Nirmal Kishore Khanna v. Kalu Ram @ Kalu Singh & Ors.

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the Award dated 20.09.2010 vide which the compensation has been awarded in favour of the claimant who is the injured in this case. The petitioner/injured had suffered an accident on 26.08.2004; initially 38% temporary disability had been recorded qua the claimant. Thereafter, in appeal the matter had been referred to the Medical Board of the All India Medical Sciences (hereinafter referred to as „AIIMS‟); the report of the AIIMS Hospital has since been received which has 2011:DHC:3925 reported a permanent disability of the petitioner at 35%; the report states that the petitioner‟s case is of Post Truamatic Osteoarthritis both hips; he is physically handicapped and there is 35% permanent physical impairment in relation to his both lower limbs; further, there is a note that this condition is not likely to change.

2. Learned counsel for the petitioner is aggrieved by the amount awarded under the head of “loss of earning capacity”. His contention is that amount awarded at ` 75,000/- has been miscalculated; multiplier of 5 has also wrongly been applied. It should have been 9 in view of the judgment of the Apex Court reported in 2009 INDLAW Sarla Verma Vs. DTC’ SC 488, Supreme Court. This has been fairly conceded by the learned counsel for the respondent. Keeping in view the medical certificate which has reported the medical condition of the petitioner and in view of the submissions made by the learned counsel for the petitioner, the disability assessed at 10% by the Tribunal calls for an interference; the permanent disability has been assessed by the AIIMS Medical Board at 35% but keeping in view the nature of the job that the petitioner was doing, he being an LIC Agent, this court is of the view that the functional disability of the victim should be categorized at 20%. In view of the aforenoted contentions, the enhanced amount under the head of “loss of earning capacity” will now read as:- `12,500/- (salary) x 12 x 9 x 20/100 = ` 2,70,000/- The sum of ` 75,000/- under this head is enhanced to `2,70,000/-.

3 Learned counsel for the petitioner is also aggrieved by the amount awarded under head of “Attendant charges”. Attendant Charges have been awarded at the rate of Rs. 100 per day for a period of four months i.e. totaling `12,000/-. Keeping in view the status of the petitioner whose salary had been assessed at ` 12,500 per month and also the fact that the admission of the patient in the hospital was for a period of two months, the attendant charges calculated at the rate of Rs. 100/- per day for four months is fair and calls for no interference.

4. The petitioner is also aggrieved by the amount awarded under the head of “loss of income”. His contention is that the loss of income calculated for a period of eight month is counter to the evidence produced by the petitioner; his contention being that he had stayed away from work for about 23 months. Admittedly, there is no such document to this effect. This amount awarded under this head thus calls for no interference.

5. Petitioner is also aggrieved by the fact that no amount had been awarded under the “loss of amenities to life”; his contention being that he has suffered a permanent disability, he cannot enjoy the amenities of life; he can never be a normal man. Admittedly, no amount has been awarded under the head of “loss of amenities to life” which the patient has suffered; the victim has become permanently disabled and cannot make use of his lower limbs because of the suffering of the hip joints; his permanent disability at 35 % has been assessed; this court has noted that the functional disability of the victim is assessed at 20 %; the victim has been deprived of the benefits of a normal happy life; this court is thus of the view that the award calls for an interference on this count and a sum of Rs. 50,000/- is accordingly granted to the petitioner under the head of “loss of amenities to life”.

6. Award is modified accordingly.

7. No other modification is called for.

8. Appeal is disposed of in the above terms.

INDERMEET KAUR, J. AUGUST 04, 2011 rb