IMPORTANT POINT
Same injury suffered by two different persons may affect them in different ways – A person with his right leg amputated cannot perform duty of a gunman.

JUDGMENT :

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 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 Rs.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 Rs.1,50,000/- on account of pain and suffering, Rs.95,000/- on account of diet, conveyance and attendant charges. In addition, a sum of Rs.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 Rs.20,774/- per month including a conveyance allowance of Rs.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 Rs.1,572/- per month which was increased to Rs.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 Rs.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 the job on which the appellant was employed, compensation of Rs.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 Rs.4,92,205/- and finally the amount determined was Rs.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 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