Delhi High Court
Bhawan Singh Bhaisora vs Mahender Singh & Ors. (United ... on 30 August, 2019
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 30.08.2019
+ MAC.APP. 230/2019
BHAWAN SINGH BHAISORA ..... Appellant
Through: Mr. Saurabh Kansal, Advocate
Versus
MAHENDER SINGH & ORS. (UNITED INDIA INSURANCE CO
LTD) ..... Respondents
Through: Mr. Manuj Aggarwal, Ms. Arunima
Gupta, Advocates for R-3.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
CM No.37117/2019 (for early hearing)
This application seeks early hearing of the appeal.
For the reasons mentioned in the application, it is allowed.
The application stands disposed-off.
MAC.APP. 230/2019
1. At joint request, the appeal is taken up for hearing.
2. This appeal seeks enhancement of the award of compensation on the
ground that the appellant, who has suffered 82% disability in the prime of
his life at the young age of 27 years apropos both of his lower limbs, one of
which has been amputated way above the knee, has suffered on many counts
such as: (i) „loss of marriage prospects‟, (ii) „mental and physical shock‟,
(iii) „pain and suffering‟, (iv) disfigurement, (v) loss of future income and
earning capacity, (vi) he would also require a special diet and (vii) provision
for conveyance on account of disability. Only Rs.25,000/- each towards (a)
"mental and physical shock" and (b) "pain & suffering" and Rs.1,00,000/-
towards "loss of marriage prospects" have been awarded. No monies have
been granted for „loss of future prospects‟, which would be a natural sequiter
apropos employability of a person like the appellant.
3. It is argued that for calculating the „loss of future income and earning
capacity‟, monthly income of the appellant was taken at Rs.10,100/- with
addition of 40% towards „loss of future prospects‟ = Rs.14,140/-; the annual
income (Rs. 14,140 x 12) comes to Rs. 1,69,680/-. After applying the
multiplier of 17, the total loss of income would come to Rs.28,84,560/-.
Since his „loss of earning capacity in relation to disability‟ was assessed as
20% qua the whole body, the appellant was granted Rs.5,76,912/- (i.e. 20%
of Rs.28,84,560/-) on the ground that he continued to be in the same job
where he was earlier working; in effect, it was held that there was no loss of
his earning. However, it is argued that the claimant is employed as a Shift
Manager with KFC.
4. It is further argued that only because the claimant was employed in a
large multi-national company, he has evidently been kept in the same
position on compassionate ground. But it would not necessarily guarantee
his employment for the rest of his life as continuance of such outlets are
subject to the profitability and financial viability of each outlet and they can
be closed down at any time, which would render the claimant without any
job and put him at mercy of somebody else, who may neither assure him nor
be as compassionate apropos his employment. His photographs have been
shown to the Court, showing that his leg has been amputated way above the
knee and he supports himself with the crutches. Surely his disability would
be far more than 20% as assessed by the learned MACT. Additionally, his
lack of movement as an ordinary person would also limit his employability.
5. The learned counsel also refers to the dicta of this Court in Subodh
Das vs.Govind & Ors., MAC. APP 118/2015, wherein 80% disability
apropos the left lower limb was taken as 80% functional disability qua the
whole body. In the present case, the disability is more aggravated as the
appellant‟s both lower limbs have been found to be disabled upto 82%. So,
in effect, the disadvantage to the claimant is twice over than what was
assessed in Subodh Das (supra).
6. In view of the above, the Court is of the opinion that it would be
justified to assess the disability as 82%, if not at 100% then at 80%, instead
of 20%, as assessed by the learned MACT. In the circumstances, the
appellant would be entitled to 80% of Rs.28,84,560/- apropos „loss of future
income and earning capacity‟ i.e. Rs.23,07,648/-, however, the learned
counsel for the appellant fairly submits that the amount received from the
ESI as family pension under the ESI Act would have to be taken off from
the computation of the compensation. Hence, the amount of Rs. 23,07,648/-
shall be deducted from the amount received for the ESI i.e. Rs.6000x 12
x17=Rs. 12,24,000/-
7. Furthermore, the Court would note that the grant of Rs.25,000/- each
on account of „mental & physical shock‟ and „pain & suffering‟ for an
unmarried young man of 27 years is also on the lower side because all his
life he will feel deprived because of the pain and physical debilitation. He
would be deprived of playing games with his friends as he would have done
had he not been disabled on account of the accident.
8. In the circumstances, compensation on aforesaid both counts i.e. (i)
"mental and physical shock" and (ii) "pain and suffering" is enhanced to
Rs.1,50,000/- each. Furthermore, the appellant was also to be reimbursed
Rs.2,39,000/- towards the prosthetic fitted to his amputated leg, as the said
amount has not been reimbursed by the ESI. Therefore, this amount would
necessarily have to be adjusted against the cost of the prosthetic i.e.
Rs.6,00,000/- awarded by the learned MACT, which was directed to be kept
in an FDR.
9. In any case, as noted hereinabove, a prosthetic fitted on the amputated
leg would be required for a lifetime. Therefore, a prosthetic of standard
good quality will be supplied to the appellant, with a lifetime warranty.
10. In view of the above, the amount, which is to be paid to the appellant
in terms of the present enhancement apropos „loss of future prospects‟ and
amount of Rs. 2,39,000/- spent by the appellant shall be adjusted against Rs.
6,00,000/- deposited towards the cost of prosthetic. The deficit amount, as
may be, shall be deposited within the same time.
11. A fresh computation in terms of the above shall be filed by the
insurance company within two weeks from the date of receipt of copy of this
order. A copy of the same shall be supplied to the claimant.
12. The appeal stands disposed-off in terms of the above.
13. The date earlier fixed i.e. 30.01.2020, stands cancelled.
NAJMI WAZIRI, J.
AUGUST 30, 2019
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