Civil Appeal No.3900 of 2023

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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

05.01.2014, for a period of around one month and ten days. Thereafter

Digitally signed by

POOJA SHARMA

Date: 2023.07.04

17:17:17 IST

Reason:

Signature Not Verified 2023 INSC 597

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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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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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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

And Others

1

. 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.