Full Judgment Text
Civil Appeal No.3900 of 2023
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3900 OF 2023
SARNAM SINGH … Appellant(s)
Versus
SHRIRAM GENERAL INSURANCE
CO. LTD. & ORS. … Respondent(s)
J U D G M E N T
Rajesh Bindal, J.
1. Aggrieved against the order passed by the Delhi High
Court in MAC.APP.461/2016 dated August 25, 2017, the appellant has
filed the present appeal before this court.
2. The appellant met with an accident on 24.11.2013 with
Tempo bearing registration number UP 79T 1948. As a result of which
he suffered injuries. He remained hospitalised from 24.11.2013 to
Signature Not Verified
Digitally signed by
POOJA SHARMA
Date: 2023.07.04
17:17:17 IST
Reason:
05.01.2014, for a period of around one month and ten days. Thereafter
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he remained under follow-up treatment for about a year. He suffered
85% disability in relation to his right lower limb as the same had to be
amputated. The Motor Accident Claims Tribunal, South District, Saket
New Delhi, (for short ‘the Tribunal’) vide its award dated 18.4.2016,
awarded a compensation of ₹ 34,29,800/-. As the vehicle was insured,
the liability was put on the insurance company. The Tribunal while
assessing the compensation had awarded a sum of ₹ 1,50,000/- on
account of pain and suffering, ₹ 95,000/- on account of diet, conveyance
and attendant charges. In addition, a sum of ₹ 1,00,000/- was awarded
on account of loss of amenities. The appellant was working as gunman
with M/s Bharat Hotels Ltd. and was having a designation of Senior
Assistant. At the time of accident, he was drawing a salary of ₹ 20,774/-
per month including a conveyance allowance of ₹ 800/-. He was
permanently employed with the company since 20.06.1992. At the time
of his initial engagement, he was drawing a salary of ₹ 1,572/- per
month which was increased to ₹ 20,774/- with the passage of time from
1992 to 2013. As a result of the accident and amputation of his right
lower limb, his services were terminated w.e.f. 31.5.2015 on account of
inability to discharge his duties for which he was employed. The
Tribunal had taken the net salary at ₹ 19,947/- per month after reducing
the transport allowance from the gross salary. On the date of accident
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his age was 50 years and 5 months old. While assessing the
compensation the Tribunal applied a multiplier of 13. While taking his
functional disability at 100% with reference to the job on which the
appellant was employed, compensation of ₹ 30,84,800/- was awarded.
3. Against the order of the Tribunal, the insurance company
filed appeal before the High Court. The High Court vide impugned
order dated 25.8.2017, while not finding any fault with reference to any
of the findings recorded by the Tribunal, namely the income of the
appellant, his age, multiplier applied or the disability suffered,
reduced the compensation taking his loss of earning capacity at 80%,
despite the fact that the appellant had suffered amputation of his right
lower limb. The amount of compensation was reduced by ₹ 4,92,205/-
₹
and finally the amount determined was 28,43,000/- (rounded off). The
compensation awarded under other heads was not disturbed.
4. It is the aforesaid order which has been impugned by the
appellant before this Court.
5. Learned Counsel for the appellant has raised a limited
argument that the order of the High Court reducing the loss of earning
capacity to 80% is erroneous as the appellant had suffered amputation
of his right lower limb. He was working as gunman. As a result of the
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Civil Appeal No.3900 of 2023
accident on account of his inability to discharge duty as gunman his
services were terminated w.e.f. 31.05.2015. Hence, in the case of the
appellant the functional disability could not be taken as 80%. It should
be taken as 100%.
6. On the other hand, Learned Counsel for the respondent
Insurance company submitted that there was error in calculation of the
compensation by the Tribunal keeping in view the disability certificate
produced by the appellant. The same has been corrected by the High
Court. The appellant had not preferred appeal seeking enhancement
of compensation. 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
paper book.
8. The issue required to be considered in the present appeal
falls in a very narrow campus. It is with the reference to the functional
disability of the appellant for the purpose of assessment of
compensation. The fact remains that he suffered injuries in a road
accident on account of which his right lower limb was amputated. This
resulted in permanent disability. There is a certificate produced by the
appellant from Madan Mohan Malviya Hospital, (Government of NCT
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Civil Appeal No.3900 of 2023
Delhi) showing his permanent physical disability at 85% with further
note that the condition is not likely to improve and no further
reassessment is recommended. The certificate was issued by a board
of doctors on 28.03.2014. As per the photograph of the appellant
appearing in the disability certificate, his right 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 of an injured affects his functional disability, is to be assessed
has been considered by this Court, repeatedly. Reference can be
made to the judgment of this Court in Mohan Soni vs. Ram Avtar Tomar
1
And Others . In the aforesaid case the injured was working as a cart
puller. As a result of the accident, his left leg was amputated. His
permanent disability was assessed at 60%. The Tribunal assessed the
compensation taking the loss of earning at 50% on the theory that he
can still do some other work while sitting. The High Court did not
disturb the finding regarding loss of income on account of disability.
This Court found that the Tribunal was in error in taking the loss of
earning at 50% as the injured was 55 years of age and it may be difficult
for him to find a job at that stage. In fact, any physical disability
1
(2012) 2 SCC 267
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resulting from an accident has to be judged with reference to the nature
of the work being performed by the person who suffered disability.
The same injury suffered by two different persons may affect them in
different ways. Loss of leg by a farmer or a rickshaw puller may be end
of the road as far as his earning capacity is concerned. Whereas, in
case of the persons engaged in some kind of desk work in office, loss
of leg may have lesser effect. This Court enhanced the loss of earning
capacity from 50% to 90%.
10. Applying the same principle to the case in hand, we find
that the appellant herein was working as a gunman with Bharat Hotel
Limited. On account of amputation of his right leg above the knee, he
was terminated from service w.e.f. 31.05.2015. It is not a matter of
dispute that a person with his right leg amputated cannot perform the
duty of a gunman. This is his functional disability. He was 50 years & 5
months old at the time of accident. Considering the aforesaid facts, in
our view, the Tribunal was right in assessing the loss of earning
capacity of the appellant at 100% and assessing the compensation
accordingly. The High Court was in error in reducing the loss of
earning capacity to 80%, relying upon the judgment of High Court,
despite there being a judgment of this Court available on the issue.
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11. To put the records straight, we may add that there is another
error in order passed by the High Court in calculating the
compensation. The compensation awarded by the Tribunal was taken
on ₹ 33,34,800/-. Reducing a sum of ₹ 4,92,205/- therefrom, the
compensation 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 the
appellant is allowed. The impugned order passed by the High Court is
set aside and the award passed by the Tribunal is restored. There shall
be no order as to costs.
…………………, J.
(Abhay S. Oka)
……………….., J.
(Rajesh Bindal)
New Delhi
July 4, 2023.
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