Delhi High Court
Balvinder Singh vs Satish Kumar & Ors. on 3 December, 2012
Author: G.P. Mittal
Bench: G.P.Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 3rd December, 2012
+ MAC.APP. 61/2012
BALVINDER SINGH ..... Appellant
Through: Mr. Manish Mannie, Adv.
versus
SATISH KUMAR & ORS. ..... Respondents
Through: Mr. K.L. Nandwani, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `2,99,408/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of the Appellant for having suffered injuries in a motor vehicle accident which occurred on 01.09.2008.
2. In the absence of any Appeal by the driver, owner or the Insurance Company, the finding on negligence has attained finality.
3. The only ground of challenge raised by the learned counsel for the Appellant is that the Claims Tribunal awarded a compensation of `76,000/-, that is, @ `2,000/- for every 1% permanent disability. It is stated that the Appellant was working as a Welder. He suffered 38% physical impairment in relation to his right lower limb on account of the post traumatic stiffness on right knee, ankle with puss discharge. The MAC. APP. 61/2012 Page 1 of 4 compensation awarded towards loss of earning capacity was very meagre.
4. I have perused the Trial Court record. While granting compensation towards permanent disability, the Claims Tribunal relied on the judgment of a Madras High Court in J. Sai Manohar v. Prem Shanker Shukla 2011 ACJ 950. A perusal of Para 21 of the report shows that the compensation awarded was not towards the loss of earning capacity, but it was towards disability.
5. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme Court brought out the difference between permanent disability and functional disability resulting in the loss of earning capacity. It was laid down that the compensation on account of loss of earning capacity has to be granted in accordance to the nature of job undertaken by the victim of motor accident. Paras 11 and 14 of the report are extracted hereunder:
"11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity 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 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. 2010 (10) SCC 254 and Yadava Kumar v. D.M., National Insurance Co. Ltd. 2010 (10) SCC 341.
x x x x x x x MAC. APP. 61/2012 Page 2 of 4
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 percent, 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 found suitable for 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."
6. Thus, the Court has to award compensation considering the nature of work performed by the injured and its impact on his earning capacity. In the instant case the Appellant was working as a welder. The job of a welder requires constant sitting and frequent movement of knee. No expert witness was produced by the Appellant to prove the exact impact on the earning capacity.
7. In the absence of any specific evidence in Raj Kumar, the Supreme Court took 45% disability in respect of left lower limb as 20% loss of future earning capacity. In the instant case, I would make a guess work and take the loss of future earning capacity as 19%.
8. The Appellant would also be entitled to an addition of 30% towards MAC. APP. 61/2012 Page 3 of 4 inflation on the basis of report in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559. The loss of earning capacity therefore comes to ` 1,94,770/- (4107/- + 30% x 12 x 16 x 19%) as against compensation of `76,000/- awarded by the Claims Tribunal.
9. No other contention has been raised.
10. Consequently, compensation is enhanced by `1,18,770/- which shall carry interest @ 7.5% per annum from the date of filing of the Petition till its payment as awarded by the Claims Tribunal.
11. Respondent No.3 Reliance General Insurance Company Limited is directed to deposit the enhanced compensation along with interest with the Claims Tribunal within six weeks.
12. Seventy five percent of the enhanced compensation shall be held in fixed deposit for a period of two years and four years in equal proportion. Rest 25% shall be released on deposit. The Appellant shall be entitled to interest quarterly on the deposit amount.
13. The Appeal is allowed in above terms.
14. Pending Applications also stand disposed of.
(G.P. MITTAL) JUDGE DECEMBER 03, 2012 vk MAC. APP. 61/2012 Page 4 of 4