SARNAM SINGHversusSHRIRAM GENERAL INSURANCE CO. LTD. & ORS

1182               [2023] 9COURT
                SUPREME     S.C.R. REPORTS
                                   1182 : 2023 INSC 597
                                                     [2023] 9 S.C.R.


 A                              SARNAM SINGH
                                         v.
            SHRIRAM GENERAL INSURANCE CO. LTD. & ORS.
                          (Civil Appeal No.3900 of 2023)
 B                                 JULY 4, 2023
               [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
              Motor Vehicles Act, 1988: Motor Accident – Permanent
       disability of an injured affecting his functional disability –
       Compensation – Assessment of – Held:Any physical disability
 C
       resulting from an accident has to be judged with reference to the
       nature of the work being performed by the person who suffered
       disability – On facts, the gunman employed with the company met
       with an accident resulting in 85% disability on account of amputation
       of his right lower limb, and pursuant thereto, his services were
 D     terminated on account of his inability to discharge his duties –
       Tribunal rightly assessed the loss of earning capacity of the claimant
       at 100% and the High Court erred in reducing it to 80%, thus,
       order passed by the High Court set aside and that of tribunal
       restored.
 E           Allowing the appeal, the Court
             HELD: 1.1 Any physical disability 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
 F     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. [Para 9][1186-B-C]
             1.2 The appellant was working as a gunman with the
 G     company. On account of amputation of his right leg above the
       knee, he was terminated from service. 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 said

 H
                                       1182
  SARNAM SINGH v. SHRIRAM GENERAL INSURANCE CO.                              1183
                    LTD. & ORS.

facts, the tribunal was right in assessing the loss of earning               A
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. The High Court also erred in calculating the compensation.
                                                                             B
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/- The impugned order passed
by the High Court is set aside and the award passed by the tribunal          C
is restored.[Para 10, 11][1186-C-G]
      Mohan Soni vs. Ram Avtar Tomar And Others (2012) 2
      SCC 267 : [2012] 2 SCR 921 – relied on.
                        Case Law Reference
                                                                             D
[2012] 2 SCR 921                  relied on                    Para 10
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.3900
of 2023.
      From the Judgment and Order dated 25.08.2017 of the High Court
of Delhi at New Delhi in MACA No.461 of 2016.                                E
      Miss. Geetanjali Mohan, K. K. Mohan, Mrs. Geetanjali Mohan,
Advs. for the Appellant.
       Ms. Meenakshi Midha, Garv Singh, Chander Shekhar Ashri, Advs.
for the Respondents.
                                                                             F
      The Judgment of the Court was delivered by
      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.                                            G

       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 05.01.2014,
for a period of around one month and ten days. Thereafter he remained
                                                                             H
1184             SUPREME COURT REPORTS                            [2023] 9 S.C.R.


 A     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
 B     compensation had awarded a sum of 1,50,000/- on account of pain
       andsuffering, 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
 C     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
 D     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 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
 E
       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
 F     findings recorded by the Tribunal, namely the income of the appellant,
       his age, multiplier appliedor 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
 G     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
 H     that the order of the High Courtreducing the loss of earning capacity to
     SARNAM SINGH v. SHRIRAM GENERAL INSURANCE CO.                             1185
              LTD. & ORS. [RAJESH BINDAL, J.]

80% is erroneous as the appellant had suffered amputation of his right         A
lower limb. He was working as gunman. As a result of the 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%.
                                                                               B
      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.         C
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     D
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 Delhi) showing his                  E
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,      F
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 And                   G
Others1. In the aforesaid case the injured was working as a cart puller.
Asa 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
1
    (2012) 2 SCC 267
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1186             SUPREME COURT REPORTS                           [2023] 9 S.C.R.


 A     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 resulting from an accident has
       to be judged with reference to the nature of the work being performed
 B
       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
 C     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
 D     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
 E     80%, relying upon the judgment of High Court, despite there being a
       judgment of this Court available on the issue.
              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
 F        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
 G     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.

       Nidhi Jain                                                    Appeal allowed.
 H     (Assisted by : Tamana, LCRA)