SARNAM SINGH versus SHRIRAM GENERAL INSURANCE CO. LTD. & ORS on 4 July 2023

1. Aggrieved against the order passed by the Delhi High Court inMAC.APP.461/2016 dated August 25, 2017, the appellant has filed thepresent appeal before this court.

2. The appellant met with an accident on 24.11.2013 with Tempobearing registration number UP 79T 1948. As a result of which hesuffered injuries. He remained hospitalised from 24.11.2013 to 05.01.2014,for a period of around one month and ten days. Thereafter he remained AB

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Aunder follow-up treatment for about a year. He suffered 85% disabilityin relation to his right lower limb as the same had to be amputated. TheMotor Accident Claims Tribunal, South District, Saket New Delhi, (forshort ‘the Tribunal’) vide its award dated 18.4.2016, awarded acompensation of 34,29,800/-. As the vehicle was insured, the liabilitywas put on the insurance company. The Tribunal while assessing theBcompensation had awarded a sum of 1,50,000/- on account of painandsuffering, 95,000/- on account of diet, conveyance and attendantcharges. In addition, a sum of 1,00,000/- was awarded on account ofloss of amenities. The appellant was working as gunman with M/s BharatHotels Ltd. and was having a designation of Senior Assistant. At theCtime of accident, he was drawing a salary of 20,774/- per monthincluding a conveyance allowance of 800/-. He was permanentlyemployed with the company since 20.06.1992. At the time of his initialengagement,he was drawing a salary of 1,572/- per month which wasincreased to 20,774/- with the passage of time from 1992 to 2013. Asa result of the accident and amputation of his right lower limb, his servicesDwere terminated w.e.f. 31.5.2015 on account of inability to discharge hisduties for which he was employed. The Tribunal had taken the net salaryat 19,947/- per month after reducing the transport allowance from thegross salary. On the date of accident his age was 50 years and 5 monthsold. While assessing the compensation the Tribunal applied a multiplierof 13. While taking his functional disability at 100% with reference toEthe job on which the appellant was employed, compensation of 30,84,800/- was awarded.

3. Against the order of the Tribunal, the insurance company filedappeal before the High Court. The High Court vide impugned orderdated 25.8.2017, while not finding any fault with reference to any of theFfindings recorded by the Tribunal, namely the income of the appellant,his age, multiplier appliedor the disability suffered, reduced thecompensation taking his loss of earning capacity at 80%,despite the factthat the appellant had suffered amputation of his right lower limb. Theamount of compensation was reduced by 4,92,205/- and finally theGamount determined was 28,43,000/- (rounded off). The compensationawarded under other heads was not disturbed.4. It is the aforesaid order which has been impugned by theappellant before this Court.

5. Learned Counsel for the appellant has raised a limited argumentHthat the order of the High Courtreducing the loss of earning capacity to SARNAM SINGH v. SHRIRAM GENERAL INSURANCE CO.LTD. & ORS. [RAJESH BINDAL, J.]

80% is erroneous as the appellant had suffered amputation of his rightlower limb. He was working as gunman. As a result of the accident onaccount of his inability to discharge duty as gunman his services wereterminated w.e.f. 31.05.2015. Hence, in the case of the appellant thefunctional disability could not be taken as 80%. It should be taken as100%.

6. On the other hand, Learned Counsel for the respondentInsurance company submitted that there was error in calculation of thecompensation by the Tribunal keeping in view the disability certificateproduced by the appellant. The same has been corrected by the HighCourt. The appellant had not preferred appeal seeking enhancement ofcompensation. There is no error in the order passed by the High Court.The appeal, therefore,deserves to be dismissed.

7. Heard Learned Counsel for the parties and perused the paperbook.

7. Heard Learned Counsel for the parties and perused the paperbook.

8. The issue required to be considered in the present appeal fallsin a very narrow campus. It is with the reference to the functionaldisability of the appellant for the purpose of assessment of compensation.The fact remains that he suffered injuries in a road accident on accountof which his right lower limb was amputated. This resulted in permanentdisability.There is a certificate produced by the appellant from MadanMohan Malviya Hospital, (Government of NCT Delhi) showing hispermanent physical disability at 85% with further note that the conditionis not likely to improve and no further reassessment is recommended.The certificate was issued by a board of doctors on 28.03.2014. As perthe photograph of the appellant appearing in the disability certificate, hisright leg has been amputated above the knee. The income of the appellant,his age and other factors are not in dispute.

9. As to how compensation, in case where permanent disability ofan injured affects his functional disability, is to be assessed has beenconsidered by this Court, repeatedly. Reference can be made to thejudgment of this Court in Mohan Sonivs. Ram Avtar Tomar And1Others. In the aforesaid case the injured was working as a cart puller.Asa result of the accident, his left leg was amputated. His permanentdisability was assessed at 60%. The Tribunal assessed the compensationtaking the loss of earning at 50% on the theory that he can still do some ABC

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Aother work while sitting. The High Court did not disturb the findingregarding loss of income on account of disability. This Court found thatthe Tribunal was in error in taking the loss of earning at 50% as theinjured was 55 years of age and it may be difficult for him to find a job atthat stage. In fact, any physical disability resulting from an accident hasto be judged with reference to the nature of the work being performedBby the person who suffered disability. The same injury suffered by twodifferent persons may affect them in different ways. Loss of leg by afarmer or a rickshaw puller may be end of the road as far as his earningcapacity is concerned. Whereas, in case of the persons engaged in somekind of desk work in office, loss of leg may have lesser effect. ThisCCourt enhanced the loss of earning capacity from 50% to 90%.

10. Applying the same principle to the case in hand, we find thatthe appellant herein was working as a gunman with Bharat HotelLimited.On account of amputation of his right leg above the knee, hewas terminated from service w.e.f. 31.05.2015. It is not a matter ofDdispute that a person with his right leg amputated cannot perform theduty of a gunman. This is his functional disability. He was 50 years & 5months old at the time of accident. Considering the aforesaid facts, inour view, the Tribunal was right in assessing the loss of earning capacityof the appellant at 100% and assessing the compensation accordingly.The High Court was in error in reducing the loss of earning capacity toE80%, relying upon the judgment of High Court, despite there being ajudgment of this Court available on the issue.

11. To put the records straight, we may add that there is anothererror in order passed by the High Court in calculating thecompensation.The compensation awarded by the Tribunal was taken onF 33,34,800/-. Reducing a sum of 4,92,205/- therefrom, thecompensation was assessed at 28,43,000/- (rounded off). However,total compensation awarded by the Tribunal was 34,29,800/- and not 33,34,800/-

12. For the reason mentioned above, the appeal filed by theGappellant is allowed. The impugned order passed by the High Court isset aside and the award passed by the Tribunal is restored. There shallbe no order as to costs.

Nidhi Jain

H(Assisted by : Tamana, LCRA)