Rajender Prasad vs Deepak Kumar and Others

G.P. Mittal, J.—The Appeal is for enhancement of compensation of Rs. 1,52,980/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of the Appellant for having suffered injuries in a motor vehicle accident which occurred on 08.01.2007. In the absence of any Appeal by the driver, owner or the insurer of the offending vehicle; the finding on negligence has attained finality.

The only ground of challenge raised by the Appellant is that he (the Appellant) was working as a diesel tank clutch plate mechanic. On account of 45% permanent disability in relation to his right lower limb and on account of stiffness of knee, he is unable to perform his duty and has been rendered jobless. However, he has not been awarded any compensation towards loss of earning capacity.

The Claims Tribunal awarded a sum of Rs. 1,52,980/-, which is tabulated hereunder:

On the other hand, the learned counsel for the Respondent Insurance Company urges that the compensation awarded is just and reasonable. The compensation of Rs. 1,00,000/- towards pain and suffering, inconvenience and loss of amenities include the compensation towards permanent disability.

I would not agree. In the Claim Petition, the Appellant pleaded that he was working as a diesel tank clutch plate mechanic and was earning Rs. 5,000/- per month. In his affidavit in support of the Claim Petition, he deposed that on account of permanent disability, he lost his job and was still unemployed. He stated that people refuse to give him any job because of his physical condition. The disability certificate Ex. PW2/A was duly proved by Dr. Nirankar Singh, HOD Orthopaedics, BSA Hospital, Rohini. The disability certificate Ex. PW2/A shows that the Appellant is physically disabled on account of stiffness of right knee and the physical disability was assessed to be 45% in relation to his right lower limb. No expert opinion was taken from Dr. Nirankar Singh with regard to its impact on the Appellant''s profession. At the same time, it cannot be lost sight of the fact that the Appellant was working as a mechanic. The movement of right knee would play a significant role in his working.

In the absence of any specific evidence in Raj Kumar Vs. Ajay Kumar and Another, , the Supreme Court took 45% disability in respect of left lower limb as 20% of future loss of earning capacity. In the instant case, I would also make a guess work in assessing the future loss of earning capacity as 20% on account of 45% of disability in respect of right lower limb.

The Appellant claimed his income to be Rs. 5,000/- per month. No cogent evidence was produced with regard to the income. I would, therefore, assess loss of earning on the basis of minimum wages of a skilled worker as fixed by the Government of NCT of Delhi at the time of the accident which were Rs. 3,736/- per month. The Appellant would be entitled to an addition of 30% on the basis of the judgment of Supreme Court in Santosh Devi Vs. National Insurance Company Ltd. and Others, . The loss of earning capacity thus comes to Rs. 2,09,813/- ( Rs. 3,736/- + 30% x 12 x 18 x 20%).

No other contention has been raised.

The enhanced compensation of Rs. 2,09,813/- shall carry interest @ 7.5% per annum from the date of filing of the Petition till its payment. 75% of the compensation shall be held in fixed deposit in any nationalised bank for a period of five years, rest 25% shall be released on deposit. The Appellant shall be entitled to quarterly interest on the amount held in fixed deposit.

The Respondent No. 3 Insurance Company is directed to deposit the enhanced amount of Rs. 2,09,813/- with the Claims Tribunal within six weeks.

The Appeal is allowed in above terms. Pending Applications stand disposed of.