Shri Pal vs Union Of India & Ors
2021 Latest Caselaw 246 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of Reserved: 18.12.2020
                                          Date of Decision: 25.01.2021

+      W.P.(C) 7856/2010
       SHRI PAL                                  ..... Petitioner
                       Through         Ms.Anupradha Singh, Adv.

                          versus

       UNION OF INDIA & ORS                       ..... Respondents

                     Through           Mrs.AvnishAhlawat, SC with
                                       Mrs.TaniaAhlawat, Mr.Nitesh
                                       Kumar    Singh       and    Ms
                                       PalakRohmetra, Advs.


CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA

1. This petition has been filed by the petitioner inter-alia claiming compensation for the injury suffered by him due to negligence in his treatment at the respondent no.3 hospital.

2. This Court, on 27.11.2015, had passed the following order:

"1. The petitioner seeks mandamus to, the respondent no.1 Union of India (UOI), respondent no.2 Government of National Capital Territory of Delhi (GNCTD), respondent no.3 Medical Superintendent, BabuJagjivan Ram Memorial Hospital, respondent no.4 Medical Superintendent, Hindu Rao Hospital and respondent no.5 Medical Superintendent, LokNayak Jai Prakash Narayan (LNJP) Hospital, provide medical assistance and compensation to the petitioner for the loss of use of his right arm caused on account of medical negligence

WP(C) No.7856/2010 Page 1 of the doctors/staff of respondent no.3 BabuJagjivan Ram Memorial Hospital.

2. The respondent no.3 BabuJagjivan Ram Memorial Hospital belongs to the respondent no.2 GNCTD.

3. It appears that the respondent no.4 Hindu Rao Hospital and respondent no.5 LNJP Hospital have been impleaded only to provide future medical assistance/treatment to the petitioner.

4. The petition was entertained and a Medical Board was constituted which has given Report dated 22nd March, 2011 (at page 94 of the paper book) inter alia to the effect that the right upper limb of the petitioner is affected from elbow downwards and in the long run the only treatment therefor is amputation of right forearm and hand at the elbow joint.

5. This Court thereafter constituted a Inquiry Committee to enquire into the cause and which Inquiry Committee has submitted Report dated 9th September, 2013 (at page 306 of the paper book) and which has concluded that the injury to the petitioner appears to be because of accidental injection into the artery, and complication arising from which, both staff nurse of respondent no.3 BabuJagjivan Ram Memorial Hospital could not recognise and take remedial measures. The Report attributes the cause of the injury to an error of judgment on the part of junior resident on duty in indentifying the complication of the case. It is further mentioned that even the senior resident of surgery who examined the patient twice failed to recognise the complication and manage the case appropriately.

6. Though the counsel for the respondent no.2 GNCTD has argued that since complicated questions of law and fact are entailed, the petitioner should be relegated to a civil suit but I am of the view that since this Court has entertained the petition and the same has remained pending and this Court has appointed, first a Medical Board and thereafter an Inquiry Committee to assess the injury to the petitioner and the cause thereof

WP(C) No.7856/2010 Page 2 respectively, it is too late in the day to now change the course of action adopted in this petition and it would be unfair to now ask the petitioner, after five years, to approach the Civil Court. The same would also nullify all the efforts made by this Court during the pendency of this petition of constituting a Medical Board and Inquiry Committee, of senior doctors from the Government Hospitals.

7. From the Reports aforesaid it is clear that the petitioner has suffered an injury attributable to the respondent no.3 BabuJagjivan Ram Memorial Hospital of the respondent no.2 GNCTD.

8. The petitioner has thus become entitled to compensation from the respondent no.2 GNCTD.

9. The petitioner has however not quantified the compensation due to him. The counsel for the petitioner also is immediately not able to state, to what compensation the petitioner in such a situation would have been entitled to, applying the principles applicable to motor accident claims.

10. In the circumstances, the petitioner to within one week file an affidavit quantifying the compensation, applying the principles applicable to motor accident claim cases, and to furnish advance copy thereof to the counsel for the respondents who may cause an inquiry into the contents thereof and if so feel the need file a response, may do the same before the next date of hearing.

11. List on 14th December, 2015."

3. This petition is now listed before this Court for determining the compensation that the petitioner is entitled to.

4. The petitioner claims that he has suffered permanent disability assessed at 90%. Further relying upon the Report dated 22.03.2011, the learned counsel for the petitioner submits that the amputation of

WP(C) No.7856/2010 Page 3 the right forearm and hand at elbow joint of the petitioner was suggested in the long run and this itself proves the disability to be permanent and not temporary. She submits that in assessing the disability, the nature of the vocation of the petitioner is also to be considered. She submits that in the present case, the petitioner was a vegetable vendor and therefore, by losing a hand, would in fact be rendered 100% disabled as far as functional disability is concerned. In this regard, she places reliance on the judgments of the Supreme Court in Raj Kumar v. Ajay Kumar&Anr.,(2011) 1 SCC 343,RekhaJain v. National Insurance Company Ltd. &Ors., (2013) 8 SCC 389; SandipKhanujav.AtulDande&Anr.,(2017) 3 SCC 351 and Syed Sadiq&Ors. v. Divisional Manager, United India Insurance Company Ltd.,(2014) 2 SCC 735.

5. She also places reliance on the judgment of the Supreme Court in ErudhayaPriya v. State Express Transport Corporation Ltd., 2020 SCC OnLine SC 601 to submit that the petitioner is entitled to interest at the rate of 9% p.a. on the compensation determined by this Court.

6. As far as the quantum of compensation is concerned,she submits that it is not denied by the respondents that the monthly income of the petitioner is to be taken as Rs.12,000/- per month. She submits that 30% has to be added thereto as incremental income. Therefore, annual income of the petitioner would be Rs.1,87,200/-. She submits that it is also not disputed that the petitioner being aged about 41 years at the time of injury, a multiplier of 14 is to be applied in terms of the judgment of the Supreme Court in SarlaVerma&Ors.v. DelhiTransport Corporation&Anr., (2009) 6 SCC 121. She submits

WP(C) No.7856/2010 Page 4 that over and above the same, the petitioner is entitled to non- pecuniary expenses inform of pain and suffering (Rs.90,000/-); loss of amenities (Rs.90,000/-); and cost of litigation (Rs.30,000/-).

7. On the other hand, the learned counsel for the respondent nos.2 and 3, the only contesting respondents remaining in the petition, submits that the disability of the petitioner is to be calculated at 30% in terms of the affidavit dated 03.09.2016 filed by the respondent no.5. She submits that taking monthly income of the petitioner as Rs.12,000/- and the multiplier as 14, the petitioner would be entitled to compensation of Rs.6,04,800/- with interest at the rate of 6% p.a. from the date of filing of the petition.

8. I have considered the submissions made by the learned counsels for the parties.

9. As noted hereinabove, by the order dated 27.11.2015 the entitlement of the petitioner to receive compensation from the respondent nos.2 and 3 has already been determined.The only question remaining is therefore the quantum of such compensation.

10. In Raj Kumar (supra), the Supreme Court has held that award of compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This would include compensation for his inability to lead a full life, enjoy those normal amenities which he would have enjoyed but for the injuries, as also his inability to earn as much as he used to earn or could have earned. The

WP(C) No.7856/2010 Page 5 Supreme Court further laid down the heads under which the compensation is to be awarded in personal injury cases as under:

"6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads

(ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."

11. As far as the percentage of permanent disability, the Supreme Court observed as under:

"9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When

WP(C) No.7856/2010 Page 6 a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.

10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity

WP(C) No.7856/2010 Page 7 of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.)

12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:

(i) whether the disablement is permanent or temporary;

(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;

(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.

If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

WP(C) No.7856/2010 Page 8

13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or

(ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for

WP(C) No.7856/2010 Page 9 discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."

12. The Court summarised the principles for determination of compensation as under:

"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 the percentage of loss of earning capacity is the same as the 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 to 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."

13. In Rekha Jain (supra), the Supreme Court reiterated that the Court while assessing the compensation is not to be guidedsimply by

WP(C) No.7856/2010 Page 10 the disability certificate but also by the nature of the vocation of the claimant. In the said case, though the disability certificate of the petitioner assessed the disability as 30%, having regard to the nature of the vocation of the petitioner, the Supreme Court assessed it as 100% functional disability.

14. InSyed Sadiq&Ors.(supra), the Supreme Court was considering a case of vegetable vendor who had sustained injuries to the lower end of the right femur and his right leg was amputated. He had further sustained injury over his left upper arm. He was assessed as having suffered disability of24% to the upper limb and 85% to the lower limb. The Tribunal considered the disability to the whole body at 30% while the High Court assessed it at 65%. The Supreme Court, however, determined the disability at 85% for arriving at the loss of income of the claimant, observing as under:

"7. Further, the appellant claims that he was working as a vegetable vendor. It is true that a vegetable vendor might not require mobility to the extent that he sells vegetables at one place. However, the occupation of vegetable vending is not confined to selling vegetables from a particular location. It rather involves procuring vegetables from the wholesale market or the farmers and then selling it off in the retail market. This often involves selling vegetables in the cart which requires 100% mobility. But even by conservative approach, if we presume that the vegetable vending by the appellant claimant involved selling vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the marketplace which otherwise would be extremely difficult for him with an amputated leg. We are required to be sensitive while dealing with

WP(C) No.7856/2010 Page 11 manual labour cases where loss of limb is often equivalent to loss of livelihood. Yet, considering that the appellant claimant is still capable to fend for his livelihood once he is brought in the marketplace, we determine the disability at 85% to determine the loss of income."

15. In SandipKhanuja(supra), the Supreme Court again gave prominence to the nature of the vocation of the claimant while assessing the loss of income. The Supreme Court also reiterated that in awarding compensation, the multiplier method is logically sound and legally well established.

16. Recently in ErudhayaPriya(supra), the Supreme Court taking note of the injuries suffered by the claimant, held that while applying the multiplier method, future prospects of advancement in life and carrier are also to be taken into consideration. The Court further awarded interest at the rate of 9% on the compensation assessed.

17. Applying the above principles to the facts of the case, there is no dispute between the parties that for ascertaining the loss of earning for the petitioner, the monthly income of the petitioner is to be taken as Rs.12,000/-. There is also no dispute that a multiplier of 14 would be applicable to the case taking into account the age of the petitioner and in terms of the judgment of the Supreme Court in SarlaVerma(supra).

18. The only issue of dispute is whether the permanent disability of the petitioner is to be assessed at 100% (as claimed by the petitioner) or 30% (as claimed by the respondent nos.2 and 3). In this regard, the nature of injury suffered by the petitioner is to be taken note of.

WP(C) No.7856/2010 Page 12 Pursuant to the orders dated 18.02.2011 and 04.03.2011, a Medical Board was constituted by the Dr. Ram Manohar Lohia Hospital to examine the petitioner. The report of the Medical Board observed as under:

"The right upper limb isaffected from elbow downwards. The upper two third of ulnar bone is exposed,grossly infected and non-viable. There is stiffness of elbow joint. The supinationand pronation movement is restricted. There is stiffness of wrist joint, MP joints,PIP joints and DIP joints of all the fingers. The thumb is gangrenous line ofdemarcation at distal to MP joint. There is partial sensation in the forearm.

Opinion: Post volkmann ischemic contracture, exposed and non-viable ulnar bone with infected wound with stiff hand and elbow with gangrene thumb hypo-anesthetic and non-functional hand.

Treatment option: Amputation of thumb at MP joint level and coverage ofexposed bone with flap cover. However, in view of severe stiffness of wrist andsmall joints and sensory impairment limb will have negligible function.Amputation of right forearm and hand at elbow joint may be considered in thelong run."

19. The petitioner is a vegetable vendor. The injury is to the right arm and as suggested by the Medical Board, may require amputation. Though it is not brought on record if the arm of the petitioner was actually amputated thereafter, keeping in view the judgment of the Supreme Court in Syed Sadiq(supra) which also dealt with the case of a vegetable vendor, the functional disability of the petitioner is assessed as 85% to determine the loss of income.

WP(C) No.7856/2010 Page 13

20. In this regard the learned counsel for the petitioner has also placed reliance on the Disability Certificate dated 29.07.2011issued by Dr.Baba SahebAmbedkar Hospital, Delhi-110085,which has determined the permanent disability of the petitioner at 90%. Though in terms of the judgments of the Supreme Court referred hereinabove this itself cannot be a determinative factor for determining the loss of income, this would certainly be a relevant factor in the present case.

21. As noted hereinabove, there is no dispute that monthly income of the petitioner is to be taken as Rs.12,000/-.In terms of the judgment of the Supreme Court referred hereinabove, future income prospect is to be added in form of 50%, however, as the petitioner in its affidavit and submissions has claimed the same at 30%, for the purposes of determination of compensation, the same is taken at 30%.

22. As noted hereinabove, there is also no dispute on the multiplier to be applied.

23. In view of the above, the loss of income of the petitioner is assessed as under:

Rs.12,000X12X85/100X14 = Rs.17,13,600.00 Add 30% of the above = Rs.5,14,080.00 TOTAL = Rs.22,27,680.00

24. Over and above this, the petitioner has claimed non-pecuniary expenses. As noted by the Supreme Court in Raj Kumar(supra), as the permanent disability of the petitioner has been assessed at 85%, the petitioner may not be entitled to claim loss of amenities. In any case, there is no submission made in support of the same.

WP(C) No.7856/2010 Page 14

25. However, for the remaining non-pecuniary claim, that is Rs. 90,000/- for pain and suffering and Rs. 30,000/- for cost of litigation, the same being reasonable, the petitioner is held entitled to the same.

26. The total assessment of the compensation is therefore at Rs. 23,47,680/-, on which the petitioner is also entitled to interest at the rate of 9% per annum from the date of the petition.

27. The amount of compensation so assessed shall be paid by the respondent nos.2 and 3 to the petitioner within four weeks of this judgment. Any amount earlier released to the petitioner shall be duly adjusted while making such payment.

28. There shall be no orders as to further cost.

                                                  NAVIN CHAWLA, J
JANUARY 25, 2021/Arya




WP(C) No.7856/2010                                                 Page 15