

on record to prove his employment with the Education &

Economic Society. The salary certificates which were produced

before the Tribunal also does not show that he was in the

employment of Education and Economic Society. The salary

certificates or the private account certificates for the year

31.03.2006 (Ex.PW1/167), his statement of income shown in the

document Ex.PW1/166 and Ex.PW1/168 and the documents

Ex.PW1/169 do not support the contention of the appellant that he

was working as President of the Education and Economic Society.

9. These documents tend to show him as the proprietor of STD

PCO and Laboratory Work. The learned Tribunal has thus rightly

disbelieved these documents and had taken recourse to the

minimum wages. It is undisputed fact that minimum wages at that

time were Rs.3695/- and not Rs.3271/- and the learned Tribunal

ought to have done the computation on the basis of minimum

wages at the rate of Rs.3695/-.

10. The next argument of the appellant Alam Khan is that he lost

his job with the Education and Economic Society as a result of this

accident. None of the documents on record suggest that the

appellant was in the employment of Education and Economic

Society, therefore there was no question of his loosing the job with

the Education and Economic Society. No document has been

produced on record to prove the termination of his service by the

Society. It is a settled principle of law that it is for the appellant to

prove these facts by producing on record some cogent evidence.

11. The contention of the appellant is that he had suffered

disability of 69% which rendered him jobless but the tribunal has

wrongly assessed his disability as 50%.

12. The Hon'ble Supreme Court in the case of (2011) 1 SCC 343

titled as Raj Kumar vs. Ajay Kumar and Another, has clearly laid

down the guiding principles to be reckoned while calculating the

future loss of earnings due to permanent disability. The Hon'ble

Court has held as under:

12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:

(i) whether the disablement is permanent or temporary;

(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;

(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.

If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

13. 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 disability (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.

19. We may now summarise the principles discussed above:

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

13. It is therefore clear that the assessment of the loss of earning

capacity has to be done on the basis of incapacity of the injured to

perform the job in the same manner as he would have been able to

perform, had he not suffered the permanent disability. Burden is

upon the injured to produce such evidence which helps the court in

determining the extent of loss of use of his limbs in his capacity to

earn his livelihood. The Apex court has also clearly stated that

while calculating the loss of future earning, the court has to take

into consideration the effect of the disabled limb on the functioning

of the entire body. The injured appellant had to produce on record

such evidence which could help the court to conclude that due to

his permanent disability his earning capacity has been totally

affected or that there is a total loss of income. In this case, the

appellant had even failed to prove on record the nature of his work

or vocation. According to him, he was the President of Education

and Economic Society but still he had not disclosed his nature of

work. He has thus failed to prove on record that this accident has

made him incapable of earning any livelihood. He thus has failed

to show that due to 69% of disability he has suffered 100% loss of

income. In these circumstances, the tribunal has rightly calculated

the said loss to the extent of 50%.

14. There is no dispute that the age of the appellant at the time of

accident was 47 years. The multiplier of 12 has been correctly used

by the tribunal.

15. The appellant has also contended that the Tribunal has

awarded a meagre consolidated sum of Rs.25000/- towards

conveyance and special diet although he had spent a substantial

amount towards his conveyance and special diet during course of

his treatment and that he was admitted as an indoor patient for

three times and also remained in the hospital from 11.10.2006 to

18.10.2006 and 27.11.2006 to 2.12.2006 and after his discharge he

was treated as an OPD patient till 04.04.2008 as per exhibited

medical record. The appellant had claimed that amount of Rs.

25,000/- be awarded towards conveyance and a sum of Rs.

25,000/- be awarded to special diet.

16. This argument is misconceived since the tribunal had already

awarded a sum of Rs. 25,000/- each towards conveyance and

special diet. It is noteworthy that in the petition, the appellant has

claimed Rs.10,000/- towards conveyance and Rs.10,000/- towards

special diet. Despite that the learned Tribunal has awarded him

Rs.25,000/- each for conveyance and special diet, much more than

the amount claimed by the appellant in his petition before tribunal.

The amount certainly is not meagre and is sufficient to meet the

conveyance and the special diet which he must have incurred. The

amount of Rs.15000/- had been awarded towards attendant charges

and I am satisfied that under these circumstances the amount was

appropriate. The amount of Rs. 35,000/- towards pain and

suffering and loss of amenities is also sufficient and does not

require any intervention by this court.

17. I, therefore, award the total compensation as under:

MEDICAL EXPENSES:                         Rs. 95,000/-

PAIN AND SUFFERINGS &

ENJOYMENT OF LIFE                         Rs. 35,000/-

SPECIAL DIET                              Rs. 25,000/-

ATTENDANT                                 Rs. 15,000/-

CONVEYANCE CHARGES                        Rs. 25,000/-

LOSS OF INCOME                            Rs. 20,000/-

LOSS OF FUTURE INCOME                     Rs.2,88,210/- (3695/- x 12 =

                                          44,340 x 13 x 50%)

                                          Rs.5,03,210/-

18. A sum of Rs.5,03,210/- as compensation along with interest

at the rate of Rs. 9% from the date of petition, is awarded to the

appellant. The awarded amount shall be deposited by the insurance

company within six weeks from today failing which they will incur

an interest at the rate of Rs. 12% on expiry of stipulated period of

making the payment. Out of the awarded amount, a sum of Rs. 2.5

lacs be kept in form of FDR for the period of 5 years in the name of

Alam Khan in State Bank of India, Saket Branch. No loan shall be

granted to him against the said FDR. He can withdraw the money

from the said FDR only with the permission of the court.

19. The Insurance Company shall inform the appellant about

deposit of the awarded amount so as to facilitate him to withdraw

the same.

20. The appeal stands disposed of.

DEEPA SHARMA, J MAY 16, 2014 rb