Delhi High Court
East Delhi Municipal Corporation vs Shambhu Das & Anr. on 25 September, 2014
$~A-28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision 25.09.2014
+ MAC.APP. 385/2013
EAST DELHI MUNICIPAL CORPORATION ..... Appellant
Through Mr.Jagdish Sagar, Advocate.
versus
SHAMBHU DAS & ANR. ..... Respondents
Through None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeal is filed by the appellant seeking to impugn the
award dated 17.12.2012.
2. The brief facts are that respondent No.1 was going on a motorcycle
from Janak Puri to his residence at Jhilmil Colony. Near MCD Workshop
Depot, a garbage truck belonging to the appellant Municipal Corporation
said to be driven in a rash and negligent manner at a very high speed
suddenly took a turn just in front of respondent No.1, without any indicator
or signal. The bike of respondent No.1 hit the offending vehicle and
respondent No.1 fell down and suffered injuries. Respondent No.1 suffered
61% permanent disability in relation both lower limbs.
3. Based on the evidence on record, the Tribunal awarded the following
compensation:-
1. Compensation towards pain and Rs.80,000/-
sufferings
2. Loss of amenities and enjoyment Rs.80,000/-
3. Compensation towards
disfiguration and loss of
expectancy of life Rs.80,000/-
4. Loss of earning capacity due to
injuries Rs.5,12,870/-
5. Loss of earning of petitioner for 5 Rs.41,750/-
months @ Rs.8,350/- p.m.
6. Expenses towards medical bills Rs.72,894/-
7. Compensation towards
conveyance and special diet
(without bills) Rs.10,000/-
Total Rs.8,77,514/-
4. A perusal of the award shows that the Tribunal noted that the
disability certificate PW-1/2 shows that respondent No.1 has disability of
61% in relation to both lower limbs. The Tribunal in the facts and
circumstances assessed the functional disability at 32%. The Tribunal based
on the income records of respondent No.1 for the assessment year 2005-06
accepted the income as Rs.1,00,170/- per annum before the accident. As
respondent No.1 was aged 33 years, multiplier of 16 was taken and loss of
future earning on account of disability was calculated at Rs.5,12,870/-.
5. Learned counsel appearing for the appellant submits that the Tribunal
has ignoring the judgment of the Supreme Court in the case of Raj Kumar
vs. Ajay Kumar & Anr., 2011(1) SCC 343 granted huge compensation for
loss of earning capacity due to injuries. He submits that as per the income
tax record filed by the appellant, he was having a gross income of
Rs.1,00,170/- prior to the accident. He is now having an income of
Rs.7,000/- per month i.e. Rs.84,000/- per year. He further submits that as per
respondent No.1 himself, he was earlier doing supervisory work and now
also he is doing the same. Hence, he submits that there is no functional
disability suffered by respondent No.1 due to the accident and hence, no
compensation is payable on account of loss of earning capacity.
6. He secondly submits that the compensation awarded for non-
pecuniary heads including for pain and sufferings is on the higher side. He
relies on the judgment of the Supreme Court in the case of the Divisional
Controller, K.S.R.T.C. vs. Mahadeva Shetty & Anr., AIR 2003 SC 4172 to
contend that such high compensation awarded by the Tribunal is
inappropriate.
7. It may be noted that respondent No.1 was served through publication
and none appeared for him before the Registrar. On the last date of hearing
on 21.04.2014 also none appeared for respondent No.1. Today also none has
appeared for respondent No.1.
8. A perusal of the evidence of respondent No.1 shows the he has led no
evidence on the functional disability. The disability certificate Ex.PW-1/2
states that the injury is united S/T, Femur right, united neck of Femur and
implant in situ. Disability in relation to both lower limbs is prescribed as
61% permanent. It is issued by Lal Bahadur Shastri Hospital, Khichripur,
Govt. of NCT of Delhi.
9. The only averment in the affidavit of PW-1, namely, respondent No.1
by way of evidence is that he is seeking compensation on account of loss of
efficiency in doing his daily routine job. In his cross-examination, he had
added to the above as follows:-
"Now I am doing the job at a scrap shop. Earlier to the accident
I was in the business of trading/manufacturing of Silica Gel
pouches. I had a factory and labour to do the said work. It is
correct to suggest that my work was of supervising in nature.
Vol. My work was to bring the orders and to supply the
materials to the parties after the manufacturing the Silica Gel
pouches."
...
"My nature of work at present scrap shop is of supervising. I
earn Rs.7,000/- per month from the said work. It is wrong to
suggest that I have filed false and fabricated bills. It is wrong to
suggest that I am still running my factory and the said factory
was not closed."
10. PW-2, Superintendent of Income Tax has merely proved the income
tax returns for the assessment year 2005-06 Ex.PW-2/2. Dr. Vikas
Bhardwaj, Senior Resident (Ortho), Lok Nayak Hospital, Delhi/PW-3 has
only exhibited the record pertaining to treatment of respondent No.1. He
further states that respondent No.1 suffered right sided sub trochanteric
fracture and left sided fracture of neck of femur for which implants were
put.
11. The Supreme Court in the case of Raj Kumar vs. Ajay Kumar &
Anr.(supra) in para 19 held as follows:-
"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 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."
12. The only evidence on record filed by respondent No.1 pertaining to
functional disability is the averment in his cross-examination that he was
earlier doing his job of trading and manufacturing of Silica Gel pouches. He
had a factory and labours to do the work. The factory is now closed. He is
now doing the job at a scrap shop.
13. It is true that as per the evidence filed by respondent No.1 there does
not appear to be substantial effect on the income of respondent No.1 due to
the disability. He was earning Rs.1,00,170/- per annum before the accident
and after the accident he is earning Rs.84,000/- per annum. However, the
nature of the work has completely changed. Earlier he was doing his own
business and now he is working in a job at an income which is roughly 20%
less as per the income recorded in the income tax record. This is the only
evidence available on record to assess the functional disability of respondent
No.1.
14. In my opinion, as the loss of income being about 20%, it would be
appropriate that the functional disability is taken as 20% in the facts and
circumstances of this case. Hence, the loss of future earnings would now
come to Rs.3,20,544/- (1,00,170/- x 16 x 20%).
15. Coming to the non-pecuniary damages granted, i.e. Rs.80,000/- for
pain and sufferings, Rs.80,000/- for loss of amenities and enjoyment and
Rs.80,000/- as compensation towards disfiguration and loss of expectancy of
life. In my view these compensations awarded are reasonable and cannot be
found fault with. Reference in this context may be had to the judgments of
the Supreme Court in the case of Kavita vs. Deepak and Ors., (2012) 8 SCC
604; V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441 and Rekha Jain vs.
National Insurance Company Limited in Civil Appeal Nos.5370-5372 of
2013 dated August 01, 2013.
16. Hence, the total compensation would now come to as follows:-
1. Compensation towards pain and Rs.80,000/-
sufferings
2. Loss of amenities and enjoyment Rs.80,000/-
3. Compensation towards
disfiguration and loss of
expectancy of life Rs.80,000/-
4. Loss of earning capacity due to
injuries Rs.3,20,544/-
5. Loss of earning of petitioner for 5
months @ Rs.8,350/- p.m. Rs.41,750/-
6. Expenses towards medical bills Rs.72,894/-
7. Compensation towards
conveyance and special diet
(without bills) Rs.10,000/-
Total Rs.6,85,188/-
17. As per the interim order of this court dated 01.05.2013, the appellant
was directed to deposit the entire award amount with up to date interest. On
deposit, 60% of the award amount was to be released in favour of the
claimant. The balance was to be kept in FDR with UCO Bank, Delhi High
Court Branch. The Registrar General may now release the amount as per the
directions in this order with accumulated proportionate interest in favour of
respondent No.1/claimant and the balance amount with accumulated
proportionate interest may be released to the appellant.
18. Statutory amount, if any deposited by the appellant at the time of
filing of the appeal be refunded to the appellant.
19. The appeal stands disposed of.
JAYANT NATH, J
SEPTEMBER 25, 2014
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