Delhi High Court
Gurmail Singh vs Sm Sethi & Anr on 17 October, 2014
$~A-12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:17th October, 2014
+ MAC.APP. 1157/2011
GURMAIL SINGH ..... Appellant
Through Mr. Vijay Wadhwa, Advocate
versus
SM SETHI & ANR ..... Respondents
Through Mr. S.L. Gupta and Mr. Ram Ashrey,
Advocates
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
CM 17403/2012
1. This is an application for condonation of delay of 405 days. As per the
application, there is a delay of 405 days in filing the accompanying appeal.
The Award was passed on 31.07.2010.
2. The appellant moved an application under order 151 CPC for seeking
modification in the said Award on 16.12.2010. The case file was
summoned. This application was dismissed vied order dated 12.09.2011
when the tribunal held that the application is not maintainable and the
appropriate remedy for the appellant is to file an appeal. This appeal was
thereafter filed on 09.12.2011.
3. Learned counsel for the appellant submits that the delay took place on
account of filing this application before the tribunal. He, hence, submits that
it is sufficient ground for condonation of delay.
4. In my opinion there is sufficient explanation for the late filing of the
appeal. The application is allowed and the delay in filing the appeal is
condoned.
MAC.APP. 1157/2011
5. The present appeal has been filed seeking enhancement of
compensation as awarded by the tribunal in its Award dated 31.07.2010.
6. The brief facts which led to the filing of the claim petition are that the
appellant was the driver of the Maruti Van and was driving the offending
vehicle with 6 passengers on 29.06.2006. When he was proceeding towards
the Nizamuddin, at Moti Lal Nehru Marg, a Santro driven by respondent
No.1 coming from the wrong side in rash and negligent manner hit the
Maruti Van from the front side. The appellant received injuries and was
moved to hospital. A nail was inserted on his right leg after bone grafting.
He was discharged on 13.09.2006.
7. Based on the evidence on record, the tribunal recorded that the
accident took place due to the rash and negligent driving by respondent
No.1.
8. On compensation, the tribunal awarded 16,403/- on account of
Medical expenses; Rs.15,000/- on account of pain and suffering; Rs.5,000/-
on account of special diet and conveyance and Rs.32,000/- for loss of wages.
Hence the total compensation of Rs.68,403/- was awarded along with
interest @ 8% per annum.
9. Learned counsel for the appellant submits that the compensation
awarded by the tribunal is meagre and grossly inadequate. He submits that
tribunal has noted that the appellant has suffered 20% disability in relation
to the left lower limb. He submits that this disability as per the doctor PW2
is of the whole body. He submits that hence the loss of future income on
account of disability should also have been awarded by the tribunal after
assessing the functional disability of the appellant. He further submits that
the compensation awarded for non-pecuniary losses, mental pain and agony,
special diet and conveyance is grossly inadequate. He further submits that
there is no compensation awarded for loss of amenities.
10. I will first deal with the first issue raised by the appellant pertaining to
the assessment of functional disability and loss of wages thereto.
PW1/appellant, in his affidavit by way of evidence, regarding his functional
disability has deposed as follows:
"I say that at the time of my accident, I was a hale and
hearty person of 30 years old. Due to the said multiple
fractures on my both legs and other grievous injuries, as
described in the MLC, Discharge Summary and other
medical papers, I would not be able to work as a driver, in
future. Even I would not be able to do my routine functions
easily. I would not be able to walk without the help of a
wooden stick and I would also not be able to flex my both
the legs properly, as that of earlier. Therefore, I have
become a permanent disabled person and thus my entire
remaining life has been spoiled."
11. There is no cross examination by any of the counsels on the said
portion of the evidence of PW1.
12. Coming to the disability suffered by the appellant. The disability
certificate, Ex.PW2/A notes that the appellant is a case of "Left Shaft Tibia
# with ORIF done with soft tissue Ankylosis". The physical disability is
mentioned as „INSUFFICIENT‟.
13. PW2, Dr. Satish Kumar, Sr. Orthopaedic Surgeon who was also a
member of the Board that examined disability certificate stated that the
disability certificate does not mention the percentage of disability as the
Board was not informed that the appellant wants the certificate for the Court.
PW2 further stated that he has examined the appellant in the Court and has
found that 20% disability of a part left lower limb and that this disability
should be considered for the whole body and that it is permanent. There is
no cross examination. It appears that this witness, despite opportunity, was
never cross examined.
14. Learned counsel for the respondent/insurance company submits that
PW2 cannot change the content of the disability certificate by adding
through oral testimony. He secondly submits that by the present appeal the
appellant seeks to challenge two orders and further that after the Award the
appellant had filed an application under Section 152 CPC which was also
dismissed and which application did not grant liberty to the appellant to
approach this Court.
15. The Supreme Court in the case of Raj Kumar v. Ajay Kumar IV 2010
ACC 815 noted as follows:
"13. 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 percentage of loss of earning
capacity is the same as 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 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."
16. It may be noted that specific example is given in the said judgment
stating that where a claimant was a driver and if the left hand of claimant is
amputated and permanent physical disability is assessed to be 60%, he may
not be able to drive the vehicle and hence actual loss of earning capacity
may be virtually 100%. The judgment further states that on the other hand if
the claimant was a clerk in government service, loss of left hand may not
result in loss of employment and there may be no loss of earning capacity.
This example would be useful in the present case.
17. Regarding the objection raised by the learned counsel for the
respondent/insurance company that the disability certificate does not give
any percentage of permanent disability suffered by the appellant and PW2
could not change disability certification, this contention is without merit.
The disability certificate is silent on the percentage of disability suffered by
the appellant. The explanation given by PW2 sounds quite plausible. He
has merely clarified the disability certificate.
18. In my opinion, on a combined reading of the disability certificate
Ex.PW2/A, the unrebutted evidence of PW1 and PW2, it would be
appropriate to assess the loss of earning capacity due to disability of the
appellant at 20%. Accordingly, the appellant would be entitled to additional
compensation on account of loss of future earnings.
19. The minimum wages for a skilled worker at the relevant date of the
accident was Rs.3,695/- per month. The appellant on the date of accident
was of 32 years of age. Hence on the assessed income there will be an
increase of 50% on account of future prospects and a multiplier of 17 would
be applicable. Accordingly, loss of wages on account of disability suffered
would be: Rs.2,26,134/- [(3695+50%) X 12 X 17 X 20%].
20. On the issue of non-pecuniary damages, the relevant portion of
evidence of PW1, where the appellant has narrated regarding pain and
suffering suffered by him is as follows:
"....As a result of the aforesaid accident, I became unconscious
on the spot and sustained multiple fractures on my both legs,
severe head injury, and also sustained abrasions, wounds and
other grievous injuries on all over my body.
3. I say that after the aforesaid accident, I was taken to
Dr.R.M.L. Hospital, New Delhi, for treatment, where my M.L.C.
was made bearing No.82980/06, where I remained unconscious
for a long period. During my treatment, rod and nailing system
was inserted/fixed in my right leg after conducting the operation
on 1.8.2006 and bone grafting was also done on my right leg.
The external rods/rings with screws were fixed on my left leg
after conducting the necessary operation on 29.6.06. After the
prolonged treatment and required operations were conducted, I
was discharged on 13.9.2006. Photocopy of the Discharge Report
is Ex.PW-1/1 (original seen and returned).
4. I say that thereafter, I remained under regular treatment
in the aforesaid Hospital as an OPD patient. The OPD cards are
Ex.PW-1/2 to Ex.PW-1/5. During my treatment, the required
tests and X-Rays were taken from time to time. The X-Rays and
Test Reports are Ex.PW-1/6 to Ex.PW-1/23."
21. There is no cross examination of PW1 on this part of evidence.
22. Accordingly, in view of the facts and circumstances of the present
case, I enhance the payment of compensation on account of pain and
suffering from Rs.15,000/- to Rs.50,000/-. I also award a sum of Rs.50,000/-
as loss of amenities.
23. The total compensation would now read as follows:-
1. Medical expenses Rs.16,403/-
2. Pain and sufferings Rs.50,000/-
3. Special diet and conveyance Rs. 5,000/-
4. Loss of wages Rs.32,000/-
5. Loss of future earning Rs.2,26,134/-
6. Loss of amenities Rs.50,000/-
a. Total Rs,3,79,537/-
24. Regarding the objection of learned counsel for the respondent that by
one appeal, two orders cannot be challenged, the said objections are
misplaced. Reading of the prayer no doubt, shows that prayer clause seeks
challenge to the award dated 31.07.2010 and the order dated 12.09.2011
passed on the application for modification of the award. In my opinion, the
challenge to the order dated 12.09.2011 is misplaced and redundant. Even if
the appellant had not challenged the order 12.09.2011, the remedy of
challenging the order dated 31.07.2010 in appeal, subject to condonation of
delay, was still available to the appellant. There is no merit in the objection.
25. The respondent insurance company shall deposit the additional
amount as directed by this Court along with pendente lite interest from the
date of filing of the claim till deposit in the Court @ 8% per annum within
four weeks from today. On receipt of the said amount, the Registrar General
shall release the amount to the appellant.
26. The appeal stands disposed of.
JAYANT NATH, J
OCTOBER 17, 2014
'raj'
