Anju Kapoor vs Vijay Kumar Sharma & Ors.
2014 Latest Caselaw 5092 Del

$~A-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     MAC.APP. 1066/2006

                                          Date of decision : October 13, 2014

      ANJU KAPOOR                                            ..... Appellant
                          Through      Mr.S.N.Parashar, Advocate.

                          versus

      VIJAY KUMAR SHARMA & ORS.              ..... Respondents

Through Ms.Neerja Sachdeva, Advocate for Insurance Co.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J (Oral):

1. The present appeal is filed seeking enhancement of compensation by the claimant as awarded by the Tribunal in its Award dated 07.11.2006.

2. The brief facts are that the appellant was travelling in a staff bus to go to her office on 23.05.2003. When the bus reached at GT Road Flyover Delhi, another bus came from behind in a rash and negligent manner and hit the said bus in which the appellant was travelling. The appellant sustained grievous injuries. Based on the said injuries, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988.

3. Based on the evidence on record, the Tribunal awarded a lump sum compensation of Rs.2,50,000/-.

4. Learned counsel appearing for the appellant has urged that the Tribunal awarded compensation wholly contrary to the principles laid down by the Supreme Court in the case of Raj Kumar vs. Ajay Kumar & Anr. (2011) 1 SCC 343. It is urged that the Tribunal had to assess the functional disability and based on the same, the Tribunal had to compute the loss of future earnings based on the permanent disability of the appellant. It is averred that as per the disability certificate (Ex.P-1) issued by Lal Bahadur Shashtri Hospital, Government of NCT of Delhi, the appellant is suffering from paraparesis and having 75% permanent disability. It is pointed out that as per the evidence on record, the appellant was earning Rs.6,500/- per month. She has thereafter become bed ridden and hence is entitled to appropriate compensation on account of loss of earning capacity. It is further urged that no compensation has been paid for pain and sufferings and also for loss of amenities.

4. Learned counsel appearing for the respondent has on the other hand strenuously urged that the evidence of the appellant, who entered the witness box as PW-1, is contradictory and confusing. It is urged that the appellant states that she was working for S.Gopal and Company and Flag and Flavours Company. No proof is shown to prove her contention that the two companies are part of same group. It is further said that there is also no proof that the disability was caused by the accident. She relies upon the evidence of PW-5, Dr.Rajeev Kapil who has proved the disability certificate but has said in his cross-examination that he does not know as to whether the disability is due to the accident or not. She also relies upon the judgment of the Supreme Court in the case of Union of India & Ors. vs. C.N.Vasudevan, (2008) 7 SCC 308 to contend that the Supreme Court in the

similar facts and circumstances where the disability certificate was obtained much after the accident noted that the certificate is not proved as the author of the certificate was not examined. Regarding the reliance of the learned counsel for the respondent on the judgment of the Supreme Court in the case of Rajesh Kumar vs. Yudhvir Singh & Anr., (2008) 7 SCC 305, the said reliance is misconceived. The facts as narrated in the said judgment are completely different from the facts and circumstances of the present case.

5. The Tribunal noted that the name of the employer is S.Gopal and Company yet PW3 was summoned from Flag and Flavours Company. The Tribunal noted that no witness from S. Gopal and Company was summoned.

6. The Tribunal also noted that though the accident took place in 2003 and as per the record produced by PW-3, the appellant was discharged from her duties on 25.06.2005 (Ex.PW-3/B). Ex. PW-3/B shows that she retired on 25.06.2005. It was hence concluded that it is not clear as to whether the services were terminated or she was discharged for medical reasons. In her cross-examination, she accepts that she is still working and getting the same salary. On these facts and circumstances, the Tribunal concluded that it was unable to assess any loss of income owing to the disablement. Accordingly, the Tribunal gave a lump sum compensation of Rs.2,50,000/-.

7. We may look at the evidence of PW-1 the appellant which was recorded on 28.07.2004. She has said that she was on bed rest for three months. She confirms that she was working with S.Gopal and Company and Flag and Flavours Company which are part of the same group company. She further states that she has not recovered from the injuries even till today and she has got permanent disability. She states that she cannot stand properly due to the spinal fracture and her neck cannot be used properly and both her

legs have become weak and the left side of the body has become unconscious. In her cross-examination she has said as follows:-

"It is wrong to suggest that I have received injuries only on my neck and not on my spine or any other place. I have not received any benefit in regard to the accident from my office. ..... I am still employed in the same company. I am employed as a cashier. I go to the office by conveyance provided by my office. I am not a previous patient of diabetes and hypertension. ............... I go for physiotherapy thrice a week. It is correct that I do not use any stick/crutch for the support for my movement. I do not have any identity card or letter of appointment issued by my company at present. I was on leave from my office for 3 months. It is wrong to suggest that I am not still under treatment."

8. PW-3, Ramesh Chand Sharma, Clerk of Flag and Flavours Company has confirmed that the appellant was working as a cashier at a salary of Rs.6,575/- per month. He has also filed the salary report as Ex.PW-3/A. He has pointed out that after the accident she was not able to perform her duties due to handicap. She needed a person and for that reason she has been discharged from her duties. The relevant portion of his evidence read as follows:-

".. After the accident she was unable to perform her duty to handicapt and she need of a person for that reason she has been discharged from her duties on 25.6.05. The retirement report is Ex.PW-3/B (O.S.R.) Before the accident she was fit and she was not handicapt and she performed her duty very well. She was punctual to perform her duty during her service time. xxx by Sh.G.M. Gupta, Counsel for R1 and R2."

9. There is no cross-examination of the said witness despite opportunity. PW-5 Dr.Rajeev Kapil, Senior Physician, LBS Hospital has confirmed that

disability shown at 75% in Ex.P-1 is with respect to the whole body.

10. A statement of the appellant was recorded on 08.02.2005 which reads as follows:-

" I have got permanent disability due to the accident on 25.5.2003. My certificate Ex.P1(OSR). I am unable to move without helper. Today I have come before the court with the help of my daughter Ms.Bhawna.

Xxx by Sh.Shashi Bhushan Adv. for R3.

Nil. Opportunity given."

11. The Supreme Court in the case of Raj Kumar vs. Ajay Kumar & Anr.(supra) in para 10 held as follow:-

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation."

12. In the light of the above evidence, the finding recorded by the Tribunal that there is confusion as to who is the employer of the appellant

appears to be incorrect. PW-1 in her evidence clearly states that S.Gopal and Company and Flag and Flavours Company are part of the same group. PW-3 has proved the salary report as Ex.PW-3/A which is issued by S.Gopal and Company. PW-3 also states that he is a Clerk in Flag and Flavours Company which has its office at 240, Okhla Industrial Estate, Phase-III, New Delhi-

20. The salary report is issued by S.Gopal and Company. Merely because PW-3 states that he is a clerk of Flag and Flavours Company would not falsify the claim of the appellant the she was working for S.Gopal and Company. I may further note that Ex.PW-3/A which is a register of employment and remuneration shows that the address of S.Gopal and Company is also as 240, Okhla Industrial Estate, Phase-III, New Delhi-20, i.e. as Flag and Flavous Company. Read with evidence of PW-1, it is clear that Flag and Flavous Company and S. Gopal and Company are identical. Hence there is enough evidence on record to show that the appellant on the date of the accident was earning Rs.6,500/- per month.

13. Coming now to the assessment of functional disability. PW-5 Dr.Rajeev Kapil confirms that the disability shown is in respect of the whole body. As per the disability certificate, the appellant is suffering from paraparesis and has permanent disability of 75%. Paraparesis commonly indicates partial paralysis of the lower limbs. In her statement dated 08.02.2005. Appellant confirmed that she is unable to move without a helper. She was not cross-examined on this statement. Further as per ExPW- 3/B appellant has retired on 25.06.2005. In the light of this document and the other evidence on record, I assess the functional disability at 50%. Hence the appellant would be entitled to loss of wages of Rs.5,07,000/- (Rs.6,500/- x 12 x 13 x50%).

14. Coming to the other non-pecuniary damages, namely, pain and sufferings and loss of amenities. The appellant had initial treatment in GTB Hospital and was thereafter admitted for two days in Shanti Mukund Hospital. She also states that she was on bed rest for three months. She further states that she cannot stand properly due to spinal fracture and neck does not move properly, both her legs are weak and left side of the body has became unconscious due to the accident.

15. In view of the evidence on record, I award Rs.50,000/- for pain and suffering and Rs.50,000/- for loss of amenities. Accordingly, total compensation would now come to Rs.6,07,000/- break-up of which is as follows:-

       Heads of compensation                      Amount
         1. Loss of wages                    Rs.5,07,000/-
         2. Pain & Sufferings                 Rs.50,000/-
         3. Loss of Amenities                 Rs.50,000/-
              Total                          Rs.6,07,000/-

16. Respondent No.3 Insurance Company may deposit the additional amount as directed above by this court within four weeks from today with pendente lite interest @ 6.5 % per annum from the date of the filing of the petition till deposit in court. On deposit of the said amount, the amount may be released to the appellant as per the directions in the award.

17. The appeal stands disposed of.

JAYANT NATH, J OCTOBER 13, 2014 rb