Kulwinder Singh vs Sh. Parkash Chand and Others

Lisa Gill, J.—The present appeal has been filed for enhancement of the compensation amount of Rs. 1,31,005/- awarded by the Motor Accident Claims Tribunal, Panchkula (hereinafter referred to as the Tribunal'') on account of the injuries suffered by the appellant in an accident that occurred on 27.10.2003. The appellant on 27.10.2003 was travelling on his motorcycle when he was hit by a truck bearing registration No. HRQ-9377. The truck was coming at a very high speed on the wrong side of the road. As a result thereof, the appellant sustained three fractures in his right leg and other injuries on his body. It is borne out from the record that the appellant, firstly, remained admitted in a private clinic for one day i.e., on 27.10.2003 and thereafter, he remained hospitalized from 28.10.2003 till 28.11.2003 in General Hospital, Sector 6, Panchkula. He was readmitted from 18.06.2004 till 28.06.2004. An iron rod had to be inserted in his right leg. The medical board assessed his disability as 55% in relation to the upper and lower limb.

The appellant was, admittedly, employed as a Fireman in the Fire Service Station, Sector 5, Panchkula. He was earning a salary of Rs. 5,000/- per month and was of 33 years of age at the time of accident.

It is contended that the Tribunal has granted very less compensation, the break-up of which is as under:-

It is further urged by learned counsel for the appellant that the appellant is also entitled to loss of earning capacity and enhanced amount in respect to the cost of attendant, special diet, transportation etc. and on account of pain and suffering as well.

Learned counsel for respondent No. 6 -insurance company has submitted that there is no question of loss of earning capacity because the appellant continued in Government service and it has come into evidence that no promotion to his juniors has been given and any further enhancement would amount to undue enrichment of the appellant.

After hearing learned counsel for the parties, I am of the considered view that the appellant is entitled to loss of earning capacity. It has been held by Hon''ble Supreme Court in B. Kothandapani Vs. Tamil Nadu State Transport Corporation Ltd., , that there ought to be a separate claim for damage for loss of earning capacity even apart from loss of mobility arising by the disability.

It has been held by Hon''ble Supreme Court in Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, that 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. It has further been observed that while determining the disability of the claimants in motor accidents cases, this Court might be sensitive about the functional disability involved and nature of occupation.

The appellant is admittedly employed as Fireman. Therefore, his future prospects would definitely be effected by the said injury. The continuance of the appellant in the Government service or the fact that no promotion was given to his juniors cannot be of any avail to respondent -insurance company.

Therefore, taking the income of the appellant at Rs. 5,000/- per month, the functional disability of the appellant is assessed at 35% and keeping in view his employability, the increment on his future income is assessed at 35%. As per the principles laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, upheld in the judgment of Sayed Sadiq''s case (supra), a multiplier of 16 is applicable. The appellant is, thus, entitled to a sum of Rs. 4,53,600/- (5000 x 35/100 + 35/100 x 35/100 x 5000 x 12 x 16) on account of loss of future income.

The Tribunal has observed that in respect to the expenses pertaining to the indoor treatment, reimbursement has already been taken by the appellant from the Department and bills of only Rs. 6,005/- have been produced. The compensation on account of transportation, cost of attendant, special diet is enhanced to Rs. 20,000/- and on account of pain and suffering, it is enhanced to Rs. 15,000/- as the appellant had clearly remained under treatment for over a month and is still stated to be not able to walk without the help of crutches.

Therefore, the total compensation amount payable to appellant comes to Rs. 4,94,605/- (4,53,600+6005+20000+15000). The amount in excess of what has already been awarded to him would attract interest at the rate of 6% from the date of petition till the date of payment.

The award is modified and the appeal is allowed to the abovesaid extent.