Delhi High Court
Balbir Singh Punia vs Manoj Kumar & Ors on 15 February, 2016
Author: R. K. Gauba
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15th February, 2016
+ MAC.APP. 28/2009
BALBIR SINGH PUNIA ..... Appellant
Through: Mr. S. N. Parashar, Adv.
versus
MANOJ KUMAR & ORS ..... Respondents
Through: Mr. Rahul Kumar, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appellant suffered injuries in a motor vehicular accident that
occurred at about 11:45 PM on 31.12.2004 involving bus bearing
registration no.DL-1PB-3563 which was concededly insured against the
third party risk with the third respondent herein (insurer). The appellant
brought claim petition under Sections 166 and 140 of the Motor
Vehicles Act, 1988 (the MV Act) before the motor accident claims
tribunal (the tribunal) which was registered as suit no.95/2008. The
owner and the driver of the offending vehicle were also impleaded in
addition to insurer as party respondent. The tribunal held an inquiry and
by judgment dated 28.07.2008 awarded compensation in the sum of
`3,41,500/- with interest, directing the insurer to pay.
2. Though the appeal was filed on several grounds, it is pressed
mainly on the ground that the loss of future earning capacity was not
adjudicated properly by the tribunal. In addition, he also claims that he
deserves to be compensated for the artificial limb for which he would
require to undergo certain further procedures and limb's procurement
through agency engaged in the business of providing clinical
rehabilitation services. On liberty being granted for such purpose, on
application under Order 41 Rule 27 of Code of Civil Procedure, 1908
(CPC), he examined Susambit Sarangi, Certified Prosthesis Officer
(CPO) of Clinical Rehabilitation Services in the company described as
Otto Bock Healthcare India in this regard on 11.01.2013.
3. Arguments have been heard. The tribunal's record and the
additional evidence adduced during the pendency of the appellant have
been perused.
4. The appellant had proved, inter-alia, through disability certificate
(Ex.PW2/25) before the tribunal that on account of injuries suffered in
the accident, he has been rendered permanently disabled on account of
post-traumatic above knee amputation in the left lower limb, the
disability having been assessed to the extent of eighty percent (80%) in
relation to the said part of the body. Having regard to (the item at serial
no.21 part II of the first schedule appended to) the Employees'
Compensation Act, 1923, amputation below results in loss of earning
capacity to the extent of fifty percent (50%).
5. The tribunal awarded lump sum of `1,00,000/- on account of such
earning capacity observing that the appellant had not suffered any actual
loss of earning. It is noted that the appellant was working at the relevant
point of time as peon in All India Radio. At the time of accident that
occurred on 31.12.2004, the appellant was 35 years old. Concededly, he
did not suffer loss of job on account of injuries or permanent disability.
Superannuation would occur in due course, at the age of 60 years.
Undoubtedly, retirement from the government service does not mean the
possibility of the appellant working for gain would no longer subsist.
Thus, loss of earning capacity post-retirement from the government job
deserves to be compensated.
6. On the date of accident, the appellant was in receipt of `7,640/- as
salary from the government job (Ex.PW1/4). Having regard to the said
fact, compensation or loss of future earning capacity to the extent of
fifty percent (50%) of the said amount needs to be taken care of. Since
he would continue in job till the age of 60 years, future earning capacity
may be worked out on the multiplier of 9. In this view, future loss of
earning is calculated at (3820x12x9) `4,12,560/-.
7. The evidence of witness examined under Order 41 Rule 27 CPC
shows that the appellant would be in a position to acquire artificial limb
at cost of `3,40,000/-. This estimate was not challenged by the
insurance company in spite of opportunity given for the purpose. Thus,
cost of artificial limb in the sum of `3,40,000/- also deserves to be
granted.
8. In above view, compensation needs to be enhanced by the sums
of (4,12,560-1,00,000 = `3,12,560+3,40,000/-) `6,52,560/-, rounded off
to `6,53,000/-.
9. The compensation is, accordingly, enhanced by `6,53,000/-. The
said amount shall also carry interest as levied by the tribunal. The entire
enhanced portion of the compensation shall be put in two separate fixed
deposits, one part whereof shall be in sum of `3,40,000/- to be kept in
interest bearing account for a period of six months, it to be released to
the company from which the appellant arranges the artificial limb, and
balance being in separate interest bearing account for a period of 7 years
with right to draw monthly interest.
10. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
FEBRUARY 15, 2016/ssc
