Rajender Kumar @ Santosh Kumar vs Vijender Singh and Others

G.P. Mittal, J.—This Appeal is for enhancement of compensation for the injury suffered by the Appellant Rajender Kumar @ Santosh Kumar in an accident which took place on 19.03.1986 at about 11:45 AM while he was riding on his cycle from M.B.Road to Netaji Nagar in connection with his official work. He was struck by a truck bearing registration No. DEG 4338 which was driven by Respondent No. 1 and owned by Respondent No. 2. The Appellant was removed to Safdarjung Hospital where he was admitted till 14.04.1986. His right foot was amputated. He was again admitted in NDMC hospital on 21.04.1986 and was discharged on 05.06.1986. 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.

On account of disability

60,000/

2.

Pain, Agony & loss of enjoyment

20,000/

3.

Expenses on treatment

7,000/

4.

Loss of leave salary

3,000/

5.

TOTAL

90,000/

The Appellant''s grievance is that he suffered permanent disability to the extent of 40% in respect of his right lower limb. The Tribunal illegally took the same to be 30% in respect of whole body and applied the multiplier of 16 to arrive at the figure of Rs. 60,000/- towards the loss of earning capacity. It is urged that this figure is too low. Moreover, argues the learned counsel for the Appellant that no compensation was granted on account of loss of expectancy and loss of amenities of life. Thus, it is submitted that the compensation awarded towards non pecuniary damages was too meager.

It is not in dispute that the Appellant was working as Beldar (Group D employee) in the MCD. After the accident he was re-designated as a Mali (Gardner). It is not the Appellant''s case that he suffered any loss of salary on account of re-designation or his future prospects were affected. Thus, in my view, the Appellant was not entitled to any compensation for loss of earning capacity in view of the judgment of the Supreme Court in Raj Kumar Vs. Ajay Kumar and Another, 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:-

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.

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.

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.

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.

The Appellant was granted adequate compensation for expenses incurred towards the medical treatment, special diet and conveyance. However, the compensation awarded towards non pecuniary damages was on the lower side, even if, the amount of Rs. 60,000/- awarded towards loss of earning capacity is considered towards loss of amenities of life.

In Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal and Others, this Court referred to various decisions and held that where there was amputation of leg with permanent disability of 50% and above the Courts have been awarding compensation of about Rs. 3 lacs under the head of non pecuniary damages and the compensation of Rs. 2.5 lacs awarded under the head of non pecuniary damages was just, fair and reasonable. I extract Para 18 of the report hereunder:-

In order to properly appreciate the contentions advanced by the learned counsel for the appellant, I note the following judgments:-

(i) B.N.Kumar vs. Delhi Transport Corporation, 2006 ACJ 77 (Delhi) In said case, injured sustained crush injuries on his right leg leading to its amputation above knee in a road accident on 5th November 1987. He suffered a permanent disability of 85%. Noting various judgments wherein Courts had awarded Rs. 3,00,000/- under the head non-pecuniary damages, a Single Judge of this Court awarded Rs. 75,000/- for ''pain and suffering'' and Rs. 2,00,000/- for ''continuing disability suffered by him''. Thus, a total of Rs. 2,75,000/- was awarded under this head.

(ii) Fakkirappa Vs. Yallawwa and Another, In said case, a minor male child sustained grievous injury in a road accident which occurred on 8.5.2000 resulting in amputation of his left leg below knee. Considering the gravity of injury suffered the injured, Division Bench of Karnataka High Court awarded following compensation under the head ''non pecuniary damages'':-

(i)

Pain and suffering

Rs. 50,000/

(ii)

Loss of amenities of life

Rs. 1,00,000/

(iii)

Loss of marriage prospects

Rs. 50,000/

(iv)

Damages for amputation of leg below knee

Rs. 1,50,000/

(v)

Loss of expectation of life

Rs. 50,000/

Total

Rs. 4,00,000/

(iii) K. Shankar Vs. Pallavan Transport Corporation Ltd., In said case, injured sustained serious injuries on his right leg in an accident on 14.2.1989. His right leg was amputated and he suffered permanent disability of 80%. A learned Single Judge of Madras High Court awarded the following compensation under the head ''non-pecuniary damages''.

(i)

Permanent disability

Rs. 80,000/

(ii)

Pain and suffering

Rs. 50,000/

(iii)

Loss of expectation of life and proper marital alliance

Rs. 50,000/

(iv)

For mental agony

Rs. 1,00,000/

Total

Rs. 2,80,000/-

(iv) M.Jaganathan vs. Pallavan Transport Corporation, 1999 ACJ 366 (Madras). In said case, injured aged 45 years sustained injuries in an accident on 21.6.1990. The injury sustained by the injured resulted in the amputation of his left leg above the knee. Division Bench of Madras High Court awarded following compensation under the head ''non pecuniary damages'':-

(i)

Pain and suffering

Rs. 1,00,000/

(ii)

Compensation for continuing permanent disability

Rs. 2,00,000

(iii)

Mental agony, torture and

humiliation because of

amputation

Rs. 75,000

Total

Rs. 3,75,000/

(v) Bhagwan Singh Meena Vs. Jai Kishan Tiwari and Others, . In said case, the injured sustained severe and serious injuries on account of the road accident. His right leg was amputated. A learned Single Judge of Rajasthan High Court awarded a compensation of Rs. 3,00,000/- under the head non-pecuniary damages.

(vi) Dr. Gop Ramchandani Vs. Onkar Singh and Others, In said case, in an accident which had occurred on 17.12.1985, injured sustained injuries because of which his left leg was amputated resulting in 50% permanent disability. A Single Judge of Rajasthan High Court awarded a compensation of Rs. 3,00,000/- under the head ''non pecuniary damages''. Break-up of the compensation under the said head is as under:-

(i)

Physical and mental agony

Rs. 1,00,000/

(ii)

Permanent disability

Rs. 1,00,000/

(iii)

Loss of social life and

loss in profession

Rs. 1,00,000/

Total

Rs. 3,00,000/

(vii) Jitendra Singh Vs. Islam and Others, In said case, in an accident which had occurred on 14.02.1992, injured sustained injuries because of which his left leg was amputated resulting in 55% permanent disability. A Single Judge of Rajasthan High Court awarded a compensation of Rs. 3,00,000/- under the head ''non pecuniary damages''.

(viii) Iranna Vs. Mohammadali Khadarsab Mulla and Another, In said case, on 19.4.2000, injured aged 7 years met with an accident. Due to the said accident, he sustained grievous injuries resulting in amputation of his left leg below knee. Tribunal awarded following compensation to him under the head ''non pecuniary damages'':-

(i)

Pain and suffering

Rs. 50,000/

(ii)

Loss of amenities, happiness,

frustration

Rs. 1,00,000/

(iii)

Loss of marriage prospects

Rs. 50,000/

(iv)

Amputation of leg below knee

and knee dis-articulation

Rs. 1,50,000/

Total

Rs. 3,50,000/

There have been some cases where the compensation less than Rs. 3 lacs was awarded under the head of non pecuniary damages. For instance in A.B. Gupta Vs. Rajbir Singh and Others this Court awarded compensation of Rs. 1.5 lacs under the head of non pecuniary damages with 60% disability to the left leg in a case of amputation. The accident in A.B. Gupta (supra) case took place on 14.08.1996.

In this case, there was amputation of the right leg below the knee on account of crushing of the right foot. Considering the above mentioned cases and the fact that the accident took place on 19.03.1986, the compensation of Rs. 2 lacs under the head of non pecuniary damages appears to be just, fair and reasonable. The Tribunal, as stated earlier awarded Rs. 20,000/- towards pain and suffering and Rs. 60,000/- towards loss of earning capacity which really was towards the loss of amenities in life on the basis of Raj Kumar (supra). Thus, after deducting a sum of Rs. 80,000/- from Rs. 2,00,000/-, the Appellant is entitled to an additional compensation of Rs. 1,20,000/- (Rupees One lacs twenty thousand only).

The enhanced amount shall carry interest @ 7.5% per annum from the date of filing of the petition i.e. 06.05.1986 till the realization of the amount. Respondent No. 2 Director, PWD Horticulture, PHQ is directed to make the payment within six weeks to be deposited with UCO Bank, Delhi High Court Branch, New Delhi in the name of the Appellant. 30% of the enhanced amount shall be credited in the Appellant''s saving account which he shall be entitled to withdraw at his will. Rest 70% of the enhanced amount shall be converted into an Fixed Deposit for a period of three years which the Appellant shall not be entitled to encash during the period.

The Appeal is allowed and the impugned award is modified in the above terms. No costs. Copy of the order be sent to the Trial Court for information and compliance.