Hanuman Dutt v. Nalani Jayant Arora Etc
-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.7910 of 2016 (O&M) Date of Decision: 23.1.2018 Hanuman Dutt ...Appellant Vs.
Nalani Jayant Arora and another ..Respondents CORAM: HON'BLE MS.JUSTICE RITU BAHRI
Present:
Ms.Ekta Thakur, Advocate for the appellant.
Mr.Rajneesh Malhotra, Advocate for respondent No.2. RITU BAHRI, J.
The claimant has come up in appeal against the award of the Tribunal dated 18.3.2016 whereby compensation of Rs.1,47,434/- has been awarded on account of injuries suffered by him in a road side accident on 10.6.2015.
FACTS NOT IN DISPUTE On 10.6.2015, while the claimant was going from his home on his motor cycle bearing registration No.CH01-AL-3119 to his place of work in village Raipur Khurd, at about 9.15 a.m respondent No.1 came driving offending Honda City Car bearing registration No.CH01-AY8946 at a very high speed and in rash and negligent manner and hit against the motor cycle of the claimant. As a result of which, he suffered multiple injuries on vital organs of his body.
COMPENSATION ASSESSED BY THE MACT On the basis of evidence led by the parties, the Tribunal
-2assessed the compensation as under:
Sr.No.
Head Amount (` ) Transportation charges `10,000/- Compensation for engaging an attendant `10,000/- Compensation for special diet `10,000/- Pain and suffering and loss of enjoyment `10,000/- Compensation for permanent disability `50,000/- Medical Bills `34,934/- Compensation for loss of income `22,500/- Total `1,47,434/- Counsel for the claimant-appellant has referred to disability certificate Ex.P31 vide which permanent disability of the claimant-appellant was found to be 20% in relation to whole body. He has referred to the statement of PW2 Dr.Ravi Kumar Preenja, Assistant Professor, GMCH Sector 32, Chandigarh, who proved the disability certificate Ex.
P31 and deposed that the patient was a case of fracture, both bones leg right side with fracture distal radium left side with fracture of proximal phalanx 5th finger; the patient remained on physiotherapy for three months and required the service of an attendant for three months and that patient would have difficulty in squatting, long standing and climbing stairs and would have functional disability which is permanent in nature and is unlikely to improve with the passage of time. It is further contended that the claimant being tailor, is to operate his stitching machine with both his legs and as per the disability certificate, he has difficulty in squatting, long standing and climbing stairs, therefore, the compensation with regard to disability of the claimant being a daily wager, requires to be re-assessed.
-3interference is required.
It is not in dispute that there is disability of 20% which is permanent in nature and there was fracture distal radium left side with fracture phalanx 5th finger. Further as per doctor, the disability is unlikely to improve with the passage of time. The appellant will have difficulty in squatting, long standing and climbing stairs. Reference at this stage can be made to a judgment of Hon'ble the Supreme Court in a case of Raj Kumar vs. Ajay Kumar and others, 2011(2) RCR (Civil) 101 wherein the Apex Court had laid down the principles for determining the loss and the affect of permanent disability on the actual earning capacity. It would be useful to refer to the relevant paragraphs:- "9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability.
This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent.
-4his earning capacity.
10. 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.
-5perform 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."
Since the appellant in the present case is a tailor and will face difficulty in now doing his work, his monthly income can be taken at
-6Rs.7500/- per month for determining the compensation. The compensation is re-assessed as under:- Sr.
No.
Head Amount (` ) Loss of income by multiplier method (7500 X 12 X 14) X 20% qua whole body=2,52,000/- 2 Transportation charges Rs.20,000/- 3 Compensation for engaging an attendant Rs.20,000/- 4 Compensation for special diet Rs.20,000/- 5 Pain and suffering and loss of enjoyment Rs.50,000/- 6 Medical Bills Rs.34,934/- Total compensation awarded Rs.3,96,934/- Enhanced amount of compensation 396934-147434=Rs.249500/- The enhanced amount of compensation of Rs.2,49,500/- shall be payable within a period of forty five days from the date of receipt of certified copy of this order. The enhanced amount of compensation shall carry interest @ 9% per annum from the date of filing of the claim petition, till its realization, in view of the judgment of Hon'ble the Supreme Court in a case of Kumari Kiran through her father Harinarayan vs. Sajjan Singh and others, 2015(1) SCC 539. Remaining conditions of disbursal of amount shall remain unaltered.
Accordingly, the award stands modified to the above extent and the present appeal is partly allowed.
( RITU BAHRI ) 23.1.2018 JUDGE Meenu/G Arora Whether speaking/reasoned - Yes Whether Reportable - No