MANU/DE/6752/2011

IN THE HIGH COURT OF DELHI

MAC App. 847/2010
Decided On: 23.11.2011
Appellants: Satish Kumar
Vs.
Respondent: Praful Kumar and Ors.
Hon'ble Judges/Coram:
Hon'ble Mr. Justice G.P. Mittal
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. G.D. Mishra Advocate
For Respondents/Defendant: Mr. Manoj R. Sinha, Advocate with Mr. Mohan Babu
Agarwal, Advocate Mr. Harkesh Chand Aggarwald Advocate for R-3/NIC
Case Note:
Motor Vehicles - Enhancement of Compensation - Appeal was filed for
enhancement of compensation for injury suffered by Appellant in an
accident - Held, Appellant could not be granted any compensation for loss
of earning capacity as, he continued to get same salary, even his future
prospects in form of increment etc. was not affected - For awarding
compensation in case of permanent disability, Court had to find out
functional disability which reduced earning capacity - Thus, Appellant was
not entitled to any compensation for permanent disability under head of
loss of earning capacity - Deduction of GPF, advance obtained by Appellant
and house rent paid by him to his employer was part of Appellant's salary
and could not have been deducted from monthly salary while awarding loss
of income - No medical evidence of any future surgery was placed on record
by Appellant - Court could not lose sight of fact that, there was 44%
physical impairment in relation to his right lower limb as per Disability
Certificate issued by Medical Board of Hospital - There was 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 - 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 could be determined, only on basis of fair
guesswork after taking into account increase in cost of medical treatment -
In absence of any evidence of future surgery, Appellant was entitled to a
sum towards future medical treatment - Appellant could not run, squat, he
could not even walk without help of crutches - Therefore, he was entitled
to another sum, towards loss of expectancy and loss of amenities in life - In
absence of any documentary evidence one could not be sure whether
Appellant engaged an attendant on payment of any charge - With regard to
nature of injury, it had to be believed that, he was accompanied by some
attendant whether a paid one or a family member - There could not be
deduction, if domestic help was obtained from a family member - Minimum
wages on an unskilled worker on date of accident were 133/- per day -
Compensation at this rate was awarded - Tribunal awarded interest @ 9%

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per annum which was reasonable - Impugned award was modified - Appeal
allowed
JUDGMENT
G.P. Mittal, J.
1 . This Appeal is for enhancement of compensation for the injury suffered by the
Appellant Satish Kumar in an accident which took place on 11.03.2007 at about
11:25 AM with the motorcycle bearing No.DL-9SP-2987 on which the Appellant was
travelling as a pillion rider. The motorcycle was struck by a Maruti car bearing
No.HR-26-AH-8047 which was driven by Respondent No.1 and owned by Respondent
No.2 and insured with Respondent No.3 Insurance Company. The Appellant was taken
to Safdarjung Hospital where he was medically examined vide MLC bearing
No.44671/2007. He suffered supracondylar fracture femur right with condyle fracture
tibia right. He was operated initially in Safdarjang Hospital on 12.03.2007 after which
he was discharged from the Safdarjang Hospital on 20.03.2007 and was then
admitted in Sinha Fracture and Surgical Hospital for 18 days where plates inserted in
his right leg.
2. The Tribunal found that the accident took place on account of rash and negligent
driving by Respondent No.1. By impugned award, the Tribunal granted the following
compensation:
1. Medicines & Treatment ' 80,000/-

2. Loss of Income ' 29,000/-

3. Pain & suffering ' 25,000/-

4. Conveyance & special diet ' 16,000/-

TOTAL ' 1,50,000/-

3 . The Appellant's grievance is that he was not granted any compensation towards
the permanent disability, future treatment and expenditure for the services of the
attendant. It was urged that the deduction was made in the monthly salary while
awarding loss of income as the Appellant's monthly salary as per the salary certificate
was ' 7437/- per month but he was granted the compensation taking the salary at '
4720/- per month.
4. On the other hand, it is urged by the learned counsel for Respondent No.3 that the
compensation awarded is just and reasonable which does not call for any
enhancement.
5. Photocopy 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
Safaikaramchari in Municipal Corporation of Delhi (MCD) and he continued to work as
such till date. It was conceded by the learned counsel for the Appellant that 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 earning capacity as he continued to
get the same salary, even his future prospects in the form of increment etc. is not
affected. It is a different matter that he would be entitled to the compensation for

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loss of amenities in 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. MANU/SC/1018/2010 : (2011) 1 SCC 343, where it was laid down that,
for awarding compensation in case of permanent disability, 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:
1 3 . 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 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 be 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."
15. It 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 of compensation. Be that as it may.
6 . Thus, there is no manner of doubt that the Appellant is not entitled to any
compensation for the permanent disability under the head of loss of earning capacity.

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LOSS OF INCOME
7 . I have perused the last salary certificate Ex.PW-1/27 placed on the Tribunal
record. The Appellant's gross salary was ' 7437/- for the month of February, 2007.
There was deduction of ' 592/- towards GPF, ' 2125/- towards advance obtained by
the Appellant and ' 10/- towards house rent paid by him to his employer. This amount
of ' 2717/- was part of the Appellant's salary and could not have been deducted from
the monthly salary while awarding loss of income. Thus, instead of ' 29,0000/-, the
Appellant is entitled to a sum of ' 7437/- x 6 = ' 44,622/- round off ' 45,000/-.
MEDICINES AND TREATMENT
8. The Appellant was awarded a compensation of ' 80,000/- on the basis of bills of '
75,711/- proved on record. The Appellant had to undergo two surgeries, one in
Safdarjang Hospital and the other in Sinha Fracture and Surgical Hospital. The
Appellant in his Affidavit Ex.PW-1/A testified that he spent about ' 1,00,000/- on his
treatment, medicines and special diet. A sum of ' 80,000/- towards medicines and
treatment and ' 16,000/- towards conveyance and special diet were awarded by the
Tribunal. The Appellant deposed that he was getting the regular 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 impairment in relation to 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 treatment was
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.
9 . In Nagappa v. Gurudayal Singh MANU/SC/1107/2002 : (2003) 2 SCC 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 determined only 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 my view, the Appellant is entitled to a
sum of ' 5,000/- towards future medical treatment i.e. physiotherapy.
PAIN AND SUFFERING
10. A sum of ' 25,000/- awarded by the Tribunal seems to be just and reasonable.
LOSS OF AMENITIES IN LIFE
11. As stated earlier, the Appellant suffered 44% physical impairment in relation to
his right lower limb. He cannot run, squat, he cannot even walk without the help of
the crutches. He is therefore, entitled to another sum of ' 1,50,000/- (Rupees one lac
fifty thousand only) towards loss of expectancy and loss of amenities in life.
ATTENDANT CHARGES

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12. In his affidavit Ex.PW-1/A, the Appellant stated that he engaged the services of
an attendant for 50 days during his critical condition and paid him @ ' 200/- per day.
In his cross-examination, the Appellant admitted that he had not placed on record
any proof regarding spending a sum of ' 10,000/- on attendant. In the absence of any
documentary evidence, the Tribunal perhaps did not award any amount for the
services of an attendant. In the absence of any documentary evidence one cannot be
sure whether the Appellant engaged an attendant on payment of any charge. At the
same time, it is established on record that the Appellant remained admitted for 09
days in Safdarjang Hospital and then for 18 days in Sinha Fracture and Surgical
Hospital. The Appellant then had to visit doctor for dressing. Considering the nature
of injury in the left leg resulting in 44% physical impairment and the fact that even
now he can only walk with crutches, it has to be believed that he was accompanied
by some attendant whether a paid one or a family member.
1 3 . In Delhi Transport Corporation and Anr. v. Lalita MANU/DE/0308/1982 : 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 wrong doer cannot take advantage of this "domestic element". If the
mother renders service to her, instead of a nurse, it is right and just that she
should recover compensation for the value of the services that the mother
has rendered to her. Mother's services were necessitated by the wrong doing
and the injured should be compensated for it. (Cunnigharn v. Harrison 3 All
E.R. 463) The services of a wife and mother are worth more than those of a
house-keeper because she is in constant attendance and does many more
things than a house-keeper. (Regan v. Williamson (1976) 2 All E.R. 241).
14. The Appellant claimed attendant charges @ ' 200/- per day. The minimum wages
on an unskilled worker on the date of the accident were ' 133/- per day. I award a
compensation at this rate i.e. ' 133/- x 50 = ' 6650/- round off ' 7,000/-.
1 5 . As discussed above, the total enhanced compensation awarded by this Court
works out as under:-
Head Awarded by the Tribunal in (' Awarded by This Court in (' Increase
) )

Medicines & Treatment ,000/- ,000/- NIL

Loss of Income ,000/- ,000/- ,000/-

Pain & suffering ,000/- ,000/- NIL

Conveyance & special ,000/- ,000/- NIL

diet

Loss of amenities in life NIL ,50,000/- ,50,000/-

Future Physiotherapy NIL ,000/- ,000/-

Attendant charges NIL ,000/- ,000/-

,50,000/- ,28,000/- ,78,000/-

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16. The Tribunal awarded interest @ 9% per annum which seems to be reasonable
considering that the inflation is 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 seventy eight
thousand only) shall also carry interest @ 9% per annum from the date of filing of
the petition till realization of the amount. Respondent No.3 M/s. National Insurance
Company Limited is directed to pay the enhanced amount within a period of 30 days.
50% of the enhanced amount shall be deposited in the Appellant's saving accounts in
UCO Bank, Delhi High Court Branch which the Appellant shall be entitled to withdraw.
Rest 50% shall be deposited in the form of FDR in the said Bank for a period of five
years. The Appellant shall be entitled to interest on the amount which shall be
credited in his saving account on quarterly basis.
17. The Appeal is allowed and the impugned award is modified in the above terms.
No costs.
CM APPL.22372/2010 (for additional evidence)
18. This application has become infructuous and the same is accordingly dismissed.
19. Copy of the order be sent to the Trial Court for information and compliance.

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