Full Text
Date of Decision: 08.12.2014
ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr. L.K. Tyagi, Advocate
Through Mr. S.N. Parashar, Advocate for R1
SAMBHU YADAV & ORS ..... Appellants
Through Mr. S.N. Parashar, Advocate
Through Mr. L.K. Tyagi, Advocate for R1
JUDGMENT
1. MAC.App.677/2011 is filed by the appellant insurance company impugning certain portions of the impugned award. MAC.App.304/2012 is filed by claimants seeking enhancement of the compensation amount.
2. Brief facts are that on 8.04.2007, the claimant was going from Gautam Colony towards Azadpur on a motorcycle as a pillion rider. The motorcycle was being driven by Sh. Raj Kumar. When they reached Singhu Border, the motorcycle was hit by a truck said to be driven in a rash and negligent manner. On account of the accident, the claimant suffered injuries. Hence the claim petition was filed. 2014:DHC:6834
3. Based on the evidence on record, the tribunal awarded a total compensation of Rs.8,72,625/-. The break up is as follows:
1. Loss of future earning capacity Rs.3,93,498/-
2. Loss of income Rs.20,820/-
3. Medical expenses Rs.38,357/-
4. Pain and sufferings etc. Rs.1,00,000/-
5. Special diet & conveyance charges Rs.20,000/-
6. Future treatment expenses Rs.2,50,000/-
7. Future conveyance charges Rs.50,000/- Total Rs.8,72,675/-
8. I will first deal with MAC. App. 677/2011. This appeal is filed by the appellant insurance company. As per the award a sum of Rs.2,50,000/- was deposited in the Court in FDR for one year which was not to be paid to the claimant but was to be paid directly to the hospital on account of any surgery regarding knee replacement. But in case the claimant did not take steps for getting his knee replacement surgery within 1 year then this amount shall not be paid to the claimant and the insurance company was entitled to take the money back.
9. Learned counsel appearing for the insurance company submits that the period of one year has lapsed and the said sum of Rs.2,50,000/- continues to lie deposited in the Court and no steps have been taken by the claimants to utilised the sum.
10. Learned counsel appearing for the claimant submits that the claimant does not wish to get the operation performed. In the light of the above statement of learned counsel for the claimant and in view of the directions passed by the tribunal, I direct that Rs.2,50,000/- would be refunded to the appellant-insurance company along with accumulated interest up to date. The present appeal stands disposed of. The statutory amount may be released to the appellant.
11. Now, I will deal with MAC.App.304/2012 for enhancement of the compensation amount. Learned counsel for the claimant submits that the tribunal has wrongly assessed the functional disability at 35%. It is submitted that the claimant suffered permanent disability to the extent of 78% in respect of right lower limb. The claimant was a machine operator, hence it is submitted that the computation of functional disability at 35% is extremely low and not in accordance with the facts of the case.
12. It is next submitted that the tribunal has assessed the income based on minimum wages of an unskilled workman whereas minimum wages for nonmatriculate would be the appropriate income to be used for computing the income of the claimant. It is lastly submitted that on non-pecuniary heads, no amount was given for the loss of amenities or disability suffered by the claimant.
13. As far as the functional disability is concerned, the disability certificate PW2/A states that it is a case of ankylosed knee (Right). The certificate assessed the permanent disability at 78% of the right lower limb.
14. Claimant PW[1] in his evidence by way of affidavit stated that due to the injuries sustained, he cannot work. PW[3] Dr. Sanjay Kumar, Special Orthopaedic, Sanjay Gandhi Memorial Hospital who appeared in witness box as Court Witness and who was a member of Disability Board and assessed disability of the claimant, states that the patient can operate the machines though he may have difficulty in moving from one place to another, but he can operate machines while standing. Given the nature of the work of the claimant, it is obvious that he was doing a function which involves lot of manual work. It is obvious that there would be limitations on the ability of the claimant to operate machines in as much as the nature of disability would mean that he would not be able to stand for long.
15. The Supreme Court in the case of Raj Kumar vs. Ajay Kumar, (supra) culled out the methodology for determining functional disability in paragraph 14 hold as follows:- “14. 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 ability (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 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.”
16. In the light of the above facts, I re-assess the functional disability as done by the tribunal and fix the functional disability at 50% instead of 35% as done by the tribunal. Loss of future earning would now be at Rs. 5,93,406 [(3663 + 50%) x 12 x 18 x 50%].
17. On non pecuniary damages, I award a sum of Rs.50,000/- for loss of amenities. The total compensation would now be as below: a) Loss of future earnings capacity Rs.5,93,406/b) Loss of income Rs.21,976/c) Medical expenses Rs.38,357 d) Pain and sufferings Rs.100,000/e) Special diet and conveyance charge Rs.20,000/f) Future treatment expense Rs.2,50,000/g) Future conveyance Rs.50,000/h) Loss of amenities Rs.50,000/- Total Compensation Rs.11,23,739/-
18. Accordingly, Rs.2,50,000/- lying deposited in the Court will be adjusted against the additional compensation payable to the claimant as per the terms of this order. Any additional compensation payable by the insurance company shall be deposited with interest @ 7.5% per annum from the date of filing of the claim petition till deposit in the Court before the Registrar General of this Court. The Registrar General of this Court may release the amount to the claimant.
19. The appeal stands disposed of. All interim orders stand vacated.
JAYANT NATH, J DECEMBER 08, 2014 ‘raj’