Dev Dutt Sharma vs Bhim Singh and Another

G.P. Mittal, J.—The Appeal is for enhancement of compensation of Rs. 1,30,000/- awarded in favour of the Appellant for having suffered injuries in a motor vehicle accident which occurred on 05.01.2004. The finding on negligence reached by the Motor Accident Claims Tribunal(the Claims Tribunal) is not challenged by any of the Respondents and has thus attained finality.

The Appellant suffered compound fracture of left leg. He was admitted to Safdarjung Hospital and was later on shifted to ESI Hospital, Basai Darapur on 09.01.2004. The Appellant received a prolonged treatment and had to take leave from 05.01.2004 to 06.05.2006. He was granted a disability certificate dated 18.04.2007 by Medical Board of Deen Dayal Upadhyay Hospital. He was declared to have suffered 7.5% permanent physical disability in relation to his left lower limb on account of fracture of tibial plateau with restriction of movement. The Claims Tribunal awarded a compensation of Rs. 1,30,000/- which is tabulated hereunder:

Sl. No.

Compensation under various heads

Awarded by the Claims Tribunal

1.

Pain and Suffering

Rs. 60,000/-

2.

Loss of Amenities

Rs. 30,000/-

3.

Special Diet

Rs. 20,000/-

4.

Conveyance

Rs. 20,000/-

Total

Rs. 1,30,000/-

The following contentions are raised on behalf of the Appellant:

(i) The Appellant had to take leave for the period 05.01.2004 to 06.05.2006 i.e. for a period of 28 months. Since he was an ESI beneficiary, he was granted a sum of Rs. 38,140/- on account of leave by the ESI. The Appellant''s salary, it is argued was Rs. 3047/- per month. He was entitled to the difference between his salary and the benefit granted by the ESI.

(ii) Although, the Appellant suffered permanent disability to the extent of 7.5% in respect of left lower limb, no compensation was granted towards loss of earning capacity.

The Appeal must succeed on the first ground.

The Appellant suffered actual loss of salary for 28 months. Even if he would have been paid salary by the employer and had suffered loss of leave, he would have been entitled to full compensation. Since a sum of Rs. 38,140/- was paid to him by ESI, considering the injury was to an employee, the Appellant was entitled to a compensation of Rs. 47,176/- ( Rs. 3047 x 28= 85316/- - 38140/-).

As far as grant of compensation towards loss of future earning capacity is concerned, it is not the Appellant''s case that he suffered any loss in future earning capacity. It is not the Appellant''s case that he lost his job or his job was otherwise affected. The case is covered by the report of the Supreme Court in Raj Kumar Vs. Ajay Kumar and Another, and the Appellant was not entitled to any compensation towards loss of earning capacity. Of course, he was entitled to compensation towards pain and suffering, loss of amenities, special diet and conveyance for which he has been adequately compensated.

In view of the above, there is an enhancement in the award by Rs. 47,176/- which shall carry interest @ 7.5% per annum for a period of four years till the date of the award in view of the observations made in para 23 of the impugned judgment. The Appellant would further be entitled to interest @ 7.5% per annum from the date of the award till the amount is paid to the Appellant.

The Respondent No. 2 National Insurance Co. Ltd. is directed to deposit the enhanced compensation of Rs. 47,176/- along with interest with the Claims Tribunal within six weeks, which shall be released to the Appellant immediately on deposit. Pending Applications stand disposed of.