Satish Kumar v. Praful Kumar & Ors

JUDGMENT

G. P. MITTAL, J.

¶1This Appeal is for enhancementof compensationfor the injury sufferedby the AppellantSatish Kumar in an accidentwhich took place on 11.03.2007 at about 11:25 AM with the motorcyclebearing No.DL-9SP-2987on which the Appellant was travellingas a pillionrider. The motorc}(clewas struckby a Maruti car bearingNo.HR-26-AH-8047which was drivenby RespondentNo.l and owned by RespondentNo.2 and insured Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing.

¶2withRespondentNo.3 InsuranceCompany. The Appellantwas takento SafdarjungHospitalwherehe was medicallyexamined vide MLC bearingNo.44671/2007.He sufferedsupracondylar fracturefemur right with condylefracture tibia right. He was operated initially in SafdarjangHospital on 12.03.2007after which he was discharged from the Safdarjang Hospital on

20.03.2007 and was then admitted in Sinha Fracture and SurgicalHospitalfor 18 days where plates insertedin his right leg. The Tribunal found that the accident took place on account of rash and negligentdrivingby RespondentNo.l. By impugned award,the Tribunalgrantedthe followingcompensation:-

¶1Medicines & Treatment ? 80,000/-

¶2Loss of Income ? 29,000/-

¶3Pain & suffering ? 25,000/-

¶4Conveyance & special diet ^ 16,000/-TOTAL ? 1,50,000/-

¶3The Appellant's grievance is that he was not granted any compensationtowardsthe permanentdisability,ftituretreatment and expenditurefor the servicesof the attendant.It was urged, that the deduction was made in the monthly salary while awardingloss of income as the Appellant'smonthly salary as per the salary certificatewas ? 7437/- per month but he was granted the compensationtaking the salary at ? 4720/- per month.

¶4On the other hand, it is urged by the learned counsel for RespondentNo.3 that the compensationawarded is just and reasonable which does not call for any enhancement.

¶5Photocopy of a disability certificate issued by the Rao Tula Ram Memorial Hospital,Jaffarpur,New Delhi on 06.10.2009 i.e. after the decision of the Tribunal, was placed on record. It is important to note that the Appellant was; employed as a SafaikaramcharinMunicipalCorporationof^elhi (MCD) and I he continued to work as such till date. It was'conceded by the learnedcounselfor the Appellantthat his job was not affected but he is disabled for all times to come. In my view, the Appellant cannot be granted any compensation for loss of earningcapacityas hecontinuedto getthesamesalary,evenhis futureprospectsinthe form ofincrementetc. is not affected. It is a different matter that he would be; entitled to the compensationfor loss ofamenitiesin life which,I would deal a little later. At this moment, it would be relevant to refer to the latest judgment of the Supreme Court in Raj Kumar v. Ajay Kumar & Anr. (2011) 1 SCC343, where it was laid down that, for awardingcompensationin case of permanentdisability,the Court has to find out the functional disability which reduces the ^ " earning capacity. It would be fruitful to extract Paras 13, 14 and 15 of the report hereunder:- "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 tofind out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite ofthepermanent disability, the claimant could still effectivelycarry on the activities and functions, which he was earlier carrying on, or

(Hi) 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.

¶14For example, ifthe left hand ofa 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, ifthe claimant was a clerk in government service, the loss of his left hand may not result in loss of employmentand 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 he 100% as in the case ofa driver or carpenter, nor 60% which is the actual physical disability, butfar 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 discharging the duties attached to the post or job which he was iearlier holding, on account of his disability, and imay 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 offuture earning capacity, taking note of the reduced earning capacity."

¶15It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award ofcompensation. Be that as it may. " ! Page5 of11

¶6Thus, there is no manner of doubt that the Appellant is not entitledto any compensationfor the permanentdisabilityunder the head of loss of earning capacity. LOSS OF INCOME

¶7I have perusedthe last salarycertificateEx.PW-1/27placedon the Tribunalrecord. The Appellant'sgross salarywas ? 7437/- for the month of February, 2007. There was deduction of ? 592/- towards GPF, ^ 2125/- towards advance obtainedby the Appellant and ? 10/- towards house rent paid by him to his employer. This amountof?2717/-was part ofthe Appellant's salary and could not have been deducted from the monthly salary while awarding loss of income. Thus, instead of ? 29,0000/-,the Appellantis entitledto a sum of ? 7437/-x 6 = ? 44,622/-round off? 45,000/-. MEDICINES AND TREATMENT

¶8The Appellantwas awardedacompensationof?80,000/-on the basis ofbills of? 75,711/-provedonrecord. The Appellanthad to undergo two surgeries,one in SafdarjangHospital and the other in SinhaFractureand SurgicalHospital.The Appellantin his Affidavit Ex.PW-l/A testified that he spent about ? 1,00,000/-on his treatment,medicinesand specialdiet. A sum of ? 80,000/-towards medicinesand treatmentand ? 16,000/- towards conveyance and special diet were awarded by the Tribunal. The Appellantdeposedthathe was gettingthe regular Page6of11 /t) H dressing through the nearby doctors. No medical evidence of any future surgery was placed on record by the Appellant. The Court, however, cannot lose sight of the fact that there is 44% physical impairmentin relationto his right lower limb as per the Disability Certificate dated 06.10.2009 issued by the Medical Board of Rao Tula Ram Memorial Hospital of Delhi Government. The Appellant testified in his Affidavit that the Permanent Disability Certificate was yet to be issued to him. Since the Appellant's treatmentwas still going on, perhaps the Disability Certificate could not be issued. The same is not relevant for the purpose of assessment of the loss of his earning capacity for the reasons stated earlier in this judgment, yet the same is relevant for the purpose of considering whether the Appellant would need some future treatment. There is shortening of Appellant's leg. Even if, he was not to undergo any further surgery, he would definitely require some physiotherapy from time to time.

¶9In Nagappa v. GurudayalSingh (2003) 2 SGC 274 it was held that it was not improper to take into account expenditure genuinely and reasonably required to be incurred for future medical treatment. Future medical expenses required to be incurred can be determinedonly on the basis of fair guesswork after taking into account increase in the cost of medical treatment. In the absence of any evidence of future surgery, in MAC APP847/2010 Page7 of 11 my view, the Appellantis entitledto a sum of? 5,000/-towards future medical treatment i.e. physiotherapy. PATN AND SUFFERING

¶10A sum of ? 25,000/- awarded by the Tribunal seems to be just and reasonable. LOSS OF AMENITIES IN LIFE

¶11As stated earlier, the Appellant suffered 44% physical impairmentin relationto his right lower limb. He cannotrun, squat,he cannotevenwalkwithoutthe help ofthecrutches. He is therefore,entitledto anothersum of 1 1,50,000/-(Rupeesone lac fifty thousandonly) towards loss of expectancyand loss of amenities in life. ATTENDANT CHARGES

¶12In his affidavit Ex.PW-l/A, the Appellant stated that he engaged the services of an attendant for 50 days during his criticalconditionand paidhim@ ? 200/- per day. In his cross- " examination,the Appellantadmittedthat he had not placedon record any proof regarding spending a sum of ? 10,000/- on attendant. In the absence of any documentary evidence, the Tribunalperhaps did not award any amountfor the servicesof an attendant. In the absence of any documentary evidence one cannotbe sure whetherthe Appellantengagedan attendanton paymentof any charge. At the same time, it is establishedon Page 8 ofn /3 record that the Appellant remained admitted for 09 days in SafdarjangHospitaland then for 18 days in SinhaFractureand SurgicalHospital. The Appellantthen had to visit doctor for dressing. Considering the nature of injury in the left leg resulting in 44% physical impairmentand the fact that even now he can only walk with crutches,it has to be believedthat he was accompaniedby some attendantwhethera paid one ora family member.

¶13In Delhi TransportCorporationand Anr. v. Lalita AIR 1981 Delhi 558, this Court held that there cannot be deduction if domestic help is obtained from a family member. The High Court observed as under:- " A wrongdoer cannottake advantageof this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right andjust that she should recover compensationfor the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injuredshouldbe compensatedfor it. (Cunnigharnv. Harrison3 All E.R. 463) The servicesofa wife and motherare worth more than those of a house-keeperbecauseshe is in constant attendance and does many more things than a house-keeper.(Regan v. Williamson (1976) 2 All E.R. 241)."

¶14The Appellantclaimed attendantcharges @ ? 200/- per day. The minimumwages on an unskilledworkeronthe date of the accidentwere ? 133/- per day. I award a[compensationat this rate i.e. ? 133/- x 50 = ? 6650/- round off ? 7,000/-. Page9ofn

¶15As discussedabove, the total enhancedcompensationawarded bythis Courtworksoutasunder:-Head Awarded by the Tribunal in (?) Awarded by This Court m(?) Increase Medicines & Treatment 80,000/-80,000/-NIL Loss of Income 29,000/-45,000/-16,000/-Pain & suffering 25,000/-25,000/r NIL Conveyance & special diet 16,000/-16,000/-NIL i Loss of amenities in life NIL 1,50,000/-1,50,000/-Future Physiotherapy NIL 5,000/-5,000/-Attendant charges NIL 7,000/-7,000/-1,50,000/. 3,28,000/-1,78,000/-

¶16The Tribunalawardedinterest@ 9%per annumwhich seemsto be reasonableconsideringthat the inflationis in double digit and the Nationalized Banks are offering interest at this rate on FDRs for a period of one year and above. The enhanced amount of compensation.i.e. ? 1,78,000/- (Rupees One lac seventyeightthousandonly)shallalso cany interest@9% per annum from the date of filing of the petitiontill realizationof the amount. Respondent No.3 M/s. National Insurance Company Limited is directed to pay the enhanced amount withina periodof30 days. 50% ofthe enhancedamountshall be depositedin the Appellant'ssaving accountsin UCO Bank, Delhi High CourtBranchwhichthe Appellantshall be entitled to withdraw. Rest 50% shall be depositedin the form of FDR in the saidBank for a periodoffive years. The Appellantshall be entitled to interest on the amount which shall be credited in his saving accounton quarterlybasis.

¶17The Appeal is allowedand the impugnedaward is modifiedin the above terms. No costs. CM APPL.22372/2010 (for additional evidence)

¶18This application has become infructuous and the same is accordinglydismissed. ; I i

¶19Copy ofthe orderbe sentto the TrialCourtfpr informationand compliance. NOVEMBER 23,2011 vk (G.P. MITTAL) JUDGE

+ IN THE HIGH COURT OF DELHI AT NEW DELHI Reservedon: 18^^November,2011 Pronounced on: 2November, 2011 MAC APP. 847/2010 SATISH KUMAR Through: Versus Appellant Mr. G.D. Mishra Advocate. PRAFUL KUMAR & ORS. Respondents Through; Mr. Manoj R. Sinha,Advocatewith Mr. Mohan Babu Agarwal, Advocate MR. Harkesh Chand Aggarwald Advocate for R-3/NIC. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL 1.Whetherreportersof localpapersmay be allowedto see the Order? I (j 2. To be referred to the Reporter or not? 3. Whether the Order should be reported in the Digest?