Delhi High Court
Vijay Pal vs Pawan Kumar Saini & Ors on 29 January, 2015
Author: G.P. Mittal
$-12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 29th January, 2015
+ MAC.APP. 827/2013
VIJAY PAL
..... Appellant
Through: Mr. O.P. Mannie, Advocate
versus
PAWAN KUMAR SAINI & ORS. ..... Respondents
Through: Mr. S.L. Gupta, Advocate for
Respondent no.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is for enhancement of compensation of
Rs.7,94,478/- awarded by the Motor Accident Claims Tribunal
(the Claims Tribunal) by the judgment dated 06.05.2013.
2. The details of the compensation awarded by the Claims
Tribunal is given hereunder:
Sl.No. Compensation under various Awarded by
heads the Claims
Tribunal
1. Medicines and Treatment Rs.5,24,482/-
2. Pain and Suffering Rs.50,000/-
3. Loss of Income Rs.1,89,996/-
4. Conveyance and Special Diet Rs.20,000/-
5. Loss of Amenities Rs.10,000/-
Total Rs.7,94,478/-
3. It is urged by the learned counsel for the Appellant that no
compensation has been awarded towards loss of earning
capacity on account of permanent disability. Compensation
awarded towards pain and suffering, conveyance and special
diet and loss of amenities is on the lower side. No
compensation has been awarded towards attendant charges,
whereas compensation awarded towards loss of income is only
for 12 months as against the period of 15 months for which the
Appellant was actually away from work.
4. During pendency of the appeal, the Appellant was referred to
the Medical Superintendent, Hindu Rao Hospital, Malkaganj to
assess his permanent disability. A certificate dated 11.01.2014
was issued and sent to this Court by the Medical Board. The
medical certificate shows that the Appellant has suffered 15%
permanent physical impairment in relation to his right lower
limb. It is a matter of record that on account of injuries suffered
in the accident, there was total hip replacement (As clear from
certificate Ex.PW1/120). The Appellant was advised not to sit
cross-leg or squat to avoid dislocation of hip prosthesis and for
prolonged life of hip implant.
LOSS OF EARNING CAPACITY:
5. It is well-settled that compensation on account of permanent
disability affecting earning capacity can be granted only when
the disability actually affects the earning capacity of the injured.
(Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343). In the
instant case, PW-3 Anil Kumar Sharma was examined by the
Appellant who testified that the Appellant rejoined his duty in
April, 2011. It is nowhere the case of the Appellant that his
salary was reduced. So practically, there was no loss of earning
capacity suffered by the Appellant.
6. At the same time, it may be noticed that the Appellant was
working as a Site Engineer with K.R. Anand, Engineers and
Contractors. Although the Appellant's salary immediately on
joining his duty was not affected, but on account of total hip
replacement, his earning capacity and potential income were
definitely affected. The Appellant may always not work with
the present employer. Total Hip replacement does have an
impact on the working capacity. In the circumstances, I would
make a guess work and take functional disability affecting
earning capacity to the extent of 7.5% as against the disability
of 15% as per the Disability Certificate issued by the Medical
Board. On a salary of Rs.16,000/- per month and applying a
multiplier of 15 on the age of the Appellant being 39 years,
compensation on account of loss of earning capacity comes to
Rs.2,16,000 (Rs.16,000/- x 7.5% x 12 x 15).
ATTENDANT CHARGES:
7. The Appellant suffered fracture NOF right, fracture ribs, hip
fracture and consequently, there was hip replacement. He was
admitted in Orthoplus Hospital from 26.12.2009 to 23.01.2010
and then from 02.06.2010 to 15.06.2010. Considering the
nature of injuries, the Appellant did require an attendant. Even
if gratuitous services were rendered by some family members,
the Appellant would be entitled to compensation for the same. I
am therefore, inclined to grant compensation for a period of six
months @ Rs.4,000/- per month amounting to Rs.24,000/-.
CONVEYANCE AND SPECIAL DIET:
8. Considering the prolonged treatment, the lumpsum
compensation of Rs.20,000/- awarded towards conveyance and
special diet is raised to Rs.20,000/- each towards conveyance
and special diet.
PAIN AND SUFFERING & LOSS OF AMENITIES:
9. From the certificate Ex.PW1/120 and the fact that the Appellant
had to undergo total hip replacement, he will always have
difficulty in sitting cross-legs, squatting, running and standing
for a longer period. Compensation of Rs.50,000/- towards pain
and suffering and Rs.10,000/- towards loss of amenities was on
the lower side. I would award a sum of Rs.75,000/- towards
pain and suffering and Rs.1,00,000/- towards loss of amenities.
LOSS OF INCOME:
10. It is proved that the Appellant was unable to perform duty for a
period of 15 months. I would award a compensation of
Rs.2,37,495/- instead of Rs.1,89,996/- towards the same.
11. The recomputed compensation is tabulated hereunder:
Sl.No. Compensation Awarded by Awarded by
under various heads the Claims this Court
Tribunal
1. Loss of Earning - Rs.2,16,000/-
Capacity
2. Attendant Charges - Rs.24,000/-
3. Conveyance and Rs.20,000/- Rs.40,000/-
Special Diet
4. Pain and Suffering & Rs.60,000/- Rs.1,75,000/-
Loss of Amenities (Rs.50,000 + (Rs.75,000/- +
Rs.10,000) Rs.1,00,000/-)
5. Loss of Income Rs.1,89,996/- Rs.2,37,495/-
6. Medicines and Rs.5,24,482/- Rs.5,24,482/-
Treatment
Total Rs.7,94,478/- Rs.12,16,977/
-
12. The compensation is thus, enhanced by Rs.4,22,499/-.
13. The enhanced compensation of Rs.4,22,499/- shall carry interest
@ 7.5% per annum.
14. 75% of the enhanced compensation shall be held in Fixed
Deposit for a period of two years, four years, six years and eight
years in equal proportion. Rest of the amount shall be released
on deposit.
15. The enhanced compensation along with proportionate interest
shall be deposited with the Claims Tribunal within four weeks
by Respondent no.3 New India Assurance Company Ltd.,
failing which the enhanced compensation shall carry interest @
12% per annum from the date of this order.
16. The appeal is allowed in above terms.
17. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 29, 2015
pst
