SHRI PAL  Vs UNION OF INDIA & ORS

WP(C) No.7856/2010 Page 1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserved: 1 8.12.2020
Date of Decision: 25.01.2021

+ W.P.(C) 7856/2010
SHRI PAL ….. Petitioner
Through Ms.Anupradha Singh, Adv.

versus

UNION OF INDIA & ORS ….. Respondents
Through Mrs.AvnishAhlawat, SC with
Mrs.TaniaAhlawat, Mr.Nitesh
Kumar Singh and Ms
PalakRohmetra, Advs.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA

1. This petition has been filed by the petitioner inter -alia claiming
compensation for the injury suffered by him due to negligence in his
treatment at the respondent no.3 hospital.
2. This Court, on 27.11.2015 , had passed the following order :
“1. The petitio ner seeks mandamus to, the respondent
no.1 Union of India (UOI), respondent no.2 Government
of National Capital Territory of Delhi (GNCTD),
respondent no.3 Medical Superintendent, BabuJagjivan
Ram Memorial Hospital, respondent no.4 Medical
Superintendent, Hindu Rao Hospital and respondent
no.5 Medical Superintendent, LokNayak Jai Prakash
Narayan (LNJP) Hospital, provide medical assistance
and compensation to the petitioner for the loss of use o f
his right arm caused on account of medical negligence
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WP(C) No.7856/2010 Page 2
of the doctors/staff of respondent no.3 BabuJagjivan
Ram Memorial Hospital.
2. The respondent no.3 BabuJagjivan Ram Memorial
Hospital belongs to the respondent no.2 GNCTD.
3. It appears that the res pondent no.4 Hindu Rao
Hospital and respondent no.5 LNJP Hospital have been
impleaded only to provide future medical
assistance/treatment to the petitioner.
4. The petition was entertained and a Medical Board
was constituted which has given Report dated 2 2nd
March, 2011 (at page 94 of the paper book) inter alia to
the effect that the right upper limb of the petitioner is
affected from elbow downwards and in the long run the
only treatment therefor is amputation of right forearm
and hand at the elbow joint.
5. This Court thereafter constituted a Inquiry Committee
to enquire into the cause and which Inquiry Committee
has submitted Report dated 9th September, 2013 (at
page 306 of the paper book) and which has concluded
that the injury to the petitioner appear s to be because of
accidental injection into the artery, and complication
arising from which, both staff nurse of respondent no.3
BabuJagjivan Ram Memorial Hospital could not
recognise and take remedial measures. The Report
attributes the cause of the inju ry to an error of judgment
on the part of junior resident on duty in indentifying the
complication of the case. It is further mentioned that
even the senior resident of surgery who examined the
patient twice failed to recognise the complication and
manage the case appropriately.
6. Though the counsel for the respondent no.2 GNCTD
has argued that since complicated questions of law and
fact are entailed, the petitioner should be relegated to a
civil suit but I am of the view that since this Court has
enterta ined the petition and the same has remained
pending and this Court has appointed, first a Medical
Board and thereafter an Inquiry Committee to assess the
injury to the petitioner and the cause thereof
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WP(C) No.7856/2010 Page 3
respectively, it is too late in the day to now change t he
course of action adopted in this petition and it would be
unfair to now ask the petitioner, after five years, to
approach the Civil Court. The same would also nullify
all the efforts made by this Court during the pendency of
this petition of constitutin g a Medical Board and Inquiry
Committee, of senior doctors from the Government
Hospitals.
7. From the Reports aforesaid it is clear that the
petitioner has suffered an injury attributable to the
respondent no.3 BabuJagjivan Ram Memorial Hospital
of the re spondent no.2 GNCTD.
8. The petitioner has thus become entitled to
compensation from the respondent no.2 GNCTD.
9. The petitioner has however not quantified the
compensation due to him. The counsel for the petitioner
also is immediately not able to state , to what
compensation the petitioner in such a situation would
have been entitled to, applying the principles applicable
to motor accident claims.
10. In the circumstances, the petitioner to within one
week file an affidavit quantifying the compensation,
applying the principles applicable to motor accident
claim cases, and to furnish advance copy thereof to the
counsel for the respondents who may cause an inquiry
into the contents thereof and if so feel the need file a
response, may do the same before the next date of
hearing.
11. List on 14th December, 2015.”

3. This petition is now listed before this Court for determining the
compensation that the petitioner is entitled to.
4. The petitioner claims that he has suffered permanent disability
assessed a t 90%. Further relying upon the Report dated 22.03.2011,
the learned counsel for the petitioner submits that the amputation of
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the right forearm and hand at elbow joint of the petitioner was
suggested in the long run and this itself prove s the disability to be
permanent and not temporary. She submits that in assessing the
disability , the nature of the vocation of the petitioner is also to be
considered. She submits that in the present case , the petitioner was a
vegetable vend or and therefo re, by losing a hand, would in fact be
rendered 100% disable d as far as functional disability is concerned. In
this regard, she places reliance on the judgments of the Supreme Court
in Raj Kumar v. Ajay Kumar &Anr. ,(2011) 1 SCC 343 ,Rekha Jain v.
National Ins urance Company Ltd. &Ors. , (2013) 8 SCC 389;
Sand ipKhanuja v.AtulDande&Anr. ,(2017) 3 SCC 351 and Syed
Sadiq &Ors. v. Divisional Manager, United India Insurance
Company Ltd. ,(2014) 2 SCC 7 35.
5. She also places reliance on the judgment of the Supreme Court
in Erudh ayaPriya v. State Express Transport Corporation Ltd., 2020
SCC OnLine SC 601 to submit that the petitioner is entitled to interest
at the rate of 9% p.a. on the compensation determined b y this Court.
6. As far as the quantum of compensation is concerned,she
submits that it is not denied by the respondents that the monthly
income of the petitioner is to be taken as Rs.12,000/ – per month. She
submits that 30% has to be added thereto as incremental income.
Therefore, annual income of the petitioner would be Rs.1,87,200/ -.
She submits that it is also not disputed that the petitioner being aged
about 41 years at the time of injury, a multiplier of 14 is to be applied
in terms of the judgm ent of the Supreme Court in SarlaVerma &Ors. v.
DelhiTransport Corporation &Anr. , (2009) 6 SCC 121. She submits
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that over and above the same , the petitioner is entitled to non-
pecuniary expenses inform of pain and suffering (Rs.90,000/ -); loss of
amenities (R s.90,000/ -); and cost of litigation (Rs.30,000/ -).
7. On the other hand, the learne d counsel for the respondent nos .2
and 3, the only contesting respondents remaining in the petition,
submits that the disability of the petitioner is to be calculated at 30%
in terms of the affidavit dated 03.09.2016 filed by the respondent no.5.
She submits that taking monthly income of the petitioner as
Rs.12,000/ – and the multiplier as 14, the petitioner would be entitled to
compensation of Rs.6,04,800/ – with interest at the rate of 6% p.a. from
the date of filing of the petition.
8. I have considered the submissions made by the learned counsels
for the parties.
9. As noted hereinabove , by the order dated 27.11.2015 the
entitlement of the petitioner to receive compensation from the
respondent nos.2 and 3 has already been determined.The only question
remaining is therefore the quantum of such compensation.
10. In Raj Kumar (supra) , the Supreme Court has held that award
of compensation shoul d, to the extent possible , fully and adequately
restore the claimant to the position prior to the accident. A person is
not only to be compensated for the physical injury, but also for the
loss which he suffered as a result of such injury. This would inclu de
compensation for his inability to lead a full life, enjoy those normal
amenities which he would have enjoy ed but for the injur ies, as also his
inability to ear n as much as he used to ear n or could have earn ed. The
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Supreme Court further laid down the hea ds under which the
compensation is to be awarded in personal injury cases as under :
“6. The heads under which compensation is awarded in
personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent
disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospe cts of
marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be
awarded only under heads ( i), (ii)(a) and ( iv). It is only in
serious cases of injury, where there is specific medical
evidence corroborating the evidence of the claimant, that
compensation will be granted under any of the heads
(ii)(b), (iii), (v) and ( vi) relating to loss of future earnings
on account of permanent disability, future medical
expenses, loss of amen ities (and/or loss of prospects of
marriage) and loss of expectation of life.”

11. As far as the percentage of permanent disability, the Supreme
Court observed as under:
“9. The percentage of permanent disability is expressed
by the doctors with reference to the whole body, or more
often than not, with reference to a particular limb. When
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WP(C) No.7856/2010 Page 7
a disability certificate states that the injured has suffered
permanent disability to an extent of 45% of the left lower
limb, it is not the same as 45% permanent disability with
reference to the whole body. The extent of disability of a
limb (or part of the body) expressed in terms of a
percentage of the total functions of that limb, obvious ly
cannot be assumed to be the extent of disability of the
whole body. If there is 60% permanent disability of the
right hand and 80% permanent disability of left leg, it
does not mean that the extent of permanent disability with
reference to the whole bod y is 140% (that is 80% plus
60%). If different parts of the body have suffered different
percentages of disabilities, the sum total thereof
expressed in terms of the permanent disability with
reference to the whole body cannot obviously exceed
100%.
10. Where the claimant suffers a permanent disability as
a result of injuries, the assessment of compensation under
the head of loss of future earnings would depend upon the
effect and impact of such permanent disability on his
earning capacity. The Tribunal sho uld not mechanically
apply the percentage of permanent disability as the
percentage of economic loss or loss of earning capacity.
In most of the cases, the percentage of economic loss, that
is, the percentage of loss of earning capacity, arising
from a per manent disability will be different from the
percentage of permanent disability. Some Tribunals
wrongly assume that in all cases, a particular extent
(percentage) of permanent disability would result in a
corresponding loss of earning capacity, and
consequ ently, if the evidence produced show 45% as the
permanent disability, will hold that there is 45% loss of
future earning capacity. In most of the cases, equating the
extent (percentage) of loss of earning capacity to the
extent (percentage) of permanent di sability will result in
award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the
effect of the permanent disability on the earning capacity
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of the injured; and after assessing the loss of earning
capacity in terms of a percentage of the income, it has to
be quantified in terms of money, to arrive at the future
loss of earnings (by applying the standard multiplier
method used to determine loss of dependency). We may
however note that in some cases, on apprec iation of
evidence and assessment, the Tribunal may find that the
percentage of loss of earning capacity as a result of the
permanent disability, is approximately the same as the
percentage of permanent disability in which case, of
course, the Tribunal wil l adopt the said percentage for
determination of compensation. (See for example, the
decisions of this Court in Arvind Kumar Mishra v. New
India Assurance Co. Ltd . and Yadava Kumar v. National
Insurance Co. Ltd.)
12. Therefore, the Tribunal has to first de cide whether
there is any permanent disability and, if so, the extent of
such permanent disability. This means that the Tribunal
should consider and decide with reference to the
evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the d isablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of such
disablement of the limb on the functioning of the entire
body, that is, the permanent disability suffered by the
person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding further
and determining the loss of future earning capacity. But if
the Trib unal concludes that there is permanent disability
then it will proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence,
it has to determine whether such permanen t disability has
affected or will affect his earning capacity.
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13. Ascertainment of the effect of the permanent disability
on the actual earning capacity involves three steps. The
Tribunal has to first ascertain what activities the claimant
could carry on in spite of the permanent disability and
what he could not do as a result of the permanent
disability (this is also relevant for awarding
compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession
and nature of work before the accident, as also his age.
The third step is to find out whether ( i) the claimant is
totally disabled from earning any kind of livelihood, or
(ii) whether in spite of the permanent disability, the
claimant could still effective ly carry on the activities and
functions, which he was earlier carrying on, or ( iii)
whether he was prevented or restricted from discharging
his previous activities and functions, but could carry on
some other or lesser scale of activities and functions so
that he continues to earn or can continue to earn his
livelihood.
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the claimant
was a driver or a carpenter, the a ctual loss of earning
capacity may virtually be hundred per cent, if he is
neither able to drive or do carpentry. On the other hand,
if the claimant was a clerk in government service, the loss
of his left hand may not result in loss of employment and
he ma y still be continued as a clerk as he could perform
his clerical functions; and in that event the loss of
earning capacity will not be 100% as in the case of a
driver or carpenter, nor 60% which is the actual physical
disability, but far less. In fact, the re may not be any need
to award any compensation under the head of “loss of
future earnings”, if the claimant continues in government
service, though he may be awarded compensation under
the head of loss of amenities as a consequence of losing
his hand. So metimes the injured claimant may be
continued in service, but may not be found suitable for
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discharging the duties attached to the post or job which
he was earlier holding, on account of his disability, and
may therefore be shifted to some other suitable b ut lesser
post with lesser emoluments, in which case there should
be a limited award under the head of loss of future
earning capacity, taking note of the reduced earning
capacity.”

12. The Court summari sed the principles for determination of
compensation as under:
“19. We may now summarise the principles discussed
above:
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of perm anent disability with reference
to the whole body of a person, cannot be assumed to be
the percentage of loss of earning capacity. To put it
differently, the percentage of loss of earning capacity is
not the same as the percentage of permanent disability
(except in a few cases, where the Tribunal on the basis of
evidence, concludes that the percentage of loss of earning
capacity is the same as the percentage of permanent
disability).
(iii) The doctor who treated an injured claimant or who
examined him subsequently to assess the extent of his
permanent disability can give evidence only in regard to
the extent of permanent disability. The loss of earning
capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different
persons, depending upon the nature of profession,
occupation or job, age, education and other factors.”

13. In Rekha Jain (supra) , the Supreme Court reiterated that the
Court while assessing the compensation is not to be guided simply by
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the disability certificate but also by the nature of the vocation of the
claimant. In the said case, though the disability certificate of the
petitio ner assessed the disability as 30%, having regard to the nature
of the vocation of the petitioner, the Supreme Court assessed it as
100% functional disabilit y.
14. InSyed Sadiq &Ors. (supra) , the Supreme Court was considering
a case of vegetable vend or who had sustained injur ies to the lower end
of the right femur and his right leg was amputated. He had further
sustained injury o ver his left upper arm. He was assessed as having
suffered disability of 24% to the upper limb and 85% to the lower
limb. The Tribun al considered the disability to the whole body at 30%
while the High Court assessed it at 65%. The Supreme Court,
however, determined the disability at 85% for arriving at t he loss of
income of the claimant , observing as under:

“7. Further, the appellant claims that he was working as
a vegetable vendor. It is true that a vegetable vendor
might not require mobility to the extent that he sells
vegetables at one place. However, the occupation of
vegetable vending is not confined to sel ling vegetables
from a particular location. It rather involves procuring
vegetables from the wholesale market or the farmers
and then selling it off in the retail market. This often
involves selling vegetables in the cart which requires
100% mobility. But even by conservative approach, if
we presume that the vegetable vending by the appellant
claimant involved selling vegetables from one place, the
claimant would require assistance with his mobility in
bringing vegetables to the marketplace which otherwise
would be extremely difficult for him with an amputated
leg. We are required to be sensitive while dealing with
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manual labour cases where loss of limb is often
equivalent to loss of livelihood. Yet, considering that the
appellant claimant is still capable t o fend for his
livelihood once he is brought in the marketplace, we
determine the disability at 85% to determine the loss of
income.”

15. In Sand ipKhanuja(supra) , the Supreme Court again gave
prominence to the nature of the vocation of the claimant while
assessing the loss of income. The Supreme Court also reiterated that in
awarding compensation , the multiplier method is logically sound and
legally well established.
16. Recently in ErudhayaPriya (supra) , the Supreme Court taking
note of the injuries suffered by the claimant , held that while applying
the multiplier method , future prospects of advancement in life and
carrier are also to be taken into consideration. The Court further
awarded interest at the rate of 9% on the compensatio n assessed.
17. Applying the above principles to the facts of the case, there is
no dispute between the parties that for ascertaining the loss of earning
for the petitioner, the monthly income of the petitioner is to be taken
as Rs.12,000/ -. There is also no dispute that a multiplier of 14 would
be applicable to the case taking into account the age of the petitioner
and in terms of the judgment of the Supreme Court in
SarlaVerma (supra).
18. The only issue of dispute is whether the permanent disability of
the petitioner is to be assessed at 100% (as claimed by the petitioner)
or 30% (as claimed by the respondent nos.2 and 3). In this regard , the
nature of injury suffered by the petitioner is to be taken note of.
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Pursuant to the orders dated 18.02.2011 and 04 .03.2011 , a Medical
Board was constitu ted by the Dr. Ram Manohar Lohi a Hospital to
examine the petitioner . The report of the Medical Board observed as
under:
“The right upper limb isaffected from elbow downwards.
The upper two third of ulnar bone is exposed,grossly
infected and non -viable. There is stiffness of elbow joint.
The supinationand pronation movement is restricted.
There is stiffness of wrist joint, MP joints,PIP joints and
DIP joints of all the fingers. The thumb is gangrenous
line ofde marcation at distal to MP joint. There is partial
sensation in the forearm .

Opinion: P ost volkmann ischemic contracture , exposed
and non -viable ulnar bone with infected wound with stiff
hand and elbow with gangrene thumb hypo -anesthetic
and non -functional hand.

Treatment option: Amputation of thumb at MP joint level
and coverage ofexposed bone with flap cover . However,
in view of severe stiffness of wrist andsmall joints and
sensory impairment limb will have negligible
function.Amputation of right forearm and hand at elbow
joint may be considered in thelong run.”

19. The petitioner is a vegetable vend or. The injury is to the right
arm and as suggested by the Medical Board , may require a mputation.
Though it is not brought on record if the arm of the petitioner was
actually amputated thereafter, keeping in view the judgment of the
Supreme Court in Syed Sadiq (supra) which also deal t with the case of
a vegetable vend or, the functional disab ility of the petitioner is
assessed as 85% to determine the loss of income.
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20. In this regard the learned counsel for the petitioner has also
placed reliance on the Disability Certificate dated 29.07.2011 issued by
Dr.Baba Sahe bAmbedkar Hospital, Delhi -110085 ,which has
determined the permanent disability of the petitioner at 90% . Though
in terms of the judgments of the Supreme Court referred hereinabove
this itself cannot be a determinative factor for determining the loss of
income, this would certainly be a relevant factor in the present case.
21. As noted hereinabove, there is no dispute that monthly income
of the petitioner is to be taken as Rs .12,000/ -.In terms of the judg ment
of the Supreme Court referred hereinabove , future income prospect is
to be ad ded in form of 50% , however, as the petitioner in its affidavit
and submission s has claimed the same at 30%, for the purposes of
determination of compensation , the same is taken at 30%.
22. As noted hereinabove , there is also no dispute on the multiplier
to be applied.
23. In view of the above, the loss of income of the petitioner is
assessed as under:
Rs.12,000X12X85/100X14 = Rs.17,13,600.00
Add 30% of the above = Rs.5,14,080.00
TOTAL = Rs.22,27,680.00

24. Over and above this, the petitioner has cla imed non-pecuniary
expenses. As noted by the Supreme Court in Raj Kumar (supra) , as the
permanent disability of the petitioner has been assessed at 85%, the
petitioner may not be entitled to claim loss of amenities . In any case,
there is no submission made in support of the same.
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25. However, for the remaining non-pecuniary claim, that is Rs.
90,000/ – for pain and suffering and Rs. 30,000/ – for cost of litigation ,
the same being reasonable, the petitioner is held entitled to the same.
26. The total assessmen t of the compensation is therefore at Rs.
23,47,680/ -, on which the petitioner is also entitled to interest at the
rate of 9% per annum from the date of the petition .
27. The amount of compensation so assessed shall be paid by the
respondent nos.2 and 3 to the petitioner within four weeks of this
judgment. Any amount earlier released to the petitioner shall be duly
adjusted while making such payment.
28. There shall be no order s as to further cost.

NAVIN CHAWLA, J
JANUARY 25 , 202 1/Arya
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